By: Dr. Nader Saed
Translated into English by: Abdollah Karimzade
Martyrdom-seeking operations are among the measures and strategies adopted by the popular resistance movement in the occupied territories of Palestine against the continuation of the occupation with the purpose of returning the national sovereignty of Palestine over this land.
In the dominant literature of cyber space and global public opinion, these operations are generally interpreted differently and specifically their legal nature and status in the light of the order of the international law are in principle measured in accordance with the approaches and positions of the powers.
In the current paper, the different dimensions of the martyrdom-seeking operations in the light of the friendly human rights relating to hostile occupation have been explored; meanwhile its conception in the international procedure and the general principles of the contemporary law has been analyzed.
On this basis, martyrdom-seeking operations are a measure taken against the people, and vital targets of the occupying power and also are a guarantee to put in force the measures needed for returning national sovereignty over the occupied land and binding the occupier to get out of the occupied land.
Martyrdom-seeking operations, international law, Palestine, occupied land, occupying power.
1-PhD in international law from the University of Tehran and the head of the department for the academicians of the global assembly of Islamic peace.
The martyrdom-seeking operation is a framework for the objectification of the rights of the members of the popular resisting movements for attacking people and the military targets of the occupying enemy in which the strategic goals for resistance against the occupier are met with the purpose of returning the sovereignty to the occupied territory meanwhile using the right to kill and to get killed (1).
The martyrdom-seeking operation which is called as "suicidal operations” in the international literature tend to be accompanied by the self-sacrificing of the person doing the operations. This means that the person uses himself/herself as a weapon against enemies. These types of operations have been used in the international procedure in particular during the world wars and also in the performance of the liberating movements as well as the popular resisting groups.
Yet, this type of operations in the occupied territories of Palestine against the occupying regime has been used frequently such that using the word "martyrdom-seeking operations” is associated with those operations applied by the Palestinians against the occupying regime. One of the main reasons for the interconnection of the signified and signifier is leading the literature and the focus of the international media on it in order to create a challenge in the world public opinion about the credit of the measures taken by the Palestinian combatants against the zionist regime.
The main set of rules and norms in the international law about this type of operations which is a part of measures taken about international armed clashes is lies in the friendly human rights and the current paper makes an attempt to deal with this subject from this perspective.
Generally speaking, humanitarian international law does not ban the use of the combatants as a weapon against the people and the military targets of the enemy as well as sacrificing the lives in order to take the lives of the enemies. It just emphasizes on the disuse of the civilians as human shields, while it gives the members of the popular resisting movements as combatants the right to use military operations against occupiers(2).In other words, tacitly it confirms this measure in general by taking into account some rules. It is noteworthy that in the aftermath of the legal system development since 1965 and the approval of the resolution 2105 of the UN general assembly(3),the international law has given the popular resisting movements the right to take an armed measure for countering the colonial and occupying powers and racial discrimination(4) .On this basis, uprising of nations to get free from the hegemony of the aliens in any way including armed uprising is regarded a basic right for nations and the international law also supports it. Regarding the objectification of this uprising in the occupied territories, liberating movements are of international legal identity and are regarded in the same rank as the states(5) and the concept of occupation is basically used in the international armed clashes(6).In this regard, identification of the identity and the character of the resisting movements as international persons in the friendly human rights and also their armed clashes with the occupying power as an international clash complete the bases and rules provided with these movements against the occupiers. This is devoid from the principle of equality in the international humanitarian law towards the sides in hostility (7).
In this paper the martyrdom-seeking operations are analyzed based on the general principles and international procedures and meanwhile the theoretical bases and the expectations of the Palestinian nation in developing the legal rules on fighting against occupying enemy within the framework of the literature of international law are explored. It deserves to be mentioned that the current paper deals with the martyrdom-seeking operations in general (not in specific cases) and merely in the occupied territory or belligerent occupation and no doubt establishing the legal nature of any event requires description of events and exploration about them in details and finally imposition of some general criteria on these cases. On the other hand, martyrdom-seeking or suicidal operations are not limited to the occupied territories of Palestine, but they are applied in other environments as well especially during the 2nd world war. No doubt, the legal results of this type of operations are applicable in the same way in any environment (generality of the rules of law) and it is only the details of the event will be determining in this relation. Thus, analyzing the legal issues pertain this type of operations in general may yield a macro theory applicable to all players enjoying this right.
The Legal Criteria for the Legitimacy of the Martyrdom-seeking operations in the Contemporary Law.
In the philosophy of the international law the will of legislators and the necessity of the international existence constitute the basis for the legitimacy of the players in the international scene. So, the legitimacy of performances is often determined in the light of their correspondence with the norms and requirements included in them (8).The martyrdom-seeking operations are regarded as an action compatible with the international legal order due to their relation with a set of the existing general norms. It seems that in the international humanitarian human rights it is necessary to make a preliminary mention of the relations of the right to life, and the right to death in relation to the martyrdom-seeking operations. Because the destruction of targets and the death of people in the aftermath of these operations humanitarian human rights is the most important subject which is effective in this legal evaluation and which has attracted attentions of the public opinion.
1.The Juxtaposition of the right to life and the right to death
The humanitarian human rights is the intersection of the rights to life and death. On this basis, given the fact that killing the enemies and getting killed is the main component in the nature of the operations of the combatants(9),they have the right to kill and get killed as they have the right to life. On this basis, killing the combatants in the form of the war operations while observing the related norms not only does not entail punishment and responsibility, but is regarded as its integrated part. But for the civilians who are by nature unrelated to the battle, the right to life is dominant and this right is true as long as they don’t participate directly or indirectly in the armed operations (10).
In order to declare illegitimate the occupation of a territory and end it as soon as possible, the international law has tested different measures. On this basis, the population of the occupied territories (irrespective of their membership in the movements of armed resistance) not only don’t have any commitment to obey the occupier (11), but they can carry weapons and resist against the occupier (12) in order to return the lost sovereignty to the occupied territory (13).In principle, occupation is an armed and military move for dominating over another territory(14) and if the other methods prove ineffective, the reaction against it requires an armed and military act. Martyrdom-seeking operations are cases of armed acts against occupiers and in the international law using the human sources of the movements as a psychological and war weapons for undermining the power of the occupier is something accepted. The approach of the international law in supporting the liberating and resisting movements also strengthened gradually, meaning that it facilitated the conditions and requirements for formation of these movements as well as accessing to the international law for fighting against occupiers(15,16).
2.General humanitarian principles in armed and martyrdom-seeking measures
The general principles of humanitarian law of armed clashes about occupied territories are applicable by the end of war and all hostile sides including organized and unorganized armed forces and also members of popular armed resistance movements which are formed temporarily in the swift reaction to the occupation or permanently take the responsibility for getting the right to determination have the same responsibility for observing human principles when using the techniques of battle.
On this basis relative division of militants and civilians is possible .Such that as people who are not members in the armed forces or are not participating in the battle, the civilians are immune. The most important point regarding this rule is to detect the civilians and non-military targets and to define them. It is difficult and even impossible to apply the term "civilian” for the population of the Zionist regime because most of its population is belonging to armed forces and they have the right to use weapons when confronting with Palestinians.
Thus, such people are regarded as combatants though apparently not carrying weapons. As for the civilian targets also the situation of the occupied territories and the role played by different settlements of this regime in realization of the military and political goals of the occupation (including establishing and continuing the occupation and weakening the possibility of a normal life after getting the right to return) should be considered from this perspective, for it is different from the general definition of humanitarian human rights regarding "non-military target”. In fact, some of the elements and characteristics defined for the Zionist settlements in the occupied territories are not true.
The principle of preventing unnecessary pains is a principle which oversees the warfare means, meaning that weakening the war power of the enemy combatants is enough for realization of the goals of the opposite side and it is not allowed to create a pain beyond that(in particular application of over-ranged or blind weapons).
The principle of necessity and proportion is meant to create a balance in the battle field between casualties and consequences of the war operations and the intensity of fire power and also to respect impartiality of the territories of the two hostile states and the people residing in them. These general principles are true for war operations. Yet regarding the compatibility of measures or the application of tools, time and place, the targets and consequences with these principles. It is beyond a general analysis which needs a case study.
3.The Approach of States to Martyrdom-Seeking Operations
In cases of the silence of contractual rights, it is the international procedures that determine the legal situation of complicated issues of international existence via giving an orientation to the common international law.
Regarding martyrdom-seeking operations, there are different procedures among states and in principle the orientation and the type of the acts of the states in this respect stem from their profit-oriented and ideological attachments rather than the essential and natural relations of this approach. As an example, the western states disallow the application of this type of operations as they don’t attach any importance to the rights of the Palestinians, but most Islamic countries who are religiously committed to support the rights of the Palestinian nation legitimize these operations at least in cases that they are targeted against military and sensitive targets of the occupying regime. Like most of the Islamic countries, the Islamic Republic of Iran also deems the martyrdom-seeking operations legally and religiously legitimate.
It is noteworthy that during the world wars in particular the 2nd war suicidal operations have been frequently used. Using the suicidal operations by the Japan air force against the military targets and sensitive centers of the allies as a military strategy is a good example in this regard. The Japan air forced who did not deem it sufficient to stop the occupier power by their weaponry power, mixed their physical situation with arms tools by exploding their planes in the Seppuku operations.
B. Preventing Deceitful perfidy as a challenge of Martyrdom-Seeking operations
Perfidy means using the signs of international support (the emblem of the Red Cross or the civilians) in the war to strike more blows to the enemy. Since these measures create mutual distrust in the relations of the hostile sides towards the people who are really supported by the humanitarian human rights, the humanitarian human rights forbids it(17).
Applying this law (which was legislated in the aftermath of the behaviors of the hostile sides in the world) for the right of combatants to fight against enemies is controversial not only in general but also about the disordered armed groups who don’t have a public emblem (18).
In total, "there is no legal prohibition to attack at the soldiers of the enemy provided that the attacker also is a member of the combatants (ordered or disordered armed groups or the members of the resistance movements) and who does not hide his identity of being a combatant or at least carries weapons in public.”(19)
Carrying weapons in public by the members of the popular resistence groups is of the impossible expectations and situations in enforcing the rules of the humanitarian human rights. In total; this principle is one of the basic challenges for martyrdom-seeking operations, because martyrdom-seeking operations are those which should be carried out clandestinely without the combatant disclosing his identity before doing the operation. But in manifest or suicidal operations it is possible to meet the requirements for combatants such as their uniform and place of ammunition using the tactic of concealment which does not make it possible to disclose their identity. Yet most martyrdom-seeking operations require the use of guerilla war, concealing the identity of the combatant and using hidden surprising operations.
C. Martyrdom-Seeking Operation, Guaranteeing the Return of the Occupier to Respect to the International Law
The occupying force has committed many crimes in the occupied territories of Palestine some of which have been confirmed even by the international community and International Justice Department. Yet this regime continues to commit these crimes and offences and violates the basic principles of the general international law and unfortunately there is no effective guarantee for this situation so that the occupying force continues to turn the residing places of the Palestinians into Zionist settlements.
Now that there is no international guarantee to vindicate the rights of this nation the question is that don’t those who themselves and their upcoming generations are the main victims of this situation have the right to find a solution to this situation? In other words, not that the international law has confirmed that the rights of this nation have been violated is it logical to be indifferent to their rights and to entrust it to the history and the posteriors? The future whose six decades have passed without any fruits and there is no hope to any change in the close tomorrow. The states have accepted that the International Justice Department should be the final judge in determining the legitimacy of the measures taken by the UN (20) and this organ has confirmed that the rights of the Palestinians have been violated and in this situation should they still keep silent so that their rights are violated more than before? Can targeting the residences of the civilians in the Zionist settlements which are against international norms (article 46 of Hague convention 1907(21) and clause 6 of article 49 of the 4th convention 1949 Geneva (22)) be forbidden the goal of which is to perpetuate exile and deportation of the residents of these territories (as a crime against humanity)(23,24)?
The international law is not a series of strict rules which are not binding, but are binding norms to influence the international relations and the collective fate of the states as well as the benefits of humanity in order to find solutions to the existing problems. Of course historical experience has shown that the existing laws cannot meet all of the needs in recent developments because in most cases it was the developments which have formed the rights and norms. Thus, one of the expectations and hopes of the Palestinian community is that their performances lead to the complement of the international law though it may face different reactions in a specific situation or period.
According to professor Korma, a Judge in the international justice department, occupying force has committed many crimes on human rights and construction of the separation wall is just one of the examples for systematic violation of these rights. He confirms the right of the Palestinian nation to form an independent state and meanwhile underscores the ending of occupation (25).
Though some people and targets in the occupied territories of Palestine can be regarded as of civilian nature, being armed of the residents of the settlements, violation of the prime needs of the Palestinian residents of the Occupied territories, disappointment with international devices for taking the rights of the Palestinian nation, living in exile and turning of one or two generations of the Palestinians into immigrants and asylum-seekers in the neighboring countries(26),continuation of military and terrorist operations against Palestinian cities and villages(such as Gaza) and even the population in exile in different countries in particular in Lebanon and the like are examples of vital events relating the issue of Palestine and the rights of its nation which open a new window to the requirements of the international law system irrespective of abstract interpretations of some legal norms.
According to Professor Al-Khasawneh a Judge in the international justice department, "the right to determination of the residents of the occupied territories of Palestine has not expired (27) and it will still remain as long as the Palestinians have not achieved it”. (28)
For a nation which is under occupation for more than six decades, martyrdom-seeking operations are the most inevitable tool through which they can realize their struggle for returning independence and freedom from foreign domination. They are of the believe that since as civilians and the residents of these territories their rights are not supported or safeguarded and the occupier force also resort to terrifying measures to make them obedient (29), they sacrifice their most basic right in the Statutory human rights system for realization of a greater ideal (independence and getting free from occupation) and ignoring what is regarded as the rights of the civilians and the limitations of war operations.
As one of the techniques of disordered battle, suicidal operations have been used in the history of guerilla movements and resistance groups.
Of course some states also have used this type of operations extensively as an effective component in the battle fields. Many suicidal operations carried out by the Japan air force during the second world war is the best example in this respect; operations which left a sizeable effect in weakening the power of aggressive forces and on the spirits of their armed forces and meanwhile affected dramatically the military strategies relating this war.
The performance of the UN in the light of its general assembly in the process of decolonization has been positively evaluated (30), but the point which is ignored is that though this process was the demand of the nations under occupation and colonial dominance, in practice it has led to the creation of colonies in different areas without observing cultural and ethnic considerations; that is to say, when the imperialism was forced to surrender to the demands of nations, it made an attempt to destabilize these new states and to exploit the capacities of conflict and clashes among these nations. It was in this way that the colonial created a phenomenon named as Israel by managing this process even when ending the trusteeship system in Palestine(31) to establish differences, conflicts and challenges in the Middle East for centuries and to threaten international peace and security; a phenomenon whose existence was approved and confirmed by the UN also. It was in the light of the establishment of this state and its performances that the rights of the Palestinian nation and that of the world of Islam have been violated by Israel since the past and it ignores even the ratifications and decisions of the same organization.
Apart from case studies, the concept of being "civilian” of the people and targets in the occupied territories require a serious research.
View to the military strategy of the Zionist regime in the fact that some residents of the settlements are belonging to the military organization of this regime and given that these people are armed and equipped with military and security tools, it is impossible or difficult to call them as civilians as defined in the humanitarian human rights in particular stressing the concept of "no participation in hostilities” (32).
It is noteworthy that according to the principles of humanitarian human rights in order to apply the term "combatant”, the potential situation of the people and their organizational affiliation to ordered and disordered forces of a state and their membership in those forces should be taken into consideration (33).In cases which the civilians carry weapons and get involved in the hostility, as an illegitimate combatant, not only they should be legally persecuted ,but they can also be attacked(34).
As Allen Pelle posits, "when weapon speaks, the law is devoiced.”(35) This sentence shows the disadvantages and pestilences of the international legal and political system. Yet, when the voice of law does not reach the ears of the respective organs despite the hue and cries of the powers and the international community takes a selective approach toward the right of determination of the Palestinian nation (36),sacrifices lives will be the only choice for a nation which has spent decades of its life under oppression of occupiers and which does not envision any bright future for itself.
When nations are ready to sacrifice their lives to realize their ideal, i.e., to get free from the yoke of occupation, it is clear that they are disappointed with the international system and its performance. The demand of these nations is to live safely in their homeland as the other nations do. This is the natural right of them and of all nations under occupation and the rules of international law also stresses on it. But some opportunist states in today’s international community who are incapable of perceiving this reality are doubt about the illegitimacy of the measures taken by these occupiers and they prevent the actualization of these legal capacities. It is noteworthy that the right to martyrdom-seeking operations for securing the right to normal life and returning national sovereignty over homeland is of universal nature.