The University of Sydney
Legal Studies Research Paper No. 09/106 October 2009
Julius Stone and the Question of Palestine
Ben Saul
This paper can be downloaded without charge from the Social
Science Research Network Electronic Library at: http://ssrn.com/abstract=1485056.
Much of legal and political significance has come to pass
since Julius Stone wrote on Israel
and Palestine between the mid-1940s
and the early 1980s, and in some respects the legal situation of which Stone
wrote has become unrecognizable. The Arab/Palestinian Liberation Organization
has recognized Israel ’s
right to exist and in turn Israel
has accepted, in principle, a two-State solution. Israel
and Jordan
signed a peace agreement and Jordan
relinquished its claim to sovereignty over the West Bank ,
in favor of Arab/Palestinian self-determination. The breakthrough of the 1993
Oslo Accords1 led to the conferral of limited autonomy for Arab/Palestinians
under an Arab/Palestinian Authority, sporadically interrupted by subsequent
security concerns. Two Intifada in the Occupied
Territories Israel ’s
resort to ‘targeted killings’ and a security barrier in the West
Bank . Israel
withdrew from southern Lebanon
in 2000 and then from Gaza in 2005,
although Jewish settlements in the West Bank continue to
expand, while Israel
maintains a blockade around Gaza
and invaded it again in 2008-09. The rise of Hamas and the death of Arafat signaled
the waning fortunes of the PLO, while complicating the political situation and
hence prospects of any legal solutions.
While the contemporary political landscape has changed
considerably, Stone’s legal views on the Israeli-Palestine dispute nonetheless
continue to resonate on a number of core legal issues which remain unresolved
or controversial: the underlying right of self-determination of peoples in the
region; the legality of foreign occupation of territory (and indeed the characterization
of territory as occupied); the lawfulness of Israeli settlements in occupied
territory; the applicability of the 1949 Geneva Conventions to occupied
territory and to the conflict as a whole; the use of force against
“terrorists”; and the legal position, rights and prospects of Arab/Palestinian
refugees. These are some of the issues which Stone wrote about and with which
this chapter is concerned.
Any contemporary reappraisal of Stone’s views must be
careful to weigh them in the light of the law then in force, and to thus avoid
anachronistically overlaying his views with a lens of current jurisprudence. It
must also be acknowledged that the facts upon which international law arguments
are predicated in the Middle East are, in various
senses, political or politicized. The failure to agree on common historical
starting points inevitably dogs not only the legal argumentation, but the
prospects for a genuine political dialogue and legal settlement.
Stone did not, however, see the conflict as a political
question above, beyond or outside the law, as some States unsuccessfully
objected in jurisdictional arguments before the International Court of Justice
in the 2003 Israeli Wall Advisory Opinion. As that Court observed, the fact
that a dispute has political aspects, or is subject to ongoing peace processes
and negotiations is not, of itself, sufficient to take a dispute outside the
framework of law.2
* Director, Sydney Centre for International Law, Faculty of
Law, The University of Sydney . 1
Declaration of Principles on Interim Self-Government Arrangements, 13 September 1993 in (1993) 4
European Journal of International Law 572. 2 Legal Consequences of the
Construction of a Wall in the Occupied Arab/Palestinian Territory, Advisory
Opinion of 9 July 2004, ICJ, para 41.
Page 1
Electronic copy available at: http://ssrn.com/abstract=1485056
Stone too framed the issues in Israel/Palestine as deeply
entrenched within existing and emerging legal frameworks, which both
constrained and enabled political actions and choices. He did not give up on
the law, as some are tempted to do when faced with such an intractable, raw and
violent dispute; in 1981 he wrote that he was “aware that many people are skeptical,
or even cynical about the role of law and lawyers in the settlement of
conflicts” but argued that law “may provide some essential guideposts in the
process towards peace”.3
Shifting the guideposts is, of course, a lawyerly art as
much as a politician’s calling, and Stone consciously and unconsciously played
a part in moving them. The ambiguity of some, if not many, of the international
legal rules applicable to the Israel/Palestine dispute must be squarely
admitted, and forms the context within which Stone applied the law in this
area. Indeterminacy is a well known feature of any legal system, but perhaps
more so in some areas of international law, where compulsory adjudication is
less prevalent. The rarity of binding determinations allows a wider range of
possible legal arguments to freely circulate, without authoritative decisions
quashing (or at least authoritatively delegitimizing) spurious positions.
Of course, Stone was deeply conscious of the different
facets of the problem of ambiguity, as he observed in his seminal work of 1981,
Israel and Palestine :
Assault on the Law of Nations:
Sometimes… ambiguity of an
instrument is a trap set by guile, or a timorous betrayal for the unwary.
Sometimes, though more rarely, ambiguity is a mark of limited imagination and
limited skill in negotiators. Sometimes, however, ambiguity is not thus
dysfunctional to the negotiatory and pacificatory process. For, on issues where
the parties’ positions are beset by passionate commitments, or by dire threats
to their very existence as states, ambiguity – whether by indeterminacy or
double-speaking or self-contradiction or even mere silence – may be a way of
building as yet un-resolvable conflicts into a genuine overall plan of
rapprochement.4
What is significant here is that, far from simply decrying
the absence of legal certainty and predictability, which may often undermine
the rule of law, Stone emphasizes the creative possibilities opened up by such
ambiguities in the constructive settlement of international disputes. As Stone
further wrote:
…ambiguity serves the critical
purpose of providing, for parties deeply at variance on basic issues, a
framework that can accommodate at present the specific matters on which they
can agree, as well as (for the future) the movement of their positions from
time to time on the critical matters on which they now differ. Ambiguity of
this kind is dynamic. It moves in time between poles of rapprochement and
estrangement, of love and hate.5
In this sense, Stone prefigured the approach of other
international lawyers such as Rosyaln Higgins, President of the International
Court of Justice, who sees international law not as a system of rules but as a
body of norms and principles which are part of fluid political processes and
ongoing dialogue between various actors in
3 J Stone, Israel
and Palestine : Assault on the Law
of Nations (John Hopkins University Press, Baltimore and London, 1981), xii. 4
Ibid, xi. 5 Ibid, xi-xii.
Page 2
the international system.6 Rather than insisting on its
‘rule-ishness’, international law becomes a framework for dialogue, for
politics, and for resolving difference. So too does Cassese write in the
specific context of the Israel/Palestine dispute that
Admittedly, the ‘response’ of
international law to [such] complex problems… is unsatisfactory. On the other
hand, one cannot demand from legal standards more than they can realistically
offer: a set of general guidelines, that must be pragmatically and
realistically applied by all the parties concerned, taking into account… not
only the wishes of the population concerned by also the host of non-legal
problems that beset Arab-Israeli relations.7
Despite the strength of Stone’s conviction in the productive
application of law to deep political conflict, and the creative possibilities
of ambiguity, it is important to keep in mind that destructive ambiguity – or
destructive use of ambiguity – is the flipside of constructive ambiguity. This
polar trend has become well known in recent years, as when, for instance, a
vague chain of Security Council resolutions was reinterpreted in 2003 to
justify the use of force against Iraq ,
13 years after force was first authorized in the material context of repelling
the invasion of Kuwait .
As in that case, or in other recent cases such as the now
infamous “torture memos” of US President Bush’s post-2001 administration, there
is a real risk that ambiguity encourages a dissipation of the normativity of
law into nothingness, rendering the law merely another tool of diplomacy, to be
negotiated or bartered away as politics demands. Lawyers too may participate in
the dissolution of their own basis of professional authority, when ambiguity
comes to serve as an invitation to instrumental lawyering.
Brian Tamanaha, for instance, warns of lawyers (in the
domestic American context) who ‘manipulate and stretch law and legal processes
to their very outer limits, no matter how far away from or contrary to its
underlying spirit’.8 The result is that legal rules become ‘nothing but tools
lawyers utilize on behalf of whichever side their represent’,9 taking advantage
of ambiguities, technicalities, and loopholes. Such an approach to lawyering
detracts from the binding quality of law, and its certainty, stability, and
equality. The instrumental view of law as a means to an end undermines both
formal and substantive rule of law ideals.10
In his lifetime, Stone’s views on Palestine
attracted much controversy precisely because of the perceived instrumentalism
of his legal arguments in support of Israel .
One review of his book, Israel
and Palestine , in the leading
American Journal of International Law in 1982 began by stating that:
Readers in search of a balanced treatment of the legal
issues in the Middle East will not find it in this
book…. Israel ’s
legal position is impregnable on virtually all issues separating it from its
Arab neighbors. Arguments to the contrary are recognized only for their
defects.11
6 See R Higgins, Problems and Processes: International Law
and How We Use It (Clarendon, Oxford ,
2003). 7 A Cassese, Self-Determination of Peoples: A Legal Reappraisal
(Cambridge University Press, Cambridge, 1995), 242. 8 B Tamanaha, ‘The Tension
Between Legal Instrumentalism and the Rule of Law’ (2006) 33 Syracuse
Journal of International Law and Commerce 131, 146. 9 Ibid. 10 Ibid. 11 F
Kirgis, Book Review (1982) 76 American Journal of International Law 875.
Page 3
The review goes on to excoriate the book for its polemical
tone, and for belittling, distorting and ridiculing the views of his opponents.
Another review of the same year, in the Annals of the American
Academy Israel
advances”.12
One technique used by Stone was to discredit legal arguments
favorable to Palestine by attacking
General Assembly resolutions which supported those arguments as not legally
binding, and moreover as the product of a majoritarian world ganging up on Israel .
There was indeed a fertile debate about the legal quality of General Assembly
resolutions in the 1960s and 70s, following arguments about “instant custom”
arising from the concentration of State practice in resolutions.13
But Stone’s criticisms here often missed the mark, in that
resolutions were often relied upon as material evidence reflecting, rather than
exclusively constituting, customary law, or being an instant source of law. His
approach to resolutions is also highly selective. On one hand, he downplays
their significance when they do not suit his purpose, as when the Security
Council declared inadmissible Israel ’s
acquisition of territory by force,14 or in UN calls for partition in 1947 as
well as for an international status for Jerusalem .
On the other hand, he invokes them when it suits his position, as when
resolutions called on the parties to negotiate a solution, thus not
predetermining legal title to territory; or implicitly when writing in support
of the legal importance of Israel’s 1948 Declaration of Independence, which
itself relied on Assembly resolutions as one basis of its authority; or when he
relies on the similarly non-binding Balfour Declaration of 1917 as a basis for
Israeli statehood.
Legal ambiguity (and the language which creates and allows
it) is ultimately set within outermost boundaries of meaning, limits beyond
which the elasticity of rules cannot stretch without dissolving rules (or norms
or principles) into polemic or pure politics. However wide a discretion,
however indeterminate a rule, there are always zones of reasonableness or
plausibility, an often wide range of possible arguments, beyond which arguments
become fanciful, unreal, contradictory and unsustainable. That zone may be hazy
and indistinct, but it is nonetheless material – unless one accepts a radical
deconstructionist view that international law is so indeterminate that all
legal arguments are possible within it; or alternatively, the view that
international law is irremediably flawed in this context because “it encodes
power and… enthrones a particular series of Western legal values”.15
Many of Stone’s positions on critical international legal
issues in the Israel/Palestine conflict stepped outside even generous zones of
plausibility, on the law as it then ambiguously stood. This chapter deals with
some of those claims, an enterprise which remains important because his views,
as an eminent international jurist, remain influential in some quarters,
despite their tenuous nature or dubious provenance. For instance, prominence is
still given to Stone’s views on key issues by
12 H Castleberry, Book Review (1982) 462 Annals of the American
Academy Mandate Ways :
Self-Determination in Palestine and
the “Existing Non-Jewish Communities” in S Silverburg
(ed), Palestine and International
Law: Essays on Politics and Economics (McFarland and Company, 2002), 251, 253.
Page 4
the Australia/Israel & Jewish Affairs Council,16 which
does not place them in the context of competing (indeed prevailing) legal
arguments and international opinion.
The purpose of this chapter is to interrogate Stone’s legal
positions on the cluster of related issues identified at the outset of this
chapter, rather than to seek to explain the impulses underpinning them.
Certainly Stone acutely felt that Israel was unfairly victimized in
international forums like the General Assembly, which, through the
decolonization process, soon became dominated by blocs of newly independent and
developing States, many openly hostile towards Israel. Stone accused the UN
Committee on the Inalienable Rights of the Arab/Palestinian People of
sponsoring “partisan theorizing in support of” the Arab/Palestinian position,17
and it is true that the Committee has been used as a forum in which to berate
Israel, often on rhetorical or ideological grounds, and without grounding in
international law arguments. That, of course, is inevitable, given its function
as a political body within the United Nations; but abuses of the Committee
should equally not be allowed to obscure the genuine contributions it has made
to ventilating the complex legal issues involved.
It seems that Stone genuinely felt the need to spring to the
defense of a beleaguered Israel
and the Jewish people. As early as 1944, in his Open Letter (theatrically
entitled “Stand Up and be Counted!”) to the Rt Hon Sir Isaac Isaacs (then aged
in his 80s), Stone wrote in response to Isaac’s criticisms of the Zionist
project:
I sought in this open letter to
consider coldly the heated imputations which Sir Isaac has for some years cast
at his fellow-Jews…. If in places I have unwittingly fallen short of coldness,
I ask the reader to believe that it is solely because of the grief and
indignation of this moment in Jewish history. I mean the grief of the fourth
year of Hitler’s massacre of a helpless people…18
That dissipation of coldness manifested itself in
considerable heat towards Sir Isaac, as Stone went on to write of his
…indignation that over most of
that period Sir Isaac devoted himself, not to constructive thought and action,
but to a bitter, unrestrained and misleading campaign against his fellow-Jews
in the free countries, a campaign which could not but prejudice the hopes of
survival and rehabilitation of Hitler’s victims.19
Stone openly acknowledged his own positionality in live
political controversies and the prospects for partisanship which it entailed.
Speaking of the Eichmann trial in the District Court of Jerusalem in 1961,
which Stone attended, he wrote that: “Anyone, whether Jew or Gentile, knowing
even a little of Nazi barbarism, must be emotionally engaged with the
prosecution in this trial. But a Jew obviously rather more so.”20 That personal
engagement no doubt informed his view that there was nothing unethical about
abducting Eichmann from Argentina
in order to prosecute him in Israel.21
16 Australia /Israel
& Jewish Affairs Council, ‘International Law and the Arab Israeli
Conflict’:
www.aijac.org.au/?id=resourcedisplay&articleID=2149&_action=showArticleDetails&categoryID=26
5 (accessed 8 January 2008 ).
17 Stone, Israel
and Palestine , above n3, 6. 18 J
Stone, Stand Up and be Counted! An Open Letter to the Rt Hon Sir Isaac Isaac
(Ponsford, Newman & Benson Pty Ltd, Sydney, 1944), preface. 19 Ibid. 20 J
Stone, The Eichmann Trial and the Rule of Law (International Commission of
Jurists, Sydney, 1961), 1. 21 Ibid, 15.
Page 5
The significance of Stone’s Jewishness to his legal views on
Palestine is a question better left
to others, whether biographers or psychologists. But it is clear that
existential threats to the survival of the Jewish people weighed heavily on
Stone, whether it was the threat of Nazi extermination, or the wars of 1948,
1967 and 1973, where Israel
feared that its people would be infamously pushed into the sea. There is no
doubt that some of those fears were well founded, not only because of the
geographical vulnerability of the sliver of land that is Israel, but also
because of the commitment of some extreme groups to accomplish what the Nazis
could not. At the same time, casting the Jewish people as the only victims who
matter fatally undermines the prospects for a just and equitable application,
or creative adaptation, of international law to the Israel/Palestine dispute.
1. The Right of
Self-Determination
The meta-issue framing the Israel/Palestine dispute as a
whole is the principle (or right) of self-determination, and its contested
exercise by competing national groups or peoples (Jews and Arab/Palestinians)
over shared territory. Stone characterized self-determination as potentially
existing where a
claimant group constitutes a
people or nation with a common endowment of distinctive language or ethnic
origin or history and tradition, and the like, distinctive from others among
whom it lives, associated with a particular territory, and lacking an
independent territorial home in which it may live according to its lights.22
Stone was uncertain whether self-determination ‘is already a
doctrine of international law stricto sensu, or… a precept of politics or
policy, or of justice, to be considered where appropriate’.23 He nonetheless
put aside jurisprudential controversy about the legal character of
self-determination and, assuming its legal existence, proceeded to analyse the
competing self-determination claims in the area.
Stone mounted three key arguments on self-determination as
it applied to Israel/Palestine, from the premise that Jews and Arabs (rather
than peculiarly Arab/Palestinians) were the relevant national groups which could
claim under the principle.24 First, the provision for a Jewish national home in
Palestine, as recognized by President Wilson and in the 1917 Balfour
Declaration, was the relevant application of the principle of
self-determination in the area now recognized as Israel.25 Secondly, Arab
self-determination in the region was realized through the creation of Jordan,
an essentially “Arab/Palestinian” State, in 1949.26
Thirdly, Arab/Palestinians were not an identifiable or
coherent national group or “people” entitled to self-determination at least
until the 1960s.27 Rather, according to Stone, there were only Arabs who lived
in Palestine, but not a shared political or cultural community of Arab/Palestinians
as such, and the PLO itself even sometimes denied the distinctiveness of Arab/Palestinians
and emphasized pan-Arabism. Any competing, later in time claim to
self-determination by the emergent Arab/Palestinian people from the 1960s
onwards could not be seen to prejudice the stability of existing sovereign territorial
22 Stone, Israel
and Palestine , above n3, 10. 23
Ibid, 10. 24 Ibid, 9. 25 Ibid, 13-15. 26 Ibid, 22-25. 27 Ibid, 12.
Page 6
title and boundaries (that is, of the States of Israel and
Jordan), pursuant to the accepted principle of uti possidetis.
Stone’s side-stepping of the legal characterization of
self-determination is at once too neat and too simple. For whether one sees
self-determination as hard law or discretionary politics, policy or justice
potentially shapes the manner in which ones applies the concept to the factual
situation at hand. Specifically, the identification of the relevant claimant
group, the area covered by the claim, the critical date of the claim, and the
manner of its execution or implementation may all depend on whether one
conceives of self-determination as bounded by rigid or formal legal
requirements, or by less stringent thresholds of flexible application.
The application of the principle of self-determination in
Israel/Palestine is thus contingent on pinning down its legal significance at a
given moment. As a statement of political philosophy, the modern notion of
self-determination arose in the latter part of the eighteenth century,
referring to a cluster of related ideas connected with revolutionary sentiment,
territorial settlement, democratic legitimation, anti-colonialism, and minority
rights.28
The principle progressively hardened in the aftermath of the
First World War and under the League of Nations
mandates. As the ICJ stated in 1950 in the International Status of South West
Africa case, the League mandates were created “in the interest of the
inhabitants of the territory, and of humanity in general, as an international
institution with an international object – a sacred trust of civilisation”.29
The ICJ iterated the key governing principles of non-annexation and the
well-being and development of peoples not yet able to govern themselves; the
“ultimate objective” was the “self-determination and independence of the
peoples concerned”.30
Outside the specific League mandates framework, however, the
principle tended to remain a selectively applied “policy line” which was
subordinate to the overriding legal norms of State sovereignty and territorial
integrity.31 It was only after the Second World War that self-determination
acquired binding normative force within the framework of the United Nations
Charter,32 although the precise contours of the principle remained to be worked
out in practice over time.
In this light, Stone’s application of the self-determination
principle suffers from a number of defects. He overstates the historical case
in favor of Jewish self-determination in the area; he understates that
cohesiveness of Arab/Palestinians as an identifiable people; he inflates the
significance of some sources and minimizes the importance of others; he fixes
upon an inadequate temporal dimension to the dispute; and he does not grapple
with the modern basis of the Arab/Palestinian self-determination claim after
the 1967 war.
Stone’s starting point in the 1917 Balfour Declaration is
immediately problematic, since one wonders how a unilateral political
declaration by the imperial British Government can constitute a relevant legal
step in the expression of free political choice by the inhabitants of Palestine
– the majority of who were Arabs. At
28 Cassese, above n7, 32. 29 International Status of South
West Africa case (1950) ICJ, p 128. 30 Legal Consequences for States of the
Continued Presence of South Africa
in Namibia (South
West Africa ) (1971) ICJ Reports at 31. 31 Cassese, above n7, 33. J
Weiler, ‘Israel and the Creation of an Arab/Palestinian State: The Art of the
Impossible and the Possible’ in S Silverburg (ed), Palestine and International
Law: Essays on Politics and Economics (McFarland and Company, 2002), 55, 78,
also argues that self-determination was not part of positive international law
during the League Mandate era and in the lead up to the establishment of
Israel. 32 Cassese, ibid, 43.
Page 7
the time, the legitimacy of the Balfour Declaration as an
expression of the will of the local population was dubious, given the
predominant Arab perception that the Declaration favored Jewish aspirations,
compounded by the escalation of Jewish immigration to the region during the
1920s and 30s.
Britain’s withdrawal from its mandate in Palestine disrupted
a smooth transition based on the political compromise offered by the United
Nations’ Partition Plan of 1947.33 The unilateral declaration of the State of
Israel in May 1948 may well be seen as a realization of Jewish
self-determination, but that, of course, cannot prejudice the equal right of Arab/Palestinians
to the same end, arising out of the same League mandate and its sacred trust,
and as distinct from the separate creation of Transjordan. The intractable problem,
of course, is that two peoples were/are claiming the same territorial space,34
and Stone sought to resolve that tension by excluding the legitimacy of the Arab/Palestinian
claim altogether. His approach is deeply rooted in Zionist aspirations: as Weiler
observes, “[h]istorical Zionism also advances a moral justification for
establishing a modern State of Israel at the expense of displacing part of the
indigenous population”35 and indeed “territorial compromise and recognition of
a Arab/Palestinian right to self-determination arguably threaten some of the
moral foundations of historical Zionism”.36
Arab/Palestinian national consciousness was arguably less
well developed as a political project than Zionist consciousness in 1948, and
in part developed by defining itself in opposition to the Israeli
State
But Stone tends to equate a lack of political solidarity or
strategic cohesion amongst Arab/Palestinians with an absence of the existence
of an underlying people, when some degree of political fragmentation and social
difference is an inevitable feature of even the most cohesive human group. From
the Mandate era, there has been a powerful discursive construction of Jews as
an homogenous community and Arab/Palestinians as heterogeneous and diffuse.37
Yet, as Weiler notes, “Arab/Palestinian nationalism… is characterized by a
strong measure of dualism; a dualism of Arab universalism and Arab/Palestinian
particularism”.38 Multiplicity of identities, and Arab/Palestinian affinity
with pan-Arabism, does not prejudice their coherence as a discrete “people”
entitled to self-determination.
From the First World War onwards, and certainly by 1948,
following the numerous eruptions of violence in the inter-war period, there was
a (growing) expectation amongst Arabs in the region that they were entitled to
their own independent territory and government, in territory in Palestine
formerly held as a sacred trust on their behalf.39 The creation of the State of
Jordan as a partial exercise of Arab self-determination did not exhaust all
Arab self-determination claims in the
33 UN General Assembly resolution 181 (29 November 1947 ) (33 votes to 13, with 10
abstentions). 34 See Y Dinstein, The Non-Statal International Law (1979), 149.
35 Weiler, above n31, 66. 36 Ibid. Equally, “the traditional Arab/Palestinian
claim that Jewishness may have no unique national experession is just as
untenable”: infra, 69. 37 See, eg, Strawson, above n1, 252. 38 Weiler, above
n31, 70. 39 On the growth of Arab/Palestinian Arab political consciousness, see
generally Yehoshua Porath, The Arab/Palestinian National Movement: Vol I
1918-1929 (1974) and Vol II 1929-1939 (1977); see also Rashid Khalidi, Arab/Palestinian
Identity: The Construction of Modern National Consciousness (1997); Muhammad
Muslih, The Origins of Arab/Palestinian Nationalism (1988).
Page 8
area. Arab peoples living outside Jordan
could not be expected to uproot themselves in order to relocate to Jordan ;
the self-determination of those Arab peoples cannot be subordinated within the
realization of the self-determination of Jordanian Arabs who lived elsewhere.
While Stone was writing on Palestine into the 1980s, he
primarily limits the temporal dimension of the self-determination issue to the
period between 1917 and 1948, when the Arab/Palestinian claim to
self-determination in the Occupied Territories arose as part of an ongoing
process both prior to and following the 1967 war. Putting to one side the
merits of the Jewish claim to self-determination in the territory declared to
constitute Israel in 1948 (given the contemporaneous challenge by a parallel Arab/Palestinian
claim there) – during which time the law was less settled – the most secure
basis for the modern Arab/Palestinian self-determination claim lies in its
challenge to the foreign military occupation of Arab/Palestinian territory by
Israel during and after the 1967 war.40 That claim is not contingent upon any
separate continuing Arab/Palestinian claim to the modern sovereign territory of
Israel; any such claim is now pragmatically unreal, although the right of
return of refugees to Israeli remains alive.
2. Applicability of
the 1949 Geneva
Like the long held position of the Israeli Government,41
Stone contested the de jure applicability of the 1949 Geneva Conventions to the
territories occupied by Israel
during the 1967 war (including Gaza
and the West Bank ). In particular, Stone argued that the
formal conditions of application under common article 2 of the four 1949 Geneva
Conventions were not met,42 and thus there was not in existence an
international armed conflict to which the Geneva Conventions (and particularly
the law of occupation) applied. Common article 2 relevantly provides that
… the present Convention shall
apply to all cases of declared war or of any other armed conflict which may
arise between two or more of the High Contracting Parties, even if the state of
war is not recognized by one of them.
The Convention shall also apply
to all cases of partial or total occupation of the territory of a High
Contracting Party, even if the said occupation meets with no armed resistance.
While Stone claims to be interpreting common article 2 in a
technical manner, as if the provision is capable of only one obvious meaning,
his construction of the
40 Cassese, above n7, 240. 41 See, eg, Israeli
Attorney-General Meir Shamgar, ‘The Observance of International Law in the Administered
Territories Israel
and Palestine , above n3, 177-178.
43 Ibid, 178. 44 Declaration by King Hussein of Jordan
(1988) 28 International Legal Materials 1637.
Page 9
provision is neither literal, nor consistent with drafting
history or the object and purpose of those treaties. Stone focuses exclusively
on the second paragraph of the common article 2 and interprets the reference
there to the ‘territory’ of another State as territory over which sovereign
legal title is established.
Territory over which sovereign legal title is established.
In construing a treaty, international treaty law requires that a provision be
interpreted in good faith, in accordance with the ordinary meaning of its
terms, in their context and in the light of its object and purpose.45 The
preparatory work (travaux preparatoires) or drafting record may be considered
where the foregoing interpretive principle leaves the meaning ambiguous or
obscure.46 The object and purpose of the 1949 Geneva Conventions is to ensure
the widest possible humanitarian protection in armed conflict, and where more
than one interpretation is possible, the more restrictive (that is, the less
protective) is to be avoided.
Common article 2 contains two disjunctive, not cumulative,
elements. Stone’s insistence on the non-applicability of common article 2(2) to
the Occupied Territories Israel
and Jordan in
1967 – and naturally to any territory which is involved in that conflict. As
the International Court of Justice observed in the Israeli Wall Advisory
Opinion (2003), ‘[i]f those two conditions are satisfied, the Convention
applies, in particular, in any territory occupied in the course of the conflict
by one of the contracting parties’.48 That includes territory in relation to
which formal legal or sovereign title is unclear or indeterminate. What matters
is that one State takes foreign territory by force in circumstances where that
territory does not belong to the occupying State. As leading Israeli
humanitarian law scholar Yoram Dinstein wrote in 1978, ‘the Fourth Geneva
Convention does not make its applicability conditional on recognition of
titles’.49
Common article 2(2) is an alternative threshold of
application and is therefore not the only part of the article which applies to
occupied territory, as suggested by Stone. The second aspect of common article
2 does not
restrict the scope of
application of the Convention, as defined by the first paragraph, by excluding
therefrom territories not falling under the sovereignty of one of the
contracting parties. It is directed simply to making it clear that, even if
occupation effected during the conflict met no armed resistance, the Convention
is still applicable.50
Rather, it was intended by the drafters to cover cases of
‘bloodless’ invasion, as when Nazi Germany occupied Bohemia and Moravia in
1939.51 Territory occupied in other ways therefore remains within the
protective ambit of common article 2(1).
Even construing common article 2(2) in isolation, there is
some doubt about Stone’s interpretation of the provision. One literal reading
of common article 2(2) – referring to ‘occupation of the territory of a High
Contracting Party’ – might confirm
45 1969 Vienna Convention on the Law of Treaties (adopted 23 May 1969 , entered into force 27 January 1980 , 1155 UNTS 331), art
31(1). 46 Ibid, art 32(a). 47 Israel Wall Advisory Opinion (2003), above n2,
para 95. 48 Ibid. 49 Y Dinstein, ‘The International Law of Belligerent
Occupation and Human Rights’ (1978) 8 Israeli Yearbook on Human Rights 104,
107. 50 Israel Wall Advisory Opinion (2003), above n2, para 95. 51 Ibid.
Page 10
Stone’s view that it is limited to foreign sovereign
territory, since the phrase ‘territory of’ another State may seem to imply
legal title. Equally, however, it could be interpreted to cover any territory
which is effectively under the control of a foreign State, but where legal
title is not held, since in a sense it would still be the ‘territory of’ that
State at the time of control. In light of the ambiguity, the latter
interpretation might be preferred since it is consistent with the humanitarian
object and purpose of the 1949 Geneva Conventions in extending protection as
widely as possible, so that inhabitants of occupied territories are not denied
rights due to legal wrangles over where sovereign title to a particular
territory lies. As noted above, in any event, the meaning of article 2(2) is
not decisive in applying the Conventions to occupied territory under the
broader scope of article 2(1).
While Israel and Jordan are no longer at war, and Jordan has
renounced its sovereign claim to the West Bank, the legally critical time for
triggering the application of common article 2 is the time at which the
conflict commenced and the territory was occupied.52 Nothing in the peace
agreement between Israel and Jordan purports to cede sovereign title over the
West Bank to Israel, and even it were so, there would be serious legal question
whether such cession of territory would be lawful in circumstances where the
Jordanian sovereign claim itself was in doubt, and where the acquisition by
Israel is underpinned by effective conquest, forbidden by the United Nations
Charter after 1945.
The applicability of the 1949 Geneva Conventions to the
Occupied Territories is also confirmed resolutions of the UN Security Council
and General Assembly which were known to Stone.53 While Stone correctly denied
the formal legal application of these sources as determinative of the legal
questions at issue, the resolutions are persuasive iterations of the legal
views of a majority of States. In this regard, it is a principle of treaty
interpretation that subsequent practice in the application of a treaty may establish
the agreement of the parties on its interpretation,54 and there is very
substantial overlap between, for instance, the membership of the General
Assembly and the States Parties to the 1949 Geneva Conventions.
3. Legality of
Israeli Settlements in Occupied Territory
Even if could be established that the 1949 Geneva
Conventions did indeed apply to the Occupied Territories, Stone denied that the
establishment of Israeli civilian settlements after the 1967 war was
internationally unlawful. Article 49(6) of the Fourth Geneva Convention
provides that: ‘The occupying Power shall not deport or transfer parts of its
own civilian population into territory it occupies.’ An ordinary interpretation
of that provision would seem to exclude both coercive (‘deport’) and voluntary
or assisted (‘transfer’) movements of Israeli civilians by the Israeli
government into occupied territory. As the International Court of Justice
stated in its Israel Wall Advisory Opinion (2003), the provision
prohibits not only deportations
or forced transfers of population such as those carried out during the Second
World War, but also any measures taken by an occupying Power in order to
organize or encourage transfers of parts of its own population into the
occupied territory.55
52 Ibid, para 101. 53 UNSC res 237 (1967); 271 (1969); 446
(1979) 54 Vienna Convention on the
Law of Treaties, art 31(3)(b). 55 Israel Wall Advisory Opinion (2003), above
n2, para 120.
Page 11
Stone’s interpretation of the provision, however, imposed a
number of qualifications on its meaning which significantly raised the
threshold for breaching it. Looking immediately to the drafting history –
despite there being little obvious ambiguity about the provision on its face –
Stone placed the provision in the context of
the heinous practice of the Nazi
regime during the Nazi occupation of Europe in World War II, of forcibly
transporting populations of which it wished to rid itself, into or out of
occupied territories for the purpose of liquidating them with minimum disturbance
of its metropolitan territory, or to provide slave labour or for other inhumane
purposes.56
It was, therefore, principally directed against the Nazis’
‘genocidal objectives’ in ridding Nazi occupied Europe of Jews and making it
“judenrein”. Purporting to draw on factors flagged in the ICRC Commentaries on
the provision, Stone proceeds to impose two additional criteria for breaching
the prohibition on a State deporting or transferring its own population into
occupied territory: (1) to impair the economic situation or racial integrity of
the native population of the occupied territory; or (2) to inhumanly treat its
own population.
On the first criterion, Stone asserted that the ‘no serious
dilution (much less extinction) of the “separate racial existence” of the
native population has either taken place or is in prospect’.57 At the time of
writing in 1981, Stone claimed that there were only about 20,000 Israeli
settlers in the West Bank, amongst a population of 700,000 Arabs. At that time,
the settlements were no where near as large as they had become two decades
later, when by 2003 there were almost 400,000 Israeli settlers in the West
Bank.58 Perhaps Stone was genuinely unaware that the settlements were designed
as part of a purposeful colonization strategy over time, and believed that they
would remain limited, static and temporary interventions – despite evidence
available to him from at least 1977 onwards59 that the Israeli Government was
committed to the expansion of settlements.60 He indicates, for instance, that
some of the settlements were for purposes of military security, and to that
extent were not aimed at the civilian colonization of territory. Confronted
with the contemporary statistics, however, Stone might have changed his mind
about whether the settlements have diluted or impaired the demographic
integrity of the local population.
A further limb to Stone’s argument was that the situation of
the local inhabitants had dramatically improved, not worsened, since the 1967
occupation.61 This belief may have likewise been modified if Stone had come to
see the severe modern impoverishment of Arab/Palestinians in the West Bank, as
documented by major United Nations agencies and the World Bank in evidence
before the ICJ in the Israeli Wall Advisory Opinion. 62
56 Stone, Israel
and Palestine , above n3, 178. 57
Ibid, 179. 58 Israel Wall Advisory Opinion (2003), above n2, para 122. 59 Ibid,
para 120; see also at that time UNSC resolutions 446 (1979), 452 (1979) and 465
(1980). 60 Even if the settlements are not prohibited by article 49(6), to the
extent that the settlements were sponsored by the Israeli government, it is
likely that an Occupying Power is not empowered under international
humanitarian law to undertake such activities: E Benvenisti ,
The International Law of Occupation (Princeton University Press, Princeton,
1993), 140-141. 61 Stone, Israel
and Palestine , above n3, 179. 62
Israel Wall Advisory Opinion (2003), above n2.
Page 12
On the second stipulated criterion, Stone asserted that there
no question of inhumane treatment of Israelis by Israel ,
such as to qualitatively attract the prohibition on the transfer of one’s own
population into occupied territories. Again, Stone viewed this aspect of the
prohibition as directed towards protecting minorities from genocide by their
own governments, which was not at issue here. Indeed Stone argued that the
provision cannot require Israel to forcibly ensure that the West Bank remains
judenrein, despite its ‘millennial association with Jewish life’;63 he thought
it ironic that a provision designed in part for the protection of Jews would be
used to limited that group’s prospects of flourishing.
Stone’s understandable preoccupation with the background of
Nazism clouded his appreciation of the wider objectives served by article
49(6), which is plainly not limited to addressing policies only of the scale or
equivalence of Nazi genocide, but is cast as a much wider protective or
preventive provision. The law of occupation rests on a bedrock notion of trusteeship,
which is why a strict approach is taken by the law to preclude an occupying
power from resettling its own civilians in occupied territory, whether overtly,
by stealth, or even by failing to control one’s own people from migrating there
themselves voluntarily.
Stone’s interpretation of the provision purports to identify
textual ambiguity where there is none, and thus resort to the drafting record
where it is unnecessary to do so – and in a manner which contradicts the plain
textual meaning. Although Stone’s two extra conditions are purportedly based on
the historical background mentioned by the ICRC Commentary, the Commentary
itself does not propose those criteria as factors to limit or qualify the plain
meaning of the provision itself, and the ambiguity identified by the Commentary
concerns the relationship between article 49(6) and the rest of article 49
(which addresses forced transfers out of occupied territories). Indeed the last
sentence of the Commentary suggests that article 49(6) is conceptually
distinguishable from the rest of the provision mainly because it is not limited
to the ‘compulsory’ movement of civilians, and thus also covers civilians who
voluntarily migrate into occupied territories and the trustee-occupier fails to
act.
4. Legality of the
Post-1967 Occupation
Stone responded to assertions that Israel was an “illegal”
occupier of Arab/Palestinian territories by arguing that Israel was lawfully in
control of territory acquired in self-defense against external aggression.64
Such possession would remain lawful until a negotiated peace settlement
occurred, as intimated by relevant United Nations resolutions.65 Stone further
argued that Jordan did not enjoy legal title to the West Bank since it had
illegally acquired that territory by force in the 1948 war. Since title to
territory is relative and no other State enjoyed a better title, so Israel
arguably acquired a superior absolute title over time.
In assessing these arguments concerning legality, the
starting point must be to separate the jus ad bellum (the law on the resort to
force) from the jus in bello (the
law of war or humanitarian law). The humanitarian law of occupation of the 1907
Hague Regulations and the 1949 Geneva Conventions applies to an Occupying Power
regardless of whether the occupation of territory was achieved defensively or
aggressively (that is, lawfully or unlawfully respectively) under the jus ad
bellum.
63 Stone, Israel
and Palestine , above n3, 180. 64
Ibid, 51. 65 Ibid.
Page 13
First, Stone is correct that territory temporarily acquired
in self-defense cannot be immediately categorized as an unlawful under the jus
ad bellum. Here much depends on whether one views the 1967 war, which created
the occupation, as defensive or aggressive. Stone strongly argues that it was
defensive, against an imminent Arab invasion; critics would submit that it was
pre-emptive, committed prior to the commission of any armed attack on Israel,
and thus unlawful under a strict (if unreal) interpretation of the law on the
use of force under article 51 of the UN Charter (which permits self-defense
only if an armed attack “occurs”).
It does not follow, however, that sovereign title to
territory can be acquired on the basis of a lawful occupation of territory in
self-defense. The occupation of territory in armed conflict has never been
regarded as affecting underlying sovereign title to territory, and continuing
to occupy territory cannot alone perfect legal title to it. Where the
underlying legal title to territory is unclear, title either by prescription –
though long established possession of the territory – or through some more
tenuous principle of effectiveness (by establishing control over res nullius or
territory characterized by a vacuum of sovereignty) cannot arise where such possession
is continuously contested by other title claimants.66
In the case of the West Bank after 1967, title was initially
contested by Jordan and later by a non-State entity, the Arab/Palestinian
people, in the exercise of their internationally recognized right of
self-determination, and which arguably grounds a superior claim to territorial
title than an Israeli claim based on foreign occupation. A concomitant of the
prohibition on the use of force in the UN Charter after 1945 was a prohibition
on the acquisition of title to territory by force, even where force is used in
self-defense resulting in occupation. As the International Court of Justice
rightly implied in the Israel Wall Advisory Opinion, that the underlying
historical sovereign title to the Occupied Territories is unclear is not to the
point; regardless of who held historical title (which was unclear given the
intervention of the League of Nations mandate), its current status remains one
of occupation, not Israeli sovereignty.
Secondly, there is an ongoing legal debate about whether it
is possible to speak of an illegal occupation under humanitarian law. Certainly
particular acts by an Occupying Power may be unlawful under the law of
occupation. But otherwise the existence of an occupation is a question of fact;
that is, whether a State places foreign territory under its actual control.67
If so, an occupation is established; there is no room in that analysis under
humanitarian law to consider whether such control is lawful or unlawful as
such. The law of occupation does not expressly provide any time limit beyond
which a continuing occupation becomes unlawful, nor does it provide any
criteria requiring the termination of actual control and occupation.
Even so, on a progressive view of the law of occupation, a
protracted occupation may become unlawful over time if the Occupying Power can
be seen as having failed to make good faith efforts towards terminating its
occupation and securing the resumption of normalcy. As Benvenisti writes:
an occupation regime that
refuses to earnestly contribute to efforts to reach a peaceful solution should
be considered illegal…. no such claim of illegality would be proper
66 Case Concerning Kasikili/Sedudu Island
(Namibia v Botswana )
(Judgment), ICJ, 13 December 1999 ,
paras 90-95 (where that condition was agreed by the parties, though not in
contention in the case). 67 1907 Hague Convention IV Respecting the Laws and
Customs of War on Land (adopted 18
October 1907 , entered into force 26 January 1910 , in (1908) 2 American Journal of
International Law Supplement 90), annexed Regulations Respecting the Laws and
Customs of War on Land, art 42.
Page 14
as long as the occupant’s
conditions for peaceful settlement of the conflict are motivated by reasonable
security interests.68
Occupation is a temporary, exceptional state, in which
sovereignty over territory does not pass to the Occupying Power. It is
therefore implicit in the law that the Occupying Power, holding territory as
trustee for the benefit of the local inhabitants, should take reasonable steps
to discharge its occupation and establish the conditions for a peaceful return
of governance to sovereign authorities. That implication is further supported
by the principle of self-determination, which is not displaced by the law of
occupation but persists concurrently with it. A protracted, unreasonable, bad
faith denial of the realization of self-determination by an Occupying Power
arguably aids in transforming an initially lawful occupation into an unlawful
one over time.
5. Use of Force
against Armed Bands
Israeli incursions into the territories of neighboring
States have been a periodic feature of Israeli counter-terrorism policy over
many years. Stone argued that Israel’s cross-border pursuit of armed bands
(such as terrorist organizations) based in neighboring territories is an
exercise of the customary law of self-defence.69 Stone also saw such use of
force as being compatible with the prohibition on the use of force in article
2(4) of the UN Charter, which only bans force “against the territorial
integrity or political independence” of a State – neither of which was
prejudiced by surgical incursions against non-State terrorist actors.70
Such an expansive, militant interpretation of the law on the
use of force is not easily supported by the weight of State practice after 1945
and certainly prior to the terrorist attacks of 11 September 2001 , which may have signaled something of a
shift in practice (although it is arguably too soon to tell). The bulk of
practice and opinion after 1945 confirmed that self-defense against armed bands
on foreign territory is only permissible where the conduct of those bands is
both serious enough to constitute the gravity of “armed attack” (of a magnitude
such as committed by State forces) and attributable to a State under the law of
State responsibility.71 Such an approach is consistent with the shift towards
collective security after the Second World War, designed to minimize the risks
associated with unilateral resort to force by States.
Where States such as Israel and apartheid South Africa
resorted to such purportedly defensive uses of force after 1945, they were
generally condemned by the overwhelming majority of States, who viewed such
actions more in the nature of unlawful punitive reprisals and as unlawful
interventions in the sovereign territories of other States.72 Nor did the South
African justification for anti-terrorism force on the basis of hot pursuit,
extrapolated from the law of the sea doctrine, find general acceptance.
Contrary to Stone’s view that the prohibition on the use of
force in the Charter only applies to military force “against the territorial
integrity or political independence” of a State, and not to limited defensive
actions against terrorist groups,
68 Benvenisti, above n60, 146. 69 Stone, Israel
and Palestine , above n3, 45-50. 70
Ibid, 50. 71 See Case Concerning Military And Paramilitary Activities in and
against Nicaragua
(Nicaragua v US )
(Merits) (1986) ICJ Reports 14. 72 See C Gray, International Law and the Use of
Force (2nd ed, Oxford University Press, Oxford ,
2004), chapter 6 (‘The use of force against terrorism’).
Page 15
the majority of States, and the drafters of the Charter
(including Australia), saw that clause not as a limitation on or qualification
of the prohibition on force, but as a means of strengthening and extending it,
to ensure any use of force, even against political independence, would be
covered.73
After September 11, however, there has been increasing
sympathy for Stone’s position, given calls by the United States and others that
a State which merely harbors or supports terrorist groups on their territory,
without actually controlling or directing their operations, may be responsible
for violence used by those groups and thus subject to defensive military
operations by the victim State. Whatever the policy merits of those arguments –
and they remain deeply contested – at the time Stone was writing, State
practice was clearly not sufficiently consistent or dense to support Stone’s
assertions.
6. Right of Return of
Arab/Palestinian Refugees74
Stone opposed demands that Israel
facilitate a right of return of Arab/Palestinian refugees displaced during
multiple phases of the Israeli-Arab/Palestinian conflict. Stone asserted that
Israel had already shouldered the burden of taking hundreds of thousands of
Jews displaced from Arab countries and Israel had incorporated a large number
of Arabs within Israel.75 He argued that Arab countries should take
responsibility for displaced persons, since most were displaced by Arab
aggression rather than by the foundation of Israel. Further, Arab countries
were seen to have manipulated the refugees to exert political pressure on Israel ,
instead of resettling and rehabilitating them. Given the special,
internationalized nature of the situation, Stone also believed that the
international community must share responsibility for the displaced.
Clearly many Arab/Palestinians were displaced by fighting
ensuing from Arab ‘aggression’, but Arab attacks in 1948 were an immediate
response to the unilateral declaration of the State of Israel, an action then
thought to prejudice the realization of Arab self-determination in the area.
Once hostilities commenced, Israeli (or before it, Zionist) violence was also responsible
for substantial displacement of Arabs (one need only think of the killings of
fighting civilians by Jewish militia groups (Irgun and Stern Gang) at Deir
Yassin in 1948, which provoked terror amongst Arab civilians and stimulated
wider displacement), particularly as the Israeli military response expanded
Israel’s territory beyond that the recommendation declared at independence.76
It has become an Israeli foundation claim to assert that displacement
simplistically resulted from Arab campaigns or strategy, while Arab/Palestinians
have equally blamed the Israelis for a policy of systematic expulsion. Neither
explanation is historically accurate; revisionist Israeli historian Benny
Morris has chronicled the complex causes of forced displacement during the 1948
war.77
There is indeed some uncertainty about the legal position of
Arab/Palestinian refugees, not only because international refugee law was still
emergent in 1948 (prior to the 1951 Refugee Convention), but also because the
United Nations later created a
73 Ibid. 74 See generally L Takkenberg, The Status of Arab/Palestinian
Refugees in International Law (1998). 75 Israel
and Palestine , 25-26. 76 Jean
Allain, International Law in the Middle East : Closer to
Power than Justice (Ashgate, 2004), 104. 77 See B Morris, 1948 and After: Israel
and the Arab/Palestinians (Clarendon Press, Oxford, 1994), chapter 3 (‘The
causes and character of the Arab exodus from Palestine ’);
see also Allain, ibid, 102-105.
Page 16
sui generis legal regime for Arab/Palestinian refugees
(UNRWA),78 outside the regular framework of the 1951 Refugee Convention. In
part, this was at the insistence of Arab States, who feared that the special
situation of Arab/Palestinians would be subsumed within any general framework
on refugees. Paradoxically, the separate treatment of Arab/Palestinian refugees
has arguably worked to their detriment, as the UNRWA mandate focused on
humanitarian relief and assistance while undertaking minimal legal protection
activities such as are ordinarily exercised by the UN High Commissioner for
Refugees elsewhere. A factual complication is that many Arab/Palestinians have
been displaced multiple times as a result of the successive conflicts.
In international law, a State is required to readmit its
nationals,79 which would include Arabs displaced from within the new Israeli
State
refugees wishing to return to
their homes… should be permitted to do so at the earliest practicable date, and
that compensation should be paid for the property of those choosing not to
return and for loss of or damage to property…80
The subsequent political impasse between Israel
and the Arab States Israel
has not accepted a right of return or a duty to pay compensation. Stone’s
argument that Israel accepted Jewish refugees and some Arab/Palestinians does
not discharge Israel from its obligations in respect of all persons formerly
resident in Israel and displaced from their homes. In this respect, the causes
of displacement – whether due to Israeli or Arab violence – are not strictly
relevant to a displaced person’s entitlement to the right; rather, the right
flows from the fact of displacement, and the duty is primarily born by the
State in which displacement occurs.
Stone’s call for international burden sharing is,
nonetheless, well made – UNRWA is the seed of such cooperation – but that does
absolve Israel
of its own responsibilities. International cooperation also ought not be seen
as a means of avoiding international legal responsibilities. In the Oslo
Accords, for instance, the question of return was left open to future
negotiations (since Israel
and the PLO were entrenched in opposing positions in the issue) and there is
risk that the political bargaining process will surrender refugee rights for
wider political objectives. Such trading of interests may well be necessary in
finding an ultimate solution to the conflict, but the adequate participation of
refugee communities in that decision-making process must be assured if the
bargaining process is to be legitimate. As Weiler notes, we are increasingly
confronted with dispute resolution which “takes place completely outside legal
frameworks; negotiation and conciliation substitute almost entirely for any
judicial process of adjudication.”82 Law becomes just another tool of diplomacy,
rather than a framework of principle bounding diplomacy.
78 UN General Assembly resolution 302(IV) (8 December 1948 ). See also Allain,
ibid, 120-124. 79 G Goodwin-Gill and J McAdam, The Refugee in International Law
(3rd ed, Oxford University Press, Oxford, 2007), 3; see also 1966 International
Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 3 January 1976, 993 UNTS 3), art 12(4); Allain, ibid, 118. 80 UN General
Assembly resolution 194(III) (11
December 1948 ), para 11. 81 Allain, above n76, 116-117. 82 Weiler,
above n31, 56.
Page 17
Conclusion
One of the greatest modern challenges to the international
rule of law, its normativity, its legitimacy, and global perceptions of its
fairness, is the question of Palestine – a deeper, more systemic, and
persistent challenge to international order than other contemporary fault-lines
such the war in Iraq, Guantanamo Bay, Abu Ghraib or the war on terror. The
failure to justly resolve the Israeli/Palestinian conflict infects and
contaminates the international legal order as a whole, as it represents an
ongoing denial of the fundamental right to self-determination; the perpetuation
of an endless and repressive occupation; ongoing violations of humanitarian law
and human rights on all sides; the poisoning of relations between Arabs,
Muslims and the west; and the subjection of Israelis and Arab/Palestinians
alike to the psychologically debilitating threat of sudden and imminent mass
violence.
In 1944, Stone wrote in his
letter to Sir Isaac that:
There are no Arab claims, moral
or otherwise, which can reasonably be held to stand in the way of righting this
great wrong to European Jewry…. if there were some substantial prejudice to the
ordinary Palestine Arab from the Jewish National Home, this too might ground a
moral claim. But here… official British papers testify rather to continuing
benefits, material and other, to the Arab people.83
While this passage appears to reveal Stone’s benevolent
concern for the plight of ordinary Arab/Palestinians, it arguably reveals a
lack of genuine empathy for their situation, an inability to comprehend that Arab/Palestinians
affected by the actions of others might interpret events differently from those
whose people stand to gain from the events described. Other parts of Stone’s
writings reveal sympathy for the plight of ordinary Arab/Palestinians, but
usually blame is squarely allocated to Arab
States Israel .
In the final analysis, Stone’s writings on Palestine are
commendable for their commitment to the central place of the rule of law in the
resolution of violent, intractable and highly politicized international
disputes. But it is fair to observe that his views are often more like those of
an impassioned advocate, rather than those of a somewhat drier, but more
faithful, international legal scholar. Ultimately, Stone’s views are
counter-productive even from a pro-Israeli perspective, since they have helped
to prolong the dispute, obfuscate and elongate the legal arguments, generate
false expectations amongst Jews, antagonize Arab/Palestinians and alienate much
of the international community.
83 Stone, Stand Up and be Counted!, above n18, 20.
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