USING
INTERNATIONAL
LAW
TO CLARIFY AND RESOLVE
THE
ISRAELI / PALESTINIAN
CONFLICT

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Journal of Palestine Studies, Vol. 33, No. 2 (Winter 2004), pp 113-115: SELF-DETERMINATION  

Palestine, Palestinians, and International Law,
by Francis A. Boyle. Atlanta: Clarity Press, Inc., 2003.
177 pages. Bibliography to p. 202. Index to p. 205. $14.95 paper.  

Reviewed by Diana Buttu

Francis Boyle's involvement with the PLO began in 1987, when he first proposed the unilateral creation of the State of Palestine at the UN conference marking the twentieth anniversary of Israel's military occupation of the West Bank and the Gaza Strip. Impressed by his international legal approach to the pursuit of Palestinian self-determination, the Palestine National Council (PNC) used Boyle's legal analysis proposal as a basis for its Declaration of Independence and acceptance of the two-state solution in November 1988. Subsequently, Boyle served as the PLO's legal advisor during the Madrid and Washington negotiations from 1991 to 1993.

In this book, he presents essays on terrorism, the international legal status of Jerusalem, and the Oslo accords. However, two legal memoranda that he provided to the PLO and to the head of the Palestinian negotiating team, Dr. Haydar `Abd al-Shafi, comprise both the bulk of the book and its greatest strengths.

Boyle's first memorandum draws upon the experience of Namibia to argue for the unilateral proclamation of the State of Palestine. By focusing on the interplay between the UN Charter and the Mandates for South West Africa and Palestine "awarded" by the League of Nations to Great Britain in 1920 and 1922, respectively, Boyle argues that Palestine "had already been provisionally recognized as an independent nation by article 22(4) of the Covenant of the League of Nations, which recognition is still in effect today under UN Charter article 80(1) and is thus binding upon all member states of the United Nations" (p. 31).  Using Namibia as an example where the UN proclaimed the existence of Namibia and then imposed sanctions on South Africa for its continued occupation, in the memorandum he calls upon the PLO to accept the two-state solution, declare the State of Palestine, seek its admission to the UN, press for sanctions against Israel for its continued occupation of Palestine, and negotiate with Israel on the basis of UN Resolution 242.  His advice was heeded. Following the PNC's Declaration of Independence, more than 110 states recognized the State of Palestine-more than the number of states that maintain diplomatic relations with Israel-and the UN essentially recognized Palestine (by granting it observer status).  Unlike the case of South Africa, however, the UN never has imposed sanctions against Israel for its continued occupation, despite its repeated violations of UN resolutions; today, Namibia is free but Palestine is not.

In his second legal memorandum, Boyle debunks the myth that the Palestinian negotiating team had no legal advice prior to accepting the 1993 Declaration of Principles and subsequent Oslo accords.  Reading his analysis ten years later leaves one with an eerie sense that this memo could have been written today.  At the outset, Boyle cautions the Palestinian negotiators not to sign any transitional agreement absent clarity on the final outcome: "there has never been a successful transitional arrangement unless there is a prior agreement upon the ultimate outcome of the process. . . . They [United States and Israel] are trying to get you to agree to an Interim Agreement without any understanding on the final outcome in the hope and expectation that this transitional agreement will fail and nevertheless thereafter you will have consented to your own enslavement by means of the transitional agreement" (p. 101). He provides additional advice to Palestinian negotiators: (1) distrust Israeli and American assurances: "oral assurances not put in writing are worthless and will never be honored" (p. 79); (2) negotiate an interim accord as if it were the final agreement: "draft the Interim Agreement in the full knowledge and expectation that your people might have to live with it for quite a long time no matter what the document says about some 'interconnection' with the so-called Final Settlement" (p. 81); (3) be wary of stalling tactics: "the Israelis, with American help, will simply stall, drag out, and indefinitely postpone and delay a Final Settlement while they continue to kill your people, steal your land, and drive the rest of you out of your Homes [sic]"  (p. 81); and (4) the Oslo accords will lead to "autonomy for the people" at best and not independence while effectively regularizing or legalizing the continued presence of Israeli settlers and settlements in Palestinian lands.

Boyle indeed was correct: Verbal assurances provided to the Palestinians that settlement construction would cease were violated, with the number of settlers doubling and the number of settlement housing starts increasing by over 62 percent (excluding those in East Jerusalem) during the Oslo period; Israel, with the support of the United States, failed to abide by the accords, particularly its failure to withdraw from the occupied Palestinian territories (OPT) by May 1999; in keeping with Yitzhak Rabin's declaration that "no deadlines are sacred," Israel failed to adhere to virtually every deadline set out in the accords; and, as evidenced by Ehud Barak's "generous offer" at Camp David-as though the OPT are Israeli property with which Israel can be "generous"-Barak proposed to create four, noncontiguous Bantustans, surrounded and controlled by Israel, with no control over natural resources, airspace, or borders. Israel's goal was to legitimize the illegal settlements while ensuring "autonomy," not freedom, for Palestinians.

Boyle sets out a "Palestinian Alternative to Oslo": an interim arrangement by which Palestinians' claims under UN Resolution 242 and the Fourth Geneva Convention could be preserved by demanding that Israel expressly acknowledge the applicability of 242 and the convention to the OPT (including Jerusalem) in the text of the agreement.  He further outlines the means to deal with Israel's military regulations, the presence of settlers in the OPT, and an effective solution for Jerusalem in the interim period.  All his alternatives certainly would have improved the interim period, but the proposal fails to address the means to overcome the inherent imbalance of negotiating power between an occupying power and the occupied. More important, absent from the analysis is an effective enforcement mechanism to ensure Israeli compliance with any agreement.  For more than fifty-five years, Israel has viewed itself as above the law and the Palestinians as beneath it.  For example, Israel has refused to effect the right of return for Palestinian refugees simply because they are the wrong religion; has refused to comply with at least thirty-four UN Security Council resolutions; has maintained an insatiable appetite for settlement construction in violation of international law; has refused to withdraw from the OPT for thirty-six years; and its military occupation has violated the word and intent of the Fourth Geneva Convention. Absent a means to force Israel to comply with international law, any agreement reached with Israel is worthless.

In the essay entitled "What Is to Be Done?" Boyle calls for Israel's suspension from the UN, the imposition of sanctions, the establishment of a criminal tribunal for Palestine, and suing Israel for genocide as effective legal tools to confront Israel's military occupation.  Unfortunately, as Boyle notes, international political will to effect any of these recommendations is lacking; therefore, he calls for grassroots divestment from Israel.

International legal analyses of resolutions 181 and 242 would have been welcome additions, as well as more thorough treatment of the fifty-five-year plight of Palestinian refugees.  Despite these shortcomings, the book overall provides easy-to-read legal analyses of some issues involved in the Palestinian quest for freedom and serves as a valuable historical (and legal) record for those analyzing Palestinian decision making in the late 1980s and early 1990s.

Diana Buttu is a legal advisor to the Palestine Liberation Organization

Palestine, Palestinians, and International Law
By Francis A. Boyle, Clarity Press, Inc., 2003, 205 pp.
Reviewed by Michael Gillespie
For Washington Report on Middle East Affairs
3/20/2003 – 1,613 words

          Most observers know very well that Israeli Zionists displaced and dispossessed hundreds of thousands of Palestinians in 1948 and again in 1967, creating the world’s largest, most problematic, and longest running refugee crisis.  Many understand, as well, that Israel’s continuing illegal occupation of Palestinian lands and brutal oppression of the Palestinian people is aided and abetted by the U.S. government.  But few have a comprehensive understanding of the relationship of Palestine and Israel in international law, and even among those who consider themselves knowledgeable about the Palestinian cause, questions about the legal status of Palestine and Palestinians abound.
          In a compelling new work, Palestine, Palestinians, and International Law, renowned international jurist, author, and human rights champion Francis A. Boyle provides a comprehensive history of the legal wrangling over Palestine and Palestinian rights while setting out bold new legal strategies for ending Israeli occupation of Palestinian lands and oppression of the Palestinian people.
          Palestine, Palestinians, and International Law arrives at a critical moment.  As the extremist right-wing Sharon regime tightens it grip, the humanitarian crisis in Palestine grows dangerously acute, and the Bush administration’s so-called war against international terrorism expands, few are able to predict with any confidence the future of the heroic Palestinian struggle for liberty, justice, and national sovereignty.  Boyle clarifies the confusing legal complexity of the crisis in Palestine, proposes creative new approaches to Israeli intransigence and deceit, and argues persuasively for the preservation of the established norms of international law at a time when the rule of law itself is seriously threatened.
          Boyle, who teaches international law at the University of Illinois, Champaign, is a seasoned participant in the Palestinian struggle for self-determination, human rights, and an independent state.  Drawing on his experience as legal advisor to the Palestinian Liberation Organization (PLO) on the Palestinian Declaration of Independence beginning in 1987, and later as legal advisor to the Palestinian Delegation of the Middle East peace negotiations from 1991 to 1993, Boyle brings a wealth of knowledge to the public discussion of the crucial issue at the heart of the crisis in the Middle East.  But Palestine, Palestinians, and International Law was not written exclusively for the edification of legal scholars.  A master of the history of international mandates, protocols, conventions, and resolutions that address directly or are relevant to Palestinian aspirations and rights, Boyle decisively charts a course through the legal labyrinth with a lucid and inviting style the layperson will appreciate as much for its vitality as for its clarity.
          One key to Boyle’s success is his ability to convey the intensely personal aspects of a legal drama played out on the world stage.  In an introduction that explains how, as a university student in the late 1960s and 1970s, he first came to appreciate the plight of the Palestinian people despite “The Big Lie,” Boyle candidly recalls events, encounters, and challenges that have informed his perspective as an advocate for Palestine and Palestinians.  Boyle’s reminiscences and trenchant observations, which serve to lay bare the ingrained institutional biases against Palestinians and the systemic obstacles that frequently impede their quest for justice, will resonate with experienced proponents of the Palestinian cause as they inspire and empower a new generation of activists.
          “I have been accused of being everything but a child molester because of my support for the Palestinian people,” writes Boyle. “I have witnessed the violation of every known principle of academic integrity and freedom . . . in order that basic fundamental truths in relation to this longstanding conflict in the Middle East might be suppressed.”
          Boyle’s experience and academic accomplishments (J.D., magna cum laude, 1976, A.M., 1978, and Ph.D., Political Science, 1983, at Harvard, where he served as a member of the executive committee of the Harvard Center for International Affairs and as a teaching fellow in Harvard College) have provided him with a keen sense of appreciation for the integrity of educators, journalists, authors, administrators, jurists, and other leaders who struggle to find ways to champion truth, justice, and freedom within institutions and systems that too often undermine the noble principles and thwart the very purposes they were designed to uphold and advance.  His admiration for principled educators and jurists is undisguised, while his criticism of institutional bias is fearless and scathing, as is evident in his comparison of two nationally recognized Middle Eastern Studies programs:  “. . . the University of Chicago has always had a first rate Center for Middle Eastern Studies that I have heartily recommended over the years to many prospective students all over the world seeking my advice on where to study that subject.  By comparison, Harvard’s center for Middle Eastern Studies could be viewed as effectively operating as a front organization for the C.I.A. and probably the Mossad as well.”
          Citing the fundamental precepts of international human rights law, Boyle illuminates the contradictions inherent in Israeli and American policies regarding Palestine and Palestinian rights and aspirations:  “It is a basic principle of public international law as well as of all civilized legal systems in the world today that ex iniuria non oritur ius: Right does not arise from injury!  No legal consequences whatsoever can enure to the benefit of Israel from its murder of Palestinian civilians in violation of international humanitarian law.”
          “As is true of any other state in the world today, the newly-proclaimed state of Palestine possesses the inherent right of individual and collective self-defense recognized by customary international law and article 51 of the United Nations Charter.   . . . the Palestinian people actually living under this criminal occupation have the perfect right under international law to resist the Israeli army by the use of force, just as the French Resistance did against Nazi forces occupying France during the Second World War,” writes Boyle.
          At the moment of this writing, hours before the expiration of President Bush’s 48-hour deadline for Saddam Hussein and his sons to leave Iraq or face the wrath of America’s military might, mainstream media commentators here in the USA are praising for his moral clarity a “deeply religious” president, one clearly impatient to begin his “crusade” for “infinite justice” in the Middle East.  Of course, no crisis better exemplifies the catastrophic failure of U.S. diplomacy in the Middle East than the festering wound in Palestine, and Palestine, Palestinians, and International Law reminds readers that it has been decades since U.S. foreign policy in the Middle East rested upon the foundation of sound moral and legal principles necessary to support viable and enduring international relationships in the region.
          Emphasizing the weight of history and the gravity of the worsening crisis in Palestine, which U.S. policy makers have been tempted to discount, Boyle writes:  “The American people cannot even begin to comprehend how to deal with the problem of international terrorism in the Middle East unless they first come to grips with the fact that the Regan/Bush Sr. administration was directly responsible for the perpetuation of one of the great international crimes in the post World War II era against the Palestinians and Muslim people in Lebanon.  . . . Until that time, Americans will continue to become targets of attack by these frustrated and aggrieved individuals throughout the Middle East and the Mediterranean.”
          Boyle’s penetrating analyses of Israeli and American roles in the crisis that has destabilized the Middle East for over fifty years are as cogent as his criticisms are fearless and his warnings prescient.  In his December 1, 1992, Memorandum of Law, Boyle advised the Palestinian leadership against what he perceived as a fatally flawed interim agreement, writing, “. . . because of Israeli stalling and because of American presidential election politics, there could be a twelve-year, sixteen-year, or even twenty-year interval between the Interim Agreement and the so-called Final Settlement no matter what the documents might say about some ‘interconnection.’  Indeed, if the Israelis have their way with their supporters in the Democratic and Republican parties and in the United States Congress, you will never see that Final Settlement.  The Israelis, with American help, will simply stall, drag out, and indefinitely postpone and delay a Final Settlement while they continue to kill your people, steal your land, and drive the rest of you out of your homes.”
          Two chapters, titled “Preserving the Rule of Law in the War Against International Terrorism” and “What Is To Be Done?” are of special interest.  The latter offers insight and guidance regarding the future of global opposition to state terrorism, including Boyle’s observations on the establishment of a comprehensive campaign for divestment and disinvestment in Israel.  It was Boyle, who, in a November 30, 2000, speech at Illinois State University in Bloomington-Normal, urged into existence the divestment campaign against Israel that is now in progress on college and university campuses across the USA (See: http://www.divest-from-israel-campaign.org/).
          In Palestine, Palestinians, and International Law readers will find the texts of several helpful and inspiring documents, including The Geneva Declaration on Terrorism (1987), The Palestinian Declaration of Independence (1988), and Boyle’s own Memorandum of Law known as the Palestinian Alternative to Oslo (1992), as well as relevant sections of The International Convention on the Suppression and Punishment of the Crime of Apartheid (1973).  Appendices include a comprehensive “Bibliography of Genocidal/Apartheid Acts Inflicted by Israel on the Palestinians During the Al Aqsa Intifada,” as well as Boyle’s partial “Bibliography on the Middle East and International Law,” both of which will prove invaluable to serious students of the crises in Palestine and the Middle East.
          Palestine, Palestinians, and International Law is a book that readers and activists will take great pleasure and find encouragement in, a book that scholars, researchers, and other truth seekers will turn to for years to come.

Michael Gillespie, Professor of Engineering
MEDIA MONITORS NETWORK
For Washington Report on Middle East Affairs