INTERNATIONAL
LAW
AND
AND
THE
ARAB-ISRAEL
CONFLICT
CONFLICT
Extracts from
"Israel and Palestine - Assault on the Law of
Nations"
by Julius Stone
Second Edition
with
additional material and
commentary updated to 2003
commentary updated to 2003
CONTENTS
The
Legal Status of the Territories Sovereignty in Jerusalem
The Legality of the
Settlements
The
Principle of Self-determination The Oslo Accords and the Roadmap
The Right of Return
Appendix: Chronology and
Maps
Editor: Ian Lacey
2
Jirlac Pty Limited
PO Box 3072
Bellevue Hill
NSW,Australia
NSW,
© Ian Lacey 2003
First edition 1990
Second Edition 2003
National Library of Australia
Cataloguing-in-Publication data
Stone, Julius, 1907-1985.
International Law and the Arab-Israel conflict:
extracts from Israel and Palestine
Assault on the
Law of Nations by Professor Julius Stone.
Law of Nations by Professor Julius Stone.
2nd ed.
ISBN 0 9751073 0
5
1. Jewish-Arab relations 1949-. 2. Israel -
International status. 3. Palestine - International
status. I. Lacey, Ian. II.
Stone, Julius, 1907-1985.
Israel and Palestine ,
assault on the law of
nations. III. Title.
nations. III. Title.
Includes additional material and commentary
updated to 2003.
updated to 2003.
341.29095694
Printed by Dashing
3
INTERNATIONAL
LAW
AND THE ARAB-ISRAEL
CONFLICT
AND THE ARAB-ISRAEL
CONFLICT
Extracts from "Israel and Palestine - Assault on the Law of
Nations" by Julius Stone
Nations" by Julius Stone
Editor: Ian Lacey, B.A., LL.B.
The late Professor Julius
Stone was recognised as one of the twentieth century's leading
authorities on the Law of Nations.Israel and Palestine , which
appeared in 1980,
presented 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 in this second
edition are extracts from the subsequent international documents, and updated
commentary.
authorities on the Law of Nations.
presented 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 in this second
edition 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 Oslo Accords and the Roadmap The Right of Return
Chronology and Maps
Jirlac Publications
4
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 international law.
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.
Jurisprudence and International Law at the Hastings College of Law,
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.
5
CONTENTS
Preface to the 2003
Edition 1
Part 1. The Legal Status of the Territories 2
Part 2. Sovereignty in Jerusalem 5
Part 3. The Geneva Conventions and the Legality
of
the Settlements 9
Part 4. The Principle of Self-Determination 11
Part 5. The Legal Effect of the Peace Process 14
Part 6. Arab Refugees and the Right of Return 21
APPENDIX
Chronology 24
Maps
1. British Mandate
1920-1948 28
2. UN Partition Plan 1947 29
3. Armistice Lines 1949-1967 30
4. Ceasefire Lines 1967-1982 31
5. Areas under Israel s Jurisdiction
1982-1993 32
6. Interim Agreement under the Oslo Accords 1995 33
6
PREFACE TO THE 2003 EDITION
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 therefore appears in a climate
in which legal assertions are once again a central part of the political discourse, 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
in 1967.
A new section has been
added which deals with the effect on the legal status of the Territories of the
Oslo Accords, the Israel-Jordan Peace Treaty and the Roadmap , in the form of documentary
extracts.
There is also a further section comprising extracts
from the international instruments relating
to the revived Palestinian claim to a
right of return .
The writer is grateful for
the suggestions of David D. Knoll, author of The
Impact of Security Concerns upon International Economic Law and Peter J. Wertheim, author of Unlawful 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 charts no course
for the future. However it is hoped that this summary will contribute to a more
general understanding of the basic
issues.
Ian Lacey
7
Part 1
THE LEGAL STATUS OF THE TERRITORIES
Julius Stone examines the principles governing
legal title to the Territories known as the Gaza
Strip and the West Bank
, which are part of the territory which
came into Israel
s possession during the war of 1967. In his analysis Stone draws upon the writings of Professor Stephen
Schwebel, the former Chief Judge of the
International Court of Justice.
Since Stone wrote, the legal status of the
Territories has been affected by the
agreements implementing the Oslo Accords of 1993, which provide for a sharing
of governmental powers in the Territories with the Palestinian Authority, with
specified security powers reserved toIsrael (See Part 5). However those
agreements implementing the Oslo Accords of 1993, which provide for a sharing
of governmental powers in the Territories with the Palestinian Authority, with
specified security powers reserved to
agreements are on an interim basis, pending
and subject to the negotiation of a
permanent status agreement , and they leave the underlying legal title intact.
permanent status agreement , and they leave the underlying legal title intact.
Also the peace treaty of 1994 now sets the
international boundary between Israel and Jordan 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 asIsrael is entitled to remain in control of
the territory involved pending negotiation of a treaty of peace.
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
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, the latter in those words.
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
Council after respective wars of those years, expressed this requirement for
settlement by negotiations between the parties, the latter in those words.
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,
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
invasion of
8
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 ius she 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, sinceIsrael entered them lawfully in self-defence.
International law forbids acquisition by unlawful force, but not where, as in the
case ofIsrael '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
borders is entirely lawful, since
International law forbids acquisition by unlawful force, but not where, as in the
case of
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 theWest
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.
is under no obligation to hand back automatically the
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 theWest
Bank , the legal
standing ofIsrael 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
other state is a sovereign reversioner entitled to re-enter the
standing of
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
9
sovereignty . Since title to territory is thus
based on a claim not of absolute but
only of relative validity, the result seems decisive inEast 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
only of relative validity, the result seems decisive in
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 enteredU.S.
What Weight to Conquest? published in 1970, before he entered
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 :
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.
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.
Note:
The issues discussed in this section have
continuing relevance in the context of
current assertions that Israeli presence in the Territories constitutes an illegal
occupation . Such assertions ignore both Israel s underlying right to lawful
possession of the Territories as outlined by Stone, and the specific rights reserved to
Israel in the interim power-sharing agreements under the Oslo Accords, as extracted
in Part 5.
current assertions that Israeli presence in the Territories constitutes an illegal
occupation . Such assertions ignore both Israel s underlying right to lawful
possession of the Territories as outlined by Stone, and the specific rights reserved to
Israel in the interim power-sharing agreements under the Oslo Accords, as extracted
in 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 ofGermany after two world wars, as a protection against any
repeated aggression, is a classic example of the operation of the customary law.
lawful possession of territory taken in self-defence from a defeated aggressor. The
dismemberment of
repeated aggression, is a classic example of the operation of the customary law.
The legal principle is reflected in Article
75 of the Vienna Convention on the Law of
Treaties, which declares that the provisions of the Convention governing the validity
Treaties, which declares that the provisions of the Convention governing the validity
10
of treaties are are without prejudice to any obligation which may arise for an aggressor
State in consequence of measures taken
by the victim of the aggression in lawful
self-defence.
In the case of the Territories the relevant
historical background includes the Arab
invasion ofIsrael in 1948, continuing armed incursions by irregular forces
after the
armistice agreements of 1949, and the naval blockade and the massing of the armed
forces ofEgypt , Jordan , Syria and Iraq in preparation for a further invasion in 1967.
As President Gamal Abdel Nasser declared to the Egyptian parliament at the time:
invasion of
armistice agreements of 1949, and the naval blockade and the massing of the armed
forces of
As President Gamal Abdel Nasser declared to the Egyptian parliament at the time:
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
It is thus the historical context itself which
makes it inconceivable that the Israeli
presence in the Territories could be characterized as illegal . If this were so, then
presence in the Territories could be characterized as illegal . If this were so, then
without any peace agreement, security guarantees or border adjustments. As Stone
points out, this would then negate the whole basis for the negotiation of a peaceful
settlement with secure and recognized boundaries as contemplated by UNSC
Resolution 242.
11
Part 2
SOVEREIGNTY IN JERUSALEM
The Partition Plan of 1947 envisaged an
international Jerusalem ,
separated
from bothIsrael 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; andJordan claimed sovereignty.
In 1967, afterJordan launched an attack on West Jerusalem ,
the whole of Jerusalem
came under Israeli rule; andIsrael 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
from both
Islam in the old city) came into Jordanian hands; and
In 1967, after
came under Israeli rule; and
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 and at Taba in 2000. 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, asIsrael 's Declaration of Independence expressed it, the
General Assembly resolution was a recognition of the natural and historic right of the
Jewish people inPalestine . 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
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
General Assembly resolution was a recognition of the natural and historic right of the
Jewish people in
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
12
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
separatum proposal by E. Lauterpacht in his monographJerusalem and the Holy
Places:
separatum proposal by E. Lauterpacht in his monograph
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.
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 ofJerusalem 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 inIsrael 's favour by virtue
serious questions about the legal status of
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
13
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 wasJerusalem , 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 thanIsrael could have sovereign title? The consequence
of this could be to make the legal status ofJerusalem that of subjection to Israel
sovereignty.
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
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
of this could be to make the legal status of
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 overJerusalem 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?
sovereignty over
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 towardsIsrael 's
position, not only because of the historic centrality ofJerusalem 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.
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
position, not only because of the historic centrality of
years, but also because in modern times Jews have always exceeded Arabs in
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.
14
Part 3
THE GENEVA CONVENTIONS AND THE LEGALITY OF
THE SETTLEMENTS
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
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.
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, ofAugust 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."
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
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
[Note: By the Peace Treaty of 1994 Jordan relinquished any claim to such
sovereignty, and the argument which follows therefore applies a fortiori.]
sovereignty, and the argument which follows therefore applies a fortiori.]
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
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 ofEurope 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
heinous practice of the Nazi regime during the Nazi occupation of
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
15
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.
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
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 ofIsrael
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 territories judenrein, has now come to mean that Judea
and Samaria the West Bank must be made judenrein and must be so maintained, if
necessary by the use of force by the government of Israel against its own inhabitants.
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
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 territories judenrein, has now come to mean that Judea
and Samaria the West Bank must be made judenrein and must be so maintained, if
necessary by the use of force by the government of Israel against its own inhabitants.
16
Part 4
THE PRINCIPLE OF
SELF-DETERMINATION
It is sometimes asserted that the principle of
self-determination creates a legal
obligation forIsrael to give back the Territories to the Palestinians. Here
Stone
examines the applicability of the doctrine of self-determination to the conflict.
obligation for
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
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.
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
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 fromPalestine 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
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
Roman, Arab, and other conquerors, continued to live on for centuries throughout the
others were compelled to move to other parts of the world where too often, as in
17
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 thatPalestine
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 inPalestine
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
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
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 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
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 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.
Note:
Stone s characterization of the doctrine of self-determination as
a precept of policy, or politics or of justice has since 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 naturally been careful not to confer territorial rights on the basis of self-determination in
cases where a sovereign state is in
lawful possession of the relevant territory.
In the
East Timor Case (1995), for example, the Court refused to consider a
claim based
on self-determination, since
this would require
a determination that Indonesia s entry into and continued presence in the territory was
unlawful, and Indonesia had not submitted to the Court s jurisdiction.
Stone s observations on the competing Jewish
and Palestinian claims of self-
determination in respect of the whole of historical Palestine were, of course, made at
a time when the phrase the inalienable rights of the Palestinian people was still a
coded reference to the projected destruction of Israel, and before the Oslo Accords
determination in respect of the whole of historical Palestine were, of course, made at
a time when the phrase the inalienable rights of the Palestinian people was still a
coded reference to the projected destruction of Israel, and before the Oslo Accords
18
incorporated the first Palestinian acceptance
of the concept of compromise by partition.
As an example of the way in which the principles of pan-Arab national selfdetermination then applied to Israel , 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.
The critical question at the time of writing
is therefore whether the legal framework of a peace process
based on historic compromise can survive the breakdown of the permanent status negotiations at Camp David II and
Taba, the ensuing violent conflict,
and the widespread revival of pan-Arab
and Islamic ideologies which reject such
compromise.
19
Part
5
THE LEGAL EFFECT OF THE
PEACE PROCESS
Extracts from Documents 1993-2003 with Notes
DECLARATION OF PRINCIPLES ON INTERIM SELFGOVERNMENT ARRANGEMENTS
The
Oslo Accords (the DOP ) contemplated the negotiation of 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 within the Territories out of populated areas,
on the terms which were negotiated in the later agreements extracted below.
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 within the Territories out of populated areas,
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
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.
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
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
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
theWest Bank of the Jordan river .
The definition of the border is therefore
the
20
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 betweenIsrael
and Jordan ,
without prejudice to the status
of any territories that came under Israeli military government control in 1967
international boundary between
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 THEGAZA
STRIP, Washington , D.C. , September 28, 1995
BANK AND THE
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 2003 it 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 .
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
Significantly for determining the current status of the
Territories, the Agreement is described as an
Interim Agreement . It is expressed to be for a term not exceeding five years, and it contains a provision
preserving existing rights.
Articles X and 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
currentMiddle East
peace process is, among other things, to establish a Palestinian
Interim Self-Government Authority for the Palestinian people in theWest
Bank
current
Interim Self-Government Authority for the Palestinian people in the
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
21
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 as specified below:
will be negotiated in the permanent status negotiations, will come under the
jurisdiction of the Palestinian Council in a phased manner as specified below:
a. Land in populated areas
(Areas A and B) 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.
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.
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
in Annex 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,
in Annex 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,
22
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.
ARTICLE XIII
Security
l. The Council will, upon
completion of the redeployment of Israeli military forces in each
district assume the powers and
responsibilities for internal security and public order in Area A in that district.
2. a. There will be a complete redeployment of Israeli
military forces from Area B.
Israel will transfer to the Council and the Council will assume
responsibility for
public order for Palestinians.Israel shall have the overriding responsibility for
security for the purpose of protecting Israelis and confronting the threat of terrorism.
public order for Palestinians.
security for the purpose of protecting Israelis and confronting the threat of terrorism.
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.
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
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 XXXI
Final Clauses
5. Permanent status
negotiations will commence as soon as possible, but not later
thanMay
4, 1996 , between the Parties. It is understood that
these negotiations shall
cover remaining issues, including:Jerusalem , refugees,
settlements, security
than
cover remaining issues, including:
23
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
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
THE ROADMAP 30 April 2003
The Roadmap is not embodied in any
instrument signed or formally ratified by either party. Its terms are set out
in a press statement issued by the US Department of State on 30 April 2003 .
On 25 May 2003 the Israeli cabinet passed a resolution by 12 votes to 7,
with 4
abstentions, agreeing to accept the steps set out in the roadmap . That agreement
abstentions, agreeing to accept the steps set out in the roadmap . That agreement
followed 14
reservations conveyed to the US government, and was made on the basis of a US commitment to
fully and seriously address Israel s comments to the roadmap
during the implementation stage.
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 withIsrael
and its other neighbours. The settlement will resolve the Israel-
Palestinian conflict, and end the occupation that began in 1967, based on the
independent, democratic, and viable Palestinian state living side by side in peace and
security with
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
24
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
Phase
II: Transition June2003-December2003
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
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
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
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
25
The reference to the Arab Initiative adopted in Beirut is to the Beirut
Declaration of28 March 2002 . That
Declaration called for
complete
Declaration of
withdrawal from the occupied Arab territories,
including the Syrian Golan
Heights, to the4 June 1967
line , a solution to the problem of Palestinian
Heights, to the
refugees
in accordance with UNGA Resolution 194 and a Palestinian State
with
East Jerusalem as its capital. It
also emphasise[d] the distinction between international terrorism and the peoples'
legitimate right to resist foreign occupation
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.]
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.]
In this context, if the Roadmap were to be
regarded as creating international
obligations analogous to treaty obligations, then Article 21 of theVienna
obligations analogous to treaty obligations, then Article 21 of the
Convention on the Law of Treaties would be relevant. This
provides:
1. A reservation established with regard to
another party modifies for the reserving
State in its
relations
with that other party the provisions of the treaty to which the reservation
relates to the extent of
the reservation
3.
When a State objecting to a reservation has not opposed the entry into force of
the treaty between itself and the reserving State, the provisions to which the
reservation relates do not apply as between the two States to the extent of the reservation.
The result would then be that the Roadmap
would be binding only as modified by the reservations. Indeed subsequent
Israeli statements have re-iterated the government
s commitment to the map on that basis.
In the absence of
formal documentation, however, it appears that the Roadmap should
be characterized as a guide
for the implementation of
the Oslo agreements, rather than as a modifying agreement.
26
Part 6
ARAB REFUGEES AND
THE RIGHT OF RETURN
Extracts from Relevant Instruments
A central reason for the failure of the final
status negotiations at Camp David II in
July 2000 and at Taba in January 2001 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.
July 2000 and at Taba in January 2001 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:
Lebanon 372,700 Syria 352,100
Some of the refugees still face hardship as a result of the
refusal of their host nations
to grant them citizenship or equal economic rights. 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.
to grant them citizenship or equal economic rights. 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
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
27
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 of a different character to 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
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
28
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.
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
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
11.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;
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;
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.
binding rules of law or to make any binding judicial determination.
In
fact 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
progress. These included procedures for the establishment of a new Conciliation
29
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
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.
their neighbours by those who wish to return.
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 Arab rejection of the Partition Resolution of November 1947, and
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 Arab rejection of the Partition Resolution of November 1947, and
continued with the invasion of March 1948. In
effect, without that 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
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 universally applicable.
The phrase
his own country , clearly refers to citizenship, since any alternative construction
of the Covenant protecting, say, a universal claim of right of entry by descent, would not accord with international
practice.
30
APPENDIX
CHRONOLOGY
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.
c.1000 BCE The Kingdoms of David and Solomon
70 CE Roman destruction of the Temple in Jerusalem - the
traditional date for
the beginning of the
Dispersion - ends Jewish sovereignty, although a Jewish presence remains.
638-1099 Palestine part of the Arabian Empire. Arabic language and Islamic
religion introduced.
1099-1291 Crusader Kingdom of Jerusalem .
1291-1516 Egyptian Mamluk
rule.
1516-1917 Palestine part
of the Turkish Empire.
1917 The Balfour Declaration the establishment in Palestine of a national
home for the Jewish people
.
1920-1948 The British
Mandate.
1947 The United Nations,
by General Assembly
Resolution 181
recommends to the United Kingdom , as the mandatory Power for
Arab state, a Jewish state
and an internationalised Jerusalem .
1948 Britain relinquishes its Mandate in Palestine.
31
Israel declares its
independence. The Partition Resolution is rejected by the
Arab states and the proposed Palestinian state and the international regime in Jerusalem are not established.
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
Armistice Agreements
which establish
military demarcation lines .
Article II of the
agreement with Trans-Jordan provides
1.
The principle that no military or political advantage should be gained under
the truce ordered by the
Security Council is recognized;
2.
It is also recognized that 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 of the Jordan river and East
1967 The forces of Egypt, Syria and Jordan mass on Israel s
borders, and
Egypt blockades the Gulf
of Akaba. On 25 May President Abdel Nasser announces 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.
Jordan places its forces
under joint command with Egypt and declines Israel
s request for non-belligerence as conveyed by UNTSO.
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, including
should apply in the establishment of a just and lasting peace, including
(i)
Withdrawal of Israeli armed forces from territories occupied in the recent
conflict;
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;
32
[and] the necessity for
achieving a just settlement of the refugee problem
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.
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 .
Strip .
1993 The Oslo Accords provide
for the establishment
of an interim
Palestinian self-governing authority, a
timetable for the redeployment of Israeli
forces within the Territories and the negotiation of a permanent status agreement.
1994 The peace treaty with Jordan implies the renunciation of
any Jordanian
claim of sovereignty over
the West Bank or east Jerusalem , and sets Israel s eastern boundary,
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 Permanent Status negotiations at Camp David II and Taba
fail, and
violence follows. However
the interim provisions comprised in the Oslo
agreements remain in force.
2003 The Roadmap provides
a performance-based timetable
for
implementation of the Oslo agreements, and foreshadows the creation of a
Palestinian state in the context of a peaceful settlement.
33
MAPS
The British Mandate, 1920-1948
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 inPalestine of a national home for
the
Jewish people.
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
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 in exchange for the Metulla region.
34
The UN Partition Plan, 1947
Following the British relinquishment of the
Mandate in 1948, Israel declared its independence in accordance with the
Partition resolution.
The Resolution was rejected by the Palestinian
Arabs, and they 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.
35
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.
36
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 invading
Israel.
37
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 armistice agreements. However those lines were treated as an informal green
line .
1982. The demarcation lines of 1949 are not shown, as they were no longer legally applicable after
the collapse of the 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.
38
The Interim Agreement under the Oslo Accords, 1995
Source: Yediot Ahronot
Under Clause 1 of Article XIII of the Interim
Agreement, 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.
39
40
JULIUS STONE (1907 - 1985)
The late Professor Julius Stone was recognised as one of
the twentieth century's
leading authorities on the Law of Nations. His 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 is intended to
provide a short outline of the main points in the form of extracts from the original
work.
in 1980, represents a detailed analysis of the central principles of international law
governing the issues raised by the Arab-Israel conflict. This summary is intended to
provide a short outline of the main points in the form of extracts from the original
work.
Also included in this 2003
edition are extracts from the subsequent international documents, and updated commentary.
IAN LACEY, a
former student of Professor Stone, is an Australian lawyer and
historical writer. He has
given evidence on the issues considered in this booklet to the
Australian Parliament s Joint Standing Committee on Foreign Affairs, Defence and
Trade.
Australian Parliament s Joint Standing Committee on Foreign Affairs, Defence and
Trade.
Jirlac Publications ISBN
0-9751073-0-5
41