Palestine, Palestinians and International Law

Francis A Boyle, Palestine, Palestinians and International Law. Atlanta: Clarity Press, 2003.

The advisory opinion of the International Court of Justice (ICJ) on the Israeli Wall, published in July, could almost stand alone as a review of Professor Francis Boyle’ s book.  The World Court judges comprehensively confirm and validate his work in elaborating the case for the Palestinians in international law.

At times Professor Boyle tends to impassioned pleading rather than dry legal prose, which could detract from his message in a legal context. However, the enormity of the situations he describes thoroughly justifies the adjectives he deploys in making his case: which is that the Palestinians are entitled to their own state, free of Israeli (or indeed Jordanian and Egyptian) occupation.

Palestine, Palestinians and International Law, contains the raw material of his arguments over the years and, while it would be good now to see his retrospective analysis of his briefs and legal arguments in the context of the Court’ s opinion, it is refreshing to see how well his arguments have stood the test of time, litigation and political action.

When he was writing these opinions, some contemporaries regarded Boyle as Quixotic, tilting after legal windmills. After all, in a Reagan era world, international law often seemed to be whatever the White House chose it to be. But the same people saw East Timor and Namibia as lost causes, and Apartheid South Africa as assured of a long life whether it deserved it or not.

Events have largely substantiated what appeared at the time to be Boyle’ s naïve faith in the power of international law. Namibia and East Timor are independent. Apartheid has gone, and even after thirty years, no one accepts the Moroccan annexation of Western Sahara. Perhaps more significantly, as he points out, apart from a few bought banana republics, no country in the world will put an embassy in Jerusalem, because there is an outstanding UN decision that says it is international, not Israeli territory.

In its opinion on the Wall, the ICJ accepted Palestine as a party to the proceedings (in effect recognizing it as a state), decided that all the Occupied Territories are in fact occupied, which, while self-evident to everyone else, the Israelis have denied, and ruled that the settlements on them are illegal, as is the Wall that is being built there. Indeed, one of the arguments that the judges accepted, once again self-evident to everyone including the Sharon administration itself but denied by Israel’ s best friends abroad, is that a major purpose of the Wall was precisely to annex the settlement blocs. It also advised that compensation was payable to all those whose property and livelihoods the Wall has disrupted and destroyed.

In one way, however, Boyle may be almost disappointed. He and then Palestinian Foreign Minister Haider Abdul Shaffi started bidding high. They wanted to begin with the boundaries of the original partitioned state, under UN resolution 181, which would have given Palestine the Negev and much of Galilee as well. It was a good try, and under the circumstances, an unequivocal legal declaration on the territories occupied in 1967 is better than nothing, especially since Israeli tactics have always played on some ambiguities in the English text of Resolution 242, which tells Israel to withdraw from ‘territories’ rather than ‘the territories.’

Boyle was prescient in his warnings about the Oslo Accords, which he and Abdul Shaffi both saw as the trap they became. In fact at Oslo the Israelis persuaded Arafat to accept what his official negotiators had already accepted. Boyle is perhaps too kind about Yasser Arafat and his reasons for accepting what, as he predicted, would soon become Bantustans where the Israelis maintained military control but sloughed off responsibility for the people crowded into small disconnected enclaves.  He also warned that accepting interim solutions without a clear end was unlikely to bring long-term happiness.

Certainly, the testimony of other Palestinian negotiators shows that the famous grudging handshake on the White House lawn was predictably expensive for the Palestinian people. Indeed, it would be interesting to research whether the Israelis were consciously emulating the Bantustans, since the structures that Israel and the US persuaded Arafat to accept had an uncanny resemblance to them. Israel was Apartheid South Africa’ s back door to the world, and there was indeed a great deal of security Cooperation, up to and including it would appear nuclear weaponry.

While Boyle had an acute eye for the leanings of the US delegates and the procrastination of their Israeli colleagues in negotiations, on occasion his respect for international law led him to a degree of naivety, hyperbole notwithstanding. He actually underestimates the expedient perfidy of US administrations, for example, in his recommendation that the Palestinians use the ‘Uniting for Peace Procedure’ in the General Assembly. He suggested that since the US invented the procedure, they ‘would be estopped to deny its validity.’

The Palestinians eventually did follow Boyle’ s advice and countered an American Security Council veto with a request for a ‘Uniting For Peace’ Emergency session of the General Assembly¾and the US promptly renounced the procedure they had themselves invented, as ‘no longer valid’ even though, at their instigation, it had been ratified by the ICJ forty years before!

Boyle is quite right, that the whole drift of American and Israeli policy has been to sideline international law and the United Nations precisely so they ignore Palestinians’ legal rights in any settlement. Following the path that he had suggested, since Oslo the Palestinians have restated and enlarged upon their legal rights on every occasion and in every forum that the United Nations offers. We can presume that the annoyance that this provokes from the Israelis and the United States suggests they are on the right course.

For the future, Boyle suggests a program of action through the United Nations which would parallel the road to sanctions that brought about Namibian independence. However, while international law may depend on principles, its successful application all too often depends on politics. The US does not just have a paper veto; it has a real veto, its immense power, which it has increasingly chosen to put at the behest of Israel.

So we have the strange conjunction of an ICJ opinion, accepted overwhelmingly by the UN General Assembly, at the same time that Israel under the genocidaire Ariel Sharon has more sway than ever before. The first prize of Oslo for Israel was international respectability.  All over the world, states see that to gain Washington’ s ear, it helps to make the connection through Israel.

Even so, the ICJ Opinion substantiated what Boyle’ s book records him saying for decades: that signatories to the Geneva Conventions have a responsibility to ensure compliance. Europe tends to take these things seriously, and could impose sanctions without US or UN say-so. The claims for compensation caused by the Wall, now being compiled by the United Nations, will provide some interesting contrast to Israel’ s vociferous championing of Second World War claims
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Israel may in fact be digging itself into precisely the same hole as the South Africans as it converts chutzpah to hubris. Hectoring their biggest trading partner, Europe, for not voting the way Israel wanted may seem a natural thing to do if you are complacently pulling the strings on Uncle Sam. But it is not the same.

Boyle’ s prose is somewhat hyperbolic, and he is under no illusions about his own importance to the process, but his book provides important background to how the case arrived at the ICJ, and why the Judges reached its conclusions. Its conclusions have not been dated by this success, but rather provide some interesting hints about the likely future legal strategy of the Palestinians and their consequences for Israel.

Reviewed by Ian Williams
The Nation

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