Francis A. Boyle. Palestine, Palestinians and International Law
Francis A. Boyle. Palestine, Palestinians and International Law. Atlanta, GA: Clarity Press, 2003. 205 pages. Paper $10.49.
The general premise of this book is that Palestinian national rights are best understood within the context of international law. This is to say that the Palestinian people have firmly established rights under this framework and can only be denied these rights in a lawless world where international law is ignored. The book also emphasizes the futility of engaging in any Israeli-Palestinian talks without any reference to international law. At least where the Palestinians are concerned, retrieval of their rights can only come as a result of negotiations based on the principles of international law, rather than as a result of political deals and compromises.
The author of this book, Francis Boyle, Professor of International Law at the University of Illinois-Champaign, is a leading American advocate of the rule of international law. His wide experience in this field includes drafting the Biological Weapons Anti-Terrorism Act of 1989, as well as representing Bosnia-Herzegovina at the World Court. More importantly, he has been intimately associated with the Palestinian cause, at one time, advising the PLO during the drafting of the 1988 Palestinian Declaration of Independence, and from 1991 until 1993, as the Legal Advisor to the Palestinian Delegation to the Middle East Peace Conference at Madrid.
Boyle’s commitment to the defense of Palestinian national rights is grounded in his superb training as a Harvard graduate of both the Law School end the Department of Political Science. His career as an ivy league student opened his eyes to the entrenchment of pro-Israeli academic figures in academia and even to the inordinate presence of Israeli generals in some distinguished halls of ivy such as Harvard’s Center for Middle Eastern Studies. Boyle’s sense of fairness was offended by this and predisposed him to a certain sensitivity to issues of the forgotten centers of humanity, such as the Palestinians, Namibians end eventually the Bosnians. He began to press the Palestinians to declare their independent state in 1987, when the U.N. Committee on the Exercise of the Inalienable Rights of the Palestinian People commemorated the June War of 1967. Boyle took the opportunity to call for the unilateral declaration of an independent Palestinian state based on the right to self-determination end following the steps taken by the former Mandate territory of Namibia. After this, the Palestinians could then demand Israel’s withdrawal from Palestinian lands while participating in an international peace conference. The PLO’s sights at the time were only set on the possibility of declaring themselves a government-in-exile. He argued with Palestinian observers at the U.N. that the state should precede the government. A year later, he watched the PLO finally meet the U.S. demands before the latter bestowed diplomatic recognition. Arafat’s address before the U.N. General Assembly meeting at Geneva, inaugurated the Middle East peace process, according to Boyle, end forced the U.S. to begin its “diplomatic dialogue” with the PLO. The result was a de facto U.S recognition of the PLO’s Executive Committee as the Provisional Government for the State of Palestine end the start of an ongoing diplomatic dialogue which continues to this very day. Boyle also counseled the PLO acting as the Provisional Government of the State of Palestine continuously to invoke the U.N. General Assembly’s Uniting for Peace Resolution of 1950. This would be done in order to override the record of U.S. vetoes in the Security Council and to secure all rights of a U.N. member state save that of voting, again employing the tactic of obtaining de facto status of U.N. membership rather than waiting to achieve de jure recognition. He asserts that as things stand today what stands between the Palestinians and their formal acquisition of U.N. membership is simply the threat of a U.S. veto.
To move this process along, Boyle advised the Palestinian State to sign the 1949 Geneva Conventions and their two protocols of 1977. He argued that this step would entitle the Palestinians to exercise the right of self-defense and would prevent the treatment of Palestinian soldiers as terrorists. He also advised Arafat repeatedly but unsuccessfully to file a lawsuit for genocide accusing Israel of crimes against the Palestinians before the International Court of Justice at The Hague. He also prepared a Memorandum of Law that critiqued the U.S.-Israel Land-Lease and Purchase Agreement of 1989 designed to construct an embassy in Jerusalem and passed it on to Congressman Lee Hamilton, Chair of the House Subcommittee on Europe and the Middle East.
The chapter, “Creating the Palestinian State,” is a brilliant presentation on the legitimacy of the Palestinian case for independence and statehood. By hammering the point of similarity between the Mandates created by the League of Nations, Boyle proceeds to prove with great clarity and case how Palestinians can follow the Namibian example of achieving independence. He begins with a bit of history, emphasizing that Article 22 (1) of the Covenant of the League of Nations stipulated that the newly created mandate systems would be based on the principle “that the well-being and development of such people form a sacred trust of civilization.” These mandates (mostly entrusted to the British and French) were placed under the jurisdiction of the League of Nations CounciL The mandates were in actuality international treaties between the Council of the League of Nations and the mandatory powers. These agreements included a fairly clear description as to who was legally entitled to settle any disputes which may arise concerning interpreting the mandate’s clauses, namely, the Permanent Court of International Justice, the predecessor of the International Court of Justice. When the United Nations itself was created, it allowed for the creation of an international trusteeship council under Chapter XII of the U.N. Charter. Under Article 77 (1) (a), the Charter also provided a mechanism for the transfer of the mandates’ responsibilities to the jurisdiction of the U.N. trusteeship authority if an agreement was signed with the U.N. General Assembly. Since such agreements were never signed neither in the case of the Mandate of Palestine nor South West Africa (Namibia’s former name) then all subsequent action, such as South Africa’s refusal to turn over its mandate and Britain’s decision to surrender the problem of the Palestine Mandate to the U.N. General Assembly, therefore bypassing the Trusteeship Council, must be considered illegal. First of all, not only did the U.N. Partition Resolution of 29 November 1947, violate the Palestinians’ right of self-determination, it should also be regarded as an illegal step. Furthermore, failure to create the Palestinian state then and there meant that the Partition Resolution was never implemented. Mandates cannot be changed in any manner until being transferred to the trusteeship system. Known as the “conservatory clause,” this means that neither Palestine, not South West Africa, were ever transferred into a U.N. trusteeship.
Because of U.N. Charter Article 80 (1), the League’s Covenant article 22 still survives as a matter of positive international law. This is a pivotal point, since the same article adopted in 1919, and the Treaty of Lausanne in 1923, clearly recognized all the Arab territories, including Palestine, which used to be pan of the Ottoman Empire, as provisionally independent nations. Furthermore, by accepting the Partition Resolution of 1947, Israel has also accepted a Palestinian state. When the Palestinians declared their state in 1988, based on the Partition Resolution, they were in essence bowing to reality by accepting Resolution 242, which calls for the return to the 1967 boundaries, allowing for a much smaller Palestinian territory than what was designated by the Partition Resolution. Boyle goes on to demonstrate how the Palestinians can overcome the U.S. veto in their quest for U.N. membership, and how U.N. member states can sanction Israel for refusal to withdraw from Palestinian territories. By declaring themselves a state based on all that body of international law, the Palestinians could always challenge the legality of unfavorable intervening agreements, such as the Camp David Accords, which annulled their right to self-determination.
Boyle also provides legal advice as how to deal with the Jerusalem issue by taking internationally approved steps to declare the city the capital of two states. Neither Israel nor the Palestinians, in his view, have exclusive rights to Jerusalem. He reminds readers that once the Palestinians declare their state, they have the right to defend themselves against Israeli aggression under Article 51 of the U.N. Charter, which is recognized under customary international law as authorizing states to use force in self-defense. His most penetrating remarks were those expressed in a memorandum to the Palestinian delegation to the Madrid peace conference in December of 1992, against accepting assurances by the Israelis and Americans regarding the proposed peace plan unfolding on the eve of the signing of the Oslo Declaration of Principles. He particularly cautioned the Palestinians against accepting the Camp David approach which creates a false connection between an Interim Agreement and a Final Settlement, reminding them that once they accept the first proposal, they will never make it to the final stage. When Arafat finally signed the Oslo Peace Agreement, the author attacked it as precisely the Bantustan model which he had advised Arafat against. Boyle speculates that Arafat accepted this proposed settlement in order to prove good behavior for five years and then be given a state.
This book is a must reading for all those interested in the legal background of the Palestinian-Israeli conflict. It emphasizes what most students of Middle East politics and history knew all along, namely that the Palestinian claims for a national state of their own were supported by internationally recognized principles of law. Palestinians in particular must familiarize themselves with laws that support their case and there is no better way than reading this book. However, a feeling of sad resignation inevitably descends on the reader, if for nothing else but in realization of the near total absence of the rule of law in this world. One is reminded here by a recent statement made by Iraq’s representative to the U.N., Muhammad Duri, who told a reporter that as a former professor of international law, he owes his students an apology. He said to tell them there is no such thing as international law, and that he has been teaching them a lie. Boyle, of course, continues to uphold the rules of international legitimacy.
Ghada Talhami is Professor of Politics, Lake Forest College, Illinois, and the immediate past Editor of Arab Studies Quarterly.
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