NormanFinklenstIsrael-PaletinePart1.mp4

Dr. Norman Finkelstein Ph.D Lectures On Israeli-Palestine Conflict at Brown University, April 15th 2008.Part 1

Verbatim are made by Umar Badarsyah with a plausible editing by I Made Vira SAras 008 alah..

(minutes: 01.36) Thank you for coming out this evening and I look forward to a good discussion. The topic I wanted talk about this evening is one which the more I read on the topic the more it becomes compelling to me at anyway that the Israel-Palestine conflict is probably among the least complicated, least controversial in the world today.

(02.03) The consensus on the historical record, the consensus on the human rights record, the consensus on the legal diplomatic record basically the past, the present and the future is quite broad and one can almost say its remarkable.

(02.26) And now when I made an initial statement some people laugh because obviously its quieted odds with the perception of the conflict when we entered into the public arena. Where we were told how complex, how controversial, how intrigued this Israel- Palestine conflict is. And that a tough nut , it is to crack.

(02.55) I was on a way here, reading a new book by one of the negotiator at Camp David., a fellow named Aaron David Miller and he writes his account on the camp david negotiation in 2000 and basically the whole period of 1990s up to the present, and he goes at some great length about how complicated this question is, and how nobody would want to tackled it, but I don’t thing that’s what the record shows. The record shows that is not very complicated at all, and then the obvious question arises, if what I am saying is true and the burden on my remarks this evening is to demonstrate what I am saying is true. If what I am saying is true and how do you account for all the controversies that swirled around the Israel-Palestine conflict, when you enter the public arena. And the main argument I am going to make this evening is that most of that controversies is contrived, its artificial, its fake. And its designed, its purpose is, to divert people attentions from what the record actually shows. And to sold confusions about that record.

(04.21) Well let me begin with a fairly straight forward excess able and recent illustration. In July 2004, the highest judicial body in the world, the international court of justice it rendered a land marked advisory opinion on the wall that Israel is building in the occupied territories. Some of you who are familiar with the topic will perhaps know the conclusion the world court reached, namely that the wall Israel is building is illegal, it has to be dismantled and Israel has to pay compensations for the damages rot. In fact that was probably the least significant aspect of the world court advisory opinion. And the reason why, is this..

(05.22) For those of you who are familiar with the lingo of this thing called ‘the peace process’ …ahhh one aspect of this peace process is what’s called ‘the final status negotiations’ and that basically means those aspects of the Israel-Palestine conflict which are said to be so controversial, complex and intrigued that they have to be the furthered put off until the last stage of negotiations, because if you start with this issues the whole process will break down. So the usual sequences to claim, we first need confidence building measures, another catch phrase in this thing called the peace process, first we need confidence building measures, and then, we can proceed to those tough final status negotiations. Well it so happens that before the world court, the international court of justice could rule on the legality of the wall that Israel has been building, they first had to rule on nearly all the final status questions.

(06.47) The final status questions are usually said to consist of four:
1. Borders: what are the legitimate borders of the state of Israel, what would be the legitimate border of the Palestinian State;
2. Settlements, the status of the settlements that Israel is building in the Occupied Palestinian Territories
3. Jerussalem, the status of East Jerussalem; and number
4. The question of the refugees

(07.22) Well , it so happens at the world court had to rule on the first three questions: borders, settlements and Jerussalem , before it could rule on the legality of the wall that Israel is building, for reason which would be obvious to everybody in the audience. If the borders of Israel extended all the way into that West Bank, tentatively or factually then obviously the wall will be legal or tentatively legal. For reasons that every property owners in this room knows, if you have a quarrel with your neighbor, you are allowed to build a fence, or construct a fence along the border with your neighbor, but you obviously not allowed to build a fence around your neighbor’s swimming pool or garage.

(08.21) This on particularly complicate question of law and the same principle applies here ,so we have to first know where the border is, before we can determine the legality of the wall that’s being built, and the same principle applies to the settlements because as it happens this the wall that’s being built takes what the court calls a sinuous route that goes around the settlements. Well the settlements are legal? that’s fine! But if the settlements are the equivalent of your neighbor’s swimming pool ,well obviously question arise. And so the world court had to proceed to answer these questions.

(09.07) Allegedly and you are bare with me to the point of tedium, I hope, but because it keeps being said: “These questions are so controversial!”, they are so ‘complicated’. Well what did the World Court decide? Number one, on the question of borders, the International Court said, there is a fundamental principle of international law. It is stated in preamble paragraph of the Venice UN resolution 242 namely the inadmissibility of the Acquisition of Territory by War. Basic principle of international law said to be anchored in article 2 of the UN Charter. Therefore, Israel which conquered the West Bank and Gaza during the June 1967 War, it acquired them by war, therefore Israel has no title to them. Why??? (10.10)

(10.10) Why?? Because it is inadmissible to acquire a territory by war. And so the World Court rules Israel has no title to any territory outside it’s pre June 1967 border, and its very clear it refers to the West Bank and Gaza as Occupied Palestinian Territory, capital O, capital P, capital T and the abbreviation is usually OPT. I mentioned it only because It considered now a common place. If you open up any human rights report in the occupied territories, you would see everywhere they are referred to as Occupied Palestinian Territory parentheses OPT. It’s a non controversial question, they were acquired by Israel through war, Israel has no title to them, these are Occupied Palestinian Territory. They are not, as it often said in the public life, these are not disputed territories, these are Occupied Palestinian Territories, no dispute about the matter of ownership. I was reading today that Mr. Rumsfeld use to refer to them as the so called Occupied Palestinian Territories but it is not so called and it is not disputed says the World Court.

(11.45) Number two, the question of the settlements. The 460.000 settlers that Israel has transferred to the West Bank and previously to Gaza. What is their status under the international law? Again the World Court says. Its just not controversial. Article 49 of the fourth Geneva Convention states unambiguously or as lawyers like to say in plain language that is inadmissible for occupying power to transfer its population to occupied territory. And therefore the World Court says quoting UN Security Council’s Resolution that the settlements in the occupied territory constitute a flagrant violation of international law full stop.

(12.49) Number three, we’re often called in the matter of East Jerussalem is apart from the question of the refugees, the most complicated to resolve, and its true if you read the record of Camp David it is probably correct to say that the refugee quest..excuse me not the refugee quest.., the Jerussalem question was the toughest nut to crack. There was a huge amount of energy invested in trying to resolve that particular question, at the practical level! But legally there is no issue at all. How did Israel East Jerussalem? It acquired East Jerussalem exactly the same manner as It acquired the West Bank and Gaza. It acquired East Jerussalem in the course of a war, and under international law it is inadmissible to acquire territory by war. Therefore, Israel has no title to east Jerussalem. If you read the court decision It’s very explicit. It refers to the West Bank, including East jerussalem, and the Gaza Strip as Occupied Palestinian Territory, no dispute, no question, and no controversy, no complexity.

(14.16) Now, even that is really only part of the story. First of all World Court, international court decisions are often quite close, it work basically like our own Supreme Court, cases rise to the top so to speak, because they bare on controversial issues which are close, legally. That’s why they reach to Supreme Court. And as everyone in this room knows, Supreme Court decisions are often quite close as are world court decisions. So you take one that you would think is a no brainer. Let say 1996, positions for human right submit a question to the world court on the legality of nuclear war or the use of nuclear weapons, I think the technical term was the Threat or Use of Nuclear Weapons. Now the fundamental principle of the laws of war, as everyone in this room know is the principle of distinction between civilians and combatants. And then it seems to be pretty obvious that in so far as nuclear weapons are incapable of distinguishing between civilians and combatants by their nature ,they are indiscriminate weapons, in so far of incapable of distinguishing between civilians and combatants, you will think is obvious they are illegal under international law, their use. No, the World Court was on a very close vote and the vote was, the tight breaking vote was cast by the president of the court. So even when you would think something will be fairly straight forward, it was not! I don’t particulary agree with the decision of the court but it was actually a quite interesting decision and the dissents were, especially by the Judge Feromantry (aduh nama orang nih) were very interesting to read. Why do I mention it? Because when you come to the World Court advisory opinion, on this ‘Complicated Issue’ to which I just referred the vote wasn’t as close at all. It was fourteen to one. The one dissenting vote by the American judge Thomas Burgenthou to which I return to in a moment. It was not a close vote. These are not under international law, complicated questions.

(16.51) These are tenets , fundamental principles of international law which are being tested in the advisory opinion, or you can look at it from another angle. World Court decisions or opinions, when you take what’s called the majority opinion, the separate opinion, the decoration and the dissents, they can be a quite substantial. So I was reading the 1984 World Court opinion when Nikaragua went to the court because US was mining the harbors of Nikaragua, people of the previous generation will remember that. When you look at the full compendium, separate opinions, majority opinions, dissent and so forth it comes to a hefty thousands pages. And at one day in a past when I was a professor, I got to late at night when no one was around , printed out on my university printer now I cant do those things anymore unfortunately. They were quite hefty.

What interesting about this particular advisory opinions of the court, if you take all the opinions and you will find a lot of separate opinions. And Mr Burgenthou separate decoration. It comes to the left of a hundred pages. And it comes to the left of a hundred pages for a very simple reason: these are not complicated questions. Even you take the case of Judge Burgenthou himself. He doesn’t issue a dissent, in the nomenclature of the court, you can issue majority opinions, separate opinions, and then the dissent and in the middle is something called a declaration. The declaration being more neutral.
Even the American Judge, he was very cautious, he issues a declaration. Not a dissent! And in his declaration he begins by saying there is much in the majority opinions with which I agree. And then he goes on to look at what probably ‘the most not controversial but most critical question. Namely the issues of those settlements. Because where there’s no settlements there be no conflict. And Mr. Burgenthou says. Well Ia have to agree. Under article 49 those settlements are illegal. And he says if Israel is building the wall in order to protect the settlements, then he says, I am using his language, ipso facto the wall is illegal! And therefore what we find is an a most controversial question and of the most controversial of the controversial questions its fifteen to zero. There is no controversy what’s so ever. And then obviously raises again the obvious question. If what I am saying is true, how do we account for all of this alleged controversy swirling around the Israel-Palestine conflict.
Before I look at that I want to when the time allows me, which is obviously limited to go through the record on the three areas which are decestions of the area of the conflict. To put in nursery school’s language past, the present and the future.

So lets first look at the past, the history. I notice in this room there are some people who are roughly at my age cohort, I can detect them from their tidy shirts their love beads, that glaces over look in their eyes, still saying give peace a chance, still wishing they were Sony Bono with share. And for those who a hard can back to those wonderful days of the sixties which I not over. They will remember that probably the question in the historical record that used to generate the most controversy, the most dispute was how did those Palestinians become refugees in 1948?

(21.42)For those of you who are new to the topic, the background is very easy to sketch in November 1947 United Nation General Assembly decide to resolve this conflict in Palestine, we are going to divide it roughly in half between Jews and Arabs, immediately upon, the UN Resolution being passed, a conflict breaks out within Palestine by 9th May 1948 when Israel declared it statehood it becomes an inter-state conflicts with neighboring Arabs states. At the end of the war roughly 750.000 Palestinians find themselves outside their homes. And the question always arose: How did those 750.000 Palestinians, how did they end up refugees?

(22.40) And the standard argument that Israel put forward, as I said was probably widely believed up until roughly the late 1980’s, the argument was : that the Arabs Army stood poise on the border of Palestine ready to invade transmitted these radio messages broadcasted to the Palestinian in Palestine to leave their homes clear the field for the invading Arab Armies and after they successfully threw the Jews to the sea then the Palestinians would be able to return to their homes. How many people are familiar with that explanation of what happen in 1948?

(23.37) Well the other people must surely, because that’s the standard. And until the late 1980’s. As I said that was pretty much with everybody belief. And then in the late 80’s a number of Israeli historian in particularly but not exclusively Israeli historian start going trough the record from the Israeli archival point of view, and then main person who went through the record a fellow name Benny Maurice, and Benny Maurice concludes, to use his language not my own, that what happened in 1948 was an ethnic cleansing, and there is now you could say a broad consensus among historians that exactly that what happened in 1948 was the indigenous populations of Palestine and at any area that became Israel was ethnically cleansed.

(24.21) Now It’s not true to say no debate continues but the debate is now within fairly narrow parameters the debate now is was it ethnic cleansing premeditated intentional methodical or was it an accident of war? Everybody knows war generates refugees and maybe this refugees are simply a by product of a war. And to show you or to illustrate how narrow this debate has become. We take the case of Israel former Foreign Minister Sholomo Ben Ami a very smart guy, he is a historian by training and reasonably honest fellow for sure, he wrote couples of years ago a book called Scars of Wars Wounds of Piece part of which went through the history of the conflict and of course he has to address the refugee question and he says well, Ya it was an ethnic cleansing in 1948 but the former foreign minister says… I don’t really agree with Benny Maris, Maurice being one of the proponents of a notion that it was an accident of war, now says the former foreign minister I don’t not really agree with that, it was quite clearly premeditated intentional methodological as he puts it, it was anchored in the Zionist philosophy of transfer, transfer’s being the euphemism back then for explosion and so now you have the case of a former Foreign minister, incidentally not an ancient former foreign minister, he was the Israeli foreign minister in 2000 during the Camp David negotiations, even a former foreign minister and a trained historian acknowledges it was not just an ethnic cleansing but it was a premeditated ethnic cleansing anchored in the Zionist philosophy of transfer.

(26.24) a part from the question of the refugees, probably the question that loons largest or it’s most in the public eye, is the question of these wars that Israel has endured with its neighbors since it founding in 1948. And certainly it’s a large number of wars: 48, 56, 67, the Canal War, 68 to 70, 73,82, and the two intifadas.

(27.02) And the conventional wisdom is, as Israeli likes to say with a past of exception 1982 war, the war of Lebanon, this was wars of no choice. No choice wars. Aa well but that’s not the record any longer shows. You take the case of a very excellent book, I highly recommended it, I surely put it above my own. Aa by Zeef Maoz its called Defending The Holy Land, Maoz is a former director of Israel’s Jaavi Center of Strategic Studies at Tel Aviv University. He is a very smart guy and obviously he held a prestigious position that’s the Israel most distinguish Center for Strategic Studies, and his written a very fat book it is probably around 800 pages. Its interesting and anyway to denigrate the book, I think the book is an excellent book, but just to put it in perspective, the book is mostly a synthesis of what all other scholars have written in the topic it’s a mostly a synthesis of that you call, in latin or scholarly language the monographic literature. He takes all and try to figure out ‘ok what is it all shown?’

(28.18) Obviously time doesn’t allow me to get through those 800 pages but it’s not without interest to just listen to his conclusions. So he says or concludes:’Israel war experience is a history of folly, recklessness, and self made traps. None of the wars, None, with a possible exception of the 1948 war of Israel independence, none was a war of necessity. They were all wars of choice or folly. The only possible exception he says and as I was actually interested, he qualifies it only possible exception is maybe 48. He goes on to say, Israel decision makers were as reluctant and risk averse when they came to making peace as they were daring and trigger happy when it came to making war! The official Israeli decision makers typically did not initiate peace overtures. Most of the peace initiatives in the Arab Israeli conflict came either from the Arab World or from the international community, or from grass root and informal channels. When Israel was willing to take risk for peace this usually paid off. The Arab generally showed a remarkable tendency for complaints with their treaty obligations. In quite of view cases It was Israel rather then the Arabs that violated formal and informal agreements. Again an opinion diametrically at odds with the conventional or mainstream wisdom 67 wasn’t a war of necessity, 73 the so called Yumkipur war not a war of necessity, the only possible exception is 48.

(30.39) Now bare in mind, under international law if it wasn’t a war of necessity which is defined very stringently a war of necessity is when you are the object of an armed attack article 51 of UN charter. In any other of case it’s a war of aggression. And even Mr. Maoz is clearing that. He says a war of choice is just the euphemism for a war of aggression. All of the wars with a possible exception of 48 says Mr Maoz were effectively wars of aggressions by Israel.

(31.27) Well, what about the present? Maybe the historical record has been clarified, because its historical. People had their chance to go through to the documentary record. But isn’t the present complicated? Its happening as, its unfolded as before our own eyes. And often when you read the newspapers you are told its very complicated.

(31.57) Occasionally I have this stomach if I could use the vulgarity, to look at the New York Times and this thing named Issabel Kurshner, she is their correspondent. And Mrs Kurshner is always misstated perplexity and confusion. She never knows what’s happening. So the last time Israel invaded Gaza. She says the Israeli say the majority of the fatalities were militants and the Palestinians say they were civilians. And the proverbial hands of flown in the air who knows who’s telling the truth?

(32.49) But in fact it’s not so difficult to who’s telling the truth all you have to do is do what’s done in every other conflicts. Namely what do reporters and journalists do. They go to the local human rights organization which has a track record of honesty and a track record of integrity and you asked them. So the very day that Mrs. Kurshner was throwing her hands in despair who knows who’s telling the truth, Beit Shelom the Israeli Information Center for Human Rights in the Occupied Territories issues a press release say we went to each of the casualties and our conclusion the majority were civilians.

(33.47) Now it’s a very interesting question with this matter of the human rights record. Because on its surface as the lawyers like to say prima facie you would expect there are to be a lot of controversy, why?
Number one, human rights laws are relatively new body of international law and that means a lot of terms and concepts have not been really flesh out and defined. One for example every on in this room has heard namely the term human shield. But what a human shield actually means is not entirely clear. Because for example, let say a city is under attack, and the defending country puts artillery next to civilian buildings because they have no alternatives. It is after all a concentrate civilians area, a city .If its put an artillery, a piece of artillery next to civilian area. Is it using it as a human shield or not? It’s a very tough call and you’ll see different human rights organizations reaching different conclusions about the same situation. End of Part One (35.18)