China and the Legalities of Armed Struggle in Israel-Palestine--The Questions Global Legality Cannot Answer: Who is liberating What From Whom?

 

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On February 22, 2024, Legal Advisor and Director-General of the Department of Treaty and Law of the Foreign Ministry Ma Xinmin, on behalf of China, made a statement during the oral proceeding before the International Court of Justice (ICJ) relating to the request for an advisory opinion on the issue of occupied Palestinian territory. Based on China's policy position on the Palestinian question, he elaborated on China's views and propositions on legal issues such as the Court's advisory jurisdiction, the right of nations to self-determination, the law on the use of force, and international humanitarian law.

This marked the second time that China participated in an oral proceeding before the ICJ relating to the request for an advisory opinion, following its participation in the oral proceeding before the ICJ relating to the request for an advisory opinion on the issue of the independence of Kosovo in 2009. (here)

 Among the points made were references to key international documents about the legalities of peoples and national struggles for liberation.

"The UNGA resolution 3070 of 1973, I quote ‘reaffirms the legitimacy of the peoples' struggle for liberation from colonial and foreign domination and alien subjugation by all available means, including armed struggle’. This recognition is also reflected in international conventions. For example, the Arab Convention For The Suppression Of Terrorism of 1998, affirms, I quote: ‘the right of peoples to combat foreign occupation and aggression by whatever means, including armed struggle, in order to liberate their territories and secure their right to self-determination and independence’. Armed struggle, in this context, is distinguished from acts of terrorism. It is granted in international law, this distinction is acknowledged by several international conventions. For example, article 3 of the OAU Convention on the Prevention and Combating of Terrorism of 1999 provides that, I quote: ‘the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts’.” - UNGA resolution 3070 of 1973: https://www.refworld.org/legal/resolution/unga/1973/en/9606 - Arab Convention For The Suppression Of Terrorism of 1998: https://www.unodc.org/images/tldb-f/conv_arab_terrorism.en.pdf - OAU Convention on the Prevention and Combating of Terrorism of 1999: https://treaties.un.org/doc/db/terrorism/oau-english.pdf

 All of this is true. Since 1948 it has been commonly assumed, without much thought, that its principles applied to the people occupying the lands that after the collapse of the Ottoman Empire constituted part of the British Mandate in Palestine. The commonly accepted narrative is one of displacement of the people then resident there by a strategic campaign of migration that effectively displaced one people with another.  The reaction--could then be characterized as national liberation invoking the right to resort to armed struggle to resist foreign occupation.  That narrative resist on a critical assumption--that the status quo in 1918 defined the legitimacy of whoever it was that occupied the lands that thereafter became contested. It is possible, however, to flip the narrative--if one drops the assumption that legitimacy is based on the status quo at the end of the Ottoman Empire.  If that premise disappears (assuming the relevance of another principle--that claims to territory are never time barred), then it is also possible for the Jews to make an identical claim that is now being made by the people who occupied the lands in 1918--that the Jews were forcibly displaced by waves of migrants and that they have engaged in national liberation struggles through armed conflict to reclaim ancestral lands that were taken away by reason of conquest, migration, and theological principles that required the displacement of Jews from their homeland by others to whom the land was given or thereafter taken. Neither is implausible; either works if one embraces a specific set of baseline assumptions necessary for the construction of compelling narrative to which the legalities of the rules among peoples may be applied. 

 

The object ere is not to make the argument in favor of one side or the other. The claim is that in this context, resort to law provides very little guidance and even less support for one position or the other.  The issue remains one of narrative, and narrative is based on the embrace on core premises that make the claims of one or the other side effectively incomprehensible. China, in its efforts to insert itself where it may not belong, and to open pathways to legalities for national struggle that may come back to bite them much closer to home--have advanced a legal position that masks a political position that is possible only by embracing a quite specific set of assumptions about the status quo that then sets the base line for analysis.  As I suggested before, those decisions are essentially ideological but politically driven, perhaps necessarily so (Choosing Sides, Socialist Internationalism, and the Ideological Signification of China's Jewish Problem in the International Arena: "Wang Yi Holds Talks with the Delegation of Arab-Islamic Foreign Ministers").  It does little to clarify either the positions of the parties, the interpretation or application of law or its relevance to an issue that is ultimately going to be decided on the basis of virtually anything but law (though law will be used to paper over the realization of the desires of those with the power to impose their objects. It is a pity, to be sure; but ideologically driven imaginaries rarely produce solidarity building results--especially where ideological rifts are as unbridgeable as those in this case. The way one understands the world, the historical baselines one chooses, makes all the difference in the world in approaching both law and its interpretation. And certainly, as the Chinese well understand, cultures and peoples with 5,000 year histories make for substantial complications in both.