The indictment of Knesset member Azmi Bishara for statements supporting Palestinian resistance activities directly raises the issue of whether the Palestinians enjoy a right of resistance under international law, given the character of Israeli occupation policies. The existence of such a right of resistance has not received much attention, especially the issue of whether the right extends to force and, if so, to what extent. This article affirms a limited such right and argues that its relevance to the Bishara case should lead to the dismissal of criminal charges.
Richard Falk is Albert G. Milbank Professor of International Law and Practice Emeritus at Princeton University and author, most recently, of Human Rights Horizons (2001) and Religion and Human Global Governance (2001). He would like to thank Asli Bali for her valuable research assistance in preparing at his request the study entitled "Legal Memorandum: The Legal/Political Context of the Second Intifada and the Question of a Palestinian Right of Resistance" (January-February 2001 ).
"Accusations made by a well-established society about how a people it is oppressing is breaking the rules to attain its rights do not have much credence."
-Former Israeli FM Shlomo Ben-Ami 
THE UNPRECEDENTED REVOCATION on 7 November 2001 of Dr. Azmi Bishara's immunity as a member of the Israeli Knesset opened the way for his criminal indictment on charges that he had violated the Prevention of Terrorism Ordinance (1948) and Regulation 5 of the Emergency Regulations (Exiting the Country; 1948). The essence of the allegations against Bishara was that on two occasions he had made speeches that expressed support for Palestinian resistance in Occupied Palestine and in support of the expulsion of Israeli forces from southern Lebanon.  It is clarifying to appreciate that support for "resistance" in its Arabic phrasing is generally understood as support for the intifada and implies no endorsement whatsoever of armed resistance, much less violence against Israeli civilians. It also should be taken into account that Hizballah's reliance on force was directed at Israeli military forces occupying Lebanese territory, and were, in this primordial sense, an instance of self-defense. Bishara was also accused of violating Regulation 5 as a result of his humanitarian role in arranging family visits by elderly Palestinians to their relatives in Syrian refugee camps.
Such a criminal proceeding raises extremely serious questions concerning the free speech of Palestinian citizens of Israel, particularly those who have chosen to participate in Israeli governmental institutions. For the Knesset to remove the parliamentary immunity of Bishara in reaction to his public advocacy so as to pave the way for criminal prosecution is to send a chilling message regarding free speech and democratic debate to members of Israel's Palestinian community and to suggest a discriminatory double standard applicable to members of the Knesset. Israeli extremists are never officially challenged in this severe manner, even if their views on expulsion, reoccupation, and massive military operations favor behavior that flagrantly violates international law and basic human rights standards.
To assess whether the charges brought against Bishara have a valid legal basis, it is relevant to assess whether the Palestinians enjoy a right of resistance under international law, and if so, within what limits. If such a right exists legally and morally, then it seems unreasonable to the point of being abusive to charge Bishara for supporting what is well founded in law. Even if Palestinian resistance were of dubious legality, its endorsement by a political leader in a public forum would not seem to be an appropriate basis for a criminal indictment.
The question of the Palestinians' legitimate rights under current conditions tends to be avoided in almost all discussions of recent phases of the Israeli-Palestinian encounter. The media focus almost exclusively on violence, especially Palestinian violence, without taking into account the highly problematic relationship that has evolved over the years between the occupying state and the occupied people. At issue is the substantive question of the right of a people living for decades under such oppressive circumstances to act in opposition. Equally as important as the right is its scope, specifically whether it extends to the use of force, and if so, within what limits. In the foreground of such concerns is the need to distinguish between permissible and impermissible uses of force and specifically to situate the matter of "terrorism" so as to take account of oppression and resistance.
"Terrorism" is a highly contested term that is manipulated to condemn and to validate (as counterterror) uses of force by political opponents. The public language of political violence associated with the Palestinian-Israeli conflict reflects the geopolitical and diplomatic asymmetries that arise when a state with powerful allies is on one side of a conflict and a disempowered people is on the other side. The media, especially in the United States, shape public awareness on such matters by insidious and consistent deference to prevailing power structures, thereby distorting analysis of competing claims and shaping public opinion in a manner prejudicial to Palestinian claims. Of course, the anti-Israeli rhetoric that abounds in the Arab world is distorting in a different way. It inflames public opinion as an expression of frustration and hostility, contributing to political and religious extremism that emerges in the face of the utter failure of moderate governments in the Arab world to obtain justice for the Palestinians (or for their own peoples). This prolonged failure to achieve a fair outcome of the conflict that realizes the Palestinian right of self-determination also indirectly makes credible accusations that the United States is the main responsible party, using its diplomatic leverage behind the scenes on behalf of Israel as well as lending support by way of its overall capabilities. The American pattern of partisanship has made it easy to cast the United States as the enemy of the Islamic world, despite its professed role as "honest broker."
This article attempts to get away from the polemics that so often dominate discussions of Palestinian rights and Israeli security. In this spirit, an effort is made to treat terrorism in as objective a way as possible. It is defined here as any instance of political violence directed at civilians with a calculated intention of producing fear as well as physical harm. The point to stress is that terrorism so understood pertains to the type of violence, and above all to its target, and not to the identity of the actor as nonstate. States can engage in terrorism as well as sponsor or harbor terrorists. Collective punishment of a people subject to the exigencies of a military occupation with territorial ambitions is clearly as much a form of terrorism as reliance on suicide bombers to explode deadly ordinance in places where innocent civilians abound.
To explore such a fundamental and controversial issue is to launch a complex inquiry. It is necessary to provide some sense of background and context in order to make an initial assessment of whether Palestinian recourse to force is reasonable given the overall circumstances. And beyond this, the appraisal of the specific force relied upon by Palestinians needs to be considered from moral, legal, and political perspectives and in interaction with Israeli occupation tactics and uses of force. Note that this substantive inquiry is on a different plane from that pertaining to the case of Azmi Bishara, which is in its essence the simpler question of whether the advocacy and encouragement of Palestinian resistance, as distinct from its substantive status, is properly a matter of criminal indictment. It would seem that genuinely democratic societies, even under the stress of strife and struggle, permit dissent and verbal statements of opposition, particularly where the weight of international law seems on the side of those asserting a right of resistance. Such a conclusion would seem greatly strengthened by an appreciation that Bishara is an elected representative of the Palestinian community living within Israel and that his words deserve to be treated as privileged speech.
SIX ANALYTICAL ASSUMPTIONS
The overall narrative of the Palestinian struggle for self-determination is exceedingly complex and raises many issues of interpretation that are not directly relevant to this inquiry. Here I set forth a perspective on the overall Palestinian situation as it is currently manifested by making six assumptions as to matters of fact and law. These assumptions avoid issues of underlying historical responsibility that gave rise to the conflict and limit attention to the dynamics of occupation and resistance. No attempt is made to define the contours of a solution that would fulfill the Palestinian right of self-determination, give both Palestinians and Israelis equal status with respect to security, and end the occasion for resistance.  Finally, the endorsement of resistance as legitimate under existing conditions is not without qualification by reference to limits on the use of force, specifically the prohibition of political violence that targets civilian society, and is therefore properly characterized as "terrorism." But such a prohibition also applies to the occupying state, which is legally and morally obligated to refrain from violence directed at innocent civilians or at the occupied society as a whole. Such violence by the state also needs to be understood and treated as an equally prohibited species of "terrorism." Respect for limits on recourse to violence needs to be assessed on the basis of mutuality and freed from a pervasive statist bias that tends to report instances of violence against Palestinian civilians in neutral language, reducing Palestinian suffering to a statistical count. On the Israeli side, in contrast, civilian casualties are generally reported in highly emotive language reinforced by powerful visual images of death and mutilation, the tragedies of loss being individualized and personalized to a great degree.
The analysis here proceeds from the assumption that Palestinians on the West Bank and in Gaza have been living continuously under Israeli occupation since 1967 and that this reality was not altered in its essence by the effects of partial and provisional Israeli military withdrawal under the agreements reached as a result of the Oslo peace process.  The modalities of occupation have changed over time, but not the defining reality arising from extensive Israeli control over what takes place within the West Bank and Gaza, including the complete regulation of access to and from the territories for all persons and goods. Part of this manipulated reality involves the unreasonableness of the Israeli insistence that the Palestinian Authority (PA) should be held automatically responsible for all Palestinian acts of terrorism committed against Israel, making its assets and personnel appropriate targets for retaliatory violence by Israel.
A second assumption is that the administration of the West Bank and Gaza are subject to the norms contained in the Fourth Geneva Convention on the Protection of Civilians (1949), as well as those portions of the 1977 Protocol I of the Geneva Convention pertaining to the Protection of Victims of International Armed Conflicts (1977) that can be considered as part of customary international law. Israel has challenged this assumption, contending that it regards the West Bank and Gaza as "disputed territories," thereby falling outside the coverage of international humanitarian law.  The United Nations has overwhelmingly supported the view that the Geneva framework is applicable to Israel's occupation of the Palestinian territories. This UN position is reinforced by a consensus of impartial international law experts. Even the U.S. government up until the Clinton presidency supported the applicability of international humanitarian law to the Israeli occupation.
A third assumption underlying the analysis offered here is that Israeli occupation has been responsible since 1967 for systematic and deliberate violations of the fundamental rights of the Palestinian people as defined by international humanitarian law. These violations have involved a series of practices: the transfer of populations and annexation of land, house demolitions, political assassinations and extrajudicial punishments, torture, and a variety of collective punishments involving severe restrictions on movement in a way that impinges on the livelihood and well-being of ordinary Palestinians. The reason that the applicability of the Geneva Convention is a matter of the utmost importance is that Israel has been guilty of repeated violations of its most basic provisions in a manner that bears directly on the exercise of Palestinian rights of self-determination.
A fourth assumption is that the international community by way of the United Nations has affirmed Palestinian rights under international law in relation to the key issues in dispute: the parity of the two peoples and their right to establish respective states on the territory of the former Mandate of Palestine (UN General Assembly Resolution 181, 29 November 1947); the Palestinian refugees' right of return and compensation (UN General Assembly Resolution 194, 11 December 1948); Israeli withdrawal from territory occupied by force as a result of the 1967 war as mandated by UN Security Council Resolutions 242 and 338 (1967, 1973); the applicability of the Palestinian right of self-determination as decisive of any solution (UN General Assembly Resolution 34/70, 6 December 1973); and the unconditional applicability of the Fourth Geneva Convention, as well as the reaffirmation of international and UN law that it is inadmissible to acquire territory by force or conquest (UN Security Council Resolutions 476 of 30 June 1980, 480 of 12 November 1980, and 1322 of 7 October 1980). In effect, international law is indisputably supportive of the main Palestinian claims, and a peace process so oriented would look very different from the sort of bargaining on the basis of realpolitik (and realistic expectations, given the power disparities) that was the essence of the Oslo peace process. An alternate peace process responsive to the guidelines for fairness provided by international law would create an image of "a just peace" that is far more favorable to the Palestinians than what is envisioned by a realistic acceptance of what is acceptable to the stronger party and treats the facts on the ground, although established without respect for law, as a necessary basis for negotiations.
A fifth assumption is that Israel has consistently and flagrantly defied the will of the United Nations with regard to Palestinian rights for more than five decades, and despite this victimization, the UN has been unable to offer protection to the Palestinian people or take steps to ensure the implementation of their rights. Efforts in 1999 and 2001 to uphold the treaty obligation of the parties to the Geneva Convention to ensure compliance have come to nothing due to the opposition of the United States and Israel.  Palestinians enjoy no remedy for the numerous wrongs they have endured, and even the modest efforts by an overwhelming consensus of members of the Security Council to establish a simple monitoring presence in the West Bank and Gaza to report on violent incidents has been stubbornly blocked by Israeli refusals and American vetoes.
A sixth assumption is that Israel's response to Palestinian resistance has itself been the occasion of further violations of international law, intensifying the violations that have been continuing characteristics of an occupation that has lasted more than thirty years and has continuously generated facts on the ground (settlements, annexations, strategic roads) that diminish the scope of the Palestinian patrimony that defines the extent of its right of self-determination.  The harshness of the Israeli response to Palestinian resistance has been especially pronounced during the period covering the second intifada, from 28 September 2000 to the present, intensifying by stages. During Ariel Sharon's premiership that commenced in February 2001, Israeli provocations against Palestinian goals have been a further aggravating feature. 
These six assumptions set the stage for an exploration of Palestinian resistance from the perspectives of law, morality, and politics, each of which is relevant to an assessment of what the Palestinians have done to uphold their rights. This inquiry is beset by special difficulties associated with the unique character of the Israeli-Palestinian encounter. These difficulties include an unusually long period of military occupation, a refusal by the occupying power to accept the constraints of international humanitarian law, the role of nonstate actors as largely unrepresented in official arenas of intergovernmental policy-making, and the inability of the United Nations to gain respect for its decisions and authority. Also of relevance is the gradual descent of the conflict into a condition of asymmetric war being waged by Israel under Sharon's militant leadership against an essentially defenseless Palestinian society. This gruesome reality in Palestine is further accentuated by the extent to which Israeli recourse to warfare has been assimilated by analogy and argument to the American-led war against global terror unleashed by the 11 September 2001 attacks on the World Trade Center and the Pentagon. Under these circumstances, a framework that considers Palestinian claims and Israeli counterclaims must be constructed on the basis of sensitivity to context and widely shared norms of behavior.
THE RELEVANCE OF INTERNATIONAL LAW
Since the Palestinian territories, including East Jerusalem, came under Israeli occupation as a result of the 1967 war, the UN has consistently affirmed that these territories are governed by international humanitarian law, specifically by Section III of the 1907 Hague Regulations relating to the Military Authority over the Territory of a Hostile State, the Fourth Geneva Convention, and as much of Protocol I as is embodied in customary international law.  Israel has denied its legal obligation on the grounds that the territory is "disputed," not "occupied," and therefore technically does not fall within the coverage of the Geneva Convention. As suggested, such a position has been rejected repeatedly by overwhelming votes in the United Nations. 
The essence of what international humanitarian law requires of Israel is to uphold the human rights of the occupied civilian population of Palestine and to refrain from action that would change the legal status, physical character, institutional structure, and demographic composition of the people and territory under occupation.  It is true that the Fourth Geneva Convention allows Israel to act to uphold its security interests and to restrict the occupied population to the extent "absolutely necessary" (article 53) or for the sake of "imperative military reasons" (article 49) and "imperative military requirements" (article 55). The reality of Palestinian resistance, including recourse to various kinds of force, has made the interpretation of what is reasonable controversial in specific situations.
What is clear beyond doubt under the Fourth Geneva Convention is the primary duty of the occupying power not to change the character of the occupied territory. The continuous establishment and expansion of more than 200 armed and militarily guarded Israeli settlements within occupied Palestine has created and expanded "facts on the ground" that violate this fundamental duty of the occupier, as specified in article 49(6) of the Fourth Geneva Convention. These settlements have changed the demographic character of the occupation, as well as land tenure, especially with respect to East Jerusalem, which also has been altered in terms of its metropolitan boundaries. Because the settlements need to be protected, additional land has been requisitioned, and supposedly secure "bypass roads" directly linked to Israel have been constructed at great expense for the exclusive use of Israeli settlers. The encroachment on Palestinian rights is intrusive in the extreme and fundamental, a source of grievance, resentment, and intense friction.
Such a process violates international law in another way. It impinges upon the most fundamental right of self-determination for the Palestinian people. As revealed in the course of the Oslo peace process in the 1990s, Israel continued its program of settlement construction while negotiating with the PLO as the representative of the Palestinian people, doubling the settlement population and establishing many new settlements between 1993 and 2000. The embedded character of these settlements distorted the negotiations with respect to the West Bank and East Jerusalem in a manner that diminished the scope of Palestinian self-determination, violating fundamental rights bearing on Palestinian entitlements that had already been confined to the 22 percent of the original Palestinian Mandate that was alone the subject of negotiations to establish a state of Palestine. It needs to be realized that the Palestinians were expected by Israel and the United States to strike compromises pertaining to this 22 percent, including substantial accommodations of the settlements, alterations of Jerusalem, and diminished rights of Palestinian refugees living in exile or in camps. At no point was the Israeli 78 percent open for comparable discussion of respective claims, or indeed for any discussion whatsoever.
In evaluating Palestinian recourse to resistance, this background of Israel's refusal to heed the overwhelming will of the international community with respect to either withdrawal or sustaining the status quo in occupied Palestine is decisive and essentially uncontroverted. Such a conclusion is further strengthened by Israeli reliance on collective punishments that are also explicitly prohibited in international humanitarian law, especially house demolitions, curfews and closures, and interferences with normal economic activities related to the Palestinian pursuit of employment, education, health, and minimum economic well-being. It is helpful to appreciate that international law nearly always needs to be interpreted in situations of an unprecedented character on the basis of the general policies at stake. What makes the belligerent occupation of Palestine distinctive is the combination of territory acquired by force, which is impermissible under modern international law, combined with the extent to which the Palestinian people are victims of a process of interrupted decolonization. These factors need to be kept in mind when evaluating the interaction between the security considerations of the occupying power and spontaneous and organized resistance by a people seeking to exercise their long suppressed rights. 
The frustrations associated with these conditions erupted in the first intifada that began in 1987, consisting of stone throwing in the course of demonstrations and Palestinian refusal to cooperate with the Israeli administering authorities. As a result of the Oslo arrangements, Palestinian security forces were lightly armed and given the task of controlling urban areas in the occupied territories. The frustrations associated with the Oslo process, the related concerns with Camp David II, and the provocative visit in September 2000 of Ariel Sharon to the Haram al-Sharif, including al-Aqsa Mosque, led directly to the second intifada. From its very first days, Israeli sharpshooters inflicted heavy casualties on Palestinian demonstrators, who in the early period were mainly unarmed youth engaged in stone throwing of a symbolic nature against Israeli police and military forces amply protected in their fortified positions. In essence, Israel relied on excessive force in both intifadas, generating a cycle of violence that has been escalated by Israel at each stage, inflicting disproportionate casualties on the Palestinian side.  Such an assessment is not meant to minimize the tragedy and suffering associated with the loss of innocent Israeli lives as a result of deliberate Palestinian terrorist initiatives.
International law is silent on the rights of an occupied people to resist an occupation that flagrantly and persistently violates their most fundamental rights.  uch rights do seem to flow directly, however, from the general support given to the dynamics of decolonization and from the related legitimacy of efforts by a colonized or oppressed people to engage in struggle, including armed struggle.  Without entering into the substantive details, the main relevant point is that the historic 1960 UN General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples establishes four important propositions. First, force to deny self-determination is prohibited under international law. Second, and conversely, "forcible resistance to forcible denial of self-determination--by imposing or maintaining colonial or alien domination--is legitimate according to the Declaration." Third, movements to achieve self-determination, although not qualifying as states, have standing in international law, including the right to receive support from outside actors. Finally, third-party governments can treat such movements as legitimate without encroaching on the rights of the state exercising control over the territory and its inhabitants.  The extension of such general developments in international law to the Palestinian struggle is supported by the weight of international expert opinion and has been endorsed on a number of occasions by the UN General Assembly. 
In this regard, the right of Palestinian resistance is linked to the historic rights of the Palestinian people to self-determination. The long denial of this right must be taken into account in evaluating recourse to force. Despite this affirmation, the laws of war also apply to the modes of resistance undertaken by the Palestinians. International law provides no direct guidelines at this point, except general prohibitions on indiscriminate violence contained in the customary international law, as well as attacks directed at civilian society, which are treated as "terrorism" and are of a criminal character. There are no extenuating circumstances that can legally justify the violation of this principle of limitation. In a reported statement to a meeting of the foreign ministers of the Organization of the Islamic Conference, Hamas sought support for suicide bombings directed at Israeli targets because "the Palestinians had no choice but to fight occupation," and allegedly possessed no alternative means.  Such a dilemma does appear to exist, but it does not validate the use of violence against Israeli civilians. To avoid charges of terrorism, Palestinians must find ways to resist that do not rely on violence directed at Israeli civilians. Such a burden may be difficult given the harshness of the occupation, but it can only be lifted by Palestinian ingenuity.
All forms of nonviolent resistance are indisputably permissible, including refusal to obey the regulations of the occupying power. The difficult issue concerns recourse to force. Reliance on symbolic and low-tech violence (stone throwing), especially if directed at military or illegal and armed settler personnel, seems clearly to be permissible given the present conditions of occupation. Stronger forms of violence against military personnel and administering officials is more problematic, as is violence that intends to injure and kill that is directed at the settlements, which while illegal and armed, cannot be viewed persuasively as military targets. Even so, given these circumstances, it is difficult to view the advocacy or support of armed Palestinian resistance as morally or legally objectionable or as politically dysfunctional. Such advocacy is in no way an endorsement of suicide bombing against civilian targets or any other form of terrorism, which is unconditionally rejected as a permissible tactic regardless of context. To be clear, the same prohibition pertains to terrorism employed by the state, and blame should be accorded to non-state and state actors when, as has been the case in recent months in the Israel-Palestine conflict, each side relies on terrorism as retaliation and provocation.
THE RELEVANCE OF INTERNATIONAL MORALITY
International law has always had a close relationship with international morality. The entire effort to prohibit recourse to force in situations other than self-defense and to promote international human rights reflects the legal imprint of a changed dominant morality. Such moral attitudes express a societal revulsion concerning the devastation and cruelties of warfare, heightened by the experience of the two world wars, together with the movement toward the emancipation of peoples from various forms of oppressive governance, with a great emphasis after 1945 on the struggle against colonial rule. The claims of the Palestinian people, and their denial by Israeli force and territorial ambitions, need to be interpreted within this general historical context. So understood, support for a right of resistance assumes the status of objective analysis and of a moral imperative.
The only moral question at issue is the extent of this right and its relationship to restrictions on the use of force. The best available principled framework for identifying limits on the use of force is that provided by the just war doctrine as adapted to the specific circumstances of illegitimate belligerent occupation. As argued, the just cause of the Palestinians has been continuously confirmed over the years by authoritative statements to this effect by the United Nations and has been heightened by Israel's refusal to heed such expressions of authority notwithstanding the fact that it owes its own sovereignty as a state to the same source of authority. The focus of debate at the present time is upon the just means of armed struggle and how such considerations affect the rights of Palestinians and Israelis. The emphasis on just means restricts both sides to use force in a manner that minimizes its destructive effects and is confined to military and security targets. Terrorism by either side is unconditionally prohibited. It is to be observed that in the course of warfare, the ends of victory have often taken precedence over adherence to just means. The most prominent instance is World War II, in which the just cause and military victory of the Allied side effectively suppressed criticism concerning reliance on unjust means, especially strategic and atomic bombing.
The Palestinian reliance on unjust means under the circumstances of the Israeli occupation needs to be understood in this light. It is not a legal or moral excuse for such behavior, but it is a recognition that in contexts of extremity, the search for effective methods of struggle tend to overwhelm restraint as to means in accordance with just war criteria. An evaluation of the Palestinian struggle that is not sensitive to these elements of necessity fails to address the tragic predicament of surrender or reliance on prohibited means of forcible resistance in pursuit of fundamental rights. States habitually rely with less justification on such rationales for their violence against civilian society. Perhaps, the most notorious case in recent history was the official justification for the atomic bomb attacks on the urban populations of Hiroshima and Nagasaki at the end of World War II as a matter of saving American lives. 
The morality of force undertaken by actors allegedly representing civil society (here Hamas and Islamic Jihad) is always suspect and will be treated by the occupying power in effective control as justifying high levels of counterforce, criminal indictment, and punishment. The validation of recourse to force by nongovernmental actors carries with it a particularly heavy burden of persuasion to show that peaceful alternatives have been responsibly tried and are not reasonably available. Such a demonstration in the Palestinian setting depends on discrediting the Oslo peace process as a genuine alternative to armed struggle. It raises complex issues of representation. Who speaks authoritatively for the Palestinian people? Who represents Palestinians in exile living outside the occupied Palestinian territories? The PA did appear to accept the Oslo approach as a peaceful alternative, rhetorically opposed terrorism, and to some extent has arrested suspects. It remains unclear whether the second intifada should be interpreted as immediately signifying the PA's rejection of Oslo or whether the sustained protests were mainly an expression of Palestinian disappointement with the results of the Oslo process and its Camp David sequel. This possibility raises the further contested issue of whether such a rejection of the Israeli offers by the Palestinians was reasonable given either Palestinian rights under international law or their aspiration to have a viable state enjoying full sovereign rights. Sharp perceptual differences on these matters ensure the absence of a consensus as to whether Oslo gave the Palestinian people a peaceful path to the realization of their right of self-determination, but it is certainly reasonable to conclude that no such opportunity existed for the Palestinian side.  This assessment does not exclude its opposite. It would be also reasonable to conclude that the Camp David II/Taba offers should have been accepted by the PA, or at least treated as a basis for further negotiations.
THE RELEVANCE OF POLITICS AND POLITICAL REALISM
In settings where power disparities are as great as between the Israelis and Palestinians, the prudential question is also important: what tactics are appropriate to the side seeking to vindicate its rights under international law? Recourse to force has the disadvantage of validating reliance on force by the stronger side, which is especially the case to the extent that resistance by the weaker side can be criminalized as "terrorism" while the forcible response, even if violative of international law, is viewed as "enforcement." Such disparities in relation to force are accentuated by the degree to which the world media tends to be statist in outlook, which pertains particularly to the Israeli-Palestinian relationship, especially as portrayed in the United States. Israeli victimization is individualized and humanized, while Palestinian victimization is reduced to statistical abstraction and often treated as an accidental byproduct of legitimate Israeli reprisal or enforcement actions directed at official, noncivilian targets. Palestinian violence is viewed as an extreme form of terrorism, while Israeli responses, even when directed at civilian targets, are never so described but at most are criticized as "excessive force."
At the same time, given the frustration associated with the failure of Israel to withdraw from Palestinian territories in a genuine manner, as well as Israeli refusal to respect the will of the United Nations, the Palestinian choice seems to have been reduced to one of acquiescence or resistance. To choose resistance under these circumstances seems reasonable. To make resistance pose a credible challenge to the occupying power would seem to justify reliance on force, at least if confined to military and governmental targets. But is such permissible uses of force feasible under the circumstances of Israeli domination?
If such resistance is ineffectual or cannot be mounted, then the dilemma is more serious: terrorism or surrender, with both options appearing unacceptable. It is a severe abuse of occupation to put a people in these circumstances, and it is not surprising that a desperate politics associated with suicide bombing has resulted. Is such a course of action politically prudent and effective? Only history will eventually reveal the answer, although it seems evident that the short-run consequences will be disastrous for the already beleaguered Palestinian people trapped in the brutal dynamics of Israeli occupation now linked to America's War on Global Terror.
A CONCLUDING NOTE
The events of 11 September 2001 have greatly complicated the struggle of the Palestinians and curtailed their options. It is notable that Yasir Arafat immediately, and without prompting, condemned the al-Qa`ida attacks and repudiated any purported link to the Palestinian struggle.  It is equally notable that formally and informally Israel has contended that its opponents among the Palestinians, including Arafat, essentially are no different from the perspective of terrorism than al-Qa`ida and, therefore, that they should be treated with a response similar to the U.S. response to 11 September.
The Bush administration has done a diplomatic dance, initially supporting explicitly for the first time the goal of a viable Palestinian state, while at the same time buying the Israeli argument that it was the target of Palestinian terrorism, and as such is as entitled as the United States to respond by using its military power against those who provide safe haven. By stages this latter posture has prevailed, to the point that the U.S. government lately lends approval to even the most savage Israeli military responses directed at Palestinian civilian society. These responses make use of high technology weaponry to inflict harm on an essentially defenseless occupied people and are coupled with a variety of collective punishments that cause great suffering for the Palestinian population as a whole. Israel has managed to persuade the United States to treat Hamas and the Islamic Jihad as enemies in its global war on terror and to leave out of account the terrorist tactics used by Israeli as an integral aspect of its occupation. 
Under these circumstances the treatment of Azmi Bishara becomes a particularly prominent litmus test of Israeli democracy. The weight of the above analysis confirms that it is entirely reasonable for someone in Bishara's position to believe that Palestinians under occupation have the right of resistance, although not to the extent of terrorist forms of violence. This assessment of the Bishara case does not determine the outcome of the debate about what sorts of legal, moral, and political considerations should apply to Palestinian claims of a right of resistance and to Israeli claims based on security. Such a debate is impossible to resolve, as the premises of the two sides are diametrically opposed, but at least the issues in controversy can be clarified, and a degree of consensus might be established on the limits of permissible force. Even here it is difficult to reach conclusions as observers rely on contradictory premises. There is general agreement that Palestinian terrorism is unacceptable, but there is no reciprocal willingness to concede even conceptually, much less operationally, that Israeli violence and occupation policies have been consistently implemented in a manner that also constitutes terrorism. And beyond this, the overall refusal of Israel to adhere to the rules of international humanitarian law over the course of its occupation is a constant provocation directed at the Palestinian people, giving a legally and morally untenable choice between resistance and surrender. Especially given the colonialist background of a British mandate, together with the special fiduciary relationship toward people living under such an arrangement that was accorded originally to the League of Nations and later to the United Nations, the least that the Palestinians are entitled to expect is that their rights under international law will be upheld. But years of denial of these rights without an effective UN response has left the Palestinians aware that self-help is their only hope. Acts of resistance must be appreciated as arising out of such a troubled background.
Richard Falk is Albert G. Milbank Professor of International Law and Practice Emeritus at Princeton University and author, most recently, of Human Rights Horizons (2001) and Religion and Human Global Governance (2001). He would like to thank Asli Bali for her valuable research assistance in preparing at his request the study entitled "Legal Memorandum: The Legal/Political Context of the Second Intifada and the Question of a Palestinian Right of Resistance" (January-February 2001).