Hamas, the Islamist group that has de facto control of the Gaza Strip, is an arm
of the international Muslim Brotherhood.
It is a terrorist organization
that is ideologically committed to the destruction of the State of Israel. To
quote from article 8 of its Covenant (1988), “[j]ihad is its path and death for
the sake of Allah is the loftiest of its wishes.”
Indeed, Hamas is
committed to the genocide of the Jewish people as a matter of apocalyptic
obligation. Consider the following hadith related by al- Bukhari that Hamas’s
Covenant cites: “The Day of Judgement will not come about until Muslims fight
the Jews (killing the Jews), when the Jew will hide behind stones and trees. The
stones and trees will say ‘O Muslims, O Abdulla, there is a Jew behind me, come
and kill him.’” Bearing this in mind, it is difficult to see how the recent
unity agreement reached in Doha between Hamas and the largest faction within the
Palestine Liberation Organization, Fatah, and the process that it has started
can be viewed as anything but an unwelcome development.
Setting aside its
strategic implications for the prospects of sustainable peace between Israelis
and Palestinians, it poses significant legal challenges for the PLO, Israel and
the international community, something that has received scant attention in the
media to date.
It will be recalled that an exchange of letters between
prime minister Yitzhak Rabin and PLO chairman Yasser Arafat on September 9,
1993, marked the formalization of a process that had initially begun in secret
between the two sides in Oslo. In his letter to Arafat, Rabin, on behalf of the
State of Israel, recognized the PLO as the “representative of the Palestinian
people.” Chairman Arafat, on behalf of the Palestinian people, renounced
terrorism as an instrument of policy and recognized the “right of the State of
Israel to exist in peace and security.”
It is on the basis of this
exchange of letters that all subsequent agreements between the two sides stand,
From the perspective of international law, the PLO’s legitimacy
as a negotiating partner with Israel rests on its continuing adherence to these
parameters, parameters that the international community has consistently
reaffirmed. The unity agreement between Hamas and Fatah calls for “revitalizing
and developing” the PLO. It represents not only a growing alignment between the
two dominant political forces within Palestinian society but also suggests that
a process is now underway that could very well see the PLO co-opted from
Technically, Hamas remains institutionally distinct from the PLO.
As the latter moves closer and closer to the former, however, it will further
and further divest itself of the special position that it currently enjoys under
international law as the representative of the Palestinian people.
would particularly be the case, of course, if the PLO were to actually invite
Hamas to join its ranks. Although this possibility would have seemed quite
unlikely just a few short years ago, when Hamas violently wrested control of
Gaza from Fatah, it seems less unlikely now.
Put differently, as the PLO
moves toward Hamas, it moves away, in an inverse relationship, from
international legality. As the PLO trends toward Hamas, it abrogates its
agreements with Israel. In response, international law gives Israel the right to
take proportionate countermeasures with a view to securing its rights and
restoring the status quo ante.
Indeed, if Israel were to negotiate with a
Palestinian authority that were to include Hamas, it would risk breaching the
considerable obligations that the United Nations Security Council has imposed
upon it and all other States to combat terrorism.
The United Nations
Charter requires all United Nations Member States to “accept and carry out the
decisions of the Security Council in accordance with the present
A further point relates to the particular nature of Hamas’s
tactics. As referred to above, Hamas seeks to exterminate the Jewish people.
This, of course, is a genocidal ambition, and article 1 of the Convention on the
Prevention and Punishment of the Crime of Genocide (1948) obliges all states to
“prevent and to punish” genocide. As the International Court of Justice held in
its Application of the Convention on the Prevention and Punishment of the Crime
of Genocide judgment (2007), a case that Bosnia and Herzegovina brought again
Serbia and Montenegro, this requires all states to “employ all means reasonably
available to them, so as to prevent genocide so far as possible” (paragraph
430). It is “both normative and compelling” (paragraph 427).
setting aside its strategic implications for the prospects of sustainable peace
between Israelis and Palestinians, it is clear that the Doha Declaration between
Hamas and Fatah poses significant legal challenges for the PLO, Israel and the
international community. Coming as it does in the wake of Palestinian Authority
President Mahmoud Abbas’s unsuccessful attempt some months ago to steer
Palestine to admission as a Member State in the United Nations and considering
how much this effort distracted from the very real progress that Palestinian
Prime Minister Salam Fayyad’s ambitious plan of organic state-building had been
experiencing, the unity agreement is an unfortunate development
Its implications continue to reverberate across international
law, and they are not positive.
This is clearly a depressing account of
the stalled “peace process.” However, one can perhaps take some comfort in the
paradox of game theory, as articulated by Israeli Nobel Laureate Robert
Aumann in his 2005 Prize Lecture: “[i]f you want peace now, you may
well never get peace. But if you have time – if you can wait – that changes the
whole picture; then you may get peace now.”The writer is a lecturer in
the School of Law at the University of Reading. The views expressed are those of
the author alone and do not represent those of the University of Reading or its
School of Law.
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