May 24, 2007
Israel and international law
A helpful reader has drawn my attention to a second brilliant summary of the legality of Israel's presence in Jerusalem, Judea and Samaria under international law. This pamphlet contains extracts from Israel and Palestine - Assault on the Law of Nations by Julius Stone. The late Professor Stone was recognised as one of the twentieth century's leading authorities on the Law of Nations, and Israel and Palestine, which was published in 1980, presented a detailed analysis of the central principles of international law governing the issues raised by the Arab-Israel conflict. I recommend reading the whole thing; as with the pamphlet written by Eli Hertz which I reported here, the discrepancy between the solid legality of Israel's position in the 'occupied territories' and the venomous hysteria with which this occupation is regarded throughout the west – not to mention the wretched UN — with the repeated mantra that it is 'illegal', is truly mind-blowing.
I would draw your attention to these passages in particular in the Stone pamphlet:
1)
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.
2)
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 re-disposition 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 40,000 Moslems, and in 1967 200,000 Jews to 54,902 Moslems.
3)
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 Palestine 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.'…
The myth of the 1966 Palestinian Covenant 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.
Will all those who so shrilly insist that international law must prevail in the Middle East now apply the conclusions of that very same international law, and declare Israel's inalienable right to the 'occupied territories'?
Once again: this material should be disseminated widely. Assuming that none of the benighted media will pick up on it, it should be circulated to every MP, editor and foreign desk journalist. It is much, much harder to regurgitate lies when the truth is blazing away in your in-tray.
Melanie Philips
Copyright - Original materials copyright (c) by the authors.
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