The Common Ills

Thu Oct 25 22:01:02 EDT 2007

sent by Francis A. Boyle - Oct 25, 2007

Originally published by MSA News, March 20, 1998

PALESTINE:  

SUE ISRAEL FOR GENOCIDE BEFORE THE INTERNATIONAL COURT OF JUSTICE! 

by Francis A. Boyle
Professor of International Law

In Honor of the Tenth Anniversary of the Intifadah
Gaza City, Palestine - 13 December 1997

I would like to propose publicly here in Gaza, Palestine--where
the Intifadah began ten years ago at this time--that the Provisional
Government of the State of Palestine and its President institute legal
proceedings against Israel before the International Court of Justice
(ICJ) in The Hague (the so-called World Court) for violating the 1948
Convention on the Prevention and Punishment of the Crime of Genocide.
I am sure we can all agree that Israel has indeed perpetrated the
international crime of genocide against the Palestinian People.  The
purpose of this lawsuit would be to demonstrate that undeniable fact
to the entire world.  These World Court legal proceedings will prove
to the entire world and to all of history that what the Nazis did to
the Jews a generation ago is legally similar to what the Israelis are
currently doing to the Palestinian People today: genocide.

   There are three steps that should be taken for Palestine to sue
Israel before the International Court of Justice for genocide.  First,
the President of the State of Palestine must deposit an Instrument of
Accession to the 1948 Genocide Convention with the U.N. Secretary
General, the depositary for the Convention.  This Accession would
become effective in ninety days.

   Second, the President of the State of Palestine should deposit a
Declaration with the International Court of Justice accepting the
jurisdiction of the Court in accordance with the Charter of the United
Nations and with the terms and subject to the conditions of the
Statute and Rules of the Court, and undertaking to comply in good
faith with the decisions of the Court and to accept all the
obligations of a Member State of the United Nations under Article 94
of the United Nations Charter.  Article 35(2) of the Statute of the
International Court of Justice gives the Security Council the power to
determine the conditions under which the World Court shall be open to
states such as Palestine that are not yet Parties to the ICJ Statute.
These conditions have been set forth by the Security Council in a
Resolution of 15 October 1946.  I would recommend that the State of
Palestine consider making a "general declaration" accepting the
jurisdiction of the World Court generally in respect of all disputes
which have already arisen, or which may arise in the future, as
permitted by paragraph 2 of this 15 October 1946 Security Council
Resolution.

   Pursuant to the terms of paragraph 5 of that Resolution, "All
questions as to the validity or the effect of a declaration made under
the terms of this resolution shall be decided by the Court."
Therefore, it would be for the World Court itself to decide whether
Palestine is a State entitled to exercise the powers conferred by the
Security Council in its Resolution of 15 October 1946.  For reasons
explained in more detail below and elsewhere,1 I believe the World
Court will decide in favor of Palestine on this matter of its
Statehood.

   To the same effect is Article 41 of the Rules of Procedure of
the International Court of Justice:

Article 41

         The institution of proceedings by a State which
is not a party to the Statute but which, under Article 35, paragraph
2, thereof, has accepted the jurisdiction of the Court by a
declaration made in accordance with any resolution adopted by the
Security Council under that Article, shall be accompanied by a deposit
of the declaration in question, unless the latter has previously been
deposited with the Registrar.  If any question of the validity or
effect of such declaration arises, the Court shall decide.

The Security Council Resolution referred to in Article 41 that is now
in force is the Resolution of 15 October 1946 mentioned above.

   In addition, that same Article 35 of the Statute of the
International Court of Justice also permits a State such as Palestine
that is not a Party to the ICJ Statute to file a lawsuit against
another State without making the above-mentioned Declaration provided
that both States are parties to a treaty that contains a compromissory
clause submitting disputes arising thereunder for adjudication by the
World Court:

Article 35

         1.  The Court shall be open to the states
parties to the present Statute.

         2.  The conditions under which the Court shall
be open to other states shall, subject to the special provisions
contained in treaties in force, be laid down by the Security Council,
but in no case shall such conditions place the parties in a position
of inequality before the Court.
      ....
      [Emphasis added.]

Article IX of the Genocide Convention, to be quoted in full below,
contains such a "special provision" or compromissory clause.

   Indeed, the World Court clearly envisioned and expressly
approved such a lawsuit by a State Party to the Genocide Convention,
which is not a Party to the Statute of the International Court of
Justice and has not even made the aforementioned Declaration accepting
the jurisdiction of the Court, by means of Paragraph 19 of its 8 April
1993 Order in Case Concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, (Bosnia and
Herzegovina vs. Yugoslavia (Serbia and Montenegro)), Request for the
Indication of Provisional Measures, which I personally filed, argued,
and won for the Republic of Bosnia and Herzegovina and its President
Alija Izetbegovic:

         19.  Whereas Article 35 of the Statute, after
providing that the Court shall be open to the parties to the Statute,
continues:

            "2.  The conditions under which the
Court shall be open to other States shall, subject to the special
provisions contained in treaties in force, be laid down by the
Security Council, but in no case shall such conditions place the
parties in a position of inequality before the Court";

      whereas the Court therefore considers that proceedings
may validly be instituted by a State against a State which is a party
to such a special provision in a  treaty in force, but is not party to
the Statute, and independently of the conditions laid down by the
Security Council in its resolution 9 of 1946 (cf. S.S. "Wimbledon",
P.C.I.J. 1923, Series A, No. 1, p. 6); whereas a compromissory clause
in a multilateral convention, such as Article IX of the Genocide
Convention, relied on by Bosnia-Herzegovina in the present case could,
in the view of the Court, be regarded prima facie as a special
provision contained in a treaty in force; whereas accordingly if
Bosnia-Herzegovina and Yugoslavia are both parties to the Genocide
Convention, disputes to which Article IX applies are in any event
prima facie within the jurisdiction ratione personae of the Court;

   [Emphasis added.]

   Notice that in the language emphasized above, the World Court
ruled that a State Party to the Genocide Convention could file a
lawsuit against another State Party even "independently of the
conditions of the Security Council in its resolution 9 of 1946."  In
other words, Palestine can sue Israel for violating the 1948 Genocide
Convention so long as Palestine becomes a Contracting Party to the
Genocide Convention.  For reasons explained in more detail below and
elsewhere,2 I believe the World Court will find that Palestine is a
State entitled to become a Contracting Party to the Genocide
Convention.  Out of an abundance of caution, however, I still
recommend that Palestine file the above-mentioned Declaration
generally accepting the jurisdiction of the International Court of
Justice.  

   Third, and finally, the Provisional Government of the State of
Palestine and its President must file an Application against Israel
instituting legal proceedings for violating the Genocide Convention on
the jurisdictional basis of Article IX thereof, which provides as
follows:

      Disputes between the Contracting Parties relating to the
interpretation, application or fulfillment of the present Convention,
including those relating to the responsibility of a State for genocide
or any of the other acts enumerated in article III, shall be submitted
to the International Court of Justice at the request of any of the
parties to the dispute.

In accordance with Article 36(6) of  the ICJ Statute, in the event of
a dispute as to whether the World Court has jurisdiction over a
lawsuit between Palestine and Israel on the basis of Article IX of the
Genocide Convention, "the matter shall be settled by the decision of
the Court."

   Therefore, the filing of this genocide Application should be
enough to get Palestine into the World Court against Israel for quite
some time.  And once Palestine is in the World Court, we can then
consider requesting from the Court at any time an Indication of
Provisional Measures of Protection against Israel to cease and desist
from committing all acts of genocide against the Palestinian People.
This international equivalent to a temporary restraining order would
be similar to the two cease-and-desist Orders that I won from the
World Court against the rump Yugoslavia on behalf of the Republic of
Bosnia and Herzegovina on 8 April 1993 and 13 September 1993.3

   Furthermore, in its Judgment of 11 July 1996 in the Bosnia case,
the World Court ruled in Paragraph 34 that there is no reservation
ratione temporis to be implied into the Genocide Convention and in
particular Article IX thereof, in the following language:

         34.  Having reached the conclusion that it has
jurisdiction in the present case, both ratione personae and ratione
materiae on the basis of Article IX of the Genocide Convention, it
remains for the Court to specify the scope of that jurisdiction
ratione temporis.  In its sixth and seventh preliminary objections,
Yugoslavia, basing its contention on the principle of the
non-retroactivity of legal acts, has indeed asserted as a subsidiary
argument that, even though the Court might have jurisdiction on the
basis of the Convention, it could only deal with events subsequent to
the different dates on which the Convention might have become
applicable as between the Parties.  In this regard, the Court will
confine itself to the observation that the Genocide Convention -- and
in particular Article IX -- does not contain any clause the object or
effect of which is to limit in such manner the scope of its
jurisdiction ratione temporis, and nor did the Parties themselves make
any reservation to that end, either to the Convention or on the
occasion of the signature of the Dayton-Paris Agreement.  The Court
thus finds that it has jurisdiction in this case to give effect to the
Genocide Convention with regard to the relevant facts which have
occurred since the beginning of the conflict which took place in
Bosnia-Herzegovina.  This finding is, moreover, in accordance with the
object and purpose of the Convention as defined by the Court in 1951
and referred to above (see paragraph 31 above).  As a result, the
Court considers that it must reject Yugoslavia's sixth and seventh
preliminary objections.  [Emphasis added.]

In other words, Palestine would be able to claim in its World Court
Application against Israel that the Israeli genocide against the
Palestinian People commenced with the Zionist war, conquest, ethnic
cleansing, and occupation of 1948--"the beginning of the conflict," to
use the precise words of the World Court itself.  Indeed, in the
Bosnia case I already successfully argued to the World Court that
ethnic cleansing is a form of genocide.

   Article II of the 1948 Genocide Convention defines the
international crime of genocide as follows:

      In the present Convention, genocide means any of the
following acts committed with intent to destroy, in whole or in part,
a national, ethnical, racial or religious group as such:

         (a)   Killing members of the group;
         (b)   Causing serious bodily or mental harm to
members of the group;
         (c)   Deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction
in whole or in part;
         (d)   Imposing measures intended to prevent
births within a group;
         (e)   Forcibly transferring children of the
group to another group.

         [Emphasis added.]

Certainly, Palestine has a valid claim that Israel and its
predecessors-in-law--the Zionist Agencies and Forces--have committed
genocide against the Palestinian People that actually started in 1948
and has continued apace until today in violation of Genocide
Convention Article II(a), (b), and (c), inter alia.

   For at least the past fifty years, the Israeli government and
its predecessors-in-law--the Zionist Agencies and Forces--have
ruthlessly implemented a systematic and comprehensive military,
political, and economic campaign with the intent to destroy in
substantial part the national, ethnical and racial group known as the
Palestinian  People.  This Zionist/Israeli campaign has consisted of
killing members of the Palestinian People in violation of Genocide
Convention Article II(a).  This Zionist/Israeli campaign has also
caused serious bodily and mental harm to the Palestinian People in
violation of  Genocide Convention Article II(b).  This Zionist/Israeli
campaign has also deliberately inflicted on the Palestinian People
conditions of life calculated to bring about their physical
destruction in substantial part in violation of Article II(c) of the
Genocide Convention.

   Of course, the downside of bringing this lawsuit is that at some
point in the future the World Court could rule that the State of
Palestine does not exist as a "State" entitled to accede to the
Genocide Convention.  But I think that there is a high probability
that this World Court, as currently constituted, would rule in favor
of the existence of the State of Palestine.

   Today the State of Palestine is recognized de jure by about 125
states or so around the world, the only significant geographical
exception being Europe.  Even then, most of the states of Europe
accord Palestine de facto recognition as an Independent State.  The
only reason why these European states have not accorded Palestine de
jure recognition as an Independent State is massive political pressure
that has been applied upon them by the United States Government.

   Palestine is also a Member State of the League of Arab States,
which is the appropriate "Regional Arrangement" organized under
Chapter VIII of the United Nations Charter.  In addition, Palestine
has Observer State Status at the United Nations Organization.  Indeed,
today Palestine would be a Member State of the United Nations
Organization if not for illegal threats made by the United States
Government to keep Palestine out of the United Nations.

   Nevertheless undaunted, on 15 December 1988 the United Nations
General Assembly adopted Resolution 43/177, essentially recognizing
the then month-old State of Palestine.  That Resolution was adopted by
a vote of 104 in favor, the United States and Israel opposed, and 44
states abstaining.  For reasons fully explained elsewhere,4 such
General Assembly recognition of the State of Palestine is
constitutive, definitive, and universally determinative.

   I believe the World Court will rule in favor of the de jure
existence of the State of Palestine for the purpose of mounting this
lawsuit against Israel for genocide.  We might not get the vote of the
Judge from the United States who was a State Department Lawyer during
the Reagan administration.  But I believe that a majority of the
fifteen Judges on the International Court of Justice will rule in
favor of the de jure existence of the State of Palestine.

   To be sure, we can expect that the United States Government will
do everything possible to line up the votes of certain Judges against
Palestine.  But it is no longer the case that the United States
Government controls the World Court.  In this regard, recall the high
degree of independence the World Court demonstrated by condemning the
United States Government throughout the proceedings of Nicaragua v.
the United States of America over a decade ago.5

   Of course, if necessary, I could also sue the United States
before the International Court of Justice for aiding and abetting
Israeli genocide against the Palestinian People in violation of
Article III(e) of the 1948 Genocide Convention that expressly
criminalizes "complicity" in genocide.  This separate lawsuit against
the United States would be similar to the proceedings that President
Izetbegovic of the Republic of Bosnia and Herzegovina authorized me to
institute against the United Kingdom on 15 November 1993 for aiding
and abetting Serbian genocide against the Bosnian People.  In this
regard, you should consult the Statement of Intention by the Republic
of Bosnia and Herzegovina to Institute Legal Proceedings Against the
United Kingdom Before the International Court of Justice of 15
November 1993, which I drafted for the Republic of Bosnia and
Herzegovina and filed with the International Court of Justice on that
same day.

   The Bosnian U.N. Ambassador Muhamed Sacirbey also circulated
this Statement to the Member States of both the General Assembly and
the Security Council as an official document of the United Nations
Organization.6  This document should give the reader a fairly good
idea of the legal basis for Palestine to sue the United States at the
World Court for aiding and abetting Israeli genocide against the
Palestinian People.7  In regard to this proposed lawsuit, the U.S.
government's reservation to Article IX of the Genocide Convention is
invalid and severable.

   Quite obviously, I cannot promise the Palestinian People a
clear-cut victory in these two lawsuits.  But the mere filing of this
genocide lawsuit against Israel at the World Court would constitute a
severe defeat for Israel in the Court of World Public Opinion.  The
Palestinian filing of this genocide lawsuit in 1998 would deliver yet
another body-blow to Israel along the same lines of the major
body-blow already inflicted on Israel by the creation of the State of
Palestine in 1988.  Israel has never recovered from the creation of
the Palestinian State.  So too, Israel will never recover from this
genocide lawsuit brought against it by Palestine before the
International Court of Justice.  Likewise, the United States
government will never recover from a World Court lawsuit brought
against it by Palestine for aiding and abetting Israeli genocide
against the Palestinian People.

   For these reasons, then, I would ask all the Palestinian People
around the world to give the most serious consideration to backing my
proposals:  Tell the Provisional Government of the State of Palestine
and its President to sue Israel for genocide before the International
Court of Justice!  Tell the Provisional Government of the State of
Palestine and its President to sue the United States before the
International Court of Justice for aiding and abetting Israeli
genocide against the Palestinian People!  May God be with the
Palestinian People at this difficult time in your Nation's history.

Notes

   1.  See Francis A. Boyle, The International Legal Right of the
Palestinian People to Self-determination and an Independent State of
Their Own, 12 Scandinavian J. Development Alternatives, No. 2 & 3, at
29-46 (June-Sept. 1993); The Future of International Law and American
Foreign Policy 135-96, 268-73 (1989) (Creating the State of
Palestine).

   2.  Id.

   3.  See Francis A. Boyle, The Bosnian People Charge Genocide
(1996).

   4.  See note 1 supra.

   5.  See, e.g., Francis A. Boyle, Determining U.S. Responsibility
for Contra Operations Under International Law, 81 Am. J. Int'l L.
86-93 (1987); Defending Civil Resistance Under International Law
155-210 (1987).

   6.  See U.N. Doc. A/48/659-S/26806, 47 U.N.Y.B. 465 (1993).

   7.  See also John Quigley, Complicity in International Law:  A
New Direction in the Law of State Responsibility, 57 Brit. Y.B. Int'l
L. 77-131 (1986).

The Common Ills

Sunday, May 16, 2021

Palestine Should Sue Israel for Genocide at the World Court!

[NYTr] Boyle: Palestine Should Sue Israel for Genocide

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