How the UN General Assembly Could Hold Israel Accountable: an Interview With Francis Boyle

DENNIS BERNSTEIN  BY 

Counter Punch

Francis Boyle has been Professor of Law at University of Illinois College of Law since 1978.

Dennis Bernstein: Joining me is distinguished professor and international law scholar Francis Boyle.  He’ll discuss how the UN General Assembly could institute what’s called Uniting for Peace Laws that empower it under the Geneva Convention to stop Israel’s assault.  Boyle was the prosecutor for an international tribunal organized in Malaysia which found George W. Bush and Tony Blair guilty of crimes against humanity.  

International condemnation and calls for an urgent investigation are mounting after an Israeli air attack killed seven aid workers, six foreign nationals and a Palestinian in Gaza.  US-based aid group World Central Kitchen says the foreign aid workers killed in the targeted Israeli strike were nationals from Australia, Poland and the UK, as well as, a US/Canadian citizen. Israel’s Prime Minister, you know him, admits the Israeli Army is responsible for the strike.

Professor Boyle, it’s good to have you back with us.  In one moment, I want to jump into this power that the UN General Assembly might have in terms of trying to restrain Israel.  But I want to just ask you to respond to this latest targeted kill.   The folks at the organization say that they shared extensive information with the Israelis .  The Israelis knew exactly where they were, when they were, when they were coming and when they were going.

Francis Boyle:   Well, thank you  Dennis.  It’s clear it was reported today both in the Israeli press and now Al Jazeera just had a big documentary.  This was deliberate targeting by the Israeli army.  There were three SUVs traveling in a convoy, and all three were subsequently targeted.  So, it was done on purpose.  It wasn’t an accident.  It’s clear it’s had its intended effect.  Not only have World Central Kitchen stopped providing food, but the other humanitarian agencies have also stopped providing food.  There is now famine in Gaza, and this fits in what we’ve discussed before.

Israel’s act of genocide, Article 2, Paragraph C, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.  So, they are using starvation to accomplish genocide and to do that, they had to make the attack and then scare away all the other humanitarian agencies from feeding the starving people of Gaza.

Dennis Bernstein: Can you give us a  general update where is this case of genocide brought courageously by the South Africans.  I guess, you don’t feel it’s been handled that well or righteously, but give us an update.  Where are we in that case?   Is it moving forward?  Is anybody able to sort of—to move it forward in the context of Israel’s renegade nature?

Francis Boyle: Right, Dennis.  Well, certainly South Africa is courageous here for taking on Israel, and especially because they know the United States government is beyond Israel, and as you know today, members of Congress are introducing legislation to cut off favorable trade legislation that we have with South Africa.  That being said, South Africa won an order of provisional measures of protection against Israel to cease and desist from committing all acts of genocide against the Palestinians.  Then when Israel did not comply, they had a month to produce a report.  The report was completely inadequate.

South Africa then filed another request for provisional measures of protection.  They didn’t get it.  But they did get a decision, specifically with respect to RAFA, reiterating the previous measures of provisional protection for RAFA.  And then, Israel continued its campaign of genocide against the Palestinians.  So, South Africa filed a third request for provisional measures of protection and on Friday they got an order, not just a decision, but another order, which is remarkable.

I was the first person ever to get two orders from the International Court of Justice in a genocide case that I filed through the Republic Bosnia and Herzegovina against Yugoslavia.  That was the first time the World Court had ever issued two orders in one case.  And now this becomes the second time.

But unfortunately, the World Court, despite massive violations of their first order and their decision, did not give South Africa what they were asking for.  If you looked at the request that South Africa made the second time, they specified precisely what they needed to try to stop the genocide, including a ceasefire, an order for a ceasefire.

And at the end of their second—well, their third request for provisional measures of protection, they cited me in the Bosnia genocide case, saying quote, to this end, the Court is reminded the application for additional provisional measures made by Bosnia in 1993, saying, quote, this is me, they quoted, “Make no mistake about it, this will be the last opportunity that this Court shall have to save both the people in the State of Bosnia and Herzegovina from extermination and annihilation by means of genocide by the respondent.  God will record your response to our request for the rest of eternity.”

Then South Africa pointed out that since the Court did not give me what I asked for the second time, the massacre of Srebrenica followed, where about 8,000 Bosnian Muslim men and boys were taken out and slaughtered.  So, South Africa said to the World Court, you don’t want this to happen again.  Give us what we asked for.  Unfortunately, the Court did not give South Africa what they asked for in the order they got Friday.  And now what do we have?

Well, we have the massacre at Shifa Hospital that you just mentioned.  Best report is maybe 400 Palestinians were executed, that’s the Euro Med Health Agency.  And now, we have this attack on the World Health Kitchen, killing seven people that was deliberate.  South Africa pointed this out, you had to give us what we asked for in order to stop this, and the Court did not.  The Court did not give them a demand for a ceasefire.  They could have easily done that.

The Security Council last week passed a resolution for a ceasefire.  The United States government abstained.  It passed.  It demanded a ceasefire until the end of Ramadan which would be the beginning of next week.  The Court could’ve easily ordered Israel to obey the Security Council ceasefire, pointing out it is binding under Article 25 of the UN Charter, and it didn’t say that at all.

And as a matter of fact, as you know, the US government then publicly lied and said that the ceasefire resolution by the Security Council was not binding as a matter of international law.  Well, that’s just nonsense.  Article 25 of the UN Charter says quite clearly it is binding.  Also, the World Court ruled in the Namibia Advisory Opinion that all Security Council resolutions are binding under Article 25, whether adopted under Chapter 6 of the UN Charter or Chapter 7 of the UN Charter.

So, the US government lied, and then Kirby, right after that, said, well, the Security Council resolution is not going to change anything.  And as the Washington Post pointed out, we’re escalating our supply of weapons, equipment, and supplies to Israel, including bunker-buster bombs, 2,000 pound bombs, 500 pound bombs, to be used on the people of Gaza.

The ICJ, in its latest order, also refused to trigger the obligation of the other parties to the Genocide Convention to “prevent” genocide, as Article I of the Genocide Convention clearly requires.  And in doing that, they then had the audacity to quote from their order, denying me a similar request that I had made, that they would not give me and South Africa had already pointed out, resulted in the Srebrenica massacre.

So, the–and then the order they did give, they said, well, there they were just dealing with the humanitarian relief supplies.  They said, well, Israel has to give more humanitarian relief supplies, but they can’t do it in a manner that would commit acts of genocide.  Well, that’s preposterous.  We just saw it here.  They just–Israel just attacked the seven relief workers and killed them.  Everyone knew Israel would not pay any attention to that.

So, the World Court completely failed the people of Gaza, and now we have the Shifa massacre, we have the seven dead humanitarians.  My opinion, the blood of all these people is on the hands of the World Court.  That being said, on Monday, Nicaragua, courageous Nicaragua, will be suing Germany for aiding and abetting genocide by Israel against the Palestinians.  There’ll be two days of hearing, Monday and Tuesday.  Nicaragua goes Monday.  Germany tries to defend itself on Tuesday.

I do not know precisely what the outcome will be here.  The first World Court order I had predicted, this one, the only lawyer who’s tried something like this is me, which I did for the Bosnians.  I sued the United Kingdom for aiding and abetting genocide by Yugoslavia against the Bosnians.  The first time such a lawsuit had been threatened.  What happened there was that it took me two weeks to get all those papers together, which I had promised President Izetbegović I could do, but just before the filing, the British threatened the Bosnians with starvation in the middle of the winter.  I had been negotiating with the Court for a hearing before Christmas.

So, we’ll see what, if anything, the Court gives to Nicaragua.  The problem is it will probably take them another two weeks.  Who knows how many Bosnian, sorry, Palestinians will be killed and that is my recommendation.  We need to go to the UN General Assembly under the Uniting for Peace Resolution and have the UN General Assembly adopt sanctions against Israel because the World Court isn’t going to do it.

Dennis Bernstein: Well, let’s actually talk about that.  I would really like to.  I want to let people know we’re speaking with Professor Francis Boyle.  Professor Boyle teaches International Law at the University of Illinois College of Law, author of many books and has successfully taken countries to the international courts to hold them accountable. 

Now, let’s talk about the General Assembly represents the entire world.  And I understand that they have the power under this Uniting for Peace Law or structure within the Geneva Convention to hold Israel accountable.  How would that be?  How does that work?

Francis Boyle:  Right.  To overcome the Soviet veto at the Security Council during the Korean War, it was the idea of the United States of America to give the General Assembly the authority to act against threats to international peace and security when there is a veto at the Security Council.  And that became the Uniting for Peace Resolution.

To give you an example, I don’t support the current genocidal sanctions against North Korea, but they all go back to a Uniting for Peace Resolution adopted at the very beginning of the procedure.  What the UN General Assembly can do now against Israel, which I have recommended to the Palestinians, the South Africans, and the Nicaraguans in interviews I’ve given all over the Arab world, both in English and Arabic translation.  One, the General Assembly has the authority to deny Israel participation in the activities of the General Assembly and all of its specialized agencies and affiliated organizations.  This is exactly what the General Assembly did to the criminal apartheid regime in South Africa, and also to my former adversary, the genocidal Yugoslavia.  So, it seems to me the General Assembly can act on both grounds, both residents here, apartheid by Israel and genocide by Israel.

Second, I’ve recommended an international criminal tribunal for Israel, organized along the lines of the International Criminal Tribunal for the former Yugoslavia, where I was the attorney of record for the mothers of Srebrenica and Padrina, and got Yugoslav President Slobodan Milosevic indicted and tried for almost every crime in the ICTY statute, including two counts of genocide.  One, Bosnian general, the second genocide at Srebrenica in particular.

The UN General Assembly can set this up, as I call it ICTI, as a subsidiary organ of the General Assembly under Article 22.  As a matter of fact, I worked very hard to get Malaysia and Iran to sponsor the International Criminal Tribunal for Israel in the UN General Assembly.  It took off like wildfire with a lot of support from Arab and Muslim states, and then it was sabotaged.  I’d leave it to your imagination to figure out who did that.

In any event, I would hope they could revisit this and my proposal and set up the tribunal and start prosecuting some of the highest level officials here, including Netanyahu, Gallant, Gantz, and Smotrich, Ben-Gavir, and others for these war crimes, crimes against humanity and genocide, and that very well might have a role to play in stopping the genocide going on right now if the General Assembly were to set this thing up and order it into immediate operation.  All they have to do is take the ICTY statute, revise it a little bit, and adopt it immediately.

Third, the General Assembly can recommend all UN member states sever diplomatic relations with Israel.  I don’t know, why have the Arab states that have diplomatic relations with Israel not severed relations already?  Why haven’t the European states outright genocide?  They haven’t done anything.  The General Assembly can also adopt economic sanctions against it, well, recommend economic sanctions against Israel, like they did a generation ago against North Korea, which are still there.  I don’t support them under the current circumstances, but this can be done.

And then finally, the General Assembly can admit Palestine as a full-fledged UN member state.  Right now, Palestine is a UN observer state along the lines of Switzerland before it became a full-fledged UN member state.  The US previously has vetoed Palestine’s admission to the UN.  The votes are there.  The Palestinians are going to try again next week for full-fledged admission to the UN member state.  If the United States vetoes, again, it could go to the General Assembly, and the General Assembly can admit them by a two-thirds vote.

They have, the Palestinians have the votes already.  I’ve been on the floor of the UN with the Palestinian delegation.  They have a lot of support.  And this is important because historically no UN member state has ever been destroyed.  Some have dissolved, like the Soviet Union and my adversary, the former Yugoslavia, but they haven’t been destroyed.  And clearly Netanyahu, Gallant, Gantz, Smotrich, Ben-Gurion, they want to destroy Palestine and the Palestinians.  That’s what all this is about.  They need this protection of UN member statehood.

I found this out in the work I did for the Bosnians at the Owen Stoltenberg negotiations in Geneva at UN headquarters there.  The great powers of the world, the European Union, its member states, and the Clinton administration and the UN tried to rob the Bosnians of their UN membership in order to wipe them out.  I stopped that from happening.  It never happened.  And Bosnia is still there today.  It is a state.  It has its UN membership.  Obviously it’s in very difficult circumstances.  I’m doing the best I can to help them out.  But if the UN and the EU and the Americans had had their way, and of course Yugoslavia, all the Bosnians would have been wiped out.  The UN membership kept them alive.  And I recommend the same must be done for the Palestinians.

Dennis Bernstein: We are just about out of time, but I have to ask you this question.  Iran now is vowing revenge against the Israeli attack on its Consulate building in Syria, in Damascus.  Could you–what is the right, do these states have the right under international law, do the Palestinians have the right under international law to resist to strike back?  What’s the deal there?  Where does the law come in there?  The law of the world? 

Francis Boyle: All right.  Well, that’s got you’ve asked me to two questions there, Dennis.  First, on the attack on the Consulate.  I don’t know, you know, that was clearly illegal and violated the UN Charter, the territorial sovereignty of Syria.  It violated the Vienna Convention on Diplomatic Relations, the Vienna Convention on Consular Relations, and probably the UN New York Convention protecting diplomats.

The general press has reported that this is attacking Iranian soil, that is incorrect legally, and I’m not trying to justify what Israel did, but a state does not have sovereignty over its embassy complex.  This remained Syrian territory, not Iranian territory, but that territorial compound is supposed to have absolute immunity.  That’s what it means.

As for the Palestinians, and also, I would say, Hezbollah as well, you know, as you know, everyone’s saying they’re a terrorist organization, and this terrorist organization, and that.  Well, that isn’t the case.  Under international humanitarian law, and in particular, additional protocol one to the four Geneva Conventions of 1949, to which I think over 170 states are party to, Israel and the United States are not, but the definition of a national liberation organization is as follows: “Armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.”  Well, that’s both Hamas and that is Hezbollah.

And under the UN General Assembly resolutions, national liberation movements like Hamas, like Hezbollah, have a right to seek and receive military support from other states in support of their national liberation activities.  So again, this is completely misrepresented, not surprisingly, by the mainstream news media here in the United States.  I’m not here to justify any attacks upon innocent civilians, but the categories of these two organizations as terrorists is not supported by international law, not supported by international humanitarian law.

Dennis Bernstein:  All right, we’re going to have to leave it right there.  Really, thank you again, Professor Francis Boyle, always generous with your time and the information and your experience is absolutely invaluable.   And we appreciate you.