JURIST Guest Columnist Anthony D'Amato
of Northwestern University School of Law says that the Obama administration can break the sixty-year deadlock in negotiations between the Israelis and the Palestinians by supporting the establishment of a special moot court - a quasi-official, transparent, privately funded tribunal that would render a non-binding advisory opinion on the two sides' competing claims...
ixty years of negotiations between Israel and Palestine have produced nothing of substance. Yet the Obama administration still harbors the magical belief that forcing the two sides to talk to each other will enable them to resolve their differences.
It's not just that negotiations between Israel and Palestine haven’t succeeded, it's that they cannot succeed. Neither side can afford to be persuaded by rational, logical, or fairness arguments. It would be political suicide for a delegate to concede anything of substance in the negotiations and then go home and tell the public that he was suddenly persuaded that the other side was right.
But even if the negotiations involve exchanges and not just assertions, the issues dividing Palestine and Israel are incommensurate. For example, suppose Hamas offers to cease its rocket attacks out of Gaza and asks in return some of the land that Israel is occupying. Israel would undoubtedly reply that the rocket attacks are illegal and therefore Israel is not going to bribe Hamas to stop violating international law. By the same token, suppose Israel offers to move back to the border those portions of its Wall that encroach upon Palestinian territory, in exchange for Palestine rescinding its declaration of permanent war against Israel. Palestine will undoubtedly reply that the International Court of Justice has already advised that the Israeli encroachments are illegal and hence Palestine will not bribe Israel to obey international law.
Adding a third-party mediator, like the United States, will not break the negotiating deadlock. Anything the United States proposes, including seemingly neutral matters such as suggesting an agenda for the conference, will be viewed as political by one side or the other. The more neutral a United States proposal, the more deviously political will it be characterized.
Perhaps the core reason for the failure of negotiations is suggested by the Latin maxim nemo debet esse iudex in propria causa
: no one should be judge in his own cause. In bilateral negotiations there are two judges who are judging their own cause.
If instead Israel and Palestine were trying to convince a neutral judge, their arguments would shift from the political to the rational. Fortunately we have a thousand years of experience with neutral adjudication: namely, courtroom trials.
I propose the establishment of a Moot Court to adjudicate the issues dividing Israel and Palestine. Its decision of course cannot be legally binding. It would be purely advisory. Nor by any means will the court itself be partisan like the one-sided Russell Tribunal on Palestine now being set up in Belgium. Our new court should be quasi-official: endorsed by governments, financed privately, open and transparent, with full media coverage, opening up a daily world-wide debate on the issues. No court like this has ever been constituted.
Israel and Palestine would probably oppose the Moot Court. But their approval should not be sought. The case is not about them; it’s about the mutual problem they have failed to solve.
Further explanation will be most efficient if I invent some Frequently Asked Questions and then proceed to give answers that will hopefully provoke readers to give answers that are better than mine.
(1) Will it be a private court or a government court?
Neither; it will be an in-between court. Governments and NGO’s can participate in its creation as well as private individuals and groups.
(2) If its decisions are not binding, will anyone care about its final judgment?
The interest in this trial, growing with each day of televised hearings, may be the most watched event of all time. Bloggers and news reporters will argue the merits of the case as it unfolds in the courtroom. Speculation about the final judgment will be immense. The educational value to the world public of the form, substance, and application of law will be unique and incalculable.
(3) How much money will be needed and where will it come from?
$50 million will be needed, mostly for technology and translators. Twenty-five foundations and charitable trusts from around the world will be given an opportunity on a first-come-first-served basis to contribute no less and no more than $2 million each. These foundations will be listed prominently as the sponsors of the Court.
(4) Who will establish the Court and pick the judges?
A group of Organizers, which can include government officials, foundation sponsors, and prominent international lawyers. George Mitchell, for example, should certainly be one of the organizers.
(5) Who will serve as judges?
A panel of seven judges from around the world with reputations for wisdom, justice, and legal ability. Two judges will be partisans of Palestine and Israel. But their participation in the Court’s deliberations will assure Israel and Palestine that their positions will be fairly conveyed to the entire panel of judges.
(6) Will Israel and Palestine each appoint a partisan judge?
They will have the right to do so, but if they decline, judges will be appointed for them.
(7) What law will govern the trial?
The judges will apply international law and international principles of equity.
(8) Plaintiffs have the burden of production. Which country will be the plaintiff?
Since Palestine wants to change the status quo more than Israel does, the plaintiff should be Palestine.
(9) Won’t Palestine argue that Israel should be Plaintiff because it has the burden of justifying its illegal occupation of Palestinian territory?
The Court cannot begin by assuming either side is acting illegally. NOTE: The argument over who is the Plaintiff is just the kind of issue that brings bilateral negotiations to a screeching halt. Fortunately this Moot Court can be set up without necessarily paying attention to protestations coming from Israel or Palestine.
(10) How will the lawyers for Israel and Palestine be chosen?
Israel and Palestine will be able to choose their own lead counsel. If they decline to make a choice, the Organizers will choose lead counsel and two assistants each from among the world’s best attorneys. Lawyers and judges may select their own clerks, who will be paid a modest salary by the Court.
(11) What will the lawyers and judges be paid?
They will be paid a continuation of their usual income stream.
(12) Where will the court be located?
It should be near the United Nations. The pre-trial location, which will only consist of a few brief meetings, can take place in any available courtroom in Manhattan, including courtrooms in law schools. The trial itself should take place on the campus of a college or community college at a reasonable distance from Manhattan.
(13) What about the pre-trial proceedings?
The judges should meet with the attorneys to set schedules and deadlines. The plaintiff should be given a month to submit a Complaint; the defendant a month to submit an Answer and Counterclaims if any; the plaintiff two weeks to reply to the counterclaims. Full jurisdiction is presumed. The court should not entertain any motion to strike or dismiss. There is no statute of limitations. No summary judgment, no discovery, no interrogatories. Based on the papers filed, the court should draw up a list of some ten to thirty contentious issues and hold a hearing with the parties as to the sufficiency of the list. The shorter the list, the better the public will be able to keep track of the proceedings.
(14) What will the trial be like?
The trial will follow the format of the average civil-law case, but with no jury. The biggest difference is that the case will be divided into the issues on the judges’ list. Each issue will be a mini-trial, with witnesses and arguments. Except for questions they may ask, the judges will not indicate their views on the issues. Witnesses may be called, including experts. Hearsay evidence will be allowed and no objections permitted, but the judges will not base any part of their final decision on hearsay evidence. Each side will be given at least a day for their opening statement and their summing-up. If the trial is well-managed it should not take longer than six months.
(15) Why should the Obama administration support this idea?
The basic interest of the United States in the Mideast, as consistently expressed by Presidents Carter, Reagan, Bush, Clinton, Bush, and Obama, is the stability of the region. The specific issues dividing Israel and Palestine are not as important as a stable peace. Thus the United States would appear to have more of a stake in the legal process of the proposed Moot Court than in the specific conclusions the Court may reach. And since the Court’s final judgment is not binding, it’s hard to see that any harm would come out of implementing this proposal. Anthony D. Amato is Leighton Professor of Law at Northwestern University, where he teaches international law and human rights.