International law and the Hamas-Fatah Doha deal

As the PLO moves toward Hamas, it moves away, in an inverse relationship, from international legality.

By ROBERT BARNIDGE
February 19, 2012 22:24
4 minute read.
PA President Abbas, Hamas chief Mashaal in Qatar

PA President Abbas meets Hamas chief Mashaal in Qatar 390 R. (photo credit: REUTERS/Thaer Ghanaim/PPO/Handout)

 
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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.”

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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, or fall.

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 within.

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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.

This 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 Charter.”

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).

Thus, 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 indeed.

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 J.

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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