Boyle: Palestine, Palestinians, and International Law
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.