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Burden of Proof

Crisis in the Middle East: Should International Law Play a Role?

Aired October 16, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF, the Middle East crisis: What will it take to end the latest round of violence between the Israelis and the Palestinians? And should international law play a role?

(BEGIN VIDEO CLIP)

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: We would like to achieve three objectives: We want to end the violence and restore security cooperation; we hope to achieve agreement of an objective and fair fact-finding process on what happened to bring us to this sad point and how we can avoid having it ever happening again; and we want to get the peace process going.

EHUD BARAK, ISRAELI PRIME MINISTER: I believe that an end to violence could be accomplished and in a way should be accomplished. I believe that the mechanism for making kind of tighter control may be a American-Israeli-Palestinian mechanism.

GHASSAN KHATIB, PALESTINIAN POLITICAL ANALYST: It should be possible for them to agree on two things. One -- or three, actually: One, to end this wave of violence. Second, to agree on an international inquiry to investigate what happened. And third, to try to work in order to prepare the ground for the resumption of the peace process.

(END VIDEO CLIP)

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

An emergency summit is under way in Egypt at this hour in an effort to end more than two weeks of deadly violence between the Israelis and the Palestinians. President Clinton and Egyptian President Mubarak are participating in the talks, along with Israeli Prime Minister Ehud Barak and PLO Chairman Yasser Arafat.

ROGER COSSACK, CO-HOST: One of the key issue being negotiated is how best to determine who should be held accountable for the latest unrest. Now, the Palestinians are calling for an international investigation while Israel wants a U.S.-led inquiry. And joining us from New York is law professor Alan Dershowitz. And here in Washington, Brian Jones; international law professor and former State Department attorney adviser Geoffrey Watson; and Maher Hanania, a Palestinian attorney with the American Federation of Ramallah, Palestine.

In the back row, Meghan Scott (ph) and Melissa Trumbel (ph).

VAN SUSTEREN: And CNN's chief international correspondent, Christiane Amanpour, joins us from the summit in Egypt.

Christiane, first to you. What is currently going on at the summit?

CHRISTIANE AMANPOUR, CNN CHIEF INTL. CORRESPONDENT: Well, they've had meetings all day. It started around noon here. There was first a plenary session and then there were bilateral meetings and other informal meetings. And what was going on substantively this afternoon was the foreign ministries were all meeting to try to draft a statement, an agreement on some kind of security measure, some kind of security agreement to formalize a cease-fire and end the violence.

What we're hearing right now from sources close to the media is that the foreign minister's meeting has broken up and they have not yet been able to come to any agreement on a statement yet, that they are going back into what we call bilateral meetings where the principals are all meeting with various people at various times to try and see if they can continue this and draw something out of their gathering here today.

But we understand that one of the key sticking points, as it has been all along, is the Palestinian demand for an international commission of inquiry into the violence and into what they call Israel's excessive use of violence.

But the bottom line is that there have been meetings. We don't think anything has been resolved yet. One meeting has broken up, the one that was trying to come to some kind of joint statement that could be binding or at least be signed by both sides, and they're continuing to work on it.

But, as you know, we've been told to keep our expectations extremely low. There was a similar crisis meeting back on October 5 in Paris that failed over precisely the same issue of the international investigative committee, and there are demands that are being made here that somehow, right now, as yet they haven't been able to bridge -- Greta.

COSSACK: Christiane, why is it so important, Christiane, that this commission either investigative or inquiry, be established? Why is it so important that blame be established?

AMANPOUR: Well, blame -- the blame game is one that, you know, is often played in this part of the world, and is often played in these kinds of conflicts. But let me give it to you from what both sides are saying. The Palestinians want to internationalize a commission of inquiry. In other words, they don't want just Americans, Israelis and Palestinians to be on it. They don't want it just to be led by the Americans, because even though they're partners with the Americans in this peace process, they feel that anything other than a fully internationalized commission with plenty of sympathizers, plenty of Palestinian sympathizers from Europe, from the United Nations, would simply be biased against them.

On the other hand, Israel only wants the United States, Israel and Palestinian officials because they think anything else, any commission loaded with sympathizers would be, quote, a "kangaroo court" aimed at indicting Israel. The Palestinians have basically said that they believe Israel has used excessive force. Israel says that that's not the case. And so you've got this sort of deadlock, this impasse right here. And it's the same deadlock that caused, as I say, the last crisis summit to fail.

VAN SUSTEREN: Christiane, it seems, though, that the United States is a little bit tipping towards some sort of investigative. I mean, the president has said that he is hoping that one of the achievements will be a fact-finding process.

AMANPOUR: Right.

VAN SUSTEREN: You know, I don't know if that's splitting hairs, but the how do you explain the United States calling it a fact-finding process and the Palestinians want an international investigative committee. What's the difference?

AMANPOUR: Well, it's a question, perhaps, of names and perhaps of how they're going to do an investigation if they do. I mean, we're hearing "fact-finding process," we're hearing "mechanism for investigation." But, you know, these are sort of words, as you know, happens in these kinds of negotiations where they try to bridge sort of differences by using different words and by trying to, you know, sort of smooth the substance out so that it can be acceptable to both sides.

What I've been told is that, in essence, Israel has agreed to European participation -- and this was not today, but even in the past -- on such a fact-finding commission, but the Palestinians want to further enlarge the participation on any tribunal because they believe that anything else is biased against them.

COSSACK: Maher, why is it so important? And, in fact, isn't it counterproductive to spend all this time trying to figure out who is at blame rather than go forward with the notion of saying, OK, maybe perhaps we're both at blame, let's go forward and see if we can figure out a way not to have these events?

MAHER HANANIA, PALESTINIAN ATTORNEY: Well, I couldn't disagree with you more. The reason for the fact-finding mission is, first of all, to find out who killed innocent children in Palestine. In 1982 when Israel invaded Lebanon, there was a massacre of Palestinians in two refugee camps, Sabra and Shatilla. Israel had an inquiry in which Ariel Sharon, the person that instigated this situation, was found partially to blame for the massacre of Palestinians in those two camps.

And I think, same as in this country as an attorney, when someone commits a crime, there's a trial, they find out what the facts are at this trial and this person is brought to justice.

The little kid who we all saw all over national television there was cuddling by his father, terrified to death, was shot at point- blank and was killed by an Israeli soldier. This is an act of murder, and I think the fact-finding mission would bring that to justice.

VAN SUSTEREN: Alan -- let me ask Alan. Alan, what about this? I mean, is this, you know, is this war or is this something else? I mean, do we need an investigation to see sort of what we think in a conventional sense of who murdered who?

ALAN DERSHOWITZ, LAW PROFESSOR: Well, I've been for years asking for investigations of who has killed children, of Yasser Arafat's personal blame for the slaughter of 30 or more kids at Mahalo (ph), of hundreds of other innocent civilians who were murdered at Yasser Arafat's personal insistence. But the PLO has never permitted any kind of an investigation. Suddenly they want an investigation and they want it conducted by the United Nations, which has already through its Security Council, condemned Israel for starting this in an "Alice in Wonderland" way, condemnation before any investigation...

VAN SUSTEREN: And so how do you resolve that?

DERSHOWITZ: Well, you don't -- you can't have an investigation. If I were conducting an investigation, I assure you here's what we would find: We would find that Yasser Arafat decided that playing the peace card was hurting him greatly because he wouldn't accept the peace that was offered by the Israelis and so he decided to play the violence card, and that Sharon provided an excuse by going up to the top of the mountain, by the way, with the permission of the Palestinian authorities, an agreement that he wouldn't enter the mosques. Then they started throwing boulders down at Jews at prayer.

The Israelis -- you can always provoke a democracy into overreaction and we're going to get nowhere if we try to ask who held the match and who held the soaking rag. We have to go forward, move forward and stop the violence and restart the peace process because the peace process has to be able to endure the kind of political provocations that Ariel Sharon engaged in, otherwise it's not worth anything.

COSSACK: All right, let's -- Alan, let's take a break and we'll continue this discussion when we come back.

Can either the Israelis or the Palestinians be held legally accountable for this violence, or is this essentially a political matter? Stay with us.

(BEGIN LEGAL BRIEF)

Yemen's president told U.S. officials today the explosion that killed 17 sailors aboard the USS Cole was a "criminal act." Earlier he suggested the blast might have been an accident.

Source: Yemen's official Saba News Agency

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to cnn.com/burden. We now provide a live video feed Monday through Friday, at 12:30 p.m. Eastern time.

If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show, and even join our chatroom.

COSSACK: Even with emergency talks under way in Egypt, the fighting continues,

Now, Geoff, there have been several agreements that have been negotiated prior to this fighting breaking out, the Oslo 1, Oslo 2, for example, the Wye, are those agreements dead? are there legal ramifications of those agreements? are these the kinds of things that an international court of law could enforce?

GEOFFREY WATSON, INTERNATIONAL LAW PROFESSOR: No, those agreements are alive, they are binding treaties, the fact that one or both sides may have violated portions of those agreements does not mean they are no longer in force. Quite the contrary, they remain in force. It is true that there have been, there are obligations on both sides, the Palestinians must refrain from inciting violence, from committing violence, from encouraging violence. They must cooperate in security matters, preventing terrorism, and the Israelis are supposed to, likewise, refrain from inciting.

COSSACK: But assuming that both sides bear a little fault here, what happens? I mean, what court, is there a court that would hear this? Is there any way to enforce these agreements? And if they are not enforceable, what good are they?

WATSON: The world court won't enforce these agreements, that only has jurisdiction over the states. But it is conceivable that Israeli or perhaps even Palestinian courts might enforce part of the agreements. For example, the human rights provisions, the criminal law provisions are, to some extent, enforceable in local courts.

VAN SUSTEREN: Christiane, obviously, you know, the United States' position is that these are still good agreements and that Oslo 1 and 2, and Geoff has just says that it has some international legal impact. Does either side, the Palestinians or the Israelis claim that any of the agreements are sort of off because the other side has violated a provision?

AMANPOUR: Well, not exactly in those terms, but clearly both sides feel that they have yet to achieve certain things that were sort of envisioned in Oslo. For instance, the Palestinians would say, you know, on the big substance, the final status agreements were meant to have happened in five years. Now, it's been extended, it was meant to happen by September 2000, it still hasn't happened, and they are continuing -- well, right now, they are not, but the process continues.

So there have been a lot of interim agreements that haven't yet provided the full end to this situation as the Palestinians sort of wanted. They would have had statehood, water rights, refugees being talked about, and Jerusalem. None of these were defined under Oslo. They all required negotiation and to be, you know, compromises to be made over them to figure the last final status peace agreement out.

But the Palestinians, for instance, would say that the continued building of Israeli settlements on the West Bank and in Gaza and things violates the heart of the agreement. The Israelis think, for instance, as one of your guests just mentioned, that there should be no incitement to violence, no violence by the Palestinians, and that they feel has been violated. And the whole renunciation of violence and the end of the conflict hasn't yet happened yet. So there are still sort of outstanding issues, and this process has taken a lot longer than was envisioned.

Can I just give you an update about what is happening here. As I said, the foreign ministry meeting, where they were meant to be drafting a statement to get out of the crisis that they are in right now, has not been able to draft an agreement. There is nothing has been resolved, according to an Israeli spokesman I just talked to and the Palestinian source, all the issues are still open.

The principals are now meeting, that means the President Clinton is meeting with Arafat, Barak is meeting with others, and King Abdullah and Egypt President Hosni Mubarak and those principals are meeting. But that foreign ministry meeting that was aimed at actually drafting a statement has concluded for the moment with no success.

VAN SUSTEREN: Alan, let me go to you. Christiane has, in addition to bringing us up-to-date on what is going on or not going on over there, has talked about the accusations of the failing on both sides on these agreements.

Do you see this as sort of -- do you ever see this as possible that both sides could, sort of, could go back to the table and even fulfill the agreements at this point?

DERSHOWITZ: I do. I'm optimistic, if we can have a breakthrough on stopping the violence. You know that the Israeli courts are open to Palestinians to enforce these agreements. The supreme court of Israel, which is a remarkable institution, has, for example, at the request of Palestinians, freed Lebanese hostages who were being held in exchange for Israeli soldiers -- missing soldiers -- and the Israeli supreme court, in a very unpopular decision, ruled that international law precludes the holdings of these kinds of hostages. The Israeli court has been opened repeatedly to Palestinians to enforce treaties, but of course the Palestinian courts are nonexistent. VAN SUSTEREN: Alan, let me ask you this, what do you make of Sharon going in September to -- and it seems like that really did provoke at least this round of violence. How do you view that?

DERSHOWITZ: Well, first, it was an excuse for the provocation of violence. But Sharon is a right-wing leader. He wanted to show the Israelis that if the Palestinians ever would have controlled the mountain top that Jews would not be allowed to go there and pray. After all, when the Jordanians controlled that mountain area, Jews were not even able to pray at the Western Wall.

So he was trying to make a demonstration. They went, and the Israeli government couldn't stop him, because they don't allow for a hecklers veto, just as we don't in this country, he was entitled to go there and to exercise his free speech. Should he have done it? I don't think he should have done it.

It was hours later that a group of people, led by the Palestinian, PLO leader, the man who was the grandson of the grand mafia of Jerusalem, ordered the young kids to start throwing boulders at Jews at prayers. It was too crowded to get the Jews out of area where they could have been killed lethally. And so the Israelis fired weapons.

Should they have fired those weapons? Reasonable people could disagree about that. But I think it was a mistake in judgment for Sharon to go there, but it provided an excuse, not a justification, for the throwing of boulders.

COSSACK: Alan, I think we have to let Maher respond to that before we break.

HANANIA: I disagree with him. I think, let me just go back to one point what he said, that Jews were never allowed to go to the religious rites during the Jordanian. I'm from the city from Ramallah, as you are aware if you've been through this area.

DERSHOWITZ: I have.

HANANIA: I am a Christian Palestine. My parents have not been to Jerusalem in over five years because they are not allowed to go without an Israeli permit. There's a roadblock right after Kalenia (ph). They are not allowed to go to Jerusalem and pray at their holy sites. Only if you get an Israeli permit.

DERSHOWITZ: Tens of thousands of people go there every Friday, I have seen it.

HANANIA: Those are only Palestinian Muslims who live around Jerusalem who carry the Jerusalem permit. Palestinians from Ramallah, from Nablus, from Hebron, who do not carry Jerusalem permits, are not allowed to go into Jerusalem without a permit from the Israeli authority. And that permit, you can only get it from the Israelis in Jerusalem.

VAN SUSTEREN: All right, we need to take a quick break. Christiane Amanpour, thank you for joining us today.

When we return we have more on this topic, this crisis in the Middle East. Stay with us.

(BEGIN Q&A)

Q: The Supreme Court today refused to grant the District of Columbia what right?

A: The right to vote in the House of Representatives.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back to BURDEN OF PROOF.

Geoff, you've written the book "The Oslo Accords," and in it it traces sort of the international law, as it relates to this ongoing Middle East dispute. And in the book you write of something called the law of belligerent occupation, with reference to East Jerusalem, West Bank and the Gaza Strip. What is that law? What do you mean by that?

WATSON: That is the law that governs the conduct of a state that is occupying other territory, enemy territory. I take the position in the book that law does not entirely apply any longer to Israel, if it ever did, because, to some extent at least, Israel has withdrawn from Palestinian areas. But that law, to the extent it does implies, imposes on Israel certain obligations to respect human rights and whatnot.

But I would add that the Palestinian Authority is likewise obliged to respect human rights.

VAN SUSTEREN: Are they both respecting human rights?

WATSON: There have obviously been derogations from the norms required of each side, I think. We can argue about to what extent each side has violated those norms, but a key obligation on both sides is refrain from inciting violence, and from committing, and I think we see -- our other guests have indicated examples of infringements of that obligation on both side.

(CROSSTALK)

COSSACK: Alan, let me just interrupt one second. Maher, does international law have any place in settling these disputes?

HANANIA: Well, I think the parties really need to settle these disputes. I agree with my friend here, but I think the reasons behind all this is basically is by Israel's failure to adhere to Resolution 242/337. If international law is adhered to by both parties, I think we can settle these conflicts.

VAN SUSTEREN: Alan, you want to get in on this. DERSHOWITZ: I just wanted to say that it is so important to understand that daily on Palestinian radio and television, and in the schools, they preach hatred of Jews, they preach Holocaust denial, they preach religious messages to kill the Jews.

In Israel, there is an enormous peace lobby that is trying desperately to bring about peace, and that has brought about a desire for peace on the ground, among the average Israeli. If Barak had brought about a peace from Oslo, he would have won a referendum. There is no way today that the Palestinian people, as a people, have been prepared for the peace process. It's not even clear that the Egyptian people have been are prepared. There is so much hatred that is going on and being preached from the very top.

COSSACK: Alan, let's let Maher respond.

They got nothing at Camp David. The prime minister of Israel keeps saying, we went further than any other Israeli government. Well, no Israeli government went any further than saying you need to sign a peace treaty with you, we will give you an autonomy. That was the late Prime Minister Begin, he was going to give the Palestinians an autonomy over the West Bank and Gaza. That's the only government that ever said anything.

COSSACK: Maher, I'm afraid that I have to interrupt you because I have been told that we are totally out of time. That is all the time we have. Thanks to our guests. Thank you for watching.

Today on TALKBACK LIVE: More on the Middle East crisis. Will there be success at the summit? Also, now that the cold war is over, is it time for the United States to reduce its stockpile of nuclear weapons? E-mail Bobbie Battista with your opinion, and tune in at 3:00 p.m. Eastern time.

VAN SUSTEREN: And join us again tomorrow at 12:30 p.m. Eastern time for another edition of BURDEN OF PROOF.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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