International lawand the West Bank By Maurice Ostroff June 2005

International law and the West Bank By Maurice Ostroff       June 2005 A valuable source of authoritative, easily digestible  information on the legalities of the Arab-Israel conflict is available in a booklet by Australian lawyer and historical writer, Ian Lacey, who has given evidence on the subject to the Australian Parliament’s Joint Standing Committee on Foreign Affairs, Defence and Trade The booklet “International Law and The Arab-Israel Conflict” contains extracts from the seminal work "Israel and Palestine - Assault on the Law of Nations" by the late Professor Julius Stone, one of the twentieth century's leading authorities on the Law of Nations. Lacey was a former student of Professor Stone. The full text of this highly recommended booklet is available at: http://www.aijac.org.au/resources/reports/ international_law.pdf Below are extracts dealing with The Self-Defence Principle. The basic precept of international law concerning the rights of a state victim of aggression, which has lawfully occupied the attacking state’s territory in the course of self-defence, is clear. This precept is that a lawful occupant such as Israel is entitled to remain in control of the territory involved pending negotiation of a treaty of peace. Both Resolutions 242 (1967) and 338 (1973), adopted by the Security Council after respective wars of those years, expressed this requirement for settlement by negotiations between the parties. The Security Council and the General Assembly in 1967 resisted heavy Soviet and Arab pressures demanding automatic Israeli withdrawal to the pre-1967 frontiers. Through the decade 1967-1977, Egypt and her Arab allies compounded the illegality of their continued hostilities by proclaiming the slogan "No recognition! No Peace! No negotiation!" thus blocking the regular process of international law for post-war pacification and settlement… Israel's territorial rights after 1967 are best seen by contrasting them with Jordan's lack of such rights in Jerusalem and the West Bank after the Arab invasion of Palestine in 1948. The presence of Jordan in Jerusalem and elsewhere in cis-Jordan from 1948 to 1967 was only by virtue of her illegal entry in 1948. Under the international law principle ex iniuria non oritur ius she acquired no legal title there. Egypt itself denied Jordanian sovereignty; and Egypt never tried to claim Gaza as Egyptian territory. Israel's presence in all these areas pending negotiation of new borders is entirely lawful, since Israel entered them lawfully in self-defence. International law forbids acquisition by unlawful force, but not where, as in the case of Israel's self-defence in 1967, the entry on the territory was lawful. It does not so forbid it, in particular, when the force is used to stop an aggressor, for the effect of such prohibition would be to guarantee to all potential aggressors that, even if their aggression failed, all territory lost in the attempt would be automatically returned to them. Such a rule would be absurd to the point of lunacy. There is no such rule…. International law, therefore, gives a triple underpinning to Israel's claim that she is under no obligation to hand back automatically the West Bank and Gaza to Jordan or anyone else. In the first place, these lands never legally belonged to Jordan. Second, even if they had, Israel's own present control is lawful, and she is entitled to negotiate the extent and the terms of her withdrawal. Third, international law would not in such circumstances require the automatic handing back of territory even to an aggressor who was the former sovereign. It requires the extent and conditions of the handing back to be negotiated between the parties.  Competing Claims to Title Because the Jordanian entry onto the West Bank and East Jerusalem in 1948 was an unlawful invasion and an aggression, the principle ex iniuria non oritur ius beclouded even Jordan's limited status of belligerent occupant. Her purported annexation was invalid on that account, as well as because it violated the freezing provisions of the Armistice Agreement. Conversely Israel's standing in East Jerusalem after her lawful entry in the course of self-defence certainly displaced Jordan's unlawful possession.    Once this position is reached, and it is remembered that neither Jordan nor any other state is a sovereign reversioner entitled to re-enter the West Bank, the legal standing of Israel takes on new aspects. She becomes then a state in lawful control of territory in respect of which no other state can show better (or, indeed, any) legal title. The general principles of international law applicable to such a situation, moreover, are well-established. The International Court of Justice, when called upon to adjudicate in territorial disputes, for instance in the Minquires and Echrehos case between the United Kingdom and France, proceeded "to appraise the relative strength of the opposing claims to sovereignty". Since title to territory is thus based on a claim not of absolute but only of relative validity, the result seems decisive in East Jerusalem. No other state having a legal claim even equal to that of Israel under the unconditional cease-fire agreement of 1967 and the rule of uti possidetis, this relative superiority of title would seem to assimilate Israel's possession under international law to an absolute title, valid erga omnes... The most succinct statement of this position is in Professor Stephen Schwebel’s “What Weight to Conquest?”  published in 1970,  summarized as follows: a) A state acting in lawful exercise of its right of self-defence may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defence. b) As a condition of its withdrawal from such territory, that state may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use force against it of such a nature as to justify exercise of self-defence. c) Where the prior holder of the territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title." Lacey notes that these issues  have continuing relevance in the context of current assertions that Israeli presence in the Territories constitutes an "illegal occupation". Such assertions ignore both Israel’s underlying right to lawful possession of the Territories as outlined by Stone, and the specific rights reserved to Israel in the interim power-sharing agreements under the Oslo Accords, as extracted in Part 5 of the booklet. As Stone remarks, a state victim of aggression is entitled to protect itself by retaining lawful possession of territory taken in self-defence from a defeated aggressor. The dismemberment of Germany after two world wars, as a protection against any repeated aggression, is a classic example of the operation of the customary law. The legal principle is reflected in Article 75 of the Vienna Convention on the Law of Treaties, which declares that the provisions of the Convention governing the validity of treaties are "are without prejudice to any obligation…which may arise for an aggressor State" in consequence of measures taken by the victim of the aggression in lawful self-defence. In the case of the Territories the relevant historical background includes the Arab invasion of Israel in 1948, continuing armed incursions by irregular forces after the armistice agreements of 1949, and the naval blockade and the massing of the armed forces of Egypt, Jordan, Syria and Iraq in preparation for a further invasion in 1967. As President Gamal Abdel Nasser declared to the Egyptian parliament at the time: "The problem before the Arab countries is not whether the port of Eilat should be blockaded or how to blockade it — but how totally to exterminate the State of Israel for all time". According to Stone, demands that Israel withdraw unilaterally from the whole of the Territories, and without any peace agreement, security guarantees or border adjustments, would negate the whole basis for the negotiation of a peaceful settlement with"secure and recognized boundaries" as contemplated by UNSC Resolution 242. In addition, Lacey's readable booklet deals extensively withSovereignty in Jerusalem, The Legality of the Settlements, The Principle of Self-determination,the Oslo Accords and the Roadmap

Published December 2010 Vol. 10, No. 17   21 December 2010 The Fallacy of the “1967 Borders” – No Such Borders Ever Existed Alan Baker The Palestinian leadership is fixated on attempting to press foreign governments and the UN to recognize a unilaterally declared Palestinian state within the "1967 borders." Indeed, this campaign appeared to have some initial successes in December 2010 when both Argentina and Brazil decided to recognize a Palestinian state within what they described as the "1967 borders."  But such borders do not exist and have no basis in history, law, or fact. The only line that ever existed was the 1949 armistice demarcation line, based on the ceasefire lines of the Israeli and Arab armies pending agreement on permanent peace. The 1949 armistice agreements specifically stated that such lines have no political or legal significance and do not prejudice future negotiations on boundaries. UN Security Council Resolution 242 of 1967 acknowledged the need for negotiation of secure and recognized boundaries. Prominent jurists and UN delegates, including from Brazil and Jordan, acknowledged that the previous lines cannot be considered as international boundaries. The series of agreements between the PLO and Israel (1993-1999) reaffirm the intention and commitment of the parties to negotiate permanent borders. During all phases of negotiation between Israel and the Palestinians, there was never any determination as to a border based on the 1967 lines. The PLO leadership solemnly undertook that all issues of permanent status would be resolved only through negotiations between the parties. The 2003 "Road Map" further reiterated the need for negotiations on final borders. With ongoing and increasing intensity, the Palestinian leadership is fixated on advancing a concerted policy vis-à-vis the international community and public opinion, demanding recognition of what they claim to be the "1967 borders," and acceptance of a unilaterally declared Palestinian state within those borders. Indeed, this campaign appeared to have some initial successes in December 2010 when both Argentina and Brazil decided to recognize a Palestinian state within what they described as the "1967 borders."1 In actual fact, the Palestinian leadership, as well as members of the international community, are well aware that such borders do not exist, nor have they ever existed. They have never figured in any of the international, agreed-upon documentation concerning the Israel-Arab and Israel-Palestinian issues, and have no basis whatsoever, neither in law nor in fact. There are no provisions in any of the agreements signed between Israel and the Palestinians that require withdrawal to the "1967 borders." There were never any geographic imperatives that sanctify the 1967 lines. Clearly, there could be no legal or political logic to enshrining as an international boundary an inadvertent and coincidental set of ceasefire lines that existed for less than 19 years While the above is fully evident to the Palestinian leaders who are actively and daily advancing this policy - principally the head of the Palestinian Authority, Mahmoud Abbas, and the head of the Negotiations Department of the Authority, Sa'eb Erekat, both of whom were themselves actively involved in all the stages of negotiation - they nevertheless continue with their fixation to present the concept of the "1967 borders" as an accepted international term-of-art and as an Israeli commitment. The following is a summary of the background to the 1967 lines as described in the international documentation: UN Security Council Defines Initial Ceasefire Lines The term "1967 lines" refers to the line from which Israel military forces moved into the territories at the start of hostilities on June 4, 1967 ("The Six-Day War"). These lines were not based on historical fact, natural geographic formations, demographic considerations, or international agreement. In fact, they had served as the agreed-upon armistice demarcation lines from the termination of the 1948 War of Independence, pursuant to the armistice agreements signed between Israel and its neighbors Egypt, Jordan, Syria, and Lebanon in 1949. These lines remained valid until the outbreak of the 1967 hostilities. The armistice demarcation line represented nothing more than the forward lines of deployment of the forces on the day a ceasefire was declared, as set out in Security Council Resolution 62 of November 16, 1948, which called for the delineation of permanent armistice demarcation lines beyond which the armed forces of the respective parties will not move. The line was demarcated on the map attached to the armistice agreement with a green marker pen and hence received the name "Green Line." The Security Council in its resolution stressed the temporary nature of the armistice lines that were to be maintained "during the transition to permanent peace in Palestine," intimating that permanent peace would involve negotiating permanent bilateral borders that would be different from the armistice demarcation lines.2 1949 Armistice Agreements In fact, the Israel-Jordan Armistice Agreement signed on April 13, 1949, as well as all the other armistice agreements, emphasized the transitional nature of the armistice as "an indispensable step toward the liquidation of armed conflict and the restoration of peace in Palestine." The language of the agreement went to great pains to stress that the armistice lines were of a provisional and non-political nature and were not intended to, and did not constitute international boundaries, and as such do not prejudice the rights, claims, and positions of the parties in the ultimate peace settlement: "No provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations."3 "The basic purpose of the Armistice Demarcation Lines is to delineate the lines beyond which the armed forces of the respective Parties shall not move."4 "The provisions of this article shall not be interpreted as prejudicing, in any sense, an ultimate political settlement between the Parties to this Agreement."5 "The Armistice Demarcation Lines defined in...this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto."6 Subsequent Views on the Transitional Nature of the Lines Statements from Arab and other sources between 1949 and 1967 confirm the common understanding as to the transitional nature of the lines. During the debate in the Security Council before the outbreak of hostilities in 1967, the Jordanian ambassador stated: "There is an Armistice Agreement. The Agreement did not fix boundaries; it fixed a demarcation line. The Agreement did not pass judgment on rights political, military or otherwise. Thus I know of no territory; I know of no boundary; I know of a situation frozen by an Armistice Agreement."7 Prof. Mughraby wrote in the Beirut Daily Star: "Israel is the only State in the world which has no legal boundaries except the natural one the Mediterranean provides. The rest are nothing more than armistice lines, can never be considered political or territorial boundaries."8 President Lyndon Johnson is on record stating: "The nations of the region have had only fragile and violated truce lines for 20 years. What they now need are recognized boundaries and other arrangements that will give them security against terror, destruction and war."9 In this context, international jurists have also acknowledged the limited effect of the armistice lines: Elihu Lauterpacht, in his booklet, Jerusalem and the Holy Places, states:  "Each of these agreements...contains a provision that the armistice lines therein laid down shall not prejudice the future political settlement. It would not therefore be accurate to contend that questions of title...depend on the Armistice Agreements. Questions of sovereignty are quite independent of the Armistice Agreements."10 Judge Steven Schwebel, former President of the International Court of Justice, stated in 1994: "The armistice agreements of 1949 expressly preserved the territorial claims of all parties and did not purport to establish definitive boundaries between them."11 Security Council Resolution 242, 1967 The transitory nature of the 1949 armistice demarcation lines was clearly acknowledged by the Security Council in Resolution 242 of 1967, after the "Six-Day War," which affirmed, in its first paragraph: "...respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force."12 There is no call in this resolution for a return to the armistice demarcation lines or to any other line or border. The Security Council specifically dismissed the Arab demand for a text that required Israel to completely return all the territory it occupied during the 1967 conflict. Israel was called upon to withdraw from "territories occupied in the recent conflict," not from "all the territories" or even from "the territories." At the same time, the Council called upon the parties to work together to promote agreement on a peaceful and accepted settlement in accordance with the provisions and principles of the resolution. Clearly this settlement was intended to include the negotiation of secure and recognized boundaries that would replace the armistice demarcation lines, pursuant to the above references in the armistice agreements to the same "ultimate peaceful settlement." During the Security Council debate on the acceptance of Resolution 242, the representative of Brazil, in accepting the resolution, declared:        "Its acceptance does not imply that borderlines cannot be rectified as a result of an agreement freely concluded among the interested States. We keep constantly in mind that a just and lasting peace in the Middle East has necessarily to be based on secure permanent boundaries freely agreed upon and negotiated by the neighboring States."13 Israel-Palestinian Declaration of Principles, 1993 While this fact has been widely acknowledged in both legal and political literature throughout the years,14 the basic reciprocal undertaking by the Palestinian and Israeli leaderships to negotiate borders between their respective territories was given formal confirmation by Yasser Arafat, his deputy and later replacement Mahmoud Abbas, and Sa'eb Erekat during the groundbreaking "Declaration of Principles on Interim Self-Government Arrangements" (signed inter alia by Abbas) of September 13, 1993, in which the PLO and the Government of Israel acknowledged that the negotiations on the permanent status of the relationship between them would cover:  "...remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest." On the eve of the signature of the above declaration, Arafat made the solemn commitment in a letter to Israeli Prime Minister Yitzhak Rabin: "The PLO commits itself to the Middle East peace process, and to a peaceful resolution of the conflict between the two sides and declares that all outstanding issues relating to permanent status will be resolved through negotiations."15 Clearly, the present, ongoing fixation by Arafat's successor, Mahmoud Abbas, and his chief negotiator, Sa'eb Erekat, in attempting to bypass the agreed-upon negotiating process and achieve unilateral recognition of a Palestinian state within the "1967 borders" runs squarely against Arafat's solemn undertaking in the name of the Palestinian people in 1993. Israeli-Palestinian Agreements, 1993-1999 The above references to permanent status negotiations on borders and to achieving the aims of Security Council Resolution 242 were repeated in a series of mutually agreed documents entered into between the PLO and the Israel Government.16 Furthermore, with a view to strengthening this commitment, they undertook in the 1995 Interim Agreement not to act unilaterally to change the status of the territories pending outcome of those permanent status negotiations: "...neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations."17 This undertaking was reiterated by the parties in Article 9 of the 1999 Sharm el Shiekh Memorandum: "Recognizing the necessity to create a positive environment for the negotiations, neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip in accordance with the Interim Agreement." Throughout all the phases of the negotiations on these various agreements and memoranda between Israel and the Palestinians, and in the texts of these documents, there was never any reference to the 1967 linesas a potential border between the two neighbors, nor was there any reference to any commitment or obligation by Israel to withdraw to the 1967 lines. Road Map, 2003 Further indication of the non-existence of "1967 borders" and the rejection of any unilateral act by the Palestinians is evident from the terms of the Quartet-initiated "Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict" of April 30, 2003.18 In this document the parties were expected, in the second and third phases of implementation of the "Road Map" and after election of a responsible Palestinian leadership, to engage in negotiation focusing on the option of creating an independent, viable Palestinian state, initially with "provisional borders." This was intended to serve as a way-station to the permanent settlement that was scheduled for the third stage, where final status borders would be recognized by an international conference convened for that purpose. Clearly, if and when the parties return to a modus of bona fide negotiation and reach the issue of defining their mutual border, the 1967 line could indeed figure as a point of reference in the negotiations between them, assuming that it answers the criteria set out by the Security Council for a border that will avoid situations of threats of force and violence. But this can only emanate from a reciprocal and good faith attempt by the parties to act together, and not unilaterally, in determining their own borders, based on their mutual interests as neighbors. Such issues cannot and must not be dictated from outside, whether by the UN or by individual states. Thus, in light of all the above, the question arises if and when the Palestinian leadership will come to admit the absurdity in attempting to invent "1967 borders" that obviously lack any historical, legal, or factual basis? Similarly, one may ask when they will see the utter lack of pragmatism and realism in their attempt to dictate to the international community a unilateral Palestinian state in violation of their own commitments, undermining the internationally accepted Middle East peace process as well as internationally recognized and witnessed documents. *     *     * 1. For the text of the Argentinean declaration, see http://www.mrecic.gov.ar/. The text of the Brazilian declaration may be found at http://www.itamaraty.gov.br/sala-de-imprensa/notas-a-imprensa/reconhecimento-do-estado-palestino-nas-fronteiras-de-1967. 2. S/RES/62 (1948)S/1080, 16 November 1948. 3. Article II(2), http://www.mfa.gov.il/MFA/Foreign+Relations/Israels+Foreign+Relations+since+1947/1947-1974/Israel-Jordan+Armistice+Agreement.htm. 4. Article IV(2). 5. Article VI(8). 6. Article VI(9). 7. 1345th meeting of the Security Council, May 31, 1967. 8. Beirut Daily Star, May 28, 1967. 9. Department of State Bulletin 33, June 19, 1967. 10. Elihu Lauterpacht, Jerusalem and the Holy Places (London, 1968), p. 45. 11. Justice in International Law, Selected Writings of Judge Stephen M. Schwebel (Cambridge University Press, 1994). 12. UN Security Council Resolution 242, November 22, 1967, http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/UN+Security+Council+Resolution+242.htm. 13. S/PV.1382(OR), 22 November 1967. See also Alan Baker, "Recognition of a Palestinian State - Premature, Legally Invalid, and Undermining any Bona Fide Negotiation Process," Jerusalem Issue Brief, December 9, 2010, http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DRIT=1&DBID=1&LNGID=1&TMID=111&FID=582&PID=2225&IID=5441&TTL=Recognition_of_a_Palestinian_State_%E2%80%93_Premature,_Legally_Invalid,_and_Undermining_any_Bona_Fide_Negotiation_Process. 14. For example, see Prof. Ruth Lapidoth, "Security Council Resolution 242 at Twenty Five," Israel Law Review, vol. 26, 1992, pp. 295-318. Ministry for Foreign Affairs: The First Fifty Years (Jerusalem, Keter), vol. 4, pp. 840-853 (Hebrew). 15. Exchange of letters between Yasser Arafat and Yitzhak Rabin, July 9, 1993, http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Israel-PLO+Recognition+-+Exchange+of+Letters+betwe.htm. 16. See, for example, the "Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip," Washington, D.C., September 28, 1995, Preamble,http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT.htm; and see the "1999 Sharm el-Sheikh Memorandum on Implementation Timeline of Outstanding Commitments of Agreements Signed and the Resumption of Permanent Status Negotiations," 4 September 1999, Article 1. http://www.mfa.gov.il/MFA/MFAArchive/1990_1999/1999/9/Sharm+el-Sheikh+Memorandum+on+Implementation+Timel.htm. 17. Article XXXI (7). 18. See http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/A+Performance-Based+Roadmap+to+a+Permanent+Two-Sta.htm. *     *     * Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, is former Legal Adviser to Israel's Foreign Ministry and former Ambassador of Israel to Canada. He is a partner in the law firm of Moshe, Bloomfield, Kobo, Baker & Co. He participated in the negotiation and drafting of the various agreements comprising the Oslo Accords.