The Debate About Israeli Settlements - They are legal

The Debate About Israeli Settlements

Settlements established by Israel in territories captured in the 1967 war have become a matter of great controversy among pro- and anti-settlement advocates who debate the legality of such communities. Opponents of the settlement policy claim that it's a Jewish land grab — a form of expanding Israel’s territory by colonizing Arab land. Proponents argue that both legally and morally, Jews have every right to purchase property and live on land that was historically inhabited by Jews, on which they were granted the right to settle under the British Mandate, and which has never been legally Palestinian. Opponents believe that peace can only be achieved between Israel and her Arab neighbors by creating a neighboring Palestinian state on all the land Israel won in the 1967 war, without the presence of any Jewish communities. They believe that the presence of Jews on the land the Palestinian want for a state constitutes an obstacle to peace. Proponents of the settlements believe the real obstacle to peace is the continued rejection by Palestinian leaders of Israel’s right to exist. They—as well as many others–believe that Israel’s pre-1967 borders were indefensible. The settlements are believed to create a secure buffer zone between the Israeli state and those who want to destroy it. Although built-up Jewish settlements account for less than 2% of the land in the West Bank, settlement opponents argue that the land controlled by Israeli authorities amounts to far more than that, and as a result, Arab residents are greatly inconvenienced. Proponents maintain that inconveniencing measures— including military controls, checkpoints on roads leading to the settlements and the clearing of olive groves used for ambushes—exist solely for security reasons to protect settlers and visitors from Arab terrorist attacks (which have claimed the lives of hundreds of Israelis since the 1993 Declarations of Principles that was to serve as the blueprint for peace). Israeli settlements were constructed after 1967 for security and/or ideological reasons and were supported by both the Israeli Labor and Likud parties. In many places, historic Jewish communities were re-established after having been destroyed by Arab fighters and prohibited to Jews during the Jordanian occupation of 1948-67. For example, Kfar Etzion, one of several Jewish communities in the area destroyed in 1948, was the first Jewish settlement re-established in the territories won by Israel in the 1967 war. Since 1967, Israeli leaders have repeatedly expressed willingness to relinquish territories won during the 1967 war and dismantle settlements built there in exchange for peace. Indeed, in April of 1982, Israel dismantled or transferred settlements in the Sinai to Egypt and in the summer of 2005, Israel withdrew its entire military and civilian presence from the Gaza Strip, dismantling all the settlements constructed there, transferring thriving greenhouses to the Palestinians, and expelling Israeli residents from their homes in the hopes of establishing peace with the Palestinians. Instead, Palestinian militants—with the support of their Hamas-led government—have used the evacuated territory to launch rockets into Israel’s pre-1967 borders, shelling residents of Sderot and other neighboring communities and causing death, injuries and damage within Israel. Since Israel’s withdrawal from the Gaza Strip, the territory has also become the site of deadly internecine violence among Palestinian factions, kidnapping of journalists, vandalism, looting and general mayhem. Far from bringing peace to the Gaza Strip, the withdrawal has resulted in  less secure borders for Israel. History As a result of the 1967 war, Israel gained control of the West Bank (from Jordan), the Gaza Strip (from Egypt) and the Golan Heights (from Syria). I. West BankJudea and Samaria, home to Jewish communities over thousands of years, was renamed the "West Bank" and annexed by Jordan in 1950. (This annexation was recognized by only two countries—Great Britain and Pakistan.) Iraqis, Syrians and Jordanians, and others built settlements on the land. Israeli Jews, however, were barred from living or buying property in the territories under Jordan’s regime. In July 1967, Israeli cabinet minister Yigal Allon of the left-wing Mapai (Labor) party, a member of the inner war cabinet, drew up a peace plan with a proposal to reallocate the West Bank territories between Jordan and Israel. According to the Allon Plan, Israel would relinquish heavily Arab-populated areas in the West Bank to Jordanian political control, while fortifying its vulnerable border with Jordan by retaining military control over a Strip along the Jordan River, through the Jordan Valley to the eastern hills of the West Bank. The territory retained (comprising less than half of the West Bank) was to include a corridor from the Dead Sea to Jerusalem and west of Ramallah to protect a Greater Jerusalem. The Labor government also approved and supported construction of settlements in the Gush Etzion (Etzion Bloc) located south of Jerusalem, the site of Jewish communities destroyed by Arab armies in 1948. Adhering to the Allon proposal, the Israeli Labor government sponsored the construction of settlements in strategic locations along the Jordan Valley, and in Gush Etzion, an area purchased by Jews long before the State of Israel was established. At the same time, the government resisted construction between the towns of Nablus and Hebron. In March 1974, following the Yom Kippur War, Gush Emunim (Bloc of the Faithful), an ideological, religious-nationalist group originally associated with the National Religious Party (NRP), was formed to initiate settlement in the biblical Land of Israel, "Eretz Yisrael." Some of the members had already been active in 1968, attempting to resettle Hebron (see below) and in 1973, attempting to establish a settlement at the biblical site of Elon Moreh. The group organized protests against the government for thwarting their attempts to settle the territories, and conducted tours and hikes of the territories to educate the Israeli public about the heartland of biblical Eretz Yisrael and to convince them of the need to resettle the territories. Seven failed attempts were made by Gush Emunim to settle the Nablus (Shechem) area in Samaria. (Each time, the army evacuated them.) On the eighth try, however, the government’s resistance was broken and settlers established a temporary community at the Kadum military base, which later became known as Kedumim. Over the next few years, several military posts and settlements were built in the area.  Between 1967-77, successive Labor governments supported the construction of over 25 communities in Judea and Samaria. After Likud came into power in 1977, dozens more settlements were built.in the West Bank and in the Gaza Strip. Many settlements were built on the sites of previous Jewish communities or in places with biblical significance. Many began as military or Nahal (military combat service combined with civilian service) camps which eventually became civilian settlements. Peace Now, an Israeli organization vehemently opposed to the settlements, claimed in an October 2006 report that Israeli settlements are situated mostly on "private Palestinian land" based on Arab claims disputed by the Israeli government and by others who question the credibility of the organization’s information. For example, the organization stated that almost 90% of the settlement town of Ma’ale Adumim was built on private Palestinian land–a claim it was subsequently forced to admit was wrong. There are currently ~245,000 people living in 121 settlements in the West Bank II. HebronHebron, site of the Cave (Tomb) of the Patriarchs, is one of Judaism’s four holy cities (the others are Jerusalem, Safed, and Tiberias). With few interruptions, Hebron was inhabited by Jews since biblical times. In 1929, Arab rioters massacred their Jewish neighbors as British soldiers stood by, and put an end to the Jewish community. In 1931, 35 families resettled in Hebron until further Arab riots in 1936 led to their evacuation. After Jordan occupied Hebron in 1948, Jews were barred from living there and from praying at the Cave of the Patriarchs. In April 1968, the eve of Passover, Rabbi Moshe Levinger and a group of his followers checked into the Park Hotel in Hebron in an attempt to re-establish the Jewish community there. They were opposed by both the local Arabs and the Israeli military. The settlers persisted and were eventually moved to Israeli military headquarters overlooking Hebron. In 1970, the government agreed to establish the adjacent town of Kiryat Arba, and the first housing units were erected in 1972. In 1979, settlers established the Committee of the Jewish Community of Hebron and moved into the former Jewish areas of Beit Hadassah and the Avraham Avinu synagogue. Israeli settlers, soldiers and visitors who came to the Cave of the Patriarchs were frequently subject to Arab violence. In 1976, Arabs destroyed the synagogue at the Cave of the Patriarchs and burned Torah scrolls. In May 1980, six Yeshiva students were killed and 20 wounded by Palestinian terrorists as they returned from prayers at the Tomb of the Patriarchs and in 1983, another yeshiva student was gunned down in the center of Hebron. Each murder and act of violence prompted the settlers to expand their presence in Hebron. By 1984, the Hebron Jewish community consisted of several enclaves. Hebron was the scene of even more violence during the first intifada and after the Oslo Agreements. Jewish settlers were the victims of stabbings, firebombings and shootings. In 1994, a Jewish settler killed 29 Muslim worshippers at the Cave of the Patriarchs and wounded 150 before being beaten to death. The violence continued during the second intifada with Palestinian suicide bombings, shootings and stabbings. Twelve security personnel—including civilian guards, border policemen and soldiers—were ambushed and killed as they accompanied worshippers returning from prayers at the Cave of the Patriarch, and a Jewish infant was targeted and shot dead by a Palestinian gunman. Settlers have been accused of stone throwing, verbal harrassment, and vandalism against Palestinians in the area. A Temporary International Presence in Hebron (TIPH) was established  in 1997. In 2002, two TIPH members were shot and killed just outside Hebron by Palestinian gunmen. And in 2006, TIPH temporarily withdrew from Hebron after its headquarters were attacked and destroyed by Muslims angered about cartoons of Mohammed published in a Danish magazine. Because a Jewish presence in Hebron has long sparked a violent Arab response, there is debate both inside and outside Israel, about whether Jews should be permitted to live there. Opponents believe a Jewish presence irritates the local Arabs and requires military support that  intrudes on Arab residents' lives, while proponents believe Jews should not relinquish their right to live and pray in their holy city by giving in to violence. The Jewish community in Hebron currently numbers ~600 and Kiryat Arba’s population is ~7,000. III. Golan HeightsFrom 1967-77, successive Labor governments sponsored the building of settlements in the Golan Heights for security reasons. The Golan Heights, at an elevation of ~2000 feet and fortified by Syria with a dense network of fortifications, trenches, concrete behind mine fields, had served as a strategic fortress from which to shell Israel’s agricultural heartland. The capture of this area now provided Israel a defensible border with Syria. The first two kibbutzim to be established in the Golan were Merom Golan and Mevo Chama at either end. Between 1967 and 1977, 20 additional kibbutzim and moshavim were constructed in the Golan Heights. Additional settlements were built between 1978 and 1987 with the support of Likud governments. There are now 33 settlements in the Golan, including kibbutzim, moshavim and the town of Katzrin, with a population numbering ~18,000. In 1981, Israel ended its military rule of the Golan Heights, with the passage by Knesset of "The Golan Heights Law," applying "the law, jurisdiction, and administration of the state....to the Golan Heights." The Golan's Druze residents were offered full Israeli citizenship, but most have not accepted. IV. Sinai and the Gaza StripUnder the 1949 armistice agreements, Egypt gained control of the Gaza Strip (part of the British Mandate and partially occupied by Israel during the 1948 war). Arab refugees from Jaffa and southern Israel moved to this small strip of land, but were kept by Egypt in squalid refugee camps. During the 1950's, the Egyptians used the Gaza Strip as a staging site for terror attacks by Fedayeen inside southern Israel. In the 1956 war, prompted by Egypt’s blockade of the Straits of Tiran, the Israeli army captured Sinai and the Gaza Strip but withdrew after an agreement placed UN peacekeepers in the Sinai. As a result of the 1967 war triggered by Egypt which expelled the peacekeepers and used their position in Sinai to again close the Straits of Tiran, Israel was once again in control of the Sinai and Gaza Strip. This time, however, Israel’s leaders—including Yigal Allon—believed that settlements should be established in order to create a security buffer against Egyptian aggression. Military installations, early warning stations, and 15 settlements, including the town of Yamit, were established by the Labor government in the Sinai. In 1979, Israel’s Prime Minister Menachem Begin, signed a peace treaty with Egypt, agreeing to withdraw from the Sinai and dismantle the settlements in exchange for peace. Israel also relinquished the Alma Oil Field, valued at $100 billion, which it had discovered and developed, thereby giving up the opportunity to become self-sufficient in providing for the country’s energy needs. In April 1982, over 170 military installations and early warning stations were dismantled and the settlements were forcibly evacuated by the Israeli army, overseen by General Ariel Sharon. By that time, Sinai was home to 7,000 Israeli residents. Most of the settlements were demolished. Neot Sinai, with its cultivated gardens, was given intact to Egypt. In 1988, the resort town of Taba, developed by the Israelis, was handed over to Egypt as well. Jews had long lived in Gaza before World War I. Kfar Darom was a Jewish-owned citrus grove in the 1930's. The Jewish National Fund bought the land from its Jewish owner and established a kibbutz there in the 1940's. During the 1948 war, Kfar Darom came under Egyptian attack and siege but managed to serve as a stronghold against the Egyptian onslaught before being evacuated. In 1970, Kfar Darom was re-established on the same site, supported by Israel’s Labor government. Twenty more settlements were established in the Gaza Strip in the late 70's, 80's and 90's. Some of the families evacuated from the Sinai settlements were resettled in Gaza settlements, such as Elei Sinai. The settlers transformed the Gaza dunes into lush oases of green. The presence of such settlements near squalid Palestinian refugee camps sparked envy and resentment among the local Arab populace. In 2005, the Israeli government forcibly evacuated and dismantled the Gaza Strip settlements, together with 4 additional settlements in Northern Samaria, and withdrew its military presence from Gaza. The thriving greenhouses that the settlers had built and maintained were transferred to the Palestinians. Debate over Legality of Settlements There is debate in the international community over whether or not the Israeli settlements are legal under international law. Many of the arguments are based on various false or questionable assumptions and claims. Those who maintain that the settlements are illegal rely on Article 49 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, which states: Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the occupying power or to that of any other country…are prohibited… and in the sixth paragraph: The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. They interpret this as applicable to Israel’s settlement of the West Bank and Gaza, understanding Israel to have become a "belligerent occupant" of this territory through entry by its armed forces. They also argue that settlement policy leads to the violation of Palestinian rights under international humanitarian law–specifically, their right to self-determination, equality, property, freedom of movement, an adequate standard of living, and freedom of movement. Those who maintain that settlements are legal interpret Article 49 (6) of the 1949 Fourth Geneva Convention as inapplicable to Israel’s settlements. For example, the late Professor Julius Stone—considered one of the premier legal theorists —maintained that the effort to designate Israeli settlements as illegal was a "subversion. . . of basic international law principles." Among the 27 books he authored was Israel and Palestine: An Assault on the Law of Nations which dealt with the legal aspects of the Arab-Israeli conflict. In it, Stone set forth the central principles of international law upon which Israel’s right to settle the West Bank is based and discussed the inapplicability of Article 49(6) of the Fourth Geneva Convention to the case of Israeli settlement. Stone drew upon the writings of Professor Stephen Schwebel, former judge on the Hague’s International Court of Justice (1981-2000), who distinguished between territory acquired in an "aggressive conquest" (such as Japanese conquests during the 1930s and Nazi conquests during World War II) and territory taken in a war of self-defense (for example, Israel’s capture of the West Bank and the Gaza Strip in 1967 war). He also distinguished between the taking of territory that is legally held by another nation (such as the Japanese occupation of Chinese territory and the Nazi Germany occupation of France, Holland, Belgium and other European lands) as opposed to the taking of territory illegally held. The latter applies to the West Bank and Gaza, which were not considered the legal territories of any High Contracting Party when Israel won control of them; their occupation after 1948 by Jordan and Egypt was illegal and neither country ever had lawful or recognized sovereignty. The last legal sovereignty over the territories was that of the League of Nations Palestine Mandate which encouraged Jewish settlement of the land. Regarding Israel’s acquisition of territories in the 1967 war, Schwebel wrote: Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. ("What Weight to Conquest," American Journal of International Law, 64 (1970)) Proponents of the view that settlements are legal further argue that Article 49 was intended to outlaw the Nazi practice of forcibly transporting populations into or out of occupied territories to death and work camps  and thus cannot be applied to Israel because Arab residents were neither forcibly transferred, nor were Israelis intended to (nor do they) displace Arab residents of the territories. Arabs continue to live in these territories and their population continues to grow. Those who believe settlements are legal also maintain that it is not the existence of settlements that have an impact on Palestinians’ standard of living, right to self-determination, equality, property, and freedom of movement. Rather, the impact upon their freedom of movement and standard of living is directly a result of the threat they pose to their Israeli neighbors and their governance by the Palestinian Authority. Most U.S. governments have held the view that the settlements are not illegal and that the extent of Israeli withdrawal from the territories is subject to negotiation. The Carter administration viewed the settlements as illegal, relying on the opinion (April 21, 1978) of the State Department's legal advisor Herbert J. Hansell.   It is noteworthy that  Hansell based his opinion, at least in part, on  an earlier, more general work by Professor Julius Stone – a 1959 analysis entitled Legal Controls of International Conflict," which he cited in his memo. But his interpretation of Stone's intent is clearly contradicted by the scholar's subsequent defense of the legality of settlements, as noted above. The Reagan administration, however, reversed Carter’s position, saying: "As to the West Bank, I believe the settlements there — I disagreed when the previous Administration referred to them as illegal, they're not illegal" (New York Times, Feb. 3, 1981). Subsequent U.S. administrations held similar views; while they may have disapproved on political grounds of building new settlements in the disputed territories before negotiations, they did not label settlements as "illegal." Former U.S. Undersecretary of State Eugene Rostow wrote several articles explaining why settlements are legal and arguing that United Nations Resolution 242 stipulates that Israel withdraw from some of the disputed territory, but not necessarily all. It should be remembered that Rostow was one of the drafters of Resolution 242, the very resolution relied upon by Palestinians and their supporters to demand Israel’s complete withdrawal from all of the West Bank and Gaza and the dismantlement of all of the Jewish settlements. Proponents of the view that settlements are illegal often cite numerous U.N. resolutions criticizing Israel’s presence in the West Bank and Gaza. Those who maintain settlements are legal indicate that  U.N. General Assembly Resolutions carry no legal weight, even if one ignores the U.N.’s history of bias against Israel, evidenced by the infamous "Zionism is Racism" resolution and the partisan, anti-Israel  indictments by special U.N. bodies set up exclusively to report on Israel's practices. The United States routinely abstains or votes against Security Council resolutions unfairly condemning Israel for building settlements. One exception–under former President Carter, the United States initially voted for U.N. Security Council Resolution 465 which was passed on March 1, 1980. This resolution stating that Israeli settlements in the territories have no "legal validity" is often quoted to bolster the "illegality of settlements" argument. However, the American vote for this resolution was subsequently retracted, with the United States claiming that it had intended to abstain and blaming a communications failure as responsible for the vote. Finally, those who maintain settlements are legal indicate that although Article 25 of the U.N. Charter says: "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter," this cannot invalidate Article 80 which says that: nothing in the [U.N. Charter's chapter on the administration of Mandate territory] shall be construed . . . to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments. (This updated version of the quote corrects an earlier typographical error.) This would include the British Mandate’s granting the right to the Jewish people to settle in the whole of the Mandated territory. Article 6 of the Mandate encouraged "close settlement by Jews on the land, including State lands not required for public use."

Eugene Kontorovich's talk at NYU on Israel's borders

Eugene Kontorovich's talk at NYU on Israel's borders

Yesterday, I attended a talk by Professor Eugene Kontorovich on "Disputing Occupation: Israel's Borders and International Law" at NYU. Here is a synopsis, based on my memory.

Kontrovich started off by saying what international law is not. It is not UN General Assembly resolutions. It is not advisory opinions from the ICJ (which, he pointed out, was answering a loaded question that assumed illegality when it gave its opinion on the security fence.)

The first legally important act after the fall of the Ottoman Empire that is relevant to Israel's borders is the League of Nations Mandate for Palestine, which noted the "historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country." After the British partitioned Western Palestine from Trans-Jordan, the implication is that all of the remaining Palestine would be the area of the Jewish nation.

If the Arabs had accepted the 1947 Partition Plan, then the further partition of Palestine into an Arab and Jewish state would have legal weight. But since they didn't, the Jewish claim on all of Palestine remained in force.

The 1949 Armistice Lines (mistakenly called the "1967 borders") are emphatically not national boundaries. They are explicitly stated in the armistice agreements as "not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question" (from the Egyptian armistice,the Jordanian one says "without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.") Their position (generally) had no demographic, political or geographic significance; they were simply where the opposing armies ended up at the last truce, with some minor adjustments. From the perspective of international law, they are not borders.

Jordan's sovereign claims to the West Bank were not recognized by the international community.

The next important legal document is UN Security Resolution 242 at the end of the 1967 war. (While it is a Chapter 6 resolution, Kontotovich noted that it was referred to in some Chapter 7 resolutions, meaning it might have the strength of the stronger Chapter 7 resolutions itself with respect to international law.) He discussed the famous missing "the" from the phrase "Withdrawal of Israeli armed forces from territories occupied in the recent conflict" and noted that this was done deliberately to make the resolution purposefully ambiguous as to whether Israel must withdraw from all the territories. He noted that in the end, when Israel relinquished the Sinai and later Gaza, Israel had withdrawn from some 99% of the territories, so it cannot be accused of violating the spirit of the resolution.

He also noted that the legality of Israel's annexation of the Golan Heights is a completely different topic from a legal perspective, and he did not get into it.

Kontorovich said that there is a big question in international law about whether one can legally acquire territory via conquest in a defensive war. He looked up five sources written before 1967 on the question; 2 said yes, 2 said no and one didn't think about it. In the case of the 1967 war, as with many things about Israel, the legal issues are completely unique and anyone saying that international law says something definitively on something that never happened before is generally not to be trusted. (I asked him whether the preamble of 242 meant that the UN considered the war not to be defensive; he answered that besides the fact that preambles are not part of the law, it would not make sense to interpret it that way because in that case Jordan also couldn't lay claim on it. He concluded that it was placed there in order to encourage the parties to come up with a negotiated border, as 242 states, and not a border created by conquest.)

The next legally important event for determining Israel's borders was the 1993 Oslo Accords. This is where Israel is relinquishing part of its occupied land (he noted that from Israel's perspective the land is occupied since it was not annexed, although it is legally occupied) to give to an ultimate Palestinian Arab entity.

Here is where he said something new.

In Professor Kontorovich's opinion, at some time after Oslo, Palestine became a state under international law.

The definition of a state is given by the Montevideo Convention. I had argued, and so had others, that "Palestine" does not constitute a state under its definition:

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

Kontorovich didn't get into the issue of Gaza, which may seem to be a problem since it has a different government, but he argues that since Area A is unquestionably part of what is claimed to be Palestine, that West Bank entity is undoubtedly a state. Having defined territory is not the same as having defined borders, and "Palestine" has st least some territory that it can call its own.

Therefore, the professor says, the entire issue nowadays between Israel and the Palestinian Arab state is not an issue of occupation or legality - it is simply a border dispute that must be resolved the way all border disputes are resolved (or not.)

One other point, not dwelled on in his slides, is that the Fourth Geneva Conventions article 49 on transferring people to occupied territory does not apply because in Israel's case the people moved there voluntarily, and Geneva implies government organized mass transfers.

It was a very interesting and thought provoking talk, and I spoke to him afterwards; he's a really nice guy. He's doing a fellowship in Princeton now but he is based out of Northwestern University.

If you want to hear him talk, here are some upcoming presentations he is making:

Cherry Hill, NJ on Feb. 12, One State, Two State, Three State, Four: The PA Bid for UN Recognition, sponsored by the RJC Southern New Jersey Chapter:

Princeton, NJ Feb. 12: International Lawfare, BDS. and the Delegitimization of Israel, sponsored by Advocates for Israel.

University of Florida Law School, Feb 15 at 12:15, Disputing Occupation: Israel's Borders in International Law

East Windsor, NJ March 28th: Say It Enough, it Still Isn't True: Illegal Occupation, Settlement, and Apartheid, sponsored (and hosted) by Beth El synagogue and Speak Up for Israel.

Thursday, December 30, 2010

Does recognition of "Palestine" have any legal meaning?

The recent recognition of "Palestine" as an independent state by Brazil, Argentina, Uruguay, Bolivia and now Ecuador brings up the question of whether these acts have any legal meaning.

In the nineteenth century, the general viewpoint in the matter was known as the "constitutive theory of statehood," meaning that a state becomes a legal entity due to the fact that it is recognized by other states. There were problems with this definition, for example when only some states recognized another. But it was considered normative.

All that changed in the twentieth century. The Montevideo Convention on the Rights and Duties of States (followed by the Badinter Committee in Europe) codified normative international law as saying that statehood is independent of recognition by other states. This is known as the "declarative theory of statehood" and in the Montevideo Convention statehood is defined this way:

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

The main sticking point for "Palestine" is the second criterion: a defined territory.

The South American nations - who are signatories to the Montevideo Conventions - are declaring the territory of "Palestine"  to be defined by the Green Line. The problem is that their declaration is based on fiction. For example, the Ecaudor recognition says "a free and independent Palestine with its 1967 boundaries." Before 1967, however, there were no boundaries between the West Bank and Jordan; there was no state of Palestine with any borders by any definition, and the Green Line was not a national boundary between Israel and Jordanian annexed territory. Ecuador might as well have declared that Palestine is on recognized lunar boundaries.

Furthermore, the statement says "This is a recognition that has been legitimized by resolutions 242 and 338 of the Security Council of the United Nations." This is also nonsense. Resolutions 242 and 338 do not mention a word about "Palestine" and do not even imply that such a state would ever exist, let alone legitimizing it.

It appears that these countries' recognition of "Palestine" have little legal bearing on its statehood, and statehood is impossible without a defined territory. They certainly have political value but not much legal meaning.

There might also be an argument as to whether "Palestine" has a government. It has two separate internal administrations that act as governments for their people, but the PA does not have diplomatic relations with other countries. The PA reports to the Palestinian Liberation Organization which handles all diplomatic issues - but it is not a government. Hamas acts more like a government than the PA.

A possible legal ramification of these countries' recognition might be in Article 6 of the Montevideo Conventions:

The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.

It is possible that from the perspective of the recognizing state, "Palestine" would be bound by international law that only applies to states. It is uncertain whether the Palestinian Arab leadership are willing to take on such responsibility at this time.

Again, I am not an international or any other kind of lawyer and all of these are just my interpretations of source materials, with some help from Wikipedia.

UPDATE: After I wrote this I asked an international lawyer to comment, and I was pointed to an interesting legal opinion by Professor Malcolm Shaw that touches on these very issues.

Briefly, Shaw talks about the "defined territory" requirement as much less important than I thought and the government requirement as much more important:

The requirement for a defined territory does not mean that the boundaries of such territory have to be delineated and settled, nor that there be an absence of frontier disputes," but it does necessitate that there be at the minimum a consistent band of territory which is undeniably controlled by the government of the alleged State. This is an indispensable factual necessity. The concept of government as enumerated in the Montevideo Convention may be seen as the requirement for a foundation of effective control. It would seem to necessitate that the undisputed authority of that putative State should exercise a degree of overall control over most of the territory it claims. For this reason at least, therefore, the "State of Palestine" purportedly declared in November 1988 at a conference in Algiers cannot be regarded as a valid State. The Palestinian organisations did not control any part of the territory that was claimed.

He goes on to say that the PA's lack of control over Gaza means that it can only be recognized as a government if "widespread international recognition" deems it so, which seems like Shaw admits that the constitutive theory still holds some sway.

Shaw then goes into much more detail about the PLO/PA split of responsibilities:

There is one further relevant issue in considering the criterion of effective government. There is a clear distinction or division of competences on the Palestinian side between the Palestine Liberation Organisation ("PLO") and the Palestinian Authority. The former constitutes an internationally recognised "national liberation movement" accepted as representing externally the Palestinian people and the party with Israel to the various agreements commencing with the Declaration of Principles,1993.  Under the Interim Agreement, 1995, in addition, it has authority to negotiate and enter into agreements for the benefit of the Palestinian Authority in certain limited circumstances. On the other hand, the Palestinian Authority, as will be seen in the following paragraphs, exercises within the West Bank and Gaza a number of powers and responsibilities expressly transferred from Israel. The two institutions are not identical. Thus, what might be termed governmental functions are split between the two bodies. This must impact upon any conclusion as to whether the criterion of effective government has in fact been complied with.

Shaw says that "Palestine" does not adhere to requirement (d),  capacity to enter into relations with the other states, due to existing agreements with Israel and its lack of independence within those agreements.

The essential point is that critical functions seen as indispensable to statehood in international law have by agreement between the relevant parties been recognised as matters subject to Israeli control. This includes what is termed the capacity to enter into relations with foreign States in the Montevideo Convention. This competence in the Interim Agreement is clearly reserved to Israel, apart from certain minor areas, as noted in article IX (5) a and b noted above. It also includes the exercise of effective control with regard to external threats. This is emphasised in article XII, which, while providing for the establishment of a Palestinian police force, stipulates that: "Israel shall continue to carry the responsibility for defence against external threats, including the responsibility for protecting the Egyptian and Jordanian borders, and for defence against external threats from the sea and from the air, as well as the responsibility for overall security of Israelis and  settlements, for the purpose of safeguarding their internal security and public order, and will have all the powers to take the steps necessary to meet this responsibility".

Shaw goes further, saying that any declaration of "Palestine" would be inherently illegal because of the violation of existing agreements and

it is also now part of the international consensus that the emergence of a new State must not take place upon the basis of illegality. This may be seen as reflective of the general principle of ex injuria поп oritur jus.

He goes on:

There is one further point in. the context of statehood. It may seem self-evident, but it is nevertheless a key issue, that in order for a new State to be created (and indeed recognised thereafter by the international community), the entity in question must actually assert a claim to statehood. A new State cannot arise implicitly or incidentally by way of circumstances or by way of inference. It may only be established as a concrete and explicit act of will. The US Restatement of the Foreign Relations Law notes that, "[w]hile the traditional definition does not formally require it, an entity is not a State if it does not claim to be a State".' Crawford concludes that, "[sjtatehood is a claim of right. Claims to statehood are not to be inferred from statements or actions short of explicit declaration".

 In the case of the Palestine, not only has no formal claim to statehood been made, but statements have been made continually declaring that the aim of the peace process is to establish a State of Palestine. This goes hand in hand with the explicit nature of the many instruments signed from the Declaration of Principles in 1993 onwards between the relevant parties, and witnessed by leading members of the international community, and indeed with the whole tenor of international documents.

There's lots more there.

This is not a simple issue! Unfortunately, we have seen the international community ignore customary international law in favor of "Palestine" and against Israel before, and I would not be surprised if it happens again.

• Elder
  Resolutions 242 and 338 do not mention a word about "Palestine" and do even that such a state would ever exist, let alone legitimizing it.

  shouldn't it be NOT imply?
  ------
  other than that, thank you, that's great stuff and I agree it would be a first if the IC wouldn't use a perfect mix of contradictions against Israel ...

  insofar recognition by those Latin Americans means that some have decided to heck with the law, we create conditions on the ground and then let the others try to unroot us.
  We will be the majority!

  Who might side with Israel?
  All bigger countries who have unruly minorities that need keeping in check i.e. foremost the Chinese and the Russians, but also Belgium on which I just heard a piece. There the split desired by some is complicated by the possession of Brussels.
  Are there international initiatives to "help" them save the problem? not that I am aware of.
  But then the UN is one state, one vote, isn't it? which is a perfect disadvantage for the big ones.

  As intriguing as the Belgian case is European countries may not be of much help because their egotism is diminished by their cherishing the illusion that the EU-umbrella will be capable of synchronising all those statelets.

INTERNATIONAL LAW AND THE ARAB-ISRAEL CONFLICT Extracts from “Israel and Palestine – Assault on the Law of Nations” by Professor Julius Stone

INTERNATIONAL LAW AND THE ARAB-ISRAEL CONFLICT

Extracts from “Israel and Palestine – Assault on the Law of Nations” 
by Professor Julius Stone

Editor: Ian Lacey, AM, BA, LLB.

The late Professor Julius Stone was recognized as one of the twentieth century’s leading authorities on the Law of Nations. His short work “Israel and Palestine”, which appeared in 1980, represents a detailed analysis of the central principles of international law governing the issues raised by the Arab-Israel conflict. This summary provides a short outline of the main points in the form of extracts from the original work. Also included are extracts from the subsequent international documents, and updated commentary.

CONTENTS
The Legal Status of the Territories
Sovereignty in Jerusalem
The Legality of the Settlements
The Principle of Self-determination
The Effect of the Oslo Accords
The “Right of Return”
Chronology and Maps

Jirlac Publications

PROFESSOR JULIUS STONE (1907 – 1985)

One of the rare scholars to gain outstanding recognition in more than one field, Professor Stone was one of the world’s best-known authorities in both jurisprudence and internationallaw.

From 1942 until 1972 he was the Challis Professor of International Law and Jurisprudence at the University of Sydney. From 1972 until his death in 1985 Professor Stone held concurrently with his appointment as visiting Professor of Law at the University of New South Wales the position of Distinguished Professor of Jurisprudence and International Law at the Hastings College of Law, University of California. In 1956 he received the award of the American Society of International Law, and in 1962 he was made an honorary life member of the society. In 1964 the Royal Society of Arts named him as a recipient of the Swiney Prize for Jurisprudence. In 1965 he received the World Research Award of the Washington Conference on World Peace through Law.

His 26 major works include the authoritative texts Legal Controls of International Conflict,Aggression and World Order, The International Court and World Crisis and The Province and Function of Law.

PREFACE TO THE 2003 EDITION

Israel and Palestine was written in 1980, and the first edition of this short summary appeared in 1990. Since then the rights of the parties have been modified by agreement, and the optimism which followed the various agreements has been succeeded by violent conflict. This second edition now appears in the context of continuing crisis and fresh negotiation, a context which has renewed the relevance of Professor Stone’s clear analysis of the status under international law of the Territories which came into Israel’s possession in 1967.

A new section has been added which comprises extracts from the provisions of the Oslo Accords, the consequential agreements, and the Israel-Jordan peace treaty, with short notes on the effect of those agreements on the current legal status of the Territories.

There is also a further section comprising extracts from and commentary on the international instruments relating to the revived Palestinian claim to a “right of return”.

The writer is grateful for the advice and assistance of David D. Knoll, author of The Impact of Security Concerns upon International Economic Law and Peter J. Wertheim, author ofUnlawful Coercion and the Law of Treaties: the case of Syria and Lebanon.

This booklet is, of course, a mere description of the legal position, and it does not advocate any proposed action. However it is hoped that this summary will contribute to a more general understanding of the current issues.

Ian Lacey

Part 1

THE LEGAL STATUS OF THE TERRITORIES

Professor Stone examines the principles governing the legal status of the Territories which came into Israel’s possession in 1967. In his analysis Stone draws upon the writings of Professor Stephen Schwebel, the former Chief Judge of the International Court of Justice.

Stone’s conclusions still remain relevant in the context of the subsequent agreements as extracted in Part 5. The agreements implementing the Oslo Accords of 1993, provide for a sharing of governmental powers and responsibilities with the Palestinian Authority on an interim basis pending the negotiation of a “permanent status” agreement, but leave the existing legal title intact. Also the peace treaty between Israel and Jordan in 1994 sets the international boundary between the parties at the centre of the Jordan river, “without prejudice to the status of [the] Territories”.

The Self-Defence Principle

The basic precept of international law concerning the rights of a state victim of aggression, which has lawfully occupied the attacking state’s territory in the course of self-defence, is clear. And it is still international law after the Charter, which gave to the UN General Assembly no power to amend this law. This precept is that a lawful occupant such as Israel is entitled to remain in control of the territory involved pending negotiation of a treaty of peace.

Both Resolution 242 (1967) and Resolution 338 (1973), adopted by the Security Council after respective wars of those years, expressed this requirement for settlement by negotiations between the parties… Conversely both the Security Council and the General Assembly in 1967 resisted heavy Soviet and Arab pressures demanding automatic Israeli withdrawal to the pre-1967 frontiers. Through the decade 1967-1977, Egypt and her Arab allies compounded the illegality of their continued hostilities by proclaiming the slogan “No recognition! No Peace! No negotiation!” thus blocking the regular process of international law for post-war pacification and settlement…

Israel’s territorial rights after 1967 are best seen by contrasting them with Jordan’s lack of such rights in Jerusalem and the West Bank after the Arab invasion of Palestine in 1948. The presence of Jordan in Jerusalem and elsewhere in cis-Jordan from 1948 to 1967 was only by virtue of her illegal entry in 1948. Under the international law principle ex iniuria non oritur iusshe acquired no legal title there. Egypt itself denied Jordanian sovereignty; and Egypt never tried to claim Gaza as Egyptian territory.

By contrast, Israel’s presence in all these areas pending negotiation of new borders is entirely lawful, since Israel entered them lawfully in self-defence. International law forbids acquisition by unlawful force, but not where, as in the case of Israel’s self-defence in 1967, the entry on the territory was lawful. It does not so forbid it, in particular, when the force is used to stop an aggressor, for the effect of such prohibition would be to guarantee to all potential aggressors that, even if their aggression failed, all territory lost in the attempt would be automatically returned to them. Such a rule would be absurd to the point of lunacy. There is no such rule….

International law, therefore, gives a triple underpinning to Israel’s claim that she is under no obligation to hand back automatically the West Bank and Gaza to Jordan or anyone else. In the first place, these lands never legally belonged to Jordan. Second, even if they had, Israel’s own present control is lawful, and she is entitled to negotiate the extent and the terms of her withdrawal. Third, international law would not in such circumstances require the automatic handing back of territory even to an aggressor who was the former sovereign. It requires the extent and conditions of the handing back to be negotiated between the parties.

Competing Claims to Title

Because the Jordanian entry onto the West Bank and East Jerusalem in 1948 was an unlawful invasion and an aggression, the principle ex iniuria non oritur ius beclouded even Jordan’s limited status of belligerent occupant. Her purported annexation was invalid on that account, as well as because it violated the freezing provisions of the Armistice Agreement. Conversely Israel’s standing in East Jerusalem after her lawful entry in the course of self-defence certainly displaced Jordan’s unlawful possession.

Once this position is reached, and it is remembered that neither Jordan nor any other state is a sovereign reversioner entitled to re-enter the West Bank, the legal standing of Israel takes on new aspects. She becomes then a state in lawful control of territory in respect of which no other state can show better (or, indeed, any) legal title. The general principles of international law applicable to such a situation, moreover, are well-established. The International Court of Justice, when called upon to adjudicate in territorial disputes, for instance in the Minquires and Echrehos case between the United Kingdom and France, proceeded “to appraise the relative strength of the opposing claims to sovereignty”. Since title to territory is thus based on a claim not of absolute but only of relative validity, the result seems decisive in East Jerusalem. No other state having a legal claim even equal to that of Israel under the unconditional cease-fire agreement of 1967 and the rule of uti possidetis, this relative superiority of title would seem to assimilate Israel’s possession under international law to an absolute title, valid erga omnes…

The most succinct statement of this position is in Professor Stephen Schwebel’s “What Weight to Conquest?” published in 1970, before he entered U.S. government service. He points out that the answer to that question in terms of international law, after the Charter’s prohibitions of the use of force, makes necessary a vital distinction “between aggressive conquest and defensive conquest, between the taking of territory legally held and the taking of territory illegally held”
”Those distinctions may be summarized as follows:
a) A state acting in lawful exercise of its right of self-defence may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defence.
b) As a condition of its withdrawal from such territory, that state may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use force against it of such a nature as to justify exercise of self-defence.
c) Where the prior holder of the territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.”

The issues discussed by Professor Stone have continuing relevance in the context of assertions that Israeli presence in the Territories constitutes an “illegal occupation”. Such assertions ignore both Israel’s right to lawful possession of the Territories as outlined by Stone and Schwebel, and the specific provisions of the interim power-sharing agreements under the Oslo Accords. (See Part 5.)

As Stone remarks, a state victim of aggression is entitled to protect itself by retaining lawful possession of territory taken in self-defence from a defeated aggressor. The dismemberment of Germany after two World Wars, as a protection against any repeated aggression, is a classic example of the operation of the customary law. It is a principle reflected in Article 75 of the Vienna Convention on the Law of Treaties, which declares that the provisions of the Convention requiring voluntary accession to treaties are “without prejudice to any obligation … which may arise for an aggressor State” in consequence of measures taken in lawful self-defence.
It follows that if it should happen that the interim agreements under the Oslo Accords were to be lawfully terminated, then the status of the Territories would revert to that described by Stone. In effect Israel would again have the full power to deal as it wished with the territories from which attacks were mounted in the projected war of extermination directed against it in 1967.

It is also significant that if Israeli presence in the Territories was indeed considered to be “illegal”, then Israel would be bound to withdraw unilaterally from the whole of the Territories, and without any peace agreement, security guarantees or border adjustments. As Stone points out, this would negate the whole basis for the negotiation of a peaceful settlement with “secure and recognized boundaries” as contemplated by UNSC Resolution 242.

Part 2

SOVEREIGNTY IN JERUSALEM

The Partition Plan of 1947 envisaged an international Jerusalem, separated from both Israel and the then proposed Palestinian State. During the 1948 war, East Jerusalem (which includes the holy places of Judaism, Christianity and Islam in the old city) came into Jordanian hands; and Jordan claimed sovereignty. In 1967, after Jordan launched an attack on West Jerusalem, the whole of Jerusalem came under Israeli rule; and Israel claimed sovereignty over a united Jerusalem. Professor Stone examines the legal principles which apply, and considers the analysis of Professor Elihu Lauterpacht, the distinguished editor of the authoritative “Oppenheim’s International Law”.

The agreements implementing the Oslo Accords provide that Jerusalem is one of the issues to be considered in the permanent status negotiations, and failure to reach agreement on the sharing of administration in Jerusalem was one of the reasons for the failure to conclude a permanent status agreement at Camp David II in 2000 and in subsequent negotiations. In the absence of such agreement, however, sovereignty over Jerusalem under international law remains as described by Stone.

The Effect of the Partition Plan

Elihu Lauterpacht concludes, correctly that the 1947 partition resolution had no legislative character to vest territorial rights in either Jews or Arabs. Any binding force of it would have had to arise from the principle pacta sunt servanda, that is, from the agreement of the parties concerned to the proposed plan. Such an agreement, however, was frustrated ab initio by the Arab rejection, a rejection underlined by armed invasion of Palestine by the forces of Egypt, Iraq, Lebanon, Syria and Saudi Arabia, timed for the British withdrawal on May 14, 1948, and aimed at destroying Israel and at ending even the merely hortatory value of the plan…

The State of Israel is thus not legally derived from the partition plan, but rests (as do most other states in the world) on assertion of independence by its people and government, on the vindication of that independence by arms against assault by other states, and on the establishment of orderly government within territory under its stable control. At most, as Israel’s Declaration of Independence expressed it, the General Assembly resolution was a recognition of the natural and historic right of the Jewish people in Palestine. The immediate recognition of Israel by the United States and other states was in no way predicated on its creation by the partition resolution, nor was its admission in 1949 to membership in the United Nations…

As a mere resolution of the General Assembly, Resolution 181(11) lacked binding force ab initio. It would have acquired the force under the principle pacta sunt servanda if the parties at variance had accepted it. While the state of Israel did for her part express willingness to accept it, the other states concerned both rejected it and took up arms unlawfully against it. The Partition Resolution thus never became operative either in law or in fact, either as to the proposed Jerusalem corpus separatum or other territorial dispositions in Palestine.

The Corpus Separatum Concept

We venture to agree with the results of the careful examination of the corpus separatumproposalby E. Lauterpacht in his monograph Jerusalem and the Holy Places

“(1) During the critical period of the changeover of power in Palestine from British to Israeli and Arab hands, the UN did nothing effectively to implement the idea of the internationalization of Jerusalem.

(2) In the five years 1948-1952 inclusive, the UN sought to develop the concept as a theoretical exercise in the face of a gradual realization that it was acceptable neither to Israel nor to Jordan and could never be enforced. Eventually the idea was allowed quietly to drop.

(3) In the meantime, both Israel and Jordan demonstrated that each was capable of ensuring the security of the Holy Places and maintaining access to and free worship at them – with the exception, on the part of Jordan, that the Jews were not allowed access to Jewish Holy places in the area of Jordanian control.

(4) The UN by its concern with the idea of territorial internationalization, as demonstrated from 1952 to the present date (1968) effectively acquiesced in the demise of the concept. The event of 1967 and 1968 have not led to its revival.

(5) Nonetheless there began to emerge, as long ago as 1950, the idea of functional internationalization of the Holy Places in contradistinction to the territorial internationalization of Jerusalem. This means that there should be an element of international government of the City, but only a measure of international interest in and concern with the Holy Places. This idea has been propounded by Israel and has been said to be acceptable to her. Jordan has not subscribed to it.”

Even if no notion of a corpus separatum had ever floated on the international seas, serious questions about the legal status of Jerusalem would have arisen after the 1967 War. Did it have the status of territory that came under belligerent occupation in the course of active hostilities, for which international law prescribes a detailed regime of powers granted to the occupying power or withheld it from in the interest of the ousted reversionary sovereign? Or was this status qualified in Israel’s favour by virtue of the fact that the ousted power, in this case, Jordan, itself had occupied the city in the course of an unlawful aggression and therefore could not, under principle of ex iniuria non oritur ius, be regarded as an ousted reversioner? Or was Jerusalem, as we will see that a distinguished authority thought at the time, in the legal status of res nullius modo juridico? That is, was it a territory to which by reason of the copies of international instruments, and their lacunae, together with the above vice in the Jordanian title, no other state than Israel could have sovereign title? The consequence of this could be to make the legal status of Jerusalem that of subjection to Israel sovereignty.

Acquisition of Sovereignty

This analysis, based on the sovereignty vacuum, affords a common legal frame for the legal positions of both West and East Jerusalem after both the 1948-49 and the 1967 wars. In 1967, Israel’s entry into Jerusalem was by way lawful self-defence, confirmed in the Security Council and General Assembly by the defeat of Soviet and Arab-sponsored resolutions demanding her withdrawal…

Lauterpacht has offered a cogent legal analysis leading to the conclusion that sovereignty over Jerusalem has already vested in Israel. His view is that when the partition proposals were immediately rejected and aborted by Arab armed aggression, those proposals could not, both because of their inherent nature and because of the terms in which they were framed, operate as an effective legal re-disposition of the sovereign title. They might (he thinks) have been transformed by agreement of the parties concerned into a consensual root of title, but this never happened. And he points out that the idea that some kind of title remained in the United Nations is quite at odds, both with the absence of any evidence of vesting, and with complete United Nations silence on this aspect of the matter from 1950 to 1967?…

In these circumstances, that writer is led to the view that there was, following the British withdrawal and the abortion of the partition proposals, a lapse or vacancy or vacuum of sovereignty. In this situation of sovereignty vacuum, he thinks, sovereignty could be forthwith acquired by any state that was in a position to assert effective and stable control without resort to unlawful means. On the merely political and commonsense level, there is also ground for greater tolerance towards Israel’s position, not only because of the historic centrality of Jerusalem to Judaism for 3,000 years, but also because in modern times Jews have always exceeded Arabs in Jerusalem. In 1844 there were 7,000 Jews to 5,000 Moslems; in 1910, 47,000 Jews to 9,800 Moslems; in 1931, 51,222 Jews to 19,894 Moslems; in 1948, 100,000 Jews to 40,000 Moslems, and in 1967 200,000 Jews to 54,902 Moslems.

Part 3.

THE GENEVA CONVENTIONS AND THE LEGALITY OF THE SETTLEMENTS

It is often claimed that settlement by Jews in the administered territories is in breach of the Fourth Geneva Convention. Professor Stone was the author of the treatise “Legal Controls of International Conflict”, which included an extensive commentary on the Geneva Conventions. Here he discusses their applicability in the Territories.

In summary:
1. The “West Bank” of the Jordan River was never legally part of Jordan, and Jordan no longer claims it. The region is best defined as disputed territory.

2. The Fourth Geneva Convention only applies to the “occupation” by one state of the territory of another state, and the Convention therefore does not apply to the West Bank. However Israel has voluntarily agreed to apply the humanitarian provisions of the Convention.

3. As Stone elaborates, article 49 was designed with the humanitarian intention of preventing the forcible deportation of civilians into and out of occupied territory. That has not been the case with any of the Settlements.

Perhaps the central current criticism against the government of Israel in relation to its administration of the territories occupied after the 1967 War concerns its alleged infractions of the final paragraph (6) of Article 49, of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, of August 12, 1949. The preceding paragraphs deal with deportation or transfer of a population out of the occupied territory. The final paragraph (6) reads as follows. “The occupying Power shall not deport or transfer parts of its own civilian population into territory it occupies.”

It has been shown that there are solid grounds in international law for denying any sovereign title to Jordan in the West Bank, and therefore any rights as reversioner state under the law of belligerent occupation… Not only does Jordan lack any legal title to the territories concerned, but the Convention itself does not by its terms apply to these territories. For, under Article 2, the Convention applies “to cases of…occupation of the territory of a High Contracting Party, by another such Party. Insofar as the West Bank at present held by Israel does not belong to any other State, the Convention would not seem to apply to it at all. This is a technical, though rather decisive, legal point.

It is also important to observe, however, that even if that point is set aside, the claim that Article 49 of the convention forbids the settlement of Jews in the West Bank is difficult to sustain.

It is clear that in the drafting history, Article 49 as a whole was directed against 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. The genocidal objectives, of which Article 49 was concerned to prevent future repetitions against other peoples, were in part conceived by the Nazi authorities as a means of ridding their Nazi occupant’s metropolitan territory of Jews – of making it, in Nazi terms, judenrein. Such practices were, of course, prominent among the offences tried by war crimes tribunals after World War II.

If and insofar, therefore, as Israel’s position in Judea and Samaria (the West Bank) is merely that of an occupying power, Article 49 would forbid deportation or transfer of its own population onto the West Bank whenever this action has consequence of serving as a means of either

(1) impairment of the economic situation or racial integrity of the native population of the occupied territory; or
(2) inhuman treatment of its own population.

Impairment of Racial Integrity of the Native Population of the Occupied Territory

The prominence of the question of legality of Jewish settlements on the West Bank reflects the tension of the peace process, rather than the magnitude of any demographic movement. Despite vociferous political warfare pronouncements on both sides, it seems clear, therefore, that no serious dilution (much less extinction) of the separate racial existence of the native population has either taken place or is in prospect. Nor do well-known facts of dramatic improvement in the economic situation of the inhabitants since 1967 permit any suggestion that the situation has been worsened or impaired…

Inhuman treatment of its own population

On that issue, the terms of Article 49(6) however they are interpreted, are submitted to be totally irrelevant. To render them relevant, we would have to say that the effect of Article 49(6) is to impose an obligation on the state of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein.Irony would thus be pushed to the absurdity of claiming that Article 49(6) designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territoriesjudenrein, has now come to mean that Judea and Samaria the West Bank must be madejudenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants.

Part 4
THE PRINCIPLE OF SELF-DETERMINATION

It is sometimes asserted that the principle of self-determination creates a legal obligation for Israel to “give back” the Territories to the Palestinians. Here Stone examines the applicability of the “doctrine of self-determination” to the conflict.

Whether the doctrine is already a doctrine of international law stricto sensu, or (as many international lawyers would still say) a precept of politics, or policy, or of justice, to be considered where appropriate, it is clear that its application is predicated on certain findings of fact. One of these is the finding that at the relevant time the claimant group constitutes a people of 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 particular territory, and lacking an independent territorial home in which it may live according to its lights…

Palestine Liberation Organization (PLO) leaders have frankly disavowed distinct Palestine identity. On March 3, 1977, for example, the head of the PLO Military Operations Department, Zuhair Muhsin, told the Netherlands paper Trouw that there are no differences between Jordanians, Palestinians, Syrians and Lebanese:

“We are one people. Only for political reasons do we carefully underline our Palestinian identity. For it is of national interest for the Arabs to encourage the existence of the Palestinians against Zionism. Yes, the existence of a separate Palestine identity is there only for tactical reasons. The establishment of a Palestinian State is a new expedient to continue the fight against Zionism and for Arab unity.”…

The myth of the 1966 Palestinian Covenant that the Palestinian people was unjustly displaced by the Jewish invasion of Palestine in 1917 is widely disseminated and unquestioningly and dogmatically espoused in studies from the United Nations Secretariat. However, it is necessary to recall, not only the Kingdom of David and the succession of Jewish polities in Palestine down to Roman conquest and dispersion at the turn of the present era, but also that the Jews continued to live in Palestine even after that conquest, and were in 1914 a well-knit population there. Hundreds of thousands of other Jews, driven from Palestine homeland by successive waves of Roman, Arab, and other conquerors, continued to live on for centuries throughout the Middle East, often under great hardship and oppression. And, of course, millions of others were compelled to move to other parts of the world where too often, as in pogrom-ridden Russia and Poland, they live in conditions of tyrannous and humiliation subjection and under daily threat to their lives…

That the provision for a Jewish national home in Palestine was an application of the principle of self-determination is manifest from the earliest seminal beginning of the principle. The Enquiry Commission, established by President Wilson in order to draft a map of the world based on the Fourteen Points, affirmed the right of the Jewish people that Palestine should become a Jewish State clearly on this ground. Palestine, the commission said, was “the cradle and home of their vital race”, the basis of the Jewish spiritual contribution, and the Jews were “the only people whose only home was in Palestine”…

The problem of competing self-determination becomes, indeed, even more difficult, whether for purposes of determining aggression or for other purposes, where the competing claims and accompanying military activities, punctuated by actual wars, armistices, and cease-fire agreements, have been made over protracted historical periods. The test of priority of resort to armed force in Article 2 of the 1974 Definition presupposes a fixed point of time from which priority is to calculated. Does one fix the aggression in the Cyprus crisis of 1974 from the action of the Greek officers who led the coup d’etat, or the Turkish response by invasion, even assuming that the 1974 crisis can be severed from earlier struggles? Is the critical date of the Middle East crisis 1973 or 1967, or the first Arab states’ attack on Israel in 1948, or is it at the Balfour Declaration in 1917, or at the Arab invasions and conquest of the seventh century AD, or even perhaps at the initial Israelite conquest of the thirteenth century BC? The priority question, as well as the self-determination question, is difficult enough. They become quite baffling when, in the course of such a long span of time, a later developing claim of self-determination like that of the Palestinian people in the 1960s, arises, and claims to override retrospectively the sovereign statehood of another nation, here the Jewish people, already attained by right of self determination.

Stone’s characterization of the doctrine of self-determination as a “precept of policy, or politics or of justice” has been clarified in a number of decisions of the International Court of Justice. While the Court has acknowledged the right of various peoples to self-determination as a matter of principle, it has been careful to make rulings only in cases where there has been no finding of lawful possession by a sovereign state.

In the East Timor case (1995), for example, the Court was asked to declare that the Timor Gap treaty between Australia and Indonesia was unlawful because it failed to respect the right of the East Timorese people to self-determination. While it strongly affirmed the East Timorese right of self-determination, the Court nevertheless held that in the absence of Indonesia’s submission to the Court’s jurisdiction, it could not determine the legality of the treaty, since

“the effects of the judgment requested by Portugal would amount to a determination that Indonesia’s entry into and continued presence in East Timor are unlawful and that, as a consequence, it does not have the treaty-making power in matters relating to the continental shelf resources of East Timor. Indonesia’s rights and obligations would thus constitute the very subject matter of such a judgment made in the absence of that State’s consent.”

The East Timor case appears to be precisely in point in its application to Israel’s status in the Territories, which were lawfully entered by Israel and are lawfully held in self-defence against defeated aggressors.

Stone’s observations on the competing Jewish and Palestinian claims of self-determination were, of course, made before the mutual recognition implicit in the Oslo Accords, and at a time when the phrase “the inalienable rights of the Palestinian people” was still a coded reference to the projected destruction of Israel, as contemplated by the Palestinian Covenant.

In clarification of the reality of that time, Stone cited

a letter dated February 20, 1980 to the Secretary-General, transmitted for UN circulation to the General Assembly and the Security Council in connection with item 26 of A/35/11000-S/13816 (Situation in the Middle East) [which] declared a propos of inclusion in the Charter of a principle of non-use of force:

“The principle of non-use of force shall apply to the relations of the Arab Nation and Arab States with the nations and countries neighbouring the Arab homeland. Naturally, as you know, the Zionist entity is not included, because the Zionist entity is not considered a State, but a deformed entity occupying an Arab territory. It is not covered by these principles.”

Part 5
THE LEGAL EFFECT OF THE “PEACE PROCESS”
Extracts from Documents 1993-2001 with Notes

DECLARATION OF PRINCIPLES ON INTERIM SELF-GOVERNMENT ARRANGEMENTS
September 13, 1993

The “Oslo Accords” (the “DOP”) represented an historic agreement to negotiate a final peace settlement within an anticipated period of five years, during which successive interim measures would be implemented. These measures included an interim transfer of autonomous powers to a Palestinian self-governing Authority, and the “re-deployment” of Israeli military forces out of populated areas in the Territories, on the terms which were negotiated in the later agreements extracted below.

Article I       Aim of the Negotiations

The aim of the Israeli-Palestinian negotiations within the current Middle East peace process is, among other things, to establish a Palestinian Interim Self-Government Authority, the elected Council (the “Council”), for the Palestinian people in the West Bank and the Gaza Strip, for a transitional period not exceeding five years, leading to a permanent settlement based on Security Council Resolutions 242 and 338…

Article XIII        Redeployment of Israeli Forces

2. In redeploying its military forces, Israel will be guided by the principle that its military forces should be redeployed outside populated areas.

3. Further redeployments to specified locations will be gradually implemented commensurate with the assumption of responsibility for public order and internal security by the Palestinian police force…

TREATY OF PEACE BETWEEN THE STATE OF ISRAEL AND THE HASHEMITE KINGDOM OF JORDAN
October 26, 1994
Following the negotiation of the Oslo Accords, the Peace Treaty between Israel and Jordan incorporated a renunciation by Jordan of its former claim to sovereignty over the “West Bank” of the Jordan river. The definition of the border is therefore qualified by the words “without prejudice to the status of any territories that came under Israeli military control in 1967”.

Article 3 International Boundary

2. The boundary, as set out in Annex I (a), is the permanent, secure and recognised international boundary between Israel and Jordan, without prejudice to the status of any territories that came under Israeli military government control in 1967…

Annex I (a)2. The boundary is delimited as follows:
…The boundary line shall follow the middle of the main course of the flow of the Jordan and Yarmouk Rivers…

ISRAELI-PALESTINIAN INTERIM AGREEMENT ON THE WEST BANK AND THE GAZA STRIP, Washington, D.C., September 28, 1995 
This Agreement superseded the previous agreements which comprised the first stages of the “peace process” under the Oslo Accords. It was re-affirmed in the subsequent documents, and as at 2015 it still remains the operative document of the process. 
The Agreement provided for the replacement of Israel’s governmental institutions in the Territories by the Palestinian Authority, and the transfer of all government powers to that Authority, with the exception of those powers specifically reserved to Israel. 
Significantly for determining the current status of the Territories, the Agreement is entitled “Interim Agreement”. It is expressed to be for a term not exceeding five years, and it contains a provision preserving existing rights.
Article XII (1), gives Israel “all the powers necessary” to meet its “responsibility for overall security of Israelis and Settlements”. 
RECOGNIZING that the aim of the Israeli-Palestinian negotiations within the current Middle East peace process is, among other things, to establish a Palestinian Interim Self-Government Authority … for the Palestinian people in the West Bank and the Gaza Strip, for a transitional period not exceeding five years…leading to a permanent settlement based on Security Council Resolutions 242 and 338…

Article I – Transfer of Authority …

5. After the inauguration of the Council, the Civil Administration in the West Bank will be dissolved, and the Israeli military government shall be withdrawn. The withdrawal of the military government shall not prevent it from exercising the powers and responsibilities not transferred to the Council…

Article X
4. Israel shall continue to carry the responsibility for external security, as well as the responsibility for overall security of Israelis for the purpose of safeguarding their internal security and public order.

Article XI Land

1. The two sides view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which will be preserved during the interim period…
2. The two sides agree that West Bank and Gaza Strip territory, except for issues that will be negotiated in the permanent status negotiations, will come under the jurisdiction of the Palestinian Council in a phased manner, to be completed within 18 months from the date of the inauguration of the Council, as specified below:
a. Land in populated areas (Areas A and B), including government and Al Waqf land, will come under the jurisdiction of the Council during the first phase of redeployment.
b. All civil powers and responsibilities, including planning and zoning, in Areas A and B …will be transferred to and assumed by the Council during the first phase of redeployment.
c. In Area C, during the first phase of redeployment Israel will transfer to the Council civil powers and responsibilities not relating to territory …

Article XII Arrangements for Security and Public Order

1. In order to guarantee public order and internal security for the Palestinians of the West Bank and the Gaza Strip, the Council shall establish a strong police force as set out in Article XIV below. Israel shall continue to carry the responsibility for defence against external threats, including the responsibility for protecting the Egyptian and Jordanian borders, and for defence against external threats from the sea and from the air, as well as the responsibility for overall security of Israelis and Settlements, for the purpose of safeguarding their internal security and public order, and will have all the powers to take the steps necessary to meet this responsibility.

3. Except for the Palestinian Police and the Israeli military forces, no other armed forces shall be established or operate in the West Bank and the Gaza Strip.

4. Except for the arms, ammunition and equipment of the Palestinian Police described inAnnex I, and those of the Israeli military forces, no organization, group or individual in the West Bank and the Gaza Strip shall manufacture, sell, acquire, possess, import or otherwise introduce into the West Bank or the Gaza Strip any firearms, ammunition, weapons, explosives, gunpowder or any related equipment, unless otherwise provided for in Annex I.

Relations between Israel and the Council

1. Israel and the Council shall seek to foster mutual understanding and tolerance and shall accordingly abstain from incitement, including hostile propaganda, against each other and, without derogating from the principle of freedom of expression, shall take legal measures to prevent such incitement by any organizations, groups or individuals within their jurisdiction.

2. Israel and the Council will ensure that their respective educational systems contribute to the peace between the Israeli and Palestinian peoples and to peace in the entire region, and will refrain from the introduction of any motifs that could adversely affect the process of reconciliation…

Article XV
Prevention of Hostile Acts

1. Both sides shall take all measures necessary in order to prevent acts of terrorism, crime and hostilities directed against each other, against individuals falling under the other’s authority and against their property and shall take legal measures against offenders.

Article XXII Final Clauses…

5. Permanent status negotiations will commence as soon as possible, but not later than May 4, 1996, between the Parties. It is understood that these negotiations shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbours, and other issues of common interest

6. Nothing in this Agreement shall prejudice or pre-empt the outcome of the negotiations on the permanent status to be conducted pursuant to the DOP. Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions.

ISRAELI-PALESTINIAN JOINT STATEMENT 27 January 2001

The optimistic tone of the statement which followed the failure of the talks at Taba did not reflect the violent situation on the ground. Nevertheless the undertaking by the parties to observe “their mutual commitments” and continue the negotiations implied a further affirmation that the Interim Agreement remained in force.

The Israeli and Palestinian delegations conducted during the last six days serious, deep and practical talks with the aim of reaching a permanent and stable agreement between the two parties…

The sides declare that they have never been closer to reaching an agreement and it is thus our shared belief that the remaining gaps could be bridged with the resumption of negotiations following the Israeli elections…

The two sides take upon themselves to return to normalcy and to establish [a] security situation on the ground through the observation of their mutual commitments…

THE “ROADMAP” 30 April 2003

The “Roadmap” took the form of a statement issued by the US Department of State, following the initiative of the “Quartet” of the US, the EU, the UN and Russia. The Palestinian Authority announced its unconditional acceptance of the terms. Israel “accepted the steps set out in the Roadmap” following a Cabinet resolution to that effect, subject to 14 “reservations”.

A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict
The following is a performance-based and goal-driven roadmap, with clear phases, timelines, target dates, and benchmarks aiming at progress through reciprocal steps by the two parties…

A settlement, negotiated between the parties, will result in the emergence of an independent, democratic, and viable Palestinian state living side by side in peace and security with Israel and its other neighbours. The settlement will resolve the Israel-Palestinian conflict, and end the occupation that began in 1967, based on the foundations of the Madrid Conference, the principle of land for peace, UNSCRs 242, 338 and 1397, agreements previously reached by the parties, and the initiative of Saudi Crown Prince Abdullah – endorsed by the Beirut Arab League Summit – calling for acceptance of Israel as a neighbour living in peace and security, in the context of a comprehensive settlement…

Phase I: Ending Terror and Violence, Normalizing Palestinian Life, and Building Palestinian Institutions — Present to May 2003… 
Palestinians declare an unequivocal end to violence and terrorism and undertake visible efforts on the ground to arrest, disrupt, and restrain individuals and groups conducting and planning violent attacks on Israelis anywhere.
Rebuilt and refocused Palestinian Authority security apparatus begins sustained, targeted, and effective operations aimed at confronting all those engaged in terror and dismantlement of terrorist capabilities and infrastructure. This includes commencing confiscation of illegal weapons and consolidation of security authority, free of association with terror and corruption…

GOI freezes all settlement activity (including natural growth of settlements).

Phase II: Transition — June 2003-December 2003
In the second phase, efforts are focused on the option of creating an independent Palestinian state with provisional borders and attributes of sovereignty…

Progress into Phase II will be based upon the consensus judgment of the Quartet of whether conditions are appropriate to proceed, taking into account performance of both parties…

Phase III: Permanent Status Agreement and End of the Israeli-Palestinian Conflict — 2004 – 2005
Progress into Phase III, based on consensus judgment of Quartet, and taking into account actions of both parties and Quartet monitoring. Phase III objectives are consolidation of reform and stabilization of Palestinian institutions, sustained, effective Palestinian security performance, and Israeli-Palestinian negotiations aimed at a permanent status agreement in 2005…
Israel’s Reservations
1… As a condition for progress to the second phase, the Palestinians will complete the dismantling of terrorist organizations (Hamas, Islamic Jihad, the Popular Front, the Democratic Front, Al-Aqsa Brigades and other apparatuses) and their infrastructure [and] collection of all illegal weapons and their transfer to a third party for the sake of being removed from the area and destroyed…

6… Declared references must be made to Israel’s right to exist as a Jewish state and to the waiver of any right of return for Palestinian refugees to the State of Israel…

10. The removal of references other than 242 and 338 (1397, the Saudi Initiative and the Arab Initiative adopted in Beirut). A settlement based upon the road map will be an autonomous settlement that derives its validity therefrom. The only possible reference should be to Resolutions 242 and 338, and then only as an outline for the conduct of future negotiations on a permanent settlement…

The Palestinian Response
Palestinian Prime Minister Mahmoud Abbas rejected the reservations:
“We are saying to the Israelis, ‘follow the map and don’t waste time haggling over details’. We must get into the implementation phase,” Abbas said… “In any case nobody will pay any attention to this or that reservation.” [Report in Ha’aretz.]

The Roadmap constitutes a detailed proposal presented by mediating parties, which has been unconditionally accepted by one side and accepted by the other subject to “reservations”. There is no signed instrument and no formal ratification has been made by the legislature of either party, although the proposal has been affirmed in non-binding Security Council resolutions. 
In the absence of a documentary agreement , and in the light of subsequent failure by the parties to make progress as envisaged, the “Roadmap” might best be characterised as a guide for the implementation of the Oslo Accords rather than a binding modifying agreement. This is relevant to calls for a “settlement freeze” under the Roadmap, which is repeatedly proposed as a condition for resumption of final status negotiations.

Part 6

ARAB REFUGEES AND THE “RIGHT OF RETURN”

Extracts from Relevant Instruments

A central reason for the failure of the intermittent final status negotiations commencing at Camp David II in July 2000 was a Palestinian insistence that Israel should recognise that the Arab refugees of 1947-1948 and their descendants have a “right of return” into Israel. As at the date of writing this remains a central Palestinian demand.

Estimates of the number of refugees who left their homes in Israel in 1947-1948 vary from 419,000, calculated on the basis of numbers before and after the exodus, to 726,000, based on UNRWA relief figures.

As at 1996 UNRWA registered over four and a half million people as Palestinian refugees and their descendants, as follows:

West Bank 1.2m. Gaza 880,000 Jordan 1.8m. 
Lebanon 372,700 Syria 352,100

Many of the refugees face great hardship, and their situation has been a matter of humanitarian concern for over half a century. Obviously repatriation into Israel of a large and hostile population is not a realistic proposition. However the question is whether international law places Israel under any legal obligation to accept such a right of return.

Extracts from the relevant international instruments, with notes, appear below.

CONVENTION RELATING TO THE STATUS OF REFUGEES, 1951

The Convention defines the term “refugee” and prescribes the rights granted to refugees in general under international law.

Article 1. – Definition of the term “refugee”

A. For the purposes of the present Convention, the term “refugee” shall apply to any person who:
(2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it…
[Note: This definition assumes a factual situation which is fundamentally different from that of those Palestinians who actively seek to return to the country of their former residence.]
C. This Convention shall cease to apply to any person falling under the terms of section A if:
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; …
[Note: This excludes those Palestinians who have taken Jordanian citizenship.]
D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance…
[Note: This excludes Palestinians registered with UNRWA.]

Article 33. – Prohibition of expulsion or return (“refoulement”)

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
[Note: This is the critical right created by the Convention. It is relevant only to any Palestinian who might seek protection against being returned to Israel or the Territories.
Conversely, the Convention does not include any right to compel the former country of residence to accept repatriation.]

THE TEN-POINT PROGRAM 1974 Approved By The Palestine National Council At The 12th Session, 8th June 1974

This represented the official Palestinian view that the right of return is a national rather than a humanitarian refugee issue.

1. The assertion of the PLO position regarding Resolution 242 is that it obliterates the patriotic and national rights of our people and deals with our people’s cause as a refugee problem.  Therefore, dealing with this resolution on this basis is rejected at any level of Arab and international dealings including the Geneva conference.

2. The PLO will struggle by every means, the foremost of which is armed struggle, to liberate Palestinian land and to establish the people’s national, independent and fighting authority on every part of Palestinian land to be liberated.  This requires more changes in the balance of power in favour of our people and their struggle.

3. The PLO will struggle against any plan for the establishment of a Palestinian entity the price of which is recognition, conciliation, secure borders, renunciation of the national right, and our people’s deprivation of their right to return and the right to determine their fate on the national soil…
UNITED NATIONS GENERAL ASSEMBLY RESOLUTION 194 (III)
11 December 1948

UNGA Resolution 194 is usually cited as the basis for the current claim to a right of return.
The General Assembly,

Having considered further the situation in Palestine…

• Resolves that the refugees wishing to return to their homes and live at peace with their neighbours 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 which, under principles of international law or in equity, should be made good by the Governments or authorities responsible;

12. Instructs the Conciliation Commission to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations;
Notes:

1. The General Assembly has, of course, no power under the Charter to create binding rules of law or to make any binding judicial determination.

In fact G.A. Resolution 194 consisted of some 15 clauses, making various recommendations aimed at the peaceful conciliation of the war that was still in progress. These included procedures for the establishment of a new Conciliation Commission, and placing Jerusalem, and also Nazareth, under UN control with guaranteed freedom of access. None of these recommendations eventuated.

In this context it will be seen that Clause 11 of Resolution 194 uses the word “should”, the language of recommendation, and that it does not purport to enunciate principles of law. This is consistent with a resolution which was not intended as a law-making exercise, but rather as an attempt to provide a formula for the peaceful settlement of hostilities that were still continuing at the time.

2. Most significantly, clause 11 was conditioned on a desire to “live in peace with their neighbours” by those who wish to return, a clearly unrealistic prospect.

3. The resolution also calls for compensation “by the governments or authorities responsible”, leaving that issue to be determined according to law. In this regard it is notable that the ultimate cause of the Arab exodus was the war which began with the armed attacks on the Jewish population following the Partition Resolution of November 1947, and continued with the Arab invasion of March 1948. In effect, without the war there would have been no significant exodus.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (1966), entered into force Mar. 23, 1976.

Article 12.4 of the ICCPR is occasionally claimed as a basis for a right of return.

Article 12 
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.
The key word in sub-clause 4 is “arbitrarily”, which implies that a state is entitled to exercise its discretion to refuse entry, provided that it specifies reasonable grounds which are generally applicable.
The phrase “his own country”, clearly refers to citizenship, since any alternative construction of the Covenant protecting, say, an automatic claim of right of entry by descent, would not accord with international practice.

CHRONOLOGY WITH DOCUMENTARY EXTRACTS

The outline below summarises those historical events which are relevant to the legal conclusions reached in the text.

c.1900 BCE      The era of the Biblical patriarchs.

70 CE             Romans destroy the Jewish Temple in Jerusalem.
Traditional date for the commencement of the modern Jewish dispersion.

638-1099        Palestine part of the Arab Caliphates. Arabic language and Islamic religion                          introduced.

1099-1291        Crusader Kingdom of Jerusalem.

1516-1917     Palestine divided between adjacent provinces of the Turkish Ottoman Empire.

1917           The Balfour Declaration – “the establishment in Palestine of a national home                         for the Jewish people”.

1922-1948      The British Mandate – granted by the League of Nations on the basis of the                          Balfour declaration.

1947 United Nations General Assembly “recommends” partition of mandated Palestine into a Jewish state and an Arab state, with an internationalised Jerusalem. The Partition Resolution is rejected by the Arab states and the proposed Palestinian state and the international regime in Jerusalem are not established.

1948 Britain relinquishes its Mandate in Palestine.

Israel declares its independence.

Israel is invaded by the armies of Egypt, Trans-Jordan, Syria, Iraq and Saudi Arabia and irregular forces from Lebanon and Sudan.

1949 The truce which ends hostilities is followed by the Rhodes Armistice Agreements which . The “West Bank” and east Jerusalem are held by Jordan.

The Jordanian-Israeli General Armistice Agreement, 1949, provides:

Article I

2. No aggressive action by the armed forces – land, sea, or air – of either Party shall be undertaken, planned, or threatened against the people or the armed forces of the other

Article II

2. No provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations.

1950 Trans-Jordan annexes the “West Bank” and East Jerusalem, and changes its name to “The Hashemite Kingdom of Jordan”. This annexation is recognised only by Britain and Pakistan, and not by the Arab League.

1967, May-June Egypt blockades the Gulf of Akaba. The forces of Egypt, Syria and Jordan mass on Israel’s borders with the declared intention of invading. Jordan places its forces under joint command with Egypt and declines Israel’s request for non-belligerence conveyed by the UN.

President Gamal Abdul Nasser of Egypt declares to the Egyptian parliament:

The problem before the Arab countries is not whether the port of Eilat should be blockaded or how to blockade it – but how totally to exterminate the state of Israel for all time.

In the ensuing war Israel takes possession of the Sinai, the Gaza strip, the West Bank, East Jerusalem and the Golan. Israel annexes east Jerusalem, but not the remaining territories.

In Resolution 242 the Security Council “affirms” principles which should apply in the establishment of a just and lasting peace.

1967, Sept. The Arab League conference at Khartoum rejects a call for negotiations: “No recognition. No peace. No negotiation.”
1967, November UN Security Council Resolution 242, calls for

(i) Withdrawal of Israeli 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;

In negotiating the terms of the resolution it is agreed that the word “the” should be omitted before the word “territories” having regard to the requirement for “secure” boundaries.

However the resolution is accepted by Jordan and Egypt only on the basis that “territories” means “all the territories”, and that any settlement should be “subject to the right of the Palestinians to continue their struggle for the liberation of the whole of Palestine”. The resolution is rejected by Syria and the PLO.
1979 Following Egyptian President Anwar Sadat’s historic visit to Jerusalem in 1977 and the Camp David Accords, the peace treaty with Egypt sets Israel’s southern boundary, “without prejudice to the issue of the Gaza Strip”.
1993 The Oslo Accords provide for the establishment of an interim Palestinian self-governing authority, and a timetable for the redeployment of Israeli forces in the Territories and the negotiation of a final status agreement.
1994 The peace treaty with Jordan implies the renunciation of any Jordanian claim to sovereignty over the West Bank or east Jerusalem, and sets Israel’s eastern boundary at the Jordan river, “without prejudice to the status of any territories that came under Israeli military control in 1967”.
1995 The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (the“Oslo II” Agreement) becomes the currently binding agreement defining the interim power-sharing arrangement in the Territories.

2000 Final Status negotiations at Camp David II and Taba fail, and violence follows. However the interim Oslo agreement remains in force and intermittent final status negotiations continue unsuccessfully until 2014.
2012 The UN General Assembly
Decides to accord to Palestine non-member observer State status in the United Nations, and
3. Expresses the hope that the Security Council will consider favourably the application submitted on 23 September 2011 by the State of Palestine for admission to full membership in the United Nations;
This occurs in the absence of any final status agreement between Israel and the Palestinians for security, borders, full recognition etc.

2015 The Palestinian Authority seeks admission to the International Criminal Court and other international bodies as a state party on the same basis.

MAPS
The British Mandate, 1920-1948

The British Mandate 1920 – 1948

Source: Website of the Israel Ministry of Foreign Affairs

The above territory was held by Britain under the Mandate agreed upon at the Conference of San Remo in 1920 and formally granted by the League of Nations in 1922. The Mandate incorporated the provisions of the Balfour Declaration, “the establishment in Palestine of a national home for the Jewish people.”

The Trans-Jordan region was separated in 1921, and became an independent Kingdom in 1946. The Golan was ceded to the French Mandate of Syria in 1923.

The UN Partition Plan, 1947

Source: Website of the Israel Ministry of Foreign Affairs

The Partition Resolution was rejected by the Palestinian Arabs, who refused to establish a Palestinian Arab state alongside Israel. Hostilities commenced in 1947, and the neighbouring Arab states invaded in 1948. As a result no Palestinian state was established, and there was no international regime in Jerusalem.

Armistice lines 1949-1967

Source : Website of the Israel Ministry of Foreign Affairs

The above demarcation lines were fixed by the Rhodes Armistice Agreements. Article V.2 of the Agreement with Egypt (in similar terms to the other Agreements), provided:

“The Armistice Demarcation Line is not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question.”

Ceasefire Lines, 1967-1982

Source: Website of the Israel Ministry of Foreign Affairs

These are the cease-fire lines at the end of the “Six Day War” of June 1967. That war followed the removal of UN forces from the Sinai at Egypt’s demand, Egypt’s blockade of the Straits of Tiran and the massing of Egyptian, Syrian and Jordanian forces on the borders under joint command with the declared aim of destroying Israel.

Areas under Israel’s Jurisdiction 1982-1993

Source: Website of the Israel ministry of Foreign Affairs

These boundaries followed the final implementation of the 1979 Egypt-Israel Peace Treaty in 1982. The demarcation lines of 1949 are not shown, as they were no longer legally applicable after the collapse of the 1949 Armistice agreements. However those lines were treated as an informal “green line”.

East Jerusalem was formally annexed and Israeli law was applied in the Golan. Otherwise land beyond the green line was governed by Israel as “the Territories”, pending the negotiation of “secure and recognized boundaries” under UN Resolution 242.

The Interim Agreement under the Oslo Accords, 1995

Source: Howard M. Sachar, A History of Israel

Under Clause 1 of Article XIII of the Interim Agreement, known as “Oslo II”, the Palestinian Authority has full jurisdiction in Area A, which comprises the main population centres.

Under Clause 2(a) Israeli forces are re-deployed out of Area B, but retain “overriding responsibility for security” to protect Israelis and confront terrorism.

Under Article XI the PA exercises jurisdiction in Area C in matters not related to land or security.

Between 1995 and 2000 land was progressively transferred by negotiation from Areas B
and C to Areas A and B respectively.

IAN LACEY, a former student of Professor Stone, is a lawyer in private practice, and the author of a number of short historical works. He has given evidence on some of the issues considered in this booklet to the Australian Parliament’s Joint Standing Committee on Foreign Affairs, Defence and Trade.