On 10th June, over 100 international lawyers issued an Open Letter to the Israeli government, stating that Israel’s policy proposal is “clearly unlawful, and will most likely have adverse consequences, including … consequences of an internationally wrongful act … [and] a high likelihood of violent escalation” as well as leading to “under certain circumstances … individual international criminal liability”.
The Open Letter is a remarkable document addressed to the political leaders of a democratic liberal State. It threatens, albeit indirectly, criminal prosecutions of the addressed officials, as well as violence and the delegitimization of the state of Israel, if Israeli leaders do not comply with the authors’ assertions of the law.
The threatening style of the Open Letter is compounded by the fact that there are a number of misrepresentations of legal and historical facts in the Open Letter.
The demanding style together with assertions that international law is unambiguous when in fact other opinions are equally valid, have the effect of dampening free inquiry, democratic deliberation, and honest academic debate about an extremely complex issue.
The open letter presents a variety of legal claims said to be incontrovertible—even bedrock rules of international law—though in reality, they are highly controversial. For instance, the open letter presents one view of the concept of self-determination and its relationship to statehood and territorial sovereignty, but the open letter fails to acknowledge that the subjects remain highly contested. Certainly, there is no universal agreement that a claim of self-determination entails a right to future statehood and territorial sovereignty, let alone that Palestinian self-determination is legally equivalent to statehood and attendant territorial sovereignty.
Likewise, the open letter presents a particular dogma about “annexation” of territory and military conquest, while the legal world embraces many other views. A fairly large degree of consensus has developed for the claim that the unlawful use of force (or perhaps any use of force) cannot serve as the basis for a claim of territorial sovereignty based on conquest, but there is no agreement or even precedent supporting the letter’s assertion that the use of force nullifies all alternative legal grounds for claiming sovereignty.
Indeed, there are few claims of general international law made in the open letter that are not contested, whether they concern the interplay between territorial sovereignty and the application of the rules of belligerent occupation, or the legal status of pronouncements from the UN General Assembly and the Security Council.
The views expressed in the open letter are legitimate, and in some cases popular; but, so too, are the contrary views dismissed and ignored by the open letter.
With that, it seems that the letter is intended to put political pressure on a democratically chosen government rather than to serve as a non-partisan legal advice.
17 June 2020, Andrew Tucker, Director, thinc.