1 00:00:00,390 --> 00:00:05,820 Ladies and gentlemen, welcome to the first event by Community Centre for Trinity Church. 2 00:00:07,200 --> 00:00:13,860 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. 3 00:00:14,880 --> 00:00:17,820 We take advantage of the opportunities that come our way. 4 00:00:17,820 --> 00:00:25,559 Other scholars liberated from their universities so that we're liberated from ours to come and share the recent research findings, 5 00:00:25,560 --> 00:00:30,540 and to the addressing our audience with the issues of the day. 6 00:00:31,050 --> 00:00:35,970 Towards that end, when we were approached by audiences to be talking about his new book, 7 00:00:36,300 --> 00:00:42,780 looking at the United Nations and the Question of Palestine, it was an opportunity that we could not refuse. 8 00:00:42,780 --> 00:00:48,450 And so we are delighted to be welcoming of the to Oxford for his first visit to the East. 9 00:00:49,440 --> 00:00:57,060 And he has come to academia through initially a career studying the Middle East and long after practising law, 10 00:00:57,240 --> 00:01:02,280 he joined the United Nations and assisted the UN with legal issues, 11 00:01:02,760 --> 00:01:06,150 before deciding later in life that he would like to return to scholarship, 12 00:01:06,570 --> 00:01:12,330 pursued his doctorate in law and the results were published by Cambridge University Press. 13 00:01:12,990 --> 00:01:18,090 After a very successful Cambridge doctorate in the United Nations. 14 00:01:18,090 --> 00:01:25,530 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. 15 00:01:25,830 --> 00:01:34,980 The failure of the leading international organisation to address the longest running international crisis is the stuff of many books. 16 00:01:35,550 --> 00:01:41,520 But to take you into this form, I would like to invite our guest to the podium before I do so, 17 00:01:41,520 --> 00:01:49,110 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. 18 00:01:49,380 --> 00:01:57,420 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. 19 00:01:58,170 --> 00:02:03,240 But as I hand over to you, please join me in a very warm welcome to some. 20 00:02:10,320 --> 00:02:14,640 Well, um, greetings to you all. Am I audible in the back? 21 00:02:15,510 --> 00:02:23,010 Wonderful. Well, not now. I miss the selling of books and items that look prohibitively expensive. 22 00:02:23,010 --> 00:02:29,750 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. 23 00:02:29,760 --> 00:02:37,060 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. 24 00:02:37,080 --> 00:02:42,750 I should like to begin, of course, by offering my sincere thanks to Professor Rogan, 25 00:02:42,750 --> 00:02:50,850 whose work I've been using, following, uh, much to my great honour and utility and so on for years. 26 00:02:51,570 --> 00:02:58,870 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. 27 00:02:58,870 --> 00:03:03,389 So thank you very much to you could Serve and Middle East Study Centre here at Saint Anthony's. 28 00:03:03,390 --> 00:03:08,190 I can't imagine a better place to share my findings and my ideas to do so. 29 00:03:08,190 --> 00:03:13,400 Thank. I begin with the painfully obvious. 30 00:03:14,330 --> 00:03:21,080 It is a gross understatement to say that things in Palestine have gone from bad to catastrophically worse. 31 00:03:22,310 --> 00:03:29,210 It is useful to recount the following observations of a senior United Nations official tasked with addressing the situation there. 32 00:03:29,510 --> 00:03:37,250 According to this person, quote, an indispensable condition for the settlement of the problem is the cessation of hostilities. 33 00:03:37,910 --> 00:03:43,880 That, quote, as a result of the hostilities in Palestine, an alarming number of persons have been displaced from their homes, 34 00:03:44,540 --> 00:03:49,010 including through real or alleged acts of terrorism or expulsion. 35 00:03:49,760 --> 00:03:54,260 And that, quote, it would be an offence against the principles of elements of justice if these innocent 36 00:03:54,260 --> 00:03:59,120 victims of the conflict were denied their right to return to their homes and quote. 37 00:04:00,470 --> 00:04:04,070 Given the sheer scale of the calamity now befalling the people of Gaza, 38 00:04:04,880 --> 00:04:11,540 over 34,000 killed, two thirds of whom were women and children at least 10,000 or more. 39 00:04:11,570 --> 00:04:16,010 I fear that number of spiritual presumed dead buried under the rubble. 40 00:04:16,790 --> 00:04:23,510 77,000 injured and counting and 1.7 million persons forcibly displaced. 41 00:04:24,440 --> 00:04:27,620 That's about 85% of the population of the Gaza Strip. 42 00:04:28,430 --> 00:04:35,000 And all of these people subjected to a policy of starvation as a tool of war or indiscriminate bombardment. 43 00:04:35,030 --> 00:04:38,149 Given all of that, one could be forgiven. 44 00:04:38,150 --> 00:04:44,390 In thinking that the quotes I just read out to you are those of the current Secretary General of the United Nations, Antonio Guterres. 45 00:04:44,630 --> 00:04:50,720 And you'd be wrong if you thought that. The fact is, ladies and gentlemen, Mr. Gutierrez is not under those words. 46 00:04:50,720 --> 00:04:59,600 They were actually written on the 16th of September, 1948 by one Count Folke Bernadotte, the then United Nations mediator for Palestine. 47 00:05:00,650 --> 00:05:06,770 The more things change, the more they remain the same. Bernadotte statements were made at The Hague, 48 00:05:06,770 --> 00:05:13,969 the first Palestinian network during which between 750,000 to 900,000 indigenous Palestinian 49 00:05:13,970 --> 00:05:19,700 Arabs were exiled from their homes in what became the State of Israel during the 1948 war. 50 00:05:20,540 --> 00:05:23,600 And it remains something of a mystery to me that today, 51 00:05:24,200 --> 00:05:30,350 for all the media attention now focussed on what the International Court of Justice has ruled is a plausible genocide in Gaza, 52 00:05:31,070 --> 00:05:38,150 it is rarely, if ever, mentioned that almost 80% of the population of Gaza are themselves not Gazans. 53 00:05:39,050 --> 00:05:47,930 They are 1948 refugees or their descendants, and that under international law, as affirmed by the United Nations on an annual basis since 1948, 54 00:05:48,650 --> 00:05:57,290 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. 55 00:05:57,530 --> 00:06:02,900 The only reason is because Israel denies them that right by virtue of the fact that they are not Jewish. 56 00:06:03,650 --> 00:06:11,360 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. 57 00:06:12,710 --> 00:06:15,050 Before becoming a professor of international law. 58 00:06:15,080 --> 00:06:22,400 I spent 12 years as a United Nations official in occupied Palestine with Unwra United Nations Relief and Works Agency for Palestine Refugees, 59 00:06:22,730 --> 00:06:27,020 four of which are in Gaza City. I lived there, uh, for four years, 60 00:06:27,020 --> 00:06:34,190 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. 61 00:06:35,270 --> 00:06:42,110 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. 62 00:06:42,110 --> 00:06:47,420 And the book that I'm presenting to you today is the result of that multi-year effort. 63 00:06:47,450 --> 00:06:52,489 To my knowledge, it is the first of its kind offering, among other things, 64 00:06:52,490 --> 00:06:59,660 critical legal history of how the UN has managed what is the longest running geopolitical problem on its agenda. 65 00:06:59,690 --> 00:07:07,940 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. 66 00:07:07,940 --> 00:07:11,659 On the other hand, written by about United Nations and international law. 67 00:07:11,660 --> 00:07:19,100 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. 68 00:07:19,880 --> 00:07:28,160 The book's starting point is the widely held representation that the UN is the standard bearer of the rules based international legal order, 69 00:07:28,790 --> 00:07:31,370 but based upon a close examination of the UN record, 70 00:07:32,300 --> 00:07:39,950 I have attempted to interrogate this received wisdom by demonstrating that there exists a vacillating gulf between what international law requires, 71 00:07:39,950 --> 00:07:45,560 on the one hand, and what the United Nations has done on the other. 72 00:07:47,300 --> 00:07:52,400 The forms that this golf has taken have varied. They include both action and a. 73 00:07:53,660 --> 00:07:59,540 They cover a variety of subsets of international law, from the law and statehood to recognition, 74 00:07:59,540 --> 00:08:07,250 to use of force and belligerent occupation and nationality and statehood and very wide array of subject matter. 75 00:08:07,460 --> 00:08:14,720 And they spend an unusually long period of time, 75 years and over various paradigmatic moments in international affairs, 76 00:08:14,960 --> 00:08:25,580 one from initially the period of late Empire, all the way up to the decolonisation period, and now a unipolar world come multipolar world. 77 00:08:26,450 --> 00:08:31,730 We're in that shifting vocabulary, and despite the breadth and expanse of this sordid story, 78 00:08:32,420 --> 00:08:37,760 it is marked by a singular experience of Palestine and its people to have been consigned to a 79 00:08:37,760 --> 00:08:44,210 seemingly permanent state of deprivation and disenfranchisement in the international legal order. 80 00:08:44,900 --> 00:08:46,790 If you take anything away, take following. 81 00:08:47,120 --> 00:08:54,620 The main claim of the book is that key legal texts and moments in the UN record demonstrate that Palestine and 82 00:08:54,620 --> 00:09:01,040 its people have historically suffered the effects of a long range condition that I call international legal. 83 00:09:01,400 --> 00:09:07,150 Some alternate. It's a mouth mouthful, I give you that, but I'll try and break it down for you. 84 00:09:08,400 --> 00:09:15,780 The principal attribute of this legal sub alternative or legal sub sub alternate condition is that those subjected to it are 85 00:09:15,780 --> 00:09:22,650 continually presented with the promise of a more just and equitable future through the application of international law, 86 00:09:23,160 --> 00:09:31,080 bolstered by the purveyor of the promise of that law and its political legitimacy, its unrivalled political legitimacy, 87 00:09:31,080 --> 00:09:37,230 the U.N. and that despite the lengths to which such groups go and reliance on this promise, 88 00:09:37,890 --> 00:09:44,040 its realisation is perpetually kept out of reach in one form or another through the actions, 89 00:09:44,040 --> 00:09:51,540 ironically so, of the very same un, which all too often either does not pay sufficient heed to international laws, 90 00:09:51,540 --> 00:09:54,690 precepts, or completely overlooks them. In practice, 91 00:09:56,070 --> 00:10:02,219 what brings international legal some authority into sharp relief is the clash one is able to trace over 92 00:10:02,220 --> 00:10:09,570 time between the international rule of law with what can be called the international rule by law. 93 00:10:10,630 --> 00:10:17,320 You'll recognise it first. On the one hand, the international rule of law is ostensibly based on the universal application of 94 00:10:17,320 --> 00:10:22,210 international legal norms without regard to the power or station of those subjected to them. 95 00:10:22,360 --> 00:10:31,540 It applies universally, yeah. On the other hand, the international rule by law is rooted in a cynical use, abuse, 96 00:10:32,170 --> 00:10:39,910 or selective application of international legal norms by hegemonic actors under a claim of democratic rights based liberalism. 97 00:10:40,450 --> 00:10:47,530 But with the effect of perpetuating inequity between them as hegemonic actors and their some alternate or weaker opposites. 98 00:10:47,890 --> 00:10:55,120 Yeah. And by juxtaposing the international rule of law with the international rule by law. 99 00:10:56,450 --> 00:11:02,450 One is better able to understand the nature of this condition than I have spoken of the legal subaltern condition, 100 00:11:03,440 --> 00:11:07,760 and to understand that that condition is a fixed feature of the international legal order. 101 00:11:08,090 --> 00:11:10,430 Let me give you an example. Depart from my notes for a moment. 102 00:11:11,510 --> 00:11:16,610 Palestine is an embodiment of legal social trinity in my respectful view, but it isn't the only one. 103 00:11:16,790 --> 00:11:24,709 You can see this condition replicate itself across the board with non-state armed groups non-self-governing peoples, refugees, women, 104 00:11:24,710 --> 00:11:36,110 minority groups, indigenous peoples, especially on the international legal plain where these groups use law to press up against laws violence. 105 00:11:36,830 --> 00:11:44,000 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, 106 00:11:44,240 --> 00:11:48,260 which inevitably produces new law over time through state practice, 107 00:11:48,260 --> 00:11:53,720 especially at the General Assembly of the United Nations, or through treaty practice or custom or what have you. 108 00:11:54,170 --> 00:12:00,920 And as new law emerges, invariably new subaltern groups emerge for whom that new law does not speak. 109 00:12:01,550 --> 00:12:06,140 And so it's a cycle of law making, law challenging, and so on. 110 00:12:06,260 --> 00:12:11,600 But a fixed feature of this cycle is the condition of legal sub alternative that I argue. 111 00:12:12,470 --> 00:12:14,480 And so it is a fixed feature. 112 00:12:14,810 --> 00:12:22,370 And although some subaltern groups may emerge from its yoke, the burden of subaltern, it immediately transfers to another group. 113 00:12:23,810 --> 00:12:32,360 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. 114 00:12:33,500 --> 00:12:37,310 But I've tried to sort of situate my ideas in this frame. 115 00:12:37,790 --> 00:12:41,509 The book is largely the empirical legal history that will be of interest to those 116 00:12:41,510 --> 00:12:46,100 who among you who are international relations specialist historians of the UN, 117 00:12:46,670 --> 00:12:50,000 uh, policymakers and the question of Palestine and so on. 118 00:12:51,320 --> 00:12:54,590 So when it comes to the UN, to prolong the management of the question of Palestine, 119 00:12:54,590 --> 00:12:59,570 one finds a sustained expression of international legal, some all trinity in its beleaguered people. 120 00:13:00,290 --> 00:13:04,399 Given that one of the core principles of the United Nations, and I'm quoting the UN charter here, 121 00:13:04,400 --> 00:13:11,030 is to maintain international peace and security in conformity with the principles of justice and international law. 122 00:13:11,570 --> 00:13:18,950 Understanding why and how the UN has maintained Palestine's subaltern condition provides insight not in not only 123 00:13:18,950 --> 00:13:25,520 into why and how the conventional wisdom of the UN as the standard bearer of international law is and stated, 124 00:13:26,660 --> 00:13:31,400 but also how the UN might actually better performance functions in war in the world in which we live. 125 00:13:31,560 --> 00:13:39,710 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. 126 00:13:39,980 --> 00:13:46,130 I'll first discuss the historical origins of Palestine's legal alternative situated in the interwar years. 127 00:13:46,340 --> 00:13:52,340 I'll then discuss how that legal subaltern condition was reified or crystallised by 128 00:13:52,340 --> 00:13:57,350 the United Nations General Assembly in 1947 when it purported to partition Palestine. 129 00:13:58,250 --> 00:14:02,030 And then I'll address the unique institutional and normative regime established 130 00:14:02,030 --> 00:14:05,900 by the United Nations General Assembly to deal with the fallout of the 1940 war, 131 00:14:06,110 --> 00:14:08,090 namely, the Palestinian refugee problem. 132 00:14:08,930 --> 00:14:17,030 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. 133 00:14:17,030 --> 00:14:22,550 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. 134 00:14:23,740 --> 00:14:27,010 And then finally, um, I'll cover the treatment of the state. 135 00:14:27,010 --> 00:14:30,130 Palestine's attempt to gain full membership in the organisation. 136 00:14:30,910 --> 00:14:36,570 Uh, in 2011 and just a week and a half ago as well, the Security Council, some of you may be aware of that. 137 00:14:36,580 --> 00:14:41,380 I was in the council at the time when the debates were brought back on by the State of Palestine. 138 00:14:42,130 --> 00:14:48,280 So to begin with, the origins of Palestine's legal symbol, Trinity, are found in the interwar years, 139 00:14:48,280 --> 00:14:55,150 not actually, uh, in the UN itself, and they're located in that period and the League of Nations period, 140 00:14:55,390 --> 00:14:59,530 which effectively ratified the effects of Imperial Britain's secret treaty 141 00:14:59,530 --> 00:15:04,120 making and diplomacy that undermined the political rights of Palestinian Arabs. 142 00:15:04,600 --> 00:15:07,600 The relevant documents, and Professor Rogan will know this very well, 143 00:15:08,350 --> 00:15:12,730 are two detailed here to cover, but they will be cognisable to the historians in the room. 144 00:15:13,210 --> 00:15:16,890 First, you have seen McMahon correspondence of 19 1516. 145 00:15:16,900 --> 00:15:22,480 You have the Sykes-Picot agreement of 1916, the 1917 Balfour Declaration. 146 00:15:22,930 --> 00:15:28,270 You also have the Nations Covenant of 1920 and article 22 in particular about that. 147 00:15:29,440 --> 00:15:35,260 And you have the mandate for Palestine, which governs the Palestine Mandate from 1922 to 1947. 148 00:15:35,740 --> 00:15:41,440 And while the historians tend to treat, and rightfully so, these moments from a political perspective perspective, 149 00:15:41,440 --> 00:15:44,740 it is often overlooked that they also had legal significance. 150 00:15:45,010 --> 00:15:48,010 They also had needles, and when taken together, 151 00:15:48,010 --> 00:15:56,499 these five moments resulted in the international legal disenfranchisement of the indigenous Palestinian populations population in 152 00:15:56,500 --> 00:16:05,740 favour of a self-described self-described European settler colonial movement that was to be imposed on Palestine come what may. 153 00:16:06,670 --> 00:16:14,860 Some context is crucial here. In the late 19th century, Palestine was inhabited by native Palestinian Arab people, 154 00:16:14,860 --> 00:16:19,540 predominantly Muslim and Christian, with an uninterrupted tenure in the land for millennia. 155 00:16:20,530 --> 00:16:27,730 At about that time, the political Zionist movement emerged in Central Europe, led by an Austrian Jewish playwright, Theodore Hertz. 156 00:16:29,290 --> 00:16:31,119 In answer to centuries of persecution, 157 00:16:31,120 --> 00:16:38,440 Herzl proposed that Europe's Jews should partner in order to colonise Palestine and convert it into a Jewish homeland. 158 00:16:39,340 --> 00:16:43,000 The perennial trouble for the Zionists, then, indeed, as now. 159 00:16:44,050 --> 00:16:48,550 Was that Palestine was already inhabited by another people. The quick any. 160 00:16:48,850 --> 00:16:51,909 However, if you square the circle well, 161 00:16:51,910 --> 00:16:58,120 the long story of settler colonial displacement and replacement is well-trodden in the literature on Palestine. 162 00:16:58,120 --> 00:17:00,700 What is often left out is the role of law. 163 00:17:00,820 --> 00:17:10,840 In order for Herzl and his followers, law was no less as important a colonising tool as acquisition of actual material resources, 164 00:17:11,140 --> 00:17:19,120 as evidenced from the program that the Zionists adopted at the first uh Zionist Congress in Basel in 1897. 165 00:17:21,190 --> 00:17:27,880 For them, the colonisation effort could not be complete without achieving recognition of their right to colonise. 166 00:17:28,300 --> 00:17:32,650 As a matter of international law, what was then called public law. 167 00:17:34,190 --> 00:17:40,099 Their civilising mission fit well into the international legal order of the day at the time, 168 00:17:40,100 --> 00:17:48,860 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. 169 00:17:48,860 --> 00:17:51,350 He will chair an international law at Cambridge. 170 00:17:52,100 --> 00:17:58,850 The international legal order was rooted in an unabashed Euro centricity that helped non-Europeans to be uncivilised, 171 00:17:59,360 --> 00:18:02,030 and therefore unworthy of rights and standing in the system. 172 00:18:02,390 --> 00:18:11,030 Indeed, at that time, civilisation was the key legal determinant of who enjoys standing on the international legal plane, if you like. 173 00:18:12,900 --> 00:18:15,270 The 1917 Balfour Declaration, 174 00:18:15,270 --> 00:18:21,990 through which the British ignominiously promised Palestine to the European Zionists without consulting the native Palestinian majority. 175 00:18:22,110 --> 00:18:30,480 Then some 92% of the population of the country, and even before the British set foot in Palestine was kindled. 176 00:18:31,910 --> 00:18:33,020 Balfour Declarations. 177 00:18:33,020 --> 00:18:41,360 Incorporation into the very terms of the League of Nations Mandate for Palestine furnished the declaration with the imprimatur of legal authority, 178 00:18:42,080 --> 00:18:46,520 despite violating a general principle of international law and indeed domestic English law. 179 00:18:46,520 --> 00:18:52,100 Some of you who do property law would know this principle that 1st May not give what one does not possess. 180 00:18:52,340 --> 00:18:58,820 Memo that quote don't have it. Yeah. Principle of international law that is applicable at the time of which we speak. 181 00:18:59,510 --> 00:19:05,630 But it also began a period, a pattern of open ridicule of the principle of self-determination. 182 00:19:07,780 --> 00:19:12,669 Which was the object and purpose of the so-called sacred trust of civilisation of the League of Nations, 183 00:19:12,670 --> 00:19:17,940 come bestowed on Palestine as a class A mandated territory. 184 00:19:18,200 --> 00:19:26,049 Historians will recognise. And this was later affirmed by the International Court of Justice in the Namibian case of 1971, 185 00:19:26,050 --> 00:19:32,350 that the purpose of the Sacred Trust was to ensure that the self-determination rights of the indigenous peoples of these lands. 186 00:19:36,290 --> 00:19:46,780 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. 187 00:19:46,800 --> 00:19:52,170 In 1919, Balfour felt no compunction privately declaring, quote, in the case of Palestine, 188 00:19:52,170 --> 00:19:55,710 we deliberately and rightly declined to set the principle of self-determination. 189 00:19:56,310 --> 00:20:01,799 If the present inhabitants were consulted, they would unquestionably give an anti-Jewish verdict, 190 00:20:01,800 --> 00:20:07,940 by which he meant an anti-Zionist verdict, and this was later followed in a memorandum that he wrote to Lord Curzon again, 191 00:20:07,960 --> 00:20:13,440 historians will recognise these words, where he famously stated, and in that year he famously stated, 192 00:20:13,440 --> 00:20:20,160 quote In Palestine we do not propose to even go through the form of consulting the wishes of the present inhabitants of the country. 193 00:20:20,730 --> 00:20:24,240 The four great Powers are committed to Zionism and Zionism. 194 00:20:24,240 --> 00:20:29,400 Be it right or wrong, good or bad, is rooted in each long tradition. 195 00:20:29,760 --> 00:20:34,350 In present needs and future hopes of foreign profound are enforced, 196 00:20:34,350 --> 00:20:41,570 and the desire and prejudices of the 700,000 Arabs who now inhabit that ancient land, including. 197 00:20:43,540 --> 00:20:48,820 And so the mandate years were spent by the British, helping the Zionist movement effectively build a state within a state, 198 00:20:49,660 --> 00:20:56,440 and the international legal order's structural euro centricity was key to the endeavour in a real sense. 199 00:20:57,970 --> 00:21:04,510 The international rule by law of this period was, quote, a description of what was happening to the subculture Palestinians. 200 00:21:05,230 --> 00:21:08,440 But in my respectful view also prognostication of what was to come. 201 00:21:10,700 --> 00:21:17,210 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. 202 00:21:17,390 --> 00:21:22,490 So I'm shifting forward in time, and now I'm going to talk to you about the partition plan. 203 00:21:23,390 --> 00:21:32,030 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, 204 00:21:32,420 --> 00:21:38,030 the UN remained true to the old order and rule by law, a framework that it had inherited. 205 00:21:38,450 --> 00:21:47,120 And this is demonstrated by looking at the terms of UN Partition Plan resolution 21 of 29th November 1947, 206 00:21:47,120 --> 00:21:54,229 as well as the associated UN Documentary Record, the discussions that took place in the General Assembly, as well as the record, 207 00:21:54,230 --> 00:21:58,070 private and public, of the United Nations Special Commission for Palestine. 208 00:21:58,070 --> 00:22:05,750 Special Committee for Palestine, which was a body that studied what to do and recommended to the General Assembly its majority partition. 209 00:22:07,610 --> 00:22:16,730 Resolution 181. Marry me provided for the partition of Palestine into an Arab state and a Jewish state in economic union, 210 00:22:17,000 --> 00:22:19,130 with the city of Jerusalem to be established, 211 00:22:19,460 --> 00:22:26,060 as well as its immediate environs as a corporate separation, and to be administered by the United Nations and international city. 212 00:22:27,290 --> 00:22:32,150 Under the plan, both states were required to adopt democratic constitutions, 213 00:22:32,780 --> 00:22:39,920 established government on the basis of universal suffrage, and guarantee to all persons equality before the law. 214 00:22:40,520 --> 00:22:50,030 All that sounds wonderful doesn't. But aside from the act of partition itself, the extent to which the resolution crystallised Palestinian legal, 215 00:22:50,030 --> 00:22:58,180 some alternative is best illustrated in the specific details of its terms, demographically speaking and territorially speak. 216 00:22:58,730 --> 00:23:00,230 By any objective assessment, 217 00:23:00,230 --> 00:23:07,750 these terms demonstrate an absolute contempt for the principle of self-determination of peoples as then applied to class A mandate. 218 00:23:07,750 --> 00:23:15,010 Mandated territories under international law rooted itself upon the idea of majority rule, the consent of the governed right, 219 00:23:15,080 --> 00:23:23,960 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. 220 00:23:24,320 --> 00:23:32,570 Territorially, the plan allotted the Jewish state approximately 57% of the total area of Palestine, including its most fertile land. 221 00:23:33,320 --> 00:23:38,780 Despite the Jewish settler population comprising only one third of the total of the country. 222 00:23:39,440 --> 00:23:45,530 In addition, the Jewish settler population possessed registered ownership of only 5.6% of the land. 223 00:23:45,890 --> 00:23:51,800 Just 5.6%. They were eclipsed by the Arab indigenous population in every subject district of Palestine. 224 00:23:52,220 --> 00:23:55,870 In terms of land ownership. By the way, these facts are all in the UN report. 225 00:23:55,880 --> 00:23:59,830 I'm spitting out what I found in the record. Demographically. 226 00:23:59,830 --> 00:24:07,180 Although the proposed Arab state would include a clear majority of approximately 725,000 Arabs to 10,000 Jews, 227 00:24:07,720 --> 00:24:19,180 the proposed Jewish state would contain a total population of 1,080,000, consisting of 509,000 Arabs to 499,000 Jews. 228 00:24:19,600 --> 00:24:23,950 This meant that minority rule would prevail in the purported Jewish state from the off, 229 00:24:23,950 --> 00:24:31,360 and despite the terms of the very same resolution which required both states so created to be democratic, 230 00:24:32,050 --> 00:24:39,400 to provide brutal rule of law and no equality before the law and so on, and it says nothing of the fact that, 231 00:24:39,400 --> 00:24:43,780 in its own words, I know, citing the United Nations Special Committee for Palestine. 232 00:24:44,650 --> 00:24:51,610 In its own words, the UN would grant the Jewish state the more economically developed part of the country and quote, 233 00:24:52,330 --> 00:25:00,640 while openly admitting, undid that the economic viability of the proposed Arab state would be in doubt from the start. 234 00:25:00,790 --> 00:25:06,310 So much so that un scop recommends to the General Assembly of the United Nations that if you go for partition, 235 00:25:06,850 --> 00:25:12,610 your resolution should indicate to the newly formed Bretton Woods institutions, the IMF, 236 00:25:12,610 --> 00:25:19,089 the International Monetary Fund and the world Bank, that any request for funds for loans, structural adjustment, 237 00:25:19,090 --> 00:25:26,740 loans and so on given over are requested by the newly formed Arab states should be received with warm arms and welcome arms. 238 00:25:27,610 --> 00:25:29,830 So the UN knows precisely what it's doing. 239 00:25:30,310 --> 00:25:35,590 And as a matter of public record, what they are doing is setting up a state that can't survive economically. 240 00:25:36,410 --> 00:25:43,090 Besides the fact that the partition was done without the consent of the majority of its population, 241 00:25:43,090 --> 00:25:47,590 its native population, putting it kindly, resolution 181 was a glaring anomaly. 242 00:25:47,920 --> 00:25:55,180 Under prevailing international law. The Sacred Trust Principles folded into the United Nations Charter via the League of Nations Covenant, 243 00:25:55,750 --> 00:25:59,170 coupled with the British satisfaction of its obligations peaceably. 244 00:25:59,170 --> 00:26:04,780 The Jewish National Home, which had by then been fulfilled according to a 1939 White Paper, 245 00:26:05,590 --> 00:26:15,400 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. 246 00:26:15,470 --> 00:26:22,720 First. Shock and horror. Immediate independence of Palestine, all of it in line with the majority wishes of its indigenous population. 247 00:26:23,800 --> 00:26:25,600 Second UN trusteeship, 248 00:26:25,600 --> 00:26:33,730 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, 249 00:26:34,060 --> 00:26:41,230 and they would fold into the UN trusteeship and the UN would oversee them until such time as they were prepared for independence. 250 00:26:42,490 --> 00:26:50,969 Those are the only two options. Partition would not allow any other option but an examination of the UN record in the form 251 00:26:50,970 --> 00:26:55,500 of the public and private meetings and report of the UN Special Committee on Palestine, 252 00:26:55,920 --> 00:26:58,230 as well as the General Assembly debates that followed, 253 00:26:58,560 --> 00:27:05,000 demonstrates that partition had absolutely nothing to do with these two legal options, or international law at all. 254 00:27:05,010 --> 00:27:15,899 It was rather driven by hegemonic European states and their settler colonial affiliates, despite claims to the contrary of some contemporary scholars. 255 00:27:15,900 --> 00:27:20,400 In fact, just one who will remain nameless for now. But you can see my book for interested will come and see. 256 00:27:21,660 --> 00:27:23,280 There is a diplomacy in tact about this. 257 00:27:24,630 --> 00:27:31,620 The UN record reveals that the declared goal of these states was, in fact, to rectify Europe's centuries old Jewish question. 258 00:27:31,620 --> 00:27:37,830 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, 259 00:27:38,310 --> 00:27:43,530 but to do so at the expense of the innocent third party Palestinians who have absolutely 260 00:27:43,530 --> 00:27:49,260 nothing to do with World War Two or the Final Solution adopted by the Third Reich. 261 00:27:51,110 --> 00:27:54,290 A close reading of the unsolved records review is at least three factors that 262 00:27:54,290 --> 00:27:59,090 led the General Assembly to disregard the Liberal international legal order, 263 00:27:59,240 --> 00:28:02,719 then said, to govern in favour of overriding European interests. 264 00:28:02,720 --> 00:28:08,330 I've set them out here first, there was a bias in the terms, in the terms of reference and composition of one scope. 265 00:28:08,330 --> 00:28:09,800 It was overwhelmingly Western. 266 00:28:11,490 --> 00:28:19,080 And at a time where the General Assembly, in fairness, was also overwhelmingly Western, or maybe only about 51 member states at the time. 267 00:28:19,350 --> 00:28:28,890 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. 268 00:28:29,540 --> 00:28:35,110 Uh, second, there was a failure by UN Scott to engage with the Palestinian Arab leadership in the Arab Higher Committee. 269 00:28:35,130 --> 00:28:41,580 Much has been made in the literature about the Arab Higher Committee's boycott of un scop, which indeed they did. 270 00:28:42,270 --> 00:28:51,210 But from a UN standpoint of diplomacy, anybody who does this work will know that parties will take a position that sometimes is rigid, 271 00:28:51,780 --> 00:29:00,089 and the role of the diplomat is to ensure an open channel and redouble the effort and reach out and attempt to engage, 272 00:29:00,090 --> 00:29:03,780 notwithstanding the initial cold shoulder that you might receive. Scop doesn't. 273 00:29:03,780 --> 00:29:06,870 None of us. I read the record front and back. None of it. 274 00:29:07,230 --> 00:29:13,080 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. 275 00:29:13,380 --> 00:29:20,220 After many decades of being hoodwinked by the international community as viewed from the prism of the Arab Higher Committee. 276 00:29:20,400 --> 00:29:25,660 And finally, there was a contempt for principles of democratic governance and self-determination. 277 00:29:25,680 --> 00:29:28,720 I won't at all have time, of course, to deal with all three of these things. 278 00:29:28,740 --> 00:29:36,180 I would like, however, just to spend a minute or so on this last point of unshakeable contempt for democratic governments. 279 00:29:39,090 --> 00:29:45,060 And self-determination. Peace. For instance, in its majority report recommending partitions, 280 00:29:45,070 --> 00:29:51,510 the Assembly and staff expressly noted that, quote, with regard to the principle of self-determination. 281 00:29:51,960 --> 00:29:56,400 Although international recognition was extended to this principle at the end of the First World War, 282 00:29:56,700 --> 00:30:02,720 and it was adhered to regard to the other Arab territories at the time of the creation of the mandates. 283 00:30:02,970 --> 00:30:09,480 Here they referring to Iraq, Syria, Jordan, Lebanon, they had all received as class A, 284 00:30:09,480 --> 00:30:15,000 mandates their independence in the 40s in line with the sacred trust principles of League nations covenant. 285 00:30:16,020 --> 00:30:17,980 They continued it. 286 00:30:18,420 --> 00:30:25,980 Self-Determination was not applied to Palestine, obviously, because the intention to make possible the creation of a Jewish national home there. 287 00:30:26,490 --> 00:30:35,160 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, 288 00:30:35,160 --> 00:30:39,210 the principle of self-determination. So they know full well what they're dealing with here. 289 00:30:39,540 --> 00:30:44,640 They understand that self-determination rights are being violated of the native majority population. 290 00:30:46,040 --> 00:30:49,490 And astoundingly, none of this gave the unsolved majority reason for pause. 291 00:30:50,240 --> 00:30:57,410 In fact, an even more animated rationale came from Ambassador Haughey Garcia Granados, then the Permanent Representative of Guatemala, 292 00:30:57,710 --> 00:31:03,590 to the United Nations on the 10th of October, 1947, in urging the General Assembly to vote for partition. 293 00:31:03,980 --> 00:31:10,340 He said, quote, Palestine was no more arid than certain Spanish countries of Latin America or India. 294 00:31:11,180 --> 00:31:18,710 The Jews had made a pleasant and healthy country out of a land in which a sparse and Turkic population had merely vegetate. 295 00:31:20,330 --> 00:31:26,900 It was incomprehensible, he said, that the Arabs should use their numerical superiority as an argument. 296 00:31:27,650 --> 00:31:31,640 An ignorant majority should not be allowed to impose its will. 297 00:31:34,740 --> 00:31:37,440 One could go on, but you get the point. France. 298 00:31:38,460 --> 00:31:45,510 For the Western dominated U.N., the indigenous majority population of Palestine did not matter when it came to the application of international law. 299 00:31:46,230 --> 00:31:48,990 And in Reifying Palestine's legal system, all eternity. 300 00:31:48,990 --> 00:31:58,590 In the UN system, the plan of partition adopted by the General Assembly imposed in both normative and discursive legal terms, 301 00:31:59,160 --> 00:32:04,680 the two state paradigm that would thereafter underpin the organisation's position on the question of Palestine, 302 00:32:05,400 --> 00:32:10,680 a position that remains in place to this very day, which, ironically, has yet to be fully realised. 303 00:32:12,580 --> 00:32:15,370 So I will move forward in time, not very far in time. 304 00:32:16,000 --> 00:32:22,360 Another demonstration of Palestine's contingent status emerged with the UN's creation of a distinctive 305 00:32:22,360 --> 00:32:28,840 institutional and normative regime for the Palestinian refugees following the 1948 Nakba. 306 00:32:30,280 --> 00:32:36,579 Nakba Arabic meaning catastrophe and this is the term and Palestinians used in respect of the fall of Palestine in 1948, 307 00:32:36,580 --> 00:32:41,830 with the ethnic cleansing that took place and everything there after indeed the Nakba. 308 00:32:42,250 --> 00:32:48,730 To borrow a phrase, if you like, from Patrick Wolf, much like settler colonialism is not an event. 309 00:32:48,970 --> 00:32:52,690 It is a structure. And it carries on and continues to this very day. 310 00:32:53,050 --> 00:32:57,930 And we are witnessing the current manifestation of the Nakba in Gaza as East. 311 00:32:59,370 --> 00:33:07,490 But I digress. This came in the form of two subsidiary organs of the General Assembly of the United Nations. 312 00:33:08,520 --> 00:33:13,550 O'Brien. First, the United Nations Conciliation Commission for Palestine, UNC. 313 00:33:14,000 --> 00:33:17,750 And you know how the Nations Relief and Works Agency for Palestine Refugees in the Near East. 314 00:33:17,750 --> 00:33:24,829 Unwra. Which were collectively aimed at providing protection and assistance, including a search for durable solutions, 315 00:33:24,830 --> 00:33:29,450 which is a term of art that we use in international refugee law to the plight of the Palestinian refugees. 316 00:33:30,170 --> 00:33:38,060 And this unique regime for the Palestinian refugees was, and remains distinct from the international institutional and normative regime 317 00:33:38,420 --> 00:33:43,399 applicable to all other refugees in the world as administered by the United Nations. 318 00:33:43,400 --> 00:33:50,750 A third subsidiary organ, the United Nations High Commissioner for refugees, UNHCR, for whom I used to work when I was stationed in Cairo. 319 00:33:52,390 --> 00:33:53,050 With the receipt, 320 00:33:53,140 --> 00:34:01,380 while the received wisdom holds the special regime for Palestinian refugees held as demonstrative of the UN's unique responsibility for their plight, 321 00:34:01,390 --> 00:34:02,320 which, of course it is. 322 00:34:03,070 --> 00:34:10,330 The UN's record also reveals that it was never actually intended to give effect to Palestinian refugee rights under prevailing international law, 323 00:34:11,530 --> 00:34:16,640 including. Law as affirmed by the U.N. itself, which is detention. 324 00:34:17,540 --> 00:34:25,880 For example, in practice, UNHCR is mandated to pursue the following three durable solutions for refugee populations in order of preference. 325 00:34:26,180 --> 00:34:36,050 First, voluntary repatriation. Second, local integration in a country of immediate refugee and third resettlement in a third country. 326 00:34:36,950 --> 00:34:49,130 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. 327 00:34:49,370 --> 00:34:55,490 The attempt to mediate a resolution between the Arab states who weren't representing the Palestinian refugees in any case, 328 00:34:56,150 --> 00:34:59,480 and Israel, um, and to no avail. 329 00:35:01,500 --> 00:35:08,729 And and then, undaunted, the General Assembly created Unwra to provide humanitarian aid and assistance to the refugees, 330 00:35:08,730 --> 00:35:12,510 ostensibly without their prejudice under international law, to return to their homes. 331 00:35:12,930 --> 00:35:15,610 From Wednesday. Were expelled. 332 00:35:18,370 --> 00:35:24,549 Nevertheless, a review of the UN record demonstrates that Unwra was in fact designed to resettle the Palestinian refugees, 333 00:35:24,550 --> 00:35:25,930 not to maintain their rights. 334 00:35:29,360 --> 00:35:36,800 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. 335 00:35:37,430 --> 00:35:44,520 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, 336 00:35:44,570 --> 00:35:52,780 lend its good offices to any efforts towards exchanges of populations with a view to eliminating troublesome minority problems, 337 00:35:53,220 --> 00:35:55,550 by which means there should be an exchange of populations. 338 00:35:55,850 --> 00:36:01,270 Palestinian refugees have been expelled wherever they may be now in Jordan, Egypt, Lebanon, Syria. 339 00:36:01,280 --> 00:36:05,899 Let them stay there. The Jews who left those countries are now in Israel. 340 00:36:05,900 --> 00:36:09,440 And let's just call it a day. Let's agree that that's how it should be. 341 00:36:09,710 --> 00:36:16,410 Yeah. And he's the key UN official. Likewise, unSc affirmed who in the long run, 342 00:36:16,770 --> 00:36:20,249 the final solution of the refugee problem would be found within the framework of 343 00:36:20,250 --> 00:36:25,440 the economic and social rehabilitation of all the countries of the Middle East. 344 00:36:25,440 --> 00:36:32,070 End quote. This allusion to a developmental approach to resolving what was illegal and a political problem. 345 00:36:36,290 --> 00:36:41,540 Bear with me was continued by the United Nations Economic Survey mission. 346 00:36:42,860 --> 00:36:49,780 The U.N. ESM, which espouses fanciful and wholly invented ideas, wholly invented out of whole cloth. 347 00:36:49,790 --> 00:36:56,950 Really? That, quote, the plight of the refugees is both a symptom and cause of great economic instability. 348 00:36:56,960 --> 00:37:01,430 And for. Now ESM is important because they are the precursor to UN. 349 00:37:02,150 --> 00:37:05,240 They propose that a group of organisation like Unwra is treat. 350 00:37:05,900 --> 00:37:11,240 But not even the Zionists argued that the Palestine refugee problem was the result of economic instability. 351 00:37:12,350 --> 00:37:13,460 But be that as it may. 352 00:37:13,880 --> 00:37:21,590 It was this idea that gave rise to another and ostensibly temporary organisation now mandated to provide relief and works programs, 353 00:37:21,590 --> 00:37:30,890 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. 354 00:37:31,040 --> 00:37:39,139 Which in turn is demonstrative of the various ways international law has at once been overlooked or selectively applied by the U.N., 355 00:37:39,140 --> 00:37:46,430 with negative results. The international law that prevailed at the time required the expelling country. 356 00:37:46,490 --> 00:37:49,520 You cannot expel even when there's a change in sovereignty. 357 00:37:49,730 --> 00:37:53,299 You can't expel your nationals. Sovereignty. 358 00:37:53,300 --> 00:37:58,340 Rather, nationality of the population in the territory follows a change of sovereignty, right? 359 00:37:58,940 --> 00:38:02,150 If that were allowed, it would have allowed to do otherwise. 360 00:38:02,360 --> 00:38:08,929 You have the ability of new states that emerge from, you know, countries expelling their populations because they're undesirable. 361 00:38:08,930 --> 00:38:16,329 And that's precisely what's happened here. The outcome has been to challenge the conventional wisdom that prevents the organisations 362 00:38:16,330 --> 00:38:20,200 the guardian of international rule of law when it concerns Palestine refugees. 363 00:38:20,230 --> 00:38:27,990 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. 364 00:38:28,000 --> 00:38:31,060 And there are many good things about IHRA, and I'm happy to talk to you about that. 365 00:38:31,540 --> 00:38:38,049 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. 366 00:38:38,050 --> 00:38:42,850 I'll move away from my notes. Now, this relates to a case that I'm currently working on. 367 00:38:42,850 --> 00:38:46,690 As I mentioned earlier, on behalf of the State of Palestine at the International Court of Justice. 368 00:38:48,150 --> 00:38:56,850 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. 369 00:38:57,240 --> 00:39:10,080 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. 370 00:39:10,970 --> 00:39:18,620 Israel's behaviour and violation of international humanitarian law, or the laws of war and international human rights law. 371 00:39:19,100 --> 00:39:26,540 Chapter and verse. But it is examined discrete actions of the occupying power as though they exist in a vacuum. 372 00:39:26,570 --> 00:39:31,130 You may not, for instance, in deport um, protected population, the civilian population. 373 00:39:31,400 --> 00:39:37,610 You may not destroy their private property, and then you may not, uh, incarcerate them without charge or trial. 374 00:39:37,640 --> 00:39:44,780 Things like that. Torture is prohibited. And so on. Settlement of an occupied by territory that an occupying power is unlawful. 375 00:39:45,230 --> 00:39:47,270 So the UN has spent many a decade. 376 00:39:48,530 --> 00:39:58,160 Doing this sort of work and building up a documentary record, but it has yet to determine the legality of the regime itself, 377 00:39:58,700 --> 00:40:02,600 imposed by the occupying power that gives rise to these individual violations. 378 00:40:03,470 --> 00:40:09,680 What is the legality of the very presence of the occupying power in the occupied Palestinian territory? 379 00:40:09,710 --> 00:40:12,860 That is a question that has yet to be determined by the United Nations. 380 00:40:13,130 --> 00:40:24,050 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, 381 00:40:24,500 --> 00:40:29,690 Gaza Strip and East Jerusalem was unlawful, but it stopped making those references after 1981. 382 00:40:29,990 --> 00:40:38,299 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. 383 00:40:38,300 --> 00:40:41,590 Those references dropped off. And so the question is how? 384 00:40:41,590 --> 00:40:48,110 How can it be in a time of decolonisation, when you have the rise of the Third World in the organisation, 385 00:40:48,110 --> 00:40:52,490 it's no longer Western oriented or European centric. The U.N. is has a new look. 386 00:40:53,300 --> 00:40:57,440 Why is it that the Palestinians continue to suffer from a subculture and condition? 387 00:40:59,200 --> 00:41:04,440 Notwithstanding this. Legislation, if you like, of these violations of Israel's. 388 00:41:05,610 --> 00:41:12,260 Obligations under the law of occupation and so on. And so this chapter examines. 389 00:41:13,730 --> 00:41:16,940 The rule by law that is imposed by the UN by omission. 390 00:41:17,000 --> 00:41:21,080 Failure to determine Israel's occupation to be unlawful. 391 00:41:21,620 --> 00:41:28,070 Now, I need to explain to you the law of occupation and brief occupation of enemy territories, meant to be a temporary condition. 392 00:41:29,240 --> 00:41:36,550 post-World War Two occupations lasted Germany and Japan lasted about 7 or 10 years, respectively, by the Allied Powers. 393 00:41:38,050 --> 00:41:42,640 An occupying power may not assert sovereignty in occupied territory. 394 00:41:42,670 --> 00:41:49,150 We know this from Russia's position in Ukraine and indeed Western countries position on Russia's position in Ukraine. 395 00:41:49,330 --> 00:41:52,480 Russia claims sovereignty in occupied Ukraine. 396 00:41:52,660 --> 00:41:57,280 The West says you may not acquire territory through force of arms. That is absolutely prohibited. 397 00:41:57,280 --> 00:42:00,880 And so on. It's occupied territory. No, it's no more than that. 398 00:42:02,250 --> 00:42:10,230 And notwithstanding these principles, over the past 57 years, over a half century, the occupying power in the occupied West Bank, 399 00:42:10,260 --> 00:42:19,920 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, 400 00:42:20,460 --> 00:42:27,240 that violate what we call peremptory norms of international law, derivation of which from which is not permitted, use Coggins norms. 401 00:42:27,480 --> 00:42:31,780 There are some norms in international law that are so key that they do not admit of exception. 402 00:42:31,800 --> 00:42:36,030 Sometimes norms do exception. These are not them, and they are few in number. 403 00:42:36,570 --> 00:42:44,340 The first is the inadmissibility of the acquisition of territory through the threat or use of force, a foundation of the UN charter system. 404 00:42:45,020 --> 00:42:48,149 Corollary article two, subsection four of the UN charter. 405 00:42:48,150 --> 00:42:51,660 The second is the obligation to respect the people's right to self-determination. 406 00:42:52,650 --> 00:42:59,460 Also use common sense. We see these animating the West's position of Russia in Ukraine just now as we speak. 407 00:43:00,180 --> 00:43:08,400 And the third, the prohibition on the imposition by a foreign occupying power of a regime of racial discrimination as well as apartheid, 408 00:43:08,940 --> 00:43:13,560 which increasing numbers argue exists in occupied Palestine. 409 00:43:14,780 --> 00:43:17,840 An interesting thing here is that the UN record is replete. 410 00:43:18,170 --> 00:43:26,720 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. 411 00:43:27,200 --> 00:43:30,820 The third lesson. But it's building the first two. 412 00:43:30,830 --> 00:43:35,480 Absolutely. So we asked the question. I asked the question in chapter four of the book. 413 00:43:36,980 --> 00:43:42,140 And this research goes back some years. How is it that the occupy occupation of the territories can be lawful? 414 00:43:42,630 --> 00:43:48,080 It is the occupation existentially reliant on the violation of these three practically norms. 415 00:43:48,110 --> 00:43:54,440 You cannot unscramble the egg. The occupation relies on the violation of the self-determination right of the Palestinian people, 416 00:43:54,890 --> 00:43:58,820 and it relies on the acquisition of territory through threat or use of force. 417 00:43:59,720 --> 00:44:06,980 And so, in December 2022, the General Assembly passed a resolution on the 30th of December. 418 00:44:07,970 --> 00:44:10,700 In the last working hour of the day of the year. 419 00:44:10,910 --> 00:44:17,720 In fact, in large part because the US had pushed the vote off, hoping that the General Assembly members would go away on holiday. 420 00:44:17,750 --> 00:44:23,750 I'm serious. The General Assembly passed a resolution putting a series of questions before the International Court of Justice, 421 00:44:23,750 --> 00:44:30,440 the nub of which is what are the legal consequences of Israel's continued occupation of the occupied Palestinian territory? 422 00:44:31,280 --> 00:44:36,000 We made argument before the court in February. Uh, all of our positions. 423 00:44:36,020 --> 00:44:39,660 That is the State of Palestine. Positions are in the website of the International Court of Justice. 424 00:44:39,680 --> 00:44:43,970 I, of course, now speak as an independent. I'm not representative of Palestine by any means here. 425 00:44:44,990 --> 00:44:48,980 Um, but you can consult those, uh, at the website of the ICJ. 426 00:44:49,340 --> 00:44:57,080 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. 427 00:44:57,890 --> 00:45:03,590 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, 428 00:45:03,680 --> 00:45:10,009 the key consequence there is under international law, the law of state responsibility, when to state. 429 00:45:10,010 --> 00:45:13,610 And this will be intuitive to you when a state is engaged in an internationally wrongful act, 430 00:45:13,940 --> 00:45:20,360 the consequences are simple and three fold, and you know them all. First, stop the act, the duty of cessation. 431 00:45:20,990 --> 00:45:25,010 Second, give appropriate assurances of non repetition. 432 00:45:25,010 --> 00:45:29,510 We won't do it again. Third, make appropriate reparations or compensation. 433 00:45:29,960 --> 00:45:33,410 Right. Refugees return. We pay money that sort of thing. 434 00:45:33,710 --> 00:45:41,810 It's intuitive. Now this matters because if the occupation is existentially unlawful, then its end cannot be made subject to negotiation. 435 00:45:42,410 --> 00:45:50,270 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, 436 00:45:51,050 --> 00:45:56,930 it goes well beyond anything that even the South Africans have brought in respect of genocide convention. 437 00:45:56,930 --> 00:46:01,880 That's tactical. This is strategic. The consequences of genocide finding are simple. 438 00:46:02,030 --> 00:46:07,700 Stop the genocide. But that will not end the occupation. Bear that in mind. 439 00:46:09,630 --> 00:46:13,230 Have left the end with one thing, and then I'll conclude. I'm terribly sorry. 440 00:46:13,230 --> 00:46:17,280 I know I've gone on another example of this legal sub alternative, 441 00:46:17,280 --> 00:46:24,060 which I speak is the state of Palestine's attempt to gain membership in the United Nations organisation. 442 00:46:26,400 --> 00:46:31,709 To gain membership in the United Nations organisation as the guardian of international peace and security. 443 00:46:31,710 --> 00:46:40,860 The principle of universality of membership of the United Nations is the logical foundation upon which the UN's success rests. 444 00:46:42,070 --> 00:46:44,610 This is because the UN would be nothing but for its members, 445 00:46:45,540 --> 00:46:51,660 and it is for this reason that the international law governing UN and mission has long been marked by a liberal, 446 00:46:52,290 --> 00:46:59,650 flexible and permissive interpretation of the test for membership contained in article four, subsection one of the UN charter. 447 00:46:59,670 --> 00:47:07,080 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. 448 00:47:07,950 --> 00:47:14,909 In 2011 demonstrates that it was subjected to an unduly narrow strip and resulted in the flawed 449 00:47:14,910 --> 00:47:21,300 application of the rest of the article 41 criteria and an examination of the contemporaneous debates, 450 00:47:21,990 --> 00:47:30,240 largely around the Security Council at the time. October 2011 demonstrates that the main driver of this approach was not in any surprise scheme. 451 00:47:30,570 --> 00:47:35,129 The United States would use its legal authority, and that's the most important use, 452 00:47:35,130 --> 00:47:44,310 its legal authority vested in it as a permanent member of the United Nations Security Council to block membership in Palestine for political reasons, 453 00:47:44,850 --> 00:47:49,080 thinly veiled as sound legal ones and with no small measure. 454 00:47:49,110 --> 00:47:56,160 Finally, this is highlighted through the juxtaposition which I try and do in this chapter book of the broad and forgiving, 455 00:47:56,370 --> 00:47:59,610 forgiving interpretation of the article 41 criteria. 456 00:48:00,600 --> 00:48:11,430 Extended by the United Nations to the, uh, application of another state, Israel, in 1949, with that of its position on Palestine in 2001. 457 00:48:11,640 --> 00:48:18,090 So I looked at the record on both, and it is a diametrically opposite position in article 41 is simple. 458 00:48:18,510 --> 00:48:22,970 There are five criteria. Membership in the UN is open to all peace loving. 459 00:48:22,980 --> 00:48:27,270 That's the first criteria. Second state is the second criteria. 460 00:48:27,300 --> 00:48:32,550 You must be a state. Third, who accept their obligations contained in the charter. 461 00:48:32,760 --> 00:48:38,580 Fourth, and in the judgement of the organisation are fourth able and fifth willing to carry them out. 462 00:48:39,180 --> 00:48:45,180 Now, state practice on admissions of entities for membership in United Nations over decades, 463 00:48:45,480 --> 00:48:50,790 seven decades, to be precise, is so demonstrative of the liberal application of these principles. 464 00:48:50,790 --> 00:48:54,240 Indeed, in some cases these principles have not even been applied. 465 00:48:55,110 --> 00:49:02,040 Some states who are engaged in hot conventional war Bosnia-Herzegovina, Congo in 1960 and many, many others. 466 00:49:02,880 --> 00:49:11,730 So much so that with Congo, when it applied for membership civil war, the General Assembly and the Security Council admitted them to membership. 467 00:49:11,880 --> 00:49:15,660 The GA did not know who among the warring parties to grant the seat to. 468 00:49:16,590 --> 00:49:20,550 That's how liberal the application of this test has been, right? 469 00:49:20,970 --> 00:49:26,910 And when you compare the U.S. record on Israel's admission in 49 with Palestine, it is diametrically opposed. 470 00:49:27,720 --> 00:49:30,330 Now, the interesting thing is there's good law on this. 471 00:49:30,830 --> 00:49:37,260 The the International Court of Justice gave an advisory opinion in 1948 concerning admissions criteria of membership. 472 00:49:37,410 --> 00:49:43,680 And the question put to it then was whether or not these criteria were exhaustive or if there were other criteria, 473 00:49:43,680 --> 00:49:53,100 political criteria that could be taken into account by the Security Council in rendering a recommendation to the General Assembly for membership. 474 00:49:54,780 --> 00:49:57,840 The court says very clearly these are exhaustive conditions. 475 00:49:58,530 --> 00:50:04,259 No extraneous condition, including political conditions, can apply unless in good faith. 476 00:50:04,260 --> 00:50:09,089 Those extraneous conditions can be linked to these, uh, five conditions in force. 477 00:50:09,090 --> 00:50:10,710 Sub one in good faith. 478 00:50:11,750 --> 00:50:20,870 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. 479 00:50:21,230 --> 00:50:24,890 And the only way it can emerge as a state is through negotiations. And guess with whom. 480 00:50:26,810 --> 00:50:30,350 With its jailer and with its bad faith. 481 00:50:30,560 --> 00:50:39,049 Occupying power has demonstrated the bad faith element by the UN record over five decades worth of the United Nations record, 482 00:50:39,050 --> 00:50:42,350 demonstrating the violation of the people's right to self-determination. 483 00:50:43,160 --> 00:50:46,370 The inadmissibility, the acquisition of territory through threat or use of force, 484 00:50:46,550 --> 00:50:50,980 and who knows whether or not the court will affirm apartheid or racial discrimination. 485 00:50:50,990 --> 00:50:56,120 They may do that in July. After our submissions, the court the U.N. record is very clear. 486 00:50:56,130 --> 00:50:59,540 This is a bad faith occupying power. Right. 487 00:51:00,050 --> 00:51:04,340 However, do you negotiate the end of your bondage with your jailer is operating in bad faith. 488 00:51:04,760 --> 00:51:09,709 And so this chapter tries to make the point that the failure to gain full membership in 489 00:51:09,710 --> 00:51:15,650 the organisation of the State of Palestine is yet again another indicator of its legal, 490 00:51:15,650 --> 00:51:20,000 some alternative, its disenfranchisement. The only way on the international legal plain, 491 00:51:20,510 --> 00:51:28,580 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, 492 00:51:29,000 --> 00:51:32,990 plenary body of the General Assembly and so on. The U.N. and it is being blocked. 493 00:51:33,650 --> 00:51:40,220 And this this is the key to the exercise bad faith of a legal authority vested in a permanent member of the Council. 494 00:51:40,700 --> 00:51:49,849 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. 495 00:51:49,850 --> 00:51:53,200 And if you don't, I certainly hope that I might support you for this. 496 00:51:53,630 --> 00:51:56,870 I'm happy to talk about anything. International law, Palestine. 497 00:51:56,870 --> 00:52:00,000 The case is currently pending before the ICJ and so on. 498 00:52:00,020 --> 00:52:10,420 Thank you very much. Want to put your questions. 499 00:52:12,950 --> 00:52:18,130 Have a seat. Yeah I will. Yeah. Good. I don't wish to lower the tone of the evening any, but. 500 00:52:18,460 --> 00:52:20,030 Well, I would say you've sold some books. 501 00:52:20,180 --> 00:52:28,840 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. 502 00:52:28,850 --> 00:52:29,900 And you answer so many. 503 00:52:30,440 --> 00:52:40,400 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, 504 00:52:40,760 --> 00:52:48,440 the rule of law. It is the principle to which government is legitimate, to something quite ominous, 505 00:52:48,440 --> 00:52:52,910 which is the rule Bible, in which law becomes the weapon of insubordination. 506 00:52:53,070 --> 00:52:56,180 Great, great of subordination. Well put. Actually. 507 00:52:56,180 --> 00:52:59,840 Yeah, that was eloquently put. Thank you. Except they got it wrong. But aside from that. 508 00:53:00,260 --> 00:53:07,820 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, 509 00:53:08,060 --> 00:53:12,110 is that they are of the status of being international legal solutions, 510 00:53:12,920 --> 00:53:22,070 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. 511 00:53:22,220 --> 00:53:34,040 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, 512 00:53:34,040 --> 00:53:39,139 and just the way in which these institutions can be used to ensure that the resolution of Palestinian 513 00:53:39,140 --> 00:53:42,970 legitimate aspirations for self-determination are always pushed over the next two rights. 514 00:53:44,160 --> 00:53:54,290 Dreadful. Now I buy into the argument, as enshrined in the UN charter, that it is illegal to acquire territory through war. 515 00:53:54,540 --> 00:53:58,530 The military means. But the question. I'm so glad to have you here to answer. 516 00:53:59,710 --> 00:54:09,040 Is. Didn't Israel set the precedent for that in going beyond what it was granted through 181 and what it secured, 517 00:54:09,490 --> 00:54:20,680 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. 518 00:54:21,070 --> 00:54:25,420 That's right. And it was recognised by the international community as in some way not violating. 519 00:54:26,420 --> 00:54:32,960 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? 520 00:54:33,320 --> 00:54:39,530 Great question. This is the question. You're the only one who put it to me, by the way, in in my discussions. 521 00:54:40,070 --> 00:54:44,320 Um, but I have long thought about this and I call it the forgotten 22%. 522 00:54:44,990 --> 00:54:54,860 Meaning those portions of what was allocated to the general by the General Assembly of Mandate Palestine that ended up at war's end, 523 00:54:54,860 --> 00:55:01,190 rather to the Arab state that ended up at war's end in the hands of the putative Jewish state. 524 00:55:01,940 --> 00:55:09,559 Uh, places like Jaffa or Nazareth and so on. City centres of Palestinian life, um, at that, were depopulated. 525 00:55:09,560 --> 00:55:17,310 Not so much Nazareth, but certain Jaffa. Um, what of that territory was that taken through force of arms during the 1944? 526 00:55:17,330 --> 00:55:24,320 And is that lawful? And did Israel set the precedent? The jury's still out on that. 527 00:55:24,440 --> 00:55:29,340 Legally speaking, I will offer a technical legal response, and I can explain it to you. 528 00:55:29,360 --> 00:55:32,820 There is. And this affirms the position that I take about rule of law. 529 00:55:32,840 --> 00:55:39,230 Rule by law. There is a a construct in international law known as state secession. 530 00:55:39,650 --> 00:55:41,510 How many of you are familiar with it by show of hands? 531 00:55:43,560 --> 00:55:53,430 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? 532 00:55:53,940 --> 00:55:54,370 Right? 533 00:55:55,140 --> 00:56:08,010 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. 534 00:56:09,400 --> 00:56:13,330 And uses force to assert their statehood. 535 00:56:14,790 --> 00:56:21,389 Despite what the centralised authorities say, despite the fact that under the local law, municipal law, 536 00:56:21,390 --> 00:56:27,210 as we say in international legal terms, domestic law of that state, it would be a violation of the Constitution to do so. 537 00:56:27,840 --> 00:56:32,460 So in this if this circumstance of use of force. 538 00:56:33,820 --> 00:56:39,400 Is what we call effective effectivity, of course, if it is accompanied by effectiveness. 539 00:56:39,520 --> 00:56:43,120 Effective control over the territory a um. 540 00:56:45,080 --> 00:56:48,319 Monopoly on the use of force and followed importantly. 541 00:56:48,320 --> 00:56:56,240 And you touched on this with recognition by other states of this new set of facts, of this new state. 542 00:56:57,140 --> 00:57:01,250 Then you have the crystallisation of a new state. It's called state secession. 543 00:57:02,030 --> 00:57:10,880 A state succeeds an entity secede from a prior territorial sovereign into a new state, and it's recognised as such. 544 00:57:11,090 --> 00:57:19,490 So it's an odd thing because we have a saying in international law that 1st May not clean rights out of illegal acts, 545 00:57:20,090 --> 00:57:24,830 but this, this legal construct of secession runs counter to that. 546 00:57:25,520 --> 00:57:29,480 And if recognised by enough, you can create a legal fact. 547 00:57:29,690 --> 00:57:36,110 In this case, you have Israel. I'll take this. I learned this from Professor John Dugger, South African leading jurist, 548 00:57:36,980 --> 00:57:42,230 member of the International Court of Justice, represents South Africa before the ICJ in the case against Israel. 549 00:57:43,250 --> 00:57:47,690 The author of the foreword of my book. Professor do Art. 550 00:57:47,690 --> 00:57:51,320 And I had had this debate. He said, no, legally speaking, this is secession. 551 00:57:52,070 --> 00:57:56,660 And it was followed by recognition and the crystallisation of the State of Israel with 552 00:57:56,660 --> 00:58:00,710 all of the legal rights that that comes with states enjoy political independence, 553 00:58:00,890 --> 00:58:06,650 territorial integrity, they may not be invaded, subject to general exceptions. 554 00:58:06,650 --> 00:58:12,830 And on the general prohibition on the use of force. We can talk about that. But this is the difference between the international communities, 555 00:58:12,830 --> 00:58:20,060 and it's largely in recognition of the treatment of the forgotten 22% and those territories taken by Israel. 556 00:58:21,280 --> 00:58:26,200 In 1967, the overwhelming response by the international community in 67 was solved. 557 00:58:26,830 --> 00:58:31,870 You've had enough of this pie. This West Bank, East Jerusalem, Gaza Strip. 558 00:58:32,050 --> 00:58:35,770 The remaining 22% of Mandate Palestine is occupied territory. 559 00:58:35,800 --> 00:58:38,500 We don't recognise your sovereignty in this territory. 560 00:58:38,740 --> 00:58:46,300 The Israelis since 67, have rejected that position, and they stand alone in the international community as the only ones who reject that position. 561 00:58:46,510 --> 00:58:53,620 The US has supported them in East Jerusalem, Honduras, Guatemala as well in East Jerusalem. 562 00:58:53,620 --> 00:58:59,110 But beyond that, no. They stand alone and they don't have any law to back it up. 563 00:58:59,230 --> 00:59:05,620 But this is the violence, this secession that is perpetrated by international law on an indigenous people who were there. 564 00:59:06,940 --> 00:59:10,000 And through no fault of their own, their land was covered by European people. 565 00:59:10,930 --> 00:59:19,130 But it's not just an international recognition here. It is the unwillingness of the indigenous people to accede to acquire access to it. 566 00:59:19,150 --> 00:59:25,000 So they need. It's a way in which people that stayed on the land in the West Bank, in East Jerusalem, 567 00:59:25,000 --> 00:59:30,910 in the Gaza Strip, which would then make the post 67 territories a different kind. 568 00:59:30,940 --> 00:59:35,230 It's not just international recognition, it's Palestinian lack of acquiescence as well. 569 00:59:35,350 --> 00:59:39,160 Well, lack of acquiescence until 1988. And you know what I'm about to say. 570 00:59:39,520 --> 00:59:48,010 Right. So there are principles, general principles of international law, one of which I've discussed 1st May not give, 571 00:59:48,130 --> 00:59:54,040 one does not possess, but actually they derive from English law and other civil systems. 572 00:59:55,560 --> 00:59:59,130 One of them. One of them is estoppel. One of them is acquiescence. 573 01:00:00,810 --> 01:00:08,490 In under international law, if a party who has rights does not acquiesce in the violation of those rights, but consistently asserts their right. 574 01:00:08,910 --> 01:00:13,620 It's very clear that the question is open and left open deliberately. 575 01:00:14,850 --> 01:00:21,630 But if there is an acquiescence in a violation of a right that is given freely by an authorised authority to do so, 576 01:00:22,170 --> 01:00:24,540 then that can crystallise things and change the law. 577 01:00:24,900 --> 01:00:36,090 And so when the PLO, the Palestine Liberation Organisation, recognised Israel in 1988, in 78% of the historical patrimony of the Palestinian people, 578 01:00:37,350 --> 01:00:46,260 they did this in Algiers in 1988 as the quid pro quo for engaging the United States and Israel in a bilateral peace process. 579 01:00:46,680 --> 01:00:55,680 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. 580 01:00:56,190 --> 01:01:01,320 It can be said under law that they acquiesced in Israeli sovereignty in those territories. 581 01:01:02,370 --> 01:01:05,810 Mine. And this is the creative lawyer in me thinking. 582 01:01:07,310 --> 01:01:12,590 Israel has yet to acquiesce in this historical compromise to agree to it. 583 01:01:12,920 --> 01:01:15,410 They claimed for a while to want a two state solution. 584 01:01:15,830 --> 01:01:21,740 But and I would recommend Palestine Statement to the International Court of Justice for the evidence to back what I'm about to say. 585 01:01:21,980 --> 01:01:28,340 If you look at statements made by countless Israeli leaders, military and political, and through the decades, 586 01:01:28,670 --> 01:01:34,220 they're very clear, have no intention of establishing a Palestinian state in the West Bank, Gaza Strip and East Jerusalem. 587 01:01:34,430 --> 01:01:38,420 They claim, both politically through statements and legislation. 588 01:01:39,050 --> 01:01:45,290 The Basic Laws of Israel, Jewish State Basic Law 2018, in particular, and also through actions taken on the ground. 589 01:01:45,410 --> 01:01:50,870 They claim exclusive sovereignty in the occupied Palestinian territory for the Jewish people, 590 01:01:50,870 --> 01:01:54,440 quote unquote, in perpetuity and to the exclusion of all others. 591 01:01:55,250 --> 01:02:01,580 So to the extent that the Palestinians are deemed to have acquiesced in 1988 with this historical compromise, 592 01:02:01,880 --> 01:02:03,800 one might make the argument, flipping it, 593 01:02:04,550 --> 01:02:16,040 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. 594 01:02:17,690 --> 01:02:29,600 Have forced. The Palestinian had obtained concessions from Palestine under false pretences and to the detriment of the Palestinians. 595 01:02:31,010 --> 01:02:37,520 This will be the next 50 years of international diplomacy. Thank you. 596 01:02:37,570 --> 01:02:38,140 We'll see you soon.