The legal aspects of coming into possession of the territories 1st Part of 2
By Eli E. Hertz
About six months before the War of Independence in 1948, Palestinian Arabs launched a series of riots, pillaging, and bloodletting. Then came the invasion of seven Arab armies from neighboring states attempting to prevent the establishment of a Jewish state in accordance with the UN's 1947 recommendation to Partition Palestine, a plan the Arab rejected.1
The Jewish state not only survived: It came into possession of territories – land from which its adversaries launched their first attempt to destroy the newly created State of Israel.
In the first critical weeks after the British left the region and Israel declared its independence, the combined Arab armies of: Egypt, Lebanon, Syria, Trans-Jordan, Iraq, and contingents from Saudi Arabia and Yemen2 aimed at a small Jewish militia with three tanks and five artillery pieces. Israel had no air force, and until arms were rushed in from abroad3 and a regular army could be organized, it relied on the only strength it had: 70 years worth of social solidarity inspired by the Zionist endeavor.
Israel's citizens understood that defeat meant the end of their Jewish state before it could even get off the ground. In the first critical weeks of battle, and against all odds, Israel prevailed on several fronts.
The metaphor of Israel having her back to the sea reflected the image crafted by Arab political and religious leaders' rhetoric and incitement. Already in 1948 several car bombs had killed Jews and massacres of Jewish civilians underscored Arab determination to wipe out the Jews and their state.
There were 6,000 Israeli dead as a result of that war, in a population of 600,000. One percent of the Jewish population was gone. In American terms, the equivalent is 3 million American civilians and soldiers killed over an 18-month period.4
Under the pressure of war, Palestinian society collapsed in disarray.5 Both sides were left to cope with hundreds of thousands of refugees – Jewish and Arab. Yet the way the Arab world dealt with their refugees was as different from the Jews, as the way Jews and Arabs approach the notion of compromise over the past 100 years.
Israel War of Independence in 1948 was considered lawful and in self-defence as may be reflected in UN resolutions naming Israel a "peace loving State"6 when it applied for membership at the United Nations. Both, the Security Council (4 March, 1949, S/RES/69) and the UN General Assembly (11 May, 1949, (A/RES/273 (III)) declared:
"[Security Council] Decides in its judgment that Israel is a peace-loving State and is able and willing to carry out the obligations contained in the Charter …"
Arab losses caused by unlawful acts of aggression in 1967
In June 1967, the combined armies of Egypt, Syria, and Jordan attacked Israel with the clear purpose expressed by Egypt's President: "Destruction of Israel." At the end of what is now known as the Six-Day War, Israel, against all odds, was victorious and in possession of the territories of the West Bank, Sinai and the Golan Heights.
International law makes a clear distinction between defensive wars and wars of aggression. More than half a century after the 1948 War and four decades since the 1967 Six-Day War, it is hard to imagine the dire circumstances Israel faced and the price it paid to fend off its neighbors' attacks.
Core issues leading to those wars are the borders, and one of the key questions is whether borders can be established that do not invite aggression.
In 1967, the combined Arab armies had approximately 465,000 troops, more than 2,880 tanks and 810 aircraft,7 preparing to attack Israel at once. Israel, faced with the imminent threat of obliteration, was forced to invoke its right of self-defence, a basic tenet of international law, enshrined in Article 518 of the United Nations Charter. Israel launched a surprised pre-emptive air strike against Egypt on June 5, 1967.
Israel's wars with her neighbors are zero-sum games
The Arab objective in the 1948 War of Independence, the 1967 Six-Day War and the 1973 Yom Kippur War was to overrun and eradicate the Jewish state.
That objective is very much in the minds of the majority of Palestinian Arabs – in the leadership and the general population, as well as in the minds of their brethren in other Arab countries - though their tactics may have changed.9
1948: Arab League Secretary-General Azzam Pasha exulted: "This will be a war of extermination and a momentous massacre which will be spoken of like the Mongolian massacres and the Crusades."
1954: Saudi Arabian King Saud ibn Abdul Aziz: "The Arab nations should sacrifice up to 10 million of their 50 million people, if necessary, to wipe out Israel ... Israel to the Arab world is like a cancer to the human body, and the only way of remedy is to uproot it, just like a cancer."
1967: Egyptian President Gamal Abdel Nasser: "Our basic objective will be the destruction of Israel." (May 27, 1967, nine days before the start of the Six-Day War.)
2007 © Eli E. Hertz Israel's major wars 2
1973: Libyan President Mohammar Qadaffi: "The battle with Israel must be such that, after it, Israel will cease to exist." (al-Usbu al-Arrabi, Beirut. Quoted by Algiers Radio, Nov. 12, 1973.)
1980: PLO representative in Saudi Arabia Rafiq Najshah: "There has been no change whatsoever in the fundamental strategy of the PLO, which is based on the total liberation of Palestine and the destruction of the occupying country.... On no accounts will the Palestinians accept part of Palestine and call it the Palestinian state, while forfeiting the remaining areas which are called the State of Israel."
1996: Palestinian Chairman Yasser Arafat: "[Our aim is] to eliminate the State of Israel and establish a purely Palestinian one." (In a closed meeting with Arab diplomats in Europe, quoted in the Middle East Digest, March 7, 1996.)
1996: PLO spokesperson Bassam abu-Sharif: "The struggle against the Zionist enemy is not a matter of borders but relates to the mere existence of the Zionist entity." (In an interview with the Kuwait News Agency, May 31, 1996).
2001: PA Minister for Jerusalem Affairs, Faisal al-Husseini: "The strategic goal is the liberation of Palestine from the Jordanian [sic] River to the Mediterranean Sea, even if this means that the conflict will last for another thousand years or for many generations." (In an interview with the Egyptian paper al-Arabi, June 24, 2001.)
2003: The late Dr. Abdel Aziz Rantisi, the key leader of Hamas: "By God, we will not leave one Jew in Palestine. We will fight them with all the strength we have. This is our land, not the Jews." (In a telephone interview with Al Jazeera television. Reported in the Jerusalem Times, June 10, 2003.)
2007: Hamas statement in response to criticism by Al-Qaeda's Ayman al-Zawahri, March 12, 2007: "We will not betray promises we made to God to continue the path of Jihad and resistance until the liberation of Palestine, all of Palestine …"
Who starts wars does matter
UN Charter Article 51 clearly recognizes "the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations" by anyone.
The suggestion that a small country such as Israel should be expected to absorb the shock of a first strike against horrendous odds or be branded an aggressor abridges both the spirit and intention of Article 51. It also is untenable in practice, as demonstrated in the existential threat and horrific cost in human life that Israel suffered in the 1973 Yom Kippur War.
Recall that Israel decided against a preemptive air strike just hours before the outbreak of the Yom Kippur War in 1973, choosing not to jeopardize her support from Washington, after the Nixon Administration warned Israel to allow the Arabs to fire the first shot10 and not make "provocative moves." The results for Israel's "good" behavior: 2,222 Israeli dead and 5,596 wounded.11
Arabs would like the world to believe that in 1967, Israel simply woke-up one morning and invaded them, and therefore Israel's control of the Golan Heights, West Bank and Sinai is the illicit fruit of an illegal act - like Iraq's invasion of Kuwait in 1991
Arab leaders 'bundle' the countries who fought Israel in the 1967 Six-Day War into one 'entity' in order to cloud the issues. They point to Israel's surprise pre-emptive attack on Egypt as an act of unlawful aggression, and add that this "unlawful aggression" prevents Israel from claiming the Territories under international law.
Professor, Judge Stephen M. Schwebel, past President of the International Court of Justice (ICJ)12 states the following facts:
"The facts of the June 1967 'Six Day War' demonstrate that Israel reacted defensively against the threat and use of force against her by her Arab neighbors. This is indicated by the fact that Israel responded to Egypt's prior closure of the Straits of Tiran, its proclamation of a blockade of the Israeli port of Eilat, and the manifest threat of the UAR's use of force inherent in its massing of troops in Sinai, coupled with its ejection of UNEF. It is indicated by the fact that, upon Israeli responsive action against the UAR, Jordan initiated hostilities against Israel. It is suggested as well by the fact that, despite the most intense efforts by the Arab States and their supporters, led by the Premier of the Soviet Union, to gain condemnation of Israel as an aggressor by the hospitable organs of the United Nations, those efforts were decisively defeated. The conclusion to which these facts lead is that the Israeli conquest of Arab and Arab-held territory was defensive rather than aggressive conquest."
Egypt in 1956 and 1967
Before Israel's pre-emptive and surprised attack on the Egyptian air force, a series of belligerent acts by the Arab state justified Israel's resort to arms in self-defence in accordance with the Law of Nations.
The Egyptians were responsible for:
• The expulsion of UN peacekeepers from Sinai – stationed there since 1956 to act as a buffer when Israel withdrew from Sinai;
• The closure of Israel's outlet from the Red Sea in defiance of the Geneva Conference of 1958 on free navigation "through straits used for international navigation between one part of the high seas and … the territorial sea of a foreign nation" (For 16 years Egypt illegally blocked Israeli use of the Suez Canal);
• The failure of the international community to break the blockade; and
• The massing of Egyptian forces in Sinai and moving them toward Israel's border.13
In 1956, when Egypt provoked Israel by blockading the Red Sea - crippling her ability to conduct sea trade with Africa and the Far East - the major Western powers negotiated Israel's withdrawal from the Sinai Peninsula, and agreed that Israel's rights would be reserved under Article 51 of the UN Charter if Egypt staged future raids and blockades against Israel. .14
In 1967, Egypt's closing of the Straits of Tiran to Israeli ships before June 5, was an unlawful act of aggression. The Israeli response was a lawful act of self-defence under Article 51 and UN General Assembly Resolution 3314.
Israel's enemies and critics ignore or conveniently forget the facts, as Arabs and their sympathizers continue to blame Israel for 'starting' the 1967 war.
Were the acts by Egyptian President Gamal Abdel Nasser in 1967 against Israel aggressive enough to warrant Israel's exercise of her right to self-defence?
The answer can be found on the official website of the Jordanian Government 15under the heading 'The Disaster of 1967.' It describes the events of the days prior to June 5, 1967 and clearly indicates that Jordan, at least, expected Egypt to launch the offensive war against Israel:
"On May 16, Nasser shocked the world by asking the United Nations to withdraw its forces from Sinai. To the surprise of many, his request was honored two days later. Moreover, the Egyptian president closed the Straits of Tiran on May 22. Sensing that war was now likely. … In response to the Israeli attack [on Egypt], Jordanian forces launched an offensive into Israel, but were soon driven back as the Israeli forces counterattacked into the West Bank and Arab East Jerusalem." (italic by author)
Israel did not entered the West Bank until it was first attacked by Jordan. This fact is stated on the official Website of the Jordanian Government under the heading "The Disaster of 1967":16
"Sensing that war was now likely, King Hussein aligned Jordan firmly with Egypt, suggesting an Egyptian-Jordanian Mutual Defense Treaty … [The treaty] stipulated that Jordan's forces were to be placed under the command of Egyptian General Abdul Moneim Riad … In response to the Israeli attack [on the Egyptian air force], Jordanian forces launched an offensive into Israel, but were soon driven back as the Israeli forces counterattacked into the West Bank and Arab East Jerusalem."
In fact, Jordan was an illegally occupier of the West Bank from 1948 to 1967 , and the undisputable aggressor in the Six-Day-War of 1967. Thus, Israel acted lawfully by exercising its right of self-defence when it redeemed and legally occupied Judea and Samaria, known also as the West Bank.
Israel had clarified to Jordan through UN diplomatic channels that it should stay out of the war. It stated simply: "We shall not attack any country unless it opens war on us."17 King Hussein of Jordan sent a reply via the UN envoy that "since Israel had attacked Egypt, [Israel] would receive his reply by air"18 – a 'message' that came in the form of Jordanian air raids on civilian and military targets, shelling Jerusalem with mortars and long-range artillery on Ben-Gurion Airport, then extending the front to shelling Israel's 'narrow hips' under the mistaken belief that the Arabs were winning. Had Jordan heeded Israel's message of peace instead of Egypt's lies that the Arabs were winning the war, the Hashemite Kingdom could have remained neutral in the conflict, and Eastern Jerusalem and the West Bank would have remained in Jordan's possession. Jordan was far from a 'minor player' in the Arabs' war of aggression as their narrative implies: Israel lost 183 soldiers in battle with Jordanian forces.
Judge Sir Elihu Lauterpacht wrote in 1968, just one year after the 1967 Six-Day War:
"On 5th June, 1967, Jordan deliberately overthrew the Armistice Agreement by attacking the Israeli-held part of Jerusalem. There was no question of this Jordanian action being a reaction to any Israeli attack. It took place notwith-standing explicit Israeli assurances, conveyed to King Hussein through the U.N. Commander, that if Jordan did not attack Israel, Israel would not attack Jordan. Although the charge of aggression is freely made against Israel in relation to the Six-Days War the fact remains that the two attempts made in the General Assembly in June-July 1967 to secure the condemnation of Israel as an aggressor failed. A clear and striking majority of the members of the U.N. voted against the proposition that Israel was an aggressor."
Professor, Judge Schwebel writing lead to the conclusion that under international law, Israel is permitted to stay in the West Bank as long as it is necessary to her self-defence.
Defensive wars and wars of aggression
International law makes a clear distinction between defensive wars and wars of aggression. All of Israel's wars with its Arab neighbors were in self-defence
Professor, Judge Schwebel, wrote in What Weight to Conquest:19
"(a) a state [Israel] acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense;
"(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 of force against it of such a nature as to justify exercise of self-defense;
"(c) Where the prior holder of 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.
"… as between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt."
Israel's Major Wars
Copyright - Original materials copyright (c) by the authors.
