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Francis Boyle’s “Palestine Palestinians and International Law”


Francis Boyle is a distinguished University of Illinois law professor, activist, and internationally recognized expert on international law and human rights. He also lectures widely, writes extensively, and authored many books, including the subject of this review: "Palestine Palestinians and International Law." In addition, he’s represented, advised and/or testified pro bono in numerous cases involving anti-war protesters and activists, the death penalty, human rights, war crimes and genocide, nuclear policy and bio-warfare, Canada‘s Blackfoot Nation, the Nation of Hawaii, and the US Lakota Nation.

 

Boyle is currently a leading proponent of an effort to impeach George Bush, Dick Cheney and other administration figures for their crimes of war, against humanity and other grievous violations of domestic and international law. Earlier in 1987 he was the Palestinian Liberation Organization’s (PLO) legal advisor in the drafting of its 1988 Declaration of Independence. Then from 1991 – 1993, he served in the same capacity for the Palestinian Delegation to the Middle East Peace Negotiations in the run-up to the Oslo process.

 

Palestine Palestinians and International Law reviews his work during that period, prior 1980s and earlier events that led to it, and what followed in its aftermath. Like all Boyle’s work, it’s rich in international law and makes a powerful, easy to follow case for Palestinian self-determination. Relevant events and the law are reviewed:

 

– from the 1922 League of Nations Mandate; 

 

– to the 1947 UN Partition Plan;

 

– to the 1987 first Intifada;

 

– to the 1988 Palestinian Declaration of Independence;

 

– to around 130 nations diplomatically recognizing the Palestinian state;

 

–to the UN granting Palestine all rights as a member state except to vote;

 

– to Oslo‘s betrayal;

 

– to the second Intifada and shortly thereafter over the book’s timeline through 2002.

 

Standing in Solidarity with the Palestinian People

 

It’s been true about Boyle for over 20 years for a man who’s "not Arab….not Jewish….not Palestinian….(and) not Israeli." He’s an international law expert and a powerful advocate for enforcing it. As a student nearly 40 years ago, he became convinced that:

 

– "the world had inflicted a terrible injustice upon the Palestinian people in 1947 – 1948;

 

– there would be no peace in the Middle East until this injustice was somehow rectified; and

 

– the Palestinian people were certainly entitled to an independent nation state of their own."

 

He notes how prominent people like himself are treated -  like "the proverbial skunk at (a) garden party" but cites the early influence of others – the University of Chicago‘s Professor Leonard Binder, his Harvard doctoral supervisor Professor Stanley Hoffman and others who’ve proudly supported Palestinian rights.

 

After Israel invaded Lebanon in 1982, Boyle tried to organize what little opposition there was among international law professors. Few had the courage to speak out the way Boyle always does. He also wrote an essay included in a later book: "Dissensus Over Strategic Consensus." It was a comprehensive critique of the Reagan administration’s Middle East policy from an international law perspective. In other writings as well he covered Reagan’s bogus "war against international terrorism" with special emphasis on the Middle East.

 

Little has changed to the present with all administrations since Reagan supporting Israel‘s "serial massacres upon the Palestinian people." Boyle recounts how two decades after the June 1967 war he and Ramsey Clark were invited to a scheduled UN 20th Anniversary Commemorative Session. They both spoke on the Palestinians’ right to declare an independent state under international law and practice. It’s the first step before creating a Palestinian government, and Boyle addressed it in a Memorandum of Law for the PLO to consider. He completed it just as the first Intifada erupted in December 1987, titled: "CREATE THE STATE OF PALESTINE."

 

It lay dormant until the PLO UN Mission discussed it in July 1988. Boyle was asked: "Why should the PLO create an independent Palestinian state?" His answer: If you don’t, "you will forfeit the moral right to lead your People." On November 15, 1988, the Palestine National Council (PNC) adopted Boyle’s Memorandum and "proclaimed the existence of the new independent state of Palestine." Immediately after the Reagan denied Yasser Arafat a visa to attend the UN General Assembly. Instead, he spoke at a Special Session in Geneva. It was called so he could address the world body as an official head of state. Further, this was "the real start of the Middle East Peace Process – by the Palestinian people themselves."

 

In addition, Boyle’s prediction came true. Palestine was an "instantaneous success" and eventually achieved de jure diplomatic recognition from about 130 states. It also became a de facto, not de jure, UN member, but it’s "only a matter of time."

 

Creating the State of Israel

 

The material below reviews Boyle’s "CREATE THE STATE OF PALESTINE" Memorandum of Law. In March 1988, he presented it to the PLO, and it’s now a public document. He believes that without Israeli and American acquiescence, the rest of the international community can play a positive role in creating and preserving a legal and political status quo conducive to a final peace settlement based on a two-state solution. He cites the 1946 precedent when South Africa illegally and unsuccessfully tried to annex South West Africa (SWA), now known as Namibia.

 

Just as the League of Nations awarded Britain the Mandate for SWA in 1920, it did as well for Palestine in 1922. In his 1918 Fourteen Points Address, Woodrow Wilson addressed the issue of world peace and the importance of granting newly liberated territories self-determination to preserve it. The Paris Peace Conference and Treaty of Versailles focused on Central and Eastern Europe. People in Africa, the Middle East and Far East "would have to wait."

 

Article 22 of the Covenant of the League of Nations established a mandate system – in three categories:

 

– Class A: sufficiently developed states to be provisionally recognized as independent nations; Palestine was later included;

 

– Class B: needing further development; included were Western and Central African states; and

 

– Class C: included South West Africa to be "administered under the laws of the Mandatory as integral portions of its territory."

 

The League of Nations Council had jurisdiction over Mandatories while the actual Mandates were international treaties between the Council of the League and mandatory powers. This system remained in place until the end of WW II and creation of the UN. Article 77 (1)(a) of its Charter provided that League mandated territories be placed under UN trusteeship via an agreement between the mandatory power and General Assembly.

 

Such agreements for the SWA and Palestine Mandates were never concluded. South Africa refused the former, and Britain let the UN General Assembly take over and adopt its 1947 Partition Plan. It was never implemented because conflict intervened and became Israel’s 1948 "War of Independence."

 

As for SWA, the General Assembly adopted Resolution 2145 in 1966. It declared the Mandate terminated and that South Africa had no legal right to administer the territory. It also decided SWA would become independent according to the wishes of its people. In 1968, General Assembly Resolution 2372 affirmed it by redesignating the new nation Namibia. In a June 1971 advisory opinion, the World Court held that South Africa’s continued presence in the country was illegal and its occupation must end. 

 

In 1973, the General Assembly recognized the South West African People’s Organization (SWAPO) as the Namibian people’s legitimate representative. Finally in September 1978, the Security Council adopted Resolution 435 establishing the implementing independence machinery for the country. Following UN supervised elections, Namibia should have been free and independent. However, the Reagan administration blocked it. It took a 20 year war of independence before it was achieved in 1990. Based on the Namibian precedent, Boyle proposed in the 1980s that "the Palestinian people proceed forthwith to create the state of Palestine."

 

He states certain characteristics must be in place for the world community to recognize it:

 

– "a determinable territory;" it doesn’t have to be fixed and determinate; its borders may be negotiated; the new state is comprised of Gaza, the West Bank and East Jerusalem; Palestinians have lived there for millennia; they’re entitled to it as their nation state;

 

– a fixed population;

 

– a functioning government; in 1988, Yasser Arafat declared the PLO as Palestine’s Provisional Government; and

 

– the capacity to enter into relations with other states; about 130 nations recognize Palestine; others haven’t because it lacks effective "control" of its territory; still others disagree and say Israel isn’t in control; it’s an occupier; on December 15, 1988, The General Assembly recognized Palestine’s legitimacy and accorded it UN observer status;

 

Palestine can easily satisfy these criteria, and all UN Charter states (including the US and Israel) have provisionally recognized Palestinians an independent in accordance with UN Charter article 80(1) and League Covenant article 22(4). Further, as the League’s successor, the General Assembly has exclusive legal authority to designate the PLO as the Palestinian peoples’ legitimate representative.

 

The Palestine National Council (PNC) is the PLO’s legislative body and is empowerered to proclaim the existence of Palestine. According to the binding 1925 Palestine Citizenship Order in Council, Palestinians, their children and grandchildren are automatically citizens of the new state. In addition, diaspora Palestinians no longer would be stateless. Those living in Israel and Jordan would have dual nationalities, and those in the Occupied Territories would remain "protected persons" according to the Fourth Geneva Convention – until a final peace settlement is reached.

 

The Proclamation of Independence must then create the Government of Palestine (GOP). As a final step, it should direct the GOP to claim the right of Palestine and its people to UN membership. It requires approval by both the Security Council and General Assembly according to five conditions. Applicants must be:

 

– a state;

 

– peace loving;

 

– accept the Charter’s obligations;

 

– be able to carry them out; and

 

– be willing to do it.

 

The US has provisionally recognized Palestine as an independent nation. According to UN Charter Article 80(1), it’s barred from reversing its position by vetoing a Security Council Resolution calling for Palestine’s UN admission. Any veto would be illegal and subject to further Security Council action under the Charter’s Chapter VI. Ultimately, the Security Council only recommends admissions. The General Assembly affirms them by a two-thirds majority.

 

It can go further as well by enacting a complete international legal regime for the new state and require all members refrain from recognizing Israel’s illegal occupation. Boyle suggests even harsher measures – Charter Article 41 authorized sanctions against the Israeli government.

 

Then there’s the right to vote as a member state. The UN Charter Article 80(1) and League Covenant Article 22(4) mandates the General Assembly to let Palestinians participate in UN activities as a member. Voting rights should follow.

 

The original Mandate also is relevant. Under UN Charter Article 80(1), several of its articles empower the General Assembly to recognize the Palestinian state and take all necessary measures to end Israel’s illegal occupation. The Mandate contemplated the creation of the state and Palestinian government and the right of its people to live freely therein.

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