Defining Lawful and Unlawful Resistance
While the local Palestinian population was trying to understand the reality of the new occupation, Palestinian political and military organizations in the neighboring Arab countries launched a campaign of massive infiltration of the Occupied Territories by militant activists who would try to set up an infrastructure of local resistance to the new Israeli rule. The infiltrators and local cells carried out a number of successful operations, killing Israeli civilians in major Israeli cities as well as engaging with Israeli soldiers on the border.
International law draws a fundamental line, known as “the principle of distinction,” between combatants and civilians. The purpose of this principle is to spare civilians from the effects of war and to create boundaries for the participation of fighters in hostilities. Civilians are not authorized to take a direct part in hostilities and are protected against the effects of military operations and individual acts of hostility; legal attacks cannot be directed against civilians, only against those engaging in direct hostilities. Any person who participates directly in hostilities in armed conflict can be deemed an “enemy combatant” and therefore considered a legitimate target for attack. Combatants must be given prisoner of war (P.O.W.) status when captured by the enemy.
Omar Mahmud Kassem Case
In the case of Military Prosecutor v. Omar Mahmud Kassem (1969), a group of Palestinians associated with the Popular Front for the Liberation of Palestine (P.F.L.P.), a faction of the Palestine Liberation Organization (P.L.O.) were captured during a firefight after surreptitiously crossing the Jordanian border. They were carrying weapons and explosives intended for bombing Israeli targets.
The Kassem judgment was one of the first legal texts to contend with the legitimacy of Palestinian struggle against Israel. It set the terms by which thousands of Palestinians would be tried and defined the way the military law saw acts of resistance to the occupation.
Kassem testified before the court that he was a Jerusalemite who left the country after the war. In Jordan, he joined the P.F.L.P. and he was then sent to infiltrate occupied areas and help spark an armed uprising in the region. He also claimed that as a soldier who fought against soldiers, he should not be regarded as a felon but as a P.O.W., a term only applicable to those recognized as lawful combatants.
In a precedent-setting decision, the judge in the case ruled that because Kassem’s organization, the P.F.L.P., had planned and carried out attacks against civilian targets in other operations, Kassem was not eligible for lawful combatant status. The judge wrote, “Members of such an organization have no right to claim the status of ‘lawful combatant.’ International law was not written in order to protect terrorists and criminals.”
Kassem and his co-defendants received life sentences for armed infiltration, possession of firearms and membership in an illegal organization.
Arifa Ibrahim Case
The circle of people who were brought to trial for crimes against order and security later widened beyond militants and political organizers. In the case Military Prosecutor v. Arifa Ibrahim (1976), a widow and mother of five stood trial for giving food and water to a suspected combatant. For two weeks, Ibrahim brought food to four men who were hiding out in vineyards of her village.
Ibrahim’s defense attorney claimed that she should not be punished for feeding a person in need—even if he was an infiltrator wanted by authorities—and that her act could be considered a legal act of generosity. Justice Theodore Orr did not accept the defense, ruling that “human values” do not apply to suspected combatants or terrorists. Ibrahim spent a year and a half in prison.
Adnan Jaber Case
Adnan Jaber was a young resident of Hebron who left the country in the late 1970s to join the P.L.O. He trained in Lebanon and was recognized as a promising young officer and ordered to infiltrate the West Bank and reorganize the resistance in Hebron.
Jaber managed to infiltrate, but for a long period he and his cell had to remain hidden due to the increasing presence of the Israeli armed forces. In the spring of 1980, following the assassination of a P.L.O. leader in Cyprus, the cell received an order to carry out a retaliatory operation.
Jaber targeted the settlement in Hebron. On a Friday evening, he and three other militants ambushed a group of settlers (some armed) who were walking home after the evening prayer. Jaber’s group attacked the settlers with submachine guns and grenades, killing six and wounding 13. After escaping and hiding for a few months, the attackers were captured while crossing the river on their way back to Jordan. All members of Jaber’s cell confessed under interrogation and were put on trial for what became known as “the murder of the six,” and is formally known as Military Prosecutor v. Adnan Jaber et al.
The court did not acknowledge that the defendants were lawful combatants and refused to view their actions in the context of the Israeli-Palestinian conflict, and the military judge did not view the settlers (some of whom had been armed by the army) as members of the armed forces. The court issued a sentence of life imprisonment. At the time, there was public pressure to use the death penalty to prevent Jaber from being released in the future, but Israel does not practice the death penalty. (Jaber was released after five years.)
In late 1985, four years after the trial, Adnan Jaber and his men were freed in a deal in exchange for Israeli soldiers captured in Lebanon by a Palestinian militant organization. Today, Jaber is an official with the Palestinian National Authority.
» Asser Institute. "Combatant/Prisoner of War Status."
» International Committee of the Red Cross."Annex to the Convention."
» International Committee of the Red Cross."Occupation and International Humanitarian Law: Questions and Answers."
» Kretzmer, David. The Occupation of Justice. Albany: State University of New York Press, 2002.
» Levinson, Chaim. "IDF Expected to Seek Death Penalty for Killers of Fogel Family." Haaretz, May 20 2011.