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Oslo: Israel's Bantustan

By Francis A. Boyle
Posted: 4 Shawwal 1422, 19 December 2001

(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.

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