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Blog24th January 2010Review of my book in the Middle East JournalSanford R. Silverburg, Professor of Political Science at Catawba College and editor of Palestine and International Law has just reviewed my book for the prestigious Middle East Journal (Vol. 64, Number 1, 2010, pp. 150-152). If you do not subscribe to the journal you can read the full review by clicking on the link below. According to Silverburg I have ‘produced the strongest case for Palestinians in their quest for political recognition that has appeared in recent times', in what is an engaging, if somewhat critical review. I have a few quibbles with parts of the review that I want to clarify and I shall take the occasion of outlining these on my blog. People who know me might find his reference to my 'Sudanese nationality' amusing or might be left a little puzzled. But I shall leave that aside ... First is his criticism of my lack of use of Arab Palestinian sources. The explanation for this is quite simple. There are hardly any Palestinian international legal sources that were written in the mandatory period. The only people who have ever written in depth on the international issues as opposed to internal Palestinian legal developments (a totally separate issue to international law) include Bustani, Cattan, Cotran, Dajani, Husseini, al-Kassim, Qafisheh, and al-Qasem, and most of their writings, with the exception of Qafisheh's excellent recent contribution have not necessarily been legal histories of the Palestine mandate. The reason for the dearth of Palestinian legal sources in my book is not because I overlooked their work but because there is a dearth of sources from Palestinians on this subject. This is just a fact, if a lamentable one. But it is, perhaps, not surprising if you take into account their diaspora condition and the fact that two-thirds of Palestinians languish in refugee camps where they are unlikely to benefit from the very best education money can buy in the West unless they obtain one of the few scholarships that are available. Even Henry Cattan, the doyen of Palestinian legal scholars, who was a lecturer at the Jerusalem Law School from 1932 to 1942 and a member of the Palestine Law Council, hardly cites Palestinian legal sources in his books. It is no oversight. One cannot refer to sources which do not exist. Moreover, for the purposes of international law it was Britain which had legal responsibility for the Palestine mandate which is why the main focus of my book is on UK diplomacy and practice concerning Palestine on the whole. If I had written a book on Palestinian law in Palestine this would have been a different book that I am sure would have been interesting but it would not have been a book on international law. States make international law and neither Israel nor Palestine were states in the League of Nations era hence my focus was primarily on the role of the mandatory power in Palestine (Britain) as well as the other great powers. Second, I think that my analysis of self-determination is more subtle than Silverburg's review suggests. In fact, if he read my chapter on self-determination properly, he would have realized that I did not just attack the British government for its overall failure to recognize the rightful position of the indigenous Arab population. The point that I was trying to make was that Britain actually did recognize the rightful position of Palestine Arabs when it began administering the mandate. Not only that but by the late 1930s it was obvious that Britain was rather embarrassed by the Balfour Declaration and tried to renege on it. As I argue, I think quite clearly, the very fact of partition is an acknowledgement of Palestinian rights in Palestine. Indeed Silverburg makes no mention of my analysis of the UN Partition Plan which is one of the most extensive to date. Third, Silverburg described my chapter on the 1948 war as a ‘rather-one sided analysis'. Certainly I wanted to be provocative in this chapter, and therefore I focused mostly (but not wholly) on Israeli actions and Israeli revisionist history, with caveats, as I made clear on p. 172. I wanted this to be wake-up call for those international lawyers who continue to pretend as if 1948 never happened. My main point of criticism was focused on international lawyers like Stephen Schwebel who simply write as if the Palestinians vanished into thin air in 1948 and who make up legal categories such as ‘defensive conquest', to justify Israeli actions which has no legal basis in international law. Just to clarify I should add that I don't believe that a norm of ‘anticipatory self-defence' exists under international and I did not write about it in my book as Silverburg erroneously suggests. To me ‘anticipatory self-defence' seems to be another way of referring to ‘pre-emptive self-defence' which is wholly at odds with the UN Charter which stipulates that an armed attack must occur before self-defence can be lawfully exercised. Fourth, Silverburg writes that I do not deal with the legal status of those Palestinians who fled or were expelled in 1948 and who I describe as ‘refugees'. This is wholly incorrect. I dealt with their legal status from the outset of my chapter and I also explain why I use the term ‘refugee'. See my explanation in Chapter 8 at pp. 209-10. Fifth, Silverburg uses language that I do not use in my book. I never referred to ‘the ‘dastardly' creation of Israel'. Nor do I disparage the creation of Israel by using such language. I simply set out the facts from 1948-9 citing American and British sources and Israeli statements at the UN. My main point was that Israel was not created by the UN Partition Plan but by its own actions, which were not, until recently, wholly acceptable to most members of the international community because of what happened in 1948.
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