What would James Crawford “Australia’s greatest international lawyer” say about Palestine today?

May 25, 2024
crawford_header Image: Squire Law Library/ creative commons

James Crawford has been described as “Probably Australia’s greatest international lawyer of all time” (SMH, 16 June 2021). James Crawford died on 31 May 2021. But perhaps he still has something to contribute to the major controversy facing today’s world: Palestine.

Why should I be aware of someone by the name of James Crawford, you ask yourself? Readers will be critically aware of the importance of the ICJ in today’s world – particularly in light of the two outstanding judgments, being the South African claim re genocide, and the advisory opinion on the legal consequences of Israel’s occupation of the Palestinian territories: International law and Israel’s occupation: Understanding the ICJ advisory opinion case, March 7, 2024.

James Crawford has been described as “Probably Australia’s greatest international lawyer of all time”: Sydney Morning Herald, 16 June 2021. James Crawford died on 31 May 2021. But perhaps he still has something to contribute to the major controversy facing today’s world – Palestine.

Let me commence with a short bio. James Crawford entered Adelaide Law School in 1966, graduating with first class honours in 1971. I had the honour of being his junior in the end-of-year moot in 1968. He went on to do a PhD at Oxford, awarded in 1976. It was not the end of his academic career. In 2003, he was awarded a doctor of laws at Cambridge.

In the meantime, he developed a practice as an international lawyer. One of his more significant, and highly relevant successful cases, was the 2004 ICJ decision appertaining to the legality of Israel’s controversial separation barrier in the occupied territories. The precise title of the case was Legal Consequences of the construction of a Wall in the Occupied Palestinian Territory. Crawford appeared for Palestine.

In 2015 he was elected a judge of the ICJ and continued in that position until his death. There have only been two other Australians on the Court – Sir Percy Spender from 1964 to 1967, and Hilary Charlesworth, appointed in November 2021 and still on the Court.

Well, how might James Crawford contribute to the current debate? James Crawford published his major work, The Creation of States in International Law, in 1979. The Second Edition was published by Clarendon Press, Oxford, in 2007. The book offers an extensive coverage of the topic, addressing in detail the issues of criteria for statehood, the conditions for same imposed by international law, the impact of the United Nations and its organs; and it applies the criteria to specific cases such as Taiwan and Hong Kong. It then addresses modes of creation of states in international law, protectorates and termination of protected status, devolution including by elimination of post-Imperial links, secession, unions and reunions.

One portion of Chapter 9 is titled: The former Palestine Mandate: Israel and Palestine. What might it tell us about what is relevant today? Well, in one sense, perhaps not a lot. Recall its date – 2007. A few things have happened since then. I shall come to those in a moment.

Crawford addresses the history – the Ottoman Empire, the end of such, the Balfour Declaration – including its assertion that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine – the Mandate – UN Resolution 181(II) of 29 November 1947 incorporating a plan for the partition of Palestine (Arab and Jewish) – 1948-9 and the creation of the State of Israel, at which time the Zionist League declared its acceptance of the partition plan. The final act at this stage was the United Nations admitting Israel to membership. Importantly, it did so on Israel’s acceptance of the Partition Resolution as a “condition for its admission”

Perhaps surprisingly Crawford does not specifically refer to Security Council Resolution 242 (1967), passed after the Six Day War, setting the basic principles for a negotiated peace settlement, particularly as to boundaries.

He addresses the issue of the right of the Palestinian people to self-determination leading to the 1988 Declaration by the Palestinian National Council of the establishment of the State of Palestine, and the acknowledgement of same by the General Assembly whilst noting the opposition to such acknowledgment, principally by the US and Israel, with the consequence of the acknowledgment having limited practical effect.

He moves to Oslo (the Oslo Accords) and the recognition of substantial international consensus that the Palestinian people are entitled to form a State. Oslo was also important because it evidenced Israel’s then acceptance of the fact that there would be a Palestinian State, in fact, by 1999. Without specifically addressing the failure of the Oslo Accords, he moves to the 2004 ICJ decision on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, and records that the Court noted in that decision that the people of Palestine have a right of self-determination.

Not much, if anything, occurred between 2004 and the publication of his book in 2007. Crawford’s concluding remarks might be summarised in these passages:

Thus far international law has distinguished between the right to self-determination and the actual achievement of statehood, and for good reason. … (I)n the situation where State structures have not yet been created in fact, and where serious issues remain to be resolved about the constitution and boundaries of the putative State, its obligations towards minorities on its territory and the question of commitments to respect the rights of neighbouring States, statehood should not be regarded as existing already, as it were, by operation of law. Nonetheless this may not be the whole story. There may come a point where international law may be justified in regarding as done that which ought to have been done, if the reason it has not been done is the serious default of one party and if the consequence of its not being done is serious prejudice to another. (Emphasis added)

I would emphasise, on the issue of the creation of a Palestinian state, Crawford’s emphasis on the fact of an expectation of same from the very beginning, combined with an accepted right of the Palestinian peoples, to self-determination.

I would suggest that three significant things have occurred since 2007 and the date of Crawford’s concluding remarks.

The first is Security Council Resolution 2344 of December 2016, during the last month of the Obama presidency. The Resolution demanded that Israel immediately and completely cease all settlement activities in the occupied territories. It presumes that there will be a Palestinian state and that its borders will be those of the occupied territories. It is special because it is a resolution contrary to Israel’s interests that was not vetoed by the US. The Resolution is extensively addressed in Blood: The bitter harvest of breaching Resolution 2334, November 29, 2023.

The second is the 2018 Jewish Nation-State Law (the Basic Law) which officially defines Israel as the Jewish nation state. It then stipulates that the right to exercise national self-determination in the State of Israel “is unique to the Jewish people”. It is noted that at this stage the Law is not said to apply to the occupied territories. What the Law did clearly do, however, was inform the world that Israel was an apartheid state.

Crawford was a judge of the ICJ at the time of these two events and it would have been inappropriate for him to express any view as to their significance.

The third is the statements of the present Israeli government that there will never be a State of Palestine. The government was elected in November 2022. It came to government with a program of continuation of Israel’s apartheid rule over Palestinians in the occupied territories, with some of the parties in the government wanting to formally annex parts or all of the West Bank, whilst other parties, like Likud, wanting to continue de facto annexing the West Bank through the expansion of illegal settlements. The coalition declared in its manifesto that the Jews have the “exclusive and inalienable right to all parts of the Land of Israel”. Netanyahu made clear that the Land of Israel includes territories supposed to become a future Palestinian state, i.e. the occupied territories. The fact of apartheid was re-enforced.

Other, and more recent statements by government spokesmen should also be considered. Judea and Samaria (in other words the West Bank) are to be formally annexed by Israel. Gaza will be cleansed of all Palestinians. On this latter, one quote is sufficient: former Deputy Speaker Feiglin, 27 October 2023: “Do not leave a stone upon a stone in Gaza. Gaza needs to turn into Dresden … Complete incineration. No more hope … Annihilate Gaza now! Now!”

This must be, refer supra, the point where international law may be (is) justified in regarding as done that which ought to have been done.

That is a matter for the General Assembly. The Security Council cannot be trusted given the US veto: refer A state of Palestine? Outrage as US backs perpetual occupation and oppression, April 20, 2024. The General Assembly foreshadowed action when it sought, in December 2022, the advisory opinion on the legality of Israel’s occupation of the West Bank, including East Jerusalem, and Gaza. The decision on that matter is reserved.

Can the General Assembly sidestep the Security Council and the US veto, and impose a State of Palestine initially governed by a trusteeship and UN peacekeeping force? The answer is yes: recall the precedent of the General Assembly Resolution 377, the “Uniting for Peace” resolution: Gaza – What is the end game? November 18, 2023.


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