Vol. 15 No.5 (May 2005), pp.366-369

THE CASE FOR PALESTINE:  AN INTERNATIONAL LAW PERSPECTIVE, by John Quigley.  Durham and London:  Duke University Press, 2005. 360pp. Cloth. $79.95.  ISBN: 0-8223-3527-1.  Paperback. $22.95.  ISBN: 0-8223-3539-5.

Reviewed by Antony T. Sullivan, Senior Fellow for Mediterranean and Near East Programs, The Fund for American Studies, Washington, D.C.  Email:  atsullivan4321@comcast.net .

As perhaps suggested by the title, this book is in fact two volumes in one.   On the one hand, THE CASE FOR PALESTINE constitutes one of the best book-length summaries currently available of the historical case for the establishment of an independent and viable Palestinian state.  As a primer on what Palestinians understand the historical reality over the past century to have been, there is today no better guide than John Quigley’s updated and revised version of his first edition, published in 1990.  The appearance of this new edition could not be timelier, given the near total ignorance of Americans concerning the Palestinian experience.  On the other hand, the “international law perspective” touted in the book’s subtitle plays a considerably less prominent role than a reader might expect.  In fact, discussion of matters of international law and legitimacy are in general subsumed within the historical narrative of the Israeli-Palestinian conflict.  This is not a book (for example) for someone interested  in a comprehensive listing or exposition of all U.N. Security Council or General Assembly resolutions relating to the Israeli-Palestinian dispute.  Nevertheless, Quigley deftly weaves into his historical narrative the numerous instances where international law has been applicable to the Israeli-Palestinian conflict, especially since 1947.  And on that there hangs a depressing tale.

International law, in the sense of having any substantial impact on the actions of great powers or developments on the ground in the Israeli-Palestinian theater, has for decades proven almost totally irrelevant.  Foreign powers, and local and regional actors alike, have consistently ignored, resisted, violated or condemned international legitimacy.  Quigley is fully cognizant of this, and candidly admits that “most writers on the Israeli-Palestinian conflict find an emphasis on legal entitlement to be unrealistic, even counterproductive” (p.xii).  Nevertheless, he asserts that he remains convinced that a peace “not based on justice may turn out to be no peace at all” (p.xii).  Precisely so.  But in this Age of Terror, with an American administration apparently unimpressed by international legitimacy and evidently committed to an almost endless war against al Qaa’ida, can Professor Quigley realistically expect even a modicum of deference to the prescriptions of international law?  The fact that international legitimacy overwhelmingly supports the Palestinian rather than the Israeli case makes any application or enforcement of it difficult to imagine.

A distinguished professor of criminal, comparative and international law at Ohio State University, Quigley has studied the Israeli-Palestinian conflict [*367] throughout his career and has written and lectured widely on the subject.  His mastery of the topic and command of the literature published in or translated into English is on full display in the volume at hand.  Arab (Christian and Muslim), Jewish and other sources are exploited in a balanced fashion.  Names such as Sami Hadawi, Rashid Khalidi, Abraham Granovsky, Raphael Patai, Abdullah Schliefer, Ahad Ha’am, Rosemary Sayegh, Simha Flapan, Neville Mandel, Muhammad Muslih, and Alan R. Taylor march through this book.  Quigley also draws on some of the work of this reviewer.  Whatever may, or may not, happen as far as resolution of the Israeli-Palestinian issue is concerned, all should be grateful for his having put so much on the record in such a compact and readable fashion.

But make no mistake.  This volume will probably be dismissed in many quarters as irredeemably pro-Palestinian and pro-Arab.  Given the lamentable state of public discourse on the Israeli-Palestinian conflict, and the animus displayed by influential American media toward the Palestinian cause, this is to be expected.  Nevertheless, dismissal of this book would be unfortunate since it is in fact a dispassionate analysis of the long and tragic voyage of Jews and Palestinians to their rendezvous with destiny in our own time.  Especially given the atmosphere in the United States today, congratulations are due to Duke University Press for having the courage to publish this second edition.

The first seven chapters (of 33) in THE CASE FOR PALESTINE treat the history of the Zionist-Arab conflict from the late 19th century through the 1948 Arab-Israeli war and the establishment of Israel.  Nineteen Forty Eight is the hinge on which past and future turn, and Quigley appropriately devotes detailed attention to the legitimacy of Israeli and Zionist claims to the territory of Palestine, to the dispossession of Palestinians during the 1948 war, and to what happened to both Palestinian towns and land in and after that fateful year.  Quigley analyzes Israeli national institutions and ethnic distinctions in the law of Israel, and thereby provides important information not easily available (say) in back issues of The Washington Post or The New York Times.  It is a sad fact of life that when such information does surface in the United States it is often dismissed as “anti-Semitic,” even while it is a subject of regular and vigorous debate in the Israeli press.  THE CASE FOR PALESTINE may provoke outrage at Fox News, but it is likely to elicit only a yawn in Tel Aviv.

Discussion of the 1967 Arab-Israeli war and its consequences takes up a full six chapters.  Professor Quigley inquires whether Israel was in “mortal danger” (p.161) in June 1967 (the short answer: “no”), summarizes the realities that Palestinians have experienced under Israeli occupation, and describes how the years since 1967 have constituted a reprise and completion of what Zionism achieved in 1948.  He devotes special attention to the validity of the Palestinians’ claim of a “right” (p.181) to resist occupation, and retraces the long and winding road whereby the Palestine Liberation Organization came to recognize Israel in 1989.  Finally, Quigley suggests how Jerusalem, Israeli settlements in the West Bank, and the Palestinian refugee problem might be adjudicated in any Israeli-Palestinian [*368] settlement.  He states that “If applicable international norms inform the negotiations between Israel and the PLO, the parties might achieve a negotiated solution that could stand the test of time” (p.238).  But one senses that even Quigley does not believe that any such norms will be applied, and may indeed believe that any breakthrough to Israeli-Palestinian peace remains a chimera.

Such are the depressing historical narrative and the bleak outlook.  But readers will surely be interested in knowing more about the international norms and questions of legal entitlement that Quigley discusses at relevant junctures of his book.

One such juncture occurs in chapters four and especially six, “A Portrait by Picasso:  The UN Recommendation of Partition” and “Whose Land to Give?  The UN Power over Palestine.” Here, there is discussion of the debate over and drafting of UN General Assembly Resolution 181 authorizing the partition of Palestine, and analysis of the prerogatives of the United Nations General Assembly, especially as related to Articles 10, 11, and 14 of the UN Charter.  In reference to Resolution 181, Quigley observes that “even if the Assembly had intended to impose partition, it is not clear that it had the legal authority to do so” (p.47).  He notes that Hans Kelsen, Clyde Eagleton, Leland Goodrich, and Edward Hambro all agreed that UN General Assembly resolutions “have no obligatory character” (p.47).   On the other hand, Quigley points out that a number of scholars have argued that even if the General Assembly has no power over territory generally, it does possess decision-making power over territory that was under a League of Nations mandate.  For example, Emile Gerard, a former legal officer of both the League of Nations and United Nations, stated that the UN succeeded to the League’s power over mandate territory.  The General Assembly, Allan Gerson argued, possesses an “adjudicative role” to terminate a mandate that is “beyond its normal recommendatory role” (p.48).  Interestingly, Quigley analyzes the discussion in 1971 by the International Court of Justice of the legal significance of General Assembly Resolution 2145 which affirmed the right to independence of the people of Namibia.  In advisory opinions, the Court decided that South Africa’s mandate over Namibia was terminated, and endorsed the legality of resolution 2145, stating that “To deny to a political organ of the United Nations which is a successor to the League . . . the right to act . . . would not only be inconsistent but would amount to a complete denial of the remedies available against fundamental breaches of an international undertaking” (p.49). The ICJ made clear that this power derives from Article 10 of the UN Charter “which authorizes the General Assembly to discuss any question or any matters within the scope of the Charter and to make recommendations on these questions or matters to the Members of the United nations” (p.49).

In its advisory opinions on Namibia, the ICJ did not decide, Quigley makes clear, whether the General Assembly “has the power to decide on the future status of a mandate territory against the wishes of the inhabitants, which is the issue if it is asserted that Resolution 181 is a binding decision” (pp.51-52).  In 1947, two-thirds of the population of Palestine [*369] remained Arab, and the Palestinian majority was overwhelmingly opposed to the idea of partition.  In Quigley’s words, the Namibia advisory opinions “do not suggest the [General] Assembly has the power to adopt a territorial solution against the wishes of the inhabitants” (p.52).  But in 1947 the General Assembly did adopt just such a solution, in clear contravention of the wishes of the then majority of the population of Palestine.  Like so many later UN resolutions, 181 was never implemented in accordance with all of the terms adopted in 1947.

Elsewhere, Quigley discusses international legitimacy as it applies to Jerusalem, the Palestinian refugee problem, and the legal status of Arabs within Israel and that of Israeli settlers in the West Bank and Gaza Strip.  He recounts the process by which the United Nations came to recognize Palestinian demands for self-determination and the establishment of an independent state adjacent to Israel.  Concerning Jerusalem, Quigley observes that Palestinians, not Israelis, have the “stronger legal claim to the city, in its entirety,” but have nevertheless proposed an “east-west division . . . or shared sovereignty over the entire city” (p.226).  He adds that both the Security Council and the General Assembly have recognized East Jerusalem as occupied territory that must be returned to the Palestinians.  None of this will please many readers of this book.

This volume should be included on all academic reading lists dealing with the Israeli-Palestinian question, alongside materials expressing the pro-Israeli views of such scholars as Bernard Lewis (1996; 2001) and Martin Kramer (2001).  Especially now, THE CASE FOR PALESTINE is worth the attention of US government officials engaged in the Israeli-Palestinian peace process.  Quigley is to be commended for having compressed the work of a lifetime into this short, accessible, and copiously documented book.

REFERENCES:

Kramer, Martin.  2001.  IVORY TOWERS ON SAND: THE FAILURE OF MIDDLE EASTERN STUDIES IN AMERICA.  Washington, DC: Washington Institute for Near East Policy.

Lewis, Bernard.  1996.  THE MIDDLE EAST.  New York: Scribner.

Lewis, Bernard.  2001. WHAT WENT WRONG: WESTERN IMPACT AND MIDDLE EASTERN RESPONSE.  Oxford: Oxford University Press.

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© Copyright 2005 by the author, Antony T. Sullivan.