Ladies and gentlemen, welcome to the first event by Community Centre for Trinity Church.
Trinity term is always a little more informal in the sense that we don't organise a thematic seminar as we do in Nicholas, and.
We take advantage of the opportunities that come our way.
Other scholars liberated from their universities so that we're liberated from ours to come and share the recent research findings,
and to the addressing our audience with the issues of the day.
Towards that end, when we were approached by audiences to be talking about his new book,
looking at the United Nations and the Question of Palestine, it was an opportunity that we could not refuse.
And so we are delighted to be welcoming of the to Oxford for his first visit to the East.
And he has come to academia through initially a career studying the Middle East and long after practising law,
he joined the United Nations and assisted the UN with legal issues,
before deciding later in life that he would like to return to scholarship,
pursued his doctorate in law and the results were published by Cambridge University Press.
After a very successful Cambridge doctorate in the United Nations.
And the question of Palestine, of course, opens the very source of so many of the questions that remain unresolved down to the present day.
The failure of the leading international organisation to address the longest running international crisis is the stuff of many books.
But to take you into this form, I would like to invite our guest to the podium before I do so,
I just want to say that this very extensive book is available to you at a 20% discount to flyers and available on the table outside.
So if after what you hear tonight, you cannot live without this book, we can offer to you at a 20% discount if you just take one of the flyers.
But as I hand over to you, please join me in a very warm welcome to some.
Well, um, greetings to you all. Am I audible in the back?
Wonderful. Well, not now. I miss the selling of books and items that look prohibitively expensive.
This book is not my doing, I assure you. But I do hope that you will find it in your heart to figure out how to get your hands on it.
And then tell me what you think. My email is available at Queen's Law School, and I'm always looking to hear what people think about my work.
I should like to begin, of course, by offering my sincere thanks to Professor Rogan,
whose work I've been using, following, uh, much to my great honour and utility and so on for years.
And I was very glad to say that when I reached out with a cold email him, he snapped up the response quickly, and he's been very generous.
So thank you very much to you could Serve and Middle East Study Centre here at Saint Anthony's.
I can't imagine a better place to share my findings and my ideas to do so.
Thank. I begin with the painfully obvious.
It is a gross understatement to say that things in Palestine have gone from bad to catastrophically worse.
It is useful to recount the following observations of a senior United Nations official tasked with addressing the situation there.
According to this person, quote, an indispensable condition for the settlement of the problem is the cessation of hostilities.
That, quote, as a result of the hostilities in Palestine, an alarming number of persons have been displaced from their homes,
including through real or alleged acts of terrorism or expulsion.
And that, quote, it would be an offence against the principles of elements of justice if these innocent
victims of the conflict were denied their right to return to their homes and quote.
Given the sheer scale of the calamity now befalling the people of Gaza,
over 34,000 killed, two thirds of whom were women and children at least 10,000 or more.
I fear that number of spiritual presumed dead buried under the rubble.
77,000 injured and counting and 1.7 million persons forcibly displaced.
That's about 85% of the population of the Gaza Strip.
And all of these people subjected to a policy of starvation as a tool of war or indiscriminate bombardment.
Given all of that, one could be forgiven.
In thinking that the quotes I just read out to you are those of the current Secretary General of the United Nations, Antonio Guterres.
And you'd be wrong if you thought that. The fact is, ladies and gentlemen, Mr. Gutierrez is not under those words.
They were actually written on the 16th of September, 1948 by one Count Folke Bernadotte, the then United Nations mediator for Palestine.
The more things change, the more they remain the same. Bernadotte statements were made at The Hague,
the first Palestinian network during which between 750,000 to 900,000 indigenous Palestinian
Arabs were exiled from their homes in what became the State of Israel during the 1948 war.
And it remains something of a mystery to me that today,
for all the media attention now focussed on what the International Court of Justice has ruled is a plausible genocide in Gaza,
it is rarely, if ever, mentioned that almost 80% of the population of Gaza are themselves not Gazans.
They are 1948 refugees or their descendants, and that under international law, as affirmed by the United Nations on an annual basis since 1948,
have a right to return to their homes and their properties, from whence they were expelled in 1948, and that the only reason they're unable to do so.
The only reason is because Israel denies them that right by virtue of the fact that they are not Jewish.
Those are facts about which we do not hear in the media, certainly not in the West, and we will not hear in the media, and certainly not in the West.
Before becoming a professor of international law.
I spent 12 years as a United Nations official in occupied Palestine with Unwra United Nations Relief and Works Agency for Palestine Refugees,
four of which are in Gaza City. I lived there, uh, for four years,
and during this time nary a minute passed where the limits of international law and U.N. action wasn't made bitterly clear to me.
And so in 2014, I retreated to the Academy in the hope that with distance and time, I might be better able to make some sense of it all.
And the book that I'm presenting to you today is the result of that multi-year effort.
To my knowledge, it is the first of its kind offering, among other things,
critical legal history of how the UN has managed what is the longest running geopolitical problem on its agenda.
There's a great deal of work written in international law and Palestine I've participated in, and for years there's a great deal of work.
On the other hand, written by about United Nations and international law.
There has yet to be a book written on the UN international law and the United Nations, and I've tried to present that here.
The book's starting point is the widely held representation that the UN is the standard bearer of the rules based international legal order,
but based upon a close examination of the UN record,
I have attempted to interrogate this received wisdom by demonstrating that there exists a vacillating gulf between what international law requires,
on the one hand, and what the United Nations has done on the other.
The forms that this golf has taken have varied. They include both action and a.
They cover a variety of subsets of international law, from the law and statehood to recognition,
to use of force and belligerent occupation and nationality and statehood and very wide array of subject matter.
And they spend an unusually long period of time, 75 years and over various paradigmatic moments in international affairs,
one from initially the period of late Empire, all the way up to the decolonisation period, and now a unipolar world come multipolar world.
We're in that shifting vocabulary, and despite the breadth and expanse of this sordid story,
it is marked by a singular experience of Palestine and its people to have been consigned to a
seemingly permanent state of deprivation and disenfranchisement in the international legal order.
If you take anything away, take following.
The main claim of the book is that key legal texts and moments in the UN record demonstrate that Palestine and
its people have historically suffered the effects of a long range condition that I call international legal.
Some alternate. It's a mouth mouthful, I give you that, but I'll try and break it down for you.
The principal attribute of this legal sub alternative or legal sub sub alternate condition is that those subjected to it are
continually presented with the promise of a more just and equitable future through the application of international law,
bolstered by the purveyor of the promise of that law and its political legitimacy, its unrivalled political legitimacy,
the U.N. and that despite the lengths to which such groups go and reliance on this promise,
its realisation is perpetually kept out of reach in one form or another through the actions,
ironically so, of the very same un, which all too often either does not pay sufficient heed to international laws,
precepts, or completely overlooks them. In practice,
what brings international legal some authority into sharp relief is the clash one is able to trace over
time between the international rule of law with what can be called the international rule by law.
You'll recognise it first. On the one hand, the international rule of law is ostensibly based on the universal application of
international legal norms without regard to the power or station of those subjected to them.
It applies universally, yeah. On the other hand, the international rule by law is rooted in a cynical use, abuse,
or selective application of international legal norms by hegemonic actors under a claim of democratic rights based liberalism.
But with the effect of perpetuating inequity between them as hegemonic actors and their some alternate or weaker opposites.
Yeah. And by juxtaposing the international rule of law with the international rule by law.
One is better able to understand the nature of this condition than I have spoken of the legal subaltern condition,
and to understand that that condition is a fixed feature of the international legal order.
Let me give you an example. Depart from my notes for a moment.
Palestine is an embodiment of legal social trinity in my respectful view, but it isn't the only one.
You can see this condition replicate itself across the board with non-state armed groups non-self-governing peoples, refugees, women,
minority groups, indigenous peoples, especially on the international legal plain where these groups use law to press up against laws violence.
The fact that the law doesn't speak to them or speak for their rights, they use law and legal argument to stake new claims,
which inevitably produces new law over time through state practice,
especially at the General Assembly of the United Nations, or through treaty practice or custom or what have you.
And as new law emerges, invariably new subaltern groups emerge for whom that new law does not speak.
And so it's a cycle of law making, law challenging, and so on.
But a fixed feature of this cycle is the condition of legal sub alternative that I argue.
And so it is a fixed feature.
And although some subaltern groups may emerge from its yoke, the burden of subaltern, it immediately transfers to another group.
And you see that in Palestine. Mind you, this book is not a theory theoretical sort of tome, and I'm no theorist, to be sure.
But I've tried to sort of situate my ideas in this frame.
The book is largely the empirical legal history that will be of interest to those
who among you who are international relations specialist historians of the UN,
uh, policymakers and the question of Palestine and so on.
So when it comes to the UN, to prolong the management of the question of Palestine,
one finds a sustained expression of international legal, some all trinity in its beleaguered people.
Given that one of the core principles of the United Nations, and I'm quoting the UN charter here,
is to maintain international peace and security in conformity with the principles of justice and international law.
Understanding why and how the UN has maintained Palestine's subaltern condition provides insight not in not only
into why and how the conventional wisdom of the UN as the standard bearer of international law is and stated,
but also how the UN might actually better performance functions in war in the world in which we live.
Yeah, I try and be hopeful. The key legal texts and moments covered in the book are detailed, but I'll try and briefly set them out here.
I'll first discuss the historical origins of Palestine's legal alternative situated in the interwar years.
I'll then discuss how that legal subaltern condition was reified or crystallised by
the United Nations General Assembly in 1947 when it purported to partition Palestine.
And then I'll address the unique institutional and normative regime established
by the United Nations General Assembly to deal with the fallout of the 1940 war,
namely, the Palestinian refugee problem.
Then I'll move into the UN's treatment of the 1967 occupied territories, which is a matter that is now before the International Court of Justice.
I'm working on a case on behalf of the State of Palestine on that matter, and I'm happy to talk to you about that.
And then finally, um, I'll cover the treatment of the state.
Palestine's attempt to gain full membership in the organisation.
Uh, in 2011 and just a week and a half ago as well, the Security Council, some of you may be aware of that.
I was in the council at the time when the debates were brought back on by the State of Palestine.
So to begin with, the origins of Palestine's legal symbol, Trinity, are found in the interwar years,
not actually, uh, in the UN itself, and they're located in that period and the League of Nations period,
which effectively ratified the effects of Imperial Britain's secret treaty
making and diplomacy that undermined the political rights of Palestinian Arabs.
The relevant documents, and Professor Rogan will know this very well,
are two detailed here to cover, but they will be cognisable to the historians in the room.
First, you have seen McMahon correspondence of 19 1516.
You have the Sykes-Picot agreement of 1916, the 1917 Balfour Declaration.
You also have the Nations Covenant of 1920 and article 22 in particular about that.
And you have the mandate for Palestine, which governs the Palestine Mandate from 1922 to 1947.
And while the historians tend to treat, and rightfully so, these moments from a political perspective perspective,
it is often overlooked that they also had legal significance.
They also had needles, and when taken together,
these five moments resulted in the international legal disenfranchisement of the indigenous Palestinian populations population in
favour of a self-described self-described European settler colonial movement that was to be imposed on Palestine come what may.
Some context is crucial here. In the late 19th century, Palestine was inhabited by native Palestinian Arab people,
predominantly Muslim and Christian, with an uninterrupted tenure in the land for millennia.
At about that time, the political Zionist movement emerged in Central Europe, led by an Austrian Jewish playwright, Theodore Hertz.
In answer to centuries of persecution,
Herzl proposed that Europe's Jews should partner in order to colonise Palestine and convert it into a Jewish homeland.
The perennial trouble for the Zionists, then, indeed, as now.
Was that Palestine was already inhabited by another people. The quick any.
However, if you square the circle well,
the long story of settler colonial displacement and replacement is well-trodden in the literature on Palestine.
What is often left out is the role of law.
In order for Herzl and his followers, law was no less as important a colonising tool as acquisition of actual material resources,
as evidenced from the program that the Zionists adopted at the first uh Zionist Congress in Basel in 1897.
For them, the colonisation effort could not be complete without achieving recognition of their right to colonise.
As a matter of international law, what was then called public law.
Their civilising mission fit well into the international legal order of the day at the time,
as evidenced in the work of two of that period's leading international lawyers, an American known as Henry Wheaton and John Wesley, who was a.
He will chair an international law at Cambridge.
The international legal order was rooted in an unabashed Euro centricity that helped non-Europeans to be uncivilised,
and therefore unworthy of rights and standing in the system.
Indeed, at that time, civilisation was the key legal determinant of who enjoys standing on the international legal plane, if you like.
The 1917 Balfour Declaration,
through which the British ignominiously promised Palestine to the European Zionists without consulting the native Palestinian majority.
Then some 92% of the population of the country, and even before the British set foot in Palestine was kindled.
Balfour Declarations.
Incorporation into the very terms of the League of Nations Mandate for Palestine furnished the declaration with the imprimatur of legal authority,
despite violating a general principle of international law and indeed domestic English law.
Some of you who do property law would know this principle that 1st May not give what one does not possess.
Memo that quote don't have it. Yeah. Principle of international law that is applicable at the time of which we speak.
But it also began a period, a pattern of open ridicule of the principle of self-determination.
Which was the object and purpose of the so-called sacred trust of civilisation of the League of Nations,
come bestowed on Palestine as a class A mandated territory.
Historians will recognise. And this was later affirmed by the International Court of Justice in the Namibian case of 1971,
that the purpose of the Sacred Trust was to ensure that the self-determination rights of the indigenous peoples of these lands.
But for bad for. The natives of the mendieta territory simply did not matter, and so writing is Foreign Secretary to Prime Minister Lloyd George.
In 1919, Balfour felt no compunction privately declaring, quote, in the case of Palestine,
we deliberately and rightly declined to set the principle of self-determination.
If the present inhabitants were consulted, they would unquestionably give an anti-Jewish verdict,
by which he meant an anti-Zionist verdict, and this was later followed in a memorandum that he wrote to Lord Curzon again,
historians will recognise these words, where he famously stated, and in that year he famously stated,
quote In Palestine we do not propose to even go through the form of consulting the wishes of the present inhabitants of the country.
The four great Powers are committed to Zionism and Zionism.
Be it right or wrong, good or bad, is rooted in each long tradition.
In present needs and future hopes of foreign profound are enforced,
and the desire and prejudices of the 700,000 Arabs who now inhabit that ancient land, including.
And so the mandate years were spent by the British, helping the Zionist movement effectively build a state within a state,
and the international legal order's structural euro centricity was key to the endeavour in a real sense.
The international rule by law of this period was, quote, a description of what was happening to the subculture Palestinians.
But in my respectful view also prognostication of what was to come.
And this would be made clear when the British quit the mandate for Palestine in 1947 and handed over the matter to the newly formed United Nations.
So I'm shifting forward in time, and now I'm going to talk to you about the partition plan.
Despite the probe, the promise of a new global order based on the international rule of law in the immediate aftermath of World War Two,
the UN remained true to the old order and rule by law, a framework that it had inherited.
And this is demonstrated by looking at the terms of UN Partition Plan resolution 21 of 29th November 1947,
as well as the associated UN Documentary Record, the discussions that took place in the General Assembly, as well as the record,
private and public, of the United Nations Special Commission for Palestine.
Special Committee for Palestine, which was a body that studied what to do and recommended to the General Assembly its majority partition.
Resolution 181. Marry me provided for the partition of Palestine into an Arab state and a Jewish state in economic union,
with the city of Jerusalem to be established,
as well as its immediate environs as a corporate separation, and to be administered by the United Nations and international city.
Under the plan, both states were required to adopt democratic constitutions,
established government on the basis of universal suffrage, and guarantee to all persons equality before the law.
All that sounds wonderful doesn't. But aside from the act of partition itself, the extent to which the resolution crystallised Palestinian legal,
some alternative is best illustrated in the specific details of its terms, demographically speaking and territorially speak.
By any objective assessment,
these terms demonstrate an absolute contempt for the principle of self-determination of peoples as then applied to class A mandate.
Mandated territories under international law rooted itself upon the idea of majority rule, the consent of the governed right,
which is a basic principle we can all appreciate as a fixed feature of the democratic liberal order now said to govern in the international realm.
Territorially, the plan allotted the Jewish state approximately 57% of the total area of Palestine, including its most fertile land.
Despite the Jewish settler population comprising only one third of the total of the country.
In addition, the Jewish settler population possessed registered ownership of only 5.6% of the land.
Just 5.6%. They were eclipsed by the Arab indigenous population in every subject district of Palestine.
In terms of land ownership. By the way, these facts are all in the UN report.
I'm spitting out what I found in the record. Demographically.
Although the proposed Arab state would include a clear majority of approximately 725,000 Arabs to 10,000 Jews,
the proposed Jewish state would contain a total population of 1,080,000, consisting of 509,000 Arabs to 499,000 Jews.
This meant that minority rule would prevail in the purported Jewish state from the off,
and despite the terms of the very same resolution which required both states so created to be democratic,
to provide brutal rule of law and no equality before the law and so on, and it says nothing of the fact that,
in its own words, I know, citing the United Nations Special Committee for Palestine.
In its own words, the UN would grant the Jewish state the more economically developed part of the country and quote,
while openly admitting, undid that the economic viability of the proposed Arab state would be in doubt from the start.
So much so that un scop recommends to the General Assembly of the United Nations that if you go for partition,
your resolution should indicate to the newly formed Bretton Woods institutions, the IMF,
the International Monetary Fund and the world Bank, that any request for funds for loans, structural adjustment,
loans and so on given over are requested by the newly formed Arab states should be received with warm arms and welcome arms.
So the UN knows precisely what it's doing.
And as a matter of public record, what they are doing is setting up a state that can't survive economically.
Besides the fact that the partition was done without the consent of the majority of its population,
its native population, putting it kindly, resolution 181 was a glaring anomaly.
Under prevailing international law. The Sacred Trust Principles folded into the United Nations Charter via the League of Nations Covenant,
coupled with the British satisfaction of its obligations peaceably.
The Jewish National Home, which had by then been fulfilled according to a 1939 White Paper,
meant that only two courses of action were legally opened to the General Assembly on the eve of November 1947, only to under international law.
First. Shock and horror. Immediate independence of Palestine, all of it in line with the majority wishes of its indigenous population.
Second UN trusteeship,
which was a form of governance of former League of Nations mandates that were deemed by the international community not to be ready for independence,
and they would fold into the UN trusteeship and the UN would oversee them until such time as they were prepared for independence.
Those are the only two options. Partition would not allow any other option but an examination of the UN record in the form
of the public and private meetings and report of the UN Special Committee on Palestine,
as well as the General Assembly debates that followed,
demonstrates that partition had absolutely nothing to do with these two legal options, or international law at all.
It was rather driven by hegemonic European states and their settler colonial affiliates, despite claims to the contrary of some contemporary scholars.
In fact, just one who will remain nameless for now. But you can see my book for interested will come and see.
There is a diplomacy in tact about this.
The UN record reveals that the declared goal of these states was, in fact, to rectify Europe's centuries old Jewish question.
I'm using their terms, not mine, in the wake of the Holocaust, of course, which makes eminent sense, I mean, from a moral standpoint,
but to do so at the expense of the innocent third party Palestinians who have absolutely
nothing to do with World War Two or the Final Solution adopted by the Third Reich.
A close reading of the unsolved records review is at least three factors that
led the General Assembly to disregard the Liberal international legal order,
then said, to govern in favour of overriding European interests.
I've set them out here first, there was a bias in the terms, in the terms of reference and composition of one scope.
It was overwhelmingly Western.
And at a time where the General Assembly, in fairness, was also overwhelmingly Western, or maybe only about 51 member states at the time.
Still a period late empire, about 750,000 people and a million rather people in the world still living under the yoke of colonialism and so on.
Uh, second, there was a failure by UN Scott to engage with the Palestinian Arab leadership in the Arab Higher Committee.
Much has been made in the literature about the Arab Higher Committee's boycott of un scop, which indeed they did.
But from a UN standpoint of diplomacy, anybody who does this work will know that parties will take a position that sometimes is rigid,
and the role of the diplomat is to ensure an open channel and redouble the effort and reach out and attempt to engage,
notwithstanding the initial cold shoulder that you might receive. Scop doesn't.
None of us. I read the record front and back. None of it.
They don't even attempt to get out to the Arab Higher Committee and engage with them in the face of their refusal to engage with them.
After many decades of being hoodwinked by the international community as viewed from the prism of the Arab Higher Committee.
And finally, there was a contempt for principles of democratic governance and self-determination.
I won't at all have time, of course, to deal with all three of these things.
I would like, however, just to spend a minute or so on this last point of unshakeable contempt for democratic governments.
And self-determination. Peace. For instance, in its majority report recommending partitions,
the Assembly and staff expressly noted that, quote, with regard to the principle of self-determination.
Although international recognition was extended to this principle at the end of the First World War,
and it was adhered to regard to the other Arab territories at the time of the creation of the mandates.
Here they referring to Iraq, Syria, Jordan, Lebanon, they had all received as class A,
mandates their independence in the 40s in line with the sacred trust principles of League nations covenant.
They continued it.
Self-Determination was not applied to Palestine, obviously, because the intention to make possible the creation of a Jewish national home there.
Actually, it may well be said that the principal of the Jewish National Home and the sui generis mandate for Palestine run counter to that principle,
the principle of self-determination. So they know full well what they're dealing with here.
They understand that self-determination rights are being violated of the native majority population.
And astoundingly, none of this gave the unsolved majority reason for pause.
In fact, an even more animated rationale came from Ambassador Haughey Garcia Granados, then the Permanent Representative of Guatemala,
to the United Nations on the 10th of October, 1947, in urging the General Assembly to vote for partition.
He said, quote, Palestine was no more arid than certain Spanish countries of Latin America or India.
The Jews had made a pleasant and healthy country out of a land in which a sparse and Turkic population had merely vegetate.
It was incomprehensible, he said, that the Arabs should use their numerical superiority as an argument.
An ignorant majority should not be allowed to impose its will.
One could go on, but you get the point. France.
For the Western dominated U.N., the indigenous majority population of Palestine did not matter when it came to the application of international law.
And in Reifying Palestine's legal system, all eternity.
In the UN system, the plan of partition adopted by the General Assembly imposed in both normative and discursive legal terms,
the two state paradigm that would thereafter underpin the organisation's position on the question of Palestine,
a position that remains in place to this very day, which, ironically, has yet to be fully realised.
So I will move forward in time, not very far in time.
Another demonstration of Palestine's contingent status emerged with the UN's creation of a distinctive
institutional and normative regime for the Palestinian refugees following the 1948 Nakba.
Nakba Arabic meaning catastrophe and this is the term and Palestinians used in respect of the fall of Palestine in 1948,
with the ethnic cleansing that took place and everything there after indeed the Nakba.
To borrow a phrase, if you like, from Patrick Wolf, much like settler colonialism is not an event.
It is a structure. And it carries on and continues to this very day.
And we are witnessing the current manifestation of the Nakba in Gaza as East.
But I digress. This came in the form of two subsidiary organs of the General Assembly of the United Nations.
O'Brien. First, the United Nations Conciliation Commission for Palestine, UNC.
And you know how the Nations Relief and Works Agency for Palestine Refugees in the Near East.
Unwra. Which were collectively aimed at providing protection and assistance, including a search for durable solutions,
which is a term of art that we use in international refugee law to the plight of the Palestinian refugees.
And this unique regime for the Palestinian refugees was, and remains distinct from the international institutional and normative regime
applicable to all other refugees in the world as administered by the United Nations.
A third subsidiary organ, the United Nations High Commissioner for refugees, UNHCR, for whom I used to work when I was stationed in Cairo.
With the receipt,
while the received wisdom holds the special regime for Palestinian refugees held as demonstrative of the UN's unique responsibility for their plight,
which, of course it is.
The UN's record also reveals that it was never actually intended to give effect to Palestinian refugee rights under prevailing international law,
including. Law as affirmed by the U.N. itself, which is detention.
For example, in practice, UNHCR is mandated to pursue the following three durable solutions for refugee populations in order of preference.
First, voluntary repatriation. Second, local integration in a country of immediate refugee and third resettlement in a third country.
But in contrast, UN CP's effective mandate to find a durable solution for the Palestinian refugees, 1948 lasted only for three years 1949 to 1952.
The attempt to mediate a resolution between the Arab states who weren't representing the Palestinian refugees in any case,
and Israel, um, and to no avail.
And and then, undaunted, the General Assembly created Unwra to provide humanitarian aid and assistance to the refugees,
ostensibly without their prejudice under international law, to return to their homes.
From Wednesday. Were expelled.
Nevertheless, a review of the UN record demonstrates that Unwra was in fact designed to resettle the Palestinian refugees,
not to maintain their rights.
As it was in keeping with virtually this was in keeping with virtually every UN body that touch the Palestinian refugee issue in its early period.
Let's turn it off. Going back to the to council, printed off, printed off urgency there in the right, the U.N., the U.N., quote,
lend its good offices to any efforts towards exchanges of populations with a view to eliminating troublesome minority problems,
by which means there should be an exchange of populations.
Palestinian refugees have been expelled wherever they may be now in Jordan, Egypt, Lebanon, Syria.
Let them stay there. The Jews who left those countries are now in Israel.
And let's just call it a day. Let's agree that that's how it should be.
Yeah. And he's the key UN official. Likewise, unSc affirmed who in the long run,
the final solution of the refugee problem would be found within the framework of
the economic and social rehabilitation of all the countries of the Middle East.
End quote. This allusion to a developmental approach to resolving what was illegal and a political problem.
Bear with me was continued by the United Nations Economic Survey mission.
The U.N. ESM, which espouses fanciful and wholly invented ideas, wholly invented out of whole cloth.
Really? That, quote, the plight of the refugees is both a symptom and cause of great economic instability.
And for. Now ESM is important because they are the precursor to UN.
They propose that a group of organisation like Unwra is treat.
But not even the Zionists argued that the Palestine refugee problem was the result of economic instability.
But be that as it may.
It was this idea that gave rise to another and ostensibly temporary organisation now mandated to provide relief and works programs,
but it's now going on 75 years. All of this and more has resulted in what many international lawyers calling protection garb the Palestinian refugees.
Which in turn is demonstrative of the various ways international law has at once been overlooked or selectively applied by the U.N.,
with negative results. The international law that prevailed at the time required the expelling country.
You cannot expel even when there's a change in sovereignty.
You can't expel your nationals. Sovereignty.
Rather, nationality of the population in the territory follows a change of sovereignty, right?
If that were allowed, it would have allowed to do otherwise.
You have the ability of new states that emerge from, you know, countries expelling their populations because they're undesirable.
And that's precisely what's happened here. The outcome has been to challenge the conventional wisdom that prevents the organisations
the guardian of international rule of law when it concerns Palestine refugees.
This is not to say that Unwra isn't an important organisation. It is instead the Palestinian idea of a nation that you can live with for many decades.
And there are many good things about IHRA, and I'm happy to talk to you about that.
But it's just another example of what I can see how I'd like to move forward and speak to you about the 1967 territories.
I'll move away from my notes. Now, this relates to a case that I'm currently working on.
As I mentioned earlier, on behalf of the State of Palestine at the International Court of Justice.
The UN since 1967 has looked at the occupied Palestinian territory being the West Bank, including East Jerusalem and the Gaza Strip, in a certain way.
I call this way a managerial way or a humanitarian, if you like, mechanism or response whereby the UN has examined for decade after decade since 1967.
Israel's behaviour and violation of international humanitarian law, or the laws of war and international human rights law.
Chapter and verse. But it is examined discrete actions of the occupying power as though they exist in a vacuum.
You may not, for instance, in deport um, protected population, the civilian population.
You may not destroy their private property, and then you may not, uh, incarcerate them without charge or trial.
Things like that. Torture is prohibited. And so on. Settlement of an occupied by territory that an occupying power is unlawful.
So the UN has spent many a decade.
Doing this sort of work and building up a documentary record, but it has yet to determine the legality of the regime itself,
imposed by the occupying power that gives rise to these individual violations.
What is the legality of the very presence of the occupying power in the occupied Palestinian territory?
That is a question that has yet to be determined by the United Nations.
The General Assembly did in the 1970s, 1979 to 80, sorry, 77 to 81 issue a few resolutions affirming that Israel's occupation of the West Bank,
Gaza Strip and East Jerusalem was unlawful, but it stopped making those references after 1981.
The Economic and Social Council of the United Nations has done so as well in the 1990s, but after the Oslo period began, they dropped off.
Those references dropped off. And so the question is how?
How can it be in a time of decolonisation, when you have the rise of the Third World in the organisation,
it's no longer Western oriented or European centric. The U.N. is has a new look.
Why is it that the Palestinians continue to suffer from a subculture and condition?
Notwithstanding this. Legislation, if you like, of these violations of Israel's.
Obligations under the law of occupation and so on. And so this chapter examines.
The rule by law that is imposed by the UN by omission.
Failure to determine Israel's occupation to be unlawful.
Now, I need to explain to you the law of occupation and brief occupation of enemy territories, meant to be a temporary condition.
post-World War Two occupations lasted Germany and Japan lasted about 7 or 10 years, respectively, by the Allied Powers.
An occupying power may not assert sovereignty in occupied territory.
We know this from Russia's position in Ukraine and indeed Western countries position on Russia's position in Ukraine.
Russia claims sovereignty in occupied Ukraine.
The West says you may not acquire territory through force of arms. That is absolutely prohibited.
And so on. It's occupied territory. No, it's no more than that.
And notwithstanding these principles, over the past 57 years, over a half century, the occupying power in the occupied West Bank,
East Jerusalem and the Gaza Strip has pursued a course of conduct largely through settling that territory with its own population now 750,000 persons,
that violate what we call peremptory norms of international law, derivation of which from which is not permitted, use Coggins norms.
There are some norms in international law that are so key that they do not admit of exception.
Sometimes norms do exception. These are not them, and they are few in number.
The first is the inadmissibility of the acquisition of territory through the threat or use of force, a foundation of the UN charter system.
Corollary article two, subsection four of the UN charter.
The second is the obligation to respect the people's right to self-determination.
Also use common sense. We see these animating the West's position of Russia in Ukraine just now as we speak.
And the third, the prohibition on the imposition by a foreign occupying power of a regime of racial discrimination as well as apartheid,
which increasing numbers argue exists in occupied Palestine.
An interesting thing here is that the UN record is replete.
I'm talking now about thousands of documents that affirm and establish that Israel's occupation over 57 years has violated each of these entry norms.
The third lesson. But it's building the first two.
Absolutely. So we asked the question. I asked the question in chapter four of the book.
And this research goes back some years. How is it that the occupy occupation of the territories can be lawful?
It is the occupation existentially reliant on the violation of these three practically norms.
You cannot unscramble the egg. The occupation relies on the violation of the self-determination right of the Palestinian people,
and it relies on the acquisition of territory through threat or use of force.
And so, in December 2022, the General Assembly passed a resolution on the 30th of December.
In the last working hour of the day of the year.
In fact, in large part because the US had pushed the vote off, hoping that the General Assembly members would go away on holiday.
I'm serious. The General Assembly passed a resolution putting a series of questions before the International Court of Justice,
the nub of which is what are the legal consequences of Israel's continued occupation of the occupied Palestinian territory?
We made argument before the court in February. Uh, all of our positions.
That is the State of Palestine. Positions are in the website of the International Court of Justice.
I, of course, now speak as an independent. I'm not representative of Palestine by any means here.
Um, but you can consult those, uh, at the website of the ICJ.
And we argue that the occupation is unlawful. Um, we expect that an an order of the courts and opinion of courts issued in July.
And, uh, fingers crossed we get the ruling that we need. And indeed, if we do, if indeed if the court says that it's unlawful,
the key consequence there is under international law, the law of state responsibility, when to state.
And this will be intuitive to you when a state is engaged in an internationally wrongful act,
the consequences are simple and three fold, and you know them all. First, stop the act, the duty of cessation.
Second, give appropriate assurances of non repetition.
We won't do it again. Third, make appropriate reparations or compensation.
Right. Refugees return. We pay money that sort of thing.
It's intuitive. Now this matters because if the occupation is existentially unlawful, then its end cannot be made subject to negotiation.
And those of you who understand Oslo and the difficulties of Oslo over the past 30 years will appreciate the strategic import of this case,
it goes well beyond anything that even the South Africans have brought in respect of genocide convention.
That's tactical. This is strategic. The consequences of genocide finding are simple.
Stop the genocide. But that will not end the occupation. Bear that in mind.
Have left the end with one thing, and then I'll conclude. I'm terribly sorry.
I know I've gone on another example of this legal sub alternative,
which I speak is the state of Palestine's attempt to gain membership in the United Nations organisation.
To gain membership in the United Nations organisation as the guardian of international peace and security.
The principle of universality of membership of the United Nations is the logical foundation upon which the UN's success rests.
This is because the UN would be nothing but for its members,
and it is for this reason that the international law governing UN and mission has long been marked by a liberal,
flexible and permissive interpretation of the test for membership contained in article four, subsection one of the UN charter.
It's up there on the screen. But in contrast to this, an assessment of the UN UN's consideration of Palestine's application for membership.
In 2011 demonstrates that it was subjected to an unduly narrow strip and resulted in the flawed
application of the rest of the article 41 criteria and an examination of the contemporaneous debates,
largely around the Security Council at the time. October 2011 demonstrates that the main driver of this approach was not in any surprise scheme.
The United States would use its legal authority, and that's the most important use,
its legal authority vested in it as a permanent member of the United Nations Security Council to block membership in Palestine for political reasons,
thinly veiled as sound legal ones and with no small measure.
Finally, this is highlighted through the juxtaposition which I try and do in this chapter book of the broad and forgiving,
forgiving interpretation of the article 41 criteria.
Extended by the United Nations to the, uh, application of another state, Israel, in 1949, with that of its position on Palestine in 2001.
So I looked at the record on both, and it is a diametrically opposite position in article 41 is simple.
There are five criteria. Membership in the UN is open to all peace loving.
That's the first criteria. Second state is the second criteria.
You must be a state. Third, who accept their obligations contained in the charter.
Fourth, and in the judgement of the organisation are fourth able and fifth willing to carry them out.
Now, state practice on admissions of entities for membership in United Nations over decades,
seven decades, to be precise, is so demonstrative of the liberal application of these principles.
Indeed, in some cases these principles have not even been applied.
Some states who are engaged in hot conventional war Bosnia-Herzegovina, Congo in 1960 and many, many others.
So much so that with Congo, when it applied for membership civil war, the General Assembly and the Security Council admitted them to membership.
The GA did not know who among the warring parties to grant the seat to.
That's how liberal the application of this test has been, right?
And when you compare the U.S. record on Israel's admission in 49 with Palestine, it is diametrically opposed.
Now, the interesting thing is there's good law on this.
The the International Court of Justice gave an advisory opinion in 1948 concerning admissions criteria of membership.
And the question put to it then was whether or not these criteria were exhaustive or if there were other criteria,
political criteria that could be taken into account by the Security Council in rendering a recommendation to the General Assembly for membership.
The court says very clearly these are exhaustive conditions.
No extraneous condition, including political conditions, can apply unless in good faith.
Those extraneous conditions can be linked to these, uh, five conditions in force.
Sub one in good faith.
And yet, and yet the American position is clear Palestine will not emerge as a member state of the United Nations because it's not a state.
And the only way it can emerge as a state is through negotiations. And guess with whom.
With its jailer and with its bad faith.
Occupying power has demonstrated the bad faith element by the UN record over five decades worth of the United Nations record,
demonstrating the violation of the people's right to self-determination.
The inadmissibility, the acquisition of territory through threat or use of force,
and who knows whether or not the court will affirm apartheid or racial discrimination.
They may do that in July. After our submissions, the court the U.N. record is very clear.
This is a bad faith occupying power. Right.
However, do you negotiate the end of your bondage with your jailer is operating in bad faith.
And so this chapter tries to make the point that the failure to gain full membership in
the organisation of the State of Palestine is yet again another indicator of its legal,
some alternative, its disenfranchisement. The only way on the international legal plain,
the State of Palestine can fully exercise its rights juridical is if it is able to get membership in the state in the main body of states,
plenary body of the General Assembly and so on. The U.N. and it is being blocked.
And this this is the key to the exercise bad faith of a legal authority vested in a permanent member of the Council.
This is rule by law, not rule of law. Without I think I will conclude, uh, you know, I have spoken quite a bit, and I imagine you have questions.
And if you don't, I certainly hope that I might support you for this.
I'm happy to talk about anything. International law, Palestine.
The case is currently pending before the ICJ and so on.
Thank you very much. Want to put your questions.
Have a seat. Yeah I will. Yeah. Good. I don't wish to lower the tone of the evening any, but.
Well, I would say you've sold some books.
I should hope, because you are able to talk about this dry field of law in a way which is inspiring of so many questions.
And you answer so many.
I just am totally persuaded by the framework you are giving us of this ominous allusion from something we would all except as a public good,
the rule of law. It is the principle to which government is legitimate, to something quite ominous,
which is the rule Bible, in which law becomes the weapon of insubordination.
Great, great of subordination. Well put. Actually.
Yeah, that was eloquently put. Thank you. Except they got it wrong. But aside from that.
Uh, and and so in this, I think the, the way in which he framed the situation of Palestine in no doubt of other countries as well,
is that they are of the status of being international legal solutions,
which captures a dynamic which I think helps us to understand the way in which law can actually be used as a force of oppression.
Correct. So as a framework, it's a great way to make us rethink the UN, the rule of law, the the institutions to which we hope to turn one day,
and just the way in which these institutions can be used to ensure that the resolution of Palestinian
legitimate aspirations for self-determination are always pushed over the next two rights.
Dreadful. Now I buy into the argument, as enshrined in the UN charter, that it is illegal to acquire territory through war.
The military means. But the question. I'm so glad to have you here to answer.
Is. Didn't Israel set the precedent for that in going beyond what it was granted through 181 and what it secured,
what it was recognised at the end of the armistice in 1948, 1949, in other words, the acquisition territory, it went from 57% to 1778.
That's right. And it was recognised by the international community as in some way not violating.
It's obligation of the majority. So haven't they set the precedent to do the same thing with what they occupied in IT concept?
Great question. This is the question. You're the only one who put it to me, by the way, in in my discussions.
Um, but I have long thought about this and I call it the forgotten 22%.
Meaning those portions of what was allocated to the general by the General Assembly of Mandate Palestine that ended up at war's end,
rather to the Arab state that ended up at war's end in the hands of the putative Jewish state.
Uh, places like Jaffa or Nazareth and so on. City centres of Palestinian life, um, at that, were depopulated.
Not so much Nazareth, but certain Jaffa. Um, what of that territory was that taken through force of arms during the 1944?
And is that lawful? And did Israel set the precedent? The jury's still out on that.
Legally speaking, I will offer a technical legal response, and I can explain it to you.
There is. And this affirms the position that I take about rule of law.
Rule by law. There is a a construct in international law known as state secession.
How many of you are familiar with it by show of hands?
How many, how many know about Catalonia and Quebec wanting to move away from the states of which they are a part and creating a new state?
Right?
Well, uh, when a when an organised political community inside a state that has borders and is fixed and recognised, claims statehood of their own.
And uses force to assert their statehood.
Despite what the centralised authorities say, despite the fact that under the local law, municipal law,
as we say in international legal terms, domestic law of that state, it would be a violation of the Constitution to do so.
So in this if this circumstance of use of force.
Is what we call effective effectivity, of course, if it is accompanied by effectiveness.
Effective control over the territory a um.
Monopoly on the use of force and followed importantly.
And you touched on this with recognition by other states of this new set of facts, of this new state.
Then you have the crystallisation of a new state. It's called state secession.
A state succeeds an entity secede from a prior territorial sovereign into a new state, and it's recognised as such.
So it's an odd thing because we have a saying in international law that 1st May not clean rights out of illegal acts,
but this, this legal construct of secession runs counter to that.
And if recognised by enough, you can create a legal fact.
In this case, you have Israel. I'll take this. I learned this from Professor John Dugger, South African leading jurist,
member of the International Court of Justice, represents South Africa before the ICJ in the case against Israel.
The author of the foreword of my book. Professor do Art.
And I had had this debate. He said, no, legally speaking, this is secession.
And it was followed by recognition and the crystallisation of the State of Israel with
all of the legal rights that that comes with states enjoy political independence,
territorial integrity, they may not be invaded, subject to general exceptions.
And on the general prohibition on the use of force. We can talk about that. But this is the difference between the international communities,
and it's largely in recognition of the treatment of the forgotten 22% and those territories taken by Israel.
In 1967, the overwhelming response by the international community in 67 was solved.
You've had enough of this pie. This West Bank, East Jerusalem, Gaza Strip.
The remaining 22% of Mandate Palestine is occupied territory.
We don't recognise your sovereignty in this territory.
The Israelis since 67, have rejected that position, and they stand alone in the international community as the only ones who reject that position.
The US has supported them in East Jerusalem, Honduras, Guatemala as well in East Jerusalem.
But beyond that, no. They stand alone and they don't have any law to back it up.
But this is the violence, this secession that is perpetrated by international law on an indigenous people who were there.
And through no fault of their own, their land was covered by European people.
But it's not just an international recognition here. It is the unwillingness of the indigenous people to accede to acquire access to it.
So they need. It's a way in which people that stayed on the land in the West Bank, in East Jerusalem,
in the Gaza Strip, which would then make the post 67 territories a different kind.
It's not just international recognition, it's Palestinian lack of acquiescence as well.
Well, lack of acquiescence until 1988. And you know what I'm about to say.
Right. So there are principles, general principles of international law, one of which I've discussed 1st May not give,
one does not possess, but actually they derive from English law and other civil systems.
One of them. One of them is estoppel. One of them is acquiescence.
In under international law, if a party who has rights does not acquiesce in the violation of those rights, but consistently asserts their right.
It's very clear that the question is open and left open deliberately.
But if there is an acquiescence in a violation of a right that is given freely by an authorised authority to do so,
then that can crystallise things and change the law.
And so when the PLO, the Palestine Liberation Organisation, recognised Israel in 1988, in 78% of the historical patrimony of the Palestinian people,
they did this in Algiers in 1988 as the quid pro quo for engaging the United States and Israel in a bilateral peace process.
The end goal of which, in the PLO's view, was statehood in the remain remaining 22%, being the West Bank, East Jerusalem and the Gaza Strip.
It can be said under law that they acquiesced in Israeli sovereignty in those territories.
Mine. And this is the creative lawyer in me thinking.
Israel has yet to acquiesce in this historical compromise to agree to it.
They claimed for a while to want a two state solution.
But and I would recommend Palestine Statement to the International Court of Justice for the evidence to back what I'm about to say.
If you look at statements made by countless Israeli leaders, military and political, and through the decades,
they're very clear, have no intention of establishing a Palestinian state in the West Bank, Gaza Strip and East Jerusalem.
They claim, both politically through statements and legislation.
The Basic Laws of Israel, Jewish State Basic Law 2018, in particular, and also through actions taken on the ground.
They claim exclusive sovereignty in the occupied Palestinian territory for the Jewish people,
quote unquote, in perpetuity and to the exclusion of all others.
So to the extent that the Palestinians are deemed to have acquiesced in 1988 with this historical compromise,
one might make the argument, flipping it,
that Israel is stopped using principles of estoppel from claiming a right to the land that they currently hold on the grounds that they in bad faith.
Have forced. The Palestinian had obtained concessions from Palestine under false pretences and to the detriment of the Palestinians.
This will be the next 50 years of international diplomacy. Thank you.
We'll see you soon.