On the 10th of June, over 100 international lawyers issued an Open Letter to the Israeli government, stating that Israel’s policy proposal is “clearly unlawful, and will most likely have adverse consequences, including … consequences of an internationally wrongful act … [and] a high likelihood of violent escalation” as well as leading to “under certain circumstances … individual international criminal liability”.
A Veiled Threat
The Open Letter is a remarkable document addressed to the political leaders of a democratic liberal State. It threatens, albeit indirectly, criminal prosecutions of the addressed officials, as well as violence and the delegitimization of the state of Israel, if Israeli leaders do not comply with the authors’ assertions of the law.
The threatening style of the Open Letter is compounded by the fact that it evidences a number of misrepresentations of legal and historical facts.
The demanding style together with assertions that international law is unambiguous when in fact other opinions are equally valid, have the effect of dampening free inquiry, democratic deliberation, and honest academic debate about an extremely complex issue.
A Contested View on Self-Determination, Statehood and Sovereignty
The open letter presents a variety of legal claims said to be incontrovertible—even bedrock rules of international law—though in reality, they are highly controversial. For instance, the open letter presents one view of the concept of self-determination and its relationship to statehood and territorial sovereignty, but the open letter fails to acknowledge that the subjects remain highly contested. Certainly, there is no universal agreement that a claim of self-determination entails a right to future statehood and territorial sovereignty, let alone that Palestinian self-determination is legally equivalent to statehood and attendant territorial sovereignty.
Likewise, the open letter presents a particular dogma about “annexation” of territory and military conquest, while the legal world embraces many other views. A fairly large degree of consensus has developed for the claim that the unlawful use of force (or perhaps any use of force) cannot serve as the basis for a claim of territorial sovereignty based on conquest, but there is no agreement or even precedent supporting the letter’s assertion that the use of force nullifies all alternative legal grounds for claiming sovereignty.
Neglecting the ‘Spectrum of Views’ in an Effort to Exert Political Pressure
Indeed, there are few claims of general international law made in the open letter that are not contested, whether they concern the interplay between territorial sovereignty and the law relating to self-determination and application of the rules of belligerent occupation, or the legal status of pronouncements from the UN General Assembly and the Security Council.
The letter claims that a unilateral act would be illegal, because it would be an infringement of both (i) the prohibition on annexation, as well as (ii) “the right [of the Palestinian people] to self-determination”.
Regarding the first, a so-called act of “annexation” is only illegal if it breaches the prohibition on acquiring territory by force. This prohibition only applies to territory that does not belong to the acquiring state. In other words, it is not illegal for a state to take control in a defensive war of territory that already belonged to it, and then assert sovereignty over that territory. A unilateral act by Israel could only be illegal if it can be demonstrated that these territories did not belong to Israel. The authors completely ignore the possibility that – prior to the outbreak of the Six Day War in June 1967 – these territories properly belonged to the sovereign territory of the State of Israel, or that sovereignty was in abeyance. The argument is that when Israel was established in 1948, its territory was the territory of the preceding mandate for Palestine. In the subsequent 19 years (1948-1967) it was illegally occupied by Jordan. So when Israel acquired control in June 1967, it was taking control of territory which already belonged to it. That is a perfectly legitimate argument which may not be widely shared, and may be politically unpalatable for some, but deserves, at least, to be acknowledged.
Regarding the second, the authors assert as incontrovertible that the Palestinians have a right to self-determination in all of these territories (subject to possible negotiation with Israel about security and borders). But this contention is far from incontrovertible. Indeed, it is a matter of dispute in the current proceedings before the International Criminal Court in relation to “the Situation in Palestine”, in which several international jurists have argued that the Palestinians do not have a legal right to sovereignty over all of these territories, and that the status of these territories is controversial – and even possibly indeterminate.
In other words, it is simply not true to assert, as the authors do, that international law uncontrovertibly determines that these territories do not belong to Israel, or that they are (in their totality) the subject of Palestinian self-determination rights.
The views expressed in the open letter are legitimate, and in some cases popular; but, so too, are the contrary views dismissed and ignored by the open letter. With that, it seems that the letter is intended to put political pressure on a democratically chosen government rather than to serve as a non-partisan legal advice.
The authors use their academic status to present as if they were legal facts matters that are in fact highly complex, contentious and debated within the academic community. In doing so, they seek to silence those who disagree with them.
That is, at the least, a questionable use of academic credentials.