Extracts from "INTERNATIONAL LAW AND THE ARAB-ISRAEL CONFLICT"

 

by Ian Lacey, B.A., LL.B.

The complete text is available at

http://www.aijac.org.au/resources/reports/international_law.pdf

 

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 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 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 with Sovereignty in Jerusalem, The Legality of the Settlements, The Principle of Self-determination, the Oslo Accords and the Roadmap