Wayne Law International Legal Studies Lecture Series Point: International law is no 'magic bullet' in settling Israel-Palestine conflict

By John Minnis Legal News International law is key to settlement of the Israel-Palestine conflict, according to legal scholar Tom Farer, who spoke to international law students and faculty on Wednesday, Sept. 22, at Wayne State University Law School. Farer's talk, "In Search of Just Settlement of the Israel-Palestine Conflict: The Relevance of International Law," kicked off the fall semester's Program for International Studies lecture series. "Today we are very pleased to welcome Tom Farer of the University of Denver to our program," said professor Gregory Fox, director of the Program for International Legal Studies. "We are extremely lucky to have Tom Farer here." Farer is former dean of the Josef Korbel School of International Studies at the University of Denver and former president of the Inter-American Commission on Human Rights of the Organization of American States. Additionally, he has served as president of the University of New Mexico and taught law at Columbia University, American University, Rutgers University, Tulane University and Harvard University and international relations at Cambridge University, Princeton's Woodrow Wilson School and the Johns Hopkins School for Advanced International Studies. Within the U.S. government, he has served as special assistant to the general counsel of the U.S. Department of Defense and to the assistant secretary of state for Inter-American Affairs. As legal adviser to the United Nations, Farer led an investigation into the "Black Hawk Down" incident in Somalia in 1993. Farer has published 12 books and monographs and more than 100 articles and book chapters primarily concerning issues of international and comparative law, foreign policy, human rights and international institutions. His most recent book, "Confront Global Terrorism and American Neo-Conservatism: The Framework of a Liberal Grand Strategy," was published by Oxford University Press in March 2008. "I came from Denver to test my views," Farer told the students and faculty who filled the law school's Spencer M. Partrich Auditorium. "There is a tendency to think I've thought through this and that I don't have to come back to it again. You have to come to places like this to have your ideas tested." He acknowledged that people come to discussions of the Israel-Palestine conflict with varying amounts of factual information. He said scholars cannot approach the subject with a certain outcome in mind. First, Farer said, the conflict needs to be put into historical perspective. "History is a constant flow of events," he said. "Where do we cut into that flow of events? Where do you start? We don't have laboratories to study public policy in. You only have history." The scholar also has to illuminate all the arguments, Farer said. Whether the Israel-Palestine situation is analogous to South African apartheid is debatable, he said. The scholar must separate the indisputable and disputable facts. He said the conflict can be viewed through legal and moral optics. Something can be legal but not moral, Farer said. Also there is the national interest perspective, he said, which can be neither legal nor moral, where the only concern is if the outcome meets the goals of the United States. "Some say only discuss what will work," Farer said. "Is that approach best? I think not. While you may get a lot of people to sign documents, it won't solve the issue." Only equal powers can reach reasonably equally fair agreements, he said. "When you have a tremendous asymmetry in power as you have in this case -- Israel is the most powerful nation in the Middle East; Palestine isn't even a state; they're weak; they're occupied or surrounded -- when that is true, there cannot be a fair settlement. It must be imposed. A third party has to put a finger on the scale in favor of the weaker party. The United States has been that third party but has been putting its finger on the scale side of the more powerful party." Two areas of international law that may be applied in the Israel-Palestine conflict are the International Covenant on Political and Civil Rights and the Fourth Geneva Convention, Farer said. The Geneva Convention has its roots in the 19th century, while human rights law is a 20th century construct. "Now in the 21st century," he said, "the two can be applied at the same time." A key human rights consideration is the right to self-determination, Farer said. Farer gave a brief history of Palestine following the break up of the Ottoman Empire. Palestinians are among the last remaining peoples who do not enjoy self-determination. "The outcome of the (1967 Six Day War) was that Israel occupied all of the territories," Farer said, "and some say that is still the case today." Under the Fourth Geneva Convention, Farer said, the occupier cannot move its people into the occupied territory and occupied people out, as Israel is doing. Also in violation of human rights law, Palestinians are being arrested and held indefinitely and are being assassinated. They cannot travel, and settlers are taking their property. "The situation seems to be morally and legally untenable," Farer said. At the end of the 1967 war, he said, Israel had two options for a peaceful settlement with the Palestinians: 1) absorb the territories and grant the Palestinians equal rights and privileges, which would have been in line with human rights law; or 2) follow the Geneva Convention and interfere minimally with the ongoing lives of the people occupied and wait until a Palestinian governing structure arose with which to negotiate a settlement. Professor Fox asked if the United Nations had legal authority over partition resolutions. Farer said it did since it had control over the mandate that originally partitioned Palestine. One student questioned super powers ignoring international law. "Is there such a thing as international law?" Farer asked. "International law is very consensual, far more than domestic law. International law covers every single interaction between states. Maritime law, for example." One student asked if, under international law, Gaza was under siege. Farer said that since Gaza is not a state, it cannot be considered under siege. But since it is surrounded and controlled by Israel, it is "more like a prison." "If it were a state," he said, "you would say it is under siege." Farer said too much emphasis in the Israel-Palestine conflict is being put on the process rather than an outcome. He had hoped President Obama would have proposed a resolution. "Of course," he acknowledged, "Obama was dealing with an international financial crisis and a health care overhaul. His agenda was just too heavy." Farer said one of Israel's arguments is that the Fourth Geneva Convention does not apply because it has not occupied any territory that was not already Israel's. He indicated that too much emphasis is being put on who occupied what land and when. "I place emphasis on human rights not being enforced in the occupied territories, not on how they got to that point," he said. "It (international law) is not a magic bullet. I have no such illusions." The next topic scheduled for the Program for International Legal Studies lunchtime lecture series at Wayne Law is: "Miranda Rights for Terrorism Suspects?" Wednesday, Oct. 6, by Mark Denbeaux, professor and director of the Center for Policy and Research at Seton Hall Law School. Published: Tue, Oct 5, 2010

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