When Violence is Legal

by CURTIS FJ DOEBBLER

Let me preface this piece by stating clearly that I personally do not support violence by any kind of entity. Violence by non-State actor is unfortunate as there is almost always a more effective non-violent alternative. However, I especially abhor violence by the State as it sets a bad example for non-State actors. This is proven by the auspicious fact that in the last century it is State violence that has killed tens of millions of more people than all the collective violence of non-State actors.

Nevertheless, as an international lawyer with almost thirty years of experience advising and representing governments, Heads of States, and non-State actors, I do, however, understand that my credibility depends on my ability to explain international law correctly, as it has been agreed by States. To undertake this responsibility requires a detachment that sometimes runs contrary to my emotional or moral concerns.

No lawyer makes international law, neither does a single Head of State, or even a single country, although a single country might unilaterally bind itself to some action or inaction. Generally, however, the law is found in the agreements between States or treaties and in customary international law.

When a lawyer—especially an international lawyer whose reputation is before not only his county’s legal profession and structures, but those of every country in the world—speaks to explain to interpret the law, her or his credibility depends on an unimpassioned interpretation of the law.

Even social justice oriented lawyers—those lawyers who are committed to using the law to achieve greater equity and equality in society—must have a competent grasp of the law and be able to explain the law rationally and correctly to be credible. To show a competent grasp of international law, international lawyers must defend their views in terms of the words of treaties and the practice and opinions of States.

Consequently, for a competent lawyer, it is, and should be, irritating to see a lawyer or even a non-legally trained person interpret the law incorrectly or ignorantly just to achieve a specific end. I had this feeling of irritation this week when the Belgian newspaper De Standaard penalized Mr. Dyab Abou Jahjah, a columnist, for suggesting the truck bomb in Jerusalem was not an act of terror but part of a legitimate effort to achieve self-determination.

Mr. Jahjah wrote on his blog that attack was legitimate “[b]ecause it took place in an occupied territory and targeted the occupation army.” I unfortunately can’t check the De Standaard website because the newspaper seems to have censored his correct legal statement from their site.

According to Mr. Karel Verhoeven, the editor of De Standaard, Mr. Jahjah “legitimized the use of all necessary means to end the occupation of Palestine.” This according to Mr. Verhoven “placed him outside the borders of public debate in which De Standaard wants to participate. In Dutch or Flemish, from which I translated the remarks, Mr. Verhoven wrote that “Hij keurt Palestijns verzet ‘met alle noodzakelijke middelen’ goed” and he “[d]aarmee plaatst hij zich buiten de grenzen van het publieke debat dat De Standaard op haar eigen platformen wil voeren.”

Such a remark by the De Standaard editor shows a remarkable ignorance. Either he did not even bother to find out what the law is, in which case the management may want to replace him before bring the newspaper into disrepute on a multitude of possible issues, or he got very bad legal advice. In the latter case, maybe the newspaper needs new lawyers, at least to deal with issues of international law.

Had De Standaard correctly understood the law, then it would have understood that Mr. Jahjah statements about Palestinians right to use force to end the occupation is most likely a correct understanding of international law relating to the use of force to achieve self-determination.

I am assuming that the bombing targeted only Israeli soldiers and was carried out by a Palestinian living under occupation as an act in support of ending the occupation. If this is the case, whether one emotionally or morally supports the act, it was likely a legal act. This is not only my considered legal opinion, but this is the best opinion that international law can provide as concerns such a situation.

Let me try to briefly explain some reasons that De Standaard should have been capable of discovering itself.

First, international law is created by States that either enter into a treaty creating a rule of law between them or through their practices and opinions create a general rule of law between themselves and often applying to all States. We know these are the sources of international law because all Member States of the United Nations have agreed to them by ratifying the Charter of the United Nations and the accompanying Statute of the International Court of Justice, which states this in article 38. Thus when international law is being applied, States are only being encouraged to respect rules that they themselves created.

Second, the majority of States have in practice maintained the right to support peoples struggling for their right to self-determination against oppressive regimes by all necessary means. To state that Israel is an oppressive regime denying the Palestinian people the right to self-determination is probably a very significant understatement. We also know that all necessary means includes the use of force because, among other instances, the United States used this language to justify its use of force against Iraq starting all the way back in UN Security Council Resolution 678 (1990) of 29 November 1990.

It is important to note that it has been the practice of an overwhelming number of States to support people striving to achieve self-determination with all necessary means. The support for the South Africans struggle against the apartheid regime was one example of support involving providing the means for the use of force. The support for the people of Biafra, Eritrea, and the Kurds are other examples where States have provided the means for the use of force to achieve self-determination. And the recognition by approximately 140 States and the United Nations, of the State of Palestine, is another example of a means of achieving self-determination, but one that does not involve the use of force.

It is also important to realize that in international law ‘might does not make right’ even if richer and more powerful States might more frequently get away with violating international law that does not change the law. The law can change through the emergence of new practice and opinion by many States, but that has not happened.

Third, the right of peoples striving for self-determination to use force has been confirmed by United Nations resolutions that express the opinio juris of States. UN General Assembly Resolution 2708(XXV) from 1970 states that “…peoples under alien domination … [have the right] … to exercise their right to self-determination and independence by all means at their disposal.” More expressly, the UN General Assembly Resolution entitled Declaration on the Principles of International Law that was adopted unanimously by General Assembly on 24 October 1970 states that,

[e]very State has the duty to refrain from any forcible action which deprives people referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.

Although perhaps not explicit as it could be, notable jurists such George Abi Saab and Asbjørn Eide agree that this language is an authorization for the use of force in the struggle for self-determination against an oppressive regime.

Fourth, the use of force to achieve self-determination is not unbridled by the law allowing it. The force must still conform with the rules of international humanitarian law. For example, only members of the military must be targeted as was the case in this instance. The act must also be proportional, which it was given the weapons and means the Israelis use to oppress the Palestinians. The act must be aimed at a military advantage; killing the opponent’s soldiers is a military advantage. There are more rules but on the face of it the rules were compiled with and at least Mr. Jahjah was entitled to assume that they were on the basis of hat even De Standaard itself reported about the incident.

Although this brief description of the right to use force to achieve self-determination under international law is not conclusive, it does make it clear that Mr. Jahjah was acting responsibly in stating the law as he did. It in fact seems that he had a much better understanding of the international law than anyone else at De Standaard.

Applying De Standaard’s understanding of international law, the newspaper would have resolutely objected to Belgium’s resistance fighters using force against the occupying Nazi soldiers. They might even have been closer to understanding the law as it stood at that time as the law allowing the use of force in the struggle for self-determination only gained currency after World War II.

Although some, maybe De Standaard itself, will bellow that this essay constitutes a legitimation of terrorism, it is the rest of us that suffer from the consequences of such ignorance. Had the world recognized the right of self-determination of the Palestinian people after World War II as international law required, then we would likely be living in a world where Jews, Christians, Muslims, and others live together in relative peace. Doubters of this harmony might want to examine the thousands of years before the occupation of Palestine to see how this was in significant part possible.

Rather than legitimizing violence Mr. Jahjah was doing a substantial service to the cause of justice and the rule of international law. We might not like how the law applies to us, but most of us agree that it is better to apply law agreed to by the international community then live in a lawless world.

Perhaps, rather than start with its apparently emotional disgust of violence, at against certain parties, De Standaard should have through of a right more central to its role in society as a press publication, the right to freedom expression. It would appear that Mr. Jahjah’s views made an important contribution to the discussion of a public issue of great concern to many people in Belgium and worldwide. By suppressing his voice De Standaard might be interfering with the right to impart opinions that Mr. Jahjah has as well as the right of others to receive opinions of public importance. While neither of these rights are unlimited, had De Standaard started its evaluation with consideration of the right to freedom expression then it may have better understood its own responsibility. Because it did not it did a very weighty disservice to the cause of journalism within our society.

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Curtis FJ Doebbler is a visiting professor of international law at the University of Makeni, Webster University (Geneva) and the Geneva School of Diplomacy and International Relations. He is attending the climate talks in Paris on behalf of International-Lawyers.Org, an UN ECOSOC accredited NGO.