Law and Disorder in the Middle East
by Francis A. Boyle
Media Monitors Network, 1 April 2002
Law and Disorder in the Middle East
by Francis A. Boyle
(The author served as Legal Advisor: to the Palestine Liberation Organization on Creation of the State of Palestine (1987-1989), to the Palestinian Delegation to the Middle East Peace Negotiations (1991-1993) and sometime to the Provisional Government of the State of Palestine. The viewpoints expressed here are his own.)
The Participants
The Palestinian delegation entered the negotiations in good faith in
order to negotiate an interim peace agreement with Israel that would create
a Palestinian interim self-government for a transitional five-year period.
Immediately following the ceremonial opening at
Madrid on 30 October 1991, I was instructed to draft several position papers
on numerous issues that were expected to come up during the first round
of negotiations scheduled to begin a month later in Washington, D.C. But
when we got to our headquarters at the Grand Hotel in Washington, nothing
happened. At the U.S. State Department headquarters, which served as the
venue for all tracks of the Middle East peace negotiations, the Israeli
team offered no reasonable good-faith proposals for dealing with the Palestinians.
At that time the Israeli government was headed by
the Likud party under Prime Minister Yitzhak Shamir. Later on, Shamir admitted
that his strategy at the peace negotiations was to drag them out for the
next decade. Having been personally subjected to this process, I can assure
you that Prime Minister Shamir accomplished his objective for as long as
he was in power.
Most distressing of all, however, was that the United
States State Department went along with Shamir's strategy. It soon became
obvious that U.S. officials had no intention whatsoever to pressure Israel
to negotiate in good faith. To the contrary, they usually sided with the
Israeli delegation against the Palestinian delegation in support of Shamir's
stall-strategy. Furthermore --- having done some work at the request of
the Syrian delegation to the peace negotiations --- I can certify that
the same stall-strategy was operative during the first round of the Israeli-Syrian
negotiations in Washington.
When the Likud party lost the elections in June
of 1992, the Labor party came to power under Prime Minister Yitzhak Rabin.
One of the first changes Rabin made in the negotiations was to fire the
Israeli-Syrian team and bring in new and dynamic leadership under Professor
Itimar Rabinowitz, generally considered to be Israel's top expert on Syria.
With the new Syrian team in place, substantial progress was made during
the course of the Israeli-Syrian track to such an extent that, if Labor
had won the next round of Israeli elections, there would have been an Israeli-Syrian
peace agreement along the lines of the Israeli-Egyptian peace treaty. This
still could happen now if Israel ever becomes willing to implement U. N.
Security Council Resolution 242 (1967), which Israel is obligated to do
in any event.
By comparison, Prime Minister Rabin kept the Likud
team for negotiating with the Palestinian delegation. This was a most inauspicious
sign. Soon thereafter, in the late summer of 1992, the Israeli team tendered
a proposal to the Palestinian delegation for an interim peace agreement
that included a draft Palestinian interim self-government.
Israel's Bantustan Proposal
Because of its importance, the head of the Palestinian delegation, Dr.
Abdel Shafi, asked me to fly to Washington to analyze the Israeli proposal
in situ for the Palestinian delegation. Part of my responsibilities was
to review all preceding peace proposals put forward by Israel with respect
to the Palestinians, going back to the original Camp David Accords, including
the "Linowitz negotiations" that took place thereafter under the Carter
Administration.
Upon my arrival at the Ritz-Carlton Hotel in Pentagon
City, where the Palestinian delegation was headquartered, I was ushered
into a suite where the delegation leaders had assembled. There I was instructed
by one of its accredited negotiators to tell them what was the closest
historical analogue to what they were being offered.
I returned to my hotel room and spent an entire
day analyzing the Israeli proposal. When I finished, I returned to the
same suite and reported to the delegation: "A bantustan. They are offering
you a bantustan. As you know, the Israelis have very close relations with
the Afrikaner Apartheid regime in South Africa. It appears that they have
studied the bantustan system quite closely. So it is a bantustan that they
are offering you."
I proceeded to go through the entire Israeli proposal
in detail to substantiate my conclusion. I pointed out that this proposal
basically carried out Prime Minister Menachim Begin's disingenuous misinterpretation
of the Camp David Accords --- rejected by U.S. President Jimmy Carter ---
that all they called for was autonomy for the Palestinian people and not
for the Palestinian land as well.
Worse yet, Israel's proposed Palestinian interim
self-government would be legally set up to function as the civilian arm
of the Israeli military occupation forces!
Not surprisingly, after consultations among themselves,
and under the chairmanship of Dr. Abdel Shafi, the members of the Palestinian
delegation rejected Israel's bantustan proposal.
The Palestinian Anti-Bantustan Proposal
Shortly thereafter, Dr. Abdel Shafi requested that I return to Washington
to consult with the entire Palestinian delegation for a second time. I
had a series of sequential meetings with the different members of the delegation
in order to understand their basic concerns about negotiating an interim
peace agreement with Israel. I was then invited into Dr. Abdel Shafi's
private suite. It was just the two of us.
Dr. Abdel Shafi quite solemnly instructed me: "Professor
Boyle, we have decided to ask you to draft this interim peace agreement
for us. Do whatever you want! But do not sell out our right to our state!"
The emphasis was that of Dr. Abdel Shafi.
"Do not worry," I assured him. "As you know, I was
the one who first called for the creation of the Palestinian state back
at United Nations Headquarters in June of 1987, and then served as the
legal adviser to the P.L.O. on its creation. I will do nothing to harm
it!"
I then went back to my hotel room to work on the
Palestinian approach to negotiating an interim peace agreement with Israel
that was designed to get the Palestinians eventually from where they were
then to a free, viable, democratic, independent nation-state on the West
Bank and Gaza Strip with their capital in Jerusalem, and to do this by
the required intermediate means of establishing a genuine Palestinian interim
self-government, which was not a bantustan. I spent the entire day sketching
out what I shall call here my "anti-bantustan" proposal for the Palestinian
delegation to consider.
I met with Dr. Abdel Shafi to brief him on it. Then,
at his instruction, the entire Palestinian delegation assembled to hear
me. During the course of this briefing, an extremely high-level and powerful
P.L.O. official began to yell at me at the top of his lungs: "Professor
Boyle, what good has the Fourth Geneva Convention ever done for my people!"
I replied: "Without the Fourth Geneva Convention the Israelis would have
stolen all your land and expelled most of your people years ago." From
my other sources I already knew that the P.L.O. had been putting enormous
pressure upon Dr. Abdel Shafi and the rest of the Palestinian delegation
to accept Israel's bantustan proposal right then and there in Washington.
This Dr. Abdel Shafi adamantly refused to do!
After this meeting, I commented to a very prominent
and now powerful Palestinian lawyer from Gaza, who had heard my briefing:
"My instructions from Dr. Abdel Shafi were to figure out how to square
the circle. I believe I have accomplished this objective." He replied laconically:
"Yes, you have."
I next met with Dr. Abdel Shafi to report to him
about the vociferous opposition by the top P.L.O. official to my anti-bantustan
proposal. He instructed me to write up my proposal as a Memorandum for
consideration and formal approval by the Palestinian delegation in Washington
as well as by the P.L.O. leadership in Tunis. Having rejected the Israeli
bantustan proposal, Dr. Abdel Shafi had to come up with an anti-bantustan
proposal both to negotiate in good faith with the Israelis, and to convince
the P.L.O. leadership in Tunis that a viable interim peace agreement did
exist that would not sell out the right of the Palestinian people to an
independent nation-state of their own.
My Memorandum, entitled "The Interim Agreement and
International Law," was completed on 1 December 1992. I sent it off by
couriers to Dr. Abdel Shafi and the Palestinian delegation in Washington,
and to the political leaders of the Palestinian people in Tunis and elsewhere
in their diaspora.
The Memorandum was approved by both the Palestinian
delegation in Washington and by the political leadership in Tunis. The
Memorandum has been published in Vol. 22 of "Arab Studies Quarterly," Number
3, pp. 1-45, Summer 2000. Readers should be aware that the Israeli bantustan
model I critiqued therein would later become the Oslo Agreement of 13 September
1993, as I explain below. [An excerpt from this Memorandum is reprinted
on page 5.]
Shortly after submitting my Memorandum to Tunis,
I received a fax from an extremely powerful and prominent P.L.O. lawyer
living in the Palestinian diaspora, who personally thanked me for "showing
the way forward to our people." After what we had been through together
in the past, my friend's commendation meant a great deal to me. But five
years later he would quit his high-level positions in both the P.L.O. and
the provisional government of the state of Palestine because of his disgust
over the subsequent course of the so-called Oslo Process.
Norway
While all this was going on, and unbeknownst to Dr. Abdel Shafi and
myself, the Israeli government opened up a secret channel of communications
in Norway with P.L.O. emissaries who reported personally and in private
to President Yasir Arafat. Eventually, during the course of these negotiations,
the Israeli team re-tendered its original bantustan proposal that had already
been rejected by the Palestinian delegation in Washington. It was this
proposal that became known as the Oslo Agreement, and which was signed
on the White House Lawn on 13 September 1993.
Dr. Abdel Shafi and I knew full well that we were
engaged in a most desperate struggle against the Israelis --- working hand-in-hand
with the Americans --- to prevent the Palestinian leadership in Tunis from
accepting Israel's bantustan proposal. Of course we lost.
In the summer of 1993, the wire services reported
that a secret agreement between Israel and P.L.O. emissaries had been reached
in Norway. Soon thereafter, Dr. Abdel Shafi phoned me from Washington and
asked if I could analyze the Norwegian document for him immediately. He
faxed it to my office.
After a detailed study, I called him back with my
report: "This is the exact same document we have already rejected in Washington!"
Dr. Abdel Shafi responded in his customarily low-key
manner: "Yes, that was my impression too." Then he added: "I will call
Abu Amar and demand that he get a written opinion from you on this document
before he signs it! Can you give me that opinion right away?" Once again,
the emphases were that of Dr. Abdel Shafi.
"Yes, of course, you can count on me," I replied.
"I will call Abu Amar immediately," said a determined
Dr. Abdel Shafi.
Abu Amar is the nom-de-guerre of Yasir Arafat. The
two men go all the way back to the founding of the P.L.O. So that must
have been one tumultuous conversation.
But President Arafat had already made up his mind
to sign the bantustan proposal, now emanating from Norway instead of Washington.
Dr. Abdel Shafi, the head of the Palestinian delegation in Washington,
could do nothing to change his mind.
When the proposal was signed on the White House
Lawn on 13 September 1993, Dr. Abdel Shafi did not attend. He knew Oslo
was a bantustan and he wanted nothing to do with it.
As for me, on that day I had to be in the International
Court of Justice in The Hague in order to accept the second World Court
Order I would win for the Republic of Bosnia and Herzegovina against the
rump Yugoslavia to cease and desist from committing all acts of genocide
against the Bosnian people. So I had to watch the ceremony on television
in my Amsterdam hotel room. "This will never work," I reflected with a
heavy heart, "but perhaps President Arafat knows something that I do not."
Still, the question remains: Why would President
Arafat accept and sign an Israeli proposal that he knew would constitute
a bantustan for the Palestinian people? I really do not know the answer
to that question. President Arafat did not discuss this matter with me.
He did discuss it with Dr. Abdel Shafi. But I was not privy to that conversation,
and I have never asked Dr. Abdel Shafi about it.
In fairness to President Arafat, I believe he felt
that he must take what little was offered, even if he knew it was nothing
more than a bantustan. Perhaps he thought that Palestinians would live
in peace with Israel throughout the trial period of five years, under their
bantustan model, at the end of which he would negotiate a legitimate, free,
viable, and independent Palestinian state on the West Bank and Gaza Strip,
with its capital in Jerusalem.
Also, in fairness to President Arafat, the Oslo
Agreement made it quite clear that all issues would be open for negotiations
in the so-called final status negotiations. And this included Jerusalem,
despite the massive Israeli rhetoric and propaganda that Jerusalem was
"their," "eternal," "undivided," "capital." You do not agree in writing
to negotiate over "your," "eternal," "undivided," "capital," if it is really
yours.
Finally, in fairness to President Arafat, there
was already on the books a resolution that had been adopted by the Palestine
National Council that authorized the P.L.O. to take control of any portion
of occupied Palestine that was offered to them by Israel. This is precisely
what President Arafat and the Tunisian P.L.O. leaders did.
For the record, though, it should be noted that
the Palestinian delegation to the Middle East peace negotiations --- all
of whom lived in occupied Palestine, not in Tunis --- had explicitly rejected
this Israeli bantustan proposal during the course of the formal negotiations
in Washington. For that reason, in addition to Dr. Abdel Shafi, other accredited
Palestinian negotiators refused to attend the signing ceremony on the White
House Lawn, including my friend who had personally instructed me to analyze
the Israeli bantustan proposal for the delegation. Like Dr. Abdel Shafi,
they knew full well that Oslo was a bantustan, and they wanted nothing
to do with it.
President Arafat had assumed a modicum of good faith
on the part of Israel and the United States. My 1 December Memorandum did
not. As it happened, Israel and the United States proceeded to stall and
delay the implementation of the bantustan model throughout the entire five-year
course of the Oslo process, and even after its expiration. Never was a
realistic hope provided that at the end of the road the Palestinians would
have their free, viable, genuinely independent state on the West Bank and
Gaza, with its capital in Jerusalem.
Hence, I will not waste time analyzing the numerous
post-Oslo agreements between Israel and the P.L.O. that were "brokered
" by the United States. For they all constitute nothing more than implementation
and refinements of Israel's original bantustan proposal that the Palestinian
delegation had rejected in Washington. I am a Professor of International
Law, not of Bantustan Law. From the perspective of public international
law, however, numerous provisions of all these agreements were void ab
initio under articles 7, 8, and 47 of the Fourth Geneva Convention of 1949,
inter alia.
Camp David II, the Al Aqsa Intifada, and U.N. Security Council Resolution 1322
This brings the story up to the summer of 2000, to the so-called Camp
David II negotiations. This proposed conclusion to the final status negotiations
was not the idea of the Palestinian leadership. Rather, it was the brainchild
of Israeli prime minister General Ehud Barak, with the full support of
President Clinton, who fully intended to pressure President Arafat into
permanently accepting the Oslo bantustan arrangement. To his everlasting
credit, President Arafat refused to accept Oslo as his people's "final
solution." But it was a near-death experience.
True to his pro-Israeli stance, President Clinton
publicly blamed President Arafat and the Palestinian leadership for their
alleged intransigence. He also threatened to illegally move the United
States Embassy from Tel Aviv to Jerusalem unless President Arafat succumbed
to permanently accepting Israel's bantustan model. This President Arafat
still refused to do.
When it became clear to the Israeli government that
it could not impose Oslo on the Palestinians by means of negotiations and
U.S. bullying, Prime Minister Barak and Likud leader General Ariel Sharon
reverted to inflicting raw, brutal, military force on the Palestinians
in order to get their way. Hence the Israeli origins of what has come to
be known as the Al Aqsa Intifada.
General Ariel Sharon --- the architect of the Israeli
invasion of Lebanon that exterminated an estimated 20,000 Arabs, the man
personally responsible for the massacre of about 2,000 Palestinian and
Lebanese civilians at the refugee camps in Sabra and Shatilla, a man cashiered
by his own government --- on 28 September 2000 appeared at Al-Haram al-Sharif
in Jerusalem, the third holiest site in Islam. Here stand the Al Aqsa Mosque
and the magnificent Dome of the Rock, where Mohammed (May Peace Be Upon
Him) ascended into Heaven. Sharon, with Barak's full approval, arrived
surrounded by about 1,000 armed Israeli forces. The two former generals
knew exactly what the Palestinian reaction would be to this deliberate
desecration of, and provocation at, their sacred shrine. And if there had
been any lingering doubt about the matter, Israeli armed forces returned
the next day to the site and shot dead several unarmed Palestinians, thus
setting off what has come to be known as the Al Aqsa Intifada.
On 7 October 2000, the United Nations Security Council
adopted Resolution 1322, which is critical for this analysis. The vote
was 14 to 0, with the United States abstaining. The U.S. could have vetoed
this Resolution, but did not. So the Resolution became a matter of binding
international law. I will not go through the entire Resolution here, but
I do want to comment on its most important provisions.
In paragraph 1, the Security Council "Deplores the
provocation carried out at Al-Haram al-Sharif in Jerusalem on 28 September
2000 and the subsequent violence there." Notice, the Security Council,
by a vote of 14 to 0, made it crystal clear that it was Sharon's desecration
of the Al-Haram al-Sharif that is responsible for the start of the current
round of warfare and bloodshed perpetrated by Israel against the Palestinian
people living in occupied Palestine. Even the United States did not vote
against that determination, deliberately letting it pass into binding international
law.
In paragraph 3 of Resolution 1322, the Security
Council, again 14 to 0, "Calls upon Israel, the occupying Power." "Occupying
Power" has a definite meaning in public international law. Israel only
"occupies" the West Bank, the Gaza Strip, and the entire city of Jerusalem.
It is what international lawyers call a "belligerent occupant." As such,
Israel has no sovereignty over the West Bank, or the Gaza Strip, or the
entire city of Jerusalem. Hence, what is being waged there is a war by
the belligerent occupant, Israel, against a people living on their own
land, the Palestinians. Under international law and practice, a people
living on their own land is the essence of sovereignty. This has been the
case for the West Bank and Gaza Strip and East Jerusalem since the war
of 1967.
As for West Jerusalem, the world has never recognized
Israel's annexation of it as valid either. That is why the U.S. Embassy
and the embassies of almost every country in the world that has diplomatic
relations with Israel--- except for the few banana republics that have
been bought and paid for---have their embassies in Tel Aviv and not Jerusalem.
That is also why President Clinton's threat to move the U.S. Embassy to
Jerusalem was clearly illegal.
Belligerent occupation is governed by the Hague
Regulations of 1907, as well as by the Fourth Geneva Convention of 1949,
and the customary laws of belligerent occupation. Security Council Resolution
1322, paragraph 3: "Calls upon Israel, the occupying Power, to abide scrupulously
by its legal obligations and its responsibilities under the Fourth Geneva
Convention relative to the Protection of Civilian Persons in a Time of
War of 12 August 1949;." Again, the Security Council vote was 14 to 0,
making it obligatory under international law.
The Fourth Geneva Convention applies to the West
Bank, to the Gaza Strip, and to the entire city of Jerusalem. The Palestinian
people living in occupied Palestine are "protected persons" within the
meaning of the Fourth Geneva Convention. All of their rights are sacred
under international law.
The fact is, there are 149 substantive articles
of the Fourth Geneva Convention that protect the rights of almost every
one of these Palestinians living in occupied Palestine. The Israeli government
is currently violating, and has been since 1967, almost each and every
one of these sacred rights of the Palestinians.
Nor should we forget that violations of the Fourth
Geneva Convention are war crimes. This is not a symmetrical situation.
As matters of fact and of law, the gross and repeated violations of Palestinian
human rights by the Israeli army and by Israeli settlers living illegally
in occupied Palestine constitute war crimes. Put another way, the Palestinian
people are defending themselves and their land and their homes against
Israeli war crimes and Israeli war criminals, both military and civilian.
On 5 December 2001, 114 states, all parties to the
Fourth Geneva Convention --- including Britain and the rest of the European
Union --- issued a declaration urging Israel to abide by international
laws enshrined in the 1949 accord seeking to protect civilians in wartime
or under occupation. Israel, the United States and Australia, also parties
to the Convention, boycotted the session. The declaration expressed deep
concern about a "deterioration of the humanitarian situation" in Palestinian
areas, condemned Israeli settlements there as illegal and urged Israel
to refrain from "grave breaches" of the Fourth Geneva Convention, "such
as wilful killing, torture, unlawful deportation, wilful depriving of the
rights of fair and regular trial, extensive destruction and appropriation
of property not justified by military necessity and carried out unlawfully
and wantonly."
Israel's War Crimes Against Palestinians
On 19 October 2000, a Special Session of the U.N. Commission on Human
Rights adopted a Resolution set forth in U.N. Document E/CN.4/S-5/L.2/Rev.
1, "Condemning the provocative visit to Al-Haram al-Sharif on 28 September
2000 by Ariel Sharon, the Likud party leader, which triggered the tragic
events that followed in occupied East Jerusalem and the other occupied
Palestinian territories, resulting in a high number of deaths and injuries
among Palestinian civilians."
The U.N. Human Rights Commission went on to say
that it was "[g]ravely concerned" about several different types of atrocities
inflicted by Israel upon the Palestinian people, which it denominated "war
crimes, flagrant violations of international humanitarian law and crimes
against humanity."
In operative paragraph 1 of its 19 October 2000
Resolution, the U.N. Human Rights Commission then "Strongly condemns the
disproportionate and indiscriminate use of force in violation of international
humanitarian law by the Israeli occupying Power against innocent and unarmed
Palestinian civilians.including many children, in the occupied territories,
which constitutes a war crime and a crime against humanity."
And in paragraph 5, the Commission "Also affirms
that the deliberate and systematic killing of civilians and children by
the Israeli occupying authorities constitutes a flagrant and grave violation
of the right to life and also constitutes a crime against humanity."
We all have a general idea of what a war crime is,
so I will not elaborate upon the term. There are, however, different degrees
of heinousness for war crimes. In particular are the more serious war crimes
denominated "grave breaches" of the Fourth Geneva Convention. Since the
start of the Al Aqsa Intifada, the world has seen those heinous war crimes
inflicted every day by Israel against the Palestinians in occupied Palestine:
e.g., willful killing of Palestinian civilians by the Israeli army and
by Israel's illegal paramilitary settlers. These Israeli "grave breaches"
of the Fourth Geneva Convention mandate universal prosecution for their
perpetrators, whether military or civilian, as well as universal prosecution
for their commanders, whether military or civilian, including and especially
Israel's political leaders.
But it is Israel's "crime against humanity" against
the Palestinian people, as determined by the U.N. Human Rights Commission
itself, that I want to focus on here.
What is a "crime against humanity"? This concept
goes back to the Nuremberg Charter of 1945 for the trial of the major Nazi
war criminals in Europe. And in the Nuremberg Charter of 1945, drafted
by the United States government, a new type of international crime was
created specifically intended to deal with the Nazi persecution of the
Jewish people.
The paradigmatic example of a "crime against humanity"
is what Hitler and the Nazis did to the Jewish people. This is where the
concept of crime against humanity came from. And this is what the U.N.
Human Rights Commission determined that Israel is currently doing to the
Palestinian people: crimes against humanity. Legally speaking, it is just
like what Hitler and the Nazis did to the Jews.
Moreover, a crime against humanity is the direct
historical and legal precursor to the international crime of genocide as
defined by the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide. The theory here was that what Hitler and the Nazis did
to the Jewish people required a special international treaty that would
codify and universalize the Nuremberg concept of "crime against humanity."
And that treaty ultimately became the 1948 Genocide Convention.
It should be noted that the U.N. Human Rights Commission
did not go so far as to condemn Israel for committing genocide against
the Palestinian people. It condemned Israel for committing crimes against
humanity, which are the direct precursor to genocide. And I submit that
if something is not done quite soon by the American people and the international
community to stop Israeli war crimes and crimes against humanity against
the Palestinian people, it could very well degenerate into genocide, if
Israel is not there already. In this regard, Israeli Prime Minister Ariel
Sharon is what international lawyers call a genocidaire, one who has already
committed genocide in the past. Sharon is ready, willing, and able to inflict
genocide yet again upon the Palestinians, unless we stop him!
Peace Is Possible, If . . .
The goal of obtaining peace with justice for all peoples in the Middle
East can only be achieved on the basis of a two-state solution for the
Palestinian people and the Jewish people, the right of return for Palestinian
refugees, and an equitable solution to the question of Jerusalem:
The Two-State Solution: On November 15, 1988, the
independent state of Palestine was proclaimed by the Palestine National
Council (P.N.C.), meeting in Algiers, by a vote of 253 to 46. On the same
day it was also proclaimed in front of Al-Aqsa Mosque in Jerusalem, the
capital of the new state, after the close of prayers. Notice the monumental
importance of Al Aqsa Mosque to the Palestinian people. A remarkable opportunity
for peace was created by the Palestinian Declaration of independence because
therein the P.N.C. officially endorsed this two-state solution in order
to resolve the basic conflict.
This Declaration of Independence explicitly accepted
the U.N. General Assembly's Partition Resolution 181 (II) of 1947, which
called for the creation of a Jewish state and an Arab state in the former
Mandate for Palestine, together with an international trusteeship for the
city of Jerusalem. The significance of the P.N.C.'s acceptance of partition
cannot be overemphasized. Prior thereto, from the perspective of the Palestinian
people, the Partition Resolution had been deemed to be a criminal act that
was perpetrated upon them by the United Nations. Today, the acceptance
of the Partition Resolution in their actual Declaration of Independence
signals a genuine desire by the Palestinian people to transcend the past
century of bitter history with the Jewish people living in their midst
in order to reach an historic accommodation with Israel on the basis of
a two-state solution. The Declaration of Independence is the foundational
document for the State of Palestine. It is determinative, definitive, and
irreversible.
In this regard, it should be emphasized that Israel
officially accepted the U.N. Partition Resolution in its own Declaration
of Independence and as a condition for its admission to membership in the
United Nations Organization. The 1947 U.N. Partition Plan called for the
Palestinian people to have 44% of historic Palestine for their state, a
much larger share than the 20% contemplated by U.N. Security Council Resolutions
242 of 1967 and 338 of 1973. Today the Palestinian people would be prepared
to accept the 1967 boundaries for the state of Palestine, which would consist
essentially of the West Bank, Gaza Strip and East Jerusalem. The P.N.C.'s
solemn acceptance of Resolutions 242 and 338 represented a significant
concession by the Palestinian people for the benefit of the Israeli people.
The Refugee Question: As another express condition
for its admission to the United Nations Organization, the government of
Israel officially endorsed and agreed to carry out U.N. General Assembly
Resolution 194 (III) of 1948, which determined that Palestinian refugees
have a right to return to their homes, or that compensation should be paid
to those who choose not to return. Furthermore, that same article 13 (2)
of the 1948 Universal Declaration of Human Rights which Soviet Jews relied
upon to justify their emigration from the former Soviet Union provides
that Everyone has the right...to return to his country."
That absolute right of return clearly applies to
Palestinian refugees living in their diaspora who want to return to their
homes in Israel and Palestine. The state of Israel owes a prior legal obligation
to resettle Palestinian refugees who want to return home before it undertakes
the massive settlement of Jews and others from around the world.
The Legal Status of Jerusalem: Reportedly, it was
the question of Jerusalem that led to the breakdown of the Camp David II
negotiations, though the negotiating situation was far more complicated
than that. A brief review of the historical record can shed light upon
Jerusalem's legal status, and point the way towards an ultimate solution
for this city, so revered by three monotheistic faiths.
On 25 September 1971, then-Ambassador George H.
W. Bush, speaking as U.S. Representative to the United Nations, delivered
a formal "Statement on Jerusalem" before the U.N. Security Council explaining
the official position of the U.S. government with respect to the city of
Jerusalem. Therein, Ambassador Bush specifically endorsed and repeated
a 1969 statement made before the Security Council by his predecessor, Charles
Yost, criticizing Israeli occupation policies in East Jerusalem in the
following terms:
The expropriation or confiscation of land, the construction of housing on such land, the demolition or confiscation of buildings, including those having historic or religious significance, and the application of Israeli law to occupied portions of the city are detrimental to our common interests in the city.
Ambassador Bush then reaffirmed Yost's prior statement that the United
States government considers East Jerusalem to be "occupied territory and
thereby subject to the provisions of international law governing the rights
and obligations of an occupying power."
Succinctly put, these latter obligations can be
found in the Fourth Geneva Convention of 1949, which expanded upon and
improved --- but did not displace --- the 1907 Hague Regulations on Land
Warfare. The United States government is a party to both the Fourth Geneva
Convention and the Hague Regulations. Israel is bound by the terms of both
treaties as well.
Ambassador Bush concluded his 1971 "Statement" as follows:
We regret Israel's failure to acknowledge its obligations under the Fourth Geneva Convention as well as its actions which are contrary to the letter and spirit of this Convention. We are distressed that the actions of Israel in the occupied portion of Jerusalem give rise to understandable concern that the eventual disposition of the occupied section of Jerusalem may be prejudiced. The Report of the Secretary General on the Work of the Organization, 1970-71, reflects the concern of many Governments over changes in the face of this city. We have on a number of occasions discussed this matter with the Government of Israel, stressing the need to take more fully into account the sensitivities and concerns of others. Unfortunately, the response of the Government of Israel has been disappointing. All of us understand.that Jerusalem has a very special place in the Judaic tradition, one which has great meaning for Jews throughout the world. At the same time Jerusalem holds a special place in the hearts of many millions of Christian and Moslems through the world. In this regard, I want to state clearly that we believe Israel's respect for the Holy Places has indeed been exemplary. But an Israeli occupation policy made up of unilaterally determined practices cannot help promote a just and lasting peace any more than that cause was served by the status quo in Jerusalem prior to June 1967 which, I want to make clear, we did not like and we do not advocate reestablishing.
Ambassador Bush's 1971 "Statement" has always represented the United
States government's official position on the numerous illegalities surrounding
Israel's occupation and illegal annexation of East Jerusalem since 1967.
For similar reasons, the United States government
has never recognized Israel's annexation of West Jerusalem as valid or
lawful either. That is why the U.S. Embassy to Israel still remains in
Tel Aviv, not Jerusalem.
Both Bush's 1971 "Statement" and similar comments
he later made as President in 1990 are fully consistent with and indeed
required by Article 1 of the Fourth Geneva Convention, which requires the
United States government not only to respect but also to ensure respect
for the terms of this Convention by other parties such as Israel "in all
circumstances." As treaties, both the Fourth Geneva Convention and the
Hague Regulations are deemed to be the "supreme Law of the Land" by Article
VI of the United States Constitution. Contrary to the public suggestions
made in the United States by the Israel lobby and its supporters, the United
States government must support the vigorous application of the international
laws of belligerent occupation to produce the termination of all illegal
Israeli practices in Jerusalem as well as in the West Bank and Gaza Strip,
together with the Golan Heights, including and especially Israeli settlers
and settlements.
The 1947 United Nations Partition Plan for the Mandate
of Palestine called for the creation of an international trusteeship for
the city of Jerusalem, that would be administered as a corpus separatum
apart from both the Jewish state and the Arab state contemplated therein.
Today, however, it would not be necessary to go so far as to establish
a separate United Nations trusteeship for the city of Jerusalem alone under
Chapter XII of the U.N. Charter. Rather, all that would need to be done
is for the Israeli army to withdraw from Jerusalem and a United Nations
peacekeeping force to be substituted in its place. This U.N. force would
maintain security within the city while the provision of basic services
to all the inhabitants could be enhanced, especially for the Palestinians.
The simple substitution of a U.N. peacekeeping force
for the Israeli army would have the virtue of allowing both Israel and
Palestine to continue making whatever claims to sovereignty they want with
respect to the city of Jerusalem. Thus, Israel could continue to maintain
that Jerusalem is the sovereign territory and united capital of Israel,
the Israeli Knesset could remain where it is as a capital district, and
the Israeli flag could be flown anywhere throughout the city of Jerusalem.
Likewise, the state of Palestine could maintain
that Jerusalem is its sovereign territory and capital. Palestine would
be entitled to construct a parliament building and capital district within
East Jerusalem. The Palestinian flag could be flown anywhere within the
territorial confines of the city.
Both Israel and Palestine would be entitled to maintain
ceremonial honor guards, perhaps with revolvers, at their respective capital
districts. But no armed troops from either Israel or Palestine would be
permitted within Jerusalem.
The residents of Jerusalem would be citizens of
either Israel, or Palestine, or both, depending upon the respective nationality
laws of the two states involved. Residents of Jerusalem would be issued
a United Nations identity card to that effect, which would give them and
only them the right to reside within the city of Jerusalem. Nevertheless,
all citizens of the state of Palestine would be entitled to enter Jerusalem
through U.N. checkpoints at the eastern limits of the city. Likewise, all
citizens of the state of Israel would be entitled to enter Jerusalem at
U.N. checkpoints located at the western limits of the city. Mutual rights
of access for their respective citizens to the two states through Jerusalem
would be subject to whatever arrangements could be negotiated between the
government of Israel and the government of Palestine as part of an overall
peace settlement.
In addition, both Israel and Palestine would have
to provide assurances to the United Nations Security Council that religious
pilgrims (Moslems, Christians, and Jews) would be allowed access through
their respective territories in order to visit and worship at the holy
sites in the city of Jerusalem. Some type of U.N. transit visa issued by
the U.N. peacekeeping force should be deemed to be sufficient for this
purpose by both governments. Of course this right of transit could not
be exercised in a manner deleterious to the security interests of the two
states.
Thus, Jerusalem would become a free, open, and undivided
city for pilgrimage and worship by people of the three monotheistic faiths
from around the world. Neither Israel nor Palestine would have to surrender
whatever rights, claims, or titles they might assert to the City. Security
would be maintained by the United Nations peacekeeping force. And the city
of Jerusalem would remain subject to this U.N. regime for the indefinite
future.
If a comprehensive Middle East peace settlement
were to be negotiated along these lines, then it would be perfectly appropriate
under international law for the United States to move its Embassy in Israel
from Tel Aviv to Jerusalem. The U.S. Embassy could be simultaneously accredited
to the state of Palestine as well as to the state of Israel. The same could
be done by all other states in the international community. The presence
of these embassies in Jerusalem under such circumstances would permit both
Israel and Palestine to claim that the entire international community has
now recognized Jerusalem as its capital.
There are many other historical precedents that
could be drawn upon to produce a mutually acceptable arrangement for Jerusalem:
e.g., the Free City of Danzig, the Vatican City State, the District of
Columbia, etc. So determining the final status of Jerusalem is not and
never has been an insuperable obstacle to obtaining a comprehensive Middle
East peace settlement. If the will for peace is there on the part of the
Israeli government, then creative lawyers on each side can devise an artful
arrangement for the city of Jerusalem that would allow both peoples to
claim victory while achieving peace.
Prologue: New Direction for the Palestinians
Just before the September 13, 1993 Oslo Agreement signing on the White
House Lawn, I commented to a high-level official of the P.L.O., "This document
is like a straight-jacket. It will be very difficult to negotiate your
way out of it!" This official readily agreed: "Yes, you are right. It will
depend upon our negotiating skill."
I have great respect for Palestinian negotiators.
They have done the very best they can negotiating in good faith with an
Israeli government that has been invariably backed up by the United States.
But there has never been any good faith on the part of the Israeli government
either before, during, or after Oslo. The same is true for the United States.
Even if Oslo and Camp David II had succeeded, they
would have resulted in the permanent imposition of a bantustan upon the
Palestinian people. But Oslo has run its course. Therefore, it is my purpose
here to sketch out a new direction for the Palestinian people and their
supporters around the world to consider as an alternative to the Oslo process.
First: We must immediately move for the de facto suspension of Israel
throughout the entirety of the United Nations system, including the General
Assembly and all U.N. subsidiary organs and bodies. We must do to Israel
what the U.N. General Assembly has done to the genocidal rump Yugoslavia
and to the criminal apartheid regime in South Africa. Here the legal basis
for the de facto suspension of Israel at the U.N. is quite simple:
As a condition for its admission to the United Nations
Organization, Israel formally agreed, inter alia, to accept General Assembly
Resolution 181 (II) (1947) (on partition and Jerusalem trusteeship) and
General Assembly Resolution 194 (III) (1948) (Palestinian right of return).
Nevertheless, Israel has violated its conditions for admission to U.N.
membership and thus must be suspended on a de facto basis from any participation
throughout the entire United Nations system.
Second: Any further negotiations with Israel must be conducted on the basis of Resolution 181 (II) and the borders it specifies; Resolution 194 (III); subsequent General Assembly resolutions and Security Council resolutions; the Third and Fourth Geneva Conventions of 1949; the 1907 Hague Regulations; and other relevant principles of public international law.
Third: We must abandon the fiction and the fraud that the United States government is an "honest broker" in the Middle East. The United States government has never been an "honest broker" since from well before the very outset of the Middle East peace negotiations in 1991. Rather, the United States has invariably sided with Israel against the Palestinians, as well as against the other Arab States. We need to establish some type of international framework to sponsor these negotiations where the Palestinian negotiators will not be subjected to the continual bullying, bribery, and outright deceptions perpetrated by the United States working in conjunction with Israel.
Fourth: We must move to have the U.N. General Assembly adopt comprehensive economic, diplomatic, and travel sanctions against Israel according to the terms of the Uniting for Peace Resolution (1950). Pursuant thereto, the General Assembly's Emergency Special Session on Palestine is now in recess just waiting to be recalled.
Fifth: The Provisional Government of the state of Palestine must sue Israel before the International Court of Justice in The Hague for inflicting acts of genocide against the Palestinian people in violation of the 1948 Genocide Convention.
Sixth: We must pressure the Member States of the U.N. General Assembly to found an International Criminal Tribunal for Palestine (ICTP) in order to prosecute Israeli war criminals, both military and civilian, including and especially Israeli political leaders. The U.N. General Assembly can set up this ICTP by a majority vote pursuant to its powers to establish "subsidiary organs" under U.N. Charter article 22. This International Criminal Tribunal for Palestine should be organized by the U.N. General Assembly along the same lines as the International Criminal Tribunal for the Former Yugoslavia (ICTY) that has already been established by the U.N. Security Council.
Seventh: Concerned citizens and governments all over the world must
organize a comprehensive campaign of economic disinvestment and divestment
from Israel along the same lines of what they did to the former criminal
apartheid regime in South Africa. This original worldwide disinvestment/divestment
campaign played a critical role in dismantling the criminal apartheid regime
in South Africa. For much the same reasons, a worldwide disinvestment/divestment
campaign against Israel will play a critical role in dismantling its criminal
apartheid regime against the Palestinian people living in occupied Palestine
as well as in Israel itself.
During the course of a public lecture at Illinois
State University in Bloomington-Normal on 30 November 2000, I issued a
call for the establishment of a nationwide campaign of divestment/disinvestment
against Israel, which was later put on the internet. In response thereto,
Students for Justice in Palestine at the University of California at Berkeley
launched a divestment campaign against Israel there. Right now the city
of Ann Arbor Michigan is also considering divesting from Israel. And just
recently the Palestinian Students at the University of Illinois at Urbana-Champaign
(whom I am privileged to advise) launched an Israeli divestment campaign
here. This movement is taking off.
These seven steps taken in conjunction with each other should provide
the Palestinian people with enough political and economic leverage needed
to negotiate a just and comprehensive peace settlement with Israel.
By contrast, if the Oslo process is continued, it
will inevitably result in the permanent imposition of a bantustan upon
the Palestinian people living in occupied Palestine, as well as the final
dispossession and disenfranchisement of all Palestinian people living in
their diaspora.
Consequently, I call upon all Palestinian People
living everywhere, as well as their supporters around the world, to consider
and support this "New Direction."
Mr. Francis A. Boyle is a Professor in International Law.
Source:
by courtesy & © 2002Francis Boyle
by the same author:
Palestine Should Sue Israel before International Court of Justice
The Final Status of Jerusalem
A New Direction for the Palestinian People
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