International Law and the Legality of Jewish Revenant Communities

Stephen M. Schwebel, a Judge of the International Court of Justice since 15 January 1981, was Vice-President of the Court from 1994 to 1997 and served as the President of the Court in the triennium 1997–2000, which marked the busiest docket of 22 new cases in the history of the Court. Judge Schwebel is at present an independent arbitrator and counsel in Washington, DC, and a door tenant of Essex Court Chambers in London.

A former Deputy Legal Adviser of the United States Department of State and Burling Professor of International Law at the School of Advanced International Studies of The John Hopkins University (Washington), Judge Schwebel is the author of three books and some 150 articles on problems of international law and organization.

An long excerpt from:

What Weight to Conquest? AGGRESSION, COMPLIANCE, AND DEVELOPMENT,
Pages 521-526

In his admirable address of December 9, 1969, on the situation in the Middle East, Secretary of State William P. Rogers took two positions of particular international legal interest, one implicit and the other explicit. (1) Secretary Rogers called upon the Arab States and Israel to establish "a state of peace ... instead of the state of belligerency, which has characterized relations for over 20 years." Applying this and other elements of the American approach to the United Arab Republic and Israel, the Secretary of State suggested that, "in the context of peace and agreement [between the UAR and Israel] on specific security safeguards, withdrawal of Israeli forces from Egyptian territory would be required." (2)

Secretary Rogers accordingly inferred that, in the absence of such peace and agreement, withdrawal of Israeli forces from Egyptian territory would not be required. That is to say, he appeared to uphold the legality of continued Israeli occupation of Arab territory pending "the establishment of a state of peace between the parties instead of the state of belligerency." (3) In this Secretary Rogers is on sound ground. That ground may well be based on appreciation of the fact that Israel's action in 1967 was defensive, and on the theory that, since the danger in response to which defensive action was taken remains, occupation - though not annexation - is justified, pending a peace settlement. But Mr. Rogers's conclusion may be simply a pragmatic judg­ment (indeed, certain other Permanent Members of the Security Council, which are not likely to share the foregoing legal perception, are not now pressing for Israeli withdrawal except as an element of a settlement).

More questionable, however, is the Secretary of State's explicit conclusion on a key question of the law and politics of the Middle East dispute: that "any changes in the pre-existing [1949 armistice] lines should not reflect the weight of conquest and should be confined to insubstantial alterations required for mutual security. We do not support expansionism." Secretary Rogers refer­red approvingly in this regard to the Security Council's resolution of November 1967, which,

Emphasizing the inadmissibility of the acquisition of territory by war (4) and the need to work for a just and lasting peace in which every State in the area can live in security,
Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter,
1. Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:
(i) Withdrawal of Israeli armed forces from territories occupied in the recent conflict; (5)
(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; ..." (6)

It is submitted that the Secretary's conclusion is open to question on two grounds: first, that it fails to distinguish between aggressive conquest and defensive conquest; second, that it fails to distinguish between the taking of territory which the prior holder held lawfully and that which it held unlawfully. These contentions share common ground.

As a general principle of international law, as that law has been reformed since the League, particularly by the Charter, it is both vital and correct to say that there shall be no weight to conquest, that the acquisition of territory by war is inadmissible. (7) But that principle must be read in particular cases together with other general principles, among them the still more general principle of which it is an application, namely, that no legal right shall spring from a wrong, and the Charter principle that the Members of the United Nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State. So read, the distinctions between aggressive conquest and defensive conquest, between the taking of territory legally held and the taking of territory illegally held, become no less vital and correct than the central principle itself.

Those distinctions may be summarized as follows: (a) a State acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self ­defense; (b) as a condition of its withdrawal from such territory, that State may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use of force against it of such a nature as to justify exercise of self-defense; (c) where the prior holder of territory had seized that territory unlawfully, the State which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.

The facts of the June 1967 "Six Day War" demonstrate that Israel reacted defensively against the threat and use of force against her by her Arab neighbors. This is indicated by the fact that Israel responded to Egypt's prior closure of the Straits of Tiran, its proclamation of a blockade of the Israeli port of Eilat, and the manifest threat of the UAR's use of force inherent in its massing of troops in Sinai, coupled with its ejection of UNEF. It is indicated by the fact that, upon Israeli responsive action against the UAR, Jordan initiated hostilities against Israel. It is suggested as well by the fact that, despite the most intense efforts by the Arab States and their supporters, led by the Premier of the Soviet Union, to gain condemnation of Israel as an aggressor by the hospitable organs of the United Nations, those efforts were decisively defeated. The conclusion to which these facts lead is that the Israeli conquest of Arab and Arab-held territory was defensive rather than aggressive conquest.

The facts of the 1948 hostilities between the Arab invaders of Palestine and the nascent State of Israel further demonstrate that Egypt's seizure of the Gaza Strip, and Jordan's seizure and subsequent annexation of the West Bank and the old city of Jerusalem, were unlawful. Israel was proclaimed to be an independent State within the boundaries allotted to her by the General Assembly's partition resolution. The Arabs of Palestine and of neighboring Arab States rejected that resolution. But that rejection was no warrant for the invasion by those Arab States of Palestine, whether of territory allotted to Israel, to the projected, stillborn Arab State or to the projected, international­ized city of Jerusalem. It was no warrant for attack by the armed forces of neighboring Arab States upon the Jews of Palestine, whether they resided within or without Israel. But that attack did justify Israeli defensive measures, both within and, as necessary, without the boundaries allotted her by the partition plan (as in the new city of Jerusalem). It follows that the Egyptian occupation of Gaza, and the Jordanian annexation of the West Bank and Jerusalem, could not vest in Egypt and Jordan lawful, indefinite control, whether as occupying Power or sovereign: ex injuria jus non oritur.

If the foregoing conclusions that (a) Israeli action in 1967 was defensive and (b) Arab action in 1948, being aggressive, was inadequate to legalize Egyptian and Jordanian taking of Palestinian territory, are correct, what follows?

It follows that the application of the doctrine of according no weight to conquest requires modification in double measure. In the first place, having regard to the consideration that, as between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively in 1948 and 1967, on the other, Israel has better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt (the UAR indeed has, unlike Jordan, not asserted sovereign title), it follows that modifications of the 1949 armistice lines among those States within former Palestinian territory are lawful (if not necessarily desirable), whether those modifications are, in Secretary Rogers's words, "insubstantial alterations required for mutual security" or more substantial alterations - such as recognition of Israeli sovereignty over the whole of Jerusalem. (8)

In the second place, as regards territory bordering Palestine, and under unquestioned Arab sovereignty in 1949 and thereafter, such as Sinai and the Golan Heights, it follows not that no weight shall be given to conquest, but that such weight shall be given to defensive action as is reasonably required to ensure that such Arab territory will not again be used for aggressive purposes against Israel. For example - and this appears to be envisaged both by the Secretary of State's address and the resolution of the Security Council - free navigation through the Straits of Tiran shall be effectively guaranteed and demilitarized zones shall be established.

The foregoing analysis accords not only with the terms of the United Nations Charter, notably Article 2, paragraph 4, and Article 51, but law and practice as they have developed since the Charter's conclusion. In point of practice, it is instructive to recall that the Republic of Korea and indeed the United Nations itself have given considerable weight to conquest in Korea, to the extent of that substantial territory north of the 38th parallel from which the aggressor was driven and remains excluded - a territory which, if the full will of the United Nations had prevailed, would have been much larger (indeed, perhaps the whole of North Korea).

In point of law, pro­visions of the Vienna Convention on the Law of Treaties are pertinent. Article 52 provides that: "A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations" - a provision which clearly does not debar conclusion of a treaty where force has been applied, as in self-defense, in accordance with the Charter. And Article 75 provides that: "The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State's aggression."

The state of the law has been correctly summarized by Elihu Lauterpacht, who points out that territorial change cannot properly take place as a result of the unlawful use of force. But to omit the word "unlawful" is to change the substantive content of the rule and to turn an important safeguard of legal principle into an aggressor's charter. For if force can never be used to effect lawful territory change, then, if territory has once changed hands as a result of the unlawful use of force, the illegitimacy of the position thus established is sterilized by the prohibition upon the use of force to restore the lawful sovereign. This cannot be regarded as reasonable or correct. (9)

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Notes

First published in American Journal of International Law (1970), 64

(1) The text is published in full in New York Times, December 11, 1969, p. 16.
(2) Ibid.
(3) Ibid
(4) The resolution's use of the word "war" is of interest. The June 1967 hostilities were not marked by a declaration of war. Certain Arab States have regarded themselves at war with Israel - or, at any rate, in a state of belligerency - since 1948, a questionable position under the law of the Charter. In view of the defeat in the United Nations organs of resolutions holding Israel to have been the aggressor in 1967, presumably the use of the word "war" was not meant to indicate that Israel's action was not in exercise of self-defense. It may be added that territory would not in any event be acquired by war, but, if at all, by the force of treaties of peace.
(5) It should be noted that the resolution does not specify "all territories" or "the territories" but "territories." The subparagraph immediately following is, by way of contrast, more comprehensively cast, specifying "all claims or states of belligerency."
(6) Resolution 242 (1967) of November 22, 1967; 62 AJIL 482 (1968). President Johnson, in an address of September 10, 1968, declared:
We are not the ones to say where other nations should draw the lines between them that will assure each the greatest security. It is clear, however, that a return to the situation of June 4, 1967, will not bring peace. There must be secure and there must be recognized borders ...
At the same time, it should be equally clear that boundaries cannot and should not reflect the weight of conquest. Each change must have a reason which each side, in honest negotiation, can accept as part of a just compromise. (59 Department of State Bulletin 348 [1968])
(7) See, however, Kelsen (2nd ed. by Tucker), Principles of International Law (1967), pp. 420-433.
(8) It should be added that the armistice agreements of 1949 expressly preserved the territorial claims of all parties and did not purport to establish definitive boundaries between them.
(9) Elihu Lauterpacht, Jerusalem and the Holy Places, Anglo-Israel Association, Pamphlet No. 19 (1968), p. 52.