Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954 (voice)
217-244-1478 (fax)
fboyle@law.uiuc.edu(personal comments only)
ViolationS of International Law
Middle East International
Sept. 3, 1982, at 11
Francis a. boyle (univesity of illinois), Richard a. falk (princeton University), C. Clyde ferguson, Jr. (Harvard law School), Roger Fisher (harvard law school), Stanley hoffmann (harvard University), W. Thomas Mallison (George Washington University).
The invasion of Lebanon by the government of Israel constitutes a violation of UN Charter article 2(3), mandating the peaceful settlement of international disputes, as well as the article 2(4) prohibition on the threat or use of force in international relations against the territorial integrity or political independence of any state. Despite the assertions of Israeli Prime Minister Begin before the General Assembly, the invasion cannot be excused as a legitimate exercise of the right of self-defense recognized by article 51 of the Charter and accepted principles of customary international law concerning the use of force.
The PLO is likewise bound by the article 2(3) and 2(4) obligations, and the Lebanese government must not allow its territory to be used in a manner violative of international law. Nevertheless, the PLO cannot be held legally responsible for every act of violence perpetrated against Israel that occurs anywhere in the world, but only to the extent that the Israeli government can produce clear and convincing evidence of specific actions sanctioned by the PLO. The evidentiary record establishes that during the preceding year, the PLO has in good faith adhered to the terms of the cease-fire applicable to the Lebanese-Israeli border that had been successfully negotiated last summer by President Reagan’s special envoy for the crisis. Consequently, the PLO has not launched any “armed attack” upon Israel as required by article 51 before the latter can resort to the use of force to defend itself. It is Israel that has “attacked” Lebanon and the PLO in violation of its international legal obligations.
Even assuming the contemporary international legal order still recognizes the regressive doctrine of pre-emptive self-defense, the Israeli invasion of Lebanon fails to meet that test as well. As definitively stated by U.S. Secretary of State Daniel Webster in the case of The Caroline, the “necessity of that self-defence [must be] instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Furthermore, Israel cannot invoke the antiquated doctrines of intervention, protection and self-help to justify the invasion, because these were soundly repudiated by a decision of the International Court of Justice in the Corfu Channel Case (1949) as totally incompatible with the proper conduct of international relations in the post-World War II era.
Three seminal U.N. General Assembly resolutions have firmly established the fundamental proposition that non-consensual military intervention by one state into the territorial domain of another state is prohibited for any reason whatsoever: The Declaration on the Inadmissibility of Intervention (1965); The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (1970); and the Definition of Aggression (1974). At least the Arab Deterrent Force, composed primarily of Syrian troops, had been stationed in Lebanon with the consent of the Lebanese government and conducted its peacekeeping operations with the approval of the League of Arab States, which is the appropriate regional arrangement under Chapter 8 of the U.N. Charter for sanctioning such activities.
Finally, the Israeli invasion of Lebanon has violated the basic principle of customary international law dictating proportionality in the use of force, applicable to even a legitimate exercise of the right to self-defense. The massive scale of death, destruction, dislocations and suffering inflicted by the Israeli army in Lebanon is egregiously disproportionate to any harm that has been perpetrated upon Israel or to any serious threat to its legitimate national security interests posed by the presence of the PLO in Lebanon.
The four Geneva Conventions of 1949 apply in their entirety to the conduct of hostilities by Israel in Lebanon. Additional Protocol 1 (1977) indicates that the members of the PLO who have been captured by the Israeli army should be treated as prisoners of war within the meaning of the Geneva Accords. At the very minimum, captured members of the PLO and other individuals affiliated with them together with all Lebanese and Palestinian civilians, are entitled to the full panoply of protections set forth in the Fourth Geneva Convention and the customary international law of belligerent occupation. Statements by the Israeli government that captured PLO members will be treated as “terrorists” and thus presumably deprived of their protected status under the Geneva Conventions would, if acted upon, constitute a grave violation of the humanitarian laws of armed conflict that have been universally accepted by all civilized states.
As a party to the Geneva Conventions of 1949 the Untied States government has an obligation to respect and to ensure respect for their observance by all other contracting powers. This obligation becomes irresistibly compelling in a situation where Israel has been enabled to invade Lebanon by means of weapons, munitions and supplies provided primarily by the United States government at concessionary rates. To the extent the US government does not prevent Israel from using American weapons in explicit violation of international law and of U.S. domestic statutes applicable to arms transfer agreements, it must assume full legal responsibility before the international community for such proscribed activities committed by Israel in Lebanon. Under the circumstances the United States has an absolute duty to employ the tremendous leverage over Israel afforded by its arms supply relationship in order to secure the latter’s strict obedience to the laws of war and its immediate and unconditional withdrawal from Lebanon as required by U.N. Security Council Resolution 508 (1982) and Resolution 509 (1982), which are legally binding on Israel under Charter article 25.
The Israeli government has no right under international law to intervene in the domestic affairs of Lebanon by dictating the terms of some future government as a condition for the withdrawal of its troops. The future of the Lebanese government must be determined by the Lebanese people without interference or compulsion from any external source. The most effective means to ensure the success of this endeavor is for the Israel immediately to withdraw its troops from Lebanon and to turn over evacuated territory to the Lebanese army, where possible, or to the United Nations Interim Force in Lebanon (UNIFIL). The ultimate disposition of the Arab Deterrent Force should be determined by the League of Arab States in accordance with the wishes of the Lebanese government expressed after an Israeli military withdrawal.
The United States must actively oppose any proposals by the Israeli government to establish some type of international police force in Lebanon that is not under the jurisdiction of the United Nations Security Council. Israeli charges that UNIFIL cannot be trusted because the U.N. is biased against Israel obfuscate the fact that UNIFIL operates under the auspices of the Security Council (where the United States can, if necessary exercise a veto power) not under the General Assembly. The evidentiary record clearly establishes that UNIFIL has proven to be quite effective at preventing the large-scale infiltration of PLO fighters across the Israeli-Lebanese border. A renewed and strengthened mandate for UNIFIL will continue to perform this task until the Lebanese army is reconstituted as an effective and independent military force under the control of the central government. In this regard Israel must also dismantle the Lebanese Christian enclave it has created along the border, whose members have so far illegally resisted the interposition of UNIFIL troops with the collusion of the Israeli government.
A long-term solution to the problems of Lebanon can only be found when Israel is willing to recognize the international legal right of the Palestinian people to self-determination. Neither Egypt, Israel, the United States, nor Jordan have any right under international law to negotiate on behalf of the Palestinian people. Both the U.N. General Assembly and the League of Arab States have determined that the PLO is the legitimate representative of the Palestinian people. That determination must be respected by Israel and the Untied States for the purpose of negotiating an overall settlement on the ultimate disposition of the West Bank, the Gaza Strip and the East Jerusalem. Mutual and simultaneous recognition of their respective rights under international law by Israel and the PLO must be the next stage in the development of the Middle East peace process.
Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954 (voice)
217-244-1478 (fax)
fboyle@law.uiuc.edu
(personal comments only)
FRANCIS BOYLE
PART TWO
NUCLEAR FLASHPOINT IN THE MIDDLE EAST
Chapter 4
Dissensus Over Strategic Consensus
The Machiavellian Origins of Strategic Consensus
At the outset of the Reagan administration, Secretary of
State Alexander Haig and his mentor, Henry Kissinger, devoted a good
deal of time to publicly lamenting the dire need for a "geopolitical"
approach to American foreign policy decision making, one premised on a
"grand theory" or "strategic design" of international relations. Their
conceptual framework toward international affairs consisted essentially
of nothing more sophisticated than a somewhat refined and superficially
rationalized theory of Machiavellian power politics. Consequently, Haig
quite myopically viewed the myriad of problems in the Middle East
primarily within the context of a supposed struggle for control over the
entire world between the United States and the Soviet Union. Haig
erroneously concluded that this global confrontation required the United
States to forge a "strategic consensus" among Israel, Egypt, Jordan,
Saudi Arabia, and Pakistan in order to resist anticipated Soviet
aggression in the region.
In reality, Haig's proclaimed objective of founding a
U.S. centered "strategic consensus" in the Middle East quickly
degenerated into a reincarnated version of Kissinger's "Nixon Doctrine,"
whereby regional surrogates were intended to assist the United States
"police" its spheres of influence throughout the world by virtue of
massive American military assistance. According to Haig's logic, Israel
would become America's new "policeman" for stability in the Middle East,
filling the position recently vacated by the deposed Shah of Iran, whom
the Nixon/Kissinger administration had unsuccessfully deputized to serve
as America's "policeman" for Southwest Asia. Hence, the Reagan
administration would more fully support the Israeli government of Prime
Minister Menachem Begin, even during the pursuit of its patently illegal
policies in Lebanon (e.g., "preemptive retaliation" against the PLO;
preservation of Haddad's Christian enclave along the border; provision
of military assistance to the Phalange) and in the territories occupied
as a result of the l967 and 1973 wars (e.g., construction of Jewish
settlements; deportation of inhabitants; collective punishments; the
so-called Milson Reforms). Courtesy of the United States government,
Israel's overwhelming military superiority over any Arab state or
combination thereof except Egypt, which had been effectively neutralized
by its l979 peace treaty with Israel,1 would make the Israeli army an
ideal surrogate for spearheading the forceful concatenation of Haig's
"strategic consensus" in the Middle East.
Whereas the Shah fell over internal domestic conditions
that were only exacerbated by the large-scale U.S. political and
military presence in Iran, Haig's scheme was fatally flawed from the
very moment of its conception. Haig totally disregarded the fundamental
realities of Middle Eastern international politics, where traditionally
all regional actors have been far more exclusively concerned about their
relationships with surrounding neighbors than about some evanescent
threat of Soviet aggression. The more immediate danger to stability in
the Middle East was not the distant prospect of Soviet intervention but
rather a continuation of the ongoing Israeli-Arab conflict.
Nevertheless, the Begin government shrewdly manipulated
Haig's Machiavellian delusions in order to procure from the Reagan
administration either active American support for, or tacit acquiescence
in, or at least merely rhetorical opposition to various elements of a
comprehensive scheme of internationally lawless behavior that was
designed to impose a pax hebraeica upon the region. The creation of
peace in the Middle East demanded vigorous American leadership acting in
strict accordance with the rules of international law and in full
cooperation with the relevant international institutions (e.g., the U.N.
Security Council). Instead, with the active collusion of the Reagan
administration, the Begin government launched a unilateral policy of
hegemonial imperialism that would render Israel a pariah state within
the international community, produce a series of unmitigated disasters
for the United States, seriously undermine the integrity of the
international legal order, and almost irreparably set back the cause of
peace in this turbulent region of the world.
The Counterproductivity of Arms Sales
Pursuant to Haig's "strategic consensus" rationale, the
better part of the Reagan administration's first year in office was
improvidently exhausted trying to obtain Congressional approval for its
proposed sale of the AWACS system to Saudi Arabia. The Reagan
administration chose to rely upon the wholesale provision of American
military equipment to various governments in the Middle East as an
ineffectual and ultimately self-defeating substitute for the hard task
of formulating a set of coherent principles for the conduct of American
foreign policy on some basis other than Haig's Machiavellian
predilections. The Reagan administration's promiscuous purveyance of
sophisticated American weapons systems and technologies to Israel, Saudi
Arabia, and Jordan proved to be a most disruptive factor when added to
the endemic conflicts already prevalent in the region.
As events in Iran recently demonstrated, U.S. arms sales
can easily become counterproductive. Any U.S. arms transfer policy
should have been based upon the legitimate defensive needs of these
countries as defined by international law and interpreted in good faith
by the United States government. Unilateral and self-serving policy
pronouncements by these foreign governments did not provide adequate
criteria. Thus the Reagan administration should never have offered
complicated weapons systems to the Saudi government, let alone a
guarantee of survival against its internal adversaries (i.e., the
so-called Reagan Corollary to the Carter Doctrine), simply in order to
curry favor and thus secure a stable flow of expensive oil to the West.
Or to Jordan for the purpose of creating a regional surrogate for the
U.S. Rapid Deployment Force designated for probably illegal military
intervention throughout the Middle East.
Nor should such American weapons systems have been given
to any state in this region of the world that manifested a distinct
tendency to employ them in a manner violative of international law.
Hence, during the summer of 1981, the illegal Israeli air strikes with
American-made planes and weapons systems against the Iraqi nuclear
reactor as well as against the PLO headquarters in Beirut, followed by
Israel's blatantly illegal invasion of Lebanon one year later, should
have created grounds for additional concern and reevaluation by the
Reagan administration.2 Israel bore a heavy burden of proof in regard
to pending American arms transfers that was not discharged in a manner
satisfactory to the essential requirement of both international and U.S.
domestic law that they only be used for the purposes of legitimate
self-defense.
The Israeli Invasion of Lebanon
The next several years of the Reagan administration's
foreign policy toward the Middle East were fruitlessly spent trying to
cope with the tragic consequences resulting from the Israeli invasion of
Lebanon.3 Consistent with Haig's "strategic consensus" policy, there
were several indications from the public record that the Reagan
administration willingly consented in advance to the Begin government's
flagrantly illegal invasion of Lebanon shortly after Israel had
completed its withdrawal from the Sinai on April 25, 1982 pursuant to
its 1979 peace treaty with Egypt. This second invasion of Lebanon by
the Begin government constituted a clear-cut violation of U.N. Charter
articles 2(3)4 and 33, mandating the peaceful settlement of
international disputes, as well as the article 2(4) prohibition against
the threat or use of force in international relations directed against
the territorial integrity or political independence of any state, that
could not be excused as a legitimate exercise of the right of
self-defense recognized by article 51 or by accepted principles of
customary international law concerning the use of force. The Israeli
invasion of Lebanon was clearly intended to destroy the PLO, establish a
Phalangist puppet government in Beirut, drive the Arab Deterrent Force
composed primarily of Syrian troops out of Lebanon, and further
consolidate Israel's illegal military occupation of the West Bank, Gaza
Strip, and Jerusalem. The Begin government's 1982 invasion of Lebanon
was simply part of its announced intention to implement the gradual de
facto annexation of these occupied territories in explicit violation of
U.N. Security Council Resolutions 242 (1967)5 and 338 (1973),6 as well
as of the Fourth Geneva Convention of 19497 and the basic principle of
customary international law prohibiting the annexation of occupied
territories prior to the formal termination of hostilities.
By its sponsorship of the Israeli invasion of Lebanon,
the Reagan administration committed a "crime against peace" as defined
by the Nuremberg Principles.8 Accordingly, to the extent the Reagan
administration permitted Israel to use American weapons in explicit
violation of international law and of U.S. domestic statutes applicable
to arms transfer agreements, it had to assume full legal responsibility
for all further crimes against peace, crimes against humanity, and war
crimes committed or condoned by Israel and its allied Phalange and
Haddad militia forces operating in Lebanon. Such American accomplice
liability would include the savage massacre of several hundred innocent
Palestinian and Lebanese civilians by organized units of the Phalangist
militia at the Sabra and Shatila refugee camps in West Beirut.9 As the
Occupying Power in West Beirut at the time, Israel was fully responsible
under international law for the barbarous treatment inflicted upon these
innocent Palestinian and Lebanese refugees by the Phalange militia.
As a party to the Four Geneva Conventions of 1949, the
United States government had an affirmative obligation under common
article 1 to respect and to ensure respect for their observance in all
circumstances by other contracting powers such as Israel.10 This
obligation became irresistibly compelling in a situation where Israel
was enabled to invade Lebanon by means of weapons, munitions, and
supplies provided primarily by the U.S. government at concessionary
rates. Under these and numerous other circumstances of complicity, the
Reagan administration had an absolute duty to employ the tremendous
leverage over Israel afforded by its arms supply relationship and
economic subsistence in order to secure strict obedience to the
humanitarian laws of armed conflict by Israel and its allied Phalange
and Haddad militias, as well as to obtain Israel's immediate and
unconditional withdrawal from Lebanon as required by U.N. Security
Council Resolutions 508 (1982)11 and 509 (1982),12 both of which were
legally binding on Israel and the United States under Charter article
25.13 Yet the Reagan administration willfully refused to perform even
these most elementary obligations incumbent upon it under international law.
The Gemayel Puppet Government
Alexander Haig's rubber-stamp ratification of the
grandiose scheme by Begin and his Defense Minister Ariel Sharon to
exterminate the PLO leadership in Beirut at the disproportionate cost of
inflicting horrendous civilian casualties, and to physically oust Syrian
troops from Lebanon at the substantial risk of precipitating a general
war between Israel and Syria proved to be an enterprise too brutal,
inhumane and dangerous for most Reagan administration stalwarts to
endorse. The White House effectively forced Haig to resign less than
three weeks after the start of the Lebanon invasion, and George Shultz
took his place on July 16. Shultz should have seized the opportunity
presented by a transition in power to completely repudiate the
misconceived policies of his Machiavellian predecessor. But under the
direct tutelage of Henry Kissinger and his protigis, the ignorant and
impressionable Shultz wholeheartedly embraced the Kissinger/Haig
"strategic consensus" approach to U.S. Middle East foreign policy
decision making. The Reagan administration would quite imprudently
continue to rely upon the Israeli army for the imposition of America's
will upon Lebanon despite the Begin government's manifest propensity for
recalcitrance, atrocities and generally lawless behavior.
Thus Shultz readily approved the Begin-Sharon plot to
install a minority Phalangist regime in power at Beirut for the twin
purposes of establishing pro-Israeli central control over the warring
factions in Lebanon, as well as negotiating an overall peace settlement
decisively favorable to Israel. The Phalangist regime of Amin Gemayel
was created by and as a surrogate for the Israeli and American
governments that never represented anything more than a minority faction
among several groups fighting for control over Lebanon. Given the
circumstances surrounding the self-styled election of the Gemayel regime
amidst a cordon of Israeli troops, it would most accurately be
characterized under international law as a "puppet government." Indeed,
the Gemayel regime never exerted effective control over any region of
Lebanon except for a few limited sectors in the city of Beirut.
Essentially, therefore, Amin Gemayel was never even the "Mayor of
Beirut," let alone the President of all Lebanon and all Lebanese.
Consequently, the Gemayel regime possessed absolutely no
authority under international law to request U.S. military intervention
for the purpose of defeating its internal adversaries. The Reagan
administration's accession to its puppet government's request
constituted an impermissible act of intervention into Lebanon's civil
war that violated the international legal right of the Lebanese people
to self-determination as recognized by article 1(2) of the U.N. Charter.
The basic principle of international law and politics dictating
nonintervention in the domestic affairs of another state indicated quite
clearly that the Reagan administration should have refrained from taking
sides in favor of the Phalangists.
If the Reagan administration had really wanted to restore
peace and stability to Lebanon, it should have worked in conjunction
with the U.N. Security Council and its already present U.N. Interim
Force in Lebanon (UNIFIL) to create political, military, and economic
conditions that could have eventually permitted the establishment of a
truly independent and representative government acceptable to all of
Lebanon's diverse ethnic and religious groups. Instead, the Reagan
administration unquestioningly accepted at face value the Begin
government's spurious charge that UNIFIL could not be trusted because
the United Nations Organization as a whole was supposedly biased against
Israel. This self-serving canard obfuscated the legal and political
fact that UNIFIL operated under the auspices of the U.N. Security
Council, not the General Assembly, where the United States could have
exercised a veto power if necessary to protect Israel's legitimate
security needs as defined by international law. The record of evidence
clearly established that UNIFIL had proven to be quite effective at
preventing the large-scale infiltration of PLO fighters across the
Israeli-Lebanese border from the moment of its installation after the
Begin government's first invasion of Lebanon in 1978.14 A renewed and
strengthened mandate for UNIFIL would have enabled it to continue to
perform that task until the Lebanese army was reconstituted as an
effective military force under the control of a truly independent and
representative central government.
U.S. Military Intervention in Lebanon
By contrast, the Reagan administration pursued the exact
opposite course of conduct, which produced predictably disastrous
consequences for the Lebanese people as well as for U.S. marines and
diplomats stationed in Lebanon. Since UNIFIL was subject to the
jurisdiction of the U.N. Security Council, the Reagan administration
could not have manipulated UNIFIL to buttress the minority Phalangist
regime against its internal rivals. Hence the United States and Israel
launched a conscientious and coordinated effort to eviscerate and
eventually supplant UNIFIL in order to expand the power of their puppet
Gemayel government. To accomplish that illicit objective, the Reagan
administration first proceeded unilaterally to introduce a U.S. marine
corps expeditionary force into Beirut.15
When the lawless transparency and pernicious consequences
of this maneuver became obvious to the U.S. Congress and the American
people, the Reagan administration then induced its NATO allies to
contribute troops toward the formation of a self-styled "multinational
force" in order to provide a thin veneer of multilateral legitimacy.
But the "multinational force" had absolutely no authorization from
either the United Nations, the League of Arab States, or any other
source recognized as valid by the contemporary international legal order
to perform its so-called peacekeeping activities in Lebanon that were
really designed to bolster Gemayel against his political adversaries.
Even more ominously, the presence of the "multinational force" that
consisted of troops drawn from NATO countries in the environs of Beirut
raised the specter of rapid escalation into a general European war in
the then likely event of a Sharon-inspired clash by the Israeli army
with Soviet troops stationed in Syria and operating in the Bekaa Valley.
The U.S. War Powers Act of 197316 mandated that President
Reagan remove the American marine contingent he introduced into Lebanon
on September 29, 1982 within sixty days, unless Congress specifically
authorized their continued use. Yet the marines remained and needlessly
endured enormous casualties until February of 1984. The U.S. Congress
should have adamantly insisted that the President respect its
constitutional and statutory prerogatives in this matter by demanding
that all American military forces be immediately withdrawn from Beirut
and their positions occupied by UNIFIL troops. UNIFIL would have proven
far more effective at keeping the peace among the various factions in
Lebanon and at protecting the lives of innocent Palestinian and Lebanese
civilians from additional gross violations of their fundamental human
rights perpetrated by the Phalangists, the Haddad militia forces, and
other irregular paramilitary groups organized by the IDF than American
marines and some "multinational force" ever could have.
The Shultz "Peace Treaty" for Lebanon
For equally Machiavellian reasons, the Reagan
administration willingly acquiesced in the Begin government's
dissembling claim that the arguably lawful presence of the Arab
Deterrent Force (ADF) in eastern and northern Lebanon somehow justified
the egregiously illegal occupation of southern Lebanon by the Israeli
army. The ADF, composed primarily of Syrian troops, had been stationed
in Lebanon and conducted its peacekeeping operations with the consent of
the Lebanese government and with the approval of the League of Arab
States. The League was the appropriate regional organization under
Chapter 8 of the U.N. Charter for the purpose of sanctioning such
international peacekeeping activities in a member state such as Lebanon.
Indeed, with the explicit encouragement of the U.S.
government during the Ford/Kissinger administration, Syrian troops had
originally intervened into the Lebanese civil war in 197617 to protect
the Maronite Christian forces from defeat by the PLO, though without
obtaining prior approval from the Lebanese government. In this matter
Syria simply followed the international legal precedent already set by
the U.S. government in order to legitimize, on an ex post facto basis,
its illegal military intervention into and occupation of the Dominican
Republic in 1965. Thereafter, the Johnson administration resorted to
the Organization of American States for its approval to transform
American soldiers into an Inter-American Peacekeeping Force.18 Thus, by
virtue of its behavior in both 1965 and 1976, the U.S. government was
effectively estopped from denying in 1982 that the League of Arab States
could lawfully authorize the occupation of Lebanon by Syrian troops
integrated into the Arab Deterrent Force, provided (1) the ADF had the
consent of the Lebanese government, (2) it was subject to the overall
supervisory jurisdiction of the League, and (3) it operated for the
limited purpose of ameliorating the civil war that then mercilessly
raged throughout the country.
Nevertheless, the Reagan administration's acceptance of
Begin's unjustifiable "linkage" between IDF and ADF withdrawals from
Lebanon became the guiding principle for the one-sided negotiations
imposed upon Gemayel by Israel that were brokered by U.S. diplomats.
These desultory talks eventually resulted in the conclusion of what the
Begin government touted as a "peace treaty" that essentially would have
established a nineteenth-century-style colonial protectorate over
southern Lebanon by Israel. Because it was procured by means of the
blatant threat and use of force in egregious violation of the most basic
principles of international law, this May 17, 1983 Agreement on Troop
Withdrawal19 concluded between the regime of Amin Gemayel and the Begin
government under the personal auspices of George Shultz was void ab
initio under article 52 of the 1969 Vienna Convention on the Law of
Treaties.20 The agreement was entitled to absolutely no international
legal significance whatsoever. The Reagan administration's mere
attribution of any semblance of legal validity to this document simply
constituted a reward to the Begin government for the aggression it had
perpetrated against Lebanon.
The foreign and domestic policies of Lebanon should have
been determined by the Lebanese people themselves without interference
or compulsion from any external source. The most effective means to
have ensured the success of this endeavor would have been for the Reagan
administration to demand that Israel immediately withdraw its troops
from Lebanon and turn over evacuated territory to UNIFIL without any
prior conditions. An expanded and strengthened mandate for UNIFIL could
then have been obtained from the U.N. Security Council that eventually
would have permitted the withdrawal of the Arab Deterrent Force by the
League of Arab States at the request of a truly independent and
representative Lebanese government, and the deployment of UNIFIL troops
along the Lebanese-Syrian border in the ADF's positions. UNIFIL could
have remained in Lebanon for as long as a truly independent and
representative government felt it was needed to ensure the restoration
of internal peace and stability to that country and in its foreign
relations with immediate neighbors.
By the fall of 1984, the new Israeli coalition government
organized under the joint leadership of Shimon Peres and Yitzhak Shamir
intimated that Israel might finally be prepared to consider an expanded
role for UNIFIL as a major element of some troop withdrawal
arrangement.21 The height of tragic irony here was that the Begin
government, acting in cooperation with the Reagan administration, could
have easily obtained an invigorated mandate for UNIFIL from the U.N.
Security Council in the spring of 1982. But for their own deranged
reasons, Begin and Sharon, aided and abetted by Haig and Reagan,
preferred an IDF invasion to a UNIFIL expansion. As a direct result,
over twenty thousand people were wantonly killed in Lebanon, including
almost six hundred fifty Israeli soldiers and three hundred American
soldiers and diplomats, all of whom needlessly lost their lives.22 The
Israeli invasion of Lebanon shall stand as one of the great
international crimes of the post World War II era. Yet so far domestic
public opinion in Israel and the United States have not held their
respective popularly elected leaders accountable for the commission of
numerous crimes against peace, crimes against humanity, war crimes,
grave breaches of the Geneva Conventions, and acts of genocide in
Lebanon. Have both the Israeli and the American peoples so readily
forgotten the Nuremberg Principles?
The Reagan Administration's Middle East "Peace Plan"
Because of the presence of almost 350,000 Palestinian
refugees in Lebanon, a long-term solution to the problems of that
country can only be achieved when Israel is willing to recognize the
international legal right of the Palestinian people to
self-determination. Despite the Camp David Accords,23 neither Egypt,
Israel, the United States, nor Jordan has any right under international
law to negotiate on behalf of the Palestinian people. Yet that is
precisely what the Reagan administration proposed to do when it
announced its stillborn Middle East "peace plan" on September 1, 1982.
Not surprisingly, as reported by Morton Kondracke in The New Republic of
October 4, 1982,24 the progenitor of the so-called Reagan Peace Plan was
none other than Henry Kissinger, who stole the idea from an October 1976
article in Foreign Affairs by former Israeli Deputy Prime Minister Yigal
Allon.25
From the perspective of international law, the
Reagan/Allon Plan was severely deficient for a number of basic reasons.
First, and foremost was the fact that Reagan administration had
absolutely no right or standing under international law to exclude
unilaterally and in advance of any negotiations the creation of an
independent sovereign state on the West Bank and Gaza Strip from among
the various options open to the Palestinian people when they finally
have the opportunity to exercise their international legal right of
self-determination. When the Reagan administration unilaterally
foreclosed the option of an independent sovereign state to the
Palestinian people, it betrayed the fact that the keystone of its
foreign policy toward the Middle East still remained considerations of
Machiavellian power politics. By universal acclamation, such despicable
motivations are not entitled to the respect of other nations or the
support of the American people.
With the inglorious defeat and withdrawal of the U.S.
sponsored multilateral interventionary force in Lebanon during February
of 1984, the Reagan administration purposefully decided to disengage
from any further direct involvement in attempting to resolve the
numerous problems of that country, or even in trying to carry out the
terms of the congenitally defective Reagan Peace Plan against vigorous
Israeli opposition. Instead, the Reagan administration chose to wash
its hands of any further responsibility for the plight of the Lebanese
and Palestinian peoples and left them to the tender mercies of the
Israeli army. But the survivors of the carnage in Lebanon could not
forget the U.S. government's direct responsibility for their suffering,
and in a fit of pathetic rage would lash out against the interests of
the United States throughout the Middle East and Europe. The resurgence
of international terrorist attacks against the United States was the
direct result of the Reagan administration's callous and inhumane
foreign policies toward the Arab states and peoples of the Middle East.
Hence, the subsequent course of the Reagan administration's foreign
policy toward the Middle East would necessarily be consumed by its
self-proclaimed yet self-inflicted holy war against international
terrorism and international law.
Israel's "Iron Fist"
I spent the last two weeks of May 1986 traveling up and
down the West Bank and Gaza Strip and meeting with various
representatives of the Palestinian people. Almost all of them expressed
the opinion that they considered Yasir Arafat and the PLO to be their
sole and legitimate representative. Many also stated that they would be
prepared to live in peace with Israel if only they would be given a
state of their own. No Palestinian I talked with wanted to be returned
to the not-so-tender mercies of the Hashemite King Hussein of Jordan.
No point would be served here by listing the numerous
material breaches of the Fourth Geneva Convention of 194926 and the 1907
Hague Regulations27 that are practiced by Israeli occupation authorities
on a daily basis in the West Bank, Gaza Strip and Jerusalem: torture,
murder, unlawful detention, deportations, collective punishments,
confiscation of private property, construction of illegal settlements,
etc. When I complained about these reprehensible practices to the
appropriate high-level legal officials at the Israeli Ministry of
Defense, the Ministry of Justice and the Ministry of Foreign Affairs, I
was told that they were all required by and could be justified under the
doctrine of "military necessity."28 Rather than engaging in an extended
debate over this point, I simply responded to all these lawyers that
this was precisely the argument used by the Nazi war criminals before
the Nuremberg Tribunal in 1945 to justify their own incredible outrages
upon humanity, including the Jewish people. The international community
did not accept these arguments in 1945, and I opined that they would not
accept them as of 1986.
Even more distressingly, upon a visit to the office of
the Legal Adviser to the Foreign Ministry to discuss the prospects for
peace, I was immediately informed that Israel had a "claim" under
international law to the West Bank: it might not constitute the basis
for perfect title, but it was nevertheless a "claim." At the time I
recalled the fact that of course Hitler had a "claim" to the Sudetenland
as well. Although the Munich Pact of 1938 permitted German occupation
and annexation of the Sudetenland into the Reich, this act of cowardice
by Great Britain and France ultimately paved the way for the outbreak of
the Second World War one year later, with all the tragic consequences
that conflagration entailed for the Jewish people, among others.
Today, the United States and Israel are striving to
consummate a Middle East version of the Munich Pact that will sell out
the right of the Palestinian people to self-determination. Only history
will tell if the consequences shall be as tragic for the fate of the
Arab and Jewish peoples in the Middle East, if not the rest of the
world. I fear that there is a high probability that history will repeat
itself.
What most concerned me, however, was the total absence of
any concern on the part of high-level Israeli government officials to
negotiate a deal with the Palestinian people on the basic principle of
trading land for peace. Clearly, in the former's estimation, the land
is far more important than the peace, especially when the United States
government is willing to bankroll the Israeli economy, army, and
occupation policies. Meanwhile, the Israeli government continues to
consolidate its de facto annexation of the West Bank and Gaza Strip, and
has already formally but illegally annexed the Golan Heights and all of
Jerusalem.29 The massive uprising by the Palestinian people in the West
Bank, Gaza Strip, Jerusalem and Israel-proper starting in December of
1987 was a natural reaction to what they perceive to be the tragic
plight of hopelessness, oppression, desperation and injustice that has
been inflicted upon them since at least 1947.
During my 1986 trip to Palestine, I was particularly
struck by a conversation I had with a young Palestinian college student
at An Najah University. To paraphrase his statement: "We Palestinians
are a peaceful people and would be willing to live in peace with the
Israelis if only they would leave us alone. But after twenty years of a
very brutal military occupation, no one has done anything to help us.
If we are going to make any progress, then we will have to become like
the Irish and turn our country into Belfast. The IRA have gotten
somewhere. So have the comrades in South Africa. We must follow their
example!" That is precisely how Palestinian youths in the West Bank,
Gaza Strip, Jerusalem, Israel-proper, and the diaspora feel today. The
entire world has now witnessed the awesome manifestation of their
justifiable rage. If U.S. and Israeli leaders had any foresight and
compassion, or even basic commonsense, they would strike a deal with
Arafat and the PLO for a two-state solution before it becomes too late.
If history is any judge, however, it is highly unlikely
that the leadership elites of either Israel, or more importantly, of the
United States will demonstrate the requisite degree of sagacity on their
own accord. For example, toward the end of my 1986 trip to Palestine, I
visited the U.S. Embassy in Tel Aviv to complain about some of the
Israeli occupation practices. An assistant U.S. political attachi
informed me that such matters concerned "internal affairs" of the
Israeli government. I stridently objected: Under basic rules of
international law, the Israeli government is what is known as a
"belligerent occupant" of the West Bank, Gaza Strip, Golan Heights, and
Jerusalem. Pursuant to article 4 of the Fourth Geneva Convention of
1949 Relative to the Protection of Civilian Persons in Time of War, all
non-Israelis living in these occupied territories are what are called
"protected persons."30 Article 147 thereof provides that any of the
following acts committed against "protected persons" are "grave
breaches" of the Convention: "wilful killing, torture or inhumane
treatment . . . wilfully causing great suffering or serious injury to
body or health. . . ."31 Furthermore, article 146 mandates all state
parties to impose "effective penal sanctions for persons committing, or
ordering to be committed, any of the grave breaches of the present
Convention. . . ."32 Thus, any Israeli political leaders or military
officers who have ordered or committed such "grave breaches" are "war
criminals" within the meaning of the Geneva Conventions and the
Nuremberg Principles. These Israeli war criminals can and must be tried
by any state in the world community that obtains jurisdiction over them.
Finally, under common article 1 to the Four Geneva
Conventions of 1949, all state parties are obliged not only to respect,
but also "to ensure respect for the present Convention in all
circumstances."33 When a party to the Conventions such as Israel is
committing "grave breaches," such practices are not "an internal affair"
but rather international crimes and therefore a matter of international
concern. The United States government, inter alia, has an absolute
obligation to use its enormous political, military and economic leverage
over Israel to terminate such criminal practices. Yet for the past
forty years the United States government has had no response to make to
the desperate pleas by the Palestinian people for freedom, justice,
dignity, respect and independence--in other words, for
self-determination. After twenty years of an incredibly inhumane
military occupation, the only really effective manner for all states
party to the Geneva Conventions to ensure respect for the terms of the
Fourth Convention in these occupied territories would be to compel
Israeli military forces to withdraw by all means possible, both
individually and collectively.
The Solution
In defensive reaction to American Jewish critics of his
country's latest rendition of the "iron fist" policy against the
Palestinian uprising on the West Bank and Gaza Strip, Israeli President
Chaim Herzog invited the former to propose a constructive alternative.
There has been one solution readily at hand for the past forty years.
On November 29, 1947 the United Nations General Assembly adopted
Resolution 181 (II), which called for the creation of independent Arab
and Jewish states and an international trusteeship for the city of
Jerusalem after the termination of the League of Nations Mandate for
Palestine.34 The international legal right of the Jewish people to
found the sovereign state of Israel stands on no better legal footing
than the international legal right of the Palestinian people to found an
independent state of their own.
The self-determination of peoples has been a fundamental
principle of American foreign policy and of international law and
politics since President Woodrow Wilson's famous Fourteen Points Address
of January 8, 1918.35 That speech set forth the war aims and peace
terms pursued by the U.S. government throughout the First World War, the
last one of which called for the creation of the League of Nations that
ultimately granted the Mandate for Palestine to Great Britain in 1922.36
The fundamental interdependence of universal peace among nations and
the principle of equal rights and self-determination of peoples was
explicitly reaffirmed in article 1(2) of the Charter of the United
Nations, which became the successor to the League.37
As fully documented in the Kahan Commission Report (1983)
and Israeli's Lebanon War (1984) by the Israeli journalists Ze'ev Schiff
and Ehud Ya'ari, the Begin/Sharon government's pursuit of a policy
tantamount to genocide against Palestinian refugees in Lebanon
demonstrated precisely why they require an independent state of their
own in order to better protect their physical existence and to preserve
their cultural heritage. In the aftermath of the Second World War,
identical sentiments motivated the international community to support
the creation of the state of Israel for the protection of the Jewish
people against a repetition of the Nazi holocaust. Despite dramatic
improvements in the utility of international human rights law in direct
reaction to the genocidal horrors of World War II, as Woodrow Wilson
correctly foresaw, an independent state still remains the only effective
means that the international community has so far devised to defend one
national group from physical and cultural annihilation by another
national group.
There will be no peace in the Middle East until the
Palestinian people are likewise given the opportunity to exercise their
international legal right of self-determination in whatever manner they
choose, not in accordance with a limited set of alternatives
pre-selected for them by the United States in collusion with Israel,
Egypt, and Jordan. Both the U.N. General Assembly and the League of
Arab States have determined that the PLO is the legitimate
representative of the Palestinian people.38 That determination must be
respected by the United States, Israel and Egypt for the purpose of
negotiating an overall settlement on the ultimate disposition of the
West Bank and Gaza Strip.
Revise Resolution 242
Mutual and simultaneous recognition of their respective
rights under international law by Israel and the PLO must become the
next stage in the development of the Middle East peace process. In this
regard, there is one constructive step a successor government to the
Reagan administration can undertake to break the current logjam and open
the way for a negotiated peace between Israel and the Palestinians. The
U.S. government should sponsor an amendment to U.N. Security Council
Resolution 242 (1967)39 along the following lines:
First, this amendment would affirm explicitly the
international legal right of the Palestinian people to
self-determination, including an independent state of their own. This
could be accomplished in part by having a revised Resolution 242 approve
and adopt Resolution 181(II), thus confirming a two-state solution to
the current problems of the former Palestine Mandate. The PLO has
already publicly stated its willingness to accept Resolution 242 in
conjunction with Resolution 181(II), inter alia. Israel has already
officially agreed to abide by both resolutions.
Second, with respect to the need for ensuring Israel's
existence, a revised Resolution 242 would continue to affirm the
necessity for "termination of all claims or states of belligerency and
respect for and acknowledgement of the sovereignty, territorial
integrity and political independence of every state in the area and
their right to live in peace within secure and recognized boundaries
free from threats or acts of force."
Finally, Resolution 242 should be amended specifically to
protect the state of Israel by name, which it does not now do, as well
as the state of Palestine by name, which it does not now do.
Such a revised Resolution 242 should then be proposed for
acceptance to Israel and the PLO. Their mutual and simultaneous
acceptance of a revised Resolution 242 could then serve as the basis for
opening formal negotiations over the ultimate disposition of the West
Bank and Gaza Strip among the parties directly concerned (i.e., Israel,
the PLO, and Jordan). A separate set of negotiations directly between
Israel and Syria could deal with the permanent demilitarization of the
Golan Heights and their return to Syria. Both sets of direct
negotiations could occur within the overall framework of an
international peace conference held under the auspices of the United
Nations Security Council, which ultimately will have to approve and
guarantee whatever peace settlements are finally reached between the
parties directly concerned in their separate sets of negotiations.
Any troop withdrawals, territorial rearrangements and
demilitarization regimes will have to be supervised by a permanent U.N.
Middle East Peace Supervision Force organized under Chapter 7 of the
U.N. Charter and reporting directly to the Security Council. This Force
could not be removed without the Security Council's explicit approval,
including that of all five permanent members, each of which would retain
indefinitely a veto power over the removal of the Force. In that
manner, the U.S. government alone could prevent the hasty departure of
the Force in the face of threatened hostilities. This would solve the
problem that occurred in 1967 when U.N. Secretary General U Thant
withdrew the United Nations Emergency Force (UNEF) from the Sinai. The
U.N. General Assembly had organized UNEF in 1956 as a peacekeeping force
under Chapter 6 of the U.N. Charter. But because of the unique
circumstances surrounding the creation of UNEF, the Secretary General
did not believe that he had the legal authority to insist that UNEF
remain in the Sinai against the express wishes of the Egyptian
government. By contrast, the members of the Security Council can
legally, politically, and if necessary, militarily impose their will
upon aggressive states by virtue of Charter article 25 and their
enforcement powers under Chapter 7.40
Finally, the United States government should be prepared
to provide bilateral guarantees of an overall peace settlement to
Israel, Palestine, Jordan and Syria if so requested. The Carter
administration essentially did this in order to procure the 1979
Israeli-Egyptian Peace Treaty that was based upon the 1978 Camp David
Accords. If Israel so desires, the United States government should also
be prepared to enter into a mutual defense treaty with Israel modelled
along the lines of article 5 of the 1949 North Atlantic Treaty to the
effect that "an armed attack against" Israel "shall be considered an
attack against" the United States.41 A U.S. guarantee has kept the
completely surrounded and once beleaguered city of Berlin free and open
for the past forty years. It should be able to do the same for Israel.
Notes to Chapter 4
1. Treaty of Peace, Egypt-Israel, Mar. 26, 1979, reprinted in
18 I.L.M. 362, 365 (1979).
2. Cf. Z. Schiff & E. Ya'ari, Israel's Lebanon War 62-65 (1984).
3. Id.
4. U.N. Charter, reprinted in H. Briggs, The Law of Nations
(2nd ed. 1952).
5. S.C. Res. 242 (1967), 22 U.N. SCOR (1382d mtg.) at 8-9,
U.N. Doc. S/8247 (1967).
6. S.C. Res. 338, 28 U.N. SCOR 10, U.N. Doc. S/RES/338 (1973).
7. Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365.
8. See London Agreement, Aug. 8, 1945, 59 Stat. 1544, E.A.S.
No. 472.
9. Cf. Z. Schiff & E. Ya'ari, supra note 2, at 250-285.
10. Geneva Convention for the Amelioration of the Conditions of
the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6
U.S.T. 3115, T.I.A.S. No. 3362; Geneva Convention for the Amelioration
of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3219, T.I.A.S. No. 3363; Geneva
Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949,
6 U.S.T. 3316, T.I.A.S. No. 3364; Geneva Convention Relative to the
Protection of Civilian Persons in Time of War, supra note 7.
11. S.C. Res. 508 (1982), reprinted in Dept. St. Bull., Sept.
1982, at 14.
12. S.C. Res. 509 (1982), reprinted in id.
13. U.N. Charter art. 25: "The Members of the United Nations
agree to accept and carry out the decisions of the Security Council in
accordance with the present Charter."
14. See, e.g., Report of the Secretary-General on the United
Nations Interim Force in Lebanon (12 Dec. 1980 to 12 June 1981), 36 U.N.
SCOR Supp. (Apr.-June 1981) at 1, 11, 21, U.N. Doc. S/14537 (1981);
Report of the Secretary-General on the United Nations Interim Force in
Lebanon (16 June to 10 Dec. 1981), 37 U.N. SCOR Supp. (Oct.-Dec. 1981)
at 1, 9, U.N. Doc. S/14789 (1981).
15. See N.Y. Times, Aug. 11, 1982, at A12, col. 6; id., Aug.
21, 1982, at A1, col. 1.
16. War Powers Act, Pub. L. No. 93-148, 87 Stat. 555 (1973).
17. See N.Y. Times, Apr. 10, 1976, at 1, col. 6 (Syrian troops
intervene); id., June 6, 1976, at 1, col. 8 (Christian leadership
endorses Syrian intervention); id., Oct. 19, 1976, at 1, col. 6 (Arab
Deterrent Force created).
18. Resolution of the Tenth Meeting of Consultation of the
Ministers of Foreign Affairs of the American Republics Establishing an
Inter-American Force for the Dominican Republic, May 6, 1965, reprinted
in Dept. St. Bull., May 31, 1965, at 862-63. See also Department of
State, Legal Basis For United States Actions in the Dominican Republic
(May 17, 1965), reprinted in 111 Cong. Rec. 11119 (1969).
19. Agreement on Troop Withdrawal, May 17, 1983,
Israel-Lebanon, reprinted in N.Y. Times, May 17, 1983, at 4. See also
N.Y. Times, May 18, 1983, at 1, col. 3.
20. Vienna Convention on the Law of Treaties, May 22, 1969,
U.N. Doc. A/CONF. 39/27, at 289 (1969), [1980] Gr. Brit. T.S. No. 58
(Cmd. 7964) (entered into force Jan. 27, 1980), reprinted in 8 I.L.M.
679 (1969). Article 52 provides:
Coercion of a State by the threat or use of force
A treaty is void if its conclusion has been procured by
the threat or use of force in violation of the principles of
international law embodied in the Charter of the United Nations.
21. See N.Y. Times, Nov. 1, 1984, at A1, col. 1; id., Dec. 21,
1984, at A1, col. 8.
22. See Rubenberg, The Israeli Invasion of Lebanon: Objectives
and Consequences, 8 J. of South Asian and Middle East Stud. 3, 16-18 (1984).
23. See Camp David Accords, Sept. 17, 1978, reprinted in Dept.
St. Bull., Oct. 1978, at 7. The Camp David Accords include a Framework
for Peace in the Middle East, reprinted in id. at 7-9, and a Framework
for the Conclusion of a Peace Treaty Between Egypt and Israel, reprinted
in id. at 9-10.
24. Kondracke, White House Watch: Shultz's First Move, in The
New Republic, Oct. 4, 1982, at 13.
25. Allon, Israel: The Case for Defensible Borders, in Foreign
Affairs, Oct. 1976, at 38.
26. Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, T.I.A.S. No.
3365, 75 U.N.T.S. 287 (hereinafter Fourth Geneva Convention).
27. Laws and Customs of War on Land (Hague, IV), October 18,
1907, 36 Stat. 2277, T.S. No. 539, 1 Bevans 631 (hereinafter Hague IV of
1907).
28. Article 53 of the Fourth Geneva Convention prohibits
destruction of public or private real or personal property by an
occupying power "except where it is rendered absolutely necessary by
military operations." Moreover, articles 146 and 147 set forth the
sanctions for grave breaches of the Convention "not justified by
military necessity and carried out unlawfully and wantonly."
29. Article 47 of the Fourth Geneva Convention provides that
"protected persons who are in occupied territory shall not be deprived .
. . of the benefits of the present Convention . . . by any annexation by
the [occupying power] of the whole or part of the occupied territory."
30. Article 4 states that "persons protected by the Convention
are those who, at any given moment and in any manner whatsoever, find
themselves, in case of conflict or occupation, in the hands of a Party
to the conflict or Occupying Power of which they are not nationals."
31. Fourth Geneva Convention art. 147.
32. Id. at art. 146.
33. Id. at art. 1.
34. G.A. Res. 181 (II), U.N. Doc. A/519, at 131 (1947).
35. See President Wilson's State Papers and Addresses 462-72
(A. Shaw ed. 1918).
36. Id.
37. U.N. Charter art. 1(2), reprinted in Basic Documents of the
United Nations 1-25 (L. Sohn ed. 1968).
38. See e.g., G.A. Res. 32/40(A), 32 U.N. GAOR Supp. (No. 45),
U.N. Doc. A/32/45 (1977) (General Assembly referring to a statement of
the Palestine Liberation Organization--"the representative of the
Palestinian people"). See also 32 U.N. GAOR Supp. (No. 35), U.N. Doc.
A/32/35 paras. 46-79 (1977).
39. S.C. Res. 242, 22 U.N. SCOR (1382d mtg.), U.N. Doc. S/8247
(1967).
40. U.N. Charter arts. 25 & 39-51.
41. North Atlantic Treaty, April 4, 1949, 34 U.N.T.S. 243, at
art. 5.
