Western University administration response to student encampments inconsistent with international law

Originally published at NB Media Coop on June 11, 2024

Note: The content of this article was proofread by a legal scholar to ensure its accuracy with reference to international law.

On May 29, Western University’s President and Vice-Chancellor Alan Shepard released a public statement about the student encampments’ divestment demands.

For 31 days, Western University students have maintained encampments filled with protests, teach-ins, and cultural celebrations. They will remain until Western University’s administration ceases its 33.6 million dollar investment in Israel’s occupation of Palestine and publicly condemns the occupation. Meetings between students and administration have been unproductive since.

The latest administration response rejected students’ divestment demands, stating: “Universities have historically not taken up wholesale calls for boycott, divestment, and sanctions – and Western University is no different.”

This reason appears inconsistent with international law and the Western University administration’s past decisions.

Four inconsistencies are detailed here in reference to international law and Western University administration’s past actions.

Inconsistencies in the statement about Western University’s finances, morality, and academic policies are identified in an analysis by the student-run Western Divestment Coalition (see post: Shepard Speaks).

Stating that the violence in Palestine is “a war”

The public statement begins by calling Palestine and Israel “a war”: “the war in Israel and Palestine rages on.”

Using the term “war” dilutes the severity of Israel’s violence in Palestine. It denies the existence of reports by UN legal scholars, which have called the current violence genocide.

According to international law, a genocide is categorically different from a “war.” A war  –  referred to as “international armed conflict” – describes situations of intense, organized violence between two or more States. A genocide is a crime of “the most serious international concern” describing violence intending to “destroy, in whole or in part, a national, ethnical, racial, or religious group”; these acts include killings, inflicting bodily or mental harm, preventing new births, forcibly taking children from their families, and imposing conditions of life “calculated to bring about (the group’s) physical destruction” (see Article 6: Genocide).

Francesca Albanese, the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, wrote a March 2024 report titled “Anatomy of a Genocide” in which she details the atrocities committed in the territory.

Albanese’s predecessor, Michael Lynk, stated that Western media repeatedly ignores the severity of Israel’s violence in Palestine and thereby contributes to the continuation of Israel’s onslaughts. This dismissal – echoed in Shepard’s use of the term “war”  – persists despite extensive human rights reporting on Palestine, which Lynk calls  “the best-documented occupation and human rights crisis in the world.”

Stating that “universities do not take stances on political issues”

The public statement continues: “with few exceptions throughout history, universities do not take unilateral stances on political or social issues (…) our investment policy is driven not by political motives or any institutional position on particular global affairs.”

This statement is categorically false on two accounts.

First, universities have historically taken political stances. This includes Western University, which took a stance on South African apartheid in 1985, and more recently, on the Russia-Ukraine war in 2022.

A 1985-1986 report from the President’s office states a decision to divest from the apartheid in South Africa, indicating its investment policies have been driven by global affairs: “After soliciting submissions from the University community (…) the Board accepted that the University direct that its operating and endowment funds not be invested in any Canadian firms that are active in South Africa.”

A 2022 statement from Western University’s administration expressed unequivocal solidarity with Ukraineduring the Russia-Ukraine war, indicating that it has taken unilateral stances on political issues: “Western University joins the world in responding with shock and outrage at the aggression and unprovoked violence in Ukraine, at the hands of Putin’s government. We stand in solidarity with the people of Ukraine against this war and all unjust and unprovoked acts of war.”

Second, all individuals maintaining Western University’s investment policy are bound by international law.

Article 1 of the 1998 Rome Statute of the International Criminal Court (ICC), titled “The Court”, states that the Court “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern.” Thus, contrary to Shepard’s statement, Western University’s investment policy is legally required to be driven by global affairs when those global affairs fall under the jurisdiction of the ICC.

The “global affair” relating to the unfolding genocide in Palestine falls under the jurisdiction of the ICC. On January 26th, the Court issued an order to halt the violence in Palestine by Israel beneath the Genocide Convention: “Israel must, in accordance with its obligations under the Genocide Convention, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention.” (see page 23, statement 78)

Article III of the Convention on the Prevention and Punishment of the Crime of Genocide extends punishment to complicity in genocide. Thus, the Court’s decision legally binds all 193 UN Member State countries, including Canada, to do “everything in their power to uphold their obligation to prevent genocide”. In March, the Court issued more demands on Israel’s onslaughts; in May, Canadian Prime Minister Justin Trudeau stated respect for the Court’s decision: “The (Court’s) proposals are binding and we expect everyone to follow them as a matter of international law.”

As a Canadian institution, this order includes Western University.

Thus, Shepard’s statement does not appear compatible with international law in stating that Western University’s investments are “not driven (…) by global affairs” as they are legally bound to be.

Stating that divestment will have  “limited to no impact on the issues at hand”

The public statement reads: “many experts have argued that (divestment) would have limited to no impact on the issues at hand (…) divestment is nowhere near the best way Western can impact the current situation in Palestine and Israel.”

As stated previously, individuals maintaining Western’s investment policies are bound by international law. The “issues at hand” lie beneath the jurisdiction of the ICC. Thus, Western University’s administration and the “experts” it has consulted do not have the legal authority to comment on “the best way Western can impact the current situation in Palestine and Israel” for the reasons stated above.

Stating that Western University’s “most valuable contribution as a university is to support excellence in teaching, learning and research”

The administration letter states: “As with any important issue the world is facing, our most valuable contribution as a university is to support excellence in teaching, learning, and research, and to create an environment where dialogue, debate, and discovery can thrive (…) Western establishes and maintains academic partnerships around the globe because it furthers knowledge and makes the world a better place.”

The inconsistencies in this statement exactly echo those outlined previously.

As stated previously, individuals sustaining Western’s investment policies are bound by international law. The current “issue the world is facing” lies within the jurisdiction of the ICC. Thus, it appears inconsistent with what Western University’s administration defines as its “most valuable contribution as a university.”Thus, the reasons Shepard gives for refusing to divest $33.6 million from the occupation are completely inconsistent with international law. The Court has issued an order on Palestine and Israel; all persons are legally required to adhere to this order —to do “everything in their power to uphold their obligation to prevent genocide” – under the 1998 Rome Statute of the ICC.