Disputing Occupation: Israel's Borders in International Law

Disputing Occupation: Israel's Borders in International Law
 
The Legal Boundaries of Israel in International Law
Anthony D'Amato
Leighton Professor of Law
Northwestern University School of Law
This is an essay on the legal boundaries of the State of Israel. It is based entirely on my understanding of international law. I have no first-hand experience of the Middle East, and I speak entirely from law books and the documentary record. I am not a Jew. I am not an Arab. In trying to assess my internal biases, I must disclose that I feel a huge debt to the cultural and intellectual enrichment flowing to me from the contributions of Jews: in Broadway musicals (my especial passion), movies, theatre, law, and the philosophy of science. I have also been a steadfast supporter of the State of Israel as it was established, and under the boundaries it was given, on May 15, 1948. 
1. Palestine was a Mandate under Article 22 of the League of Nations Covenant; in our parlance, a trust. The beneficiaries were the people residing in Palestine. The Mandatory Power (trustee) was Great Britain. Palestine was defined in Article 22 as one of those Mandates that was “provisionally” recognized as an independent nation but nevertheless needed on its road to statehood the “administrative advice and assistance” of a Mandatory Power. 
2. The League of Nations was dissolved in 1946. Its duties regarding Mandates were assumed by the new United Nations that had been established in 1945. The Palestinian Mandate, of course, remained intact, just as a trust remains intact even though the supervising judge or even the trustee may change. 
3. Great Britain informed the UN of its intention to relinquish its trusteeship. By then a great deal of common law regarding Mandates had developed through the years of the League of Nations. Under that law, Great Britain could not simply abandon its responsibilities to the people of Palestine. It could only relinquish its trusteeship responsibilities if it left the people of Palestine in a viable self-governing position. 
4. In consultation with the Trusteeship Council of the United Nations, Great Britain argued that it could not leave Palestine as a unitary self-governing state, but it could relinquish its trusteeship if the territory were divided into two states, a Jewish State and an Arab State. The question then turned to the allocation of Palestinian land between the two new entities. Great Britain argued that the division should not reflect the actual numbers of Jews and Palestinians living in the territory because the Jews, as an ethnic/religious entity, had a right to invite the surviving victims of the Holocaust to come and live in the new Jewish State. As a result, the proposed “partition plan” would give substantially more territory to the Jewish State than was warranted by the number of Jews living in Palestine. (I might add that I have always believed that the British decision was both morally and legally justified.) 
5. On November 29, 1947, the General Assembly adopted the key "partition" resolution, Resolution 181, ratifying the British proposals. It also provided for an independent international mixed status for the city of Palestine. In my opinion, this Resolution constitutes the first, last, and only legally authorized demarkation of the Israeli-Palestine borders. It was legally authoritative not because it took the form of a UN Resolution, but solely because the UN Resolution itself served as a ratification of the British proposal to divide the Mandate and leave its governance to the people. In other words, the alpha and omega of the legal power resided in Great Britain as the trustee and not in the United Nations. As trustee, it had the power to partition the territory if and only if that was the best way to provide for its future self-government. The General Assembly did not derive its legal powers directly from the Charter of the UN, but rather as surrogate for the League of Nations as it devolved its powers of mandate supervision to the UN and, through the UN, to the General Assembly itself. Legal title to the land was not conferrred by Resolution 181 alone but rather by Great Britain's acceptance of the terms of Resolution 181. The State of Israel owes its entire legal existence to the proper exercise by Great Britain of its League of Nations' Mandatory Power over the territory of Palestine. It owes nothing to the United Nations and, by the same token, cannot claim any additional rights from the United Nations. Instead, as soon as Resolution 181 was passed (and of course Great Britain voted in its favor), the legal borders between Israel and Palestine were forever fixed. Those borders henceforth could only be changed by one of two processes: first, explicit agreement between Israel and the authorized representatives of Palestine, and second, in the few cases of limited disputed areas where the verbal description contained in Resolution 181 was ambiguous in terms of existing maps or surveys, by international arbitration. The Security Council had and has no power to change international borders. 
6. Although Israel proclaimed itself as a state within six months of Resolution 181, the Palestinians - for convoluted internal reasons plus the land-grabbing ambitions of surrounding Arab states - did not seriously entertain the idea of a State of Palestine for almost another forty years. In any event, as is well known, neighboring Arab states, proclaiming that the United Nations had sold out the Palestinians, attacked Israel. To the world’s astonishment, Israel not only prevailed in the war, but beat back the Arab invaders and in the process more than doubled the previously partitioned territory of Israel. Israel then ousted the Palestinians who were living in the conquered area, and they have ever since been remitted to conditions of squalor in refugee camps that dot the Middle East. 
7. The six-day war of 1967 further increased the size of Israel at the expense of the Palestinians. In the direct aftermath of the war, the Security Council of the United Nations, exercising its Chapter 7 powers under the UN Charter, passed Resolution 242 calling for the withdrawal of Israeli forces “from territories of recent conflict” and “achieving a just settlement of the refugee problem.” Israel and the U.S. interpreted the Resolution’s call for "withdrawal from territories," and not "the" territories, as a less than complete withdrawal because the word “the” was not mentioned. The mild joke in circulation at the time was that anyone opposed to the U.S.-Israeli interpretation was "anti-semantic". Israel took the position that it was therefore not legally required to withdraw from the West Bank and the Gaza Strip that it had just conquered, and indeed that it could erect Israeli settlements in those territories. 
8. But semantics aside, in my view the Security Council simply does not have the power to take land from A and give it to B, irrespective of its undoubted legal power in the event of a threat or breach of the peace to restore international peace and security. The sanctity of international borders is a principle of international law that antedates the Charter of the United Nations; in fact it goes back five thousand years. No smaller nation would have supported the UN Charter at the San Francisco Conference in 1945 if the draft Charter had given to the five permanent menbers of the Security Council - the United States, Great Britain, France, Soviet Union, and China - the legal power to change international frontiers. After all, the five permanent members at the time had been wartime allies, and in concert they could reshape the world at will if they had been given such an unprecedented power. Morever, there is nothing in the Charter of the United Nations that even remotely hints of a power or entitlement in the Security Council to change international borders. Even Resolution 242 only calls for a withdrawal of forces, and makes no mention of a permanent change in boundaries. As far as the Israeli settlements are concerned, they are clearly illegal; an occupying power has no right to de facto annexation of portions of the territory by population transfers. 
9. Overshadowing the arguments in Paragraph 8 above is the undeniable fact that the Kellogg-Briand Peace Pact of 1928, as definitively glossed by the International Tribunal at Nuremberg in 1948, has abolished forever the idea of acquisition of territory by military conquest. No matter who was the aggressor, international borders cannot change by the process of war. Resort to war is itself illegal, and while self-defense is of course legal, the self-defense cannot go so far as to constitute a new war of aggression all its own. And if it does, the land taken may at best be temporarily occupied, but cannot be annexed. Thus after all the wars, the bloodshed, aggressions and counter-aggressions, acts of terror, reprisals, and attendant UN resolutions, nothing has changed the legal situation as it existed after Resolution 181 in 1947. The legal boundaries of Israel and Palestine remain today exactly as they were delimited in Resolution 181. 
COMMENT: I find it remarkable that the recent Saudi proposal - to normalize relations with Israel in return for its withdrawal to pre-1967 boundaries - has not been accepted with enthusiasm by the Israeli government. After all, it would legally transfer to Israel - if my preceding analysis of the background international law is correct - more than double the land allocated by the Partition Resolution of 1947. It would also bring peace to these troubled historic lands. But it appears that Prime Minister Sharon’s mood regarding the Palestinians is not “what have you done for me?” but rather “what have you done for me lately?” His apparent inability to take a longer-term moral and legal perspective on the situation is deeply troubling. I fear for the continued viability of the Israelis, entrapped as they are as a sliver of territory in a vast Islamic ocean with their enemies’ access to “suitcase” nuclear bombs increasing daily. But apart from what Sharon may be thinking, it seems to me that his strategic goals are inconsistent. He of course wants, and is absolutely entitled to have, the physical security of the Israeli people. But he also wants their ethnic/religious identity to be preserved, irrespective of their individual marriage choices. These two goals clash with each other when the question is raised of the right of return of the Palestinian refugees. If Palestine were to become a State, and if Arafat would have his way (as opposed to the Islamic extremists in Palestine), the refugees would come back in a tidal wave. This would, in Sharon’s view, endanger Israeli identity and uniqueness. So it seems that Sharon must be committed both to avoiding peace and avoiding a settlement that would allow the Palestinians to return. Rhetoric aside, what he appears to want, unfortunately, is the peace process and not peace itself. 
Anthony D'Amato is the Leighton Professor of Law at Northwestern University School of Law, where he teaches courses in international law, international human rights, analytic jurisprudence, and justice. Professor D'Amato was the first American lawyer to argue (and win) a case before the European Court of Human Rights in Strasbourg, and he has litigated a number of human rights cases around the world. He is the author of over 20 books and over 110 articles.