The question is often asked, "what are the differences between the first and the second Intifadas, and what accounts for such differences, in the rhetoric of the protagonists, their objectives and the means of combat employed?" One of the elements is surely the ethical and legal framework in which each one has taken place. In the past half century, this framework has changed dramatically worldwide, swiftly passing through successive stages. Nationalism has given way to internationalism, internationalism to globalism. The process has been an irregular one, but it has now matured, and the arguments of each of the actors, whether state or non-state entities, resound with universalist and globalizing imagery and ideas.1 Along with this process,2 the notions of rights and law have evolved and nobody can argue anymore in traditional terms, focusing on the nation-state and going no further. Some analysts do not like this, such as those who condemned the Kosovo campaign on the grounds that it constituted interference in the internal and sovereign affairs of a state, which is a member of the UN to boot. But nobody really takes these tired perspectives seriously anymore. It is understood that higher or broader perspectives, in terms both of geography (the transcendence of national borders) and of values, must preside over national and collective decisions. As for individual consciences, they have always been beyond the ethical purview of governments.
This does not mean that people agree any more than they ever did. You can find arguments on all sides of a given issue. The endless dueling over Iraq demonstrates this perfectly. Where the Israeli-Palestinian issue is concerned, it is no different. The questions of "self-determination" and "national survival" still abound in the discourse of the parties, but they are no longer taken in isolation from universalizing ethical and legal justifications. The German philosopher Immanuel Kant, with his categorical imperative, is back in force.

Palestinians Base Struggle on Natural Law

This sets the general framework. In more specific terms, the history of the Israeli-Palestinian struggle has gone through historical phases that have defined its quality, its intensity, and even the types of weapons used by each side. From June 1967 to December 1987, the occupation placed Palestinians squarely in a situation where their struggle had to be based on natural law, and therefore, natural rights. The laws of nature and the rights that derive thereof have, since the French philosopher Jean Jaques Rousseau, been construed as the basis for political action until such a time when, through a social contract, a given human grouping has set these laws aside, by delegating decisions to a legitimate representative embodying the general will. Palestinians were in a state of nature because no contract bound them to any authority that actually exercised control over them. The Palestine Liberation Organization, to which they had felt allegiance for about the same amount of time as the occupation had lasted, bound them spiritually but not physically. The famous municipal elections of 1976 changed nothing, even though the "PLO" candidates swept all before them. This is because they were, indeed, municipal elections. At any rate, the occupation swiftly disposed of them, deposing, maiming and deporting almost all of them within a very few years. It was still, for Palestinians, a state of nature.

Conviction of the Right to Resist

It is through the rising consciousness of the natural laws and, therefore, natural rights that permeated Palestinian society that its members came to have a strong conviction of their right to resist, although that right was not codified. True, it was explicitly recognized in UN General Assembly resolutions, and in the two additional protocols to the Fourth Geneva Convention (not ratified by Israel or the US), but the leading Western legal minds concentrated more on the duties of the occupier than the rights of the occupied. Resistance was not seen as legitimate and armed resistance of whatever type was always deciphered as "terrorism".
This immersion of the Palestinians in the consciousness of their natural rights was not limited to the political elite (notably the PLO leadership). On the contrary, it became operative through the feelings, actions and voices of the Palestinian masses, marginalized inhabitants of the refugee camps, the villages and the urban neighborhoods. This is why the leadership did not really recognize the phenomenon, and certainly did not understand it, despite its own rhetoric. The Israelis did not recognize it, either. The first Intifada took both the PLO and the Israelis by complete surprise. The Tunis leadership had to scramble to reassert some semblance of control over the internal United National Leadership of the Uprising (UNLU), and even after it had nominally done so, effective decisions on the ground continued to be taken locally. As for the Israeli military and civilian leadership, they didn't have a clue. While the ground had been trembling for a year in preparation for the explosion to come, they were busy seeking foreign agitators to arrest, since they could not grasp the fact that the ground was indigenously and locally being shaken in unconscious readiness for the coming uprising.
When it came, it was in response to the perceived imperatives of natural law and the natural rights that flow from it. It only seems extraordinary that it was in the lowest sectors of society, the truly oppressed, beginning in Jabalia and the rest of the Gaza Strip, that that sophisticated ethical-juridical judgment was made and action taken to live in keeping with that law and those rights. It is, in fact, not extraordinary, because they suffered most from their unprotected exposure to a state of nature which, unlike the utopian one outlined by Rousseau, characterized by anarchy, had a (foreign) sovereign power. The type of violence employed, to a great extent symbolic (stones or Molotov cocktails against armored vehicles and troops), corresponded perfectly to the type of transformation being effected: the progressive move from natural law to positive law. In the words of Jürgen Habermas: "Human rights and the principle of popular sovereignty still constitute the sole ideas that can justify modern law. These two ideas represent the precipitate left behind, so to speak, once the normative substance of an ethos embedded in religious and metaphysical traditions has been forced through the filter of post-traditional justification."3
The activists of the Intifada imposed on the PLO (which, because of its non-territorial nature, did not have the same immediate relationship to the "learned intuition" of the Palestinian masses) the Algiers declaration of independence of November 15, 1988, which incarnated the teleology of a year of struggle. The Madrid conference gave international sanction to the move from natural to positive law, by launching negotiations among the parties. The election of Yitzhak Rabin, then the Oslo accords and their implementation beginning in 1994, showed that Israel also recognized the importance and legitimacy of the shift. The uprising ended as Palestinians began to move within the sphere of positive, not natural, law.4

The Shift from Natural to Positive Law

The important thing about the agreements reached between the Palestinians and Israelis was, on the one hand, the fact that they were transitory ("interim") in nature and that institutionalized means of self-defense had been granted to the Palestinians in the form of what was agreed would be a "strong" police force, the term by which the conglomeration of Palestinian security forces were designated. This "self-defense" was intended to be exclusively top-down and not the reverse: the PA to defend itself and, especially, Israel, against possible Palestinian dissidents, rather than defending the territory against possible incursions. This may have made pragmatic sense, but it was problematic and in fact, unprecedented, on the conceptual level. At any rate, the principle of the move towards sovereignty, and therefore, the fact of penetration into the realm of positive law, was now enshrined in internationally approved documents signed between the parties. This meant that the five years from 1994 to 1999 were by definition to lead to something else and, based on the types of social formation acknowledged in the modern and contemporary era, that something else had to be in the nature of an independent state. The latter could of course opt thereafter for some form of confederal arrangement with other countries such as Jordan, Israel, or both. Five years seemed like a long enough time from the perspective of 1993-94. But when Rabin stated that no dates were "holy," the period started to seem very short, the social contract established between the parties came under threat and the nature of the arrangement was compromised. Renewed violence was now conceivable once again.
The other ominous event calling into question the likelihood of success within the chosen framework was the Hebron massacre of February 1994.5 When the response of the Israeli government to this event was, in the immediate aftermath, to kill a number of Palestinian demonstrators, particularly in the vicinity of the Hebron hospital, questions arose. And when the extremist settlers, who proceeded to lionize Baruch Goldstein (the 38 year old Brooklyn, NY, born physician from Kiryat Arba' who mowed down 29 Muslims at the Ibrahimi mosque in Hebron as they knelt down in prayer) were not made to leave the center of Hebron, as Rabin had verbally promised that they would, it became apparent that the consolidation of sovereignty was a very unlikely proposition, and that the Palestinian Authority was not going to achieve it, either in terms of scope or of time. The essential ingredient lacking now, in the eyes of the vast majority of the Palestinian people,6 was the translation of positive law (the existence of an internationally recognized Palestinian entity embarked on a dialectic of statehood within half a decade) into its political prerequisites, and most notably, the associated principle of the exercise of the right to self-defense.7
Thereafter, a renewal of the struggle, from having become possible, had become likely. It became (of course, we have the benefit of hindsight) virtually certain, for two interconnected reasons. One was the ever-declining popular confidence in the Palestinian Authority, based on its incompetence, corruption and self-aggrandizement, as it proceeded to concentrate political and economic benefits in the same hands, while excluding large numbers of the population (some of the middle classes, virtually all of the lower classes) from the benefits of the arrangement.8 The other was the overall approach to the Palestinian question on the part of the Israeli government during the Oslo years, consisting of policies designed to stifle the rapid and successful evolution to Palestinian statehood.9 The arrangement between the two formal actors - the Israeli government and the PA - continued to function. But it excluded, and was increasingly perceived to exclude, Palestinian society, something that lavish programs of people-to-people cooperation and the like served (again, consciously or unconsciously) to cover up.

Fighting under the Aegis of Positive Law

The resort to violence in September 2000 can now be understood in its conceptual framework, that of positive law. The reasoning of the people of the second Intifada was based on this proposition, radically different from that which presided over the 1987-1993 uprising. The response of the Israeli government and army likewise fits in with this analysis. Israel declared itself the victim of a war being waged against it (indeed, for most of the top brass and for the government elected in early 2001, it was described as a war for national survival). On that basis, Israel proclaimed its jus ad bellum (right to make war), and implemented policies based on bellum justum, just war.10 The weaponry used on both sides illustrated this shift in the symbolic nature of the battlefield, from natural law to positive law. In the former, the weaponry was limited, as were actions and reactions. Although there were victims, in general, the struggle was kept under control. After all, from the Palestinian point of view, the essential focus was on the political barrier that had to be leapt over, to recognition by the adversary and the international system, that is to say, to the domain of positive law. In the second Intifada, no such limitations, no such inhibitions, were held to be in order. Both sides felt they were fighting under the aegis of positive law.11 To drive the point home, Israel felt morally obligated to use its most advanced weaponry, as indicated by the regular resort to bombing and strafing by F-16s. In strictly military terms, it made no sense, of course, and its purpose was therefore symbolic, although the damage was very real. On the Palestinian side, this new framework was held to justify and even dictate the use of all of the military means at hand, including, since their arsenal was immeasurably weaker, their terrible ultimate weapon of suicide bombings. In this case, too, military and political goals were not the prime mover (indeed, September 11, 2001, showed how disastrously counterproductive the use of that weapon was).
The "war" being fought is without a doubt an asymmetrical one, in which the Palestinian side has no perspective of military victory. But it is clear the Israeli side has none either, since it is too late for it symbolically to push its Palestinian enemies back to an era that has ended, much as it would like to (by linking them to a purely non-state entity, al-Qaeda). As one travels over the hills and dales of the West Bank, and observes the collective behavior of the population of the Gaza Strip, there is no escaping the fact that, despite the enormous hardships they are enduring and the economic misery threatening most of them, the people have serenely integrated the shift in their ethical-legal paradigm, from the domain of natural law to that of positive law.


1 Cf. Michael Hardt and Antonio Negri, Empire. Cambridge, Massachusetts: Harvard University Press, 2000, pp. 3-21.
2 For the economic component of this process, see Joseph E. Stiglitz, Globalization and its Discontents. New York: W.W. Norton & Co., 2002, Chapter One.
3 Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy. Cambridge, Massachusetts: Massachusetts Institute of Technology, 2001, p. 85.
4 See Roger Heacock, "Vers une nouvelle épistémologie de l'histoire palestinienne", in Confluences - Mediterranée 43 (Fall 2002), pp. 13-22.
5 For the significance of the Hebron massacre, cf. Roger Heacock, "Le système international et la création de l'Etat", in Les Annales de l'autre Islam, Paris: Institut National de Langues et Civilisations Orientales (INALCO), 2001, p. 25.
6 Habermas is one of many who don't grasp the fact that abstract concepts and their concrete consequences are well understood, and subject to debate, by the people. He reserves them for an elite and, since the eighteenth century, the bourgeoisie, while contemptuously dismissing the "plebeians." Cf. Jürgen Habermas, the Structural Transformation of the Public Sphere: An Inquiry into the Category of Bourgeois Society. Cambridge, Massachusetts: MIT Press, 1991, p. XVIII and passim. This underestimation of the people is a general one, clearly shared in the Israeli-Palestinian context by the decision-makers and -shapers on all sides. It lies at the root of many of the fatal flaws in the agreements reached, from Oslo to Camp David 2000.
7 See Roger Heacock, "Arafat, les Palestiniens et l'Occident: un malentendu triangulaire", in Les Cahiers de l'Orient No. 67, Fall 2002, pp. 13-22. It is in the wake of the Hebron massacre and the Israeli inaction that followed that, for the first time in the history of the Palestinian national struggle, people and movements resorted to the terrible weapon of last resort, suicide bombings.
8 Hanan Ashrawi's The Other Side of Peace points to forerunners of this development as early as 1995. See also, inter alia, Roger Heacock, "Al-Mahalliyun wal 'Aidun: Locals and Returnees in the Palestinian National Movement", in The Becoming of Returnee States: Palestine, Armenia, Bosnia. Birzeit: Graduate Institute of International Studies, 1999, pp. 27-42; The World Bank and the Government of Japan, Aid Effectiveness in the West Bank and Gaza. Washington, DC: The World Bank, 2000 Arab Thought Forum, General Report 3: Democratic Formation in Palestine, Jerusalem, May 2001.
9 The policies of Rabin, Peres and Netanyahu are now being placed under critical scrutiny in this regard, although considerably more documentation is required. Cf. Martin Beck, Friedensprozess im Nahen Osten: Rationalit?t, Kooperation und politische Rente im Vorderen Orient. Wiesbaden: Westdeutscher Verlag, 2002.
10 Cf. Martin Beck, "Rationalismus, Ethik und Krieg: Zur Moral und Logik der israelischen 'Operation Schutzschild' im Frühjahr 2002", in ?sterreichische Zeitschrift für Politikwissenschaft, 31(4) 2002, pp. 451-468.
11 Hobbes's apocalyptic vision comes to mind, where he notes that nations live together "in the condition of a perpetual war, and upon the confines of battle, with their frontiers armed, and canons planted against their neighbours round about." For this profound pessimist, whose view is echoed by many in the present context, the stronger will devour the weaker until that last war breaks out, "which provideth for every man, by Victory, or Death." From Thomas Hobbes, Leviathan. Quoted in Hannah Arendt, The Origins of Totalitarianism, New York, Harcourt Brace & Co., 1979 (1948), p. 146.