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THE INTERIM AGREEMENT AND INTERNATIONAL LAW.

Editor's Note: With the Final Status negotiations between the Israelis and the Palestine National Authority apparently near, the background concerning them becomes critical. The editors of Arab Studies Quarterly felt that its readership would benefit from the confidential arguments presented in the following memorandum which was presented to the Palestinian Delegates to the Middle East Peace Negotiations on 1 December 1992. The memorandum was written by Francis A. Boyle, a well-known and respected University of Illinois Professor of International Law. The editors became aware of the Boyle document through an article in Inquiry by Bilal al-Hasan, member of the PLO's National Council and a noted journalist, published in the Spring of 1994. Al-Hasan makes clear reference to the turning down of Boyle's expert legal advice.

Boyle, in his memorandum, went to great lengths in advising the Palestinian delegation regarding the multiple legal traps which the American administration has set for it. Had Boyle's expert advice been followed, perhaps the Palestinian National Authority would have extracted a much stronger settlement for their people in the negotiations.

Having obtained Boyle's document, Arab Studies Quarterly is publishing the entire document, which begins on Page 2, without comment.

DEAR FRIENDS:

INTRODUCTION

The Assignment

1. About five weeks ago the Head of the Palestinian Delegates, Dr. Haidar Abdul Shaffi, invited me to come out to Washington, D. C. in order to consult with him and the Palestinian delegation to the Middle East Negotiations on numerous legal issues related to the so-called Interim Agreement and international law. Dr. Shaffi has kindly requested me to provide a formal Legal Opinion that would attempt to develop a unified position on these issues for the members of the Delegation to consider and adopt. In addition, I have been told that this Legal Opinion would also be forwarded to the Political Leadership of the Palestinian People in Tunis for their consideration as well. This Memorandum of Law is intended to discharge the request that has been made to me by Dr. Shaffi as well as by many other members of the Delegation.

The Qualifications

2. I have prepared this Memorandum on the basis of the questions that have been posed to me during those two weekends. I will attempt to pull together all the advice that I have given in this one Memorandum. Please understand, however, that these are only my tentative thoughts on the Interim Agreement. Due to your time deadline and my teaching constraints, I have not had the opportunity to engage in scholarly research upon any of these points. Therefore, if you agree with me, all of the points that I make here will need to be fleshed out by you during the course of your further research and deliberations.

3. In addition, all of you have had numerous private conversation with the members of the Israeli negotiation team during the course of the formal negotiations themselves as well as informally. I have not had the benefit of any of these personal conversations. Also, you have had many conversations with official representatives of the United States government that I have not had the benefit of either. Rather, all I can do here is to comment upon the documents which you have given to me for examination and to give you my expert opinion as a Professor of International Law, a practicing international lawyer, and also as a licensed American attorney-at-law for the past fifteen years.

You Must Distrust Israeli and American Oral Assurances

4. What the Americans and the Israelis have told you orally is one thing. What the documents say is quite another thing. There is an enormous gap between the two. And it has been my experience as a practicing lawyer in international law for the past fifteen years, that any oral assurances not put in writing are worthless and will never be honored. Indeed, as we all saw at the outset of these negotiations, the Israelis did not honor the commitments made in the Letters of Invitation and Assurances to "direct bilateral negotiations" with the Palestinian People. And the Americans did not insist that the Israelis live up to and honor the commitments that they had made in writing to the Americans to "direct bilateral negotiations" with the Palestinians.

5. Since this is undeniably the case, we will have a very difficult time getting the Israelis and the Americans to live up to any commitments that they make in writing about an Interim Agreement, let alone a Final Settlement. For this reason, I would caution you to be very skeptical about anything the Israelis or the Americans are telling you orally that they are unprepared to put in writing. Indeed, most of the Americans involved in this so-called peace process are undoubtedly seeing this process from the Israeli perspective, not the Palestinian prospective. They are not and could never be "honest brokers" for peace.

A STRATEGIC VISION FOR THE INTERIM AGREEMENT

You Must Reject the Israeli and American Camp David Approach to These Negotiations

6. It seems clear to me from all the documentation that I have read so far that both the Israelis and the Americans view these so-called peace negotiations as a continuation of the Camp David Accords and Framework but under another name. For example, I have carefully reviewed the document entitled "Minutes of Meeting at U. S. Department of State, Wednesday, October 21, 1992." It is obvious from this document that all of the American participants view the peace process and this Interim Agreement as a working out of the Camp David Accords and Framework. In other words, the Americans fully agree with and support the basic "strategic vision" and approach that the Israelis have to these negotiations.

7. Therefore, the Americans are inviting you to walk down the garden path of Camp David, which will result in "autonomy for the people" and maybe, at best, "autonomy for the land." As you well know, Prime Minister Begin stated that the Camp David Accords called for "autonomy for the people" and perhaps "autonomy for the land." This interpretation of Camp David was emphatically rejected by President Carter. Nevertheless, it is clear that American officials involved in these negotiations perceive this Interim Agreement as consisting of "autonomy for the people" and perhaps "autonomy for the land" in the Final Settlement. But nothing more.

8. Indeed, some of these American officials seem to interpret the Camp David Accord in the way Begin did, not Carter. They make it sound as if they are doing you a favor by suggesting that you might have "autonomy for the people" now and maybe "autonomy for the land" later. Of course, such a suggestion is ridiculous, unacceptable, and insulting. You were not parties to the Camp David Accords or the Linowitz negotiations thereafter. Hence, you are not bound by them to any extent.

You Must Not Count Upon Some Written "Interconnection" Between an Interim Agreement and a Final Settlement to Protect Your People and Land

9. Indeed, if the Camp David Accords has any precedent, then I doubt very seriously that you will ever get to a Final Settlement at all. The Camp David Accords called for an "interconnection" between the Israeli-Egyptian Peace Treaty and a "Framework for Autonomy" for the Palestinians. The Egyptians bargained quite assiduously for this "interconnection" so as to avoid the appearance of concluding a separate peace between Israel and Egypt at the expense of the Palestinians. Nevertheless, after the implementation of the Israeli-Egyptian peace treaty, the Israelis paid no attention whatsoever to this so-called "interconnection" despite express language to that effect. The so-called Linowitz negotiations got nowhere because of Israeli stalling. Eventually the Linowitz negotiations died a quiet death after Carter lost the 1980 presidential election. That was twelve years ago.

10. Today, the United States government has finally gotten around to reviving the so-called Camp David peace process. But because of Israeli stalling and because of American presidential election politics, there could be a twelve-year, sixteen year or even twenty-year interval between the Interim Agreement and the so-called Final Settlement no matter what the documents might say abut some "interconnection." Indeed, if the Israelis have their way with their supporters in the Democratic and Republican parties and in the United States Congress, you will never see that Final Settlement. The Israelis, with American help, will simply stall, drag out, and indefinitely postpone and delay a Final Settlement while they continue to kill your people, steal your land and drive the rest of you out of your homes.

You Must Negotiate the Interim Agreement As If It Were the Final Settlement

11. For that reason, it is my conclusion that you must negotiate and draft the so-called Interim Agreement as if it were the Final Settlement. That is, you must draft the Interim Agreement in the full knowledge and expectation that your People might have to live with it for quite a long time no matter what the document says about some "interconnection" with the so-called Final Settlement. This requires, then, that under any Interim Agreement you must protect your claims under the terms of Resolution 242 and 338 as well as your rights under the Fourth Geneva Convention of 1949, inter alia. In addition, you must build into the Interim Agreement a mechanism whereby the Palestinian Interim Self-Government Authority (PISGA) can ripen into internationally recognized legal sovereignty over a period of time irrespective of whatever Israel does.

You Must Be Able to Build Your State Up From the Land and People Under the Interim Agreement

12. In other words, under the terms of the Interim Agreement, you must be able to build your State up from the Land and the People. And the only way this can be done is to make sure that PISGA has independent legislative authority and powers. If PISGA has independent legislative authority and powers, then over a period of time PISGA will be able to gradually ripen into intentionally recognized legal sovereignty for the Palestinian People and Land. But without independent legislative authority and powers, PISGA will be nothing more than the civilian administrative arm of the Israeli occupation army in Palestinian Lands designed for the purpose of doing the Israeli army's dirty work for it by repressing the Palestinian People. Without independent legislative authority and powers, PISGA will be in the position of having to repress those Palestinian People who will undoubtedly oppose such a defective and fatally flawed Interim Agreement.

YOU MUST PRESERVE YOUR CLAIMS UNDER RESOLUTION 242 AS PART OF AN INTERIM AGREEMENT

The American Strategy Is to Conclude a Separate Peace Among Israel, Jordan, Syria and Lebanon at the Expense of the Palestinians

13. Under any Interim Agreement, you must make it very clear that the Interim Agreement does not satisfy the terms of Resolution 242. Otherwise, the Israelis will argue that the Interim Agreement itself, when coupled with peace treaties with Jordan, Syria and Lebanon, collectively satisfy the terms of Resolution 242. I shall assume for the purpose of this analysis that the United States government will broker some type of agreement between Israel and Syria, which seems to be in the works. And as we know, the Lebanese will do whatever the Syrians tell them to do. So the rest of this Memorandum will not deal with the Syrians and the Lebanese. But Jordan is a serious problem.

14. It is also very clear that the United States government is brokering an agreement between Israel and Jordan on concluding a peace treaty between the two of them. It is my opinion that certainly the Israelis and probably the Americans view an Israeli-Jordanian peace treaty very much as they viewed the Israeli-Egyptian peace treaty: That is, as a separate peace between Israel and Jordan at the expense of the Palestinian People.

15. The Israeli approach and the American approach seem to be that they will strike a deal with Jordan and then the three states together will present it to the Palestinians as the best that can be done under the circumstances on a take-it-or-leave-it basis. In this regard, remember that King Abdullah [of Jordan] and the Jewish Authorities secretly agreed to carve up Palestinian Lands between them in 1948. It seems to me that a similar arrangement between Israel and Jordan, with the full support of the United States government, is currently underway now. For this reason, you must be very careful to draft the Interim Agreement in such a way as to make it clear that an Israeli-Jordanian peace treaty together with an Interim Agreement will not satisfy the terms of Resolution 242-once again, putting aside the Syrians and the Lebanese for the purpose of this analysis. These conclusions become quite clear from an analysis of the text of Resolution 242 itself

The Interim Agreement Must Deal With the Deceptive Language of Resolution 242

16. There would be absolutely no point served here by going through the sorry history of U. N. Security Council Resolution 242 (1967), which I am sure you are painfully aware of Rather, I plan to discuss the implications of an Interim Agreement under resolution 242. For this purpose, I intend to focus this analysis upon paragraph 1 of Resolution 242, which reads as follows:

1. Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

(i) Withdrawal of Israeli armed forces from territories occupied in the recent conflict;

(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;...

17. You will note that paragraph 1, subparagraph (i) calls for the withdrawal of Israeli armed forces "from territories occupied in the recent conflict...." That it does not call for Israeli withdrawal from "the" territories before the word "territories occupied" was a deliberate deception of the Arab states by the United States Government.

18. The Story of this deception has recently been told by Mr. George Ball, former Under-Secretary of State in the Johnson administration, in his latest book, The Passionate Attachment (1992), at page 63 (emphasis added) (footnotes omitted):

Second--and a cause for endless problems in the future--America failed to insist on the British and Soviet demand to include the definite article "the" in the clause calling for the return of "territories occupied in the recent conflict." By deleting the definitive article before "territories occupied," the American delegation secured Arab approval by an ambiguity that amounted to deception. As noted above, Hussein and other Arab leaders had been given to understand that they would be able either to recover all their territory or be compensated for any minor border rectification on which Israel insisted. Practically everyone else, including the British government speaking through Lord Caradon, thought that even without a definite article in the English text (it was included in the French and Spanish versions), the resolution would require the Israelis to evacuate all or practically all, of the territories, with only minor adjustments.

19. Everyone knows that the omission of the word "the" was a deliberate deception of the Arabs perpetrated by the United States government at the behest of Israel. Nevertheless, it created an ambiguity in the terms of Resolution 242. And your Delegation is charged with knowledge of this ambiguity under international law. Therefore, it is incumbent upon you to protect yourself from this ambiguity in any Interim Agreement. If you do not protect yourself for this ambiguity, then this ambiguity will be construed against the Palestinian people to your great detriment.

20. In other words, Israel will be able to further exploit this deception by claiming that an Interim Agreement calling for only a partial withdrawal of Israeli troops from Palestinian Lands, when coupled with peace treaties with Jordan, Syria and Lebanon, will constitute a fulfillment of the literal terms of Resolution 242. Indeed, such an arrangement would arguably fulfill the requirement for the "Withdrawal of Israeli armed forces from territories occupied in the recent conflict..." At least, that is what the Israelis will claim unless you make it clear that you are preserving your claims under Resolution 242 as part of an Interim Agreement.

21. Indeed, such an Israel position would be consistent with their current interpretation of Resolution 242 to the effect that it does not apply on all fronts. So far, Israel has had the sheer audacity to argue that their withdrawal from the Sinai has fulfilled the terms of Resolution 242. You can bet your bottom dollar that if they conclude a peace treaty with Jordan, and an Interim Agreement with the Palestinians, Israel will then argue that this arrangement has fulfilled the literal terms of Resolution 242 and therefore that there is no reason for any further withdrawals.

22. The Israelis will then proceed to stall and delay on the negotiation of any Final Settlement, irrespective of whatever language on some "interconnection" might be found in the Interim Agreement--just as they did with Linowitz on the Camp David Accords. Meanwhile, the Israelis will continue to steal your Land, kill your People, and drive them out of their Homes. The only way to prevent this from happening is to make it expressly clear in one way or the other that the Interim Agreement does not satisfy the requirements of Resolution 242, which must still be binding as a matter of public international law into the indefinite future.

The Interim Agreement Must Consider the Actual Text of Resolution 242

23. These conclusions are strengthened by an analysis of subparagraph (ii) of paragraph I of Resolution 242 quoted above. Subparagraph (ii) calls for; "Termination of all claims or states of belligerency. ..." Notice the use of the disjunctive word "or" as opposed to the conjunctive word "and."

24. In the event you sign an Interim Agreement with the Israelis without preserving your claims under Resolution 242, the Israelis will argue that the Interim Agreement with the Palestinians together with peace treaties with Jordan, Syria and Lebanon, have terminated "all...states of belligerency" and thus that they have fulfilled the literal and actual terms of subparagraph (ii) of paragraph 1 of Resolution 242.

25. The Israelis will also argue that the outstanding Palestinian "claim" to your own land becomes irrelevant because subparagraph (ii) calls for the termination of either "all claims" or "all...states of belligerency"; but not both. So if Israel can fulfill either one of these two requirements, then Israel will have fulfilled the literal language of subparagraph (ii) of paragraph 1 of Resolution 242. The Israelis will argue that any outstanding "claims" the Palestinians have to your own Land after the conclusion of the Interim Agreement will be deemed irrelevant to the fulfillment of Resolution 242. Hence, the conclusion is inexorable that you must preserve your claims under Resolution 242 as part of any Interim Agreement.

The Palestinian People Are Not Per Se Protected by the Literal Text of Resolution 242

26. This conclusion is even strengthened by the rest of the language found in subparagraph (ii) of paragraph 1 of Resolution 242. It calls for: "...and respect for and acknowledgement of the sovereignty, territorial integrity, and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats of acts of force. ..." This language clearly protects Jordan, Syria, and Lebanon. It does not protect the Palestinians per se because it only applies to "every State in the area."

27. The state of Palestine did not exist in 1967. Hence, the Palestinian People are technically unable to claim the literal protection of this language found in Resolution 242 in their own right. In other words, Resolution 242 gave Jordan the international legal right and standing to insist upon Israeli withdrawal from occupied Palestinian Lands after 1967. But today, Jordan could easily sell out the Palestinian People and your Lands if you are not very careful in drafting this Interim Agreement.

28. If Israel concludes peace treaties with Jordan, Syria, and Lebanon, together with an Interim Agreement with the Palestinians that calls for only a partial withdrawal of Israeli troops from Palestinian Lands, then the Israelis will be able to claim that they have satisfied the literal requirements of subparagraph (ii) of paragraph 1 of Resolution 242. In other words, such a settlement would have terminated "all...states of belligerency" and have obtained "respect for and acknowledgement of the sovereignty, territorial integrity, and political independence of every State in the area. ..." The Palestinian Peoples' "claim" to your own Land arguably becomes irrelevant because of the use of the disjunctive word "or" as explained above. Once again, therefore, you must preserve you claims to Israeli withdrawal from Palestinian Lands as required by Resolution 242 under any Interim Agreement. Otherwise, you will lose them.

How to Preserve Your Claims Under Resolution 242 in an Interim Agreement

29. I realize of course that Israel might not be prepared to sign an Interim Agreement that expressly incorporates a reference to Resolution 242. In the event this should prove to be an insuperable obstacle during the course of the negotiations, then I do have one fallback position for you to take: Namely, you must demand that the two Co-sponsors, the United States and the Russian Federation, secure the passage of a new United Nations Security Council Resolution that expressly recognizes that Resolution 242 is still valid and binding as a matter of international law even after the conclusion, signature, and approval of the Interim Agreement and any other peace treaties related thereto between Israel, Jordan and Syria. In this fashion, Israel would not have to expressly consent to the continued applicability of Resolution 242. But the Security Council itself would and must do so.

30. Of course you would have to draft the language of this Security Council Resolution quite carefully to make it clear that the entire text of Resolutions 242 and 338 continues into existence, but the adoption of such a new Resolution by the Security Council would bind Israel under Article 25 of the United Nations' Charter whether Israel likes it or not: "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter." (emphasis added.)

31. To be sure, the Israelis have also attempted to deny the applicability of Security Council resolutions unless they expressly consent to them. the way around that would be to make sure that when it comes to the approval of the Interim Agreement and any related peace treaties by the United Nations Security Council, that the Security Council indicates quite clearly in the text of the new Resolution that it is acting under its powers found in Chapter 7 of the United Nations Charter. In addition, in this new resolution the Security Council should also formally determine the existence of a "threat to the peace" under article 39 of the Charter, and then "decide" (not recommend) that Resolutions 242 and 338 continue into full force and legal effect irrespective of the terms of the Interim Agreement and any related peace treaties. There must be a formal "Decision" by the Security Council that Resolution 242 and 338 are still binding as a matter of public international law after the Interim Agreement and any relat ed peace treaties. At a minimum, this Security Council Resolution must use the word "decides" in the operative paragraphs to obtain the benefits of Charter article 25 against Israel.

32. Of course it would be preferable to have Israel expressly agree to the continuation of Resolutions 242 and 338 in the text of the Interim Agreement itself. But if that should prove to be impossible, and if the Co-sponsors are acting in good faith, then the United States government and the Russian government should be prepared to give you another Security Council Resolution as outlined above. After all, Resolution 242 is the creature of the Security Council, not of the Israeli government. Under the United Nations Charter the Security Council has the legal authority to do whatever it wants to do with its own resolutions.

33. This Security Council approach to the problem would provide you with one way out of this dilemma that in turn would not compromise your claims under Resolution 242. But the Resolution itself would have to be very carefully drafted and approved beforehand as part of the documentary "package" surrounding an Interim Agreement. Conversely, if the Americans are not prepared to promise you this new Security council Resolution guarantee on Resolution 242, then you know that they are not acting in good faith as so-called honest brokers. The same rule-of-thumb would apply to the Russians.

You Cannot Rely Upon the Letters of Invitation and Letters of Assurances to Protect You After the Interim Agreement is Approved

34. In this regard, you cannot rely upon the Letters of Invitation and Letters of Assurances to get you from an Interim Agreement to a Final Settlement. The promises given in the Letters of Invitation and Letters of Assurances do not mean very much as a matter of public international law. The Israelis will argue that they never assumed the status of an international treaty or treaties within the meaning of the Vienna Convention on the Law of Treaties, the Israelis will also argue that they do not have a direct agreement with the Palestinians under the terms of the Letters of invitation and assurances anyway. Therefore, they are not bound by these documents as a matter of public international law, etc.

35. Moreover, the United States government will argue that these are not international treaties or agreements within the meaning of United States constitutional law. Indeed, these documents have never been formally registered under the terms of the U.S. Case Act that requires the formal registration of all international agreements to which the United States government is a party to with Congress. Without such registration, they are not binding under American law and are not obliged to be respected by subsequent administrations, let alone by Congress.

36. In other words, once you have signed an Interim Agreement, you simply cannot rely upon any of these Letters in order to get you to the Final Settlement as a matter of Public International Law and American Constitutional Law. Once the Interim Agreement is signed and registered with the United nations Organization-as is clearly contemplated by the Letters of Invitation and Assurances-then it will be treated as if it were an international convention within the meaning of the Vienna Convention on the Law of Treaties. The normal rule of interpretation for such conventions is to look at the actual text of the language itself. The secret negotiation history of any international agreement is generally disregarded by the International Court of Justice.

37. Thus, the standard international practice will be to rely upon the text of the Interim Agreement itself. And in this case, the text of Resolution 242 is clearly deceptive and ambiguous. So it is up to you to make it crystal clear that Resolution 242 will not be fulfilled by signing any Interim Agreement. Otherwise, you could very well lose your "claims" under resolution 242 to complete Israeli withdrawal from Palestinian Lands.

THE PALESTINIAN DELEGATES MUST SIGN AND APPROVE THE INTERIM AGREEMENT WITH ISRAEL BY THEMSELVES

38. I have been asked to express my legal opinion as to how the Palestinians should sign and approve the Interim Agreement. From the above analysis it should now become clear why you must insist upon your independent legal right to conclude the Interim Agreement with Israel and without Jordan. If Jordan signs the Interim Agreement with you, then Israel will claim that this Interim Agreement has terminated "all...states of belligerency" and obtained "respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area...," etc.

39. Since Israel refuses to recognize the existence of the independent State of Palestine, the Israelis will claim that neither Palestine nor the Palestinian people have any rights or claims under Resolution 242. Jordan was the belligerent occupant of Palestinian Lands as of 1967. Hence, Israel will argue that its obligations towards Jordan with respect to the Palestinian Lands under Resolution 242 will have been fulfilled by the Interim Agreement together with a peace treaty with Jordan.

40. Furthermore, if you sign the Interim Agreement with Jordan, Israel will claim that the Interim Agreement is really an international convention between the two sovereign states of Israel and Jordan dealing with and disposing of the Palestinian People and the Palestinian Lands. The Israelis will claim that the Palestinian Delegates signed the Interim Agreement as a matter of courtesy; but that this does not mean that Israel recognizes that the Palestinians have any sovereign capacity or rights or claims whatsoever. If you sign the Interim Agreement with Jordan, the Israelis will argue that the Palestinian People are nothing more than wards, subjects, or dependents of the Jordanians for the purpose of public international law. This is very similar to the way the British Empire used to sign international treaties on behalf of its dependencies around the world during the colonial era of history. Once again, the only way to protect yourself from these traps is to make that there are only two "parties" to the In terim Agreement itself: the Israelis and the Palestinians; but not the Jordanians.

The Letters of Invitation and Assurances Give the Palestinian Delegates the Right to Conclude the Interim Agreement with Israel by Yourselves

41. Indeed, the Letters of Invitation and Assurances make it quite clear that the United States government promised that there will be an Interim Agreement between Israel and the Palestinians that will be registered with United Nations Organization and therefore constitute an international convention or treaty. And of course, Israel has agreed to attend these so-called negotiations and to negotiate on this basis. Hence, the Palestinian Delegates have been empowered to sign an international convention or treaty with Israel yourselves. Thus, the Palestinian delegates have been given an independent and international legal personality for the purpose of these negotiations and agreements. You must insist upon it when it comes time to sign and approve the Interim Agreement. Otherwise, you will lose it and the Palestinian People and Land will become nothing more than "wards" or "dependents" of the Jordanians and the Israelis after the Interim Agreement.

42. I have already analyzed these matters at greater length in two Memorandums of Law I wrote for use by the Palestinian Delegates during the first round of negotiations in Washington, D.C. In December of 1991, entitled "Analysis of U.S. Invitation and Letters of Assurances for the Mideast Negotiations" (21 November 1991) and "The Right of the Palestinian People to Direct Bilateral Negotiations With the Israeli Delegation" (8 December 1991). I will not bother to repeat all that analysis here since you have already seen these two memoranda and currently possess copies of them in your Delegation's Archives. However, due to the requirements of space and time, I will simply incorporate by reference here the conclusions found in paragraphs 14, 18, 19 and 20 of the 8 December 1991 Memorandum:

The Right of the Palestinian People to Direct Bilateral Negotiations With the Israeli Delegation

14. We now must turn to the U.S./Soviet Letter of Assurances to the Palestinians dated October 18, 1991. Once again, paragraph 1 refers to "direct negotiations" between Israel and the Palestinians. It calls for "Palestinian participation" in the context of "direct negotiations with Israel."

18. Paragraph 6 repeats the call for "direct bilateral negotiations" between the "parties," which would mean "direct bilateral negotiations" between Israel and the Palestinians since the Palestinians have been recognized as one of the "parties" to these negotiations.

19. Paragraph 7 repeats the call found in the Invitation for two tracks of direct bilateral negotiations, one of which will be between Israel and the Palestinians, that will be separate and apart from the direct bilateral negotiations between Israel and the respective Arab states (i.e., Jordan, Syria, and Lebanon).

20. According to paragraph 10, agreements reached between the "parties", apparently including any agreement between Israel and the Palestinians, will be registered with the U.N. Secretariat, thus giving such an agreement the standing of an international "treaty." Thus, the co-sponsors have apparently given the Palestinian People here the degree of international legal personality and recognition necessary and sufficient to negotiate and conclude an international agreement.

43. It is clear from the above analysis that the Palestinian Delegates have been given the international legal right and standing to sign the interim Agreement with Israel alone. You must insist upon that right. Otherwise, if you sign the Interim Agreement with Jordan, Israel will claim that the Interim Agreement is really a treaty between two sovereign states of Israel and Jordan and that the Palestinians were nothing more than "wards," 'subjects" or "dependents" of the Jordanians at the time of signature. Therefore, the Israelis will argue that an Interim Agreement signed by Israel, on one side, and Jordan and the Palestinians on the other, will create nothing more than a shared condominium type of arrangement between Israel and Jordan to treat the Palestinian People and Lands as their joint "wards", "subjects", and "dependencies."

44. You must insist upon your independent right to sign the Interim agreement with Israel by yourselves and without Jordan. Even then, the Interim Agreement must be carefully drafted in full awareness of whatever the peace treaty between Israel and Jordan will say. Otherwise, you risk the same result: The Israelis and the Jordanians could simply agree between themselves to set up a condominium arrangement over the People and Land of Palestine. Based upon what happened in 1948, that is probably what the Americans, the Israelis and the Jordanians are planning to do to you now.

How the Palestinians Can Approve the Interim Agreement

45. Let us assume that you successfully produce an Interim Agreement that fulfills the requirements set forth in this Memorandum. What would be the technical procedures required for approval by the Palestinian People? upon the completion of the text, the Interim Agreement could be initialed by the Heads of the three sets of delegates; Israeli; Jordanian; and Palestinian. The Israelis will probably insist upon this since you are part of a Joint Delegation and technically the Joint Delegation would have negotiated the Interim Agreement.

46. But although the Jordanian Head might initial the Interim Agreement, he must not sign it. Nor must the Interim Agreement have been pre-approved by the Jordanian parliament; nor must the Interim Agreement be subsequently submitted for approval to the Jordanian Parliament. Here more research must be done on the Jordanian constitutional law concerning the approval or ratification of treaties. We will need a Memorandum on this subject from an expert on Jordanian constitutional law and international law with respect to treaties in order to be careful. So let us put aside the Jordanians for the time being pending the submission of that memorandum.

47. Hence, the text of the Interim Agreement must be initialed ad referendum by the Head of the Palestinian Delegates but not ad referendum by the Head of the Jordanian Delegates. Then the Interim Agreement should be submitted to the Palestine National Council for its debate and approval. At that point, the Palestine National Council could authorize the Palestinian Delegates to sign the Interim agreement with Israel in the name of the P.N.C. (the Palestine National Council).

48. This does not mean that the Palestinian Delegates must sign the Interim Agreement in the name of the Palestine National Council as indicated on the document itself. But rather, that the Palestine Delegates could sign in their own names after having been duly authorized to do so by the Palestine National Council. The Israelis could do the same with their Knesset.

49. The instruments of approval or ratification for the Interim Agreement would then have to be exchanged between the Israeli Delegates and the Palestinian Delegated. Here you must be careful to follow the absolute letter of the Vienna Convention on the Law of Treaties concerning these technical and procedural matters. You must act as if you represent the sovereign State of Palestine because you do!

50. Thereafter, the Interim Agreement would be transmitted to the United Nations for registration as a treaty or international convention. The Interim Agreement would then be treated as any other treaty that could be raised within the context of any of the organs of the United Nations Organization, including the International Court of Justice. The Interim Agreement would be subject to the Vienna Convention on the Law of Treaties, which is the customary international law in this area. Once again, therefore, the Interim Agreement must be carefully drafted in accordance with the requirements of the Vienna Convention on the Law of Treaties.

51. Thus, it is critically important that you hold out for your established right to sign the Interim Agreement with Israel and without Jordan. It would also be important to closely examine the text of the Peace Treaty between Israel and Jordan to make sure that there is nothing in there that would indicate that somehow the Palestinians are being treated as wards, dependents, or subjects of the State of Jordan. Otherwise, the Palestinians could lose the degree of international legal personality and capacity that has already been conferred upon you by the Letters of Invitation and Assurances as explained above.

52. Even more importantly, if these technical matters are not handled properly, you could lose the formal diplomatic recognition of the State of Palestine by the 125 states that have already recognized Palestine as a sovereign state, as well as by the United Nations Organization itself. In other words, you would undo and reverse the Palestinian gains since 1988. You do not want to jeopardize that high degree of international consensus and recognition in any way. So a good deal of attention must be paid to these technical and procedural matters. Otherwise, the net result here could then mean some type of condominium arrangements between Israel and Jordan over the People and Lands of Palestine. It seems clear to me that this is the trap that the Israelis, the Americans, and perhaps the Jordanians are currently setting for you and the Palestinian People.

YOU MUST PRESERVE YOUR RIGHTS UNDER THE FOURTH GENEVA CONVENTION UNDER ANY INTERIM AGREEMENT

The Interconnection Between Resolution 242 and the Fourth Geneva Convention

53. The above analysis of Resolution 242 in light of an Interim Agreement should also make it crystal clear why you will need to preserve your rights under the Fourth Geneva Convention as part of any Interim Agreement. This is because Israel will claim that the conclusion of the peace treaty between Israel and Jordan together with an Interim Agreement between Israel and the Palestinians will represent a termination of the "state of belligerency" between Israel and Jordan. Therefore, the Israelis will argue that the literal requirements of Resolution 242 will have been fulfilled and also that the Fourth Geneva Convention will no longer apply.

54. In other words, the Interim Agreement could be construed as a termination of the "state of Belligerency" between Israel, on the one hand, and Jordan and the Palestinians, on the other. This would certainly be the case if an Interim Agreement expressly calls for peaceful relations and cooperation between Israel and the Palestinian People. This is a requirement that the Israelis will undoubtedly insist upon in any Interim Agreement.

55. Public international law does not require a formal peace treaty in order to terminate a state of belligerency. So if the state of belligerency between Israel, on the one hand, and Jordan and the Palestinians, on the other, has arguably been terminated by a peace treaty between Israel and Jordan and an Interim Agreement between Israel and the Palestinians, then the Fourth Geneva Convention might arguably no longer apply to protect the People and the Lands of Palestine. At least, that is what the Israelis will argue. And the Americans might back them up.

56. Israel will argue that the Interim Agreement with the Palestinians and a peace treaty with Jordan will terminate the state of belligerency among all of you and therefore that the Fourth Geneva Convention no longer applies thereafter to protect the people and the Land of Palestine. Hence, the Israelis will argue that after the conclusion of such an Interim Agreement, any remaining Israeli settlers and settlements are no longer illegal because the Fourth Geneva Convention no longer applies. And since Resolution 242 would no longer apply, the settlers and settlements can stay there forever. So the only way to prevent this from happening is to preserve your rights under the Fourth Geneva Convention as well as your claims under Resolution 242 in any Interim Agreement.

57. The need to protect your rights under the Fourth Geneva Convention is also made quite clear by paragraph 3 of article 6 thereof: "In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operation. . . ." The Israelis will argue that the conclusion of an Interim Agreement with the Palestinians together with a peace treaty with Jordan would trigger article 6, paragraph 3 with respect to any remaining occupied Palestinian lands. Therefore, the Fourth Geneva Convention arguably no longer applies in accordance with its own terms one year after the approval of the Interim Agreement.

The Dangers of Article 6(3) of the Fourth Geneva Convention

58. Finally, and most importantly, the Israelis will also argue that failure to preserve your rights under the Fourth Geneva Convention in any Interim Agreement that recognizes the continued existence of Israeli settlers and settlements in occupied Palestinian lands constitutes the "regularization" or de facto "legalization" of the presence of the settlers and settlements in Palestinian Lands. Of course, you do not want to do that. but the Israelis are trying to get you to sign an Interim Agreement that will effectively "regularize" or 'legalize" some of the settlers and the settlements pending a Final Settlement, which in turn you will not see for ten, fifteen, or twenty years, if ever.

59. Once again, the only way to make it clear that the settlers and the settlements are illegal and ultimately must be withdrawn and dismantled, is to preserve your right under the Fourth Geneva Convention, as well as your claims under Resolution 242 and 338, with respect to any Interim Agreement. Failure to preserve your rights under the Fourth Geneva Convention in one fashion or another will mean that you will lose your current ability to object to the settlers and to the settlements under international law and in essence will have tacitly acquiesced to their de facto presence indefinitely.

The International Consensus in Support of the Application of the Fourth Geneva Convention Must Not Be Jeopardized

60. I realize of course that some of you will say that the Fourth Geneva Convention has not done your People and Land much good. But imagine how terrible the situation might be today after twenty-five years of occupation if there were no Fourth Geneva Convention? The Israelis would probably have stolen all of your Land and expelled all of your People by now.

61. Today the entire international community (except for Israel) agrees that the Fourth Geneva Convention applies to protect the Palestinian People and the Palestinian Lands. That is an overwhelming degree of international consensus that you do not want to lose or jeopardize in any way. The Fourth Geneva Convention provides some degree of protection for your People and your Land from further Israeli expulsions, murders, and confiscation. It would be an extremely dangerous thing for you to do to fail to preserve your right under the Fourth Geneva Convention as part of some Interim Agreement.

The State of Palestine Has Already Ratified the Four Geneva Conventions

62. Indeed, the Palestine National Council has already ratified the Four Geneva Conventions of 1949 on behalf of the State of Palestine. I will not go through the sorry history of what happened after that in this Memorandum. But this ratification is binding as a matter of public international law.

63. Thus, all 125 states that recognize the State of Palestine are also obliged to recognize that Palestine is a state party to the Fourth Geneva Convention, this would include to Co-sponsor, the Russian Federation, which is the successor-in-law to the former Soviet Union, which recognized the State of Palestine. Jordan is also obliged to recognize that Palestine is a party to the Four Geneva Conventions.

64. Thus, you do not want to sign an Interim Agreement that will jeopardize the P.N.C.'s international legal ratification of the Fourth Geneva Convention. Indeed, as a delegation you are bound to recognize and observe this P.N.C. ratification. Moreover, as Palestinians living in occupied territory, you do not currently have the legal power to negotiate, sign, or approve an Interim Agreement that gives up Palestinian rights under the Fourth Geneva Convention. This conclusion is made crystal clear by article 8 of the Fourth Geneva Convention: "Protected persons may in no circumstances renounce in part or in entirety the right secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be."

65. Al-Haq (a Palestinian affiliate of Law in the Service of Man) has already sent you a memorandum on this subject about one year ago before the negotiations began in Washington. I will not bother to repeat any of that analysis here. But I fully agree with their conclusions.

How to Preserve Your Rights Under the Fourth Geneva Convention

66. Once again, it would be preferable to have the Israelis expressly acknowledge in the Interim Agreement that the Fourth Geneva Convention does indeed apply to occupied Palestinian Lands, including Jerusalem. But in the event this should prove to be impossible, then in the aforementioned United Nations Security Council Resolution, you should have the Security Council affirm than it is acting under its powers found in Chapter 7, of the United Nations Charter; make a formal determination that there exists a "threat to peace" under article 39; and then "decide" that the Fourth Geneva Convention continues to apply to occupied Palestinian Lands, including Jerusalem, irrespective of the terms of the Interim Agreement. Such a new Security Council resolution would give you all the legal protection you need. Conversely, if the Americans are not prepared to promise you such a Security Council Resolution now, then you know that they are not acting in good faith, alone as self-styled "honest brokers." The same rule-of- thumb would apply to the Russians.

HOW TO HANDLE JURISDICTION, LAWS, AND ISRAELI MILITARY REGULATIONS UNDER THE INTERIM AGREEMENT

Rejecting the Israeli Approach

67. The Israelis have submitted a proposal on how to treat the 2,000 or so military regulations that they have enacted in occupied Palestinian Lands since 1967. I will not bother to provide a detailed critique of their proposal in this Memorandum because of limitations of time and space. Rather, I will put forward a position for the Palestinian People to consider and adopt that will fully protect your rights under international law.

68. Briefly put, however, you must not sign any Interim Agreement that effectively "regularizes" or "legalizes" any of these Israeli military regulations are clearly illegal under the terms of the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949. Thus, you do not want to sign an Interim Agreement that effectively gives your consent to any of them. Otherwise, if you so consent to any of these Israeli military regulations, then you will effectively be consenting to the continued Israeli belligerent occupation of Palestinian Lands and People for the indefinite future.

69. The critical point is this: right now it is undeniable that Israel is the belligerent occupant of the Palestinian People and Lands. But at least you have never consented to their belligerent occupation. You do not want to sign an Interim Agreement that formally recognizes, consents to, assets to, or acquiesces in, Israeli belligerent occupation in any way, shape, or form. Otherwise, you will never get rid of them. How do you do this?

Applying U.S. Army Field Manual 27-10 (1956)

70. As I have already explained to the lawyers on the Delegation, the better approach to this problem can be found in the customary and conventional international laws of belligerent occupation. Succinctly put, these laws can be found in one publication that is entitled Department of the Army Field Manual FM27-10, The Law of Land Warfare (July 1956), which has been adopted by the United States Department of the Army. This Field Manual was published by the United States government and is still applied by the U.S. Army to its troops in the field as required by the Hague Conventions and the Geneva Conventions. This Field Manual constitutes an official statement by the United States government of what it believes to be the customary and conventional international laws applicable to land warfare, belligerent occupation, and humanitarian law, etc. Both the British government and the Israeli government have issued similar field Manuals to their troops as required by the Hague Conventions and the Geneva Conventions.

71. Moreover, this Field Manual is not simply a statement of narrow self-interest by the United States government. Rather, the Pentagon and this Field Manual written by the late Professor Richard B. Baxter of the Harvard Law School, who at the time was generally recognized to be the world's leading expert on the laws of war. Professor Baxter later became a Judge on the International Court of Justice, but died soon thereafter. So the Field Manual is also a scholarly statement of the rules of international law concerning armed conflict and belligerent occupation that was produced by the world's leading expert on these subjects. Many years ago, I was Professor Baxter's top student on the laws of war at the Harvard Law School.

You Must Terminate the "Effectiveness" of Israeli Military Occupation Under an Interim Agreement

72. We must begin this analysis with an examination of Paragraph 360 of Field Manual 27-10:

360. Maintenance of Occupation

Occupation, to be effective, must be maintained In case the occupant evacuates the district or is driven by the enemy, the occupation ceases. It does not cease, however, if the occupant, after establishing its authority, moves forward against the enemy, leaving a smaller force to administer the affairs of the district. Nor does the existence of a rebellion or the activity of guerilla or para-military units of itself cause the occupation to cease, provided the occupant is effectively displaced for any length of time, its position towards the inhabitants is the same as before occupation. [Emphasis added.]

This Paragraph 360 provides the key that will unlock the door to many of our dilemmas, problems, and traps surrounding the interim Agreement. It is based upon the customary international laws of belligerent occupation, including the Hague Regulations. We will have to do a detailed analysis of its text in order to understand its implications for the Interim Agreement.

73. First, notice the affirmative statement: "Occupation, to be effective, must be maintained." What this means precisely can be found in Paragraph 356 of the Field Manual, which I will discuss later on. Right now, I simply want you to focus upon the second sentence of Paragraph 360: "In case the occupant evacuates the district... , the occupation ceases."

74. What this language means is quite clear namely, to the extent that Israeli occupation forces withdraw from Palestinian Lands--subject to certain qualifications discussed below--then its belligerent occupation of those lands under the Hague Regulation ceases. In other words, belligerent occupation under the Hague Regulations can terminate on a district-by-district basis throughout Palestinian Lands upon the withdrawal of Israeli troops and their redeployment to specified military bases. This would be the normal way in which this should occur pursuant to the international laws of belligerent Occupation.

75. Hence, for this reason, you must not sign an Interim Agreement that effectively recognizes Israel as the belligerent occupant of any Palestinian Lands after a troop withdrawal to certain military bases to any extent. This is what the Israelis want you to do. Rather, what you must do is as follows:

76. You must have the Israelis sign an Interim Agreement that calls for their military forces to withdraw to military bases in Palestinian Lands subject to severe restrictions upon the ability of Israeli military forces to leave those military bases. In other worlds, those military forces must be "effectively" confined to those military bases. The Israelis must not have the right to leave those military bases as organized military forces at their discretion.

77. These requirements are made quite clear by the third sentence of Paragraph 360: "Nor does the existence of a rebellion or the activity of guerilla or para-military units of itself cause the occupation to cease, provided the occupant could at any time it desired assume physical control of any part of the territory." (Emphasis added) In other world, it must be your objective in the negotiating process to guarantee that Israeli military forces confined to these military bases absolutely cannot "at any time it desired assume physical control of any part of the territory."

78. To the contrary, if you sign an Interim Agreement whereby Israeli military forces can do this, then you will have effectively consented to Israel continuing to be belligerent occupant of all Palestinian Lands indefinitely. Furthermore, you would have regularized and legalized their belligerent occupation status in your own Lands by means of your own consent. This would be reprehensible. At least up until now, the Israelis do not have your consent to occupy your People and Lands. You certainly do not want to give them this consent in an Interim Agreement.

79. Hence, you must make sure that when Israeli military forces withdraw to Israeli military bases in occupied Palestinian Lands that they cannot "at any time it desired assume physical control of any part of the territory." Thus, as part of an Interim Agreement, you must cut off the ability of Israeli military forces confined to military bases "for any length of time." And you must ensure that these military forces cannot leave these military bases "at any time it desired" as an organized military force.

80. This latter conclusion is made quite clear by the last sentence of paragraph 360: "If, however, the power of the occupant is effectively displaced for any length of time, its position towards the inhabitants is the same as before occupation." (Emphasis added.) So in any Interim Agreement you must obtain the "effective displacement" of Israeli occupation forces from Palestinian Lands to these military bases "for any length of time." And you must ensure that these military forces cannot leave these military bases "at any time it desired" as an organized military force.

81. In other words, Israeli military forces must be stringently and severely constricted to any military bases remaining in Palestinian Lands as part of an Interim Agreement. In the event that you can accomplish this objective, then Israel's position towards the Palestinian People "is the same as before occupation." Thus, Israeli military occupation would completely terminate in all Palestinian Lands that they withdraw from, provided that they cannot return at will to those Lands. Henceforth, I will refer to these Palestinian Lands from which Israeli troops withdraw as "liberated" Palestinian Lands in comparison to the remaining Israeli military bases which will still remain "occupied" Palestinian Lands.

82. Let us now examine the awesome implications of the last sentence of Paragraph 360: "If, however, the power of the occupant is effectively displaced for any length of time, its position towards the inhabitants is the same as before occupation." (Emphasis added.) In other words, assuming that you can effectively confine Israeli military forces to Israeli military bases remaining in Palestinian Lands as part of an Interim Agreement, then Israeli occupation ceases in all Palestinian Lands from which they withdraw. What this means, then, is that the entire legal, political, and governmental situation as it existed in Palestinian Lands before the 1967 war revives fully as a matter of public international law.

83. Let me repeat that the governmental, legal, and administrative arrangements that existed prior to the 1967 war in Palestinian Lands revives fully and completely as a matter of public international law. Thus, all of the 1967 laws, administrative bodies, municipal councils, courts, etc. would come back into legal existence upon the withdrawal of Israeli military forces to these military bases, provided that the latters' right to resume control is effectively cut off in the Interim Agreement. In other words, the Palestinian People would be effectively governing themselves as a matter of public international law!

How to Cut-off Israeli Control

84. Therefore, it becomes critical for you to cut-off any right to resume control by Israeli military forces in the Interim Agreement. This is made quite clear by the aforementioned Paragraph 356 of the Field Manual:

356. Effectiveness of Occupation

It follows from the definition that belligerent occupation must be both actual and effective, that is, the organized resistance must have been overcome and the force in possession must have taken measures to establish its authority. It is sufficient that the occupying force can, within a reasonable time, send detachments of troops to make its authority felt within the occupied district. It is immaterial whether the authority of the occupant is maintained by fixed garrisons or flying columns, whether by small or large forces, so long as the occupation is effective. The number of troops necessary to maintain effective occupation will depend on various considerations such as the disposition of the inhabitants, the number and density of the population, the nature of the terrain, and similar factors. The mere existence of a fort or defended area within the occupied district, provided the fort or defended area is under attack, does not render the occupation of the remainder of the district ineffective. Similarly, the mere existence of local resistance groups does not render the occupation ineffective.

85. Notice the second sentence of Paragraph 356: "It is sufficient that the occupying force can, within a reasonable time, send detachments of troops to make its authority felt within the occupied district." Hence, in any Interim Agreement, you must have absolute guarantees that Israeli military forces confined to their bases cannot "within a reasonable time, send detachments of troops to make its authority felt within the occupied district." The Israelis will try to achieve that objective in an Interim Agreement. But if you permit them to do this, then Palestinian Lands will remain under Israeli belligerent occupation. And worse yet, the Israelis will have gotten you to consent to your own belligerent military occupation in this Interim Agreement. In other words, as a matter of international law, you will have given up and surrendered your well-established international legal right to resist them. Of course you must not do that!

86. The third sentence of Paragraph 356 makes this conclusion quite clear: "It is immaterial whether the authority of the occupant is maintained by fixed garrisons or flying columns, whether by small or large forces, so long as the occupation is effective." Once again, you must cut-off any right or ability of Israeli military forces confined to military bases in occupied Palestinian Lands to leave those bases as organized military forces per se. You must get them strictly confined to those military bases. Of course, they will have a right to defend themselves in the event that they are attacked. But they must have no right to go into Palestinian Lands at will. Otherwise, under international law, Israel will remain the belligerent occupant of Palestine and you will have consented to your own occupation in the Interim Agreement.

87. Once again, the need to strictly confine Israeli military forces to their military bases is made quite clear by the rest of Paragraph 356 and, in particular, the next-to-last sentence: "The mere existence of a fort or defended area within the occupied district, provided the fort or defended area is under attack, does not render the occupation of the remainder of the district ineffective." The Israelis will argue that an Interim Agreement that calls for their troops' withdrawal to military bases in Palestinian Lands does not terminate their belligerent occupation. The only way to counter this is for you to make sure that those military forces are effectively and securely confined to those military bases.

The Maintenance of Law and Order in Liberated Palestinian Lands

88. In the event that you can accomplish this objective, then the Israeli military occupation of all the rest of the Palestinian Lands will terminate on a district-by-district basis as a matter of international law. At that point, then, all of the pre-1967 laws, institutions, governments, courts, etc. immediately come back to life and the Palestinian People will be in the process of effectively governing themselves by means of their pre-1967 institutions and laws, as well as by means of the Palestinian Interim Self-Government Authority (PISGA) set up by the Interim Agreement. That is the objective you want to accomplish. That will solve most of your problems with respect to jurisdiction, laws, and, as we shall see, settlers and settlements. But, once again, all this depends upon you confining those Israeli military forces to those military bases effectively, securely, and strictly.

89. The Israelis will argue that "law and order" must be maintained in liberated Palestinian Lands. Of course, that is a correct conclusion. The Palestinian police force will have to maintain law and order in the liberated Palestinian Lands. But the source of their authority to maintain law and order will be based upon the pre-1967 legal system that was in existence before the Israeli military occupation. You must not expressly agree in an Interim Agreement that the basis of authority for the Palestinian police force is Israel's alleged authority to maintain law and order as a belligerent occupant. Under my scenario outlined above, Israel will no longer be the belligerent occupant in liberated Palestinian Lands. Your authority to maintain law and order by means of a Palestinian police force must come from the pre-1967 laws and the PISGA, and not to any extent from the Israelis. Therefore, you must not agree to any extent that the authority of the Palestinian police force, let alone of the PISGA, is subject to that of the Israeli army or government.

You Must Make Sure That the PISGA Is Not a Puppet Government Under International Law

90. What the Israelis are trying to do here is to set up the PISGA as the civilian arm of the Israeli military occupation forces. They call it the Palestine Administrative Council (PAC). But it is clear from an examination of the documents that they contemplate the PAC to become the civilian administrative arm of their military occupation forces in Palestinian Lands. Of course, you must prevent this from happening in the Interim Agreement. Otherwise, the Israelis can appropriately claim that PAC or PISGA is nothing more a "puppet government" under international law. This is made quite clear by Paragraph 368 of the Field Manual:

368. Nature of Government

It is immaterial whether the government over an enemy's territory consists in a military or civil or mixed administration. Its character is the same and the source of its authority the same. It is a government imposed by force, and the legality of its acts is determined by the law of war.

91. This is exactly what the Israelis what you to consent to in the Interim Agreement. They want to set up a PAC or a PISGA that will be the civilian administrative arm of their military occupation authorities. Its name will be irrelevant to them.

92. From the Israeli perspective, then, they want to set up a local government in Palestinian Lands, (whether PISGA or PAC) that is effectively a "puppet government" of the Israeli military occupation forces. This they can do under international law provided they adhere to the laws of war, which they will not do in any event. This conclusion is made quite clear by Paragraph 366 of the Field Manual:

366. Local Government Under Duress and Puppet Governments

The restrictions placed upon the authority of a belligerent government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which would be unlawful if performed directly by the occupant. Acts induced or compelled by the occupants are nonetheless its acts.

93. Nevertheless, this is precisely what the Israelis want to do. They want to establish a Palestinian "puppet government" that will repress the Palestinian People in order to uphold the Interim Agreement. The Israelis will then claim that since the Palestinian People have consented to this puppet government established by the Interim Agreement, that such repression does not violate the laws of war or the Fourth Geneva Convention because the Palestinians are doing it to themselves.

94. This is the same way the Nazis ruled by means of puppet governments throughout the European countries they took over before the Second World War (e.g., Austria and Czechoslovakia) as well as during the war (e.g., Quisling in Norway). Here, the Israelis are trying to se up PISGA/PAC to become the "quislings" of the Palestinian People. And so far the Americans seem to be backing them up.

95. But under international law, it is your personal responsibility to make sure that this does not happen: after the war, Quisling was convicted of high treason and shot. Thus, it is your obligation to make sure that the Interim Agreement does not recognize PISGA as the civilian administrative arm of the Israeli occupational forces. Otherwise, PISGA will be nothing more than a "puppet government" under international law. You will be agreeing to enslave you own People and then to police this enslavement with you own police force. There is no point in signing such an Interim Agreement.

YOU MUST AVOID AN INTERIM AGREEMENT THAT WILL SET OFF A CIVIL WAR AMONG THE PALESTINIAN PEOPLE

96. Indeed, if you were to agree to such an Interim Agreement, then it would probably set off a civil war among the Palestinian People between those for PISGA/PAC enslavement versus those against PISGA/PAC enslavement. More Palestinians will kill Palestinians than Israelis. But if Palestinians are to die, then it should be at the hands of the Israelis, not Palestinians. Let the Israelis do their own dirty work. Palestinians should not be doing Israel's dirty work for it.

97. On these points I speak from the experience of my own People--the Irish. We have been fighting the British Empire for the past 800 years. We have been subjected to colonialism, occupation, genocide, apartheid, extermination, racism, settlers, etc. for over 800 years. And now, after 800 years of struggle, we have finally come to the verge of success in expelling the British Empire from our Homeland.

98. Nevertheless, back in 1921 one segment of our National Liberation Movement--the Irish Republican Army (IRA)--decided to sign a Treaty of Partition with the British Empire that would allow the British Empire to remain as the belligerent occupant of six of our northeast counties. This terrible decision set off a civil war among the pro-treaty and anti-treaty forces of the Irish Republican Army, and among the pro-treaty and anti-treaty portions of the Irish People. More Irish killed Irish than British. Effectively, the British Empire got a portion of our People to do their dirty work for them.

99. The Palestinian People must not fall into the same trap that is being set for you by the Israelis and their American friends. You must not sign an Interim Agreement that will set off a civil war among your own People between pro-treaty and anti-treaty forces. Palestinians will be slaughtering each other with abandon while the Israelis stand back and watch. And after you have all killed each other off, then the Israelis will move in and steal the rest of your Land irrespective of whatever this so-called Interim Agreement says.

100. A Palestinian civil war and self-extermination is precisely what the Israelis have in mind for you. This is the Israeli "final solution" to the Palestinian People, which is almost identical to the "final solution" that Hitler had in mind for the Jewish People. Hence, you must not fall into this trap that is being set for you by the Israelis. From an historical perspective, it is far more important to maintain the unity, cohesion, and integrity of the Palestinian People in order to resist Israeli occupation and repression.

THERE MUST BE SOME UNDERSTANDING ON A FINAL SETTLEMENT AS PART OF AN INTERIM AGREEMENT

101. Let us return to the scenario I outlined above: Namely, Israeli military forces withdraw to military bases in Palestinian Lands where they are strictly confined to their bases. And we must also make sure that any Interim

Agreement you sign does not expressly recognize in any way the "right" of Israel to remain a belligerent occupant in Palestinian Lands; or that the authority of PISGA or the Palestinian police force come from the Israeli belligerent occupation to any extent. Assuming those conditions, then how might you go about dealing with the questions of jurisdiction, laws, settlers, and settlements? The rest of this Memorandum will attempt to deal with those difficult subjects from a Palestinian perspective. But you must understand that there is absolutely no precedent that is favorable to the Palestinian People in the modem history of international law and politics for the success of such an Interim Agreement. Rather, most of the precedents we know of have been failures for the occupied Peoples and Lands. Indeed, this is even the conclusion of an official Department of State Study on the history of so-called autonomy and international law.

102. After the Camp David Accords were signed, and in explicit reference thereto, the Department of State enters into a contract with two professors of law to examine the history of autonomy under international law. This study was later published by the Procedural Aspects of International Law Institute in 1980 by Professors Hannum and Lillich under the title The Theory and Practice of Governmental Autonomy. The findings of this official State Department Study were summarized in an article by Professors Hannum and Lillich that was published soon thereafter in an article in The American Journal of International Law, entitled "The Concept of Autonomy In International Law." I will not bother to go through this entire Department of State Report here. Rather, I simply wish to quote at this time the following conclusions of the authors: ". . . the present survey offers no examples of the successful implementation of a transitional regime without prior agreement on the general nature of the permanent regime to follo w." (Emphasis Added.) See Paragraph 74 of the American Journal of International Law 858-89, at 865 (1980). And yet, this is exactly what the Americans and the Israelis are asking you to do!

103. Both the Americans and the Israelis know on the basis of the State Department's own study that historically there has never been a successful transitional arrangement unless there is a prior agreement upon the ultimate outcome of the process. Nevertheless, both the Americans and the Israelis want you to go forward with this transitional agreement without any understanding on the final outcome. The reason why is quite obvious: Both the Americans and the Israelis know full well that if you go along the path of this transitional agreement without any assurances on the final outcome, that the transitional agreement will fail and the Israelis will remain in full control of your People and your Land indefinitely.

104. The Israelis and the Americans are not dumb. They know exactly what they are doing--based upon their own Study. They are trying to get you to agree to an Interim Agreement without any understanding on the final outcome in the hope and expectation that this transitional agreement will fail and nevertheless that thereafter you will have consented to your own enslavement by means of the transitional agreement.

105. You must point this out to the Americans: How can they expect you to enter into a transitional agreement without any understanding on the final settlement, when their own Study quite definitively [indicates] that under those circumstances, the transitional agreement will fail? The Americans are not acting in good faith here. You must not trust their word. They are trying to entice you down the garden path of autonomy set forth in Camp David whereby your People will be enslaved for the rest of time. You must make it clear to both the Americans and the Israelis that you know exactly what is going on here and that you will not stand for it. Indeed, even the American's own Study makes this quite clear. You must use this State Department Study to your own advantage.

THE PISGA MUST HAVE INDEPENDENT LEGISLATIVE AUTHORITY AND POWERS

106. Assuming that you can accomplish the aforementioned objectives, this analysis then gets to the legal and administrative situation in Palestinian Lands after Israeli forces have withdrawn to military bases to which they have been effectively and securely confined. What happens then? First, the Israeli military occupation dissolves as a matter of international law because it is no longer effective, except in the remaining military bases. Hence, the Israeli military regulations mean nothing in liberated Palestinian Lands. They become null and void, and die and dissolve of their own accord under the laws of war. This result would not be so, however, for the remaining Israeli military bases which remain under the international laws of belligerent occupation.

107. So under the scenario outlined above, all of the pre-1967 Palestinian laws, institutions, councils, administrative bodies, courts, etc. revive upon the withdrawal of Israeli military forces to their military bases, except for those bases. And law and order is maintained in these liberated Palestinian Lands by means of a Palestinian police force that is not subject to the control of the Israeli Army, but rather to the control of the pre-1967 laws and the PISGA, which in turn must not be the civilian administrative arm of the Israeli occupation forces. Hence, all of the Israeli military regulations will no longer apply in liberated Palestinian Lands and you will be effectively governing yourselves under your own pre-1967 laws and institutions, together with the PISGA.

108. Admittedly, these pre-1967 laws are 25 years old and some of them will need to be amended, revised, abolished, altered, updated, etc. That, then, will become the function of the PISGA, which must have independent legislative authority and powers to do this as part of any Interim Agreement and during this transitional phase that will probably become the Final Settlement in any event. Until PISGA enacts this new legislation, however, the pre-1967 laws, institutions, and courts will remain in existence and function as best as possible under the circumstances. There is an important point of principle here that you must insist upon: Namely, that your People are governed by the pre-1967 laws and institutions and not to any extent by Israeli laws and institutions--at least until PISGA can get organized and functioning.

109. Hence, during this transitional phase, and until the PISGA gets operating, all of your pre-1967 laws and courts will determine civil and criminal matters for all people living in liberated Palestinian Lands. Nevertheless, clearly these laws will have to be brought into harmony with the current situation on the ground in liberated Palestinian Lands. That is precisely why PISGA must have independent legislative authority and powers.

110. The Israelis have already conceded that there was "legislation" in effect prior to 1967. Therefore, PISGA must have independent legislative authority and powers to enact new laws so as to amend, alter, abolish, revise, and update, the preexisting legislation in light of 25 years of history and occupation. Therefore, you must insist that PISGA have independent legislative authority and powers. Otherwise, the Israeli military regulations will remain in effect whether de facto or de jure, and PISGA will become nothing more than the civilian administrative arm of the Israeli occupation forces and therefore constitute a puppet government under international law.

111. Hence it is critical that PISGA have independent legislative authority and powers to enact laws. You cannot allow the Israelis to perform these tasks to any extent. Indeed, on this point even the State Department's own Study that I mentioned above agrees with me! It concludes as follows as to one basic requirement for "a fully autonomous territory": "There should exist a locally-elected body with some independent legislative power, although the extent of the body's competence will be limited by a constituent document..." (Emphasis added.)

112. Therefore, in your discussions with the Americans and with the Israelis, you must insist that PISGA have "independent legislative power." Even their own State Department Study says this! How can the Americans offer you anything less? How can the Americans ask you to accept anything less?

113. And yet that is exactly what the Israelis and the Americans are asking you to accept. They are asking you to accept a PAC or a PISGA that has no independent legislative powers whatsoever. This is precisely what the Begin government sought in the Camp David Accords and during the course of the Linowitz negotiations, to which you were not a party and are therefore not bound. Once again, you must emphatically reject the Camp David approach to these negotiations, whether as interpreted by Begin or Carter.

THE AMERICANS ARE TRYING TO DECEIVE YOU ON THE PISGA

114. It is also clear to me that the Americans are trying to deceive you on the question of independent legislative authority and powers for PISGA. The proof of this American deceit can be found in the statements made by Assistant Secretary of State Ed Djerejian in the aforementioned document entitled Minutes of Meeting at US Department of State, Wednesday October 21, 1992, at page 4. Here I will have to analyze this paragraph on a line-by line basis to show you how deceptive Djerejian is being and why he is really following the Israeli Camp David Approach to these negotiations.

115. The critical language starts with the following comment by Djerejian: "We have heard that elected authority, and we understand the elected authority would be called an executive council, rather than an administrative council." From the perspective of a licensed and practicing American lawyer and a law professor, this language constitutes a lot of double-talk and baloney.

116. In the Anglo-American common law system of government, there is no basic distinction between executive powers and administrative powers. They are both essentially the same thing. To be sure, executive powers are at the next higher governmental level than administrative powers. Executive powers determine administrative powers; and thus administrative powers are subordinate to executive powers. But executive powers, let alone administrative powers, are not legislative powers. Indeed, legislative powers determine both executive powers and administrative powers. Thus, both executive powers and administrative powers are subordinate to legislative powers.

117. Let me give you one example drawn from the laws and institutions of the United States of America. Many years ago, I was a practicing tax lawyer, and am still licensed to practice tax law before the United States Tax Court and the United States Court of Claims. So my analogy will be drawn from the U.S. taxation system in order to illustrate the Americans' deception here on PISGA.

118. The Internal Revenue Service is an administrative agency within the Department of Treasury, which in turn is part of the Executive Branch of federal government of the United States of America. Hence, the Internal Revenue Service is the administrative authority with administrative powers. It is part of the Department of Treasury, which is the executive authority with executive powers that controls the I.R.S. But the Department of Treasury and the Internal Revenue Service have no independent legislative authority or powers to enact legislation or laws for the purpose of collecting taxes from the American People.

119. Under the term of the United States Constitution, that power to enact the tax laws resides exclusively in both houses of the United States Congress together. The Department of Treasury and the Internal Revenue Service are supposed to do what Congress tells them to do when it comes to collecting taxes. They have no independent legal authority or powers in their own right. Rather, when it comes to the collection of taxes, their powers and authority are delegated powers alone--delegated by the United States Congress.

120. Hence, it is no concession that Djerejian has made here. By offering to transform the PISGA/PAC from an administrative council into an executive council, all he has offered to do is to increase your stature from the I.R.S. to the Department of Treasury. PISGA will still not have any independent legislative authority or powers whatsoever.

121. According to Djerejian's "strategic vision", then, as a matter of administrative law, PISGA will become nothing more than the executive arm or the administrative arm of the Israeli military occupation forces. In other words, PISGA will become the civil administration or "puppet government" for the Israeli army in charge of occupying your own People. Of course, you do not want this to happen. But unless the PISGA has independent legislative powers, that is exactly what it will become. And the Israelis and the Americans know it.

122. The Americans are trying to deceive you here by drawing some false distinction between administrative power and executive powers, there is no basic, fundamental, constitutional distinction between administrative powers and executive powers. In the United States of America, administrative bodies are set up under the control of and are subordinate to executive bodies. That is all. But the authority and powers of American executive bodies comes from the legislative body, which in the United States resides in Congress or the Constitution itself.

123. Thus, PISGA's authority must come from somewhere: either from the Israeli military occupation forces; or from the Palestinian People and Land. Therefore, you must make sure that in the Interim Agreement, the source of authority for PISGA comes (1) from general elections by the Palestinian People living on their Land and (2) with independent legislative authority and power form PISGA over Palestinian Lands and the People living therein. If not, then PISGA's authority comes from the Israeli military occupation forces, which in turn means that PISGA would be nothing more than an administrative branch or an executive branch of the Israeli occupying forces. The conclusion is inexorable that without independent legislative authority and powers, PISGA will be nothing more than a "puppet government" under international law.

124. Let me continue with the Djerejian statement and show you how knowingly deceptive and misleading he really is: "It could have the power to enact decrees and regulations and edicts which carry the force of law, and we think...." Once again, this carefully chosen language is purposely deceptive and misleading. Of course, the Internal Revenue Service has the "power to enact decrees and regulations and edicts which carry the force of law..." But that does not mean that the Internal Revenue Service has any independent legislative authority or powers whatsoever to actually enact the laws themselves. The I.R.S. does not. Rather, the ability of the I.R.S. to enact decrees, regulations and edicts "which carry the force of law" is based upon the authority and powers that have been delegated to it by the United States Congress. Only the U.S. Congress can actually enact the tax laws themselves.

125. Likewise, the Department of Treasury has "the power to enact decrees, and regulations and edicts which carry the force of law...." But it has no independent legislative authority or powers to enact the laws themselves. Rather, the laws are enacted by Congress, which in turn gives the Department of Treasury the executive authority to "enact decrees and regulations and edicts" to carry out the tax laws that Congress has enacted. On the basis of this Congressional authority and laws, the Department of the Treasury then directs the I.R.S. to actually collect the taxes themselves. The I.R.S., then, is the administrative agency for the collection of taxes, which is a part of and subordinate to the Department of Treasury, which is the executive agency for this and other purposes. Ultimate authority and power over U.S. tax policy still remain in the hands of Congress under the terms of the U.S. Constitution.

126. It is clear to me as an American lawyer that Djerejian is trying to deceive you and confuse you. Djerejian gives away his outright fraud and deception in the next part of this sentence when he says: "...and we think that you should not confuse the legislative function and the issue of legislative authority, and therefore throw out a good idea." This is total nonsense! This is a deceptive distinction without a difference.

127. Under the American practice, without legislative authority, there is no such thing as a legislative function. Without legislative authority, then all you have is administrative function or executive function. Enacting decrees, regulations and edicts is an administrative and executive function. Legislative bodies enact laws--not decrees, regulations or edicts. Only administrative and executive agencies enact decrees, regulations and edicts. And that is all which they are empowered to enact.

128. These are well-known distinctions here in the United States that I am sure Djerejian and his legal advisers fully comprehend. Once again, they are lying to you and trying to deceive you in order to get you to accept the Israeli/Camp David approach to these negotiations. You must not fall into their trap. You cannot trust these Americans. They do not have your best interest at heart, no matter what they tell you to your face. They are acting here hand-in-glove with the Israelis, and promoting the Israeli agenda and the Camp David approach to these negotiations.

129. Once again, you must insist that PISGA have independent legislative authority and powers to enact laws. Even the State Department's own Study on "autonomy" say this, as indicated above. Otherwise, PISGA will be nothing more than an executive/administrative arm of the Israeli Army and therefore a puppet government.

130. Let me continue with the Djerejian statement and show you how purposefully deceptive he really is: "We understand it is reasonable that Palestinians insist they must have authority to enact decrees which carry the force of law." Once again, this statement is nonsense and he knows it. The Palestinians must insist that they have independent legislative authority and powers to enact laws which carry the force of law, not decrees. You must insist that the PISGA have independent legislative authority and powers to enact laws. Otherwise, the PISGA will remain an adjunct of the Israeli Army and military occupation forces and thus a puppet government.

131. Using this language, Djerejian is trying to get you to agree that PISGA will have authority "to enact decrees which carry the force of law," but which are not laws in their own right. Thus, he clearly wants you to agree to have PISGA become nothing more than an administrative arm or executive branch of the Israeli occupation forces. Because if PISGA has no independent legislative authority or powers, then its authority and power must come from somewhere: The Israeli Ministry of Defense and Army. If so, then PISGA will be nothing more than its administrative branch or executive organ--in other words, a puppet government.

132. The final sentence by Djerejian I wish to analyze here is as follows: "It is not reasonable for Palestinians to insist on independent legislative right to overturn agreements yet to be negotiated, or to legislate issues that could change the agreements unilaterally." Of course that is not what you want to do. And Djerejian is purposely misrepresenting what you want to do!

The Need For Basic Law

133. You must insist that PISGA have independent legislative authority and powers to enact laws. But of course you can also agree that the independent legislative powers of PISGA would be subject to a Basic Law that would prohibit PISGA from doing certain things. For example, in this Basic Law, you could agree that PISGA would not declare an independent Palestinian State. Of course that is fine because the P.N.C. has already declared an independent Palestinian State in 1988; so PISGA does not have to declare the State a second time. Likewise, you could also agree that in the Basic Law, PISGA would have no authority to "overturn" or "change" the Interim Agreement itself.

134. Moreover, even the State Department's own Study on this matter has reached the exact same conclusion that I am recommending: "There should exist a locally-elected body with some independent legislative power, although the extent of the body's competence will be limited by a constituent document." (Emphasis added.) That constituent document would be a Basic Law. It should not be a formal Constitution until the Palestinian People are able to exercise full sovereign powers within their own Lands.

135. But as I understand it, you are fully willing to limit the powers of PISGA by a Basic Law that contains some basic restrictions on its independent legislative powers. This is a fully reasonable position to take. Indeed, this position is fully supported by the State Department's own Study. And Djerejian and his lawyers and advisers know it!

136. Hence, these Americans are trying to get you to agree to less than what their own State Department Report recommended. In other words, they are trying to get you to agree to the Israeli position on a PISGA that is nothing more than a PAC, which is nothing more than an administrative agency or executive council under the control of the Israeli Ministry of Defense or Army, which in turn is nothing more than a puppet government. Thus, it is clear to me that both the Americans and the Israelis want PISGA/PAC to be nothing more than the civilian administrators of the Israeli occupation forces.

137. But you must not agree to occupy your own People. Once again, let the Israelis do their own dirty work for themselves. You must maintain the unity, cohesion, and integrity of the Palestinian People in order to resist Israeli occupation an oppression at all costs. If the Israelis do not want peace with justice at this time, then so be it.

138. Indeed, in reading through the transcript of the "Minutes" of this meeting of 21 October 1992, it seems clear to me that all of the Americans there are operating within the framework of the Camp David Accords, though they do not use the name of Camp David. I see no point in this Memorandum in going through the "Minutes" on a line-by-line basis pointing this out. But it is all very clear to me that each and every American in there views this so-called peace process in terms of the Camp David Accords. In other words, they are working hand-in-glove with the Israelis to get you to agree to the Camp David Accords by calling it something else.

You Must Take Your Case Directly to Clinton

139. Moreover, most of the Americans at this meeting are Jewish. For this reason, they see this entire process through Israeli eyes. They are psychologically incapable of seeing this process through the eyes of the Palestinian People. They are not honest brokers.

The PISGA's Independent Legislative Authority and Powers Will Become the Progenitor of Palestinian Sovereignty

140. There is one definitive reason why you must insist upon independent legislative authority and powers for PISGA even subject to a Basic Law. Both the Israelis and the Americans are trying to put your People and Land into the straitjacket of Camp David forever. There is only one way around this. Namely, you must build into any Interim Agreement a mechanism whereby PISGA can ripen into internationally recognized legal and political sovereignty over the People and Land of Palestine. In other words, you must build your State from the bottom up. The essence of sovereignty is a People living on their Land and exercising control over Themselves and their Land. But this can only be done if the PISGA has independent legislative authority and powers to enact laws over your People and their Lands.

141. In the event that PISGA has independent legislative authority and powers to enact laws during the "life" of the Interim Agreement, then PISGA will have de facto international legal sovereignty over the Palestinian People and Lands. It will act as if it were the sovereign legislative body even if it is not actually so as of yet. By enacting laws, PISGA will be engaging in sovereign functions. It will mean that the Palestinian People control their own Land and their own People. By doing this, PISGA will be able, then, to build up the Palestinian State from the bottom up--that is, from the Land and the People.

142. As a matter of international law and politics, international legal sovereignty will only come from the Palestinian People and the Palestinian Land. So the Palestinian State must be built from the bottom up. The Israelis want to do the reverse: They want to set up a PISGA/PAC whose authority and powers come from the Israeli Army and this to prevent the establishment of any independent Palestinian legal sovereignty in Palestinian Lands. So the only way to avoid that result is to demand that PISGA must have independent legislative authority and powers to enact laws. And of course, there must be a system of general national elections by the Palestinian People to choose members of PISGA.

143. If you can accomplish these objectives, then you will have the essence of sovereignty in you own hands. A Palestinian State will become an inevitability no matter how long the Interim Agreement might last and even if you never get to that so-called Final Settlement. Once again, for reasons previously explained, I do not believe you will ever see that so-called Final Settlement.

144. For this reason, then, you must build into the Interim Agreement the mechanism by which Palestinian sovereignty will ripen with time no matter what happens. And the only way this can be done is to insist upon a PISGA with independent legislative authority and powers to enact laws applicable to all People and Lands under its jurisdiction. This would require PISGA control over all liberated Palestinian lands and the People living there, but excluding any remaining Israeli military bases established pursuant to the Interim Agreement. These latter comments, then, bring us directly to the difficult question of the treatment of Israeli settlers and Israeli settlements under any Interim Agreement. I will now address those complicated issues.

THERE MUST BE NO ISRAELI "SETTLERS" PER SE UNDER THE INTERIM AGREEMENT!

145. The Israelis would like the Palestinians to sign an Interim Agreement that would "regularize" or "legalize" the presence of Israeli settlers and settlements in Palestinian Lands on a de facto basis. Of course, you must not do that. Indeed, you do not even have the legal power to do that under articles 7 and 8 of the Fourth Geneva Convention as indicated above.

146. Nevertheless, what the Israelis want to do here is to get you to sign an Interim Agreement that effectively will "regularize" or "legalize" the continued presence of Israeli settlers and settlements in Palestinian Lands. The Israelis will then claim that the conclusion of the Interim Agreement, together with a peace treaty with Jordan, has terminated the applicability of the Fourth Geneva Convention. Therefore, the Israelis will argue, any settlers and settlements remaining in Palestinian Lands after the Interim Agreement are valid and duly recognized by the Palestinian People themselves. Once again, however, you do not want to do this in an Interim Agreement or otherwise. So how do you square the circle here? We must go back to the scenario that I outlined above:

147. Following that scenario, all of the pre-1967 laws and institutions would revive in full force and effects in the liberated Palestinian Lands. As I understand it, there are provisions within these pre-1967 laws that regulate the presence of foreigners as such within Palestinian Lands. Hence, any Israelis who continue to insist to live in liberated Palestinian Lands after the conclusion of the Interim Agreement must be subject to the pre-1967 laws for the regulation of foreigners.

148. In other words, the Interim Agreement can be drafted in such a way as to make it clear that the settlers will not be thrown out. On the other hand, the Interim Agreement must not expressly permit settlers to remain because this would violate the Fourth Geneva Convention. Hence, once again, the absolute need to preserve your rights under the Fourth Geneva Convention as indicated above.

149. Thus, with regard to Israeli settlers, there are three basic requirements of any Interim Agreement: (1) The Interim Agreement cannot expressly permit by name the continued presence of Israeli settlers in liberated Palestinian Lands; (2) nevertheless, the Interim Agreement can be drafted in a neutral way to make it clear that non-Palestinians (i.e., foreigners) currently living in Palestinian Lands can continue to live there as residents; (3) but that any foreigners choosing to live in liberated Palestinian Lands must be subject to the pre-1967 laws and the PISGA. The net result here would be that Israelis currently living in settlements would be able to continue to live in the liberated Palestinian lands provided they are willing to obey the pre-1967 laws and whatever laws are enacted by PISGA, subject to any protections for them set forth in a Basic Law.

150. On this matter, of course, the Israeli government would want an assurance that Israeli citizens living in liberated Palestinian Lands would not be discriminated against. That would be fine. In the Palestinian Declaration of Independence of 1988 and the Political Communique attached thereto, the Palestine National Council made it quite clear that it did not want to discriminate against anyone for any reason.

151. Therefore, one way this matter could be handled would be to have the aforementioned Basic Law include within itself the Universal Declaration of Human Rights of 1948. In other words, PISGA would have independent legislative authority and powers to enact laws, but it could not enact any law that contravened the Universal Declaration of Human Rights. The incorporation of the Universal Declaration into the Basic Law would protect both Palestinians and Israelis living in the liberated Palestinian Lands. But it would not protect Israelis per se or by that name. It would be a piece of neutral legislation that would protect everyone as human beings and irrespective of nationality. In this manner, the Israelis would not be able to argue that you have somehow regularized or legalized the presence of Israeli settlers in liberated Palestinian Lands under an Interim Agreement.

152. Of course, I am not an expert on the laws that existed in Palestinian Lands prior to 1967. But I have been told by Palestinian lawyer that these laws do not permit foreigners to become permanent residents. If that is the case, then in order to make it possible for Israelis to live in liberated Palestinian Lands for a period of time, the PISGA could enact legislation that would provide that non-Palestinians living in land subject to its jurisdiction would have the right to continue to live there for a guaranteed five years (i.e., the proposed term of the Interim Agreement), provided that they obey Palestinian laws like everyone else, but subject to the protections established by the Universal Declaration of Human Rights as incorporated into the Basic Law. A five-year deadline in this PISGA legislation would make it quite clear that in the event the Israeli government stalled on the so-called Final Settlement, then all foreigners (i.e., Israelis) living in liberated Palestinian lands would have to go home .

There Must Be No Israeli Settlers Per Se Under a Final Settlement!

153. In regard to these settlers, you could also indicate to the Israelis at this time that as part of the Final Settlement, PISGA would be prepared to enact legislation that would give foreigners currently living in occupied Palestinian Lands the right of permanent resident alien status. In the United States, this means a foreigner who has a so-called "green card." Indeed, this PISGA "green card" legislation could be modeled upon the American system for permanent resident alien status.

154. Under that body of U.S. law, permanent resident aliens have almost all the rights of American citizens except, principally, the rights to vote and to hold public office. There are some other incidental restrictions that are not relevant here--e.g.. some states prevent aliens from becoming public school teachers. But the bottom line is that permanent resident aliens in the United States are treated almost like citizens for all practical purposes.

155. Furthermore, you could even indicate now that as part of a Final Settlement, the PISGA would be prepared to enact legislation that would offer Palestinian citizenship to foreigners living in liberated Palestinian Lands, and without a requirement that such foreigners renounce whatever other citizenship they might already have. Thus, Israelis living within liberated Palestinian Lands could become dual nationals and, in that event, would have all the rights of Palestinian citizens living in the Palestinian State.

156. Quite obviously, I do not have the time here to go through all of the possible implications and ramifications of this proposal. But I simply wish to indicate that it is premised upon the assumption that PISGA must have independent legislative authority and powers in the first place. I must also assume that both the Israelis and the Americans are prepared to negotiate in good faith for a solution on the settlers. This is not apparent right now.

157. Finally, let me repeat that when it comes to the actual drafting of the Interim Agreement itself, the language must be carefully written in such a way so that you do not expressly regularize or legalize the presence of Israeli settlers per se in liberated Palestinian Lands. Rather, the language of the Interim Agreement must be neutral and you must preserve your rights in one fashion or another under the Fourth Geneva Convention as indicated above. Otherwise, once again, the Israelis will claim that the Interim Agreement has regularized or legalized the presence of Israeli settlers and settlement in liberated Palestinian Lands. Let us now turn to the question of how an Interim Agreement might deal with Israeli settlements in a manner consistent with international law.

THERE MUST BE NO ISRAELI "SETTLEMENT" PER SE UNDER THE INTERIM AGREEMENT!

158. According to the above scenario, we will have a certain number of Israeli citizens living in liberated Palestinian Lands but subject to Palestinian laws under the Interim Agreement. I doubt very seriously that this number will be too many people. But it could be some. You will need to reach some type of tacit understanding as to the maximum number permissible.

159. Likewise, a similar tacit understanding on the maximum number in a Final Settlement would have to be agreed upon, thought not expressly recognized in the documents themselves. And in any event, all of these foreigners living in liberated Palestinian lands would be subject to Palestinian laws just like everyone else. Indeed, this is the way it is with foreigners legally living in any other state in the world community today. The same should be true for Israelis living in liberated Palestinian Lands, whether during the Interim Agreement or after the Final Settlement.

160. This brings the analysis to the question of where these Israeli nationals can live. Well, of course they should be able to live anywhere within liberated Palestinian Lands that is subject to the jurisdiction and laws of the PISGA without discrimination. In other words, as part of an Interim Agreement these Israeli nationals would not be forced to move from where they are currently living today. Undoubtedly, a large number of these Israeli nationals will choose to return to Israel. On the other hand, undoubtedly, some will probably decide to stay where they are, especially the religious fanatics.

161. But under the arrangements sketched out above, there will be no such thing recognized as an Israeli "settlement" in liberated Palestinian Lands in the Interim Agreement itself. All liberated Palestinian lands and all people living therein must be subject to the legislative authority and powers of the PISGA and the Basic Law. The only land and people still under the control of the Israeli Army as the belligerent occupant of the military bases to which they have withdrawn their military forces as part of an Interim Agreement. This brings the analysis to the international legal regime that must apply to those military bases and their personnel under the international laws of belligerent occupation.

ISRAELI MILITARY BASES IN LIBERATED PALESTINIAN LANDS

162. Under the scenario described above, I have called for the withdrawal of Israeli military forces to military bases that are located in Palestinian Lands. These Israeli military forces will remain under the international laws of belligerent occupation. On the other hand, the Interim Agreement must not expressly consent to their presence in haec verba. And you must preserve your claims under Resolutions 242 and 338 as indicated above. Otherwise, those Israeli military forces will stay in those military bases forever. You must make it clear in some fashion or another that the Interim Agreement does not regularize or legalize the continued presence of Israeli military forces in these military bases at all, and that eventually they are required to leave even if a Final Settlement is not concluded.

163. I now wish to deal with the question of the legal regime that applies to the Israelis living on those military bases. The Black-letter rule on this subject can be found in Paragraph 374 of the aforementioned US. Army Field Manual 27-10 (1956):

374. Immunity of Occupation Personnel From Local Law

Military and civilian personnel of the occupying forces and occupation administration and persons accompanying them are not subject to the local law or to the jurisdiction of the local courts of the occupied territory unless expressly made subject thereto by a competent officer to the occupying forces or occupation administration. The occupant should see to it that an appropriate system of substantive law applies to such persons and that tribunals are in existence to deal with civil litigation to which they are parties and with offenses committed by them.

164. Thus, all Israelis living on these military bases are subject to Israeli Military control and jurisdiction. Under no circumstances must you recognize in an Interim Agreement the "right" of the Israeli government to apply any of its civilian laws to civilians living on these military bases. On the other hand, an Interim Agreement does not necessarily have to forbid the Israelis from applying their civilian laws to civilians living on these military bases. Under the laws of war, these laws will be presumed to be part of the military occupation regime no matter what the Israelis call them. The critical point is that you must not consent to the application of Israeli civilian laws to any civilians living on these military bases.

165. As you can see clearly from the first sentence of paragraph 374, the laws of war would permit "civilian personnel of the occupying forces and occupation administration and persons accompanying them" to live on these Israeli military bases. In other words, it would be permissible for Israeli civilians to live on these military bases provided that they are part of or attached to the Israeli military forces or "occupation administration." Hence, the Israelis would be entitled to maintain not only military forces in these military bases, but also an "occupation administration" consisting in part of civilian personnel together with their families.

166. To be sure, under no circumstances can you agree that this "occupation administration" on these Israeli military bases has any jurisdiction over any liberated Palestinian lands or people living therein. But under the rubric of "occupation administration" as carefully defined, it would be permissible for you to accept the presence of a certain number of Israeli civilian personnel of the occupying forces [or] occupation administration." In addition, the first sentence of Paragraph 374 also seems to contemplate that such "civilian personnel" would be entitled to have on these military bases "persons accompanying them" -- in other words, their families.

167. Thus it would be possible to set up an arrangement whereby you could accept the presence of a certain number of Israeli civilians and their family defendants on these Israeli military bases as part of the Interim Agreement. And of course, you would need to reach some type of tacit understanding as to the maximum number of "civilian personnel" and "persons accompanying them" that would remain in these Israeli military bases. You should not agree in writing to a certain number of civilians. But various mechanisms can be worked out to settle upon a mutually satisfactory number.

168. The soldiers and civilians living on these military bases would be subject to the military laws of Israel. The next question then becomes: What laws apply to these Israelis--whether military or civilian--as they transit from Israel to and from these military bases located in liberated Palestinian Lands. No point would be served here by going through all the permutations and combinations of overlapping jurisdictions between PISGA and the Israeli army concerning the Israeli military and civilian personnel and their dependents living on these military bases when they travel to and from Israel. This matter will have to be thought through very carefully.

169. I do not have the time in this brief Memorandum to explore this matter in detail. Rather, what needs to be done is for one of your experts to look into the transit agreements that were set up for Allied Forces in the City of Berlin before the reunification of that city as part of the overall treaty for the reunification of Germany. Up until the time of that treaty, the City of Berlin was occupied territory subject to the exclusive sovereignty and control as belligerent occupants of the United States, Great Britain, France, and the Soviet Union.

170. Hence, the Berlin situation would not be precisely analogous because under international law, the four Great Powers actually exercised legal sovereignty over Berlin on a shared basis. By comparison, you must not accept any implication whatsoever that Israel has any sovereign rights or claims to these military bases. Though to be sure, Israel would be subject to the international laws of belligerent occupation in those military bases. Hence, the international legal precedent concerning the City of Berlin before reunification should be thoroughly researched in regard to transit rights for the United States, Great Britain, and France into and out of Berlin. But, once again, whoever does this research must keep in mind that the four Great Powers actually had international legal sovereignty over the City of Berlin jointly, whereas Israel does not have any legal sovereignty or claims to sovereignty over these military bases.

171. In addition, you should also examine the so-called Status-of-Forces Agreement concluded by the United States with the Federal republic of Germany dealing with the stationing of U.S. military forces, civilian personnel, and their dependents in the Federal Republic of Germany. Once again, this situation is not precisely analogous because, technically, U.S. military bases in Germany are not arguably there pursuant to the international laws of belligerent occupation, but rather pursuant to the terms of a treaty concluded between two sovereign states. Thus, you could consider offering to conclude something like a Status-of-Forces Agreement with Israel somewhat along the lines of the agreement between the Federal Republic of Germany and the United States for the stationing of U.S. military forces and their dependents in Germany. But this matter would require more detailed research by your experts before I could express a formal Legal Opinion one way or another on its advisability under international law. For, once again, you do not want to regularize or legalize the Israeli presence in your Lands as part of an Interim Agreement or otherwise.

SHOULD ISRAELI MILITARY FORCES BE PERMITTED TO WITHDRAW TO CURRENT ISRAELI "SETTLEMENTS" AS PART OF AN INTERIM AGREEMENT?

172. These latter observations then bring us to the crux of the problem: Could an Interim Agreement permit Israeli military forces to withdraw to some currently existing Israeli settlements and thus establish their military bases there? In theory, it might be possible do this; but it would have to be done very carefully. Otherwise, you risk losing sovereign control over those military bases/settlements forever.

173. First, an Interim Agreement would have to be drafted in a neutral fashion so as to indicate that you are not in any way sanctioning, legalizing, or regularizing Israeli settlements currently located in occupied Palestinian Lands. For example, the Interim Agreement might contain a precise geographical delineation of where these Israeli military bases could be located in terms of latitude and longitude without mentioning the names of towns, cities, villages or anything like that.

174. Second, it would have to be clear that any civilians remaining in those military bases are "civilian personnel" attached to the Israeli occupying forces or the occupation administration, together with their families. You cannot consent to the presence of any other civilians in those military bases without violating the Fourth Geneva Convention and thus providing a de facto legitimization, regularization, or legalization of the settlers and the settlements. You do not want to do this in any event.

175. Third, you must understand that there will be a serious and grave risk of Israel making a claim to legal sovereignty over these military bases in the event that they are located in land where Israeli settlements are located today. If you agree to this arrangement without preserving your rights and claims under the Fourth Geneva Convention and Resolution 242 as indicated above, the Israelis will claim that an Interim Agreement that allows them to establish military bases in areas where civilian settlements are located today would constitute a de facto if not de jure recognition, regularization, and legalization of their claims to those settlements.

176. The Israelis will argue that they had long ago put forward a "claim" to these settlements as a matter of international law and practice under the Yehuda Bloom "Missing Reversioner" argument, and that you were on notice as to their claims. The Israelis will then argue that your failure to refute their claim is tantamount to a de facto acceptance of their claims. The Israelis will conclude their argument by pointing out that you have effectively countenanced their claims by permitting them to establish military bases in these currently existing settlements.

177. So if you are not very careful, an Interim Agreement that permits the withdrawal of Israeli military forces to military bases on illegal Israeli civilian settlements could arguably legitimize the settlements and you might permanently lose control over this land. In addition to these claims, the Israelis will also argue the doctrines of adverse possession and prescription in order to justify their claims to sovereignty over these military bases/settlements as part of a Final Settlement or otherwise. Once again, the only way to prevent this from happening is to preserve your rights and claims under the Fourth Geneva Convention and Resolution 242 as part of any Interim Agreement in the manner indicated above.

178. Even then, that might not be sufficient to protect your sovereign rights to these military bases/settlements. It would certainly be better to have the Israeli military forces withdraw to military bases that are separate and apart from current Israeli settlements. That arrangement would provide you with much better protection.

179. In this regard, you must be very concerned about the unfortunate precedent of the situation in Cyprus. As part of the agreement that produced the independence of Cyprus, the Cypriotes themselves hat to agree that Britain would be able to maintain military bases in Cyprus and that these military bases were subject to British Sovereign control. In other words, the British military bases in Cyprus are British territory, not Cypriot territory, under international law. You do not want the same thing to happen to Israeli military bases in Palestine, whether as part of a Final Settlement or otherwise.

180. Indeed, the status of the British military bases in Cyprus is even worse than the status of U.S. military forces in the old Panama Canal Zone. Under the terms of the old Panama Canal Treaty, the United States government had rights to the Panama Canal Zone "as if it were the sovereign." That language was very carefully drafted to make it clear that the United States government was not in fact or in law "the sovereign" in the old Panama Canal Zone. That important distinction paved the way for the 1977 Panama Canal Zone Treaties that call for the United States government to evacuate Panama at the end of this century. Of course, it is an open question whether or not the United States government will actually withdraw from Panama. But at least the treaties are clear that the United States government must withdraw by the year 2000.

181. By comparison, the British military bases in Cyprus are sovereign British territory--just like London. You do not want that to happen with Israeli military bases/settlements in Palestine--just like Tel Aviv.

182. In this regard, remember that at one point in time the Labor government of Rabin had adhered to the so-called Allon Plan. You do not want to sign an Interim Agreement that will result in the Allon Plan as the Final Settlement. But the Allon Plan could very well be Rabin's bottom line. Once again, in order to prevent this from happening, you must preserve your rights under the Fourth Geneva Convention as well as your claims under Resolutions 242 and 338 as part of any Interim Agreement.

JERUSALEM AND THE INTERIM AGREEMENT

183. Both the Israelis and the Americans are encouraging you to put aside the status of Jerusalem until the so-called Final Settlement. But this is a trap that they are trying to set for you. You must not fall into it. The reason why this suggestion is a trap is because of the U.S.-Israel Land-Lease and Purchase Agreement of 1989, which calls for the transfer of the U.S. Embassy from Tel Aviv to Jerusalem by July of 1996.

184. This Embassy Agreement was based upon the so-called Helms Amendment, which served as the U.S. domestic authorizing legislation for the negotiation of this Agreement between the Reagan administration and Israel. I have already analyzed the illegalities surrounding this Agreement and the Helms Amendment in two Memorandums I wrote for Congressman Lee Hamilton, Chairman of the House Subcommittee on Europe and the Middle East, which have been published in American-Arab Affairs, No.30, pages 125-138 (Fall 1989). I will not bother to repeat any of that analysis here because you have already seen these memoranda and have them in your archives.

185. Suffice it to say, however, this Embassy Agreement and the Helms Amendment call for the U.S. Embassy to be transferred from Tel Aviv to Jerusalem by July of 1996. The Helms Amendment was enacted into law by Senator Jesse Helms at the behest of the American-Israel Public Affairs Committee (AIPAC). It was designed expressly for the purpose of making sure that the U.S. Embassy would be transferred from Tel Aviv to Jerusalem during 1996, which will be a presidential election year.

186. Therefore, it is my conclusion that you must deal with the Helms Amendment and this Embassy Agreement now. You cannot wait to the so-called Final Settlement because you will probably not even begin negotiating the Final Settlement until after July 1996, if ever. At best, you might be in the process of negotiating the so-called Final Settlement in July 1996, when President Clinton moves the U.S. Embassy from Tell Aviv to Jerusalem as required by the Helms Agreement and this Agreement in order to get re-elected and thus preempts your claims to Jerusalem. Thus, you must try to head off the Helms Amendment and this Embassy Agreement now before the political momentum becomes overwhelming.

187. So far, the Department of State has given oral assurances at a very low level that there is nothing to worry about in the Helms Amendment and this Agreement. Of course, that is a total nonsense and a lie. There must be an absolute iron-clad guarantee that the United States government will not transfer its Embassy from Tel Aviv to Jerusalem unless and until the so-called "Final Settlement" has been negotiated, approved, ratified, and implemented in a manner that is acceptable to both the Palestinians and the Israelis. There are a variety of ways in which such a guarantee can be given to you concerning this Agreement and the Helms Amendment. I will not bother to get into them here.

188. The bottom line is that if the United States government is not prepared to give you an absolute, iron-clad guarantee that it will not transfer the U.S. Embassy from Tel Aviv to Jerusalem until after the implementation of the so-called Final Settlement, then you know that the United States government is not negotiating in good faith with you now. That is the very least the Americans can do for you in order to facilitate an Interim Agreement. And if the United States government is not prepared to give you this guarantee on Jerusalem, then you know that the Americans are preparing to sell you out to the Israelis on Jerusalem, and everything else for that matter.

189. In this regard, it would be important to provide both the Americans and the Israelis with some idea of what you think a Final Settlement on Jerusalem might look like. Again, going back to the aforementioned State Department Study, there is no historical example of a successful transitional arrangement unless the parties have an understanding as to the Final Settlement. The same principle would apply to Jerusalem.

190. In this regard, I have written an article entitled "The Future Peace of Jerusalem" in which I outlined a proposal for the City of Jerusalem that fulfills the publicly-stated requirements of Israel, the United States, the Palestine National Council, and the Vatican. I will not bother to repeat that analysis here since I have made this article available to Members of the Delegation. But if you have any questions about it, please feel free to contact me.

191. Once again, I strongly recommend that you put forward some idea of what you believe would be an overall Final Settlement on the City of Jerusalem. As the State Department Study indicates quite clearly, there has never been a successful transitional arrangement unless the parties have an understanding as to the ultimate Final Settlement.

192. The Americans at the State Department know this. And the Israelis know this. That is exactly why they want you to sign an Interim Agreement without any understanding on a Final Settlement, including Jerusalem. They do not want the Interim Agreement to succeed. Rather, they want the Interim Agreement to become the "final solution" to the Palestinian People. It is up to you to make

sure that this does not happen.

CONCLUSION

193. This Memorandum of Law has been written in order to provide you with some guidance as to how an Interim Agreement can be negotiated and drafted to guarantee that an independent State of Palestine will some day come into existence on Palestinian Lands no matter what the Israelis or the Americans do. You cannot trust their oral assurances. You must study very carefully every jot and every tittle of every written document that they give you. You must also parse very carefully every word that the Americans and the Israelis tell you on the basis of their so-called Talking Points.

194. These people are not dumb. They know exactly what they are doing. They have had some of the best lawyers in the world sit down to try devise a very elegant and clever series of legal chains by which to enslave your People for the rest of history. It is up to you to reject those chains while at the same time offering them the hand of peace and friendship, which you have already been doing for at least the past four years. Of course, you cannot continue to extend that hand of peace and friendship forever. But under no circumstances must you put that hand into their trap and legal chains. For once your hand is in their trap, you will never be able to get your People and Land out.

195. I realize that these are difficult decisions that only you can make. I have done the best that I can within a limited period of time and without any extensive research to provide you with the best guidance that I can on the negotiations of this Interim Agreement under international law. If you have any further questions, I would be more than happy to meet with you personally in Washington, Amman, Jerusalem or Ramallah, or with the Political Leadership of the Palestinian People in Tunis to discuss these matters. I am at your disposal. I await your further instructions.

May God be with you and your People at this critical time in your Nation's history.

Yours very truly,

[signed]

Francis A. Boyle

Professor of International Law
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Author:Boyle, Francis A.
Publication:Arab Studies Quarterly (ASQ)
Geographic Code:7ISRA
Date:Jun 22, 2000
Words:21044
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