By Orna Ben-Naftali and Aeyal Gross
The second Intifada, also known as the al-Aqsa Intifada, broke out in September 2000 following a visit by Israel’s then-opposition leader Ariel Sharon to Jerusalem’s Temple Mount (or Haram al-Sharif). Since the site is sacred in both the Islamic and Jewish religions, and the question of sovereignty over it has been one of the thorniest issues in negotiations between Israel and the Palestinians, it is not surprising that Sharon’s visit was considered a deliberate provocation.
The following day, Palestinian demonstrators gathered around the al-Aqsa mosque, threw stones at Jewish worshippers at the Western Wall below, and Israeli security services responded by firing rubber-coated metal bullets and live ammunition at the crowd. Five Palestinians were killed. Palestinian demonstrations throughout the territories and within Israel followed, and the vicious cycle of violence known as “the second Intifada” began. By February 2005, when Palestinian leader Mahmoud Abbas agreed to a mutual truce with Prime Minister Sharon and persuaded the main Palestinian armed groups to declare a cease-fire, 3307 Palestinians, including 654 children, and 972 Israelis, including 117 children, had been killed.
Sharon’s visit was only the spark that set off the uprising, not its root cause. After seven years of the Oslo peace process, both Israelis and Palestinians had lost faith in its underlying premise that small steps on both sides could build trust between the two parties. Many Israelis felt that their withdrawal from Palestinian territory had not brought them greater security, while Palestinians saw an expansion of settlements and no genuine Israeli interest in creating a viable Palestinian state. The failure of the Camp David Summit in July 2000 entrenched these views. From an Israeli perspective, the Palestinian refusal to accept what they conceived as the most generous land offer Israel had ever made showed that they were not negotiating in good faith and had never accepted Israel’s right to exist securely. Many Israelis came to believe that the subsequent uprising was orchestrated by Palestinian leader Yasser Arafat to pressure Israel into concessions he could not achieve through negotiation.
Many Palestinians, for their part, felt that the Israeli proposals at Camp David ignored the basic requirement of justice that the state of Palestine should control all the land the Palestinians had occupied before 1967 and were designed to leave settlements on the ground in a way that would make the Palestinian state not viable. Palestinians complained that Israel’s negotiating strategy aimed not at a fair settlement but at making the Palestinians appear responsible for the breakdown of talks. From their perspective, the second Intifada was a spontaneous response to a series of setbacks and provocations.
Israel’s heavy use of force against civilian demonstrators in the early days of the uprising set the pattern for what was to follow. This period also gave the Intifada its emblematic images and hastened a mutual process of dehumanizing the enemy. At the end of September, a Palestinian man named Jamal al-Dura and his 12 year old son Mohammed were caught up in armed clash between Israeli and Palestinian forces in Gaza; the son was killed and the father wounded by Israeli fire. The entire sequence of events was filmed by French television, and the pictures became for Palestinians a symbol of Israeli lack of concern for Palestinian lives. A couple of weeks later, two Israeli reserve soldiers lost their way and mistakenly ended up in Ramallah. A Palestinian mob gathered outside the police station where the soldiers had been taken, and were given access to them. The images of the body of one of the soldiers being thrown from the window of the police station with a Palestinian policeman waving bloody hands at the crowd became a symbol of Palestinian barbarism imprinted on the Israeli consciousness.
It was clear from the start that this Intifada, as distinct from the first one, was going to be fought with weapons not stones. The Israeli army’s heavy-handed tactics – including the use of tanks, helicopters and live ammunition against demonstrators – blurred any distinction between combat and civilian zones. Unable to confront the Israeli military directly, Palestinian fighters increasingly struck back with attacks on civilian targets. Suicide bombing in public places in Israel was unleashed in the summer of 2001 and became the main expression and tactic of the Intifada, generating a deep sense of insecurity and anger among Israelis that translated into political support for ever tougher responses. Israel argued that the Palestinian security forces were involved in terrorist attacks, a charge that led to a further escalation of hostility and distrust. The question of responsibility for suicide bombings remained controversial. A 2002 report by Human Rights Watch (HRW) determined that the leaders of Hamas and Islamic Jihad, as well as of the PFLP[LM3] , openly espoused, encouraged, or endorsed suicide bombing attacks against Israeli civilians, and appear to have had the capacity to turn the bombings on and off at will. The same report determined while HRW did not find evidence that Arafat and the PA planned, ordered, or carried out suicide bombings or other attacks on Israeli civilians, there are important steps that Arafat and the PA could and should have taken to prevent or deter suicide bombings directed against civilians. After 2001 Palestinians also fired Qassam missiles at targets within Israel, mostly from the Gaza Strip. The number of Qassam attacks became more significant since 2003, and they caused a number of deaths and injuries as well as damage to property.
Israel’s measures taken to repress the Intifada included the destruction of Palestinian security facilities; an increasing use of targeted killing of suspected perpetrators of violence, including political leaders; the administrative detention of thousands of Palestinians, including minors, often for more than a year on the basis of secret evidence; and aerial bombardments. Following the “Terrible March” of 2002, when 133 Israelis were killed in suicide bombings, including 30 guests at the Park Hotel in the resort town of Netanyah during Passover dinner, Israel broadened its operations to include ground invasions of refugee camps and the military re-occupation of some territories from which it had previously withdrawn. The Israel Defense Forces (IDF) designated some areas of military action as “closed military zones”, barring access to the outside world and denying access to NGOs and to a UN fact-finding mission. During the operations, the IDF used Palestinians as human shields, in clear violation of international humanitarian law. The fact that there was only one soldier convicted for this practice – and then sentenced only to 28 days imprisonment – attests to the impunity enjoyed by Israeli soldiers. The practice was later banned by the Israeli High Court of Justice.
Israeli military actions led to enormous hardship for Palestinian civilians. Thousands of houses were razed, many more damaged and tens of thousands of fruit trees were uprooted; commercial and public facilities were destroyed. Palestinians were subjected to daily curfews and road closures, and movement between Palestinian towns and villages was further curtailed by an intricate system of checkpoints. These measures had a devastating effect on the Palestinian economy, bringing two thirds of the population below the poverty line. Far from complying with the rule that all feasible measures should be taken to minimize harm to civilians, Israel’s military policies suggested that the principle of distinction had been abandoned. Many Israeli actions seemed to violate the rule of proportionality and laws against wanton destruction and collective punishment.
The Palestinians sought to justify the Intifada as a legitimate struggle against an oppressive occupying power, based on their inherent right of self-determination. While the right of self-determination may involve a right of resistance to those who frustrate its realization, it does not follow that all means are thereby legitimate. The deliberate and widespread killing of civilians, either by suicide bombing or by the indiscriminate firing of Qassam rockets, was both a crime against humanity and a war crime. The use in hostilities of children under the age of 15, the use of ambulances to transfer weapons and combatants in violation of the prohibition on perfidy, and the defiling of the bodies of Israeli soldiers may all be considered crimes under the laws of war.
Some aspects of Israel’s response to the second Intifada remain particularly disputed, reflecting the unique complexity of the Israeli-Palestinian situation. This consists of a long-term occupation; a Palestinian Authority which is certainly not a state but is also not a non-governmental entity; the existence of Palestinian police as well as para-military forces; and the related blurring of the lines between occupation and self-government in the occupied territories. The eruption of the Intifada under these conditions created a situation that did not fit neatly into the boxes of international law.
Israel’s policy of targeted killing of suspected militants has been the focus of enormous controversy. Israel defends targeted killings as a lawful use of force against enemy fighters during an armed conflict. But critics say that many targeted killings take place outside the context of hostilities, and therefore violate restrictions on the deliberate taking of life. Other critics say that even if an armed conflict is taking place, the victims of many Israeli strikes were not taking a direct part in hostilities, and therefore were not legitimate targets. The meaning that should be given to the concept of “taking a direct part in hostilities” in the circumstances of contemporary conflict is the subject of fierce disagreement.
The wall or separation barrier that Israel is constructing to prevent attacks against Israeli territory and settlements from Palestinian areas of the West Bank has provoked even greater argument. The barrier extends repeatedly into areas occupied by Israel in 1967, and in many places cuts Palestinians off from other Palestinians or from their own land. The Israeli High Court of Justice ruled that the route of the barrier in specific places violated the principle of proportionality because the severe injury caused to the Palestinians was excessive compared to the purported security benefit. But the court rejected the argument that it was inherently unlawful for the barrier to extend beyond the Green-Line marking Israel’s 1967 borders, and upheld other portions of the barrier as “proportional”. However, the International Court of Justice, in an advisory opinion that Israel has said it will ignore, determined that the construction of the barrier in occupied territory was inherently illegal, as its route was designed to incorporate illegal settlements and effect the de facto annexation of the areas it enclosed. Notwithstanding Israel’s official response to the Advisory Opinion, its shadow effect is considered as having prompted the Israeli Supreme Court to look into the barrier issue more carefully than it had before. In a judgment rendered following the opinion of the International Court, the Israeli Supreme Court analyzed the Advisory Opinion in detail, and determined that the two courts share the same normative assumptions, and that the differences between them are merely the result of the lacking factual background presented to the International Court.
Realizing perhaps that the massive use of force by Israel has not crushed Palestinian resolve, and perhaps hoping ultimately to save what he could from the settlement enterprise in the West Bank, Israeli Prime Minister Sharon ordered an Israeli pullout from the Gaza Strip in the summer of 2005. Following Sharon’s stroke, his successor Ehud Olmert announced plans for a progressive disengagement from many parts of the West Bank – suggesting that the separation barrier might in time become an effective unilateral boundary. In the meantime, Israel’s continuing control over the Gaza Strip’s borders, coastline and airspace, as well as its economy and trade, telecommunications, population registry and infrastructure mean that the occupation – now forty years old – may not yet have truly ended.
In the summer of 2006, following a military attack by Hezbollah on an Israeli army post at the Israeli-Lebanese border, resulting in the killing and kidnapping of Israeli soldiers, and the shelling of Israel by Hezbollah at the same time, Israel attacked targets in Lebanon. The conflict escalated to what would become to be known in Israel as the Second Lebanese War, and ended only following Security Council Resolution 1701 which determined the establishment of a reinforced UNIFIL force which will be present in Southern Lebanon besides the Lebanese army. While Israel had, in jus ad bellum terms, the right to respond to the armed attack by Hezbollah, the question remains whether its response was proportional in the terms of the law on self-defense. Regarding jus in bello, the conflict was characterized by the deaths of civilians on both sides of the border. Hezbollah’s attacks, directed at civilian targets, clearly violated the rules of distinction. Israel’s actions have also been accused of failing to observe the rules of distinction and proportionality. At the same time Israel conducted extensive military actions in Gaza, following firing of Qassam missiles from Gaza and the hijacking of an Israeli soldier by Hamas. Hundreds of Palestinians died, and the humanitarian crisis in Gaza became worse than ever.
Following these developments, the Israeli government dismissed the unilateral disengagement plans as “not on its agenda”. At the time or writing, the end of occupation does not seem in sight.
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