From MERL@middleeast.org Fri Nov 17 10:21:18 2000
Date: Thu, 16 Nov 2000 22:54:23 -0600 (CST)
From: MER <MERL@middleeast.org>
Palestinian Independence Day Reflections
Organization: MiD-EasT RealitieS
The very concept of
international law is rather unsettled.
Whereas some lawyers, such as Francis Boyle, place a great deal of
international law, others are more dismissive
suggesting that in the world as currently organized what is said to be
lawful first of tends to be derivative of those who have power and
force and second when power and
international law diverge it is
nearly always power that triumphs, just or unjust. The case of Iraq
and Kuwait, for instance, was not brought to any international court
for decision -- that was done by armies. And as much as former
U.S. Attorney General Ramsey Clark has held mock trials with jurists
from throughout the world charging his own country with
crimes, most Americans haven't even heard of this development.
The very concept of
international law is at best vague and
uncertain, especially when applied to the powerful. At best human
society is in the embryonic phases of establishing norms, procedures,
and most of all accepted adjudicatory bodies.
At the present stage of legal development at the international level,
national sovereignty remains the primarily dominant concept,
with military force still usually the decisive element determining who
prevails, and indeed whose concepts of
international law are
applicable. Furthermore, for many years now the many resolutions
passed by both the U.N. General Assembly and the Security Council
regarding Palestine have had little effect -- nearly everything has
been decided by military force and power politics.
Professor Francis Boyle is a very energetic and committed man who has
been extraordinarily active for many years on matters relating to
human rights and international law. At various times he has been
consulted by and served as Legal Adviser to the PLO and Palestinian
groups. But Professor Boyle's commitment and industry are not
necessarily matched by good political and p.r. judgements for which he
has been sometimes rightly criticized, and even dismissed. And there
are many as well who will not fully agree with Prof. Boyle's
conception that the kind of Arafat-pursued
is as just and workable as the Professor suggests.
Even with these considerations, however, Prof. Boyle's long and
sincere commitments, his passionate pursuit of international legality
and human rights, and his continual determination to stand up for
Palestinian Statehood long before that became a popular position, have
earned him the right to have his views considered and his
determination respected. What follows are comments made by
Prof. Boyle today, and a year ago, on the occasion of yet another
concept which is rather unsettled:
Despite the terrible suffering of the Palestinian People, I write to
commemorate the Twelfth Anniversary of the Declaration of the
Palestinian State by the Palestine National Council meeting in Tunis,
and also its Proclamation in the Courtyard in front of Al Aksa Mosque
on Independence Day after the close of prayers, on November 15,
1988. Notice that the Palestinian People proclaimed their own
In the Name of God, the Compassionate, the
Merciful, at their Holiest Site in Jerusalem, the Capital of
Palestine, under the guns of the Israeli occupying army. The Creation
of the Palestinian State was a direct result of the heroic struggle
and sacrifices made by the Palestinian People during the first
Intifada starting in December of 1987. The same will be true for the
final liberation of the Palestinian State from the illegal and
genocidal Israeli occupation forces.
Today the State of Palestine has de jure recognition as an Independent State by about 125 other States. The State of Palestine has de facto recognition from almost all of Europe. Indeed, the European Union has promised to accord Palestine de jure recognition as an Independent State. The State of Palestine has de facto Membership in the United Nations Organization. Palestine has the votes for formal admission to the United Nations Organization as well. The only thing keeping Palestine out of the United Nations de jure is the illegal threat of a veto by the United States Government. There will be no peace in the Middle East until the Palestinian People are able to enjoy their own Independent State of Palestine, and as a de jure Member State of the United Nations Organization.
Francis A. Boyle
Professor of International Law
Happy Palestine Independence Day!
by Francis A. Boyle*
Professor of International Law
Date:12 November 1999
The self-styled Final Status negotiations between the Palestinians and the Israelis have now began in earnest. The goal of obtaining Peace with Justice for All Peoples in the Middle East can only be achieved on the basis of a two-state solution for the Palestinian People and the Jewish People, respectively. On November 15, 1988, the independent state of Palestine was proclaimed by the Palestine National Council (PNC), meeting in Algiers, by a vote of 253 to 46, as well as in front of Al-Aksa Mosque in Jerusalem, the capital of the new state, after the close of prayers. A remarkable opportunity for peace was created by the Palestinian Declaration of Independence because therein the PNC officially endorsed this two-state solution in order to resolve the basic conflict.
This Declaration of Independence explicitly accepted the U.N. General Assembly's Partition Resolution 181(II) of 1947, which called for the creation of a Jewish state and an Arab state in the former Mandate for Palestine, together with an international trusteeship for the City of Jerusalem. The significance of the PNC's acceptance of partition in the Palestinian Declaration of Independence itself cannot be overemphasized. Prior thereto, from the perspective of the Palestinian People, the Partition Resolution had been deemed to be a criminal act that was perpetrated upon them by the United Nations. Today, the acceptance of the Partition Resolution in their actual Declaration of Independence signals a genuine desire by the Palestinian People to transcend the past 50 years of history and to reach an historic accommodation with Israel on the basis of a two-state solution. The Declaration of Independence is the foundational document for the state of Palestine. It is determinative, definitive, and irreversible.
In this regard, it should be emphasized that Israel officially accepted the U.N. Partition Resolution in its own Declaration of Independence and as a condition for its admission to membership in the United Nations Organization. The 1947 U.N. Partition Plan called for the Palestinian People to have a much larger section of historic Palestine for their state than do the 1967 boundaries contemplated by U.N. Security Council Resolutions 242 (1967) and 338 (1973). By comparison, today the Palestinian People would be prepared to accept the 1967 boundaries for the state of Palestine, which would consist essentially of the West Bank, Gaza Strip and East Jerusalem. The PNC's solemn acceptance of Resolutions 242 and 338 represented a significant concession by the Palestinian People for the benefit of the Israeli People.
Moreover, as another express condition for its admission to the United
Nations Organization, the government of Israel officially endorsed and
agreed to carry out U.N. General Assembly Resolution 194(III) of 1948,
which determined that Palestinian refugees have a right to return to
their homes, or that compensation should be paid to those who choose
not to return. Furthermore, that same article 13(2) of the 1948
Universal Declaration of Human rights which Soviet Jews relied upon to
justify their emigration from the former Soviet Union provides that:
Everyone has the right...to return to his country. That
absolute right of return clearly applies to Palestinian refugees
living in their diaspora who want to return to their homes in Israel
and Palestine. The state of Israel owes a prior legal obligation to
resettle Palestinian refugees who want to return home before it
undertakes the resettlement of Jews from around the world.
Quite obviously, a remarkable opportunity for peace was created by the Palestinian Declaration of Independence. What is needed now from the Clinton administration is the same type of dynamic leadership and will for peace that was demonstrated by the Carter administration over two decades ago. The governments of Israel and the United States must seize this historic moment. Otherwise, history will most probably not give any of us a second chance for obtaining Peace with Justice for All Peoples in the Middle East.