by John Quigley is a professor of law at the Moritz College of Law at the Ohio State University, where he is the Presidents' Club Professor of Law. In 1995 he was recipient of The Ohio State University Distinguished Scholar Award. Before joining the Ohio State faculty in 1969, Professor Quigley was a research scholar at Moscow State University, and a research associate in comparative law at Harvard Law School. Professor Quigley teaches International Law and Comparative Law and holds an adjunct appointment in the Political Science Department. In 1982-83 he was a visiting professor at the University of Dar es Salaam, Tanzania. John Quigley is active in international human rights work. He has published many articles and books on human rights, the United Nations, war and peace, east European law, African law, and the Arab-Israeli conflict, including The Case for Palestine: An International Law Perspective, Duke University Press, 2005 and The Statehood of Palestine, Cambridge University Press. 2011

The special relationship has a very significant impact in terms of the positions that the United States takes on the key legal issues involved in the conflict. And, in general, I think one can say that our positions are out of step with the positions of most of the world community and that it's one of the major reasons for the negative perception of the United States in the region that you've heard about this morning.

So I want to go through a number of key legal issues. The first I'll mention, and on this one I think the administration is not quite as negative as you'll find me saying on the others, relates to the status of Jerusalem. The Congress passed a law a couple of years ago to move the U.S. embassy to Jerusalem. The president, successive presidents now have resisted doing that. We have consulate general in Jerusalem which reports directly to the State Department. It has not been put under the embassy in Tel Aviv.

So as a technical matter, the Executive Branch has preserved the position that the status of Jerusalem is not determined. And we have not given into the Israeli position on that.

Similarly, with respect to the question of passports, Congress passed a law in 2002 saying that a person born in Jerusalem who would become a U.S. citizen had the right in being issued a U.S. passport to have Israel placed in the little box as to place of birth. The administration has resisted that and has refused to comply with that. This went to court. It was decided quite recently here in the Court of Appeals for the D.C. Circuit that it is within the power of the president to decide on issues of diplomatic recognition, and, therefore, it was within the power of the president to refuse to apply that act.

Okay. So that's the good news. That took about 35 seconds. The question of territory is a bit bleaker. You heard this morning references to the 1967 war. And this is one on which the United States, you know, should have been taking the view that President Eisenhower took in 1956 when the war broke out in 1967, but it didn't. And I think we're living with the consequences of that to this day.

The background of the war I think was accurately mentioned, if briefly, by General David this morning, that it was an attack by Israel. It's commonly thought that Israel justified the attack as anticipatory self defense, that is that Egypt was going to attack. In fact, that's not what it said in the Security Council.

What it said in the Security Council was that Egypt had, in fact, attacked Israel on the morning of June 5th, and the Israeli military action was a response to that. That was the position of Abba Eban all through the discussions in the Security Council in June of 1967.

It was, of course, a story that had been invented because, at a certain point, the Israeli high command realized that the Egyptian army was overextended in the troops that it had brought up to the border and that they had a pretty good chance of destroying the Egyptian army if they attacked. And that's, essentially, what they did.

And they were in discussion with the Johnson administration for about two weeks prior to June 5th, 1967. Abba Eban made repeated communications and entreaties to the Johnson administration saying, you know, we think that the Egyptians are going to attack, and the Johnson administration kept responding by saying, no, it's not true, and the CIA was analyzing on a daily basis and kept telling the administration, I think accurately, that there was no indication that Egypt was about to attack. Egypt was concerned that Israel was threatening Syria, and it wanted to deter an attack by Israel on Syria.

But that discussion eventually just came to kind of a standoff, but Johnson was fairly strong in telling Israel not to attack Egypt. Finally, the Israelis gave up on Abba Eban, and they sent Meir Amit, the head of Mossad, to come to Washington to put it to the administration a different way. He didn't say please support us if we attack. He said, you know, we're going to attack, what are you going to do? And the response he got from a number of administration officials led him to believe that the U.S. government would keep quiet, that is it wouldn't do a repeat of what Eisenhower did in 1956, and that it would let Israel essentially get away with it if it were able to be done relatively quickly.

Meir Amit went back and had a meeting at Levi Eshkol's house on the night of the 3rd of June, 1967. And what he told Levi Eshkol as to his impression of the Johnson administration and what it would do if Israel went ahead and attacked, he said, “They will not sit shiva” meaning that they will not mourn, they will not be unhappy if we do it.

And he was right. When it happened, the administration immediately knew that the story that was being told by Abba Eban was false. But they decided to keep quiet about it, and I think we're living with that ever since.

After about, well, by early July, the Israeli government stopped saying that Egypt had attacked. Levi Eshkol gave a press conference and was asked about the war, and that's when he said, well, Egypt was going to attack us, and that's why we had to attack. So they implicitly, you know, acknowledged that the story had been false.

But this story about their having been under threat really took hold and that, of course, is the dominant Israeli version now of the war. And if you look at justifications that were given in maybe a decade ago now for the Bush doctrine, when that was being discussed, the new policy about preemptive use of force for the United States, those who tried to write theoretical justifications for that doctrine fished around to find precedence for it, and the only one they found was the 1967 war, which, of course, was a false precedent. But that was the only precedent they could find in recent state practice for the proposition that it's okay to invade in substantial anticipation, let's say, of an attack, against an attack that is anticipated but is not close to being immediate.

So on this issue, I think the administration is quite deficient, and that holds true to the present. I mean, if you ask the administration now who was responsible for the 1967 war, you know, they're not going to give you a straight story on it.

The other major issue is the question of Palestine status and whether Palestine is a state, the whole issue that's come up before the General Assembly of the UN and in the Security Council, in particular with the application for admission to the UN that was filed in 2011 by the government of Palestine. And, of course, as you're aware, the United States kind of killed that in the Security Council and kept it from coming to a vote. The Palestine government subsequently applied for admission to UNESCO, which is a UN specialized agency and membership is open only to a state. And, there, there was no veto possibility, and it passed. So Palestine was admitted as a state to UNESCO.

And then, more recently, it went, in 2012, to the General Assembly of the UN for a statement, essentially, that Palestine is a state. And that passed. It passed, I think it was 139 votes in favor. And there are actually other states that abstained on that resolution but have diplomatic relations with Palestine. If you add that number to the number that voted in favor of that resolution, you get somewhere around, I think it's 158 states that have accepted Palestine as a state.

The United States resists that and says, well, Palestine can't be a state until it negotiates that with Israel, which, you know, doesn't make a great deal of sense to me and isn't an accurate reflection of international practice about statehood. I mean, when you get 158 states saying that another entity is a state, that's pretty strong.

When this resolution was adopted in the General Assembly, this is November of 2012, Susan Rice spoke in explanation of vote for the United States. The United States voted, I didn't mention, voted against the resolution. And she said, "Today's voting should not be misconstrued by any as constituting eligibility for a United Nations membership. It does not. The resolution does not establish that Palestine is a state."

Well, the resolution says that Palestine is a state. As a technical matter, she may be true. The General Assembly resolutions are not legislative in character. But with respect to statehood, what's critical is an entity's acceptance by other, by the existing states of the world. And here you clearly have it.

It goes back, in fact, to 1923, the Treaty of Lausanne, the treaty that set up Iraq and Palestine and Syria as states. If you look at that treaty, it refers to those three entities as being states detached from the Ottoman Empire. So the international community accepted those as states going back that far.

The issue of settlements, another one on which the United States' position has been very uncertain, let's say, you had analysis of this during the Carter administration where the legal advisor came out very strongly saying the settlements are illegal under the Geneva Convention of 1949. Then you had President Reagan coming in and saying something, well, “We're not sure about that; they're an obstacle to peace.”

But from that time, there wasn't much discussion of the legality of settlements. And when the bilateral process started in the mid-90s, the United States took the position in the Security Council that it would not support any Security Council resolutions critical of Israel and, in particular, on settlements. So as a result, it began vetoing resolutions that were critical of Israel and settlement constructions in particular around Jerusalem.

But more recently, when Ms. Clinton was secretary of state, she began referring to new settlements as being illegal, which implied that the prior settlements were okay. Now, we get a statement, this is now November of last year, from Secretary Kerry who says settlements are illegitimate. They backed off the word "illegal." I'm not sure what distinction they see between "illegal" and "illegitimate."

And then he wasn't all that clear. He made the statement in a way that it might have applied to prior settlements. But, still, it's very ambiguous. And this is, of course, against the very strong opinion of the world community on the question of settlements.

The United States has also pressured the Palestine government not to go to the International Criminal Court, which would be a way of dealing with the settlements and, to my mind, the only way within legal principle that the settlements can presently be dealt with since negotiation and pressure from the United States doesn't seem to be very effective. But the International Criminal Court statute defines war crimes. One of the war crimes, a long list of things defined as war crimes, one of them is transferring civilians into territory under belligerent occupation. So it's a slam dunk with respect to the settlements in the West Bank. And that, I think, actually should be pursued by the International Criminal Court, even without any further action on the part of the government of Palestine but on the basis of the conferment of jurisdiction that Palestine did in 2009, after the Gaza war, when it filed a statement with the International Criminal Court saying that it conferred jurisdiction for any war crimes or genocide or crimes against humanity committed in the territory of Palestine. And the prosecutor should be able to work simply on that basis and go ahead and investigate it.

Unfortunately, the prosecutor first said, well, I'm not sure whether Palestine is a state. So I was a bit mystified by that, so I sent him an email in March of 2009 and said, well, you know, by the way, Palestine is a state and you have every basis for this. And, eventually, other people started sending him memos in the other direction. So, eventually, he invited all of us to come to the Hague and argue it out, and we went and Dore Gold came and argued against jurisdiction.

Eventually, unfortunately, the prosecutor's office decided that it was not its position to make a determination as to whether Palestine is a state. This is after three years of saying it was struggling with the issue. It decided that it was not its position, and that, in fact, is what led the Palestine government to go to the General Assembly and get the resolution adopted in November of 2012.

But there's also the question of repatriation of the refugees from 1948. I'll just finish with that. Here, the United States' position used to be very strong. If you look at the proceedings of the UN General Assembly in December of 1948, when the resolution was being adopted calling on Israel to repatriate, Dean Rusk was representing the United States and he stood up and made a speech and he said that the refugees should not be pawns of a political settlement. The position of Ben-Gurion at the time was we will deal with the refugee issue when and if we get recognition from the Arab states, and Dean Rusk was saying, no, this is a humanitarian issue and it needs to be dealt with.

And the United States voted in favor of General Assembly Resolution 194 that was adopted then. And every year thereafter, when it was reiterated by the General Assembly, up until the mid-90s, the United States voted in favor of those reiterations of General Assembly Resolution 194. And then we stopped.

And now, of course, Israel has a peace agreement with Egypt. It has a peace agreement with Jordan, and it's negotiating an agreement with Israel. So Ben-Gurion's rationale, if that was the real rationale, would mean that Israel should be prepared to accept all the refugees back. But this is not being pressed by the United States in the negotiations, not at all.

At Camp David, in the year 2000, President Clinton really didn't take the repatriation question very seriously. Mr. Kerry apparently has suggested that maybe 80,000 should be taken back. That's a rumor. But, clearly, we're not taking a strong position. Thank you.

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