By John Dugard
The apartheid regime of South Africa initially sought to discredit its political opponents by labelling them “communists”. When the international community realized that the term was abused the regime resorted to labelling its opponents “terrorists”. This proved to be more effective.
Nelson Mandela remained on the United States terrorist watch list until 2008 while Margaret Thatcher and Ronald Reagan both called him a terrorist into the 1980s. Other authoritarian regimes have followed this approach. The Myanmar military regime has branded the winner of Myanmar’s most recent elections as “terrorists”.
So it comes as no surprise that the government of Israel should use the labels of anti-Semitism and terrorism to discredit and silence its opponents abroad and in Israel and the occupied Palestinian territory. Recently it has declared six human rights organizations engaged in monitoring human rights violations in Israel and assisting the Prosecutor of the International Criminal Court in his investigation into Israel’s crimes to be “terrorist organizations.”
Terrorism is an emotive word that has no place in the assessment of the conduct of either a government or a resistance movement. One man’s freedom fighter is another man’s terrorist. Few would today label members of the French resistance in World War II as “terrorist” and most would have no hesitation in describing the Nazi forces as “terrorist”. Yet today most western states refrain from describing the acts of government forces as acts of terror but have no hesitation in so describing the acts of resistance movements and other non-state actors.
Both governments and non-state actors commit acts of terror. The indiscriminate firing of rockets into Israel by Hamas constitutes an act of terror. But so does the Israel Defence Force’s indiscriminate bombing of Gaza. That states are not immune from committing acts of terrorism is confirmed by Article 33 of the Fourth Geneva Convention which prohibits states from committing terrorism.
International law avoids labelling only one party to a conflict as terrorist by specifying that any party engaged in an armed conflict, be it the forces of a state or the members of a resistance movement, liberation movement or other non-state actor, commit international crimes if they engage in certain conduct. Genocide, aggression, crimes against humanity and war crimes are all crimes recognized by international humanitarian law and the Rome Statute of the International Criminal Court. Most involve acts of terror in the sense that they are intended or calculated to create a state of terror in the general public, but they are not labelled as terrorism. Instead, they go by some other name. It is these crimes committed on the territory of Palestine that are being investigated by the International Criminal Court.
Needless to say, the actions of the Israeli Defence Force (IDF) feature most prominently in the investigations by the International Criminal Court. After all, in its offensives against Gaza it has inflicted more harm, killed and wounded more persons and caused more damage than the militants of Hamas. The IDF has terrorized more Palestinians than Hamas’s rockets have ever done to Israelis.
In 2008-9 in Operation Cast Lead the IDF killed over 1,400 Palestinians, of whom at least 850 were civilians (including 300 children and 110 women) and wounded over 5,000. Four Israeli civilians were killed by Palestinian rockets, ten soldiers were killed and 148 wounded. In 2014 in Operation Protective Edge some 2,200 Palestinians were killed, of whom 1,492 were civilians (including some 500 children and 300 women), and over 10,000 wounded. Sixty-six Israeli soldiers were killed and six civilians were killed by rocket and mortar fire from Gaza. In 2018 in the course of Palestinian protests along the border of Gaza, dubbed the Great Return March, over 120 Palestinians were killed by live fire and tear gas and 13,000 wounded. From 10 to 21 May of this year 256 Palestinians were killed in Gaza (including 66 children and 40 women) and 2,000 wounded. In the West Bank 26 Palestinians were killed and 6,900 wounded. Thirteen Israelis were killed, including two children and six women.
Israel’s above air and ground offences against Gaza can in no way be described as acts of self-defence. They were simply actions taken to enforce Israel’s prolonged occupation of Palestine and to inflict collective punishment on the people of Gaza for their actions of resistance to occupation.
The statistics of Israel’s indiscriminate offensives against Gaza show convincingly that the IDF, equipped with sophisticated modern weaponry, has killed, wounded and terrorized a disproportionate number of civilians. These actions more aptly qualify as crimes against humanity and war crimes than the relatively ineffective actions of Hamas, using unsophisticated rockets. In short, if either side is to be designated as “terrorist” it is the State of Israel rather than Hamas.
One should not forget that the State of Israel was founded on acts of terror against British forces during the Mandate period, such as the blowing up of the King David Hotel in 1946. Nor should one forget that two persons deeply involved in Israel’s war of terror against British forces became Prime Ministers of Israel – Menachem Begin and Yitzhak Shamir.
In the light of her close associations with the government of Israel, it comes as no surprise that Priti Patel, the UK’s Home Secretary, has declared Hamas, both its political and military wings, as a terrorist organization. No doubt she hopes that this will delegitimize Hamas and silence support for Hamas. In so doing she has completely disregarded the evidence that shows that the government of Israel more accurately qualifies as terrorist. Parliament likewise, by approving this proscription of Hamas, has ignored the facts and labelled Hamas as a terrorist organization while exonerating Israel of its crimes.
John Dugard is Emeritus Professor of Law, Universities of Leiden and the Witwatersrand; Former Director of the Lauterpacht Centre for International Law, Cambridge; and a former UN Special Rapporteur on Human Rights in Palestine.