Tuesday, June 16, 2015


In 1970, three years after the 1967 Six-Day War, an article appearing in the most prestigious international legal periodical, The American Journal of International Law, touched directly on the question of Israel’s rights in Jerusalem.5 It became a critical reference point for Israeli ambassadors speaking at the UN in the immediate decades that followed and also found its way into their speeches. The article was written by an important, but not yet well-known, legal scholar named Stephen Schwebel. In the years that followed, Schwebel’s stature would grow immensely with his appointment as the legal advisor of the U.S. Department of State, and then finally when he became
the President of the International Court of Justice in the Hague. In retrospect, his legal opinions mattered and were worth considering very carefully.

Schwebel wrote his article, which was entitled “What Weight to Conquest,” in response to a statement by then Secretary of State William Rogers that Israel was only entitled to “insubstantial alterations” in the pre-1967 lines. The Nixon administration had also hardened U.S. policy on Jerusalem as reflected in its statements and voting patterns in the UN Security Council. Schwebel strongly disagreed with this approach: he wrote that the pre-war lines were not sacrosanct, for the 1967 lines were not an international border. Formally, they were only armistice lines from 1949. As he noted, the armistice agreement itself did not preclude the territorial claims of the parties beyond those lines. Significantly, he explained that when territories are captured in a war, the circumstances surrounding the outbreak of the conflict directly affect the legal rights of the two sides, upon its termination.

Two facts from 1967 stood out that influenced his thinking:

First, Israel had acted in the Six-Day War in the lawful exercise of its right of self-defense. Those  familiar with the events that led to its outbreak recall that Egypt was the party responsible for the initiation of hostilities, through a series of steps that included the closure of the Straits of Tiran to Israeli shipping and the proclamation of a blockade on Eilat, an act that Foreign Minister Abba Eban would characterize as the firing of the first shot of the war. Along Israel’s eastern front, Jordan’s artillery had opened pre-pounding civilian neighborhoods in Jerusalem, despite repeated warnings issued by Israel.

Given this background, Israel had not captured territory as a result of aggression, but rather because it had come under armed attack. In fact, the Soviet Union had tried to have Israel labeled as the aggressor in the UN Security Council on June 14, 1967, and then in the UN General Assembly on July 4, 1967. But Moscow completely failed. At the Security Council it was outvoted 11-4. Meanwhile at the General Assembly, 88 states voted against or abstained on the first vote of a proposed Soviet draft (only 32 states supported it). It was patently clear to the majority of UN members that Israel
had waged a defensive war. 6

A second element in Schwebel’s thinking was the fact Jordan’s claim to legal title over the territories it had lost to Israel in the Six-Day War was very problematic. The  Jordanian invasion of the West Bank – and Jerusalem – nineteen years earlier in 1948 had been unlawful. As a result, Jordan did not gain legal rights in the years that followed, given the legal principle, that Schwebel stressed, according to which no right can be born of an unlawful act (ex injuria jus non oritur) . It should not have come as a surprise that Jordan’s claim to sovereignty over the West Bank was not recognized
by anyone, except for Pakistan and Britain. Even the British would not recognize the Jordanian claim in Jerusalem itself.

Thus, by comparing Jordan’s illegal invasion of the West Bank to Israel’s legal exercise of its right of self-defense, Schwebel concluded that “Israel has better title” in the territory of what once was the Palestine Mandate than either of the Arab states with which it had been at war. He specifically stated that Israel had better legal title to “the whole of Jerusalem.”

Schwebel makes reference to UN Security Council Resolution 242 from November 22, 1967, which over the years would become the main source for all of Israel’s peace efforts, from the 1979 Egyptian-Israeli Treaty of Peace to the 1993 Oslo Accords. In its famous withdrawal clause, Resolution 242 did not call for a full withdrawal of Israeli forces from all the territories it captured in the Six-Day War. There was no effort to re-establish the status quo ante, which, as noted earlier, was the product of a previous act of aggression by Arab armies in 1948.

As the U.S. ambassador to the UN in 1967, Arthur Goldberg, pointed out in 1980, Resolution 242 did not even mention Jerusalem “and this omission was deliberate.” Goldberg made the point, reflecting the policy of the Johnson administration for whom he served, that he never described Jerusalem as “occupied territory,” though this changed under President Nixon.7 What Goldberg  wrote about Resolution 242 had added weight, given the fact that he previously had served as a  Justice on the U.S. Supreme Court.

Indeed, among the leading jurists in international law and diplomacy, Schwebel was clearly not alone. He was joined by Julius Stone, the great Australian legal scholar, who reached the same conclusions. He added that UN General Assembly Resolution 181 from 1947 (also known as the Partition Plan) did not undermine Israel’s subsequent claims in Jerusalem. True, Resolution 181 envisioned that Jerusalem and its environs would become a corpus separatum, or a separate international entity. But Resolution 181 was only a recommendation of the General Assembly. It was rejected by the Arab states forcibly, who invaded the nascent State of Israel in 1948.

Ultimately, the UN’s corpus separatum never came into being in any case. The UN did not protect the Jewish population of Jerusalem from invading Arab armies. Given this history, it was not surprising that Israel’s first prime minister, David Ben-Gurion, announced on December 3, 1949, that Revolution 181’s references to Jerusalem were “null and void,” thereby anticipating Stone’s legal analysis years later. 8

There was also Prof. Elihu Lauterpacht of Cambridge University, who for a time served as legal advisor of Australia and as a judge ad hoc of the International Court of Justice in the Hague. Lauterpacht argued that Israel’s reunification of Jerusalem in 1967 was legally valid. He explained 9 that the last state which had sovereignty over Jerusalem was the Ottoman Empire, which ruled it from 1517 to 1917.

After the First World War, the Ottoman Empire formally renounced its sovereignty over Jerusalem as well as all its former territories south of what became modern Turkey in the Treaty of Sevres from 1920. This renunciation was confirmed by the Turkish Republic as well in the Treaty of Lausanne of 1923. According to Lauterpacht, the rights of sovereignty in Jerusalem were vested with the Principal Allied and Associated Powers, which transferred them to the League of Nations.

But with the dissolution of the League of Nations, the British withdrawal from Mandatory Palestine, and the failure of the UN to create a corpus separatum or a special international regime for Jerusalem, as had been intended according to the 1947 Partition Plan, Lauterpacht concluded that sovereignty had been put in suspense or in abeyance. In other words, by 1948 there was what he called “a vacancy of sovereignty” in Jerusalem.

It might be asked if the acceptance by the pre-state Jewish Agency of Resolution 181 constituted a conscious renunciation of Jewish claims to Jerusalem back in 1947. However, according to the resolution, the duration of the special international regime for Jerusalem would be “in the first instance for a period of ten years.” The resolution envisioned a referendum of the residents of the city at that point in which they would express “their wishes as to possible modifications of the regime of the city.”10 The Jewish leadership interpreted the corpus separatum as an interim arrangement that could be replaced. They believed that Jewish residents could opt for citizenship in the Jewish state in the meantime. Moreover, they hoped that the referendum would lead to the corpus seperatum being joined to the State of Israel after ten years.11

Who then could acquire sovereign rights in Jerusalem given the “vacancy of sovereignty” that Lauterpacht described? Certainly, the UN could not assume a role, given what happened to Resolution 181. Lauterpacht’s answer was that Israel filled “the vacancy in sovereignty” in areas where the Israel Defense Forces had to operate in order to save Jerusalem’s Jewish population from destruction or ethnic cleansing. The same principle applied again in 1967, when Jordanian forces opened fire on Israeli neighborhoods and the Israel Defense Forces entered the eastern parts of Jerusalem, including its Old City, in self-defense.

A fourth legal authority to contribute to this debate over the legal rights of Israel was Prof. Eugene Rostow, the former dean of Yale Law School and Undersecretary of State for Political Affairs in the Johnson administration. Rostow’s point of departure for analyzing the issue of Israel’s rights was the Mandate for Palestine, which specifically referred to “the historic connection of the Jewish people with Palestine” providing “the grounds for reconstituting their national home in that country.”
These rights applied to Jerusalem as well, for the Mandate did not separate Jerusalem from the other territory that was to become part of the Jewish national home.

Rostow contrasts the other League of Nations mandates with the mandate for Palestine. Whereas the mandates for Iraq, Syria, and Lebanon served as trusts for the indigenous populations, the language of the Palestine Mandate was entirely different. It supported the national rights of the Jewish people while protecting only the civil and religious rights of the non-Jewish communities in 12 British Mandatory Palestine. It should be added that the Palestine Mandate was a legal instrument in the form of a binding international treaty between the League of Nations, on the one hand, and Britain as the mandatory power, on the other.

Rostow argued that the mandate was not terminated in 1947. He explained that Jewish legal rights to a national home in this territory, which were embedded in British Mandatory Palestine, survived the dissolution of the League of Nations and were preserved by the United Nations in Article 80 of the UN Charter.13 Clearly, after considering Rostow’s arguments, Israel was well-positioned to assert its rights in Jerusalem and fill “the vacancy of sovereignty” that Lauterpacht had described.

The expulsion of over a million Jewish families from Arab countries and the confiscation of all their assets.
There were about 600,000 Arabs 300,000 that left their homes in 1948, mostly of their own volition and the urging of the attacking Arab armies, more or less at the same time as the over 990,000 Jewish families refugees who were persecuted and expelled from Arab countries, who have lived in those Arab countries for over 2,200 years, of which the Arabs confiscated their assets, businesses, homes and Real Estate property 120,440 sq. km or 75,000 sq. miles (which is 5-6 times the size of Israel). valued in the trillions of dollars. 
We in Greater Israel resettled ours million Jewish refugees from Arab countries with limited land and resources — It is time for the Arabs to resettle yours (on the land and homes you confiscated from the Jewish people in the Arab countries. There is also Jordan which was taken from the Jews), the 21 Arab states have more land and resources. The Arab dis-information must be ignored and countered. Most of the Arab-Palestinians came from neighboring Arab countries.
The million Jewish families expelled from Arab countries have multiplied by natural growth to over 7 million people.

The Legal Foundation and Borders of Israel under International Law Howard Grief

Howard Grief is the author of The Legal Foundation and Borders of Israel under International Law and is the leading expert on the subject. He co-copied me with three powerful letters in defence of our rights, which follow.

To Mr. Leon Gab
The Head of the Division,
Middle East II: Israel, Occupied Palestinian Territory,
Middle East Peace Process,
European External Action Service
Brussels, Belgium
Dear Mr. Gab,
I am appalled and dumbstruck by the fact that you are the Head of a Division of the European External Action Service whose jurisdiction explicitly deals with “Middle East II: Israel, Liberated not Occupied Palestinian Territory, Middle East Peace Process”. This title is an insult to the Jewish People, to Zionism and the valiant struggle that the Jews waged to reclaim their ancient homeland, a struggle that began in earnest with the convocation of the first Zionist Congress at Basel, Switzerland in 1897. The country of Palestine was created in April 1920 at the San Remo Peace Conference for one purpose only – to be the Jewish National Home, and the term “Occupied Palestinian Territory” is thus an oxymoron since Palestine was never intended to be an Arab land under international law now supposedly “occupied” by Israel, as the title of your office implies, but rather was always intended to be a Jewish land that was to reconstitute the ancient Jewish State of Judea destroyed by Rome in the first century C.E. It takes staggering ignorance or ingrained hostility to the Jewish People and Zionism to believe that the land known to the Jews as Eretz-Israel since the time of Joshua Bin-Nun, long before it was called Palestine, belongs to the local Arab inhabitants who have falsely re-branded themselves as “Palestinians”.

To disabuse yourself of the notion that there is such a thing in international law as “Israel-Occupied Palestinian Territory”, I would highly recommend that you read the pronouncements made by two eminent British statesmen who were instrumental in creating Palestine as the Jewish National Home and future independent Jewish State, namely, Prime Minister David Lloyd George and Foreign Secretary Lord Balfour, as well as those of Balfour’s successor, Lord Curzon, who did not favor the concept of Zionism but nevertheless admitted that Palestine was to become a Jewish country. I would also recommend that you read the statements made at the San Remo Peace Conference at the two sessions of April 24 and April 25, 1920 dealing with Palestine by the French Prime Minister Alexandre Millerand and the Director of the French Foreign Ministry, Philippe Berthelot, who, though vehemently opposed to establishing Palestine as a Jewish State, nevertheless conceded that was the actual purpose of the Balfour Declaration that was adopted in a new format by means of the San Remo Resolution that henceforth became part of international law and the foundation document of the State of Israel.
You condescendingly state that I am “fully entitled to express [my] particular historic and legal interpretations regarding Israel’s territorial rights”, as if I am formulating a non-legal, individualistic argument that is not in accord with the facts or the truth. I have in my correspondence with Mr. Ilk Uusit enumerated all those acts, principles and norms of international law which evidence the fact that an undivided Palestine was to be established as a Jewish State, without the creation of an Arab state in any part of the country. I will thus not repeat these arguments here. What I wrote is not “particular” to myself but is based solidly on the texts of various acts of international law that were approved by all the victorious Allied powers that dismantled the Ottoman Empire, including three prominent states of the European Union today, namely: Britain, France and Italy.
Upon the re-birth of the Jewish State on May 15, 1948, Jewish legal rights to Palestine were devolved upon the State of Israel. Whatever you may think, those rights never lapsed, were never annulled or voided and never validly or legally transferred to an Arab people known as “Palestinians”, as you so wrongly assume. Moreover, subsequent events – such as the 1947 Partition Resolution, Security Council Resolution 242, the Israel-PLO Agreements or the Road Map Peace Plan – have not superseded or curtailed the rights of the Jewish People to former Mandated Palestine, since none of those documents constitute acts of binding international law, despite the impression given to the contrary by advocates of the Arab “Palestinian” cause, including leading officials of the European Union and its bureaucratic apparatus, that includes your own office.
Mr. Gab, the acts and provisions of international law as well as the legal principles and norms I cited earlier to Mr. Uusit are not my “interpretations” of international law; they were what the law clearly states or connotes, without the necessity for “interpretation”, as you so glibly tell me. An interpretation of a specific law or that of an international agreement or treaty is only required when their plain meaning is unclear or ambiguous. That is certainly not the case for the relevant documents of international law pertaining to the legal status of former Mandated Palestine and Jewish legal rights thereto. It is you, not I, who prefers to “interpret” international law to favor the artificial and fabricated Arab “Palestinian” claim to Palestine. You ought to open your mind to the legal truth that you have never learnt or assimilated and the accompanying legal facts which underpin and confirm the ironclad Jewish case to the Land of Israel. If you do so, you will no longer be associated with a European office that falsely asserts that “Palestine” is “Israel-occupied Palestinian territory”.
I shall follow your advice and desist from any further exchanges with the European External Action Service, in particular with the Division you head. Perhaps you will be so kind as to place this letter in the hands of Lady Catherine Ashton to dispel her ignorance in addition to your own.

Howard Grief

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