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Francis A. Boyle: Palestine – Sue Israel For Genocide Before the International Court of Justice (1998)

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).

 

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