Israel’s Major Wars Part II

The legal aspects of coming into possession of the territories – 2^nd Part of 2

By Eli E. Hertz

UN "Inadmissibility of the acquisition of territory by force"

Most UN General Assembly Resolutions regarding Israel read at the start:

"Aware of the established principle of international law on the inadmissibility of the acquisition of territory by force."

Professor, Judge Schwebel, a former President of the International Court of Justice (ICJ), explains that the principle of "acquisition of territory by war is inadmissible" must be read together with other principles:20

"… namely, that no legal right shall spring from a wrong, and the Charter principle that the Members of the United Nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State."

Simply stated: Arab illegal aggression against the territorial integrity and political independence of Israel, can not and should not be reworded.

Judge Sir Elihu Lauterpacht, Judge ad hoc of the International Court of Justice, argued in 1968 that:21

"… territorial change cannot properly take place as a result of the 'unlawful' use of force. But to omit the word 'unlawful' is to change the substantive content of the rule and to turn an important safeguard of legal principle into an aggressor's charter. For if force can never be used to effect lawful territory change, then, if territory has once changed hands as a result of the unlawful use of force, the illegitimacy of the position thus established is sterilized by the prohibition upon the use of force to restore the lawful sovereign. This cannot be regarded as reasonable or correct."

Professor Julius Stone, a leading authority on the Law of Nations, stated:22

"Territorial Rights Under International Law. ... By their [Arab countries] armed attacks against the State of Israel in 1948, 1967, and 1973, and by various acts of belligerency throughout this period, these Arab states flouted their basic obligations as United Nations members to refrain from threat or use of force against Israel's territorial integrity and political independence. These acts were in flagrant violation inter alia of Article 2(4) and paragraphs (1), (2), and (3) of the same article."

Columbia University Law Professor George Fletcher further clarified those points, after UN Secretary-General Kofi Annan called Israel's occupation of lands acquired in the 1967 Six-Day War "illegal."23

"Annan, Fletcher suggested, is trying to redefine the Middle East conflict by calling "Israel's occupation of lands acquired in the 1967 Six-Day War 'illegal.'24 A new and provocative label of 'illegality' is now out of the chute and running loose, ready to wreak damage. The worst prospect is that Palestinians will dig in with a new feeling of righteousness and believe that the international community will force Israel to withdraw from its 'illegal occupation.'… Israel's presence in the occupied territories is consistent with international law. In this context, the choice of the words 'illegal occupation' is a perilous threat to the diplomatic search for peace."

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Kofi Annan became victim to the 'Occupation' mantra his own organization has repeated over and over in its propaganda campaign to legitimize the Arab position.

UN Security Council Resolutions 242 or 338

Because the Arabs were clearly the aggressors, nowhere in UN Security Council Resolutions 242 or 338 – the cornerstones of a peace settlement – is Israel branded as an invader or unlawful occupier of the Territories and there is no call for Israel to withdraw from all the Territories. Palestinians allegations that the wording of 242 was 'deliberately ambiguous' or misconstrued are unfounded.

Resolutions 242 and 338 both rest on the concept of lawful occupations and acknowledge the current legal status of western Palestine as one unit by its reference to the lack of "recognized and secure boundaries."

Strategically, the West Bank juts into Israel's densely populated coastal plain, invites Arab's aggression. Consequently, the Palestinians' guerilla war on Israel is not an isolated case. Palestinian forces repeatedly attacked Jews from Arab-dominated areas of the West Bank before Israel 'occupied' the West Bank in 1967: Jenin and Nablus on the West Bank were the heart of the 1936-39 Arab Revolt that targeted both British authorities and Zionist settlements.

West Bank villagers played a key role in this first stage of the 1948 war, when organized armed gangs based on geographic and familial affinity cut off or overran isolated Jewish settlements and laid siege to Jerusalem by attacking Jewish convoys with food, medical supplies and other essentials. This stage of the war was also marked by several horrific war crimes,25 including the April 1948 massacre of a convoy of 78 doctors, nurses, patients, and their guards on their way to Hadassah Hospital on Mount Scopus and the murder of 127 men and women from the beleaguered village of Kfar Etzion near Bethlehem in May 1948 by a lynch mob of thousands of local Palestinian Arabs after the defenders surrendered to the Jordanian Arab Legion.26 And during the early 1950s the West Bank served a safe haven for Palestinian infiltrators in a series of cross-border terrorist attacks.

Nearly all of the above legal commentary regarding 'wars of aggression' were written long before the Palestinian Authority, a semi-autonomous political entity, launched a vicious guerilla war against Israel in October 2000, but the insights and opinions voiced, beg the question - whether Palestinians as well should not be considered accountable for their repeated aggression when it comes to setting "secure and recognized borders"?

1 "From Mandate to Partition, Lessons Learned or Mistakes Repeated – The United Nations and Palestine," al majdal, December 2000, at:

http://www.badil.org/Publications/Bulletins/B_3.html. In this critique, the magazine justifies rejection of the Partition Plan in 1947, then blames the UN for not stepping in to

2007 © Eli E. Hertz Israel's major wars 8

enforce it in 1948 when Palestinians began to lose the war, charging that the refugee problem was "the consequences of inaction by the UN."

2 "Back to the Future: NPR Rewrites Israel's War of Independence" citing A. J. Barker, The Arab Israeli Wars, October 9, 2002, at:

http://www.camera.org/index.asp?x_context=4&x_outlet=28&x_article=291.

3 For a study of the struggle to obtain arms for the state in the making, see Leonard Slater, "The Pledge," Simon and Schuster, 1970.

4 Between November 30, 1947 – July 20, 1949.

5 For an overview of this, see Yoav Gelber, "Why Did the Palestinians Run Away in 1948?" December 10, 2002, History News Network, at: http://hnn.us/articles/782.html.

6 UN Security Council 69 (S/RES/69, 4 March 1949. See: http://domino.un.org/UNISPAL.NSF/0/ccf3096aa8f1bb8d852560c2005da665?OpenDocument.

UN General Assembly 273 (III) A/RES/273, 11 May 1949. See: http://domino.un.org/UNISPAL.NSF/0/83e8c29db812a4e9852560e50067a5ac?OpenDocument.

7 Cited in "Occupied Territories: Forgotten Facts About the West Bank and Gaza Strip," Ministry of Foreign Affairs, February 2003, at:

http://www.mfa.gov.il/MFA/MFAArchive/2000_2009/2003/2/DISPUTED TERRITORIES- Forgotten Facts About the We.htm.

8 See: http://www.un.org/aboutun/charter/chapter7.htm.

9 In 1999, at the height of optimism regarding an impending settlement, 80 percent of the public in neighboring countries supported continuing the conflict and 54 percent wanted Israel to 'disappear.' See data cited in conclusion of Antisemitism Worldwide 1999/2000, Institute for the Study of Contemporary Anti-Semitism and Racism, Tel Aviv University, http://www.tau.ac.il/Anti-Semitism/asw99-2000/arab.htm. More indirect tactics include the 'phase strategy' to gain the West Bank, then attack Israel, and use demography as a weapon – Palestinians have the highest birthrate in the world, twice as high as the overall Arab world's high birthrate. Another tactic is to use the Right of Return and demand that Israel accept Arab refugees.

10 Moshe Dayan, Milestones, 1976, Yediot Ahronot Publishers, p. 578.

11 Carta's Atlas of Israel: The Third Decade 1971-1981, p.130. By comparison, in the Six-Day War – a three-front war, not a two-front war, Israel sustained 759 fatalities.

12 Professor, Judge Schwebel has served on the International Court since 15 January 1981. He was Vice-President of the Court from 1994 to 1997 and has been President from 1997 to 2000. A former Deputy Legal Adviser of the United States Department of State and Burling Professor of International Law at the School of Advanced International Studies of The Johns Hopkins University (Washington), Judge Schwebel is the author of three books and some 150 articles on problems of international law and organization, including the notable "Justice in International Law," Cambridge University Press, 1994. Opinions quoted are not derived from his position as a judge of the ICJ.

13 See UN General Assembly Resolution 3314 in the chapter "Definition of Aggression".

For a recent reexamination of the Six-Day War and how it came to be, see Michael Oren, Six Days of War: June 1967 and the Making of the Modern Middle East, Oxford University Press, 2002, at: http://www.shalem.org.il/oren/index.htm. For a 50-page excerpt, see: http://www.shalem.org.il/oren/book.doc. For an in-depth article by Michael Oren – "Did Israel Want the Six-Day War?" Azure, Spring 1999, at: http://www.azure.org.il/7-Oren.html. For a vivid picture of conditions prior to the Six-Day War, see "Disputed Territories: Forgotten Facts About the West Bank and Gaza Strip," Israel Ministry of Foreign Affairs, February 2003, at:

2007 © Eli E. Hertz Israel's major wars 9

http://www.mfa.gov.il/MFA/SearchResults.htm?strSearch=disputed%20territories. Troop concentrations cited by Minister of Foreign Affairs Abba Eban in the Security Council in the aftermath of the war.

14 See Cato Policy Analysis No. 159; The Suez Crisis, 1956, "Ancient History": U.S. Conduct in the Middle East Since World War II and the Folly of Intervention, by senior editor Sheldon L. Richman. See: http://www.cato.org/pubs/pas/pa-159.html. In Time.com, see the section titled "Time 100" and dedicated to the most important people of the 20th century, including the section devoted to David Ben-Gurion and describing UN deliberation over the war of 1956 – The Sinai Campaign, states: "At this point, France's Premier Guy MoDd and Foreign Minister Christian Pineau arrived in Washington.… Pineau submitted to Dulles a draft resolution whereby 1) Israel would withdraw unconditionally, and 2) Israel's rights would be reserved under the Charter's self-defence clause if Egypt should go back to raids and blockades against her." See:

http://www.time.com/time/time100/leaders/profile/bengurion_related5.html.

15 See Jordan official Website: "The Disaster of 1967" at:

http://www.kinghussein.gov.jo/his_periods3.html.

16 See Jordan official Web site: "The Disaster of 1967" at:

http://www.kinghussein.gov.jo/his_periods3.html.

17 See "Disputed Territories: Forgotten Facts About the West Bank and Gaza Strip," Israel Ministry of Foreign Affairs, February 2003, at: http://www.mfa.gov.il/mfa/go.asp?MFAH0n1m0.

18 Moshe Dayan, ibid, p. 439.

19 Professor, Judge Schwebel, "Justice in International Law," Cambridge University Press, 1994. Opinions quoted are not derived from his position as a judge of the ICJ.

20 Ibid. Professor, Judge Schwebel in What Weight to Conquest?

21 See "Jerusalem and the Holy Places," The Anglo-Israel Association, October 1968, page 52. Sir Elihu Lauterpacht - Judge ad hoc of the International Court of Justice. Published also "Aspects of the Administration of International Justice," 1991. Director, Research Centre for International Law, University of Cambridge Member, Arbitration Panel, World Bank Centre for the Settlement of Investment Disputes.

22 "Israel and Palestine, Assault on the Law of Nations" The Johns Hopkins University Press, 1981, p. 127. The late Professor Julius Stone was recognised as one of the twentieth century's leading authorities on the Law of Nations. His short work represents a detailed analysis of the central principles of international law governing the issues raised by the Arab-Israel conflict. He was one of a few 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.

23 George P. Fletcher is a professor at Columbia University School of Law and author of Romantics at War: Glory and Guilt in the Age of Terrorism. See "Annan's Careless Language," The New York Times, March 21, 2002, at: http://www.uscj.org/neweng/worcester/Link_Fletcher020321.htm.

24 See "Annan's Careless Language," The New York Times, March 21, 2002, at: http://www.uscj.org/neweng/worcester/Link_Fletcher020321.htm.

25 The massacre of innocent Arabs at Dir Yassin is discussed in the chapter on refugees.

26 The History of Gush Etzion, see: http://www.jafi.org.il/education/festivls/zkatz/atz/etzion9.html.

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2007 © Eli E. Hertz Israel's major wars 10