An Interview With Professor Francis Boyle

On November 29, the U.N. General Assembly overwhelmingly approved a resolution to upgrade the Palestinian Authority’s observer status to a non-member state. According to various sources, the U.N. General Assembly voted to recognize Palestine as a sovereign state, despite threats by the United States and Israel that the Palestinian Authority would be punished by withholding much needed funds for the West Bank government. AFP reported that Britain threatened to abstain from the vote for enhanced Palestinian status at the UN, unless the Palestinians agreed not to take the Israelis to various international courts.

As the vote was in progress, I spoke with Dr. Francis A. Boyle, professor of international law at the University of Illinois College of Law, and the author of “The Palestinian Right of Return Under International Law,” in order to find out why the US was making such dire threats of economic retaliation against the Palestinians, if they continued to pursue recognition by the UN. Professor Boyle is somebody who knows a great deal about the Palestinians and their rights under international law. He was advisor to the Palestinian Liberation Organization and its chairman, Yassar Arafat, on the Palestinian declaration of independence of November 15, 1988.

Boyle said today, “This can be the start of a legal intifada by Palestinians against Israel.” He joins us from Chicago. Professor Boyle — welcome back to Flashpoints.


Francis Boyle:  Thank you Dennis for having me on and my best to your listening audience.

Dennis Bernstein:  Well, it is good to have you with us, and it’s always an educational experience,  particularly when we’re talking about Palestine. Maybe we could begin with your understanding of why the U.S. would threaten to cut off Palestine, and why the Brits are so upset.

FB:  Well, you know, Dennis, the point is this, no member state of the United Nations organization has ever been destroyed or eliminated. Some of them have broken off into constituent units but they have never been extinguished. And you see, Israel would like all of Palestine, the West Bank, East Jerusalem — without the Palestinians. And so it’s important, as they see it, not to have a recognition of Palestinian statehood by the United Nations organization. It’s that simple.

I’ve been working with the Palestinians now, their peace initiatives since 1987, and was legal advisor with the Palestinian delegation to the middle east peace negotiations. They never demonstrated even one iota of good faith when it came to negotiating a two-state solution with the Palestinians. And the reason is the zionists have always wanted all of Palestine going back to the Ball Conference of 1897. So nothing has changed. That is still their agenda, and that is why they are vigorously fighting against recognition of Palestine by the U.N. And last year, they fought against our admission as a member state to the United Nations. So this is a real existential battle here that has been going on now for a 115 years. And it’s not about to end tomorrow.

DB: All right. Well, let’s see if we can talk a little bit about the real implications here, in terms of international law, because we know, anybody who has really followed this knows that Israel — supported by the U.S. and many countries in western Europe — has violated international law, and that there really is an illegal, ongoing occupation. It’s been brutal.  We’ve seen two years in the last…two wars in the last…no, not wars — two slaughters in the last four years, where Israel went after this Gaza strip where people couldn’t even run. They didn’t even have the possibility of becoming refugees again. And there’s a lot at stake, in terms of the possibilities that lie before the Palestinians if they are recognized by the international community. And you lay out at least six possible legal remedies that the Palestinians could take if, in fact, this becomes a reality. Could you go through those for us?

FB:  Well, obviously Palestinians, you know, could barely defend themselves because the United States, the most powerful military power in the world, has given Israel over and over again every type of high-tech weapon system possibly imaginable. So their strong suit is international law. And I’ve just come up with a short list of things — steps — that I have already recommended to them, over in Ramallah, that they consider implementing. These steps are what I call a “legal intifada.”

First, of course, becoming a party to the Rome Statute for the International Criminal Court. After Operation Cast Lead One, I advised President Abbas to accept the jurisdiction of the International Criminal Court under Article 12, paragraph 3, which he did do. And then we filed a big complaint with the ICC prosecutor over Operation Cast Lead One.

Now, what happened…the ICC prosecutor, Moreno Ocampo announced that he was going to be investigating two issues. One, did Palestine have the capacity to accept the jurisdiction of the ICC under Article 12, paragraph 3? And,  Two, did Israel create war crimes and crimes against humanity against the Palestinians during Cast Lead? That second question was answered in the affirmative by the Goldstone Commission Report; that Israel had inflicted war crimes and crimes against humanity against the Palestinians.

As for the first point, just before he left office, Ocampo announced that he did not believe Palestine had the capacity to accept the jurisdiction of the ICC under Article 12, paragraph 3. And, in any event, it was not for him to determine whether Palestine was a state. This, despite the fact that Palestine was admitted as a full-fledged member state of UNESCO, which is a U.N. specialized agency.

So basically Moreno Ocampo copped out. And indeed, if he hadn’t done that, there’s a good chance Israel would not have repeated what I call Cast Lead Light, that just occurred for the last eight days here in November. In any event, in his press conference, Ocampo said, “But of course, Palestine could ratify the Rome statute and then proceed as a member state and that would solve the jurisdictional problem.”

So, all Palestine has to do once it becomes a U.N. member state is accede to the terms of the Rome statute, and file that with the U.N. Secretary General which is the depository for the Rome statute. The Secretary General will be obligated to accept that instrument of accession and then Palestine can simply reactivate the complaint that’s already there, and add in Cast Lead Light for November 2012. And, if they want to, also add all the settlements policy that is going on. The International Court of Justice ruled in its advisory opinion on the wall, that all these settlements in the West Bank and East Jerusalem violate the Fourth Geneva Convention of 1949.

Well, of course, such violations are a war crime and when they are widespread or systematic, they become a crime against humanity. And, in the case of the West Bank and East Jerusalem, the settlement policy is certainly widespread and systematic.

DB:  And, just to add, it’s quite a revelation that you’ve got the British foreign secretary saying they’re not going to get the support –the Palestinians are not going to get their support — unless they agree to pledge not to sue Israel for war crimes. I mean, there it is.

FB:  Right. Well, he doesn’t understand that we already did that so, you know, these are obviously highly technical matters that basically their international law staff follow. But we already did file that complaint, and all we have to do is reactivate the complaint we already filed. And the reason being, then this would put us in the driver’s seat and the settlement policy in the dock. And that is what…remember Britain created this problem in the first place with the Balfour Declaration. They’ve always been against us. So, you know, it doesn’t surprise me that the Brits are still taking this position. And they were behind the partition resolution 65 years ago.

You know, it’s not just Palestine…you know, the Brits did the same to my country, Ireland. They partitioned us. The Brits partitioned the Indian subcontinent to India and Pakistan, creating a monumental human rights tragedy, that’s still going on. Britain also partitioned the Republic of Bosnia and Herzegovina that still goes on today. So, you know, this is a joke that, you know, that the British are there, they are saying they are for peace, this, that and the other thing. They’ve created so many of these problems that we confront today.  India, Pakistan, Palestine, Ireland, Bosnia…that’s just for starters. The Falklands, Malvinas, I guess I could go on from there.

DB:  All right, let’s talk a little bit about the possibilities under the International Court of Justice, what could happen in terms of Gaza and the illegal siege of Gaza.

FB:  Right. Once it becomes a U.N. observer state, Palestine can then accede to the terms of the statute of the international court of justice which is the world court of the United Nations system. And here, Palestine will — across the board on all these issues — be following the precedent of Switzerland, which did not join the United Nations organization until what…maybe five years ago?  But during that period of time it had U.N. observer state status. And in that capacity Switzerland had, you know, pretty much all the rights it needed to do whatever it wanted to do.

So Switzerland became a party to the ICJ statute. Palestine, I’m sure, will too. Just by taking the Swiss instrument and filing it with the world court, then it would be able to sue Israel at the International Court of Justice. And I’ve offered to President Abbas and the PLO executive committee to file this lawsuit, and try to break the genocidal siege of Gaza that is still going on today, as we speak. President Morsi of Egypt, despite all the rhetoric, still hasn’t done anything about it. So it is still there, it’s still on and it needs to be broken. So it’s on a list of things that, you know, the Palestinians can do once the dust settles.

Third, Palestine, could then join the Law of the Sea Convention and then get legal access and a legal right to these enormous gas supplies right off the coast of Gaza, which Israel has access to. Lebanon, Cypress, Turkey…they all have their claims in. But Palestine has a claim too. Indeed, a pretty substantial claim. And if Palestine gets access to that gas, it can become economically self sufficient. So this is a very important issue.

They can become a party to the International Civil Aviation Organization and get legal, sovereign control over their own air space. By becoming a member of the International Tele-communications Union, they will get control of their air waves, phone lines, band widths for internet, satellite access and things of this nature.

So, those are just some of the immediate consequences…oh, and finally, of course, also become a high contracting party to the four Geneva Conventions of 1949. Back in 1989, I recommended this step to President Arafat as a purely humanitarian measure. The United States government applied massive pressure to the Swiss government not to accept our instrument of accession. So what the Swiss did, again — they copped out back in 1989 — they said, “Well, we’re not in a position to determine whether or not Palestine is a state, but we will treat their declaration as binding.” … And they still carry us as a footnote.

So all this will do then is upgrade us to a high contracting party like all the 193 states in the world, with a demand — the right to demand — that they all act to protect us as a fellow high-contracting party under common Article 1 to the four Geneva Conventions where they have an obligation, not only to respect the conventions themselves but to ensure respect by Israel.

Just off the top of my head, this morning in drawing up that press release that was six steps I could come up with in very short order and in terms of priority that Palestine could get to work on, I guess, tomorrow.

DB: In terms of the Law of the Sea Convention and the offshore gas fields, is that extensive, are those fields enough to perhaps help bring Palestinians out of poverty? How big is that battle? Because we don’t hear much about the battle around resources, this is always like a religious war.

FB:  Dennis, this isn’t a religious war…you know I’ve spent a lot of time over there. I’ve dealt with Palestinians, Christians, Muslims and Jews. No, this is a war over land and resources and water. That’s what is really going on here.

And Israel believes it is in its best interest to present this as almost a religious war. But it simply is not. Those gas supplies under the Mediterranean are enormous. There have been stories on this in the financial literature, if you read The Wall Street Journal and the Financial Times, which I read every day, you will find extensive discussion of how much natural gas there is there. And certainly it would be enough to make Palestine economically self-sufficient, along with the capacity of its people, who are highly educated and highly motivated.

So…and of course, Israel would be entitled to its share as well. If you read the debates over the gas fields, of course, no one mentions the Palestinians, and their legitimate claim to the gas fields. So Palestine, and Israel and Lebanon and Cypress and Turkey would have to sit down among themselves within the framework of the Law of the Sea Treaty and negotiate some type of equitable sharing of these gas supplies — fields — which in turn would be based upon the delimitation of their continental shelves.

So that is, sort of where it stands. Then, if this could not be resolved by negotiations, you would have access to the U.N.’s Law of the Sea tribunal, down there in Jamaica. So we’re talking about, you know, hundreds of billions of dollars worth of gas there.

DB:  So…

FB:  But we really don’t know precisely how much there is, but it’s enormous, and it would help the Israeli people too. I mean right now, there is some being pumped out of there but given the disputed status of the title it is not much.  So if you’re talking about massive exploitation of this gas, certainly Israel has a very long coastline there on the Mediterranean. But Gaza does too, and the Palestinians are entitled to their cut.

DB:  So you are saying when the Israelis fire at the Gaza strip from the water offshore in Gaza, they are firing, they are sort of floating over these very extensive oil resources. When these Israeli war ships intercept boats coming from Turkey and other places trying to break the siege on Gaza, they are being attacked.  And the Israelis are killing international activists over the waters where these resources are existing. So it is a rather obvious attempt to defend the resources that they want to steal.

FB: That’s correct, Dennis. And what I’m suggesting is, you know, in theory it could be possible for, you know, everyone to sit down…the stakeholders which I would identify primarily as Israel, Palestine, Lebanon….to a lesser extent Cypress and Turkey, so that there would have to be an equitable but lawful sharing of these gas supplies. But right now, you know, Israel doesn’t want to share it with anyone. And yet, you know, Cypress and Turkey seem to be enforcing what they believe are their claims. And Lebanon is doing the same, which means then that all these conflicting claims to these resources, at this point in time, makes it difficult for there to be a viable exploitation of those resources, right.

This isn’t just what’s going on there in Gaza. Israel is in fact staking a de facto claim, as it were, to these tremendous gas resources which, by the way, I don’t know exactly how it would pan out in diving it up here, but it would probably make Israel energy interdependent as well. As you know, they really have no domestic sources of energy supplies there at all.

Estimates I’ve read is maybe for the next hundred years, but of course, that’ s cutting the Palestinians out of the picture. Right now they get their, you know, they get oil and gas from Egypt but that’s been disrupted, and then they have to scramble around to get it anywhere else. So this is a very important factor in the equation, you know, together with the water. Most of the water — the aquifers — are on the West Bank. This is Palestinian water and the settlers are stealing it.

I was over there once where I saw a Palestinian village literally thirsting to death because it had no water. And I followed the pipeline upstream to Aerial, a settlement there on the West Bank, where I could see the water being diverted from the village so that the settlers could have an Olympic-sized swimming pool. And since I’ve been there, I’ve now read that they have two Olympic-sized swimming pools in Aerial. But, you know, this is outrageous — unacceptable. Clearly it’s plunder of Palestinian water resources.

And if you note in today’s resolution submitted by the Palestinians at the U.N. they have made it quite clear that any final settlement is going to have to involve water because it is their water that is being stolen by Israel. So, you know, we see Israel stealing, plundering natural resources, certainly water on the West Bank, and now they’re going after all these gas fields in the Mediterranean. Now I am prepared to admit that, yes, they do have a valid claim, but it’s not all their own. They are going to have to sit down with Lebanon and Palestine and, to a lesser extent, Cypress and Turkey, that had laid claims to some of these gas fields.

Dennis Bernstein is an American producer and co-host of the radio news program, Flashpoints Radio on Pacifica Radio.