Interview Of Francis A. Boyle re Hague And The Wall
Among other actions, Boyle was the first, to the best of our knowledge, to file a lawsuit outside Israeli courts against an Israeli official to hold him accountable for the deaths of Palestinians. This Boyle did when he sued Israeli General Yaron with respect to the massacre of helpless and defenseless Palestinians at the refugee camps of Sabra and Shatilla. The case was lost when the Reagan Administration entered the lawsuit on the side of General Yaron. It is reported in the Palestine Yearbook of International Law.
Boyle served as Legal Adviser to the Palestine Liberation Organization on the Palestinian Declaration of Independence of 15 November 1988 and has advised the PLO at other times as well, including during peace negotiations from 1991 to 1993.
In this interview, he is asked to comment on the hearing now before the International Court of Justice in the Hague questioning the legality of the Israeli wall built in Palestine.
INTERVIEW
Q : What will be the significance of any decision decided in the International Court? Certain members of the media have stated that the Court's opinion will have no consequences.
F.BOYLE:Unfortunately, there is a lot of misunderstanding as to the significance of the decision. Of course, it will be an advisory opinion, that will be submitted to the United Nations General Assembly on the matters before it.
It will have consequences for at least two reasons:
One - what the World Court says about the Wall and its accompanying circumstances will constitute an authoritative enunciation about the rules of international law with respect to the entire situation.
Two - that statement of the rules of international law can then be acted upon by the United Nations General Assembly, for example, by recommending sanctions against Israel and also will have consequences for other governments of the world that will have to refer to what the world court ruled in this opinion and will have to act in accordance with it.
So it is incorrect to state that this opinion will have no consequences. It is not simply a public relations exercise and I don't believe most people understand that. The Israeli government understands this well and have adopted a comprehensive campaign to minimize the significance of what the world court is doing. So they understand the importance of this ruling.
Q: You're assuming three will be a ruling ?
Boyle: Yes, I believe there will be.
The last time something like this came up was when there were dual requests for advisory opinions from the World Court by the World Health Organization(WHO) and the General Assembly on the legality of nuclear weapons. The World Court. declined the request of the WHO on the grounds that the legality of nuclear weapons did not fit with its mandate of world health organizations. But they granted the request of the General Assembly on the grounds that the General Assembly has the authority and the mandate to deal with pretty much anything related to international peace and security.
So, of course, the World Court can decline to give an advisory opinion, there is no obligation on its part to give an advisory opinion, but I could not imagine its not responding to the request by the General Assembly to respond. And if you read the sources in Israel, they are contemplating how to deal with it.
Alan Dershowitz of Harvard Law School, and others like him, is saying it is a kangaroo court and all the hatchet people in the US will immediately start to say this is a kangaroo court. And it seems to me that the Palestinians have to start planning their own public relations strategy to the American people about why the decision is important, why it matters.
Q : Many of the Western nations filed objections to the court's hearing this issue, stating that it is a political issue. What is your view of this argument?
F.BOYLE : That's ridiculous. That is the result of the strategy mounted by the Israeli government and the Israeli lobbies in all these countries to undercut the significance of the ruling. The General Assembly asked a very narrow technical legal question about this wall. And that is what the court will answer. The normal jurisprudence of this court is that it will answer a technical legal question even if it has profound political consequences. And all these European governments know this. They are simply siding with Israel by taking this position. This is nothing new. The E.U. hasn't lifted a finger to help the Palestinians against the Israelis and the U.S., and they aren't going to. The fact that they have taken such a legally preposterous position simply betrays the fact that these governments are working with Israel against the Palestinians.
Q : What will the Court have to consider to make an advisory opinion?
F.BOYLE : They will have to get into the situation of the occupation itself, the occupation regime and the laws that relate to occupation. That cannot be avoided. They will have to apply international laws of belligerent occupation.
Q : Do you currently have any affiliation with the Palestine Liberation Organization?
F.BOYLE :Yes, I do give them advice from time to time. Whether they take it is another matter.
Q :What, if any, legal cases have you been involved with related to the occupation of Palestine?
F.BOYLE :I was the person who sued General Yaron with respect to the Israeli massacre of Palestinians at Sabra and Shatilla. To the best of my knowledge, that was the first time any lawyer outside Israeli courts attempted to hold any Israeli official accountable.
I lost it when the Reagan Administration entered the lawsuit on the side of General Yaron. It is in the Palestine Yearbook of International Law. Vol 4 or 5.
Q : Have you yourself taken any formal position with respect to the Wall?
The important point to keep in mind is that, for the first time ever, the International Court of Justice invited the state of Palestine to appear and argue a case. This is a major breakthrough for the Palestinians. Right now the state of Palestine has basically de facto UN membership. They are treated as if they are a UN member state, except for the right to vote. As it stands, the World Court has basically ratified their status as a state by asking them to appear and argue their case, as Ambassador Al-Kid did. This is a very significant breakthrough for the Palestinians since they are being treated as a state body by the General Assembly and the International Court of Justice.
It was already a major victory for Palestine to be invited to argue their position.
Q : Is there any advantage for Israel not to participate, as it has chosen?
F.BOYLE : They don't have to participate. If they don't want to.
Q : Some argue that the wall is used as a weapon:
F.BOYLE :Professor Noam Chomsky wrote that. I have great respect and admiration for him. He and I are friends. He is a very courageous human being. The court is going to look at this from a legal perspective. In addition to violating the laws of belligerent occupation and international humanitarian law, Israel is attempting to establish an illegal de factor border. So all those issues, I suspect, will be addressed by the World Court in its advisory opinion.
Unilateral Actions
Q :Given the wall is a unilateral action as are many acts by Israel, how do you explain, if you can, the frequent resolutions by the US Congress threatening the Palestinians if they ever take unilateral action, such as declaring themselves a state.
F.BOYLE :We already declared Palestine a state on November 15, 1988, and we have de jure recognition by about 125-130 states. As I explained, we have de facto recognition by the General Assembly and now the World Court which is why this is so important.
I have written a book explaining all this. The title is Palestine, Palestinians, and International Law, Clarity Press, 2003. It has all the legal work I did for the PLO, advising them on setting up their state.
Q: Part of Al-Kid's opening statement was that this is not a wall for the sake of security. What is your perspective about Israel's assertion that the wall is necessary for security?
F.BOYLE : Whatever Israel wants to argue about security, it must be done in a manner which does not violate the laws of war, the laws of belligerent occupation and international humanitarian law. That law applies even in self-defense. I really don't see this as defense. Sharon is trying take more land.
A decision by the World Court will be quite sweeping because it will have to consider the whole context of the occupation to give this opinion..
Professor Boyle, who received his J.D. in 1976, from Harvard Law School, also provides us commentary on an article entitled, "Peacemakers, Harvard's negotiation scholars prepare to touch the third rail of Israeli politics." written by Christopher Reed and published in the March-April 2004 issue of Harvard Magazine. Boyle specifically addresses remarks made by Harvard Law Professor Robert H. Mnookin on pages 52-54 and found at http://www.harvardmagazine.com/on-line/030411.html. Mnookin expresses concern for the settlers who are living in Occupied Palestine and that "some" of them will likely have to move. He believes that Palestinians should give up their right to return and should share sovereignty in East Jerusalem. Boyle's response is this:
Notice that according to Mnookin, the Palestinians are supposed to give up their sacred right of return under Resolution 194, The Universal Declaration of Human Rights, and customary international law. Apparently, Mnookin is not even aware of the fact that Israel has no sovereignty in West Jerusalem, let alone East Jerusalem. Yet he expects the Palestinians to share sovereignty with Israel over East Jerusalem in violation of Resolution 181 and Resolution 242, and give them West Jerusalem as well. He is also unaware of the fact that Israeli settlers are there illegally under international law and thus have no "claims" thereunder except to pay Palestinians for any damages they inflicted.
Mnookin is an unknowledgeable and unworthy successor to Roger Fisher as Harvard Law School's Williston Professor of Law and chair of Harvard's Program on Negotiation.
Betty Betty Molchany, J.D. 31 Blue Ridge Avenue Front Royal, VA 22630-3045 ********************************************************************* * ************************
Protests
http://www.gush-shalom.org
Uri Avnery 28.2.04
The Ghetto Inside
"It is easier to get the Jews out of the ghetto than to get the ghetto out of the Jews!" - this dictum of the early Zionists is now assuming a new meaning. Israel is cutting itself off from the world and enclosing itself in a ghetto, and not only physically. In The Hague, the proceedings of the International Court of Justice on the Separation Wall have started. Sharon's people understand that they have no chance of winning and have decided, therefore, to boycott the session. Instead of arguing their case before the court, they decided to organize a street event, in the spirit of the classic Israeli maxim: "If your case is weak, raise your voice!"
Inside the courtroom, the legal arguments were made. The representatives of Palestine argued that the Wall is unlawful, since it is being erected in the middle of the West Bank. According to them, if Israel fears suicide bombings, it is entitled to put up such a wall on its border, but not in the heart of the occupied territory, where it puts the Palestinian population into prison-like enclaves. Nobody contradicted this argument inside the court.
Outside, Sharon's people organized a colorful spectacle. As a gimmick for the media, they brought a bombed-out bus over from Israel, complete with experts on the gathering of body parts. Also, dozens of family-members of victims of attacks were brought over.
The Israeli embassy distributed the photos of the 900 victims, and Jewish students carried them in procession. The message: the Jews are suffering; in Israel, too, they are the victims of pogroms.
Later in the day, the Palestinians organized a counter- spectacle. There, the 3000 Palestinian victims of the intifada were lamented, as well as the sufferings of the Palestinian population under occupation. The residents of The Hague were treated to a kind of World Championship for victims.
The world media devoted some minutes to the spectacles, evenly divided between the two parties. But, for them, the main event was the proceedings inside the courtroom. In Israel, an entirely different picture was presented. In a style reminiscent of the Soviet Union, the media enlisted as one man in the service of the brain- washing. All TV networks, all radio stations, all newspapers, without exception, took part in this national effort. From early morning to late at night, all TV and radio stations broadcast continuous coverage from The Hague and created the impression that the whole world was glued to the Israeli street spectacle.
The court proceedings themselves were presented as unimportant, a miserable little show of Arabs and other anti-Semites. The Israeli demonstration was turned into a world-shaking event. The bombed-out bus appeared on the screen of all Israeli channels many dozens of times, as did the victims' families. Again and again and again. The corresponding Palestinian event was shown for a few seconds, as were the courtroom proceedings. Just to show how liberal we are, the Palestinian representative was also allowed to say three sentences.
But the message for the Israeli viewer and listener was unequivocal: this was a huge Israeli victory. The whole world now understands that in this story we are the victims, that the Palestinians are terrorists, that the Wall is needed to save our lives, that "the lives of Jews are more important than the quality of life of the Palestinians" - a sentence repeated dozens of times during the day. A phalanx of army officers, Security Service personnel, reporters, commentators and professors talked their heads off on all stations, and all of them said exactly the same thing: we are being attacked, we are the persecuted, the Arabs are killers, we are defending ourselves. The occupation was not mentioned at all. Why should it be? What has it got to do with this?
While the broadcast was going on, the Israeli peace movements demonstrated against the Wall at the Prime Minister's residence in Jerusalem. The state-owned TV Channel 1 showed it for all of four seconds. Throughout the whole day, not one single Israeli TV channel or radio station allowed anyone to say a word against the Wall or in favor of the International Court.
This is quite frightening, because it is happening in a democracy. No KGB or Gestapo is threatening the lives of the journalists, no Gulag or concentration camp is awaiting those who deviate from the official line. It is all done voluntarily, from inner conviction.
True, the free media in the democratic USA behaved in much the same way during the early days of the Iraq war. But they, at least, were not afflicted with the syndrome of "All the World is Against Us". The day after the first court session, the Israeli Deputy Minister of Defense, Ze'ev Boim, declared in the Knesset that all Muslims are murderers from birth, that it is in their genes. And a personal friend of Ariel Sharon disclosed on TV: "Arik has told me that he is deeply worried about the rise of Christian anti-Semitism. For example in Mel Gibson's movie "The Passion of the Christ". And now, a large part of the Muslim world is also infected by anti- Semitism."
This is the mentality of the ghetto. We created the State of Israel in order to become a normal nation, "a people among peoples". The events of this week show that we have not succeeded in this. The ghetto is deep inside us. This is also throwing another light on the Separation Wall. It encloses the Palestinians in enclaves, but it also returns us to the reality of the ghetto, and not only physically.
The struggle against the Wall has many aspects. It is not only a struggle to liberate the inhabitants of the West Bank from the monstrous obstacle that turns their life into hell and puts them under pressure to leave "voluntarily". It is not only a struggle to liberate the two peoples of this country from a situation that imposes on them an ever-widening cycle of bloodshed. It is also a struggle to liberate the Israeli nation from the ghetto that is inside our hearts.
Feb. 24, 04 The Anarchists Protest Thwarted by IDF Policemen.
13 anarchists arrested yesterday were released at noon today, after spending a night in jail at Abu Khabir in Jafa. The events that led up to the arrest of the 13 read like a spy story.
Even before they got under way others began to thwart their plans. The bus driver, who arrived at Habima in Tel Aviv about ?an hour before the time set, was surprised to have a man in civilian dress approach and ask him about his plans and where he was headed for. The driver responded evasively, stating that he had been hired to go somewhere in the north. The interrogator pressed on for more specific details, but the driver refused to respond. At this point the inquisitor pulled out his ID, revealing that he was a policeman, albeit in plain dress. The policeman advised the driver that he was calling a police van to follow him, and that he should abandon his plans (whatever they might be) and to return home.
The Anarchists, upon hearing what had happened, decided on a second meeting point to board the bus, now at 9:00 AM. From the time they boarded the bus, till they were stopped on Road 5, they were followed, first by the plain clothes policeman on his motorcycle, after by others as they headed for their destination.
Road 5 is a settlers' road it going east-west. It was built for settlers, their cars continued to pass, but the bus was stopped about 20 kilometers over the so-called green line, even though the bus had Israeli license plates. The police took the driver's driver license and also demanded the keys to the bus. When the driver refused giving up his keys, stating that he needed then to let the motor cool off, the police did not argue, but ordered him to turn around and return to Israel, advising that he was in a closed military area. But all other vehicles with Israeli license plates continued undisturbed down the road'; it therefore became readily apparent that the road was a closed military zone solely for anti- wall and pro peace activists.The driver received his license back at the checkpoint near the green line (near the turn off to Mas'ha); he was advised to stay out of the Territories.
Following this, the group decided to try to reach their destination by a different road, but with no greater success than before. Near Qalqilya the bus was again stopped at the checkpoint. This time the driver was informed that were he caught again, even one more time, in the Territories, his license would be taken away for 30 days. The Anarchists finally realized that they would not get to where they had been headed, and so decided to change plans. If they could not get into the Occupied Territories, they could nevertheless demonstrate. They decided to meet in the Kiriya on Kaplan across the street from the Defense ministry. There they simulated a wall by blocking the road, sitting on it to stop Israeli drivers from proceeding. There 13 of them were arrested.
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Excerpt from Ha'aretz : It's been a long time since I've felt so small, uncomfortable and red-faced as during the show of whining and whimpering organized by Israel at The Hague. Colorful posters displaying photographs of 935 terror victims; Zaka rescue team workers led by Yehuda Meshi Zahav wearing their "work clothes"; memorial candles; parents talking about the pain of bereavement; doctors describing the savage nature of the suicide bombers; the wreckage of a burnt-out bus with a bereaved mother standing next to it, distributing "one-way tickets" - these are just some of the sights.
At the Foreign Ministry, these demonstrations are seen as an appropriate "J'accuse" against those who dare to put us in the guilty seat. In practice, it is a display of wretchedness and woe designed to tug at the heartstrings of international public opinion - like beggars who show off the stump of an arm or leg to make the world feel sorry for them. At their demonstrations, the Palestinians could pull out photographs of more than 3,000 victims. As for playing on the emotions, they could easily flaunt their suffering. They could dwell on their destroyed homes and the torment they endure at army checkpoints. But instead of harping on their misfortunes, they have focused on Israel's occupation policies and the security fence. They have appealed to the world's sense of justice, while we seek the world's pity.
By Yoel Marcus
A demonstrator holds a poster with pictures of the victims of the second Intifada outside the world court in The Hague, where hearings started on the legality of Israel's West Bank separation barrier. Photograph: Peter Dejong/AP ********************************************************************* * ***************************************************************
TEAR GAS IN PALESTINE REPLACES THE NORMAL HAIL OF LIVE AMUNITION BECAUSE THE WORLD IS WATCHING.... Guardian Newspaper
Israeli troops today fired tear gas at Palestinians protesting at the barrier being constructed in the West Bank as a court case on its legality opened in The Hague.
More than 10,000 Palestinian demonstrators, including many government employees and students, marched in most West Bank towns against the controversial barrier.
Near the towns of Jenin and Tulkarem, soldiers fired tear gas to keep thousands of marchers from coming too close to the barrier. In Bethlehem and the Jerusalem suburb of Abu Dis, tear gas was also used to disperse stone throwers.
Heeding a call from Yasser Arafat, the Palestinian President, to "make their voices heard", protesters in Ramallah stopped work and brought traffic to a halt with a march to mark the international court hearing. "The wall must fall," read one banner.
Marches also took place in Nablus and Qalqiliya, a town ringed by a tall wall.
Mr Arafat today said that no peace was possible until the barrier was pulled down. "This is another Berlin Wall aimed at swallowing 58% of our [West Bank] and transforming our towns and villages into isolated ghettos illegally controlled by occupation settlements and preventing us from establishing our Palestinian state with Jerusalem as its capital," he said in a speech televised worldwide.
"The Palestinian and Israeli people, and the people of the region, are in dire need of bridges of cooperation and co-existence, not of a separation wall."
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HA'ARETZ By Tali Nir, THE HAGUE - The International Court of Justice at The Hague will hear arguments against the West Bank separation fence by Belize, Cuba, Indonesia, Jordan and Madagascar. Malaysia and Senegal. On Monday, following opening arguments by the Palestinians, South Africa called on the 15-justice panel to rule that the fence is illegal, just as the same tribunal ruled in 1971 that apartheid South Africa's occupation of Namibia was illegal.
South African Deputy Foreign Minister Aziz Pahad told the 15-judge panel that the ruling 33 years ago, which led to international sanctions against the white leaders in Pretoria, contributed to the end of apartheid in 1994."The separation wall is anathema to the peace process as envisaged in the road map as it eliminates the prospect of a two-state solution," Pahad said."This court could play a fundamental role in contributing meaningfully to sustainable peace and security in the Middle East and indeed the whole world."
European Parliament: On Tuesday, the President of the European Parliament, Pat Cox of Ireland, said that he believes in the road map peace plan and in a two-state solution, but warned that the construction of the fence is making the establishment of a Palestinian state nearly impossible.
Cox said that the European Parliament fears that the separation fence is inching further into the territory of the West Bank, in such a degree that the cantonization of the Palestinian territory begins to raise the question about the viability of a Palestinian state.
"The progressive cantonization and diminution of the West Bank is becoming a fundamental problem for those who believe in a viable and sustainable two-state solution," Cox said.
"We accept of course that the government of Israel has the duty, right and responsibility to protect its citizens; terrorism by Hamas, Islamic Jihad and Fatah and other forces is in itself a huge part of the problem," he added.
Cox also said that the EU parliament would not allow any whitewashing of the investigation carried out by EU's anti-fraud unit (OLAF) into the way the Palestinian Authority is using money sent by the EU. "The European parliament has sent three senior MPs (...) to the territories, to examine the issue of Palestinian terror," Cox said. "Their findings would be presented to the parliament and will be accessible to everyone."
On Tuesday, Jordan led the continuing assault on the barrier, warning that the structure threatens the future stability of the kingdom, which signed a peace agreement with Israel in 1994.
Unlike other countries supporting the Palestinians this week, Jordan views the Israeli barrier as a direct threat, fearing the barrier will make life so hard for Palestinians that they will flee into the neighboring kingdom, straining its resources and upsetting a delicate demographic balance.
"With the exception of the Palestinians themselves, we feel we Jordanians are the ones who could be most affected by Israel's decision to place the wall where it has and where it intends to do so in the near future," Prince Zeid Al Hussein, head of the Jordanian delegation, told the court. Hussein called suicide bombings "horrific." But he also said they must be seen in the context of Israel's four-decade occupation of the West Bank and Gaza, which he called "dominating ... and degrading" to the Palestinian population.
Sir Arthur Watts, counsel for the Jordanians, attacked Israel's stance that the barrier is a temporary security measure. Showing the justices a map of a proposed route of the barrier, he said the structure is meant to connect Israel proper with its settlements in the West Bank."The plan stretches for the most part well within the occupied territory," he said. "This wall is not primarily about the defense of Israel's territory.""If the wall defends anything, it is ... the position of Israeli settlements in the occupied territories," he said, adding that there is "no right to self- defense to that which is in itself unlawful."
Although the case is technically confined to issues surrounding the barrier, Watts' comments were the latest to question Israel's occupation policies.
Prime Minister Ariel Sharon on Tuesday dismissed the hearings as an "international circus" and vowed to keep building fences. He told Yedioth Ahronoth that the ICJ hearings is "a campaign of hypocrisy currently being staged against Israel in the international circus in The Hague ... I will build the security fence and will complete it."
In Ramallah, Palestinian Authority Chairman Yasser Arafat voiced confidence that the World Court would reach the "right decision."The court's ruling will not be binding. But it could influence world opinion and the Palestinians hope it could pave the way for international sanctions against Israel.
Other countries presenting their opposition to the fence Tuesday included Cuba, which said the barrier turned Palestinians into a "population of prisoners" and Indonesia, the most populous Muslim country, which called on the court to declare the barrier illegal.
An Israeli Foreign Ministry spokesman dismissed the dozen countries supporting the Palestinian case as "the usual collection of dictatorships and Arab states against Israel."
Belize, a tiny Central American nation with little at stake in the Middle East, stressed Israel's right to defend its citizens but it, too, urged the court to rule against the barrier.
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THE HAGUE - Arab and Muslim nations urged the world court Wednesday to deliver a decisive verdict against the West Bank separation fence that would lead to its dismantling and the prosecution of those who planned it.
Concluding three days of hearings, the 15 judges of the International Court of Justice retired to begin deliberations on the legality of barrier Israel is building in the West Bank, but it may take months to reach a decision. Although the court's opinion is not binding, Arab advocates hoped the United Nation's highest judicial body would issue recommendations that could be acted upon by the Security Council. While it could be vetoed by the United States, even a failed resolution would represent a public relations victory.
The final testimony in the hearings - and among the most strident - came from the 22-nation Arab League and the Organization of the Islamic Conference, a grouping of 57 Muslim nations.
French lawyer Monique Chemillier-Gendreau, counsel for the the 57- member Organization of the Islamic Conference, said suicide bombings and other attacks against Israel should not be viewed in a vacuum. "They have to be linked to the far more bloody terror by Israel against the Palestinians since its founding," she said."With the wall there is no longer a viable Palestine thus no peace possible between the two states," said Chemillier-Gendreau.
The Arab League and OIC - representing more than 50 countries - followed Sudan in raising their objections at the Hague court. Ha'aretz excerpt.?
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First check Arab American Community Calendar
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Where Does Our Simplistic Absolutist President Stand?!
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