International Law and Israel’s War on Gaza

When the Oslo Document was originally presented by the Israeli government to the Palestinian Delegation to the Middle East Peace Negotiations in the Fall of 1992, it was rejected by the Delegation because it obviously constituted a bantustan. This document carried out Menachem Begin’s disingenuous misinterpretation of the Camp David Accords–expressly rejected by U.S. President Jimmy Carter–that all they called for was autonomy for the people and not for the land too.

Soon thereafter, unbeknownst to the Delegation and to almost everyone else, the Israeli government opened up a secret channel of negotiations in Norway. There the Israeli government re-presented the document that had already been rejected by the Palestinian Delegation in Washington, D.C. It was this document, with very minor modifications, that was later signed at the White House on 13 September 1993.

Before the signing ceremony, I commented to a high-level official of the Palestine Liberation Organization: “This document is like a straight-jacket. It will be very difficult to negotiate your way out of it.” This PLO official agreed with my assessment and responded: “Yes, you are right. It will depend upon our negotiating skill.”

Of course I have great respect for Palestinian negotiators. They have done the best they can negotiating in good faith with the Israeli government that has been invariably backed up by the United States. But there has never been any good faith on the part of the Israeli government either before, during or after Oslo. Ditto for the United States.

Even if Oslo had succeeded, it would have resulted in the imposition of a bantustan upon the Palestinian People. But Oslo has run its course! Therefore, it is my purpose here today to chart a NEW DIRECTION for the Palestinian People to consider.

An agenda for an international legal response:

First, we must immediately move for the de facto suspension of Israel throughout the entirety of the United Nations System, including the General Assembly and all U.N. subsidiary organs and bodies. We must do to Israel what the U.N. General Assembly has done to the genocidal rump Yugoslavia and to the criminal apartheid regime in South Africa! Here the legal basis for the de facto suspension of Israel at the U.N. is quite simple:

As a condition for its admission to the United Nations Organization, Israel formally agreed to accept General Assembly Resolution 181 (II) (1947) (partition/Jerusalem trusteeship) and General Assembly Resolution 194 (III) (1948) (Palestinian right of return), inter alia. Nevertheless, the government of Israel has expressly repudiated both Resolution 181 (II) and Resolution 194 (III). Therefore, Israel has violated its conditions for admission to U.N. membership and thus must be suspended on a de facto basis from any participation throughout the entire United Nations System.

Second, any further negotiations with Israel must be conducted on the basis of Resolution 181 (II) and its borders; Resolution 194 (III); subsequent General Assembly resolutions and Security Council resolutions; the Third and Fourth Geneva Conventions of 1949; the 1907 Hague Regulations; and other relevant principles of public international law.

Third, we must abandon the fiction and the fraud that the United States government is an “honest broker.” The United States government has never been an honest broker from well before the very outset of these negotiations in 1991. Rather, the United States has invariably sided with Israel against the Palestinians. We need to establish some type of international framework to sponsor these negotiations where the Palestinian negotiators will not be subjected to the continual bullying, threats, harassment, intimidation and outright lies perpetrated by the United States government.

Fourth, we must move to have the U.N. General Assembly impose economic, diplomatic, and travel sanctions upon Israel pursuant to the terms of the Uniting for Peace Resolution (1950), whose Emergency Special Session on Palestine is now in recess.

Fifth, the Provisional Government of the State of Palestine must sue Israel before the International Court of Justice in The Hague for inflicting acts of genocide against the Palestinian People in violation of the 1948 Genocide Convention!

Sixth, An International Criminal Tribunal for Israel (ICTI) can be established by the UN General Assembly as a “subsidiary organ” under article 22 of the UN Charter. Article 22 of the UN Charter states the UN General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions. The purpose of the ICTI would be to investigate and Prosecute suspected Israeli war criminals for offences against the Palestinian people.

On January 4, 2009, Nobel Peace Laureate, Mairead Maguire wrote to the UN Secretary General, Ban Ki-Moon and Father Miguel D’Escoto President of United Nations General assembly adding her voice to the many calls from International Jurists, Human rights Organizations, and individuals, for the UN General Assembly to seriously consider establishing an International Criminal Tribunal for Israel in view of the ongoing Israeli atrocities against the people of Gaza and Palestine.

Maguire said:

In November 2008 I visited Gaza and was shocked at the suffering of the people of Gaza, being under ‘siege’ as they are for over two years. This collective punishment by the Israeli Government, has lead to a great humanitarian crisis. Collective punishment of the civilian community by the Israeli Government breaks the Geneva Convention, is illegal and is a war crime and crime against humanity.

Instead of protecting the civilian community of Gaza and relieving their Suffering by lifting the ‘siege’, the Israeli military have carried out 7 days consecutive bombardment of civilians, by sea and air. Dropping Israeli bombs from the air and sea on unarmed civilians, many women and children, destroying mosques, hospitals, and and homes, and infrastructure, is illegal and constitutes war crimes. The deaths of people in Gaza is now over 600 with over 2,500 people injured – many women and children. The infrastructure of Gaza has been destroyed, and the people cut off from the world – including journalists, Humanitarian workers, locked out of Gaza, and unable to go to the aid of the people.

The UN must help uphold Human rights and Justice for Palestinian People, by seriously considering establishing an International criminal tribunal for Israel, (ICTI) in order that Israeli Gov., be held accountable for war crimes.

: Professor Boyle’s call for an International Criminal Tribunal on Israel is now being circulated by member states of the UN General Assembly.

University of Illinois Law Professor Francis A. Boyle served as Legal Advisor to the Palestine Liberation Organization on the 1988 Palestinian Declaration of Independence; to the Palestinian Delegation to the Middle East Peace Negotiations from 1991 to 1993; and to H.E. Chairman and President Yasser Arafat. The story is told in his book Palestine, Palestinians and International Law (Clarity Press: 2003). He can be reached at: FBOYLE@LAW.UIUC.EDU. Read other articles by Francis A..

12 comments on this article so far ...

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  1. RH2 said on January 26th, 2009 at 2:08pm #

    Professor Boyle,

    We have learned from South Africa that you can conquer apartheid without bullets. Your solution steps above can only be achieved, if the Americans gather unarmed in mass demonstrations time and again, time and again, time and again in front of the doors of the White House (since January 20th the Black House) and demand cleansing the administration from Zionist vermin, serving their interests at home (labor, de-miseducation, health … etc.) and cutting down imperial plots and dominance claims.

    What about the rest of NATO? Well, if the Americans obtain the required change, the Europeans will be obliged to dance softly to the new music. But if the Americans stay at home watching Fox News and eating popcorn, which they will probably keep doing, then the future for many, many people on earth including Palestinians is indeed not nice at all.

    Thank you

  2. marc said on January 26th, 2009 at 4:07pm #

    Zionists are no more vermin than Afrikaaners are, that kind of language is counterproductive.

    Americans need to demand the disarming of the Israeli state because without our dollars, they could not perpetrate war crimes on such an appalling scale and with our tax dollars, we are complicit.

    One good step to take would be to bring Rahm Emanuel’s dual citizenship up as an issue. Most Americans would want the president’s chief of staff to have but one sovereign allegiance.

    It makes sense to pursue the path suggested in the article through the UN as well as to pivot the discussion towards a single state solution.

  3. giorgio said on January 26th, 2009 at 7:12pm #

    “We must do to Israel what the U.N. General Assembly has done to the…. criminal apartheid regime in South Africa!”

    What a laugh! It does not take a rocket scientist to see that there is a world of difference between Israel and South Africa.
    Israel dominates most of the western world media, has the USA by its ‘shorts and curlies’ whereas South Africa did not even have anything in the US resembling AIPAC. Europe eventually turned against SA, not so much for any humanitarian reasons but simply because it saw that SA was the last White dominated country in Africa and had to end, sooner rather than later, like every other colonial regimes did. Even so the USA, Britain and Europe supported SA for as long as it could until it became such an embarrassment that they had to dump it, and, thank God, that there was a Nelson Mandela around to help make the transition go as smoothly as it did.

    Is Israel such an embarrassment today? Not in the least! It’s seen by most western governments as a superstar, an heroic nation, born like the Phoenix from the ashes of the Holocaust… Who would, in his right mind, dare question the morality of a nation with such ‘impeccable’ credentials? Not even Pope Ben Rat XVI, who like his predecessor, remains as silent as mouse…

  4. Andres Kargar said on January 27th, 2009 at 12:42am #

    Someone needs to tell the European Union that their ‘International Criminal Court’ and all the other so-called ‘international bodies’ in the Hague are nothing but a joke, nothing but a tool to carry out the politics of a few Western countries.

    Unless they have the moral spine to bring charges against the head war criminals such as George W Bush et al and the corrupt and criminal Zionist leaders of Israel, no one in the rest of the world is going to take them seriously.

    Yes, there was a time when the colonies of these countries had no power or other option to question these Western myths of ‘civilization’ while they committed their Holocausts, Hiroshimas, and Nagasakis, but wake up gentlemen — the party is over and the sun has already set on your empires.

  5. Red Rick said on January 27th, 2009 at 3:57am #

    There are many illusions loose in the world. One such is that the days of colonial empire are behind us, they are not. Today we have an empire of economic forces rather than strictly military occupation to bend nations to the will of the industrialised few.

    Another such illusion is that organisations such as NATO, the UN or any such are actually able to sway the intent of an Israel. These organisations, and especially the UN certainly are capable of performing humanitarian efforts and doing so well. Yet they are not constituted to oppose the intentions of the West but to assist in their success.

    Israel ,being central to the Middle East oil and unrest, is a tool, a very willing one to be sure but a tool nevertheless. To believe that there exists pressure enough to sway US foreign policy and Israeli compliance in that policy is, in my opinion, naive.

    There will, of course, always be strong voices and people of good faith and conscience speaking out against the treatment of such as the Palestinian people. I do not imply that we are a bad people, only that we live under a bad system. The will of the corporation trumps the compassion of those who seek justice. Unless and until we understand that , in order to bring justice to the disenfranchised and the homeless, we first must understand that we ourselves have only the illusion of justice, even here in the land of the free and the home of the brave.

  6. Sajjad Hasan said on January 27th, 2009 at 6:36am #

    Well about the collective punishment of Gazans, Zionists are not different from Nazis. Why not call a new Nuremberg. Yes Zionists have international media, EU and US Government in their pocket. And thanks to media coverage, people in west see Israel as the victim, not the Palestinians. May be Henry Ford was right. And then we are asked,

    ” Why do you hate us?”
    Why we hate them this much?
    They didn’t give us a single reason to love them.

    And as a reaction our peoples see tyrants like “You Know Who” (People with the EYE will know) as their heroes and saviors. What a wonderful world we live in.

  7. giorgio said on January 27th, 2009 at 1:11pm #

    Jewish eth(n)ics

    Gaza war rabbinical edict draws protest in Israel

    01.26.2009 | Reuters

    JERUSALEM, Jan 26 (Reuters) – Israel’s chief military chaplain distributed a booklet to soldiers fighting in the Gaza conflict containing a rabbinical edict against showing mercy to enemies, an Israeli human rights group said on Monday.

    The group, Yesh Din, which says it is dedicated to defending human rights in territory occupied by Israel, called on Defence Minister Ehud Barak to dismiss the chief chaplain, Rabbi Avichai Rontzki, who holds the rank of brigadier general.

    A booklet handed out by Rontzki during the offensive in the Hamas-ruled Gaza Strip quotes an ultra-nationalist Israeli rabbi saying that showing mercy towards a “cruel enemy” was “terribly immoral” and advising soldiers they were fighting “murderers”.

    Yesh Din said the rabbi’s message could have been interpreted by soldiers as a call to act outside the confines of the international laws of warfare.

    International calls to investigate Israel over alleged war crimes during its 22-day offensive against Gaza prompted Prime Minister Ehud Olmert on Sunday to promise military personnel state protection from foreign prosecution.

    Israel faced global criticism over its assaults in densely populated areas of Gaza, where medical officials put the Palestinian death toll at 1,300, including some 700 civilians.

    Ten Israeli soldiers and three civilians were killed during the campaign Israel launched with the declared aim of ending Hamas rocket attacks on its south.

    Hamas clerics have often called for Israeli blood to be spilled. The Islamist militant group carried out dozens of suicide bombings in Israel before and during a Palestinian uprising that erupted in 2000.

    An Israeli spokesman had no immediate comment on the booklet, written by Rabbi Shlomo Aviner, a main figure in the Jewish settler movement in the occupied West Bank. A photo of its title page, appeared in Israel’s left-leaning Haaretz newspaper on Monday. (Writing by Joseph Nasr, Editing by Katie Nguyen)

  8. bozh said on January 27th, 2009 at 3:04pm #

    whether we like to admit or not, there is just one specie of humans.
    so what, then?
    we are part of nature and nature can be extremely cruel and also very good.
    so, present war criminals are extremely brutal and most of them may die before nature turns ugly against their descendants.
    we can be certain retribution is coming!
    be good to nature and nature will be good to you!thnx

  9. Bob said on January 27th, 2009 at 4:23pm #

    Sieg Heil!!!!!

  10. Bob said on January 27th, 2009 at 4:24pm #

    Sieg Heil!!!!!

    (Hail victory)
    (over the Jews that is!)

  11. giorgio said on January 27th, 2009 at 4:38pm #

    Here is a quote from a guy who has insider knowledge of Judaism:

    Our civilization can only survive in a climate of freedom of thought and respect for fundamental human rights. All religions, ideologies and political systems should not deny an opposition the right to exist.

    The totalitarian Zionism of today is the only ideology that systematically wants to make the very existence of an opposition a criminal offence!

    Before we can coexist, we must first be able to exist. That right is denied those who are opposed to the Jewish domination. This fanaticism and obscurantism is a serious threat against our civilization and against world peace.

    Each one of us should do something concrete to defend freedom!

    – Professor Israel Shahak
    Author of “Jewish History, Jewish Religion
    The Weight of Three Thousand Years”

  12. kalidas said on January 27th, 2009 at 8:07pm #

    Speaking of quotes, here’s what the CHIEF JUSTICE of the UNITED STATES SUPREME COURT, Harlan Fiske Stone, at the time of those “trials,” had to say about Nuremberg …

    In private, Stone was vituperative; writing to a long-time friend, he said:

    “Jackson is away conducting his high-grade lynching party in Nuremberg. . . . I don’t mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.”