BRITISH (AND INTERNATIONAL) LEGAL FOUNDATIONS FOR THE ISRAELI WALL: INTERNATIONAL LAW AND MULTI-COLONIALISM

in The Palestine Yearbook of International Law Online
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BRITISH (AND INTERNATIONAL) LEGAL FOUNDATIONS FOR THE ISRAELI WALL: INTERNATIONAL LAW AND MULTI-COLONIALISM

in The Palestine Yearbook of International Law Online

References

I See Siraj Sait, lnternational Refugee Law: Excluding the Palestinians, in Law after Ground Zero (John Strawson ed., 2002). 2 The legal issues surrounding the wall were referred by the United Nations General Assembly to the International Court of Justice for an advisory opinion, see: "Illegal Israeli Activities in occu- pied East Jerusalem and the rest of the occupied territories, U.N.G.A. Res. A/RES/ES/1014, 8 December 2003. For the subsequent opinion of the Court, see: Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory. 9 July 2004 at: http://www.icj-cij.org/icjwww/idocket/imwp/imw- pframe.htm 3 In this approach I am drawing on Jacques Derrida's powerful work, see generally: Jacques Derrida, Writing and Difference (Alan Bass trans., 1978). In Writing and Difference, Derrida invites us to interrupt the flow of text. 4 For a historical setting for this segregation see: Deborah S. Bernstein, Constructing Boundaries: Jewish and Arab Workers in Mandatory Palestine (2000). 5 I am grateful to Ernest Mandel's concept of late capitalism which he develops in Ernest Mandel, Late Capitalism (1975), for this notion. In this book he sets out to explain the persistence of cap-

italism in the contemporary period preferring the concept to neo-capitalism on the grounds that capitalism retains its original features but takes them to a new phase. Late Colonialism seems to me to be equally useful in theorizing Palestine in that Israeli actions in the contemporary period have done nothing to lessen the characteristics of colonialism. 6 I am indebted here to the theory developed by the South African Communist Party that saw apartheid as colonialism of special type. In that case the colonists were organized within the coun- try rather than owing allegiance to a metropolitan center. See Comrade Mzala, Revolutionary Theory on the National Question in South Africa, in The National Question in South Africa 30-55 (Maria van Diepen ed., 1988). 7 See Dan Horowitz & Moshe Lissak, Origins of the Israeli Polity: Palestine under the Mandate 8 (Charles Hottman trans., 1979). 8 See John Strawson, Orientali.sm and Legal Education in Middle East: Reading Frederic Goadby's Introduction to the Study of Law, 21(4) Legal Studies 663-678 (2001). 9 See http://www.mfa.gov.il (Last visited, 12 January 2004). 10 see Robert H. Eisenman, Islamic Law in Palestine and Israel: a History of the Survival of Tanzimat and shari'a in the British Mandate and the Jewish State (1978). is See Frederic Goadby & Moses Doukhan, The Land Law of Palestine (1935).

12 Examples of this work include: Henry Cattan, Palestine and International Law: Legal Aspects of the Arab-Israel Conflict (1973); W. Thomas Mallison & Sally V. Mallison, The Palestine Problem in in International Law and World Order (1986), Musa E. Mazzawi, Palestine and the Law: Guidelines for the Resolution of the Arab-Israel Conflict ( 1997), Francis A. Boyle, Palestine, Palestinians and International Law (2003). �3 See U.N.S.C. Res. 1546 (2004). z' See Emma Playfair (ed.) International Law and the Administration of Occupied Territories, 1967-1987 (1992).

�5 See generally Peter Fitzpatrick. Modernism and the Grounds of the Law (2001). four a critical review of international law see Martti Koskenniemi, From Apology to Utopia: the Structure of International Legal Argument (1989). On the history of International Law .see Stephen C. Neff, A Short History of International Law, in International Law (Malcolm D. Evens ed., 2003), 31-58: Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2001) and Anthony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law, 40( 1 ) Harvard J. Int' L. 1-80 (1999).

thus we can speak truly of new nations, such as Ghana, Nigeria, South Africa, Malaysia, Jamaica for example all neat configurations achieved by British colonialism. The French, Dutch, Belgians, Portuguese, Spanish and Germans have also played their part: Cote d'lvoire, Indonesia, Congo, Western Sahara, Namibia to name a few. 19 See U.N.G.A. Res. 1514 and 1541 (1960); the Common article 1 of the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic. Social and Cultural Rights (1966); U.N.G.A. Res. 2625 (1970); Namibia Case, 1971, Western Sahara Case, 1975. 20 For an extremely sensitive contemporary account see Frederick L. Schulman, International Politics: The Destiny of the Western State System (1948). 21 Ibid., at 218-219. zz See Protocol of Proceedings of Crimea Conference, 4-11 February 1945; Laid., at 228-233. z3 See generally Rosalyn Higgins, Problems and Process: International Law and How We Use it (1994).

2° See Sydney Bailey, Procedure in the Security Council (1997).

uSee George H. Aldrich & Christine Chinkin (ed.), Symposium: The Hague Peace Conferences, 94(1) A.J.I.L. 1-98 (2000).

26 On the invasion of Kuwait, see John Norton Moore, Crisis in the Gulf: Enforcing the Rule of Law (1991). ). 27 on the legal debate on the implications for the use of force of the Kuwait conflict, see Lori Fisler Damrosch & David J. Scheffer (eds.) Law and Force in the New Intemational Order (1991). z8 For a discussion of this issue, see Jules Lobel & Michael Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime, 93(1) A.J.I.L. 124-254 (1999).

Z9 For a discussion on the legal aspects of the Iraq war, see Lori Fisler Damrosch & Bernard H. Oxman (eds.), Agora: Future Implications of the Iraq Conflict, 97(3) A.J.I.L. 553-642 (2003), con- tinued in 97(4) A.J.I.L. 803-872 (2003). Also see Dominic McGoldrick, From '9-11' to the Iraq War 2003 (2004). 30 For discussion of this period, see David Fromkim, A Peace To End All Peace: Creating the Modern Middle East 1914-1922 (1989).

On the history of the Declaration, .see Leonard Stein, The Balfour Declaration (1983). 32 Not that this was a smooth agreement but rather of holding operation between to the two Great Powers. In fact the British did attempt bring Syria into their sphere of influence in 1918-1919, see David Fromkin, A Peace to End all Peace 332-347 (1989); Matthew Hughes, Allenby and British Strategy in the Middle East 1917-1919 (1999). On the way in which the British governed, see Naomi Shepherd, Ploughing Sand: British Rule in Palestine 1917-1948 (1999). For a discussion of Mandate Palestine, see Tom Segev, One Palestine Complete: Jews and Arabs under the British Mandate (Haim Watzman trans., 2000). 35 see Assaf Likhovski, In Our Image: Colonial Discourse and the Anglicanization of Law in 36 mandatory Palestine, 29(3) Israel Law Review 292-359 (1995). 36 /bid., see the discussion of the book: Mustard and Cress, Palestine Parodies: Being the Holy Land in Verse and Worse (1938).

37 W.F. Boustany, Palestine Mandate: Invalid and Impracticable (1936).

38 Ibid., at 32-33. 39 Ibid., at 18.

°° See Isaiah Friedman (ed.), Riots in Jerusalem and the San Remo Conference (1987). 41 Norman Bentwich, The Mandates System v (1930). 42 Ibid., at v-vi. °3 Britain and France are the main beneficiaries. The Union of South Africa, created on the basis of a racist Constitution in 1910 (according to the terms of the British Union of South Africa Act, 1909), was awarded the Mandate for the former German colony of South West Africa, now Namibia. This decision indicates quite clearly how the "welfare" of the peoples of these territories was viewed. °° Bentwich, supra note 42, at 17.

'SIbis., at 12-13. '6 Ibid., at 21. '� Ibis., at 23.

'$ See Robert Holme, An Irreversible Conquest? Colonial and Posrcolonial Land Law in Israell Palestine, 12(3) Soc. & Leg. Stud. 291-310 (2003). '9 Ibid, at 27.Ibid., at 24. 51 Another legal account of the Palestine mandate based on a LLD London University thesis written during the same period is: J. Stoyanovsky, The Mandate for Palestine: A Contribution to the Theory and Practice of International Mandates (1928).

52 on self-determination in international law, see: Morton H. Halperin & David Scheffer, Self-Determination and the New World Order (1994), Antonio Cassese, Self-Determination of Peoples: A Legal Re- appraisal (1995), Joshua Castellino, International Law and Self-Determination (2000) and gener- ally: Robert McCorqourdale (ed.). Self-Determination and International Law (2000). 53 See Rosalyn Higgins, The Development of International Law through the Political Organs of the United Nations (1963). 54 See e.g. Julius Stone. Israel and Palestine: Assault on the Law of Nations (1981). On the 1967 War. see Michael B. Oren, Six Days of War: June 1967 and the Making of the Modern Middle East (2002). 55 see Allan Gerson, Israel, The West Bank and International Law (1978).

sb See I.C.J., Case concerning military and Paramilitary Activities in and against Nicaragua (Nica- 57 ragua v. United States of America) (merits. 1986), 76 LL.R., para. 176. This doctrine is contained in Daniel Webster's formulation as a result of the Caroline Incident, 1837 and widely accepted since. See Oscar Schachter, Self-Defence and the Rule of Law, 83(2) A.J.LL. 259 (1989). Antonio Cassese has similar interpretation of the meaning of article 51 of the UN Charter, see Antonio Cassese, International Law 305 (2001). 58 see I.C.J., Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) (1992).

s9 Quoted in Paul J.I.M. de Waart, Dynamics of Self-Determination in Palestine 227 (1994). 60 Ibid., at 227-228.

See Eugene L. Rogan & Avi Shlaim, (eds.) The War for Palestine: rewriting the History of 1948 (2001). ). 62 See Motti Golani, Jerusalem's Hope Lies in Partition: Israeli Policy on the Jerusalem Question 1948-1967, 31(4) Int'l J. Middle East Stud. 577--fit04 (1999). 63 It is interesting to note the very moderate terms of the May 1949 "Statement of the Israeli Government on the Status of Jerusalem," (reproduced in de Waart, supra note 60, at 231-232. The statement provides further evidence that the Israeli government supported the UN partition resolu- tion as it begins "The government of Israel co-operated to the fullest extent with the stature drawn up in November 1947." While suggesting changes to the original it very interestingly the accepts the idea of the internationalization of all the Holy places see paragraph 2) and even further other holy place in Israel outside Jerusalem (see paragraph 3).

b° de Waart, supra note 60.

bs See John Strawson, Mandate Ways: Self-Determination in the Palestine and the Existing Non- Jewish Communities, in Palestine and International Law: Essays in Economics and Politics 251-270 (Sanford R. Silverburg ed., 2002). The Committee was established by the General Assembly, however the adoption by the U.N.S.C. Res. 1397 (2002) which states that a Palestinian State should exist along side Israel indicates how firm this international consensus has become. On The Oslo Agreements, .see Geoffrey R. Watson, The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements (2000).

bs For an interesting discussion of this issue, see Walid Khalidi, Revisiting the UN Partition Resolution, 27(1) Journal of Palestine Studies 5-21 (1997) (Issue 105). 69 Supra note 3.

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