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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 the same author:
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