Julius Stone
INTERNATIONAL LAW
AND
THE ARAB-ISRAEL CONFLICT
AND
THE ARAB-ISRAEL CONFLICT
Extracts from "Israel and Palestine - Assault on the Law of Nations"
by Julius Stone
by Julius Stone
EDITOR: Ian Lacey BA LL.B.
TABLE OF CONTENTS
ABOUT THE NOVEMBER 2001 EDITION-- 3
PROFESSOR JULIUS STONE (1907 - 1985)--- 4
1. SOVEREIGNTY IN THE ADMINISTERED TERRITORIES----------- 5
The Self-Defence Principle 5
The Status of Competing Claims to Title 6
2. THE LEGAL STATUS OF JERUSALEM 7
The Effect of the Partition Plan-- 7
The "Corpus Separatum " Concept ........................................................................................8
Acquisition of Sovereignty .....................................................................................................9
3. THE GENEVA CONVENTIONS AND THE LEGALITY OF THE SETTLEMENTS--------- 9
Impairment of Racial Integrity of the Native Population of the Occupied Territory----- 10
Inhuman treatment of its own population---- 11
4.GENERAL PRINCIPLES--------- 11
An Arab View- 11
A Jewish View- 11
The Doctrine of Self-determination 12
The Equity Principle----- 13
CONCLUSION--------- 14
A SHORT CHRONOLOGY OF THE ADMINISTERED TERRITORIES--------- 15
MAPS---- 18
The British Mandate 19
The UN partition Plan, 1947--------- 20
The Armistice Agreement 1949--- 21
Cease Fire Lines 1967--------- 22
Israel and Members of the Arab League- 23
INDEX--- 24
ABOUT THE NOVEMBER 2001 EDITION
The legality of Israel's presence in Jerusalem, Judea, Samaria and Gaza has been the subject of heated argument since 1967. Some regard these areas as illegally occupied, others as disputed territories and there is an obvious need for clarity if the subject is to be discussed rationally in terms of facts rather than assumptions.
In searching for authoritative information on the subject, I came across a booklet entitled "International Law and the Arab Israel Conflict" by Australian lawyer, Ian Lacey, in which he brilliantly analyses a work by one of the twentieth century's leading authorities on the Law of Nations, the late Professor Julius Stone,
Professor Stone's book, "Israel and Palestine", which appeared in 1980 provides a detailed analysis of the central principles of international law relating to the Arab-Israel conflict and Mr. Lacey's analysis provides a brief and very readable outline of the main points with extracts from the original work.
Mr. Lacey has expressed appreciation for the advice and assistance of David D. Knoll B.Com., LLB, LLM. in preparing his booklet. Mr. Knoll is the author of "The Impact of Security Concerns upon International Economic Law"
Ian Lacey is a practising lawyer and a former student of Professor Stone. He has given evidence before the Sub-Committee on the Middle East of the Australian Parliamentary Joint committee on Foreign Affairs and Defence. He is the author of "Zionism - A short Historical Introduction" and co-editor of a study guide on the Arab Israel conflict.
As Mr. Lacey's booklet is out of print I wrote to him, asking for permission to distribute and to quote freely from it with acknowledgement. He has kindly agreed and I express my sincerest appreciation to him
As Mr. Lacey's booklet is out of print I wrote to him, asking for permission to distribute and to quote freely from it with acknowledgement. He has kindly agreed and I express my sincerest appreciation to him
I am grateful to Mr. Lacey, Patricia Carmel, Judy Hajag and Saville Kaufman for their assistance in producing this edition.
Maurice Ostroff
PROFESSOR JULIUS STONE (1907 - 1985)
The late Professor Julius Stone was recognised as one of the twentieth century's leading authorities on the Law of Nations. His short work “Israel and Palestine”, which appeared in 1980, represents a detailed analysis of the central principles of international law governing the issues raised by the Arab-Israel conflict. This summary is intended to provide a short outline of the main points in the form of extracts from the original work. One of the rare scholars to gain outstanding recognition in more than one field, Professor Stone was one of the world’s best-known authorities in both Jurisprudence and International Law. His publications his activities and the many honours conferred on him are eloquent evidence of his high standing in these two fields.
Professor Stone was born in 1907 in Leeds, Yorkshire. He taught at Leeds Harvard, and the Fletcher School of Law and Diplomacy: he was a visiting professor of Colombia, Berkeley, Stanford and other universities in the United States, as well as the Indian School of International Affairs at Delhi, at Jerusalem and the Hague Academy of International Law. In 1963-64 he was a Fellow of the Center for Advanced Study in the Behavioral Sciences at Stanford University.
From 1942 until 1972 he was the Challis Professor of International Law and Jurisprudence at the University of Sydney. From 1972 until his death in 1985 Professor Stone held concurrently with his appointment as visiting Professor of Law at the University of New South Wales the position of Distinguished Professor of Jurisprudence and International Law at the Hastings College of Law, University of California. In 1956 he received the award of the American Society of International Law, and in 1962 he was made an honour life member of the society. In 1964 the Royal Society of Arts named him as a recipient of the Swiney Prize for Jurisprudence. In 1965 he received the World Research Award of the Washington Conference on the World Peace Through Law, the first award ever made.
His 26 major works include the authoritative texts "Legal Controls of International Conflict", "Aggression and World Order”, "The International Court and World Crisis"and "The Province and Function of Law".
1. SOVEREIGNTY IN THE ADMINISTERED TERRITORIES
The principle ex iniuria non oritur ius operates in international law to the effect that no legal claim to territory can rise out of an illegal aggression. Professor Stone examines the application of this rule to the competing claims of Israel and Jordan in the administered territories. In his conclusion, he draws upon the writings of Professor Stephen Schwebel, now an eminent judge of the International Court of Justice
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. And it is still international law after the Charter, which gave to the UN General Assembly no power to amend this law. 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 Resolution 242 (1967) and Resolution 338 (1973), adopted by the Security Council after respective wars of those years, expressed this requirement for settlement by negotiations between the parties, the latter in those words. Conversely both the Security Council and the General Assembly in 1967 resisted heavy Soviet and Arab pressures demanding automatic Israeli withdrawal to the pre-1997 frontiers. Through the decade 1966-67, 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[1] 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
By contrast, 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.
Both Resolution 242 (1967) and Resolution 338 (1973), adopted by the Security Council after respective wars of those years, expressed this requirement for settlement by negotiations between the parties, the latter in those words. Conversely both the Security Council and the General Assembly in 1967 resisted heavy Soviet and Arab pressures demanding automatic Israeli withdrawal to the pre-1997 frontiers. Through the decade 1966-67, 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[1] 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
By contrast, 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.
The Status of 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, [2] this relative superiority of title would seem to assimilate Israel's possession under international law to an absolute title, validerga omnes...
The most succinct statement of this position is in Professor Stephen Schwebel’s “What Weight to Conquest?” published in 1970, before he entered U.S. government service. He points out that the answer to that question in terms of international law, after the Charter’s prohibitions of the use of force, makes necessary a vital distinction “between aggressive conquest and defensive conquest, between the taking of territory legally held and the taking of territory illegally held”:
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, [2] this relative superiority of title would seem to assimilate Israel's possession under international law to an absolute title, validerga omnes...
The most succinct statement of this position is in Professor Stephen Schwebel’s “What Weight to Conquest?” published in 1970, before he entered U.S. government service. He points out that the answer to that question in terms of international law, after the Charter’s prohibitions of the use of force, makes necessary a vital distinction “between aggressive conquest and defensive conquest, between the taking of territory legally held and the taking of territory illegally held”:
”Those distinctions may be 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.”
2. THE LEGAL STATUS OF JERUSALEM
The Partition Plan of 1947 envisaged an international Jerusalem, separated from both Israel and the then proposed Palestinian State. After the 1948 war, East Jerusalem (which includes the holy places of Judaism, Christianity and Islam in the old city) came into Jordanian hands; and Jordan claimed sovereignty. In 1967, after Jordan launched an attack on West Jerusalem, the whole of Jerusalem came under Israeli rule; and Israel claims sovereignty over a united Jerusalem. Professor Stone examines the legal principles which apply, and considers the analysis of Professor Elihu Lauterpacht, the distinguished editor of the authoritative “Oppenheim’s International Law”.
The Effect of the Partition Plan
Elihu Lauterpacht concludes, correctly that the 1947 partition resolution had no legislative character to vest territorial rights in either Jews or Arabs. Any binding force of it would have had to arise from the principle pacta sunt servanda, that is, from the agreement of the parties concerned to the proposed plan. Such an agreement, however, was frustrated ab initio by the Arab rejection, a rejection underlined by armed invasion of Palestine by the forces of Egypt, Iraq, Lebanon, Syria and Saudi Arabia, timed for the British withdrawal on May 14, 1948, and aimed at destroying Israel and at ending even the merely hortatory value of the plan…
The State of Israel is thus not legally derived from the partition plan, but rests (as do most other states in the world) on assertion of independence by its people and government, on the vindication of that independence by arms against assault by other states, and on the establishment of orderly government within territory under its stable control. At most, as Israel's Declaration of Independence expressed it, the General Assembly resolution was a recognition of the natural and historic right of the Jewish people in Palestine. The immediate recognition of Israel by the United States and other states was in no way predicated on its creation by the partition resolution, nor was its admission in 1949 to membership in the United Nations…
As a mere resolution of the General Assembly, Resolution 181(11) lacked binding force ab initio. It would have acquired the force under the principle pacta sunt servanda if the parties at variance had accepted it. While the state of Israel did for her part express willingness to accept it, the other states concerned both rejected it and took up arms unlawfully against it. The Partition Resolution thus never became operative either in law or in fact, either as to the proposed Jerusalem corpus separatum or other territorial dispositions in Palestine.
As a mere resolution of the General Assembly, Resolution 181(11) lacked binding force ab initio. It would have acquired the force under the principle pacta sunt servanda if the parties at variance had accepted it. While the state of Israel did for her part express willingness to accept it, the other states concerned both rejected it and took up arms unlawfully against it. The Partition Resolution thus never became operative either in law or in fact, either as to the proposed Jerusalem corpus separatum or other territorial dispositions in Palestine.
The "Corpus Separatum " Concept
We venture to agree with the results of the careful examination of the corpus separatum proposal by E. Lauterpacht in his monograph “Jerusalem and the Holy Places”.
”(1) During the critical period of the changeover of power in Palestine from British to Israeli and Arab hands, the UN did nothing effectively to implement the idea of the internationalization of Jerusalem.
(2) In the five years 1948-1952 inclusive, the UN sought to develop the concept as a theoretical exercise in the face of a gradual realization that it was acceptable neither to Israel nor to Jordan and could never be enforced. Eventually the idea was allowed quietly to drop.
(3) In the meantime, both Israel and Jordan demonstrated that each was capable of ensuring the security of the Holy Places and maintaining access to and free worship at them-with the exception, on the part of Jordan, that the Jews were not allowed access to Jewish Holy places in the area of Jordanian control.
(4) The UN by its concern with the idea of territorial internationalization, as demonstrated from 1952 to the present date (1968) effectively acquiesced in the demise of the concept. The event of 1967 and 1968 have not led to its revival.
(5) Nonetheless there began to emerge, as long ago as 1950, the idea of functional internationalization of the Holy Places in contradistinction to the territorial internationalization of Jerusalem. This means that there should be an element of international government of the City, but only a measure of international interest in and concern with the Holy Places. This idea has been propounded by Israel and has been said to be acceptable to her. Jordan has not subscribed to it.”
Even if no notion of a corpus separatum had ever floated on the international seas, serious questions about the legal status of Jerusalem would have arisen after the 1967 War. Did it have the status of territory that came under belligerent occupation in the course of active hostilities, for which international law prescribes a detailed regime of powers granted to the occupying power or withheld it from in the interest of the ousted reversionary sovereign? Or was this status qualified in Israel's favour by virtue of the fact that the ousted power, in this case, Jordan, itself had occupied the city in the course of an unlawful aggression and therefore could not, under principle of ex iniuria non oritur ius, be regarded as an ousted reversioner? Or was Jerusalem, as we will see that a distinguished authority thought at the time, in the legal status of res nullius modo juridico? That is, was it a territory to which by reason of the copies of international instruments, and their lacunae, together with the above vice in the Jordanian title, no other state than Israel could have sovereign title? The consequence of this could be to make the legal status of Jerusalem that of subjection to Israel sovereignty.
Acquisition of Sovereignty
This analysis, based on the sovereignty vacuum, affords a common legal frame for the legal positions of both West and East Jerusalem after both the 1948-49 and the 1967 wars. In 1967, Israel's entry into Jerusalem was by way lawful self-defence, confirmed in the Security Council and General Assembly by the defeat of Soviet and Arab-sponsored resolutions demanding her withdrawal..
Lauterpacht has offered a cogent legal analysis leading to the conclusion that sovereignty over Jerusalem has already vested in Israel. His view is that when the partition proposals were immediately rejected and aborted by Arab armed aggression, those proposals could not, both because of their inherent nature and because of the terms in which they were framed, operate as an effective legal redisposition of the sovereign title. They might (he thinks) have been transformed by agreement of the parties concerned into a consensual root of title, but this never happened. And he points out that the idea that some kind of title remained in the United Nations is quite at odds, both with the absence of any evidence of vesting, and with complete United Nations silence on this aspect of the matter from 1950 to 1967?…
In these circumstances, that writer is led to the view that there was, following the British withdrawal and the abortion of the partition proposals, a lapse or vacancy or vacuum of sovereignty. In this situation of sovereignty vacuum, he thinks, sovereignty could be forthwith acquired by any state that was in a position to assert effective and stable control without resort to unlawful means. On the merely political and commonsense level, there is also ground for greater tolerance towards Israel's position, not only because of the historic centrality of Jerusalem to Judaism for 3,000 years, but also because in modern times Jews have always exceeded Arabs in Jerusalem. In 1844 there were 7,000 Jews to 5,000 Moslems; in 1910, 47,000 Jews to 9,800 Moslems; in 1931, 51,222 Jews to 19,894 Moslems in 1948, 100,000 Jews to 40,00 Moslems; in 1967 200,000 Jews to 54,902 Moslems.
In these circumstances, that writer is led to the view that there was, following the British withdrawal and the abortion of the partition proposals, a lapse or vacancy or vacuum of sovereignty. In this situation of sovereignty vacuum, he thinks, sovereignty could be forthwith acquired by any state that was in a position to assert effective and stable control without resort to unlawful means. On the merely political and commonsense level, there is also ground for greater tolerance towards Israel's position, not only because of the historic centrality of Jerusalem to Judaism for 3,000 years, but also because in modern times Jews have always exceeded Arabs in Jerusalem. In 1844 there were 7,000 Jews to 5,000 Moslems; in 1910, 47,000 Jews to 9,800 Moslems; in 1931, 51,222 Jews to 19,894 Moslems in 1948, 100,000 Jews to 40,00 Moslems; in 1967 200,000 Jews to 54,902 Moslems.
3. THE GENEVA CONVENTIONS AND THE LEGALITY OF THE SETTLEMENTS
It is often claimed that settlement by Jews in the administered territories, and the expulsion of individuals from those territories by Court order, is in breach of the Geneva Conventions. Professor Stone was the author of the treatise “Legal Controls of International Conflict”, which included an extensive commentary on the Geneva Conventions. Here he discusses their applicability in the administered territories.
Perhaps the central current criticism against the government of Israel in relation to its administration of the territories occupied after the 1967 War concerns its alleged infractions of the final paragraph (6) of Article 49, of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, of August 12, 1949. The preceding paragraphs deal with deportation or transfer of a population out of the occupied territory. The final paragraph (6) reads as follows. "The occupying Power shall not deport or transfer parts of its own civilian population into territory it occupies."
It has been shown that there are solid grounds in international law for denying any sovereign title to Jordan in the West Bank, and therefore any rights as reversioner state under the law of belligerent occupation… Not only does Jordan lack any legal title to the territories concerned, but the Convention itself does not by its terms apply to these territories. For, under Article 2, the Convention applies “to cases of…occupation of the territory of a High Contracting Party, by another such Party. Insofar as the West Bank at present held by Israel does not belong to any other State, the Convention would not seem to apply to it at all. This is a technical, though rather decisive, legal point.
It is also important to observe, however, that even if that point is set aside, the claim that Article 49 of the convention forbids the settlement of Jews in the West Bank is difficult to sustain.
It is clear that in the drafting history, Article 49 as a whole was directed against the heinous practice of the Nazi regime during the Nazi occupation of Europe in World War II, of forcibly transporting populations of which it wished to rid itself, into or out of occupied territories for the purpose of liquidating them with minimum disturbance of its metropolitan territory, or to provide slave labour or for other inhumane purposes. The genocidal objectives, of which Article 49 was concerned to prevent future repetitions against other peoples, were in part conceived by the Nazi authorities as a means of ridding their Nazi occupant's metropolitan territory of Jews - of making it, in Nazi terms, judenrein. Such practices were, of course, prominent among the offenses tried by war crimes tribunals after World War II.
If and insofar, therefore, as Israel's position in Judea and Samaria (the West Bank) is merely that of an occupying power, Article 49 would forbid deportation or transfer of its own population onto the West Bank whenever this action has consequence of serving as a means of either
(1) impairment of the economic situation or racial integrity of the native population of the occupied territory; or
(2) inhuman treatment of its own population
Impairment of Racial Integrity of the Native Population of the Occupied Territory
The prominence of the question of legality of Jewish settlements on the West Bank reflects the tension of the peace process, rather than the magnitude of any demographic movement. Despite vociferous political warfare pronouncements on both sides, it seems clear, therefore, that no serious dilution (much less extinction) of the separate racial existence of the native population has either taken place or is in prospect. Nor do well-known facts of dramatic improvement in the economic situation of the inhabitants since 1967 permit any suggestion that the situation has been worsened or impaired..
Inhuman treatment of its own population
On that issue, the terms of Article 49(6) however they are interpreted, are submitted to be totally irrelevant. To render them relevant, we would have to say that the effect of Article 49(6) is to impose an obligation on the state of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein. Irony would thus be pushed to the absurdity of claiming that Article 49(6) designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that Judea and Samaria the West Bank must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants.
4.GENERAL PRINCIPLES
Professor Stone considers that the Arab view of the State of Israel as "a deformed entity occupying Arab territory" and Jewish claims based on historical and religious connection. He notes that both claims are based on the principle of "self-determination", and he examines both the validity of the principle and its applicability to the conflict. He also considers the competing claims on the basis of the "equity" of the settlement which followed the First World War.
An Arab View
A letter dated February 20, 1980 to the secretary-General, transmitted for UN circulation to the General Assembly and the Security Council in connection with item 26 of A/35/11000-S/13816 (Situation in the Middle East) declared a propos of inclusion in the Charter of a principle of non-use of force:
"The principle of non-use of force shall apply to the relations of the Arab Nation and Arab States with the nations and countries neighbouring the Arab Homeland. Naturally, as you know, the Zionist entity is not included, because the Zionist entity is not considered a State, but a deformed entity occupying an Arab territory. It is not covered by these principles."
"The principle of non-use of force shall apply to the relations of the Arab Nation and Arab States with the nations and countries neighbouring the Arab Homeland. Naturally, as you know, the Zionist entity is not included, because the Zionist entity is not considered a State, but a deformed entity occupying an Arab territory. It is not covered by these principles."
A Jewish View
The myth of the 1966 Palestinian Convent that the "Palestinian people" was unjustly displaced by the Jewish invasion of Palestine in 1917 is widely disseminated and unquestioningly and dogmatically espoused in "studies" from the United Nations Secretariat. However, it is necessary to recall, not only the Kingdom of David and the succession of Jewish polities in Palestine down to Roman conquest and dispersion at the turn of the present era, but also that the Jews continued to live in Palestine even after that conquest, and were in 1914 a well-knit population there. Hundreds of thousands of other Jews, driven from the Palestine homeland by successive waves of Roman, Arab, and other conquerors, continued to live on for centuries throughout the Middle East, often under great hardship and oppression. And, of course, millions of others were compelled to move to other parts of the world where too often, as in pogrom-ridden Russia and Poland, they live in conditions of tyrannous and humiliating subjection and under daily threat to their lives...
That the provision for a Jewish national home in Palestine was an application of the principle of self determination is manifest from the earliest seminal beginning of the principle. The Enquiry Commission, established by President Wilson in order to draft a map of the world based on the Fourteen Points, affirmed the right of the Jewish people that “Palestine should become a Jewish State” clearly on this ground. Palestine, the Commission said, was “the cradle and home of their vital race”, the basis of the Jewish spiritual contribution, and the Jews were the only people whose only home was in Palestine. It would be difficult to provide a more succinct statement of the essence of the self determination principle.
That the provision for a Jewish national home in Palestine was an application of the principle of self determination is manifest from the earliest seminal beginning of the principle. The Enquiry Commission, established by President Wilson in order to draft a map of the world based on the Fourteen Points, affirmed the right of the Jewish people that “Palestine should become a Jewish State” clearly on this ground. Palestine, the Commission said, was “the cradle and home of their vital race”, the basis of the Jewish spiritual contribution, and the Jews were the only people whose only home was in Palestine. It would be difficult to provide a more succinct statement of the essence of the self determination principle.
The Doctrine of Self-determination
Whether the doctrine is already a doctrine of international law stricto sensu, or (as many international lawyers would still say) a precept of politics, or policy, or of justice, to be considered where appropriate, it is clear that its application is predicated on certain findings of fact. One of these is the finding that at the relevant time the claimant group constitutes a people of nation with a common endowment of distinctive language or ethnic origin or history and tradition, and the like, distinctive from others among whom it lives, associated with particular territory, and lacking an independent territorial home in which it may live according to its lights…
Palestine Liberation Organization (PLO) leaders have frankly disavowed distinct Palestinian identity. On March 3, 1977, for example, the head of the PLO Military Operations Department, Zuhair Muhsin, told the Netherlands paper Trouw that there are no differences between Jordanians, Palestinians, Syrians and Lebanese.
Palestine Liberation Organization (PLO) leaders have frankly disavowed distinct Palestinian identity. On March 3, 1977, for example, the head of the PLO Military Operations Department, Zuhair Muhsin, told the Netherlands paper Trouw that there are no differences between Jordanians, Palestinians, Syrians and Lebanese.
"We are one people. Only for political reasons do we carefully underline our Palestinian identity. For it is of national interest for the Arabs to encourage the existence of the Palestinians against Zionism. Yes, the existence of a separate Palestine identity is there only for tactical reasons. The establishment of a Palestinian State is a new expedient to continue the fight against Zionism and for Arab unity…"
In fact the name Palestine had not for centuries (perhaps millennia) before 1917 referred to a defined political, demographic, cultural, or territorial entity. In the immediately preceding centuries it was a part of the Ottoman Empire designated as Southern Syria and governed from Damascus. In 1917, its northern part, from Safed almost to Jerusalem, was part of the Vilayet of Beirut and the whole of it was claimed to be part of Syria. The Arabs living there were not regarded by themselves or others as “Palestinians” or in any major respect as different from their brethren in Syria and Lebanon. This “Syrian” rather than “Palestinian” identification of Arabs living in Palestine underlay the request of the General Syrian Congress on July 2, 1919, that there should be no separation of the southern part of Lebanon, from Syrian country. A main argument thus made by Arabs in post-World War I negotiations was not that “Palestinians” would resent the loss of Palestinian identity by the establishment of the Jewish national home in Palestine, but rather that they would resent severance of their connection with their fellow Syrians…
In the light of these facts, the notion that the Arabs living in Palestine regarded themselves in 1917, at the time when Woodrow Wilson's seminal self-determination principle emerged, as a Palestinian Arab people in the sense required by the self-determination principle (or, as I may sometimes here call it, “the liberation of peoples principle” or “liberation principle”) is thus a figment of unhistorical imagination. To respect the historical facts is, therefore, not to impugn the liberation principle; it merely points out that the principle must be applied at the appropriate time to the facts of group life as they truly exist. These historical facts continue to reverberate today in Arab state circles. President Assad of Syria in 1974 stated that Palestine is a basic part of Southern Syria (New York Times, March 9 1974). On this on November 17, 1978, Yasser Arafat commented that Palestine is southern Syria and Syria is northern Palestine (Voice of Palestine, November 18, 1978 ...
The problem of competing self-determination becomes, indeed, even more difficult, whether for purposes of determining aggression or for other purposes, where the competing claims and accompanying military activities, punctuated by actual wars, armistices, and cease-fire agreements, have been made over protracted historical periods. The test of priority of resort to armed force in Article 2 of the 1974 Definition presupposes a fixed point of time from which priority is to calculated. Does one fix the aggression in the Cyprus crisis of 1974 from the action of the Greek officers who led the coup d'etat, or the Turkish response by invasion, even assuming that the 1974 crisis can be severed from earlier struggles? Is the critical date of the Middle East crisis 1973 or 1967, or the first Arab states attack on Israel in 1948, or is it at the Balfour Declaration in 1917, or at the Arab invasions and conquest of the seventh century AD, or even perhaps at the initial Israelite conquest of the thirteenth century BC? The priority question, as well as the self-determination question, are difficult enough. They become quite baffling when, in the course of such a long span of time, a later developing claim of self-determination like that of the Palestinian people in the 1960s, arises, and claims to override retrospectively the sovereign statehood of another nation, here the Jewish people, already attained by right of self-determination.
In the light of these facts, the notion that the Arabs living in Palestine regarded themselves in 1917, at the time when Woodrow Wilson's seminal self-determination principle emerged, as a Palestinian Arab people in the sense required by the self-determination principle (or, as I may sometimes here call it, “the liberation of peoples principle” or “liberation principle”) is thus a figment of unhistorical imagination. To respect the historical facts is, therefore, not to impugn the liberation principle; it merely points out that the principle must be applied at the appropriate time to the facts of group life as they truly exist. These historical facts continue to reverberate today in Arab state circles. President Assad of Syria in 1974 stated that Palestine is a basic part of Southern Syria (New York Times, March 9 1974). On this on November 17, 1978, Yasser Arafat commented that Palestine is southern Syria and Syria is northern Palestine (Voice of Palestine, November 18, 1978 ...
The problem of competing self-determination becomes, indeed, even more difficult, whether for purposes of determining aggression or for other purposes, where the competing claims and accompanying military activities, punctuated by actual wars, armistices, and cease-fire agreements, have been made over protracted historical periods. The test of priority of resort to armed force in Article 2 of the 1974 Definition presupposes a fixed point of time from which priority is to calculated. Does one fix the aggression in the Cyprus crisis of 1974 from the action of the Greek officers who led the coup d'etat, or the Turkish response by invasion, even assuming that the 1974 crisis can be severed from earlier struggles? Is the critical date of the Middle East crisis 1973 or 1967, or the first Arab states attack on Israel in 1948, or is it at the Balfour Declaration in 1917, or at the Arab invasions and conquest of the seventh century AD, or even perhaps at the initial Israelite conquest of the thirteenth century BC? The priority question, as well as the self-determination question, are difficult enough. They become quite baffling when, in the course of such a long span of time, a later developing claim of self-determination like that of the Palestinian people in the 1960s, arises, and claims to override retrospectively the sovereign statehood of another nation, here the Jewish people, already attained by right of self-determination.
The Equity Principle
The distribution between Arabs and Jews after World War I was certainly implemented in succeeding decades as far as Arab entitlements were concerned. Arabs claims to sovereignty received extensive fulfillment in the creation of more than twenty sovereign states following World War I, not only in the Middle East but in Africa as well. Altogether this historical process included the following features:
First, despite all the extraneous Great Power maneuverings, Jewish and Arab claims in the vast area of the former Ottoman Empire came to the forum of liberation together, and not (as is usually implied) by way of Jewish encroachment on an already vested and exclusive Arab domain.
First, despite all the extraneous Great Power maneuverings, Jewish and Arab claims in the vast area of the former Ottoman Empire came to the forum of liberation together, and not (as is usually implied) by way of Jewish encroachment on an already vested and exclusive Arab domain.
Second, the territorial allocation made to the Arabs, as now seen in about a dozen sovereignties in the Middle East (not to speak of many Arab sovereignties elsewhere) was more than a hundred times greater in area, and hundreds of times richer in resources than the Palestine designated in 1917 for the Jewish national home.
Third, by successive steps thereafter, this already tiny allocation to Jewish claims was further encroached upon. Thus, already in 1922, a major part of it (namely 35,468 out of 46,339 square miles, including the more sparsely populated regions) was cut away to establish the kingdom of Transjordan (now known as the Hashemite Kingdom of Jordan).
With so preponderant an Arab allocation capable, as events since 1973 now show, of threatening the economic existence of most of the rest of the world, it seemed reasonable to expect Arab acquiescence in the minute allotment to the Jews of Israel as their only national home.
CONCLUSION
The extraordinary campaign against the State Of Israel in the General Assembly since the oil weapon was drawn from its scabbard in 1973 involves subversion both of basic international law principles, and of rights and obligations vested in states under them. It has also entailed rather grotesque reversals of the United Nations own position of the preceding quarter-century, as part of a wide and illicit rewriting of history. Considered in the context above sketched, this campaign is a kind of pilot operation in a remarkable venture in the detournement de pouvoir an assault with covert as well as overt elements, on the international legal order. It would follow that what is at stake are not only the range of state interests that lie within the lawful concern of the organs of the United Nations, but all interests of states that the General Assembly can by the ipse dixit of automatic majorities reach out to control, truncate or destroy.
A SHORT CHRONOLOGY OF THE ADMINISTERED TERRITORIES
1900 BCE - 135 CE The mountainous region known as Judea and Samaria (called the “West Bank” after 1950) is the centre of Jewish life for 2000 years. Gaza, on the other hand, is a Philistine city during the period of the Jewish kingdoms. After 200 years of intermittent warfare against the Romans, culminating in the defeat of the massive Jewish revolt of 135CE, the Jewish population is largely dispersed as slaves and refugees. However, a substantial Jewish population always remains.
638 - 1099 The Arabs capture Jerusalem in 638 and Palestine ceases to be part of the Byzantine Empire. Under the Arab Caliphate from 638 to 1099, the population adopts Arabic language and culture, and many are converted from Christianity to Islam.
1517 Palestine becomes part of the Turkish Empire in 1517, after its conquest by Suleiman the Magnificent. By the twentieth century the population is reduced to about 650,000.
1882 Organised Jewish settlement in Turkish Palestine begins, following the Russian pogroms and increasing European anti-Semitism.
1914-1918 Turkey is allied with Germany in the First World War and the Turkish Empire is distributed in the subsequent settlement.
1920 By the Treaty of San Remo, it is agreed that the League of Nations will give a Mandate to Britain over Palestine on the basis of the Balfour Declaration of 1917, under which Palestine is to be the “Jewish National Home”. The original mandated area of Palestine includes the territory now comprising Jordan, Israel, the West Bank, Gaza and the Golan Heights.
1947 - 1948 In the UN Partition Resolution of 1947, Judea and Samaria and Gaza are to be included in the proposed Arab State. The Arab State is to be in economic union with a Jewish State, with an internationalised Jerusalem. However the Arabs refuse to accept the resolution or to set up a provisional government of the proposed Arab Palestine. When Israel accepts the resolution and proclaims its independence in 1948, the forces of the Arab League invade.
1949 - 1950 After cease fire lines are established in 1949, The Kingdom of Transjordan purports to annex the “West Bank”, and changes its name to “Jordan”. The annexation is recognised only by Britain and Pakistan, but not be any Arab Government, or by the UN. Gaza comes under Egyptian control, but it is not annexed by Egypt, and its inhabitants are Stateless.
1967 Jordan places its forces under joint command with Syria and Egypt, with the declared aim of annihilating Israel. After Israeli warnings are conveyed to Jordan through UN representatives, Jordan attacks West Jerusalem. In the ensuing war Israel takes possession of East Jerusalem, the West Bank, Gaza, the Golan Heights and Sinai.
After the war, Israel offers to negotiate “territory for peace”. However in August 1967, the Arab League conference at Khartoum declares “No peace, no negotiation, no recognition, no compromise.”
In November 1967, Resolution 242 of the Security Council calls for Israel’s right to “live in peace within secure and recognised boundaries” and for Israeli withdrawal “from territories occupied in the recent conflict”.
1977 - 1982 Egypt recognises Israel in 1977 and Sadat visits Jerusalem. In 1979 the Camp David Accords provide for Israeli withdrawal from Sinai, and negotiations with Jordan to establish a self-governing authority in West Bank and Gaza. Israel offers Gaza to Egypt, but Egypt refuses. In 1982 Egypt and Israel sign a formal Peace Treaty, and Sinai is returned to Egypt.
1989 Shamir-Rabin Peace Initiative proposes elections in the administered territories, to be followed by self-government as envisaged by the Camp David Accords, and subsequent negotiation of a peace settlement.
1993 The Oslo Accords create a “Palestinian Interim Self-Governing Authority” with initial jurisdiction in Gaza and Jericho, to be extended by a phased re-deployment of Israeli forces from populated centers in the Territories. The Accords contemplate the eventual negotiation of a “final status agreement.”
1995 Oslo II agreement creates Areas A, B and C in the Territories, with Palestinian, shared and Israeli control respectively. The Palestinian Authority now has jurisdiction over more than 95% of the Palestinian population of the Territories. 1998 The Wye Memorandum contemplates further step-by-step withdrawals from the territorial area, in parallel with steps for security co-operation by the PA.
July 2000 Camp David II final status talks fail when the PA rejects offer of over 90% of the Territories and compensatory transfer of land from within Israel. Israel rejects PA demands for sovereignty over the Temple Mount in Jerusalem, and a right for all Arab refugees and their descendants to return to Israel.
September 2000 The “El Aqsa Intifada” begins with violent rioting and with calls for “an end to the occupation”, followed by random shootings, mortar attacks and suicide bombings. Cease-fire agreements are not implemented.
GLOSSARY
Ab Initio. From the beginning.
Corpus Separatum. An area excluded from a sovereign state. (lit. “a separated body.”)
Detournement de pouvoir. “Embezzlement” of power.
Erga Omnes. Against all.
Ex iniuria non oritur ius. A legal right cannot be created by an illegal wrong. (Lit. “Out of an injury arises no right”.)
Ipse dixit. Affecting rights by mere declaration. (Lit. “He says so himself”.)
Judenrein Empty of Jews. (Lit. “Jew-clean”.)
Lacunae. Gaps.
Pacta sunt servanda. “Treaties must be honoured” the first principle of international law.
Res Nullius Modo Juridico Territory under no recognised legal jurisdiction (Lit. “A nullity at law.”)
Corpus Separatum. An area excluded from a sovereign state. (lit. “a separated body.”)
Detournement de pouvoir. “Embezzlement” of power.
Erga Omnes. Against all.
Ex iniuria non oritur ius. A legal right cannot be created by an illegal wrong. (Lit. “Out of an injury arises no right”.)
Ipse dixit. Affecting rights by mere declaration. (Lit. “He says so himself”.)
Judenrein Empty of Jews. (Lit. “Jew-clean”.)
Lacunae. Gaps.
Pacta sunt servanda. “Treaties must be honoured” the first principle of international law.
Res Nullius Modo Juridico Territory under no recognised legal jurisdiction (Lit. “A nullity at law.”)
Stricto sensu. Strictly speaking.
Uti possidetis. Legal title arising from possession, where there is no competing title. (Lit. “By possessory use”)
Ian Lacey
MAPS
The British Mandate
The UN partition Plan, 1947
The Armistice Agreement 1949
Cease Fire Lines 1967
Israel and Members of the Arab League
INDEX
Arabs.. 7, 10, 13, 14, 16, 26
Arafat, Yasser..... 14, 26
Balfour Declaration 14, 16, 26
Corpus Separatum........ 8, 9
Egypt 5, 7, 16, 26
Equity Principle. 2, 14, 26
Gaza 3, 5, 16, 26
General Assembly 5, 8, 9, 12, 15, 26
Geneva Convention..... 10, 26
Geneva Convention (Fourth) 10, 11, 14
Holy Places 8, 9, 26
International Court of Justice 5, 6, 26
International Law 3, 4, 7, 26
internationalization. 8, 9, 26
Jerusalem 3, 4, 5, 6, 7, 8, 9, 13, 16, 26
Jewish Presence in Palestine 12
Jews 7, 8, 10, 12, 14, 15, 18, 26
Jordan 5, 6, 7, 8, 9, 10, 15, 16, 26
Lauterpacht, Professor Elihu 7, 8, 9, 26
Moslems.. 10, 26
Occupied territory 10, 11
Palestine Liberation Organization... 13, 26
Palestine, some background.......... 13
Palestinian identity 13, 26
Palestinians 7, 12, 13, 17, 26
Partition Plan 2, 7, 8, 16, 26
PLO... 13, 26
Population of Jerusalem, (historical).......... 10
Resolution 242. 5, 17, 26
Resolution 338....... 5, 26
Schwebel, Prof. Stephen 5, 6, 26
Security Council 5, 9, 12, 17, 26
Syria... 7, 13, 17, 26
Transjordan 15, 16, 26
United Nations. 2, 5, 8, 9, 12, 15, 16, 21, 26
West Bank. 5, 6, 10, 11, 16, 26
Wilson, President 12, 13, 26
World War I 11, 14, 26
World War II..... 11, 26
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