International Law Matters - Part II, The Middle East Crisis

International Law Matters
Part II - Middle East Crisis
 William M. Brinton

Even the presence in Israel of Secretary of State Colin Powell has not damped down the bloody violence. A suicide bomber killed herself and about eight others in Jerusalem on April 11. Arafat has not yet condemned this horror as demanded. In Israel the violence continues principally in the West Bank. Those following events in the Middle East might wish to note Prime Minister Sharon's apparent attempt to regain control of the West Bank without including either Jericho or Bethlehem. Conveying a reasonable portion of the West Bank to the Palestinian Authority might be enough to solve an almost insoluble problem. Even this birthplace of Jesus is still the subject of military violence. Palestinians have sought sanctuary in the Church of the Nativity and they may still be overrun. Pro and anti-Israeli demonstrators have demanded possession of Bethlehem, while the Arab world seethes with anger in Lebanon, Syria, Jordan, and Egypt. Israel has signed treaties of peace with both Egypt (1979) and Jordan (1994). The Arab world sees the West Bank Gaza and East Jerusalem as illegally occupied territories from which Israel must withdraw. Egypt and Jordan, however, are responsible for shaping the boundaries within Palestine by war beginning with the War of Independence in 1948. The Golan Heights are a separate, but related problem.
Most people will recall that the Saudi proposal of March, 2002 offered recognition of Israel in exchange for its withdrawal from all territories occupied by Israel. These, says Crown Prince Abdullah, include the West Bank, Gaza, the Golan Heights and East Jerusalem. This proposal died a natural death, but it further obfuscated the linguistic problems commonly used in negotiations when they occur. "Occupied" is a word that should never be used to describe the legal status of, for example, the West Bank.
Section 42 of the Hague Convention of 1907 states in pertinent part: "Territory is considered occupied when it is actually placed under the authority of the hostile army…." This sentence alone is not enough. When the General Assembly adopted Resolution 181 (Partition of Palestine)it requested that the Security Council "to determine as a threat to the peace, breach of the peace or of aggression…any attempt to alter by force the settlement envisaged by this resolution" With knowledge of this clause, the Arab states chose aggression; they chose war. In passing, one should read of steps leading up the establishment of an International Criminal Court by the United Nations. It goes into force on July, 2002. This court now has almost universal jurisdiction to try the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. This last crime has not yet been fully defined. The concept of such a court is that those committing such crimes be held accountable for their acts.
Section 43 of the Hague Convention goes on to state in part: "The authority of the legitimate power having in fact passed into the hands of the occupant, the latter …and so on." It might be simpler to use "belligerent" as having the same meaning as "hostile" in Section 42. Not until Section 44 do we get to use of the word 'belligerent" but even this word is not used to describe the status of land. Only by describing how land was as actually acquired do we get a better definition .Article 51 of the Charter allows states attacked to defend themselves against armed attack. Jordan, acquired the West Bank unlawfully, namely its aggression of 1948 when Jordan was one of those states that attacked Israel in violation of Article 2 (4) of the United Nations Charter-no force or threat of force to acquire territory. Consequently, one absolutely must describe Jordan as a belligerent occupant. The Armistice Agreements of 1949 confirmed this status They left Jordan in unlawful possession and control of the West Bank. In 1951, Jordan announced its unlawful annexation of the West Bank, so it remained a belligerent occupant for eighteen years until 1967. On June 5 of that year, Israel launched a pre-emptive strike against Egypt. The ensuing Six Day War ended with Israel in possession and control of the West Bank and Gaza.
Israel did not thereby inherit the belligerent occupant status held by Jordan and Egypt. Arabs are trying to stand international law on its head with this ludicrous claim. It completely ignores the reality of what occurred. Israel is in control of land it acquired by defensive conquest. Despite serious attempts to label Israel as the aggressor, including efforts by the Soviet Union, all such attempts were decisively defeated. Now, some thirty-five years after the Six-Day War, Israel is still in lawful control of both Gaza and the West Bank subject to execution of a treaty of peace. In the meantime, Israel has withdrawn from the Sinai, while Egypt has withdrawn from Gaza. And Israel has executed treaties with first Egypt (1979) and Jordan (1994). In 1988, Jordan's King Hussein announced his "disengagement" from any interest in the West Bank. Accordingly, with the possible exception of East Jerusalem, Israel has no land from which it must withdraw in accordance with either Resolution 242 or by principles of customary international law. Then, in 1973, Egypt and Syria launched another armed attack against Israel, the so-called October War. Had the United States withheld essential weapons shipped to Israel on an emergency basis, the outcome might have been a defeat for Israel. This possibility haunted President Richard Nixon who was weakened by the Watergate scandals. Efforts to disengage from the war took several years to negotiate in a time spanning the presidencies of Nixon, Gerald Ford, and Jimmy Carter. It was Carter who persuaded Anwar Sadat to go to Jerusalem and sign a peace treaty with Israel's Prime Minister Menachem Begin. In 1979 such a treaty was actually signed at Camp David. By its terms, Israel withdrew from the Sinai and Egypt withdrew from the Gaza District.
Here in the United States, President George Bush has been subjected to an increasing level of criticism about his role in the Middle East. His Rose Garden address to the nation did little to quiet critics who were quick to respond. They didn't like the demand that Israel withdraw from the territories without delay since it would leave Israel with indefensible borders. while at the same time demanding that Yasser Arafat stop the terrorism by suicide bombers. Arsfat finally condemned the suicide bombing of April 12 in Jerusalem and did so in Arabic, as Powell demanded. Bush mentioned the Mitchell Plan which calls on Israel to stop settlement construction. Opponents of new construction argue that Article 49 of the Fourth Geneva Convention of 1949 makes these new settlements illegal under the last sentence of Article 49. It reads: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." Ruling that settlements are illegal is neither correct nor reasonable. The language of the Mandate for Palestine granted to Great Britain in 1922 by the League of Nations expressly adopts the Balfour Declaration of 1917 (establishment in Palestine of a national home for the Jews) in Article 2 of the mandate itself. In Article 6, the "The Administration of Palestine….shall facilitate Jewish immigration under suitable conditions and shall encourage..…close settlement by Jews on the land…" Accordingly, no part of Palestine is occupied territory and close settlement on the land is encouraged. Additionally, the Fourth Geneva Convention of 1949 does not apply within Israel. The Convention has never been incorporated into the internal law of Israel. This requires lagislation of the Knesset. See The Affo Judgment at 29 International Legal Materials 139 (1990) This 83-page opinion of the Supreme Court of Israel Sitting as The High Court of Justice decided several issues. The principal issue was its decision that three Palestinians convicted for terrorist violence might be properly deported. In deciding this issue, the court had necessarily construed Article 49 of the Fourth Geneva Convention of 1949, not once but several times. It was not customary international law and could, therefore be rejected without further cause. In other words, the 1949 Convention had no application to the proceedings before the court. The holding of this court is entirely consistent with practice in the United States. See Missouri v. Holland Supreme Court of the United States (1920). The same practice appears in the United Kingdom. There, Parliament must ratify a convention. Otherwise, the Crown could legislate, a procedure rejected centuries ago. In 1907, heads of state and representatives of both monarchies and democracies adopted the Hague Convention of 1907 which defined "occupied territory". However, the defintion did not apply to the situation existing in the aftermath of the War of Independence of 1948-49. See Articles 43 and 44 of the Hague Convention. of 1907. The State of Israel was created on May 14, 1948 and its boundaries were those created by the Partition Resolution adopted by the General Assembly of the United Nations in 1947. Six Arab states launched their attack against the State of Israel on May 15, 1948. The fighting ended with Armistice Agreements signed in 1949. Temporarily fixing the boundaries of the State of Israel and leaving the Partition Resolution in shreds with no further attempt to reactivate it by either Arab or Jewish forces.
The substantive validity of the Mandate for Palestine is hardly a matter for discussion. As far back as 1924, the Permanent Court of International Justice interpreted and applied that mandate thus acknowledging its validity. See the Mavrommatis Palestine Concessions Case, [1924] P.C.I.J. Ser.A, No. 2. A mandate is an international agreement having the character of a treaty. This status was carried over into the Charter of the United Nations through Article 80. This article preserved the rights of states under existing international instruments such as a mandate. See International Status of German South West Africa [1950] I.C.J. 128, 134. As the same court said on another occasion, Article 80 presupposes that the rights of states and peoples shall not lapse automatically on the dissolution of the League of Nations.
While the Mandate for Palestine may have lapsed in 1947 when the General Assembly adopted the Partition Resolution, its obligations continued. See International Status of German South West Africa, International Court of Justice[1971]. In the meantime, Israel's Prime Minister Arial Sharon has declared war on the Palestinians who have developed a new weapon, the suicide bomber. Incidentally, the Israeli authorities bulldoze homes used to plan a suicide by a holy martyr using a belt loaded with explosives. The deaths occurring are traceable to the family home. The would-be martytr's family may be charged with the crime of being an accessory before the fact An accessory before the fact is someone who helped the criminal before the crime was committed. In familiar common law rules, members of his family may also be charged as accessories before the fact, where it can be shown that the family helped the bomber before he left on his or her deadly errand. The murderer is dead having killed himself. Crime has consequences. Demolishing the bomber's home seems a reasonable remedy. It may not please everyone, but it does save co-conspirators from death or imprisonment.
Protests in the Arab world have become increasingly angry ever since Saudi Arabia's Crown Prince Abdullah made a peace proposal in Beirut, Lebanon addressing the twenty-two members of the Arab League. As of April 2 riots had spread to Cairo, Egypt, Amman, Jordan and Tripoli, Libya. In both Cairo and Amman, the protesters are mostly furious students diverted by Egypt's police using water cannons and tear gas. Egypt's President Hosni Mubarak declined to join the heads of state in Beirut. In Jordan more students threatened political stability of King Abdullah II's reign. Even Iraq's Saddam Hussein called on the oil-producing states to stop selling oil to the West. Were Saudi Arabia to impose an oil embargo on shipments to the United States, the effect would take time to develop. Its royal family might suffer as the result of reducing oil revenue by roughly 17 percent. In 1974 the Arab world imposed an embargo which made everyone involved so rich that Saudi Arabia alone expanded its efforts to Islamacise all of the Middle East from Afghanistan all around the crescent of the Muslim world. As of the end of March, the Saudis had other fish to fry in Beirut. Its reigning leader, Crown Prince Abdullah, offered Israel a peace proposal; withdraw from all occupied territories, the West Bank, Gaza, the Golan Heights, and East Jerusalem. Israel could then establish normal relations with individual members of the Arab League.
It was clear from the outset that Israel could not accept this deceptive offer. A quick glance at a map shows the resulting State of Palestine would leave the State of Israel in an indefensible position. People following the worsening conflict need to be reminded that one of the benefits of Security Council Resolution 242 guarantees that Israel is entitled to "live in peace within secure and recognized boundaries. "The other requirement of Resolution 242 is that Israel "withdraw from territories occupied in the recent conflict." Taken as a whole together with Security Council Resolution 338 as a companion resolution, 242 and 338 require the establishment of secure and recognized boundaries in which all the states of the area can live in political independence and peace, free from threats or acts of force. This combination of principles must be accompanied by the termination of all claims and states of belligerency, and respect for the sovereignty, territorial integrity, and political independence of all states in the area. This formulation of a possible settlement completely ignores a single word essential to peace, reciprocity. The Arab world has consistently refused to recognize Israel with any acknowledgement of its existence as a state. Crown Prince Abdullah should return to the drawing board and agree to lean on Arafat to end terrorism.
In passing, the role of the United Nations must be taken into account. At the end of World War I in 1918, Palestine was a dependency of the Ottoman Empire which had ruled it since 1453. During the war, the Allied Powers (Great Britain, France, and the United States) made certain arrangements regarding the future of Palestine in the event they were victorious. Arab leaders were invited to London to discuss possibilities with the Secretary of State for the Colonies. The result was a White Paper of 1922 which Arabs rejected. However, it did require adoption of the Balfour Declaration which was inserted in the language of the Mandate for Palestine. Over the years to 1938 discontent simmered in the Palestinian world, so Great Britain, the mandatory power held another series of meetings with both Arab and Jewish participation. The result was a British White Paper of November 9, 1938. In it, the Secretary of State for the Colonies offered a surprise. He wrote that: "The objective of His Majesty's Government is the establishment within ten years (from 1938) of an independent state….It should be a state in which the two peoples in Palestine, Arabs and Jews share authority in government…" The Arabs rejected this possibility because of the uncertainty of war. Jews were enraged. On the same date, November 9, Hitler's Germany erupted in Kristallnacht. During this savage pogrom Nazi hooligans burned Jewish synagogues, homes and places of business in an orgy of destruction. Less than ten months later, Germany was at war with most of Western Europe. World War II intervened except that the Palestinians had rejected the independent state proposal, and it was never taken up by the new United Nations which was brought into the postwar world in 1945. At this time, the world was horrified to discover that during this war, Hitler's Nazis had slaughtered some six million Jews in concentration camps throughout Germany and Poland during the Holocaust.
The new United Nations succeeded to most if not all obligations of the League of
Nations. Its members were a diverse group including a disproportionate number of Arab countries which dominated proceedings in the General Assembly. Unsurprisingly, the General Assembly after hearings on the fate of Palestine, adopted Resolution 181. This was the so-called Partition Resolution which divided Palestine into two states, one Arab and one Jewish The Arabs rejected this solution and went to war with the nascent State of Israel on May 15, 1948. This was Israel's War of Independence and it ended with Armistice Agreements which fixed the boundaries under control of their respective governments. Thus, Jordan, being one of six Arab aggressor states, wound up as a belligerent occupant of the West Bank in violation of Article 2(4) of the United Nations Charter. Egypt was also an aggressor and wound up as a belligerent occupant of the Gaza District. The other Arab states were Syria, Lebanon, Iraq, and Saudi Arabia. Additionally, Israel saw the 1949 Armistice Agreements as an obligation to effect transition to a permanent peace. Arab governments, however, saw them differently. One consequence of this continuing state of belligerency was the imposition by Egypt of restrictions on passage through the Suez Canal. In fact, the Security Council called on Egypt to terminate these restriction, citing the Constantinople Convention of 1888.The Suez Canal is an international waterway, subject to innocent passage of all. In 1956, Egypt nationalized the Suez Canal while France and Great Britain requested the Security Council to note that this Egyptian action was a threat to the peace. By closing the canal, Egypt effectively blocked it with sunken ships. Egypt continued its belligerency, and the Security Council established the United Nations Emergency Force (UNEF) in 1956. It separated Egyptian forces from those of France, Israel, and Great Britain. Except for frequent fedayeen raids into Israel between 1956 and 1967, there was relative calm. In April and May of 1967, an escalating series of threats from Egypt culminated in the withdrawal of UNEF at the request of Egypt. Egypt's President Gamal Abdel Nasser used incandescent language in threatening Israel on his government's radio. Furthermore, Egypt reimposed the Egyptian blockade against the
Straits of Tiran, an act of war under familiar principles of international law. Egypt's land forces massed in the Sinai, And Israel saw war ahead. On June 5, 1967 Israel launched a pre-emptive air strike and destroyed most of Egypt's aircraft on the ground. Israeli leaders reasoned that their aircraft had to have control of the air, and that this control had to occur immediately or otherwise Israel had to wait until attacked by Egypt and then explain that pre-emption meant self-defense. Despite many efforts to label Israel as the aggressor before the Security Council in the months ahead, all those efforts failed. Egypt was not the only belligerent in 1967.
Syria attacked via the Golan Heights while Jordan had massed its troops on its border with the West Bank. In 1951, Jordan had announced its intention to annex the West Bank, thereby extending the Hashemite Kingdom from its small base in the West Bank. By Decree of Jordan's parliament on April 15, 1951, Jordan announced that the West Bank was annexed, thereby perpetuating its status as a belligerent occupant until 1967. At that time Israeli Defense Forces rolled into the Sinai Desert up to the Suez Canal. The Israelis also took on and defeated the Jordanian armed forces. On June 5 1967 Jordanian armed forces were driven out of the West Bank where they had been belligerent occupants since 1949. On the Golan Heights, the Israeli Defense Forces defeated Syrian armed forces. Today, Lebanese land is used by the terrorist organization Hezbollah to shell Israel settlements in Northern Israel. Syrian President Bashr Assad supports this use of artillery. He learned this art from his father Hafez Assad who killed some 20,000 of his own citizens at Homs in Syria in 1982.
Finally, the casual reader should undertake discovering the public alteration of known facts in memoranda published by the Negotiations Affairs Department of the Palestinian Authority, particularly its section entitled "The Historic Compromise." and following subsections. They appear on the Web site maintained by the Palestinian Authority (PA). With respect to the General Assembly's Partition Resolution 181, the PA's lawyers simply ignore the War of Independence. The PA states: "The Partition Plan, however, never came into effect." This is only because some seven Arab states attacked the nascent State of Israel on May 15, 1948. Then, to establish their good faith, the PA conceded that "The West Bank fell under Jordanian control, and the Gaza Strip fell under Egyptian control."
In the very next paragraph of this entirely fictitious legal tour de force, the PA moved into new and astonishing terrain. "Then," said the PA,"in June 1967, Israel invaded Egypt, Jordan and Syria, ultimately occupying the West Bank (including East Jerusalem) and the Gaza Strip (as well as Egypt's Sinai and Syria's Golan Heights)…." We are left in the dark on another question. Did the PA count as population of Palestine all those scooped up when Jordan unlawfully annexed the West Bank in 1951. It isn't every day that Jordan could add an estimated 250,000 people to its own population and do so with a simple stroke of the pen. This is known as cartographic aggression. Then, the PA argued that Israel had "withdrawn both its armed forces and civilians from the territory it occupied in 1967." However, it failed to note that Israel withdrew entirely from the Sinai whose legitimate sovereign was Anwar Sadat. He was assassinated a few years later because he had decided that peace was important, having signed the Camp David Treaty of Peace with Israel in 1979. Also Egypt had withdrawn from the Gaza Strip in favor of Israel. There are so many more major and minor mistakes or outright lies in this propaganda of the PA that one must question whether all its so-called facts have so diminished its effect that all the rest are suspect.