A Personal Witness

by Francis A. Boyle,

(professor of Law, University of Illinois - excerpted from The Link,
January/February 2002)

It was my great honor and pleasure to have served as the Legal Adviser to the
Palestinian Delegation to the Middle East Peace Negotiations from 1991 to
1993, including and especially to the Head of the Delegation, Dr. Haidar
Abdul Shaffi. A man of great courage, integrity, and principle. I would fight
the Devil himself for Dr. Abdul Shaffi. The following invited reflections are
to the best of my immediate recollection. The viewpoints expressed here are
solely my own.

Palestinian Good Faith

The Palestinian Delegation entered the Middle East Peace negotiations in good
faith in order to negotiate an Interim Peace Agreement with Israel that would
create a Palestinian Interim Self-Government for a transitional five-year
period. Indeed, immediately after the ceremonial opening at Madrid on 30
October 1991, I was instructed to draft several Position Papers on numerous
issues that were expected to come up during the first round of negotiations
scheduled to begin a month later in Washington, D.C. But when we got to our
Headquarters at the Grand Hotel in Washington, nothing happened. There were
no reasonable good-faith negotiations conducted by the Israeli Team for
dealing with the Palestinians at U.S. State Department Headquarters, which
was the venue for all Tracks of the Middle East Peace negotiations.

Shamir's Stall-job

At that time the Israeli Government was headed by the Likud Party under Prime
Minister Yitzhak Shamir. And later on Shamir admitted that his so-called
strategy at the peace negotiations was to drag them out for the next decade.
Having been personally subjected to this process, I can assure you that Prime
Minister Shamir accomplished his objective for as long as he was in power.

But what was most distressing of all was that the United States State
Department went along with Shamir's strategy of stalling. It became quite
obvious that the U.S. State Department officials involved with the
negotiations had no intention whatsoever to pressure Israel to negotiate in
good faith. Indeed, it was usually the case that U.S. State Department
officials sided with the Israeli Delegation against the Palestinian
Delegation in support of Shamir's stall-strategy. Furthermore, having done
some work at the request of the Syrian Delegation to the Middle East Peace
Negotiations (who were also headquartered in the Grand Hotel) during the
First Round in Washington, D.C., I can certify that the above phenomena were
also true for the Israeli-Syrian Track.

Labor vs. Likud?

But Likhud lost the elections in June of 1992, and the Labor Party came to
power under Prime Minister Yitzhak Rabin. One of the first changes Rabin made
with respect to the Middle East peace negotiations was to fire the Israeli
Syrian Team of negotiators, and bring in new and dynamic leadership under
Professor Itimar Rabinowitz, generally considered to be Israel's top expert
on Syria. With the new Israeli Syrian Team in place, substantial progress was
made during the course of the Israeli-Syrian Track to such an extent that if
Labor had won the next round of Israeli elections, it was clear there would
have been an Israeli-Syrian peace agreement along the lines of the
Israeli-Egyptian Peace Treaty. This could still happen now if Israel ever
becomes willing to implement U.N. Security Council Resolution 242 (1967),
which Israel is obligated to do in any event.

By comparison, Prime Minister Rabin kept the Likud Team for negotiating with
the Palestinian Delegation. This was a most inauspicious sign. Soon
thereafter, in the late Summer of 1992, the Israeli Team tendered a proposal
for an Interim Peace Agreement that included a draft Palestinian interim
self-government to the Palestinian Delegation in Washington.

Israel's Bantustan Proposal

Because of its importance, Dr. Abdul Shaffi asked me to fly out personally to
Washington, D.C. in order to analyze this proposal for the entire Palestinian
Delegation in situ. One of my responsibilities had been to analyze all
preceding peace proposals put forward by Israel with respect to the
Palestinians going all the way back to the original Camp David Accords,
including the ensuing "Linowitz negotiations" that took place thereafter
under the Carter Administration.

Upon my arrival at the Ritz-Carlton Hotel in Pentagon City where the
Palestinian Delegation was then headquartered, I was ushered into a suite
where the Delegation Leaders had assembled, and then instructed by one of its
accredited negotiators: "Tell us what is the closest historical analogue to
what they are offering us here!"

I then went back to my hotel room and spent an entire day reading through and
analyzing the Israeli proposal. When my analysis was finished, I returned to
the same suite and reported to the Delegation: "A bantustan. They are
offering you a bantustan. As you know, the Israelis have very close relations
with the Afrikaner Apartheid Regime in South Africa. It appears that they
have studied the bantustan system quite closely. And so it is a bantustan
that they are offering you."

I then proceeded to go through the entire Israeli Proposal in detail in order
to substantiate my bantustan conclusion. I also pointed out to the
Palestinian Delegation that this proposal basically carried out Prime
Minister Menachim Begin's disingenuous misinterpretation of the Camp David
Accords -- which was rejected by U.S. President Jimmy Carter -- that all they
called for was autonomy for the Palestinian People and not for the
Palestinian Land as well. Even worse yet, Israel's proposed Palestinian
interim self-government would be legally set up to function as the Civilian
Arm of the Israeli military occupation forces! Not surprisingly, after
consultations among themselves, and under the Chairmanship of Dr. Haidar
Abdul Shaffi, the Palestinian Delegation rejected Israel's bantustan
proposal.

The Palestinian Anti-Bantustan Proposal

Shortly thereafter, Dr. Abdul Shaffi personally requested that I return to
Washington, D.C. in order to consult with the entire Palestinian Delegation
for a second time on this matter. I had a series of sequential meetings with
the different members of the Delegation in order to hear them out and
understand their basic concerns about negotiating an Interim Peace Agreement
with Israel. I was then ushered into Dr. Abdul Shaffi's private suite. It was
just the two of us alone.

Dr. Abdul Shaffi then quite solemnly instructed me: "Professor Boyle, we have
decided to ask you to draft this Interim Peace Agreement for us. Do whatever
you want! But do not sell out our right to our State!" The emphasis was that
of Dr. Abdul Shaffi.

I responded to him quite simply: "Do not worry, Dr. Abdul Shaffi. As you
know, I was the one who first called for the creation of the Palestinian
State back at United Nations Headquarters in June of 1987, and then served as
the Legal Adviser to the P.L.O. on its creation. I will do nothing to harm
it!" I then went back to my hotel room in order to research, conceptualize,
and develop the Palestinian approach to negotiating an Interim Peace
Agreement with Israel that was designed to get the Palestinians from where
they were then, eventually to a free, viable, democratic independent nation
state on the West Bank and Gaza Strip with their capital in Jerusalem, and by
the required intermediate means of establishing a genuine Palestinian interim
self-government, which was not a bantustan.

I spent an entire day sketching out what I shall call here my
"anti-bantustan" proposal for the Palestinian Delegation to consider. I then
met again with Dr. Abdul Shaffi in order to brief him on it. Then at the
instructions of Dr. Abdul Shaffi, the entire Palestinian Delegation assembled
for me to brief them on my anti-bantustan proposal.

During the course of this briefing, an extremely high-level and powerful
P.L.O. official began to yell at me at the top of his lungs: "Professor
Boyle, what good has the Fourth Geneva Convention ever done for my People!"
My reply to this ignoramus was polite, curt, and blunt: "Without the Fourth
Geneva Convention the Israelis would have stolen all your Land and expelled
most of your People years ago." From my other sources I already knew that the
P.L.O. had been putting enormous pressure upon Dr. Abdul Shaffi and the rest
of the Palestinian Delegation to accept Israel's bantustan proposal right
then and there in Washington, D.C. This Dr. Abdul Shaffi adamantly refused to
do!

I then left the room in order to confer once again with Dr. Abdul Shaffi.
Right before this meeting, I commented to a very prominent and now powerful
Palestinian Lawyer from Gaza, who had heard my briefing: "My instructions
from Dr. Abdul Shaffi were to figure out how to square the circle. I believe
I have accomplished this objective." He replied laconically: "Yes, you have."

I then went to meet once again with Dr. Abdul Shaffi. I reported to him about
the vociferous opposition to my anti-bantustan proposal by this top P.L.O.
official. After a brief conversation about handling this dilemma, Dr. Abdul
Shaffi then instructed me to write up my anti-bantustan proposal as a
Memorandum for consideration and formal approval by the Palestinian
Delegation in Washington as well as by the P.L.O. Leadership then
headquartered in Tunis. Having rejected the Israeli bantustan proposal, it
was up to Dr. Abdul Shaffi to come up with an anti-bantustan proposal not
only for the purpose of negotiating in good faith with the Israelis, but also
to convince the P.L.O. Leadership in Tunis that there did indeed exist a
viable interim peace agreement that would not sell-out the right of the
Palestinian People to an independent nation state of their own, and also by
the required intermediate means of establishing a genuine Palestinian interim
self-government, which was not a bantustan. Dr. Abdul Shaffi was now counting
upon me to square this circle to the satisfaction of the Political Leadership
of the Palestinian People then headquartered in Tunis.

At that precise moment in time, it felt as if the weight of the entire world
had just descended upon my shoulders. For the next five weeks I once again
bore responsibility for five million Palestinians, their children, and their
children's children, as well as indirect responsibility for three million
Israelis, their children, and their children's children. My Memorandum was
entitled "The Interim Agreement and International Law," and was completed on
December 1, 1992. Then I shipped it off by couriers to Dr. Abdul Shaffi and
the Palestinian Delegation in Washington, D.C., as well as to the Political
Leadership of the Palestinian People then headquartered in Tunis and living
elsewhere in their Diaspora.

With the permission of Dr. Abdul Shaffi, who expressly waived
attorney-client confidences on these matters, this Memorandum has been
published in Volume 22, Arab Studies Quarterly, Number 3, pp. 1-45 (Summer
2000). The reader is free to decide for himself or herself whether or not I
successfully discharged the weighty responsibilities given to me by Dr. Abdul
Shaffi and the Palestinian Delegation to the Middle East Peace Negotiations.
In any event, my Memorandum was indeed approved by both the Palestinian
Delegation in Washington as well as by the Political Leadership of the
Palestinian People then headquartered in Tunis. While going through this
Memorandum, the reader should also be aware of the fact that the Israeli
bantustan model I critiqued therein would later become the Oslo Agreement of
13 September 1993--as I will explain below.

In this regard, shortly after submitting my Memorandum to Tunis, I received a
fax from an extremely powerful and prominent P.L.O. Lawyer living in the
Palestinian Diaspora, who personally thanked me for "showing the way forward
to our people." After what we had been through together in the past, my
friend's commendation meant a great deal to me. But five years later he would
quit his high-level positions in both the P.L.O. and the Provisional
Government of the State of Palestine because of his disgust over the
subsequent course of the so-called Oslo Process.

Norway

While all this was going on, and unbeknownst to both Dr. Abdul Shaffi and
myself, the Israeli Government proceeded to open up a secret channel of
communications in Norway with P.L.O. emissaries who reported personally and
in private to President Yasser Arafat. Eventually, during the course of these
Norwegian negotiations, the Israeli Team re-tendered their original bantustan
proposal that had already been rejected by the Palestinian Delegation to the
Middle East Peace Negotiations in Washington, D.C. It was this original
bantustan proposal, which was then re-tendered in Norway, that later became
known as the so-called Oslo Agreement, and was signed on the White House Lawn
on September 13, 1993.

Dr. Abdul Shaffi and I knew full well that we were engaged in a most
desperate struggle against the Israelis -- working hand-in-glove with the
Americans -- in order to prevent the Palestinian Political Leadership in
Tunis from accepting Israel's bantustan proposal. Of course we lost. In the
Summer of 1993, the wire services reported that a secret agreement between
Israel and P.L.O. emissaries had been reached in Norway. Soon thereafter, Dr.
Abdul Shaffi called me up from Washington and asked if I could analyze this
Norwegian document for him immediately. I readily agreed. He later faxed the
Norwegian document into my office.

After a very detailed study of this Norwegian document, I called him back
with my report: "This is the exact same document we have already rejected in
Washington!" Dr. Abdul Shaffi responded in his customarily low-key manner:
"Yes, that was my impression too."

At the end of a very lengthy, back-and-forth conversation, Dr. Abdul Shaffi
forcefully told me: "I will call Abu Ammar and demand that he get a written
opinion from you on this document before he signs it! Can you give me that
opinion right away?" Once again, the emphases were that of Dr. Abdul Shaffi.

"Yes, of course, you can count on me!," I replied.

"I will call Abu Ammar immediately!," said a determined Dr. Abdul Shaffi.

Abu Ammar is the nom-de-guerre of Yasser Arafat. He and Dr. Abdul Shaffi go
all the way back to the very founding of the P.L.O. So that must have been
one incredibly tumultuous conversation.

But President Arafat had already made up his mind to sign the Israeli
bantustan proposal, now emanating from Norway instead of Washington. There
was nothing Dr. Abdul Shaffi could do to change his mind or to stop him. It
was for this reason that Dr. Abdul Shaffi never attended the signing ceremony
on the White House Lawn on September 13, 1993. He knew Oslo was a bantustan
and wanted nothing at all to do with it.

As for me, on that day I had to be in the International Court of Justice in
The Hague in order to personally accept the second World Court Order I would
win for the Republic of Bosnia and Herzegovina against the rump Yugoslavia to
cease and desist from committing all acts of genocide against the Bosnian
People. So I had to watch the signing ceremony on television that evening in
my Amsterdam hotel room. "This will never work," I sadly said to myself with
a heavy heart, "but perhaps President Arafat knows something that I do not."

Why Oslo?

Now you might ask yourself: Why would President Arafat accept and sign an
Israeli proposal that he knew would constitute a bantustan for the
Palestinian People? I really do not know the answer to that question.
President Arafat did not discuss this matter with me. He did discuss this
matter with Dr. Abdul Shaffi. But I was not privy to that conversation, and I
never asked Dr. Abdul Shaffi about it.

In fairness to President Arafat, I believe he felt that he must take what
little was offered to the Palestinian People by Israel and the United States,
even if he knew it was nothing more than a bantustan, and then prove the good
faith of himself and the Palestinian People to the satisfaction of both
Israel and the United States: That the Palestinians were willing to live in
peace and harmony with Israel and the Israeli People throughout a trial
test-period of five years, and even under their bantustan model. But that at
the end of the five years, there would then be a legitimate, free, viable,
and independent Palestinian State on the West Bank and Gaza Strip, with its
capital in Jerusalem.

Also, in fairness to President Arafat, the Oslo Agreement made it quite clear
that all issues--including Jerusalem--would be open for negotiations in the
so-called final status negotiations. And this despite the massive Israeli
rhetoric and propaganda that Jerusalem was "their," "eternal," "undivided"
"capital." You do not expressly agree in writing to negotiate over "your,"
"eternal," "undivided," "capital," if it is really yours!

Finally, in fairness to President Arafat, there was already on the books a
Resolution that had been adopted by the Palestine National Council that
authorized the P.L.O. to take control of any portion of occupied Palestine
that was offered to them by Israel. This is precisely what President Arafat
and the P.L.O. then headquartered in Tunis proceeded to do. But note for the
record that the Palestinian Delegation to the Middle East Peace Negotiations
-- all of whom lived in occupied Palestine, not in Tunis -- had explicitly
rejected this Israeli Bantustan Proposal during the course of the formal
negotiations in Washington, D.C. For that very reason, in addition to Dr.
Abdul Shaffi, other Palestinian accredited negotiators also refused to attend
the signing ceremony on the White House Lawn on 13 September 1993, including
my friend who had personally instructed me to analyze the Israeli bantustan
proposal for the Delegation. Just like Dr. Abdul Shaffi, they knew full well
that Oslo was a bantustan, and wanted nothing at all to do with it.

Post-Oslo Agreements

President Arafat had assumed a modicum of good faith by Israel and the United
States. My 1 December 1992 Memorandum had not, but rather to the contrary.
Unfortunately, Israel and the United States then proceeded to stall and delay
the implementation of Israel's bantustan model throughout the entire course
of the Oslo process, and indeed even after the expiration of Oslo itself. All
the time providing no realistic hope or expectation that at the end of the
road the Palestinians would have a free, viable, and genuine independent
nation state of their own on the West Bank and Gaza with its capital in
Jerusalem.

Hence, I am not going to waste my time here analyzing the numerous post-Oslo
Agreements between Israel and the P.L.O. that were "brokered" by the United
States. For they all constitute nothing more than implementation and
refinements of Israel's original bantustan proposal that the Palestinian
Delegation to the Middle East Peace Negotiations had already rejected in
Washington, D.C. I am a Professor of International Law, not of Bantustan Law.
From the perspective of public international law, however, numerous
provisions of all these agreements were void ab initio under articles 7, 8,
and 47 of the Fourth Geneva Convention of 1949, inter alia.

Camp David II

This then brings the story up to the Summer of 2000--the so-called Camp David
II negotiations. This proposed conclusion to the final status negotiations
was not the idea of the Palestinian Political Leadership. Rather, these
negotiations were the "brainchild" of Israeli Prime Minister General Ehud
Barak with the full support of President Clinton. Of course
Bill Clinton had already been bought and paid for by the Israel Lobby at the
very start of his run for the U.S. presidency.

In a curious twist of fate, Bill Clinton had spent a night at the Grand Hotel
in Washington, D.C. while the Palestinian Delegation was in residence. Our
personal paths would cross in the lobby of the Grand Hotel as I went out for
my usual early morning walk before the negotiations began, while he assembled
there with his political handlers just prior to holding a press conference as
presidential candidate over at the State Department later that morning.
Knowing what Clinton et al. were up to, I decided to walk by him in silence
out into the cold and refreshing morning air.

Almost nine years later at Camp David, President Clinton fully intended to
pressure President Arafat and the Political Leadership of the Palestinian
People into accepting the Oslo bantustan arrangement permanently for the West
Bank, Gaza Strip, and Jerusalem as the final outcome of the so-called final
status negotiations--the "final solution" for the Palestinian People. To his
great and everlasting credit, President Arafat refused to accept Oslo as a
permanent bantustan model for the Palestinian People and their Land. But it
was a near-death experience.

True to his pro-Israeli stance, President Clinton then proceeded to publicly
blame President Arafat and the Political Leadership of the Palestinian People
for their alleged intransigence. Clinton also publicly threatened to
illegally move the United States Embassy from Tel Aviv to Jerusalem unless
President Arafat succumbed to permanently accepting Israel's original
bantustan model going all the way back to 1992. This President Arafat still
refused to do.

The Israeli Origins of the Al Aqsa Intifada

When it became crystal clear to the Israeli Government that they could not
impose Oslo's bantustan arrangement permanently upon the Palestinian People
by means of negotiations--and even when conjoined with the customary
bullying, threats, harassment, intimidation and bribery by the U.S.
government--then General Barak and Likud Leader General Ariel Sharon decided
to revert to inflicting raw, naked, brutal, military force upon the
Palestinian People in order to get their way. Hence the Israeli origins of
what came to be known as the Al Aqsa Intifada.

On 28 September 2000, General Ariel Sharon, the Butcher of Beirut, the
architect of the Israeli invasion of Lebanon that had exterminated about
20,000 Arabs, the man personally responsible for the massacre of about 2,000
innocent Palestinian and Lebanese civilians at the refugee camps in Sabra and
Shatilla, a man cashiered by his own government, on that day appeared at
Haram Al-Sharif in Jerusalem -- the third holiest site in Islam, where there
is the Al Aqsa Mosque on the one hand, and the Dome of the Rock on the other,
where Mohammed (May Peace Be Upon Him!) had ascended into Heaven --
surrounded by about 1,000 armed Israeli forces with the full approval of
Prime Minister Barak. General Barak and General Sharon knew exactly what they
were doing! General Barak and General Sharon knew exactly what the reaction
of the Palestinian People would be to Sharon's deliberate desecration of, and
provocation at, their holiest religious site. And if there had been any
lingering doubt about the matter, Israeli armed forces returned the next day
and shot dead several unarmed Palestinians on Haram Al-Sharif, thus setting
off what has come to be known as the Al Aqsa Intifada -- the uprising in
support of the Al Aqsa Mosque.

Francis A. Boyle

Law Building

504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954(voice)
217-244-1478(fax)
fboyle@law.uiuc.edu <mailto:fboyle@law.uiuc.edu