(The author served as Legal Adviser to the Palestinian Delegation to the Middle East peace Negotiations from 1991 to 1993. The viewpoints expressed here are his own.)
When it became crystal clear to the Israeli Government that they could not impose a permanent bantustan arrangement upon the Palestinian People by means of the Camp David II negotiations–and even when conjoined with the customary bullying, threats, harassment, intimidation and bribery by the U.S. government–then General Barak and Likud Leader General Ariel Sharon decided to revert to inflicting raw, naked, brutal, military force upon the Palestinian People in order to get their way. Hence the origins of what came to be known as the Al Aqsa Intifada.
On 28 September 2000, General Ariel Sharon, the Butcher of Beirut, the architect of the Israeli invasion of Lebanon that exterminated about 20,000 Arabs, the man personally responsible for the massacre of about 2,000 innocent Palestinian and Lebanese civilians at the refugee camps in Sabra and Shatilla, a man cashiered by his own government, on that day appeared at Haram Al-Sharif in Jerusalem — the third holiest site in Islam, where it is the Al Aqsa Mosque on the one hand, and the Dome of the Rock on the other, where Mohammed (Peace Be Upon Him) had ascended into Heaven — surrounded by about 1,000 armed Israeli forces with the full approval of Prime Minister Barak. General Barak and General Sharon knew exactly what they were doing. General Barak and General Sharon knew exactly what the reaction of the Palestinian People would be to Sharon’s deliberate desecration of, and provocation at, their holiest religious site. And if there had been any lingering doubt about the matter, Israeli armed forces returned the next day and shot dead several Palestinians on Haram Al-Sharif, thus setting off what has come to be known as the Al Aqsa Intifada — the uprising in support of the Al Aqsa Mosque.
Security Council Resolution 1322
Now on 7 October 2000, the United Nations Security Council adopted Resolution 1322 (2000), which is critical. The vote was fourteen to zero, with the United States government abstaining. The United States Government could have vetoed this Resolution, but did not. And so this Resolution became a matter of binding international law. I will not go through the entire Resolution here, but I do want to spend just a few moments commenting 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 Haram Al-Sharif with the support of Prime Minister Barak 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. Nothing could be further from dispute than this factual finding, adopted 14 to 0, by the Security Council itself.
Even the United States did not vote against that determination, and thus let it pass permanently into binding international law. Hence, there is no factual dispute about who and what started the Al Aqsa Intifada. It was the “provocation” deliberately inflicted by General Ariel Sharon, now the Prime Minister of Israel, with the full support of General Barak, who was at the time the Prime Minister of Israel.
Israel’s Belligerent Occupation of Palestine
In paragraph 3 of Resolution 1322 (2000), 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. Israel 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.
Israel is not and has never been the sovereign there. Israel only belligerently occupies this Palestinian Land. And so what goes on there now is a war being waged by the belligerent occupant Israel against the Palestinian People living on their own Land. Under international law and practice, a People living on their own Land is the essence of Sovereignty. It is the Palestinian People who are the Sovereign there.
So Israel has no sovereignty over the West Bank, or the Gaza Strip, or Jerusalem. This is not sovereign Israeli land as far as the Security Council is concerned, as far as international law is concerned, as far as the entire international community is concerned, and even as far as the United States of America is officially concerned. And that has been the case for the West Bank and Gaza Strip since the war of 1967. That has been the case for East Jerusalem since the war of 1967.
As for West Jerusalem, the world has never recognized Israel’s annexation of West Jerusalem as valid. That is why the United States’ Embassy and the Embassies of almost every country in the world that has diplomatic relations with Israel — except for a few banana republics that have been bought and paid for — have their embassies in Tel Aviv and not Jerusalem. That is also why Clinton’s public threat to move the U.S. Embassy to Jerusalem was clearly illegal — threatening to recognize Israel’s bogus claim to sovereignty over Jerusalem.
So once again, this is not a symmetrical situation. As matters of fact and of law, the gross and repeated violations of Palestinian rights by the Israeli army and Israeli settlers living illegally in occupied Palestine constitute war crimes. Conversely, the Palestinian People are defending Themselves and their Land and their Homes against Israeli war crimes and Israeli war criminals, both military and civilian.
Mr. Francis A. Boyle is a Professor in International Law.