The HAMAS Case

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REPORT ON HAMAS’ SOURCES OF LEGITIMACY¹

BY

DR TRISTAN DUNNING

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1. INSTRUCTIONS

1. I have been instructed by Riverway Law to provide a report on matters within my expertise in support of the application to the British Home Secretary to deproscribe Harakat al-Muqawamah al-Islamiyyah (‘Hamas’).

2. This expert report considers the history of Harakat al-Muqawamah al-Islamiyyah (Hamas) and its political legitimacy within the Occupied Palestinian Territory. The proscription of the organisation by the UK government stands in stark contrast to the movement, its genesis, self-conception, and activity in trying to resist the enduring occupation of the Palestinian people. This report details the multifaceted ways that Hamas has sought to bring about a political change in the material conditions of the Palestinian people – including suing for peace with Israel by recognising the 1967 borders – and how they have been consistently denied any political engagement that might bring about an effective and lasting peace.

2. QUALIFICATIONS

3. I give this Report in my personal capacity.

4. I have a PhD in Political Science awarded by University of Queensland, Brisbane, Australia in 2013. My thesis focused on critical approaches to terrorism, specifically by reference to Hamas. This included ethnographic material stemming from fieldwork in the Middle East during 2009-2010, including interviews with key Islamist political figures in the West Bank, for instance, the Speaker of Palestinian Legislative Count (PLC), the Secretary General of the PLC, the former Deputy Prime Minister, the former Minister of Economics, the former Minister of Planning, and former Minister of Women’s Affairs, for the brief Change and Reform-led government of 2006-7, as well as then Deputy Leader of the Hamas Political Bureau in Damascus, among others. This was updated and published as the peer reviewed book Hamas, Jihad and Popular Legitimacy: Reintepreting Resistance in Routledge’s Critical Terrorism Studies series in 2016. I am also the editor of the volume Palestine: Past and Present (2019).

5. I have worked as a lecturer in international relations, political science and Middle Eastern studies at the University of Queensland, Australian National University, and the University of the Sunshine Coast in Australia. I have also worked at institutions in the wider Middle East; i.e. I was an Associate Professor of Political Science and Public Administration at the American University of Afghanistan from 2021 -2023, a Lecturer in Political Science at the University of Duhok in the Kurdistan Region of Iraq in 2013-2014, and Academic English Lecturer at an-Najah National University, Nablus, in the occupied West Bank while conducting fieldwork for my PhD.

6. I was a Senior Researcher for the Middle East (Executive Level One) the in the Foreign Affairs, Defence and Security Section, Research Division, at the Australian Parliamentary Library, Parliament House, Canberra in 2018. Here, I provided impartial wide-ranging briefs about the Middle East upon request to Australian federal politicians. During this time, I published a department-vetted research paper about the war in Yemen under the auspices of Parliament House.

7. I have written and spoken extensively about armed non-state actors, hybrid organizations, and conflict in the Middle East generally, among other. This has included publications about Hamas, the Islamic State Group, and armed actors in Iraq and Kurdistan in the prestigious academic journals Critical Studies on Terrorism, Terrorism and Political Violence, and Small Wars and Insurgencies. In a similar vein, I have published dozens of short-form analyses for public consumption and given numerous interviews in the media and invited talks regarding Hamas and the Palestinian-Israeli conflict.

8. I was the lead author of a submission prepared by a number of other experts on Hamas and the Palestinian-Israeli conflict to the Parliamentary Joint Committee on Intelligence and Security for the Australian Federal Parliament in 2022. We argued against the proscription of Hamas in its entirety and outlined the potential wider impacts of such a designation. This was cited fifteen times in the Committee’s final recommendation. In a similar vein, I was a co-author for a submission to the UK Foreign Affairs Committee in November 2023 arguing against the proscription of Hamas. Subsequently, we were invited by Foreign, Commonwealth and Development Office to give a presentation about the future of Hamas in early 2024. This was attended by approximately 110 security-vetted servants including members of the Foreign Office, the Home Office, the Ministry of Defence, the military and various intelligence agencies.

HAMAS’ SOURCES OF LEGITIMACY

3. HAMAS, RESISTANCE, AND ITS SOURCES OF LEGITIMACY

9. Hamas is a localized, grassroots resistance movement focused on Palestinian rights to self-determination and resistance to Israeli occupation. Its legitimacy largely stems from the notion of resistance to foreign rule; however, for Hamas, the idea of resistance is multifaceted in its scope expanding well beyond armed resistance to encompass symbolic, political, social, and ideological resistance. Hamas alters its resistance strategies according to changes in the political opportunity structure, exigency, response to popular opinion and, to a lesser extent, international pressures.

10. Proscribing the entirety of Hamas as a terrorist organisation elides the multi-faceted nature of the movement and the important social and political roles it plays. Hamas is, in essence, a network of networks. Many of the organisations presumed to be part of Hamas are largely autonomous and informally linked rather than acting at the behest of the central leadership. In brief, Hamas is better understood as an idea underpinned by multivariant conceptions of resistance rather than a centralised organisation.

4. ARMED RESISTANCE

11. Founded in December 1987 during the First Intifada, Hamas emerged as a revolutionary movement articulating itself as an Islamic alternative to the PLO. The movement advocated for an Islamic state, though specifics of this vision have always remained vague and never implemented despite its almost two decades of control over the Gaza Strip.

12. Hamas initially operated as a street-level resistance movement, issuing communiqués and organizing demonstrations as a counterpoint to PLO-led initiatives. This led to low level violence such as throwing stones, Molotov cocktails, and finally knife attacks.

13. The first intifada led to the formation the operationally independent armed wing, the Izz al-Din al-Qassam Brigades (or Qassam Brigades) in 1991.

14. Historically, Hamas had made a clear distinction between the movement overall and the Qassam Brigades. This is hardly unique to Hamas and analogous with Sinn Fein, which had elected members in Westminster even during times of conflict, and the Provisional Irish Republican Army. Until recent years, this distinction had been upheld by the United Kingdom and Australia, among others. It is unclear what prompted these changes in the early 2020s.

15. The Qassam Brigades do not pose a terrorist threat to foreign states. They have never perpetrated attacks outside of Israel and the Occupied Palestinian Territories. Hamas as a whole has a policy of non-interference in the internal matters of foreign states. Indicatively, most of the world does not regard Hamas as a terrorist organisation.

16. While the Qassam Brigades have undoubtedly committed acts of terrorism and war crimes,

the Palestinian people have an internationally recognised right to self-determination and the right to resist foreign occupation.

17. The Qassam Brigades have participated in lengthy ceasefires, notably reflecting changes in the political opportunity structure allowing Palestinians to pursue their rights by other means and in response to popular opinion.

18. Indeed, the 1993 Oslo Accords and subsequent addendums alongside attendant widespread popular optimism for a negotiated solution that would culminate in establishment of an independent sovereign Palestine on the territories occupied in 1967, sidelined Hamas’ street-level activism.

5. THE OSLO ACCORDS, RESISTANCE AND LEGITIMACY

19. The Accords and subsequent addendums provided for limited Palestinian governance in the Occupied Palestinian Territories. The West Bank was divided into Areas A, B and C. This led to the establishment of the Palestinian Authority (PA) in 1994, dominated by the largest party of the Palestinian Liberation Organisation (PLO), Fatah, and the figure of Yasser Arafat in particular, which assumed notional autonomy over Area A, constituting a mere 17% of the West Bank, the ‘sovereignty’ of which has been routinely violated by occupation forces. The PA is responsible for administrative matters in Area B, but occupation forces retain security control, whereas Area C, comprising 60% of the West Bank is exclusively controlled by the Israeli occupation.

20. The arrangement created cantons separating Palestinian controlled areas from each other, the borders of each policed by Israeli security checkpoints and other obstacles restricting Palestinian movement. The closure of Israeli borders between the West Bank and the Gaza Strip during the first intifada also physically severed the ties between the two Palestinian territories.

21. Hamas, alongside other factions, such as the Popular Front for Liberation of Palestine, and prominent Palestinians, opposed the Oslo process on the grounds that there no provisions for a Palestinian state; it would merely facilitate the ongoing expansion of Israeli settlements, and serve to entrench the occupation. Prominent Palestinian academic Edward Said, for example, labelled the Accords a “Palestinian Versailles”.

22. Nonetheless, Hamas has repeatedly demonstrated pragmatism and offered Israel various iterations of a hudna or long term truce throughout its existence. According to Ahmed Yousef, an aide to then Prime Minister Ismail Haniyeh (assassinated by Israel during the current conflict): “A hudna extends beyond the Western concept of a cease-fire and obliges the parties to use the period to seek a permanent, nonviolent resolution to their differences.”²

23. The Oslo Accords and subsequent amendments also led to elections for the Palestinian Legislative Elections in 1996. While this occasioned vigorous internal debate and even the formation of a nascent political party to run its stead, Hamas boycotted the elections on the grounds that participation would implicitly validate the Oslo process. The movement also had concerns vis-à-vis overall transparency and fairness.

24. Indeed, for much of the Oslo process (1993-2000) the Palestinian Authority worked in close cooperation with occupation forces to systematically repress Hamas. Nonetheless, Hamas refused to let itself be drawn into internecine violence with the PA despite the arrests and torture of many of its cadres.

25. Instead, Hamas – or rather Hamas-sympathetic individuals – successfully participated in extra-parliamentary politics, for instance, professional associations and student unions, to maintain influence and gauge popular support.

26. Despite several bouts of retaliatory violence, for instance, following Baruch Goldstein’s massacre of 29 Palestinians in Hebron in 1994 and the assassination of Hamas leader Yahya Ayyash, the movement largely focused on its social agenda, promulgated via its loosely-affiliated charitable and da’wa (proselytising) endeavours.

27. Nevertheless, by 2000 the Qassam Brigades had been eviscerated by the combined repression of the PA and occupation forces.

28. The failure of the Oslo process and the outbreak of the Second Intifada changed all of this and catapulted armed resistance back to the forefront of the Palestinian political agenda.

29. Woefully outgunned, Palestinian factions resorted to suicide operations inflicting numerous casualties on Israeli forces and civilians alike. It is during this period that a number of international powers, including the UK, designated the Qassam Brigades (among other armed factions) as a terrorist organisation, but not the entirety of Hamas. The ensuing carnage left some 5500 Palestinians and 1000 Israelis dead.

6. POLITICS, RESISTANCE AND LEGITIMACY

30. While Hamas is often viewed as a rigid, religiously motivated organization, its strategies reveal a pragmatic socio-political movement, which employs resistance in all its forms and political participation to achieve its goals.

31. Hamas regards political participation as a complementary form of resistance. In brief, Hamas views politics and electoral engagement as form of jihad (struggle in name of God) in their own right, aimed at challenging the occupation, advancing its agenda, and engineering social change. In brief, for Hamas there is a dialectic between resistance and politics.

32. The movement views political participation as a means by which to safeguard the right to resistance in all its forms and prevent its criminalisation.

33. Internally, Hamas decision-making occurs through multiple levels of shura or consultation councils underpinned by the idea of collective decision making and consensus. The moment’s internal democratic ethos is in sharp contrast with the autocratic tendencies of Fatah and the PA.

34. Externally, Hamas aligns its advocacy of democracy with putative international norms. Democratic participation counters Western narratives regarding ostensible Islamic atavism and autocracy.

35. Hamas’s participation in elections reflects the evolution of the movement from its putative absolutist ideologies – notionally centred on its now defunct 1988 charter – to incorporate pragmatic strategies and political realities while maintaining its core resistance values.

36. This shift to political participation was facilitated by the death of Yasser Arafat in 2004 and the fizzling out of the Second Intifada (c2005).

37. These events resulted in a dramatic change in the political opportunity structure focused on the restructuring of the Palestinian political system and new elections at municipal, presidential and legislative levels.

38. Within the context of a battered and war weary society, this change in the political opportunity structure allowed Hamas to reconceptualise the idea of resistance to focus on institutional politics and capitalise on its elevated resistance credentials following the Second Intifada.

39. Arafat’s death also led to the fragmentation of Fatah.

40. Hamas had long signalled its willingness to engage in municipal elections, arguing that these fell outside of the purview of the Oslo framework; however, Arafat stymied the emergence of local manifestations of power over the course of his rule.

41. Following the Second Intifada, Hamas (and Israeli leaders) declared the Oslo Process dead, thereby allowing the movement to participate in legislative elections under the banner of Change and Reform.

42. Nonetheless, they did not field a presidential candidate in 2005 because a key component of the presidency is to negotiate with Israel which would have potentially compromised their rhetoric of resistance.

43. In both municipal and legislative elections, Change and Reform leveraged Hamas’ resistance credentials, and loosely aligned social networks and their reputation for integrity to attract disaffected voters.

44. Hamas-backed lists participated in municipal elections in 2004 and 2005 to test its grassroots support. The Reform lists demonstrated superior organization and discipline compared to the fragmentation of Fatah, which led to bitter internal disputes and the resultant splitting of the vote. Consequently, the Hamas-backed lists secured key victories in large urban areas in the West Bank and the Gaza Strip attracting the vote of a population frustrated by Fatah’s corruption and inefficiency.

45. Hamas justified participating in the 2006 elections participation by the failure of the Oslo process. Throughout its campaign, the Change and Reform list capitalized on public discontent with Fatah’s governance and the PA’s inability to maintain law and order.

46. The elections proceeded without serious incident with a 77 per cent voter turnout. They were deemed to compare “favorably to international standards” by a delegation of 84 foreign observers sent by the National Democratic Institute in partnership with the Carter Foundation. The observers included former US president Jimmy Carter, former Swedish Prime Minister Carl Bildt, former Albanian President Rexhep Meidani and former Spanish Foreign Minister Ana Palaci. The delegation concluded that the elections were conducted in a fair and free manner and should be considered to reflect the will of the people.³

47. While Change and Reform only secured a popular plurality with 44.5% of the vote at a proportional level, the list won 70% of district level seats due to its superior organisation and unity of purpose.

48. The overall results were a landslide and came as surprise to most observers and, reputedly, to Hamas itself, which now found itself in the awkward position of presenting itself and a resistance movement and the responsibilities of governance – a bind that has never truly been resolved.

49. There are a plethora of reasons for the success of Change and Reform. First was public discontent with the Fatah-run PA, which was plagued by corruption and inefficiency, thereby eroding Fatah’s legitimacy at large.

50. In contrast, the Islamists’ reputation for “clean hands”, incorruptibility and the effective provision of social services at a community level attracted swing voters, independents and, indeed, self-identified Fatah supporters.

51. Change and Reform fielded well-regarded district-level candidates known for their piety and commitment to their respective communities. Detailed pre-election surveys guided its the selection of candidates at a district level. Change and Reform also only fielded the number of candidates they thought they could win within each district to avoid splitting the vote. The movement also leveraged its extensive social networks to facilitate grassroots mobilization.

52. Conversely, Fatah initially fielded two lists before a last minute reconciliation but the damage was done and many disgruntled Fatah members ran as ‘independents’ fragmenting their share of the vote.

53. Change and Reform also focussed on strategic messaging and alliances. Its focus on “Change and Reform” specifically backgrounded overt Islamist rhetoric to avoid potentially alienating member of the broader electorate. It also built alliances with non-partisan candidates and factions – including Christians in places such as Bethlehem - thereby showcasing its flexibility, pragmatism and inclusivity. While its election manifesto preserved its right to armed resistance against the occupation, the focus of the manifesto was on social and economic reform.

54. Following its surprise election, Change and Reform reached out to other factions, including Fatah, to form unity government. Fatah rebuffed this offer, clearly wanting the newly elected government to fail.

55. The Change and Reform victory led to a variety of repercussions. First, it highlighted internal divisions within Fatah.

56. Second, it intensified Palestinian inter-factional power struggles with the outgoing Fatah-led legislature bequeathing the Fatah-led presidency with additional powers including control of the interior ministry and the security forces.

57. Meanwhile, Fatah-appointed leaders of the security forces and administration publicly refused to work with the incoming administration leading to security chaos. The new government therefore formed an adjunct police force, the Executive Force, to re-establish order in the Gaza Strip.

58. The International Quartet consisting of the US, EU, UN and Russia boycotted the incoming administration unless it recognised Israel’s right to exist and adhered to all of the agreements of the PLO and previous PA administrations (neither of which Hamas was a part of). This further exacerbated tensions and caused severe hardship in the blockaded Gaza Strip in particular.

59. Former UK Prime Minister and Special Envoy to the Middle East Tony Blair belatedly admitted that this was a mistake and a missed opportunity^45, a point echoed more recently by former Head of Middle East Policy for the UK Mission to the United Nations, Carne Ross.⁶

60. Moreover, the US was arming and training a force under Fatah-leader Mohammad Dahlan to undermine the incoming administration with the ultimate aim of overthrowing it. Ultimately, Hamas acted first in a ‘pre-emptive counter-coup’ driving Dahlan’s forces and the Presential Guard from the Gaza Strip in a mere six days. Tellingly, the vast majority of the pre-existing security forces in the Gaza Strip and Fatah armed factions did not participate in this conflict because they did not see it as their fight. As such, this was less a ‘coup’ disparaged in the international media than a legally elected government enforcing its writ.

61. The conflict between the two administrations has resulted in the political separation of the West Bank and Gaza Strip, with the former being run-by presidential fiat since 2005 and the latter by the Hamas-backed administration since its election in 2006. The conflict deepened Palestinian socio-political fragmentation.

62. Despite many attempts at reconciliation, the West Bank and the Gaza Strip remain divided between the two governments (if we can call either of them that at the present given the conflict in the Gaza Strip and the expanding violence in the West Bank).

63. The upshot is that successive Israeli administration have stipulated a Catch-22 situation insofar as they will neither work the Abbas-led PA vis-à-vis peace negotiations because it would be unrepresentative, nor will they work with any administration that Israel perceives to have Hamas-aligned members.

64. Nonetheless, Israel refused to work with an unaligned technocratic Palestinian government in 2014, before ensuring Hamas’ renewed popularity by pulverising the Gaza Strip in shortly thereafter.

65. Hamas attempts to change the status quo of the Palestinian-Israeli conflict through institutional political means was hampered by the Quartet-led boycott of the incoming administration in 2006. Nonetheless, the ensuing period between then and 7 October 2023, the long period of its relatively unchallenged administration, its ability to restrain other factions from attacking Israel, and the strength of its ongoing popular support, underscore the substantial legitimacy it enjoys among the Palestinian population despite facing substantial internal and external challenges.

7. CONCLUSION

66. The designation of the entirety of Hamas, rather than just the Qassam Brigades, has helped to curtail progress towards peace as it marginalised a key actor to the conflict, prevented any chance of meaningful dialogue with the de facto authorities on the ground, highlighted the hypocrisy of the West regarding democracy and human rights, and overall contributed to the pressure-cooker conditions that led to the explosion of violence on 7 October 2023.

67. The blanket design effectively disfranchises large sections of the Palestinian population, immiserates the lives of those who rely on the civil administration to survive, and impedes the ability of aid organisations to coordinate with local authorities to deliver much needed humanitarian relief.

68. Proscribing the entirety of Hamas as a terrorist organisation elides the multi-faceted nature of the movement and the important social and political roles. As the de facto rulers of the Gaza Strip (at the least until recently), the proscription of the movement in its entirety has provided Israel with near carte blanche support to target almost the entirety of the Gaza Strip (and numerous high ranking Israel politicians have openly said as much), facilitated the criminalization of the civil administration and other organisations in the enclave that need to deal with it (see the case of Israel’s criminalization of United Nations Relief Works Agency for Palestinian Refugees in the Near East or UNRWA), and jeopardises the work that these collectively do in trying to stem the ongoing humanitarian crises.

8. EXPERT OBLIGATIONS

69. I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

70. I understand that proceedings for contempt of court may be brought by anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

71. I confirm that I have not received any remuneration for preparing this report.

Dr Tristan Dunning (PhD)

Brisbane

Australia

16 December 2024