Before Oslo: A Brief Legal History of the Arab-Israeli Conflict
Before Oslo: A Brief Legal History of the Arab-Israeli Conflict
Abstract and Keywords
This chapter presents a brief legal history of the Palestinian–Israel conflict. Topics discussed include the origins of the conflict, the Balfour Declaration, the League of Nations mandate for Palestine, the founding of the state of Israel, and the Six-Day War of Jun 1967.
Origins of the conflict
Jews and Palestinians both assert that their peoples have inhabited Palestine continuously for thousands of years. Each side claims further that this continuous occupation validates its claim to Palestine. Palestinians, for example, have traditionally asserted that ‘they had been immemorially settled in the land where they constituted the majority’, and that this longstanding occupation gave them the strongest claim to Palestine.1 Likewise, supporters of Israel emphasize (in the words of the Israeli Proclamation of Independence) that ‘the Land of Israel was the birthplace of the Jewish people’, the place in which their ‘spiritual, religious and national identity was formed’, the place in which ‘they wrote and gave the Bible to the world’ thousands of years ago.2
These competing historical narratives are thought to have legal relevance because one traditional means of acquiring territorial sovereignty is occupation.3 But the principle of occupation does not clearly vindicate either side’s claim. To begin with, modern notions of territorial sovereignty (p.4) (and its acquisition) were not familiar to the ancient world. ‘When Grotius laid the foundations of modern international law [in the seventeenth century], state territory was still, as in the Middle Ages, more or less identified with the private property of the monarch of the state.’4 Nor is it possible to apply modern notions of ‘effective occupation by a state’ to the ancient world; under the doctrine of inter-temporal law, ‘a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises …’.5 Even if we sought to apply modern notions of territorial sovereignty to an era with utterly different sensibilities, it would not be easy to determine which party had the better claim to Palestine. The Palestinians never seem to have established a kingdom or state of their own, and while the Israelites did establish great kingdoms beginning in the eleventh century BC, these did not endure.6 The Assyrians conquered the northern kingdom of Israel in the eighth century BC, and the Babylonian Empire took control of the southern kingdom of Judah in the sixth century BC.7
Palestine fell under Roman rule in 63 BC and was governed by the Romans more or less continuously until the decline of the Roman Empire.8 In AD 629 the Moslem prophet Mohammed conquered Mecca, (p.5) and within twenty years the Moslems had occupied all of Palestine as well.9 Palestine remained under Moslem rule, in one form or another, for more than 1200 years. In 1516 the Ottoman Turks took control of Palestine and governed it until they were driven out by British troops at the end of World War I.10 During that war, European countries (and especially the British) conducted their policies towards Palestine on the assumption that some European state or states would replace the Turks in the governance of Palestine after the war.11 As we shall see in a moment, European (and especially British) decisions during the war and immediate post-war period proved decisive in the political and legal development of the modern Middle East.
As with almost every other aspect of the Arab-Israeli conflict, there is intense disagreement over the demographic make-up of Palestine during Ottoman rule. There is also disagreement about the extent and cause of Jewish and Arab immigration into Palestine in the mid- to late-nineteenth century.12 Whatever the make-up of Palestine during the early centuries of Ottoman rule, it is generally agreed that there was a large Arab majority and a much smaller Jewish population in Palestine by the end of World War I, when British troops seized Palestine as part of the Allied war against the Central Powers. Most writers put the population figures at somewhere (p.6) around 500,000 Arabs and 100,000 or fewer Jews.13 Those numbers are significant because they underscore the significance of Britain’s decision in 1917 to endorse a ‘national home’ for the Jewish people in Palestine. That decision, of course, was embodied in the Balfour Declaration.
The Balfour Declaration
The Balfour Declaration was contained in a letter dated 2 November 1917 from British Foreign Secretary A. J. Balfour to Lord Rothschild, the purported leader of Britain’s Jewish community.14 There were a variety of motives for the Declaration, including Britain’s desire to exert its influence in post-war Palestine, the view that Palestine was a critical overland bridge to British possessions in the East, the genuine belief that Zionist aspirations were not inconsistent with Arab and British aspirations in Palestine, and even the belief that the support of Russian Jews would help keep Russia allied with Britain in the war.15 Although the Declaration was cast as a letter, its text had been negotiated between Balfour and Rothschild—and among various officers of the British government—well in advance. An earlier draft had endorsed making all of Palestine a Jewish homeland and guaranteeing an open-ended right of (p.7) Jewish immigration, but the British balked at this broad a guarantee.16 The final text, which was approved by the British War Cabinet, read in pertinent part:
His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.17
The political consequence of the Declaration was enormous: it ‘electrified Jews all over the world’18—though not all Jews19—just as surely as it angered Arabs in and out of Palestine.20 The Declaration’s legal consequence, however, is harder to assess.
First there is the question of whether the Declaration was legally binding at all. At first blush it would appear to have had no legal effect, since it was neither a treaty nor an agreement between states, but the International Court of Justice has held that unilateral declarations can be legally binding on the international plane on the basis of good faith, if made with intent to be bound.21 The formality of the Balfour Declaration, (p.8) and its endorsement by the War Cabinet, suggests intent to be bound—certainly more so than the comparatively informal statements of French officials in Nuclear Tests, in which the International Court of Justice found statements to the press to have legal consequence.
In addition, the Balfour Declaration may have been binding on the theory that it was incorporated into the 1923 League of Nations Mandate for Palestine, which clearly was legally binding.22 Indeed, the Mandate does mention the Declaration specifically, and it paraphrases its terms almost verbatim, though this paraphrasing appears only in the Preamble of the Mandate, not in its operative text.23 For that matter, the operative text of the Mandate expands on the undertakings in the Declaration. Thus Article 2 of the Mandate provides: ‘The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home…’ The Mandate may have gone further in recognizing Jewish rights than the Declaration was intended to do. None the less, it seems fair to conclude, as most scholars have, that the Balfour Declaration was generally incorporated into the Mandate.24 Whether the (p.9) Mandate is entirely consistent with the Declaration is a separate question, to be dealt with shortly.25
Arab critics of the Balfour Declaration also argued that it was invalid because it conflicted with prior British promises of Arab independence in the Middle East. In 1915 Sir Henry McMahon, the British High Commissioner at Cairo, and Hussein ibn Ali, Sherif and Emir of Mecca, had exchanged correspondence in which McMahon seemingly promised British support for Arab ‘independence’ in vaguely defined portions of the Middle East in return for Arab military cooperation against the Ottomans.26 Obviously, if McMahon’s promise of Arab independence included Palestine, it might be inconsistent with the Balfour Declaration, with its promise of a ‘national home’ for the Jews ‘in Palestine’.
It is not clear, however, whether McMahon’s promise of ‘Arab independence’ included any of Palestine. McMahon’s promise excluded ‘portions of Syria lying to the west of the districts of Damascus, Homs, Hama and Aleppo …’.27 McMahon and other British officials later interpreted this language broadly, as excluding all of Palestine west of the River Jordan.28 One leading historian, Professor Elie Kedourie, argues that the language ‘could, in logic, equally include and exclude “Palestine” ’—and therefore (p.10) (p.11) ‘what the British government declared the phrase to mean had an authority at least equal to that of any other interpretation’.29 Likewise, it might be argued that either reading is consistent with the underlying purpose of the exclusion of ‘western’ lands—to acknowledge French claims to parts of the Levant.30 None the less, as Professor David Fromkin has observed, the letter’s exclusion of ‘portions of Syria west’ of Damascus and three other towns in a rough north-south line should most naturally be read to exclude only areas west of the districts—the Syrian coastal plain—not large tracts of Palestine south-west and south-south-west of the towns.31
In any event, this famous interpretive debate misses the broader point: whether the McMahon-Hussein understandings had any legal effect at all. It is not that an exchange of letters lacked the requisite formality; then, as now, treaties could take a variety of forms.32 Indeed, according to Kedourie, British officials persistently assumed that the understandings were ‘embodied in a strict, contractual, treaty-like obligation’, instead of pursuing arguments that they were not intended to be binding, that Hussein lacked treaty-making capacity, or that Arab promises had themselves gone ‘unfulfilled’.33 Rather, the problem is that even if the British undertakings were intended to be binding, they were made in such cautious, crabbed terms as to constitute no commitment at all. In particular, Britain made assurances only insofar as ‘she can act without detriment to the interest of her ally France’—and yet, as British officials knew, France at the time claimed Palestine and Syria, strongly implying that (p.12) ‘Britain could not pledge support for Arab claims’ there.34 Moreover, McMahon’s promise of Arab ‘independence’ was qualified by the assertion that ‘Great Britain will give to the Arabs her advice and will assist them to establish what may appear to be the most suitable forms of government in those various territories’.35 McMahon went on to make clear that any such ‘advice’ would have to come from the British exclusively. These provisions strongly imply that ‘independence’ really meant some form of British protectorate.36 It is thus no surprise that some commentators have concluded that the McMahon pledges have little if any binding legal effect.37
Arabs also protested that the Balfour Declaration was inconsistent with the secret Sykes-Picot-Sazanov Agreement of 1916 among Britain, France, and Russia, which provided for some form of international supervision of Palestine after the end of the war.38 The British government responded that the Sykes-Picot-Sazanov Agreement was no longer in force because Russia no longer existed, having been succeeded by the Soviet Union.39 This theory of invalidity might be open to question,40 but there might be (p.13) other grounds to question the validity of the Sykes-Picot-Sazanov Agreement. It might be argued, for example, that the agreement violated the emerging rights of self-determination of the inhabitants of Palestine. There is also some question about whether the Sykes-Picot-Sazanov Agreement was intended to establish enforceable rights among the inhabitants of Palestine.
In the decades since the Balfour Declaration, Palestinian critics of the Declaration have attacked its validity on broader legal grounds. In the 1960s, for example, the Palestinian National Charter asserted that the Balfour Declaration, the Mandate that later incorporated it, and ‘everything that has been based upon them’ were ‘null and void’. The Charter also declared that any ‘historical or religious ties of Jews with Palestine are incompatible with the facts of history and the true conception of what constitutes statehood’.41 In particular, the Charter asserted that the Balfour Declaration and later instruments recognizing Jewish rights in Palestine violated Palestinian rights of self-determination.42
There is no question that modern international law recognizes a right of ‘peoples’ to self-determination. That right was recognized in some form by the international community after World War I,43 and it was explicitly enshrined in the United Nations Charter after World War II and in the Covenants on human rights in 1966.44 But the precise scope of that right, and in particular which communities qualify as ‘peoples’ entitled to exercise that right, remains uncertain. As one Secretary-General of the United Nations has put it, ‘if every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation and peace, security (p.14) and economic well-being for all would become even more difficult to achieve’.45 Indeed, the same UN Charter that endorses self-determination also reaffirms a state’s right to territorial integrity.46 One respected scholar has gone so far as to suggest that ‘the notion of a legal right of self-determination is nonsense, for how can an as yet judicially non-existent entity be the possessor of a legal right?’.47
Assuming that there is some meaningful right of self-determination, the question still remains why international law at the time of the Balfour Declaration should have protected Arab but not Jewish rights of self-determination in Palestine, given that there is reasonable evidence that both peoples have a long history of inhabiting Palestine, and that there was a sizeable (albeit distinct minority) Jewish population in Palestine at the time of the Balfour Declaration. In fact, the Declaration did purport to protect the interests of both peoples by respecting the rights of ‘existing non-Jewish communities’—although admittedly it tilts in favour of Jewish self-determination, since there is no promise of a ‘national home’ for Arabs in Palestine. In so far as the document appears to protect Jewish self-determination more explicitly than Arab self-determination, it should be construed as being consistent with international law, and thus as protecting the rights of both peoples to self-determination.48 Indeed, in so far as the Declaration might have purported to disclaim any right of Arab self-determination, it might well have run afoul of what was then an emerging jus cogens rule of self-determination.49 Thus the traditional Palestinian charge that the Declaration is entirely ‘null and void’ appears to go too far, but there is merit to the suggestion that any such document must be construed as protecting Arab as well as Jewish rights of self-determination.
Assuming that the Balfour Declaration was valid and, further, that it had some legally binding character, the Declaration still raises some interesting questions of interpretation. One might ask, for example, whether the Declaration envisioned a single Jewish state in all of Palestine. It appears not: the plain text of the Declaration speaks of a Jewish national (p.15) homeland ‘in Palestine’, not in all of Palestine, leaving room for a separate Arab homeland in Palestine.50 In fact, a 1922 Winston Churchill White Paper adopted precisely this interpretation.51 There is also ambiguity in the Declaration’s reference to a ‘national home’ for the Jewish people; it is noteworthy that the Declaration stopped short of an explicit reference to a ‘state’. Similarly, the British commitment to this national home was less than complete; instead of flatly promising the Jews a state, the British government said it viewed such a prospect ‘with favour’ and undertook to ‘use their best endeavours to facilitate the achievement of this object’. Finally, the Declaration promised not to ‘prejudice’ the ‘civil and religious rights’ of non-Jewish communities in Palestine, and yet made an arguably broader promise not to prejudice ‘the rights and political status’ of Jews in other countries. The reference to the ‘political status’ of Jews is conspicuously absent from the reference to the rights of non-Jews. Still, it may be that the drafters understood the ‘civil and religious rights’ of non-Jews to include ‘political status’. Of course, the term ‘political status’ is itself undefined.
These uncertainties about the Declaration were in some ways resolved and in some ways carried forward by the League of Nations Mandate for Palestine.
The League of Nations Mandate for Palestine
Article 22 of the Covenant of the League of Nations established the system of Mandates to provide ‘tutelage’ to peoples ‘not yet able to stand by themselves under the strenuous conditions of the modern world’.52 Article 22 envisioned that different peoples might progress towards independence at different rates, and it was relatively optimistic about ‘[c]ertain communities belonging to the Turkish Empire’, providing that their ‘existence as independent nations’ could be ‘provisionally recognised’ until ‘such time (p.16) as they are able to stand alone’. In such cases, the ‘wishes of these communities must be a principal consideration in the selection of the Mandatory’.53 Great Britain was chosen as the Mandatory for Palestine.54 The League Council confirmed the Mandate on 24 July 1922, and it entered into force more than a year later on 29 September 1923.55
In many ways the Mandate appeared to endorse a Jewish ‘national home’ more vigorously than the Balfour Declaration.56 As has already been noted, the Preamble of the Mandate repeated much of the Declaration verbatim, and it also spoke of ‘putting into effect’ the Declaration, not just using ‘best endeavours’ to do so. But the operative provisions of the Mandate went further. Article 2 provided that the Mandatory ‘shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home …’. Article 4 provided that an ‘appropriate Jewish agency shall be recognised as a public body’ to advise and cooperate with the Administration of Palestine, and that the Zionist organization ‘shall be recognised as such agency’. Article 6 obliged the Administration of Palestine to ‘facilitate Jewish immigration’ and to ‘encourage … close settlement by Jews on the land’—a provision later invoked to defend Jewish settlement in the West Bank and Gaza Strip. Article 7 provided for citizenship for Jews who took up permanent residence in Palestine. Article 11 vested the Administration of Palestine with power to provide for ‘public ownership or control’ of natural resources and public works,57 and to ‘introduce a land system appropriate to the needs of the country’ with a view towards ‘close settlement and intense cultivation of the land’. That Article also authorized the Administration to ‘arrange with the Jewish agency’ the construction or operation of public works. Taken as a whole, these provisions of the Mandate elaborate considerably on the Declaration’s favourable attitude towards a Jewish national home in Palestine.
On the other hand, the Mandate also elaborated on the Balfour (p.17) (p.18) Declaration’s proviso that the rights of non-Jewish communities be respected. Article 2 of the Mandate spoke of ‘safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion’. Article 9 mandated ‘[r]espect for the personal status’ of all people in Palestine, guaranteed their ‘religious interests’, and in particular provided that the Wakfs—charitable or religious foundations or trusts58—should be administered ‘in accordance with religious law and the dispositions of the founders’. Article 13 preserved existing rights of access to Holy Places and forbade British interference with the ‘fabric or the management’ of Muslim ‘sacred shrines, the immunities of which are guaranteed’. Article 15 again guaranteed freedom of conscience and worship, and it prohibited discrimination on the grounds of ‘race, religion or language’. But the Mandate did not give Arabs any special role in public works projects, and it did not establish any policy in favour of Arab immigration to Palestine. Nor did the Mandate itself establish any Arab or Moslem organization akin to the Jewish Agency, though the British government did later establish a Supreme Moslem Council to administer religious matters for the Moslem community of Palestine.59
Article 25 of the Mandate permitted Britain, with the consent of the League Council, to ‘postpone or withhold application’ of the Mandate’s provisions to that part of Palestine east of the River Jordan, in the area known then as Trans-Jordan and now as the Kingdom of Jordan. On 16 September 1922 the League Council approved a British proposal to suspend the implementation of Jewish rights east of the Jordan. This decision disappointed Zionists, but the British government argued that it was necessary to give effect to the McMahon pledge, which implied Arab independence in at least part of Palestine.60
(p.19) In any event, the British government did implement the Mandate’s most significant pro-Zionist feature, the provision encouraging Jewish immigration into Palestine. To be sure, British policy on Jewish immigration wobbled during the inter-war years. Indeed, Jewish immigration was rather slow in the 1920s, when times were relatively good for Jews elsewhere, but even so the Jewish population in Palestine roughly doubled to about 160,000 in that decade.61 Jewish immigration provoked increasingly angry and violent anti-Zionist protests from the Arab population of Palestine, including bloody riots in 1929.62 None the less, the pace of Jewish immigration grew dramatically in the 1930s, as Nazism took root in Germany and anti-Semitism spread across Europe, and as depression gripped the world economy.63 By 1939 there were a half million Jews in Palestine. While this number still constituted a minority of the population of all of Palestine, Arab-Jewish conflict was threatening to veer out of control, and the British government felt increasing pressure to do something to mollify Arab concerns.64
Accordingly, in 1939 Britain issued a White Paper proposing sharp limits on Jewish immigration and calling for a single state in Palestine. The White Paper envisioned that this new state would be composed of Jews and Arabs alike, and that its Jewish population would be no more than one-third of the total population. Both sides rejected the White Paper. The Zionists, pointing to an increasingly Nazified Europe, objected to the limits on Jewish immigration, while the Palestinian Arab leadership objected to the absence of a sufficiently firm commitment to an independent Palestine.65
World War II brought the Nazi Holocaust, which killed at least (p.20) six million Jews—two-thirds of the Jewish population of Europe.66 Meanwhile conflict between Jews and Arabs in Palestine intensified. After the war, all efforts to mediate this conflict failed, and Jewish leaders repeatedly called for a new Jewish state in Palestine. In early 1947 Britain declared its intention to terminate its Mandate for Palestine and to refer the matter to the new United Nations for resolution.67 In June 1947 a UN Special Commission on Palestine met for the first time in Jerusalem, and it eventually recommended partition of Palestine into a Jewish State and an Arab State.68 Shortly thereafter, the UN General Assembly put this recommendation on its agenda.
The Partition Resolution and the founding of the State of Israel
On 29 November 1947 the UN General Assembly adopted Resolution 181 (II), which called for the partition of Palestine into a Jewish State and an Arab State, with Jerusalem to be a corpus separatum, an international city.69 The vote was 33 in favour, 13 against, with 10 abstentions. Under the terms of the Resolution, the Jewish State would comprise 57 per cent of Palestine, or 14,500 square kilometres, while the Arab State would comprise 43 per cent of Palestine, or 11,800 square kilometres. The Jewish State would include about 500,000 Jews and 400,000 Arabs, while the Arab State would include more than 700,000 Arabs but only 10,000 Jews.70 The Resolution called for the British Mandate to end on 1 August 1948.
The Zionists accepted the Partition Resolution as the ‘ultimate minimum acceptable’.71 The Arab states rejected it, arguing that they were not bound by the Resolution and that the General Assembly lacked the authority to act on the issue, and asserting that the Balfour Declaration (p.21) (p.22) and the Mandate were invalid.72 The Representative of the Arab Higher Committee argued that the ‘manner and form’ of Palestinian independence was ‘a matter for the rightful owners of Palestine to decide’. He asserted further that the United Nations was ‘not legally competent’ to decide the ‘constitutional organization’ of Palestine, and he called for the election of a legislature by ‘all genuine and law-abiding nationals of Palestine’.73
Some of the arguments over the validity of the Partition Resolution resemble those over the Balfour Declaration, discussed above. These arguments turn on the meaning and scope of the right of self-determination. But whether the Partition Resolution is binding turns to a greater extent on the competence of the United Nations General Assembly. Arab states argued that the Assembly lacked any power to make a binding decision on the question of Palestine because Article 10 of the UN Charter limited the Assembly’s authority to the adoption of ‘recommendations’, in contrast to the Security Council’s power to issue decisions that bind all members (and to a certain extent non-members) of the United Nations under Article 25 of the Charter. The new State of Israel, by contrast, appears to have regarded the Resolution as a document of legal significance; Israel’s Declaration of Independence invoked the Resolution as one basis for the legitimacy of the new Jewish state.74 Ironically, by the end of the twentieth century the two sides seem to have switched. In the spring of 1999 the Palestinians argued that the Partition Resolution was binding; they saw the Resolution as legitimizing their threats to declare a state upon the supposed expiration of the Oslo Accords on 4 May 1999. At the same time, the Netanyahu government argued strenuously that the Resolution was not binding, without explaining why Israel once found the Resolution so relevant that it was cited in Israel’s Proclamation of Independence.
In any event, there is a fair case to be made that the Resolution had some legal effect, at least at the time of its adoption. The UN Charter gave the General Assembly an important role in the management of the new UN trusteeship system, which effectively succeeded the Mandate system of the League of Nations. Article 77(1) of the Charter provided that Mandate territories ‘may’ (not ‘must’) be placed under UN trusteeship agreements,75 Article 83 vested the Security Council with power over (p.23) ‘strategic’ trust territories, and Article 85(1) vested the General Assembly with authority over all other non-strategic trusts. Moreover, Article 80(1) provided that the Charter did not ‘alter in any manner’ the terms of existing arrangements, and the International Court of Justice subsequently indicated that the General Assembly would assume the supervisory functions formerly carried out by the League.76 To be sure, the International Court has equivocated on the scope of the Assembly’s power to make binding decisions in respect of former Mandates,77 and the Partition Resolution itself called on the Security Council to implement its terms, implying that the authors of the Partition Resolution did not believe it to be binding in and of itself.78 Moreover, the Security Council, already beginning to suffer from the Cold War paralysis that would grip it for the next forty years, took no action on the Partition plan. Still, the better view would seem to be that the plain text of Article 85 of the Charter does give the Assembly power (including ‘alteration or amendment’) over trusteeships, including a Mandate that the Mandatory has referred to the United Nations for disposition.
But even if the Partition Resolution was binding at the time of its adoption, it is unlikely that it is still binding today. Unlike Security Council Resolution 242, which was accepted by most of the relevant parties, General Assembly Resolution 181(II) was vigorously rejected by the Arab states. After 1948, no state in the region behaved as if the Resolution was binding, leading some to conclude that the Resolution simply lapsed.79 It has been argued, however, that this state practice alone can not abrogate a binding obligation under the UN Charter.80 Article 103 of the Charter (p.24) does, of course, provide that Charter norms override obligations ‘under any other international agreement’. Strikingly, however, Article 103 says nothing about conflicting obligations under customary law, or about new norms of customary law that post-date the Charter norm in question. Indeed, Article 103 might not stamp out all conflicting obligations under customary law; for example, it might not apply to peremptory norms (jus cogens) that are superior even to Charter norms.81 But even assuming that Article 103 requires fidelity to Charter norms over conflicting customary norms, Article 103 does not rule out the possibility that customary law might itself create new Charter norms—i.e. that subsequent practice of states or the United Nations or both might result in ‘a new interpretation of Charter provisions’.82
Indeed, the practice of the United Nations suggests that it acquiesced in—or even implicitly endorsed—the demise of the Partition Resolution. In the years after the establishment of the State of Israel, resolutions of the General Assembly and Security Council generally avoided mention of the Partition Resolution.83 Immediately after its adoption, there were some half-hearted attempts to delimit the new frontier and take other steps in preparation for partition,84 but the partition plan obviously was not implemented after the 1948 War. After 1948, UN resolutions did not generally rely on the Partition Resolution. Instead, they more typically pointed to legal instruments reflective of the actual situation on the ground, such as the 1949 Armistice Agreements. This neglect of the Partition Resolution might suggest acquiescence in its death.85 Moreover, Security Council Resolution 242—which is, as we shall see in a moment, binding—implicitly superseded the territorial formula in the Partition Resolution, since it called only for Israeli withdrawal from territories occupied in the 1967 War, not withdrawal to the borders envisioned by the Partition Resolution. The Oslo Accords themselves invoke Resolution 242 (and Resolution 338), not the Partition Resolution; this is further evidence that the relevant framework begins with Resolution 242, not the Partition Resolution.
In any event, the Partition Resolution was never put into effect, and in 1948 Palestine slid towards war. In early 1948 Arab states threatened (p.25) forcible ‘defence’ of Palestine, and Arab guerrillas infiltrated Palestine in order to frustrate partition.86 In the spring of 1948, the Zionists adopted their ‘Plan Dalet’ (i.e. ‘Plan D’), whose announced goal was to ‘gain control of the territory of the Hebrew State and defend its borders’ and to gain control of ‘areas of Jewish settlement and population’ outside the area designated for the Jewish State.87 Palestinians charge that this Plan was implemented by a large-scale campaign of forced expulsions of Arabs, while Israel denies that there was any policy of forced expulsion. The truth probably lies somewhere between: the Plan did not endorse ethnic cleansing of all Arabs from the future Israel, but it did give military commanders discretion on how to secure their objectives, and in some cases commanders did expel Arab inhabitants who resisted.88
In the meantime, the British were taking steps to withdraw from Palestine, both militarily and legally. In late 1947, as violence broke out between Arabs and Jews, the British found themselves increasingly unable to impose order in Palestine. On 11 December 1947 the British colonial secretary announced that Britain would terminate its Mandate for Palestine on 15 May 1948.89 By the spring of 1948 there was an exodus of British troops from Palestine.90 By 15 May most British troops and administrators had departed, and the Mandate terminated on that day. It has been argued that Britain lacked the authority unilaterally to terminate a League of Nations Mandate, and that termination required the approval of the League’s successor—the United Nations.91 If true, this argument might suggest that the Mandate is still a source of legal obligations for the parties to the Oslo Accords. But the 1947 UN Partition Resolution had explicitly provided: ‘The Mandate for Palestine shall terminate as soon as possible but in any case no later than 1 August 1948,’which would seem to remove any doubt about Britain’s authority to terminate the Mandate.92
(p.26) On 14 May 1948, the date before the Mandate terminated, David Ben-Gurion proclaimed the establishment of the State of Israel.93 The next day, armies of five Arab states invaded Israel.94 The Arab forces were outmatched and, to some extent, divided among themselves, and Israel eventually prevailed. The Partition Resolution had envisioned that Israel would control 57 per cent of Palestine; by 1949, when Israel concluded armistice agreements with its Arab neighbours, it controlled 73 per cent of Palestine.95 Trans-Jordan controlled the West Bank and the eastern part of Jerusalem, including the Old City; Egypt controlled the Gaza Strip. The war resulted in hundreds of thousands of Arab refugees. To this day, there is intense debate over how many refugees voluntarily left Palestine and how many were driven out.96
Some scholars also continue to debate whether the founding of the State of Israel was legal. It has been suggested, for example, that Israel could not base its claim to statehood on the Partition Resolution because it was non-binding and invalid, and that Israel had no historic claim to statehood.97 As we have seen, however, the Charter did empower the General Assembly to act on questions relating to trusteeships, and Britain’s abdication in favour of UN disposition of the Mandate for Palestine plainly gave the United Nations authority to act. In any event, the Partition Resolution certainly gave a certain political and moral validity to Israel’s claim to statehood.98 As for the historical argument, it is difficult to see why Arabs but not Jews should be entitled to invoke their (p.27) historical connection to the land as a basis for self-determination in Palestine.99 In any event, Israel’s statehood is now long past dispute. Dozens of states recognize Israel. Its longtime nemesis, the PLO, has done so itself.100 Israel meets the traditional objective test of statehood, including territory, population, government, and foreign relations.101 Israel’s membership in the United Nations is further evidence of its valid claim to statehood.102
The next two decades did not bring any improvement in Arab-Israeli relations. Nor did it bring about any significant change in the position of the parties as a matter of international law. Jordan purported to annex the West Bank, but this act was recognized by only two states, Britain and Pakistan; it would be another forty years before Jordan would finally surrender its claim to the West Bank. The Suez crisis of 1956 worsened Arab-Israeli relations but again did not appreciably change the legal situation: Israel, France, and Britain jointly invaded Egypt, only to be forced to retreat in the face of determined opposition from the United States and the international community.103 Israel’s relations with its neighbours remained tense through the next decade.
The 1967 War and Resolution 242
The next major development from the standpoint of international law was the Six-Day War of June 1967. The principal legal issue surrounding the war itself was whether Israel’s pre-emptive strike on Egyptian airfields on 5 June 1967 was an unlawful use of force or a permissible instance of ‘anticipatory self-defence’ against an imminent attack. The answer to this question bears on the legality of Jordan’s attack on Israel, which took place shortly after Israel’s strike on Jordan’s ally Egypt. If Israel’s strike was an act of aggression, then Jordan’s attack was a permissible instance of collective self-defence; if Israel’s strike was a justifiable exercise of self-defence, then Jordan’s attack was an act of aggression. As usual, there are both factual and legal components to the debate.
(p.29) As to facts, Israel asserts that Egypt and other Arab states were facilitating guerrilla attacks against Israel in the months and years leading up to the 1967 War; that Egypt had closed the Straits of Tiran, strangling Israel’s shipping; and that Egypt and other Arab states had amassed troops on Israel’s border and threatened Israel with imminent invasion.104 Arabs assert that Israel used fedayeen attacks as a pretext for harassing its neighbours, as a ‘policy of border belligerence’, that Israel acted ‘increasingly as an instrument of Western domination’, and that the closure of the Straits of Tiran ‘provided Israel with the pretext for attack’.105 The common theme to these narratives is that there were guerrilla attacks on Israel; that Israel engaged in reprisals against them; and that Egypt closed the Straits of Tiran to Israeli ships.
The relevant law is also in dispute. Scholars have long disagreed over whether there is any doctrine of ‘anticipatory self-defence’ at all, given that Article 51 of the Charter permits self-defence only in response to an ‘armed attack’.106 Still, most scholars, particularly in recent decades, have endorsed the notion that a state may defend itself from an attack that is clearly imminent.107 That view is eminently sensible. It certainly comports with the overwhelming position of states in their domestic criminal and tort law108—a body of law that can have some bearing on the rules of international law.109
(p.30) Applying the law of anticipatory self-defence to the 1967 War, most (though not all) commentators have come to the conclusion that Israel’s first strike was justifiable on self-defence grounds.110 This conclusion is well-founded. The closing of the Straits of Tiran, together with the massing of troops on Israel’s borders and vows to destroy Israel,111 suggest that an attack on Israel was indeed imminent. Even a large majority of the United Nations General Assembly—a body not noted for being particularly pro-Israel—refused to condemn Israel’s first strike as a violation of international law.112 The Security Council likewise refused to condemn Israel’s strike.113
The United Nations did, however, take a position on the aftermath of the Six-Day War, which left Israel in control of the Gaza Strip, the Sinai Peninsula, the Golan Heights, and the West Bank, including all of Jerusalem. On 22 November 1967 the Security Council adopted Resolution 242, the resolution that still provides the framework for Arab-Israeli peace. It provides:
The Security Council,
Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security,
1. Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:
(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict;
(ii) Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;
2. Affirms further the necessity
(a) For guaranteeing freedom of navigation through international waterways in the area;
(b) For achieving a just settlement of the refugee problem;
(c) For guaranteeing the territorial inviolability and political independence of every State in the area.114
Like the Balfour Declaration and the Mandate, Resolution 242 points in different directions at once. On the one hand, its preamble speaks of the ‘inadmissibility of the acquisition of territory by war’, implying that Israel should return all the territories obtained in the 1967 War. On the other hand, the English text of the resolution provides that peace ‘should’ (not ‘must’) include withdrawal of Israeli forces ‘from territories occupied in the recent conflict’, not ‘from the territories occupied’ in that conflict.115 The deliberations of the Council suggest that this wording was no accident, and that many of the drafters intended that withdrawal ‘is required from some but not all of the territories’.116
However it is interpreted, there is little doubt that Resolution 242 is legally binding—and thus an important part of the legal landscape occupied (p.32) by the Oslo Accords. Unlike the Partition Resolution, Resolution 242 was a resolution of the Security Council, whose ‘decisions’ bind all Members of the United Nations under Article 25 of the UN Charter. It is true that Resolution 242 does not invoke Chapter VII of the Charter, the section of the Charter that most clearly confers on the Council the power to make decisions binding on member states. For this reason, many commentators have argued that Resolution 242 is not binding on the grounds that it was adopted pursuant to Chapter VI (on peaceful settlement of disputes), and that Chapter VI empowers the Council to make only recommendations, not binding ‘decisions’.117
This argument is not as airtight as it might appear. To begin with, it is not clear that Resolution 242 is founded on Chapter VI rather than Chapter VII. The text of the Resolution does not invoke either chapter of the Charter, though the substance of the Resolution admittedly is more focused on peaceful resolution of disputes (the stuff of Chapter VI) than enforcement measures (the stuff of Chapter VII). In the (admittedly controversial) Advisory Opinion on Namibia, the International Court of Justice held that a similarly ambiguous Council resolution was legally binding. The Court did not maintain that silence in a Council resolution implies that the Council has invoked Chapter VII; instead, the Court suggested that ‘decisions’ of the Council are not confined to enforcement actions under Chapter VII.118 It is true that the Court’s broad interpretation of the term ‘decisions’ has been criticized as inconsistent with the text and as jeopardizing ‘acceptance of decisions of the UN by its members’.119 But there is also a respectable body of scholarly opinion maintaining that (p.33) the term ‘decisions’ can embrace at least some components of Chapter VI such as Article 33, which empowers the Council to ‘call upon’ states to settle disputes—language that echoes the mandatory use of the term ‘call’ in Article 43 and in resolutions enforcing Chapter VII.120 It is therefore possible to conclude that Resolution 242 was binding in and of itself.121
As such, it may not have been necessary that the parties ‘accept’ the Resolution. In any event, however, the Resolution was eventually ‘accepted’ by Israel, by most of Israel’s immediate Arab neighbours, and by the PLO. These ‘acceptances’ make clear that the Resolution is binding on those parties ‘accepting’ it, either on the theory that the acceptances were part of international agreements, or on the theory that they were binding unilateral declarations made in good faith.122 If that were not enough, there is still more evidence to support the conclusion that 242 is binding. For example, Security Council Resolution 338 ‘calls upon’ the parties to implement Resolution 242; in Security Council practice, the phrase ‘calls upon’ often indicates a binding obligation.123 Likewise, Resolution 242 is formally invoked in the Oslo Accords, which (as Part II of this book argues) are themselves binding instruments.124
One way or another, then, Resolution 242 is binding. Indeed, it is still binding today. In this respect it may differ from many if not all of the instruments that preceded it. The Balfour Declaration may have been incorporated into the British Mandate, but the Mandate most likely terminated in 1948. The General Assembly’s Partition Resolution may or may not have been binding when adopted, on the theory that it was an exercise of the Assembly’s supervisory power over trusteeships, but (in contrast to 242) it was rejected by all the Arab states. As a political matter, the ‘land-for-peace’ scheme of Resolution 242 remains the cornerstone of (p.34) peace plans for the Middle East. As a legal matter, it is the most significant plank of the legal framework underlying the Oslo Accords.
After 1967: The Yom Kippur War, Camp David, and Madrid
The 1967 War had international legal consequences other than Security Resolution 242. The war also ushered in a whole new set of legal issues relating to Israel’s administration of the territories it gained in the war. To this day, there is disagreement about whether Israel’s administration of the territories is governed by the law of belligerent occupation, which gives the occupant special rights and responsibilities and restricts controversial practices such as settlements and demolitions.125 The law of occupation is a subset of the larger field of humanitarian law, the law that protects individuals in time of war. Israel’s position is that the law of occupation is generally inapplicable to the West Bank and other territories gained in 1967 because there is no ‘legitimate ousted sovereign’ whose territory is being ‘occupied’ by Israel.126 Israel none the less applies some provisions of humanitarian law to the territories as a de facto matter, on a voluntary basis. The opposing view, which reflects the view of the Palestinians and the majority of the international community, is that the law of occupation applies to the Israeli presence whether or not there is a ‘legitimate ousted sovereign’.127 In addition, there is disagreement over whether occupation law continues to apply in those areas that the Palestinian Authority now controls as a result of the Oslo Accords. Finally, the parties disagree about the extent to which occupation law restricts or forbids Israeli settlements in the territories, the deportation of suspected terrorists, the demolition of houses of suspected terrorists, and other Israeli activities affecting the territories. These issues are still relevant to interpretation of the Oslo Accords, and they will be discussed in detail as they arise in various parts of this book.
(p.36) The decades following the 1967 War also brought the rise of PLO-sponsored terrorism. The murder of Israeli athletes at the 1972 Olympic Games in Munich shocked the world and hardened Israeli resolve not to deal directly with the PLO. The worldwide surge in terrorism since the 1960s has contributed to a concomitant surge in international law dealing with the subject, mostly in the form of multilateral conventions obliging states to extradite or prosecute terror suspects.128 This body of law will be considered in more detail in those sections of the book dealing with the Oslo Accords’ provisions on terrorism and extradition.
The 1967 War was followed by the October 1973 War, in which Syrian and Egyptian forces simultaneously engaged in a surprise attack on Israel on Yom Kippur. Israel initially appeared unprepared for the attack, but eventually repulsed it.129 The 1973 War also led to the adoption of Security Council Resolution 338, which ‘calls upon’ the parties to implement Resolution 242 and ‘decides’ that negotiations ‘shall’ start on a permanent peace settlement. In substance, Resolution 338 adds little to Resolution 242. None the less, as we have seen, Resolution 338 is significant because it dispels doubts about the binding nature of Resolution 242. Resolution 338 speaks in more clearly mandatory terms. Unlike Resolution 242, whose operative paragraphs were introduced by the rather polite words ‘affirms’, ‘should’, and ‘requests’, Resolution 338 used the words ‘calls upon’, ‘shall’, and, most notably, the word ‘decides’. The implication is that Resolution 338 was a ‘decision’ within the meaning of Article 25 of the Charter, and thus binding on all member states. Together, Resolutions 242 and 338 form the scaffolding on which the later peace accords would be built.
Of course, Resolution 338 did not lead immediately to peace. Israel and the PLO continued to clash in, among other places, southern Lebanon, leading to the establishment of a UN peacekeeping mission there in 1978.130 Still, it has been said that Egypt’s initial military success in the 1973 War ‘created a psychological breakthrough that eventually led to an Egyptian-Israeli political settlement’.131 That settlement came (p.37) in the Camp David Accords of 1978 and the Egypt-Israel peace treaty of 1979.
The road to peace at Camp David began with Egyptian President Anwar el-Sadat’s sudden and dramatic visit to Jerusalem in late 1977. ‘No more war,’ he told Israeli Prime Minister Menachem Begin. ‘Let us make peace.’132 And, indeed, they did. On 18 September 1978 Begin and Sadat signed a ‘Framework for Peace in the Middle East Agreed at Camp David’ and a ‘Framework for the Conclusion of a Peace Treaty Between Egypt and Israel’.133 US President Jimmy Carter signed the Accords as a ‘witness’, and the Accords were accompanied by a series of side letters among the parties providing assurances on various points.134 Among other things, the Framework for Peace in the Middle East called for an ‘elected self-governing authority in the West Bank and Gaza’.135 The Framework for Egypt-Israel peace called for negotiation of a peace treaty within three months.136 And, indeed, Egypt and Israel did sign a peace treaty on 26 March 1979; among other things, it provided for the withdrawal of Israeli troops from the Sinai.137
But other Arab states and the Palestinians refused to participate in the Camp David Accords, and it soon became clear that Begin took a narrow view of the Palestinian autonomy envisioned by the Accords. For these and other reasons, the Camp David process foundered. In 1981 Sadat was assassinated by Moslem fundamentalists who viewed his peace treaty with Israel as a criminal act of betrayal. The prospects for peace grew even dimmer in June 1982, when Israel invaded Lebanon. The invasion immediately followed a PLO attempt to assassinate the Israeli Ambassador to Great Britain, but its fundamental purpose was to stamp out PLO bases in southern Lebanon, which had been used to shell Israeli settlements and other targets in northern Israel.138 As the death count mounted, and as news of the massacre at the Sabra/Shatila camp emerged, the war tarnished Israel’s reputation even among its allies.139 Still, Israel (p.38) succeeded in chasing the PLO leadership from Beirut to Tunis and in destroying much of the PLO presence in southern Lebanon. Israel eventually withdrew from most (though not all) of southern Lebanon.140
Once installed in Tunis, the PLO gradually shifted away from a strategy of military confrontation towards one of diplomacy. But as the 1980s wore on without visible progress towards peace, Palestinians in the occupied territories became increasingly restive, and in 1987 began an uprising against Israel—the intifada—that put further pressure on the parties to reach some agreement. In the summer of 1988 Jordan formally relinquished its claims to the West Bank,141 undermining those (including US President Ronald Reagan) who sought to resolve the Palestinian problem through some confederation involving Jordan.142 In late 1988 the PLO renounced terrorism and recognized the state of Israel; shortly thereafter, in December, the United States government announced it would begin discussions with the PLO. The end of the Cold War spurred the PLO and Arab states to support some sort of peace talks, since the breakup of the Soviet Union deprived the Arab world of a traditional military and political ally—just as the Bush Administration’s threats to curtail some US financial support for Israel put pressure on Israel to come to the table as well. Israel insisted, however, that any Palestinian representatives at peace talks be part of a joint Jordanian-Palestinian delegation. Under these and other conditions, Palestinian representatives agreed to meet face-to-face with their Israeli counterparts at a US- and Soviet-sponsored conference in Madrid in October 1991.
The Madrid conference established a framework for peace negotiations on a variety of fronts. There would be bilateral discussions between Israel and each of its neighbours on a variety of topics, as well as multilateral discussions involving all of the parties. These talks were to take place in Washington, DC, under the sponsorship of the United States. But little progress was made in these relatively public discussions in Washington. By the summer of 1993, the Washington negotiations had dragged on through eleven rounds, with no real progress in sight.143
In August 1998 Israel and the PLO surprised the world by announcing that their representatives had been meeting in secret for months in Oslo, Norway, and that they were preparing to sign an agreement involving mutual recognition and gradual transition towards some form of autonomy for the Palestinians. On 13 September 1993 PLO Chairman Yasser Arafat and Israeli Prime Minister Yitzhak Rabin met on the White House lawn and, under a bright Washington sky, as the world watched on television and US President Bill Clinton stood by, they signed the historic Declaration of Principles. Tears welled in the eyes of some of the onlookers on the South Lawn as Rabin and Arafat each took the podium to speak. First Rabin, speaking in heavily accented English:
This signing of the Israeli-Palestinian declaration of principles here today is not so easy, neither for myself as a soldier in Israel’s wars, nor for the people of Israel, nor for the Jewish people in the diaspora who are watching us now with great hope mixed with apprehension. It is certainly not easy for the families of the victims of the wars, violence, terror, whose pain will not heal, for the many thousands who defended our lives with their own and have even sacrificed their lives for our own. For them, this ceremony has come too late.
…We have come from Jerusalem, the ancient and eternal capital of the Jewish people. We have come from an anguished and grieving land. We have come from a people, a home, a family that has not known a single year, not a single month, in which mothers have not wept for their sons. We have come to try and put an end to the hostilities so that our children, and our children’s children, will no longer experience the painful cost of war, violence and terror….
Let me say to you, the Palestinians—we are destined to live together on the same soil in the same land. We, the soldiers who have returned from battles stained with blood; we, who have seen our relatives and friends killed before our eyes; we, who have attended their funerals and cannot look into the eyes of their parents; we who have come from a land where parents bury their children; we, who have fought against you, the Palestinians, we say to you today in a loud and clear voice—enough of blood and tears. Enough!
Then Arafat, speaking in Arabic:
Now as we stand on the threshold of this new historic era, let me address the people of Israel and their leaders, with whom we are meeting today for the first time, and let me assure them that the difficult decision we reached together was one that required great and exceptional courage.
We will need more courage and determination to continue the course of building coexistence and peace between us….
Ladies and gentlemen, the battle for peace is the most difficult battle of our (p.40) lives. It deserves our utmost efforts because the land of peace, the land of peace yearns for a just and comprehensive peace. Thank you.144
As Clinton gently pushed the two men together, the two longtime adversaries sealed their agreement with a handshake—one of the most widely watched handshakes in human history. The first Oslo Accord was complete.
(1) Elie Kedourie, In the Anglo-Arab Labyrinth: The McMahon–Husayn Correspondence and its Interpreters 1914–1939 (Cambridge: Cambridge University Press, 1976), 244 (describing the arguments of early 20th-century Palestinian Arab leaders against Britain’s pro-Zionist policy). See also John Quigley, ‘Sovereignty in Jerusalem’, 47 Catholic U.L. Rev. 765, 768 (1996) (citing Henry Cattan, Palestine and International Law: The Legal Aspects of the Arab–Israeli Conflict (London: Longman, 1973), 65–8) (asserting that the Palestinians have the best claim because of their ‘longtime status as the majority population of Palestine’). Cf. David McDowall, The Palestinians: The Road to Nationhood, 3 (London: Minority Rights Group, 1994) (‘Today’s Palestinians are almost certainly descended from the earliest recorded inhabitants’).
(2) State of Israel, Declaration of Independence, 14 May 1948, 1 L.S.I. 3, ¶ 1. Indeed, it has been said that the Jews are ‘the only people in the world today who possess a historical record, however obscure in places, which allows them to trace their origins back into very remote times’. Paul Johnson, A History of the Jews (New York: Harper & Row, 1987), 7. See also Louis Rene Beres, Response to John Quigley, 12 Am. U.J. Int’l L. & Pol’y 509, 510 (1997) (‘a substantial and continuous Jewish presence has existed in the land for 3000 years’).
(3) See Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheims International Law, 9th edn (Harlow, Essex: Longman, 1993), §243, at 679, and §§250-5, at 686–92. Since the 19th century the doctrine has apparently been narrowed to require effective occupation. See, e.g., Island of Palmas Case (US v. Neth.), 2 U.N. Rep. Int’l Arb. Awards 829 (Perm. Ct. Arb. 1928); Legal Status of Eastern Greenland (Den. v. Nor.), PC.I.J., Ser. A/B, No. 53, 3 Hudson, World Ct. Rep. 148 (requiring ‘some actual exercise or display of [sovereign] authority’). But the validity of ancient Jewish and Palestinian claims must be tested by the law prevailing at the time of occupation. See Island of Palmas Case; Philip Jessup, ‘The Palmas Island Arbitration’, 22 Am. J. Int’l L. 735, 740 (1928).
(4) Oppenheim’s International Law, vol. 2, §242, at 678–9. See also F. H. Hinsley, Sovereignty, 2nd edn (Cambridge: Cambridge University Press, 1986), 27–44 (arguing that no real concept of sovereignty emerged until Roman times, and that it waned again after the decline of the Roman Empire). Scholarship on sovereignty has flourished in the past few years. For some interesting examples, see, e.g., Abram Chayes and Antonia H. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, MA: Harvard University Press, 1995); Harold Hongju Koh, Review of Chayes and Chayes, The New Sovereignty, 91 Am. J. Int’l L. 389 (1997); Antonio F. Perez, ‘Who Killed Sovereignty? Or: Changing Norms Concerning Sovereignty in International Law’, 14 Wis. Int’l L.J. 463 (1996); Peter J. Spiro, ‘New Players on the International Stage’, 2 Hofstra L. & Pol’y Symp. 19 (1997); Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia, PA: University of Pennsylvania Press, 1990); Jurgen Habermas, ‘The European State: Its Achievements and Its Limitations: On the Past and Future of Sovereignty and Citizenship’, 9 Ratio Juris 125 (1996); Anne F. Bayefsky, ‘Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies’, Ibid. 42 (1996).
(5) Island of Palmas Case (US v. Neth.), 2 U.N. Rep. Int’l Arb. Awards 829 (Perm. Ct. Arb. 1928). See generally T. O. Elias, ‘The Doctrine of Intertemporal Law’, 74 Am. J. Int’l L. 285 (1980).
(6) See generally John Bright, A History of Israel (Philadelphia, PA: Westminster Press, 1959), 184–266 (describing the rise of the monarchies); ibid. 269–339 (describing their fall). See also Max L. Margolis and Alexander Marx, A History of the Jewish People, 35–74 (New York: Atheneum, 1969) (reprint of Philadelphia, PA: Jewish Publication Society of America, 1927). For an interesting social and religious history of the period, including a description of early Israelite law, see generally Salo W. Baron, A Social and Religious History of the Jews, 2nd edn (New York: Columbia University Press, 1952), 1:63–101.
(9) Barbara W. Tuchman, Bible and Sword: England and Palestine from the Bronze Age to Balfour (New York: Funk & Wagnalls, 1956), 24–5; Johnson, A History of the Jews, 166; Guy LeStrange, Palestine Under the Moslems: A Description of Syria and the Holy Land from AD 650 to 1500 (London: 1890; Beirut: 1975).
(10) For more on Ottoman administration of Palestine, see David Kushner (ed.), Palestine in the Late Ottoman Period: Political, Social, and Economic Transformation (Oxford: Oxford University Press, 1986; Jerusalem: Yad Izhak Ben-Zvi, 1986); Donna Robinson Divine, Politics and Society in Ottoman Palestine: The Arab Struggle for Survival and Power (Boulder, CO; London: Lynne Rienner Publishers, 1994).
For more on the Ottoman empire generally, see Karen Barkey, Bandits and Bureaucrats: The Ottoman Route to State Centralization (Ithaca, NY: Cornell University Press, 1997); Cemal Kafadar, Between Two Worlds: The Construction of the Ottoman State (Berkeley, CA: University of California Press, 1995); Stanford Shaw, History of the Ottoman Empire and Modern Turkey (Cambridge: Cambridge University Press, 1976).
(11) This is one of the recurring themes of David Fromkin’s marvellous book on British policy towards Palestine during and after the World War I. See generally David Fromkin, A Peace to End All Peace: The Fall of the Ottoman Empire and the Creation of the Modern Middle East (New York: Henry Holt, 1989). There is a rich scholarly literature on the period, including most notably the work of Elie Kedourie. See, e.g., Elie Kedourie, England and the Middle East: The Destruction of the Ottoman Empire 1914–1921 (London: Bowes & Bowes, 1956; reprint, Hassocks, Sussex: The Harvester Press, 1978); Kedourie, In the Anglo-Arab Labyrinth.
(12) For the view that Jewish settlement improved the economy and drew Arab immigrants to Palestine in the late nineteenth and early twentieth century, see, e.g., ‘The Influence of Jewish Colonization on Arab Development in Palestine’, 3 Palestine Y.B. 185, 190 (1947–8) (reprinting memorandum by Jewish Agency presented in March 1946, to Anglo-American Committee of Inquiry); see also Fred M. Gottheil, ‘Arab Immigration into Pre-state Israel’, in Palestine and Israel in the 19th and 20th Centuries, edited by Elie Kedourie and Haim (London, Totowa, NJ: Frank Cass, 1982), 147–50.
For the view that Arab immigration accounted for only a small percentage of the Arab population in Palestine in the early twentieth century, see Roberto Bacchi, The Population of Israel (Jerusalem: Scientific Translations International, 1974), 388–9; see also Justin McCarthy, The Population of Palestine: Population History and Statistics of the Late Ottoman Period and the Mandate (New York: Columbia University Press, 1990), 33–4.
(13) See Martin Gilbert, Sir Horace Rumbold: Portrait of a Diplomat 1869–1941 (London: Heinemann, 1973), 398 (‘In 1918 there had been less than 100,000 Jews in Palestine, and over a half a million Arabs’); Erich W. Bethmann (ed.), Decisive Years in Palestine, 1918–1948 (New York: American Friends of the Middle East, Inc., 1957), 19 (‘In 1919 the total estimated population of Palestine was 590,000. The Jewish population of Palestine was 55,000 or nine percent’); Johnson, A History of the Jews, 430 (85,000–100,000 Jews out of a total population of 600,000).
(14) For a facsimile of the letter, see Leonard Stein, The Balfour Declaration (New York: Simon and Schuster, 1961), frontispiece. In Johnson’s view, Walter the Second Lord Rothschild was a ‘curious choice to take part in one of the most decisive events in Jewish history’. Lord Rothschild had devoted his life not to public affairs or foreign policy but to ‘the silent amassing of the greatest man-made collection ever assembled’, one that included more than two million moths and butterflies and 300,000 bird-skins. ‘Unknown to anyone … he was also being steadily stripped of his fortune by an unscrupulous peeress and her husband, who blackmailed him for over forty years.’ Johnson, A History of the Jews, 429.
(15) See Howard M. Sachar, A History of Israel: From the Rise of Zionism to Our Time (New York: Alfred A. Knopf, 1981), 111, 828 (describing British hopes that the Declaration might mobilize Jewish support for the Allied cause); Fromkin, A Peace to End All Peace, 283 (on British views on the compatibility of Zionist, Arab, and British aims in Palestine); Ibid. 293–6 (on British imperial interests in Palestine); Ibid. 296 (on British views on the influence of Russian Jews).
(16) Johnson, A History of the Jews, 429–30.
(17) The Balfour Declaration, 2 Nov. 1917, reprinted in Ruth Lapidoth and Moshe Hirsch (eds.), The Arab–Israel Conflict and Its Resolution: Selected Documents (Dordrecht, Boston: Martinus Nijhoff Publishers, 1992), 20, and in Stein, The Balfour Declaration, frontispiece.
(18) Martin Gilbert, Israel: A History (New York: William Morrow, 1998), 34; see also Sachar, A History of Israel, at 111 (describing the ‘exhilarated’ reactions of Jews in America and else-where).
(19) For example, Edwin Montagu, a Jewish member of the British Cabinet, regarded Zionism as a ‘threat to the position in British society that he and his family had so recently, and with so much exertion, attained’. Fromkin, A Peace to End All Peace, 294; see also Stein, The Balfour Declaration, 496–501; Sachar, A History of Israel, 107. Fromkin asserts further that ‘in his non-Zionism, Montagu was speaking for a majority of Jews’. Ibid, and 587 n. 31 (citing Stein, The Balfour Declaration, 66) (describing low rates of payment of the ‘shekel’ that indicated ‘adherence’ to Zionism). Cf. also Stein, The Balfour Declaration, 67 (stating that Zionism was ‘the faith of a comparatively small minority of Jews’ at the beginning of the war). But see Sachar, A History of Israel, 111 (‘There was nothing equivocal about the reaction of American Jewry,’ whose ‘members hardly were less exhilarated by news of the declaration than were the Jews of Britain and Russia’).
(20) Charles D. Smith, Palestine and the Arab–Israeli Conflict, 3rd edn (New York: St Martin’s Press, 1996), 55; Bernard Wasserstein, The British in Palestine: The Mandatory Government and the Arab–Jewish Conflict 1917–1929, 2nd edn (Oxford: Basil Blackwell, 1991), 31–2, 97 (describing Arab protests against the Declaration in 1918 and later). For more on early Arab reactions to Zionism, and on the development of Palestinian nationalism, see generally Muhammad Y Muslih, The Origins of Palestinian Nationalism (New York: Columbia University Press, 1988); Yehoshua Porath, The Emergence of the Palestinian–Arab National Movement, 1918–1929 (London: Frank Cass, 1974); Yehoshua Porath, The Palestinian Arab National Movement: From Riots to Rebellion (London: Frank Cass, 1977).
(21) Nuclear Tests (Aus. v. Fr.), 1974 I.C.J. Rep. 253; 1974 I.C.J. Rep. 668 (NZ v. Fr.); cf. also Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser. A/B) No. 53 (April 5).
(22) For the text of the Mandate, see League of Nations Doc. C. 529. M. 314. 1922. VI., reprinted in 44 Stat. 2184; see also Lapidoth and Hirsch, Selected Documents, 25. As to its binding nature, see Manley O. Hudson, World Court Reports: A Collection of the Judgments, Orders, and Opinions of the Permanent Court of International Justice (Washington: Carnegie Endowment for International Peace, 1934–43) 1:362 n. 1 (noting that the Mandate ‘came into force’ on 29 Sept. 1993).
(23) ‘Whereas the Principle Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on the 2nd November, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country,…’
British Mandate for Palestine, confirmed by the Council of the League of Nations on 24 July 1922, League of Nations Official Journal, Aug. 1922, at 1007, reprinted in 44 Stat. 2184, Preamble, ¶2 (italics added). The italicized language is identical to that of the Balfour Declaration—except that it does not include Britain’s undertaking to ‘use their best endeavours to facilitate the achievement of this object’, instead providing that the Balfour Declaration has been ‘adopted by’ the Allied Powers and that the Mandatory ‘should be responsible for putting into effect the declaration’.
It might be argued that the Mandate’s preamble imposed a broader obligation than the original Balfour Declaration, since the Mandate spoke flatly of ‘putting into effect’ the Declaration, whereas the Declaration itself merely obliged Britain to use its ‘best endeavours to facilitate the achievement’ of its ‘object’. A more reasonable interpretation, however, is that the two provisions were intended to be read together. Thus the Mandate obliges Britain to ‘put into effect’ its earlier undertaking to use its ‘best endeavours to facilitate the achievement’ of the Declaration’s ‘object’.
(24) See George E. Bisharat, ‘Land, Law, and Legitimacy in Israel and the Occupied Territories’, 43 Am. U. L. Rev. 467,473 (1994) (asserting that the Declaration was incorporated into the Mandate); Samira Shah, ‘On the Road to Apartheid: The Bypass Road Network in the West Bank’, 29 Colum. Human Rights L. Rev. 221, 228 (1997) (similar) (citing United Nations, The Origins and Evolution of the Palestine Problem: 1917–1988, at 8 (New York: United Nations, 1990)); Allan Gerson, Israel, the West Bank and International Law, 43 (London; Totowa, NJ: Frank Cass 1978); cf. The Mavromattis Palestine Concessions, PC.I.J. Ser. A, No. 2, at 69 (1924) (opinion of Judge Moore). Cf. also Yoav Tadmor, ‘The Palestinian Refugees of 1948: The Right to Compensation and Return’, 8 Temp. Int’l & Comp. L.J. 403, 405 (1994) (asserting that the Balfour Declaration was ‘included’ in the Mandate).
(25) Rosalyn Higgins, Review of Gerson, Israel, the West Bank and International Law, 74 Am. J. Int’l L 704, 705 (1980)
(26) CorrespondenceLapidoth and Hirsch, Selected Documents, 3–12, and in Walter Laqueur (ed.), The Israel–Arab Reader: A Documentary History of the Middle East Conflict (New York: Bantam, 1970), 15.In the Anglo-Arab Labyrinth.
(27) See letter of 24 Oct. 1915 from Sir Henry McMahon to the Sherif of Mecca, reprinted in Lapidoth and Hirsch, Selected Documents, 7, and in Kedourie, In the Anglo-Arab Labyrinth, 97. An earlier version of the phrase excluded ‘the portions of Syria lying to the west of the districts of Damascus, Horns, Hama and Aleppo …’. Lapidoth and Hirsch, Selected Documents, 8 n. 9 (italics added). It might be argued that the deletion of the definite article ‘the’ from the final text implies that some ‘portions of Syria’ (such as Palestine) were covered by McMahon’s assurances of independence.
(28) See letter of McMahon to The Times, 23 July 1937, reprinted in Lapidoth and Hirsch, Selected Documents, 19 (‘I feel it my duty to state, and I do so definitely and emphatically, that it was not intended by me in giving this pledge to King Hussein to include Palestine in the area in which Arab independence was promised’); Kedourie, In the Anglo-Arab Labyrinth, 247 (describing McMahon’s letter of 12 Mar. 1922 to the colonial office, asserting ‘that his intention had been to exclude Palestine …’); Ibid. 245 (quoting a colonial office memorandum of 3 June 1922 concluding that the ‘whole of Palestine’ was ‘excluded’ from McMahon’s ‘pledge’).
(29) Kedourie, In the Anglo-Arab Labyrinth, 247. At the same time, Kedourie is critical of the ‘lame argument’ the British government used to arrive at its interpretation—namely, the argument that the ‘district’ of Damascus meant the Ottoman vilayet of Damascus, whose western boundary ran down the River Jordan to the Gulf of Aqaba. Ibid. 246. In Kedourie’s (and Hussein’s) view, McMahon cannot possibly have meant the vilayet of Damascus, since he used the word ‘district’ to describe Horns and Hama, as to which there had never been a vilayet. Ibid. 236–7.
(30) This purpose is evident in the text of McMahon’s famous letter of 24 Oct. 1915, which gave Hussein assurances only ‘in regard to those portions of the territories wherein Great Britain is free to act without detriment to her Ally, France …’. See Kedourie, In the Anglo-Arab Labyrinth, 97. Even a ranking British official who was opposed to French ambitions in the interior of Syria ‘recognized that France could not be excluded from the coast of Syria–Lebanon, where Christians under French patronage resided’. Fromkin, A Peace to End All Peace, 178–9 (describing the views of Gilbert Clayton, then the head of British Intelligence in Cairo).
(32) Cf. Lassa Francis Lawrence Oppenheim, International Law, 3rd edn, edited by Ronald F. Roxburgh (London: Longmans, Green and Co., 1920), §507,663–4 (providing that there is ‘no necessary form’ of treaties, and that an exchange of ‘personal letters’ between heads of state can suffice) with Vienna Convention on the Law of Treaties, 22 May 1969, UN Doc. A/CONF. 39/27, 8 I.L.M. 679 (1969), Art. 2(l)(a) (providing that a treaty is binding, ‘whatever its particular designation’, even if it is embodied ‘in two or more related instruments’).
(33) Kedourie, In the Anglo-Arab Labyrinth, 246, 249.
(34) Fromkin, A Peace to End All Peace, 183. Indeed, Fromkin argues that Britain’s promises in respect of other portions of the Middle East were equally empty. As he puts it, ‘Britain did not bind herself to support Hussein’s claims anywhere at all.’ Ibid.
(35) Kedourie, In the Anglo-Arab Labyrinth, 97.
(36) Fromkin, A Peace to End All Peace, 183
(37) See, e.g., Richard Wilner, Comment, ‘Nationalist Movements And The Middle East Peace Process: Exercises In Self-Determination’, 1 U.C. Davis J. Int’l L. & Pol’y 297, 313 n. 74 (1995), citing Helen C. Metz, Israel: A Country Study, 3rd edn (Washington: Library of Congress, 1990), 33.
(38) Exchange of Letters between France and Great Britain respecting the Recognition and Protection of an Arab State in Syria (Sykes–Picot Agreement), 9–16 May 1916, Gr. Brit.–Fr., De Martens 3, X, 350; 222 Consol. T.S. 323; Exchange of Notes between Great Britain and Russia relative to the Sykes–Picot Agreement of 9/16 May 1916, 23 May–1 Sept.–23 Oct. 1916, Gr. Brit.–Russ., 222 Consol. T.S. 336. For an illuminating account of the secret negotiations culminating in the Sykes–Picot Agreement, and especially of the bureaucratic in-fighting surrounding it, see Fromkin, A Peace to End All Peace, 188–99. Many British officials felt that Mark Sykes MP—a relative novice to diplomacy—gave away too much to the French, and that Sykes failed to safeguard British interests in the Middle East. Consider this reaction, from one of Syke’s old friends: ‘I am afraid that swine Monsieur P[icot] has let M.S. [Mark Sykes] badly down. … [I]t is an awful pity both for the thing itself, and for M. and also because it is one up to the old early Victorians who are in a position to say “We told you so. This is what comes of disregarding the ABC of Diplomacy, and letting Amateurs have a shy at delicate and important negotiations.”’ Aubrey Herbert, quoted in Margaret FitzHerbert, The Man Who Was Greenmantle: A Biography of Aubrey Herbert (London: John Murray, 1983), 173, and in Fromkin, A Peace to End All Peace, 195.
(39) Gerson, Israel, the West Bank, and International Law, 83 n. 6.
(40) Modern treaty law is distinctly sceptical about claims of changed circumstance. See Vienna Convention on the Law of Treaties, Art. 62. Similarly, modern law on state succession evinces a distinct preference for continuity in treaty relations, not a ‘clean slate’ rule. See Vienna Convention on Succession of States in Respect of Treaties, opened for signature 23 Aug. 1978, Art. 2(l)(b), 17 I.L.M. 1488 (1978); see generally Geoffrey R. Watson, ‘The Law of State Succession’, in Contemporary Practice of Public International Law (Dobbs Ferry, New York: Oceana, 1997), 117–21.
(43) See Oppenheim’s International Law, 9th edn, §274, 1:712 (asserting that the ‘concept’ of self-determination ‘goes back at least to President Wilson, the post-First World War settlement, and the League of Nations’); cf. Covenant of the League of Nations, Art. 22 (estab-lishing the system of mandates as a ‘sacred trust of civilisation’); Ibid., Art. 23(b) (obliging members of the League to ‘undertake to secure just treatment of the native inhabitants of territories under their control’); Michla Pomerance, ‘The United States and Self- Determination: Perspectives on the Wilsonian Conception’, 70 Am. J. Int’l L. 1 (1976).
(44) UN Charter, 26 June 1945, T.S. No. 993, Art. 1(2) (providing that one of the purposes of the United Nations is to develop friendly relations among nations based on respect for ‘self- determination of peoples’); Ibid., Art. 55 (similar); International Covenant on Civil and Political Rights, 16 Dec. 1966, 999 U.N.T.S. 171, Art. 1(1) (‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status …’); International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, 993 U.N.T.S. 3, Art. 1(1) (similar).
(45) Boutros Boutros-Ghali, ‘An Agenda for Peace’, UN Doc. S/24111, ¶17 (1992), 31 I.L.M. 953 (1992).
(46) See UN Charter, Art. 2 (4). See also Thomas M. Franck, The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990), 166.
(47) Sir Gerald Fitzmaurice, ‘The Future of Public International Law’, in Livre du Centenaire, Ann. Inst, de Droit Int’l (1973), 233 n. 85.
(48) Vienna Convention on the Law of Treaties, Art. 31(3)(c).
(49) Oppenheim’s International Law, 9th edn, §2, 1:7–8a jus cogens
(50) See Gerson, Israel, the West Bank and International Law, 43–4; Sachar, A History of Israel, 109.
(51) in PalestineGerson, Israel, the West Bank and International Law, 43–4 and n. 22.
(52) Covenant of the League of Nations, 28 June 1919, Art. 22(2) (‘tutelage’) and Art. 22(1) (‘stand by themselves’), reprinted in Hudson, International Legislation vol. 1, at 1. The Covenant forms Part I of the Treaty of Versailles of 28 June 1919, reprinted in 112 British and Foreign State Papers 1; Georg Friedrich de Martens, Nouveau Recueil Général de Traités et Autres Actes Relatifs aux Rapports de Droit International, 3 sér., 11: 323.
(53) League Covenant, Art. 22(4).
(54) Sachar, A History of Israel, 116–37.
(55) Quincy Wright, Mandates Under the League of Nations (Chicago, IL: University of Chicago Press, 1930), 607 n. 9.
(56) Allan Gerson has said that analysis of the inconsistencies between the Balfour Declaration and the Mandate is ‘pointless’. Gerson, Israel, the West Bank and International Law, at 43 (citing The Mavrommatis Palestine Concessions, Judgment No. 2 (Jurisdiction), 30 Aug. 1924, PC.I.J. Ser. A, No. 2, at 6, 54 (dissenting opinion of Judge Moore)). For criticism of Gerson’s view, see Higgins, review of Gerson, Israel,… International Law, 705.
(57) This provision was at the heart of a later World Court dispute between Britain and Greece over allegations that Britain had refused to recognize the full extent of a Greek national’s concessionary rights in Palestine. See generally The Mavrommatis Palestine Concessions, Judgment No. 2 (Jurisdiction), at 6–93; The Mavrommatis Palestine Concessions, Judgment No. 5 (Merits), 26 Mar. 1925, P.C.I.J. Ser. A, No. 5, at 6–51.
(58) For definitions of the term wakf, often transliterated as waqf, see John L. Esposito (ed.), Oxford Encyclopedia of the Modern Islamic World, 14, s.v. ‘waqf’ (New York: Oxford University Press, 1995), 312–16; Monica M. Gaudiosi, Comment, ‘The Influence of The Islamic Law of Waqf on the Development of the Trust in England: The Case of Merton College’, 136 U. Pa. L. Rev. 1231, 1231 n. 1 (1988) (‘charitable trust’).
For more on waqfs generally, see Michael Dumper, Islam and Israel: Muslim Religious Endowments and the Jewish State (Washington, DC: Institute for Palestine Studies, 1994); Majid Khadduri and Herbert J. Liebesny (eds.), Law in the Middle East, vol. 1, Origin and Development of Islamic Law (Washington, DC: Middle East Institute, 1955), 203–22.
(59) Sachar, A History of Israel, 170–1; Kenneth W. Stein, The Land Question in Palestine, 1917–1939 (Chapel Hill, NC: University of North Carolina Press, 1984), 12, 29–30. For more on the Supreme Moslem Council, see generally Yitzhak Reiter, Islamic Endowments in Jerusalem under British Mandate (London: Frank Cass, 1996); Uri M. Kupferschmidt, The Supreme Muslim Council: Islam under the British Mandate for Palestine (Leiden, Netherlands: E. J. Brill, 1987).
(60) See Gerson, Israel, the West Bank and International Law, 44–5. As Gerson notes, the Churchill White Paper of June 1922—issued just a few months before the decision on Trans- Jordan—strongly hinted that Britain would suspend Jewish national rights east of the Jordan. See Ibid.
(61) Johnson, A History of the Jews, 444.
(62) See Ibid, (asserting that over 150 Jews died); Marshall J. Breger and Thomas A. Idinopulos, Jerusalem’s Holy Places and the Peace Process (Washington, DC: Washington Institute for Near East Policy, Policy Papers Ser. No. 46,1998), 9 (describing a massacre of 116 Arabs and 232 Jews); Gilbert, Israel: A History, 60 (asserting that there were 133 Jewish deaths and 87 Arab deaths, and that 4,000 Jews were forced to leave their homes); Porath, The Emergence of the Palestinian–Arab National Movement. Another Arab revolt against Jewish immigration took place in 1936. See generally Porath, From Riots to Rebellion, 140–216; Benny Morris, The Birth of the Palestinian Refugee Problem 1947–49 (New York: Cambridge University Press, 1987), 5.
(63) Sachar, A History of Israel, 189.
(64) In 1937 the Peel Commission, appointed by the British government to recommend a solution to the Palestine problem, proposed partition of Palestine into a Jewish and an Arab state. Arab leaders rejected the recommendation, while Zionists were divided on it, and the plan was dropped. See Morris, Birth of the Refugee Problem, 5; Sachar, A History of Israel, 201–8, 217–19. For a map depicting the Peel plan, see Gilbert, Israel: A History, 626.
(65) See Sachar, A History of Israel, 222–6; Mark Tessler, A History of the Israeli–Palestinian Conflict (Bloomington, IN: Indiana University Press, 1994), 241–2; J. C. Hurewitz, The Struggle for Palestine (New York: Norton, 1950), 94–111.
(66) For one breakdown of the numbers of Jews killed by nationality, see Sachar, A History of Israel, 249. For a sampling of the overwhelming volume of literature on the history of the Holocaust, see Saul Friedlander, Nazi Germany and the jews (New York: HarperCollins 1997); Saul Friedlander, Memory, History, and the Extermination of the jews of Europe (Bloomington: Indiana University Press, 1993); Raul Hilberg, The Destruction of the European lews (New York: Holmes and Meier, 1985); Yehuda Bauer with Nili Keren, A History of the Holocaust (New York: F. Watts, 1982); Yehuda Bauer, The Holocaust in Historical Perspective (Seattle: University of Washington Press, 1978); Lucy S. Dawidowicz, The War Against the Jews, 1933–1945 (New York: Holt, Rinehart, and Winston, 1975).
(67) S. Ettinger, ‘The Modern Period’, in A History of the Jewish People, ed. H. H. Ben-Sasson (Cambridge, MA: Harvard University Press, 1976), 1044.
(69) Palestine Partition Plan, G.A. Res. 181(II), UN Doc. A/519, at 131 (1947)Selected Documents
(70) Gilbert, Israel: A History, 149.
(71) The Acceptance of the Above Resolution by the Representatives of the Jewish Community in Palestine, UN GAOR, 2nd Sess., Ad hoc Comm. on Palestine Question, UN Doc. A/364, at 12–19 (1947); Gerson, Israel, the West Bank and International Law, 47.
(72) The Rejection of the Above Resolution by the Arab States and the Higher Arab Committee, UN GAOR, 2nd Sess., Ad hoc Comm. on Palestine Question, UN Doc. A/364, at 5–11 (1947).
(73) The Rejection of the Above Resolution by the Arab States and the Higher Arab Committee, UN GAOR, 2nd Sess., Ad hoc Comm. on Palestine Question, UN Doc. A/364, at 5–11 (1947) (statement of Mr Husseini), reprinted in Lapidoth and Hirsch, Selected Documents, 57.
(74) Israel, Declaration of Independence, ¶9.
(75) International Status of South-West Africa, 1950 I.C.J. 128 (Advisory Opinion of 11 July 1950) (8–6 decision on this issue).
(77) A majority in the Namibia case held that Assembly resolutions might have binding effect but stopped short of such a holding on the facts of that case. See 1971 I.C.J, at 49–50 (suggesting that the Assembly is not ‘disbarred from adopting … resolutions which make determinations or have operative design’). A number of the various concurring opinions expressed the view that the Assembly’s resolution in the Namibia case was binding. See, e.g., 1971 I.C.J, at 61 (opinion of Judge Kahn); Ibid. 146–7 (opinion of Judge Onyeama). See generally Gerson, Israel, the West Bank, and International Law, 48–9 and nn.
(78) See U.N.G.A. Res. 181 (II), ¶7 (requesting the Council to take ‘necessary measures’ to implement the resolution), reprinted in Lapidoth and Hirsch, Selected Documents, 33; 10 UN SCOR, 263rd mtg. (1974).
(79) Shlomo Slonim, ‘The United States and the Status of Jerusalem 1947–1984’, 19 Isr. L. Rev. 179, 229 (1984)
(80) Henry Caftan, Jerusalem (New York: St Martin’s Press, 1981), 105–6
(81) Geoffrey R. Watson, ‘Constitutionalism, Judicial Review, and the World Court’, 34 Harv. Int’l L.J. 1,36–7(1993).
(82) Bruno Simma (ed.), The Charter of the United Nations: A Commentary (New York: Oxford University Press, 1994), 1121.
(83) Michael Eisner, ‘Jerusalem: An Analysis of Legal Claims and Political Realities’, 12 Wis. Int’l L.J. 221, 255–6 (1994).
(84) UN Palestine Commission, 1st Monthly Report to the Security Council, S/663,29Jan. 1948.
(85) Elihu Lauterpacht, Jerusalem and the Holy Places (London: Anglo-Israel Association, 1968), 36
(86) UN Palestine Commission, 1st Special Report, 16 Feb. 1948, S/676, ¶¶8–9; Gerson, Israel, the West Bank and International Law, 49–50.
(87) Gilbert, Israel: A History,166.
(88) Morris, Birth of the Refugee Problem.
(89) Rosalyn Higgins, United Nations Peacekeeping 1946–1967: Documents and Commentary (London, New York: Oxford University Press, 1969–81), 1:8–11.
(91) Eugene V. Rostow, ‘ “Palestinian Self-Determination”: Possible Futures for the Unallocated Territories of the Palestine Mandate’, 5 Yale Stud. in World Pub. Order 147, 159 (1979).
(92) Partition Resolution, Part III.D., in Lapidoth and Hirsch, 52. Other commentators have concluded that the Mandate did terminate on 15 May 1948. See, e.g., Richard and Burns H. Weston, ‘The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada’, 32 Harv. Int’l L.J. 129,140 (1991); Higgins, United Nations Peacekeeping, 1:14; Eisner, ‘Jerusalem’, 249–50; Slonim, ‘The United States and the Status of Jerusalem’, 228 n. 165.
(93) Gilbert, Israel: A History, 186.
(95) Gerson, Israel, the West Bank and International Law, 63–4. For the text of the Armistice Agreements, see Hashemite Jordan Kingdom–Israel: General Armistice Agreement, 3 Apr. 1949, Jordan–Isr., 42 U.N.T.S. 303; Israeli–Syrian General Armistice Agreement, 20 July 1949, Isr.–Syria, 42 U.N.T.S. 327; Egyptian–Israeli General Armistice Agreement, 24 Feb. 1949, Egypt–Isr., 42 U.N.T.S. 251; Israeli–Lebanese General Armistice Agreement, 23 Mar. 1949, Isr.–Leb., 42 U.N.T.S. 287.
(96) See Morris, Birth of the Refugee Problem. For one of many examples of the competing narratives of the parties, see David Shipler’s account of how the two sides have characterized the massacre by Jewish radicals of civilian Arabs in the village of Deir Yassin. David Shipler, Arab and Jew: Wounded Spirits in a Promised Land (New York: Times Books, 1986), 37–41, 201–2, 206. Cf. also Ibid. 33–4 (reporting that Israeli censors prohibited former Prime Minister Yitzhak Rabin from publishing an account of his involvement in ‘driving out’ the civilian populations of Lod and Ramle during the 1948 War).
(97) John Quigley, Politics, Law, and Society: Palestine and Israel: A Challenge to Justice (Durham, NC: Duke University Press, 1990), 47–53.
(98) Cf. James E. Hopenfeld, Review of Quigley, A Challenge to Justice, 89 Mich. L. Rev. 1800, 1806 (1991) (asserting that the Partition Resolution created a ‘moral basis’ for statehood). Professor Schachter has also argued that General Assembly resolutions might serve as ‘evidence’ of customary law, and in that sense play some role in the formation of international law. See Oscar Schachter, ‘International Law in Theory and Practice’, 178 Rec. des Cours 111–21 (1982–V). Be that as it may, it is difficult to make the case that customary law had recognized a partition of Palestine by late 1947, when no partition had ever been achieved.
(99) Hopenfeld, Book Review, 1806 and n. 15.
(100) David Makovsky, Making Peace with the PLO: The Rabin Government’s Road to the Oslo Accord (Boulder, CO: Westview Press, 1996), 201.
(101) Montevideo Convention on Rights and Duties of States, 26 Dec. 1933, art. 1,165 L.N.T.S. 19, 25. See Geoffrey R. Watson, ‘Progress for Pilgrims? An Analysis of the Holy See–Israel Fundamental Agreement’, 47 Catholic U. L. Rev. 497, 500 (1998) (arguing that Israel is ‘unquestionably’ a state).
(102) Watson, ‘Progress for Pilgrims?’, 502.
(103) Gerson, Israel, the West Bank and International Law, 65–70.
(104) See Ibid. 70–3. See also Randolph S. Churchill and Winston S. Churchill, The Six-Day War (Boston, MA: Houghton Mifflin, 1967), 53–5; Walter Laqueur, The Road to War, 1967: The Origins of the Arab–Israeli Conflict, 2nd edn (London: Weidenfeld & Nicolson, 1969).
(105) McDowall, The Palestinians, 38. For similar views, see Henry Cattan, Palestine, The Arabs and Israel: The Search for Justice (London: Longmans, 1969).
(106) Cf. Phillip Jessup, A Modern Law of Nations: An Introduction (New York: Macmillan, 1948), 166–7 (arguing that ‘alarming military preparations by a neighboring state would justify a resort to the Security Council, but would not justify resort to anticipatory force’) with Louis Henkin, How Nations Behave: Law and Foreign Policy, 2nd edn (New York: published for the Council on Foreign Relations by Columbia University Press, 1979), 143–5 (endorsing a limited concept of anticipatory self-defence on the grounds that ‘the only meaningful defense for the potential victim might indeed be the pre-emptive attack’).
(107) See, e.g., Richard Gardner, ‘Commentary on the Law of Self-Defense’, in Laurie Fisler Damrosch and David J. Scheffer (eds.), Law and Force in the New International Order (Boulder: Westview Press, 1991), 51–2; Oscar Schachter, ‘The Right of States to Use Armed Force’, 82 Mich L. Rev. 1620, 1633–5 (1982); Brunson MacChesney, ‘Some Comments on the “Quarantine” of Cuba’, 57 Am. J. Int’l L. 592, 596 (1963) (arguing that the ‘quarantine’ of Cuba was an example of permissible ‘anticipatory’ self-defence).
(108) See Timothy L. H. McCormack, Self-Defense in International Law: The Israeli Raid on the Iraqi Nuclear Reactor (New York: St Martin’s Press; Jerusalem: The Magnes Press, The Hebrew University, 1996), 271; George K. Walker, ‘Anticipatory Collective Self-Defense in the Charter Era: What the Treaties Have Said’, 31 Cornell Int’l L.J. 321, 358 n. 248 (1998) (‘Most municipal legal systems recognize a right of anticipatory self-defense’) (citing McCormack). For a recent example from US law, see State v. Janes, 121 Wash. 2d 220, 850 P.2d 495 (1993) (‘Imminence does not require an actual physical assault. A threat, or its equivalent, can support self-defense when there is a reasonable belief that the threat will be carried out’).
(109) International Court of Justice, Art. 38(1)(c)
(110) See, e.g., Gardner, ‘Commentary’, 51–2 (‘I think most people felt that was justified self-defense’); Gerson, Israel, the West Bank and International Law, 70–4; Thomas M. Franck, ‘Who Killed Article 2:4?’, 64 Am. J. Int’l L. 804 (1970); Eugene V. Rostow, ‘Legal Aspects of the Search for Peace in the Middle East’, 64 Proc. of the Am. Soc. of Int’l L. 64, 67 (1970); Yoram Dinstein, ‘The Legal Issues of “Para-War” and Peace in the Middle East’, 44 St John’s L. Rev. 466, 469–70 (1970).
For the opposing view, see, e.g., Quigley, A Challenge to Justice, 161–7. See also Ch. 5 of Istvan S. Pogany, The Security Council and the Arab–Israeli Conflict (New York: St Martin’s Press, 1984).
(111) Smith, Palestine and the Arab–Israeli Conflict, 199
(112) Gerson, Israel, the West Bank and International Law, 103 n. 169.
(113) Gerson, Israel, the West Bank, and International Law, 103 n. 170.
(114) UN Doc. S/242 (1967), reprinted in Lapidoth and Hirsch, Selected Documents, 134. For a useful collection of Council resolutions and statements relating to the Middle East, see Karel C. Wellens (ed.), Resolutions and Statements of the United Nations Security Council (1946–1992), 2nd edn (Dordrecht; Boston; London: Martinus Nijhoff, 1993), 625–60 (Palestine); Ibid. 661–821 (Middle East generally); Ibid. 669 (text of Resolution 242).
(115) destheBernard Reich, Quest for Peace: United States–Israel Relations and the Arab–Israeli Conflict (New Brunswick, NJ: Transaction Books (Rutgers University), 1977), 131 and n. 33.de los
It has nevertheless been suggested that the French text is in fact an accurate translation of the final English text, which omits a definite article. See Sydney D. Bailey, The Making of Resolution 242 (Dordrecht: Martinus Nijhoff, 1985), 152–3; Shabtai Rosenne, ‘On multilingual interpretation’, 6 Israel L. Rev. 360, 363 (1971). In any event, the negotiations surrounding the text were ‘based on the English text’, not the French or Spanish texts, suggesting that the English text is more authoritative. Bailey, The Making of Resolution 242, 153; see also Pogany, The Security Council, 107.
(116) Gerson, Israel, the West Bank and International Law, 76. As Gerson points out, the Council rebuffed efforts to require ‘withdrawal from all the territories’ occupied in the 1967 War. Ibid. 104 n. 179.
Likewise, the text of Resolution 242 speaks of every state’s right to ‘secure and recognized boundaries free from threats or acts of force’, a phrase that might be interpreted to permit some adjustment of territorial boundaries for security reasons. Cf. Ibid. 76 (asserting that Resolution 242 requires that boundaries be negotiated in a peace treaty, and that the extent of ‘territorial concessions’ that may be bargained for is limited to ‘territorial adjustments mandated by “security considerations“’) (citing Abba Eban’s discussion of an analogous issue raised by the 1949 Armistice Agreements in Abba Eban, Voice of Israel, 108 (New York, Horizon Press, 1957)).
For the view that Resolution 242 was not, in itself, binding, see Pogany, The Security Council, 108 (Because Resolution 242 ‘was adopted in accordance with Chapter VI of the Charter’ it ‘does not impose binding obligations on the combatants’); Gidon Gottlieb, ‘Legal Theory for a Relational Society’, 50 U. Chi. L. Rev. 567, 578 (1983); Mohamed ElBaradei, ‘The Egyptian–Israeli Peace Treaty and Access to the Gulf of Aqaba: A New Legal Regime’, 76 Am. J. Int’l L. 532, 546 (1982).
Allan Gerson, Review of Pogany, The Security Council, 79 Am. J. Int’l L. 801, 801 (1985).
(118) Advisory Opinion on South West Africa/Namibia, 1971 I.C.J. Rep. 16, 52–3.
(119) Thomas Bruha, ‘Security Council’, in Rüdiger Wolfrum (ed.), United Nations: Law, Policies and Practice (Dordrecht: Martinus Nijhoff, 1995), 2:1151. For pre-Namibia analysis in the same vein, see Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (London: Stevens & Sons, 1954), 95–6; Leland M. Goodrich and Edvard Hambro, Charter of the United Nations: Commentary and Documents (Boston: World Peace Foundation, 1946), 122 (‘The word “decisions” … does not include recommendations’ under Chapter VI).
(120) See, e.g., Simma, The Charter of the United Nations, 410–13; see also Helmut Freudenschuss, ‘Article 39 of the UN Charter Revisited: Threats to the Peace and the Recent Practice of the UN Security Council’, 46 Austrian J. Pub. & Int’l L. 33–4 (1993) (‘neither Article 25 nor Chapter VII as such but the will or the intention of the Security Council to take a binding decision is the decisive yardstick …’). But cf. Kelsen, The Law of the United Nations, 96 (asserting that the term ‘call’ in Article 33(2) means a ‘recommendation’, whereas the same term in Article 43 is ‘binding’).
(121) The Soviet Union took this view shortly after the adoption of Resolution 242. See Sydney D. Bailey and Sam Daws, The Procedure of the UN Security Council (Oxford: Clarendon Press, 1998), 270–1. See also John Norton Moore, ‘The Regime of Straits and the Third United Nations Conference on the Law of the Sea’, 74 Am. J. Int’l L. 77, 113 (1980).
(122) See ElBaradei, ‘The Egyptian–Israeli Peace Treaty’, 546; Gottlieb, ‘Legal Theory for a Relational Society’, 578. Unilateral declarations can be binding. See Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253, 267–70 (20 Dec).
(123) Cf. S.C. Res. 338, 22 Oct. 1973, ¶2 (‘calls upon’ parties to implement S.C. Res. 242) with S.C. Res. 661, 6 Aug. 1990, ¶5 (‘calls upon’ states to abide by resolution imposing sanctions on Iraq).
(124) See, e.g., Declaration of Principles, Isr.–PLO, 13 Sept. 1993, Art. I, ¶l (envisioning a ‘permanent settlement based on Security Council Resolution 242 and 338’); ibid., ¶2 (envisioning ‘implementation of Security Council Resolutions 242 and 338’).
(125) It has also been suggested that Israel’s position is best described as that of a ‘trustee-occupant’, not restricted by the full panoply of humanitarian law, but still required to treat the territory as a trust for its inhabitants. See Allan Gerson, ‘Trustee-Occupant: the Legal Status of Israel’s Presence in the West Bank’, 14 Harv. Int’l L. J. 1 (1973). Even the proponent of this view, however, readily admits that it has not been accepted by any of the parties to the conflict. See Gerson, Israel, the West Bank and International Law, 82.
(126) See Yehuda Blum, ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria’, 3 Israel L. Rev. 279 (1968); Meir Shamgar, ‘The Observance of International Law in the Administered Territories’, 1 Isr. Yb. Hum. Rts. 262, 263 (1971); Nathan Lorch, ‘The Applicability of the Fourth Geneva Convention to the Territories Administered by Israel’, 1 Isr. Yb. Hum. Rts. 366, 366 (1971).
(127) See, e.g., Esther R. Cohen, Human Rights in the Israeli-Occupied Territories 1967–1982 (Manchester: Manchester University Press 1985), 52–6; Eyal Benvenisti, The International Law of Occupation, 109–10 (Princeton, NJ: Princeton University Press, 1993).
(128) Louis Henkin, et al., International Law: Cases and Materials, 3rd edn (St Paul, MN: West Publishing, 1993), 391–4.
(129) Gilbert, Israel: A History, 426–61.
(130) See S.C. Res. 425,19 Mar. 1978, ¶3 (deciding to establish a UN interim force for Lebanon); S.C. Res. 426,19 Mar. 1978, ¶2 (establishing the UN Interim force in Lebanon, or UNIFIL). See also Gilbert, Israel: A History, 490. UNIFIL is still in place today. The Security Council routinely renews its mandate for six-month periods. See, e.g., S.C. Res. 1254, 2 Aug. 1999. For more on UN peacekeeping in the Middle East and elsewhere, see the magisterial multi-volume work, Higgins, United Nations Peacekeeping.
(131) Gilbert, Israel: A History, 460.
(132) Ibid. 489. See also William B. Quandt, Camp David: Peacemaking and Politics, 147 (Washington: Brookings Institution, 1986). For the text of President Sadat’s remarks to the Israeli Knesset, see Ibid. 345–55 and N.Y. Times, 21 Nov. 1977.
(135) Framework for Peace in the Middle East, ¶A(l)(b).
(136) Framework for Egypt–Israel Peace, Preamble.
(137) Treaty of Peace Between the Arab Republic of Egypt and the State of Israel, 26 Mar. 1979, Art. 1(2), reprinted in Quandt, Camp David, 397. Again, the treaty was ‘witnessed’ by President Carter, and again it was accompanied by a variety of agreed minutes and side letters, the text of which are reprinted in Ibid. 401–6.
(138) Gilbert, Israel: A History, 503–4.
(139) See Kahan Commission Report, in Jerus. Post, 9 Feb. 1983; Thomas Friedman, Prom Beirut to Jerusalem (New York: Farrar, Straus & Giroux, 1989); Gilbert, Israel: A History, 509.
(140) Rashid Khalidi, Under Siege: PLO Decision-making During the 1982 War (New York:Columbia University Press, 1986).
(141) Lapidoth and Hirsch, Selected Documents, 339.N.Y. Times
(142) Lapidoth and Hirsch, Selected Documents, 287,291
(143) Raja Shehadeh, From Occupation to Interim Accords: Israel and the Palestinian Territories (London: Kluwer Law International, 1997), 104–21.
(144) N.Y. TimesMakovsky, Making Peace with the PLO, 223, 225.