Legal Studies Research Paper No. 09/106 October 2009 Julius Stone and the Question of Palestine in International Law Ben Saul
JULIUS STONE & THE QUESTION OF PALESTINE IN INTERNATIONAL LAW
Ben Saul*
Much of legal and political significance has come to pass since Julius Stone wrote on Israel and Palestine between the mid-1940's and the early 1980's, and in some respects the legal situation of which Stone wrote has become unrecognizable. The Palestinian Liberation Organization has recognized Israel’s right to exist and in turn Israel has accepted, in principle, a two-State solution. Israel and Jordan signed a peace agreement and Jordan relinquished its claim to sovereignty over the West Bank, in favor of Palestinian self-determination. The breakthrough of the 1993 Oslo Accord's1 led to the conferral of limited autonomy for Palestinians under a Palestinian Authority, sporadically interrupted by subsequent security concerns. Two intifada's in the Occupied Territories in 1988 and 2000 were matched by Israel’s resort to ‘targeted killings’ and a security barrier in the West Bank. Israel withdrew from southern Lebanon in 2000 and then from Gaza in 2005, although Jewish settlements in the West Bank continue to expand, while Israel maintains a blockade around Gaza and invaded it again in 2008-09. The rise of Hamas and the death of Arafat signaled the waning fortunes of the PLO, while complicating the political situation and hence prospects of any legal solutions.
While the contemporary political landscape has changed considerably, Stone’s legal views on the Israeli-Palestine dispute nonetheless continue to resonate on a number of core legal issues which remain unresolved or controversial: the underlying right of self-determination of peoples in the region; the legality of foreign occupation of territory (and indeed the characterization of territory as occupied); the lawfulness of Israeli settlements in occupied territory; the applicability of the 1949 Geneva Conventions to occupied territory and to the conflict as a whole; the use of force against “terrorists”; and the legal position, rights and prospects of Palestinian refugees. These are some of the issues which Stone wrote about and with which this chapter is concerned.
Any contemporary reappraisal of Stone’s views must be careful to weigh them in the light of the law then in force, and to thus avoid anachronistically overlaying his views with a lens of current jurisprudence. It must also be acknowledged that the facts upon which international law arguments are predicated in the Middle East are, in various senses, political or politicized. The failure to agree on common historical starting points inevitably dogs not only the legal argumentation, but the prospects for a genuine political dialogue and legal settlement.
Stone did not, however, see the conflict as a political question above, beyond or outside the law, as some States unsuccessfully objected in jurisdictional arguments before the International Court of Justice in the 2003 Israeli Wall Advisory Opinion. As that Court observed, the fact that a dispute has political aspects, or is subject to ongoing peace processes and negotiations is not, of itself, sufficient to take a dispute outside the framework of law.2 * Director, Sydney Center for International Law, Faculty of Law, The University of Sydney. 1 Declaration of Principles on Interim Self-Government Arrangements, 13 September 1993 in (1993) 4 European Journal of International Law 572. 2 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ, para 41. 1 Electronic copy available at: http://ssrn.com/abstract=1485056
Stone too framed the issues in Israel/Palestine as deeply entrenched within existing and emerging legal frameworks, which both constrained and enabled political actions and choices. He did not give up on the law, as some are tempted to do when faced with such an intractable, raw and violent dispute; in 1981 he wrote that he was “aware that many people are skeptical, or even cynical about the role of law and lawyers in the settlement of conflicts” but argued that law “may provide some essential guideposts in the process towards peace”.3
Shifting the guideposts is, of course, a lawyerly art as much as a politician’s calling, and Stone consciously and unconsciously played a part in moving them. The ambiguity of some, if not many, of the international legal rules applicable to the Israel/Palestine dispute must be squarely admitted, and forms the context within which Stone applied the law in this area. Indeterminacy is a well known feature of any legal system, but perhaps more so in some areas of international law, where compulsory adjudication is less prevalent. The rarity of binding determinations allows a wider range of possible legal arguments to freely circulate, without authoritative decisions quashing (or at least authoritatively delegitimizing) spurious positions.
Of course, Stone was deeply conscious of the different facets of the problem of ambiguity, as he observed in his seminal work of 1981, Israel and Palestine: Assault on the Law of Nations:
Sometimes… ambiguity of an instrument is a trap set by guile, or a timorous betrayal for the unwary. Sometimes, though more rarely, ambiguity is a mark of limited imagination and limited skill in negotiators. Sometimes, however, ambiguity is not thus dysfunctional to the negotiatory and pacificatory process. For, on issues where the parties’ positions are beset by passionate commitments, or by dire threats to their very existence as states, ambiguity – whether by indeterminacy or double-speaking or self-contradiction or even mere silence – may be a way of building as yet un-resolvable conflicts into a genuine overall plan of rapprochement.4
What is significant here is that, far from simply decrying the absence of legal certainty and predictability, which may often undermine the rule of law, Stone emphasizes the creative possibilities opened up by such ambiguities in the constructive settlement of international disputes. As Stone further wrote:
…ambiguity serves the critical purpose of providing, for parties deeply at variance on basic issues, a framework that can accommodate at present the specific matters on which they can agree, as well as (for the future) the movement of their positions from time to time on the critical matters on which they now differ. Ambiguity of this kind is dynamic. It moves in time between poles of rapprochement and estrangement, of love and hate.5
In this sense, Stone prefigured the approach of other international lawyers such as Rosyaln Higgins, President of the International Court of Justice, who sees international law not as a system of rules but as a body of norms and principles which are part of fluid political processes and ongoing dialogue between various actors in 3 J Stone, Israel and Palestine: Assault on the Law of Nations (John Hopkins University Press, Baltimore and London, 1981), xii. 4 Ibid, xi. 5 Ibid, xi-xii. 2 the international system.6 Rather than insisting on its ‘rule-ishness’, international law becomes a framework for dialogue, for politics, and for resolving difference. So too does Cassese write in the specific context of the Israel/Palestine dispute that ....
Admittedly, the ‘response’ of international law to [such] complex problems… is unsatisfactory. On the other hand, one cannot demand from legal standards more than they can realistically offer: a set of general guidelines, that must be pragmatically and realistically applied by all the parties concerned, taking into account… not only the wishes of the population concerned by also the host of non-legal problems that beset Arab-Israeli relations.7
Despite the strength of Stone’s conviction in the productive application of law to deep political conflict, and the creative possibilities of ambiguity, it is important to keep in mind that destructive ambiguity – or destructive use of ambiguity – is the flipside of constructive ambiguity. This polar trend has become well known in recent years, as when, for instance, a vague chain of Security Council resolutions was reinterpreted in 2003 to justify the use of force against Iraq, 13 years after force was first authorized in the material context of repelling the invasion of Kuwait.
As in that case, or in other recent cases such as the now infamous “torture memos” of US President Bush’s post-2001 administration, there is a real risk that ambiguity encourages a dissipation of the normativity of law into nothingness, rendering the law merely another tool of diplomacy, to be negotiated or bartered away as politics demands. Lawyers too may participate in the dissolution of their own basis of professional authority, when ambiguity comes to serve as an invitation to instrumental lawyering.
Brian Tamanaha, for instance, warns of lawyers (in the domestic American context) who ‘manipulate and stretch law and legal processes to their very outer limits, no matter how far away from or contrary to its underlying spirit’.8 The result is that legal rules become ‘nothing but tools lawyers utilize on behalf of whichever side their represent’,9 taking advantage of ambiguities, technicalities, and loopholes. Such an approach to lawyering detracts from the binding quality of law, and its certainty, stability, and equality. The instrumental view of law as a means to an end undermines both formal and substantive rule of law ideals.10
In his lifetime, Stone’s views on Palestine attracted much controversy precisely because of the perceived instrumentalism of his legal arguments in support of Israel. One review of his book, Israel and Palestine, in the leading American Journal of International Law in 1982 began by stating that:
Readers in search of a balanced treatment of the legal issues in the Middle East will not find it in this book…. Israel’s legal position is impregnable on virtually all issues separating it from its Arab neighbors. Arguments to the contrary are recognized only for their defects.11 6 See R Higgins, Problems and Processes: International Law and How We Use It (Clarendon, Oxford, 2003). 7 A Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press, Cambridge, 1995), 242. 8 B Tamanaha, ‘The Tension Between Legal Instrumentalism and the Rule of Law’ (2006) 33 Syracuse Journal of International Law and Commerce 131, 146. 9 Ibid. 10 Ibid. 11 F Kirgis, Book Review (1982) 76 American Journal of International Law 875. 3
The review goes on to excoriate the book for its polemical tone, and for belittling, distorting and ridiculing the views of his opponents. Another review of the same year, in the Annals of the American Academy, describes the book as a “vicious” and “partisan denunciation” of his opponents, resulting in a “total vindication of Israeli behavior and unqualified advocacy of the legal arguments that Israel advances”.12
One technique used by Stone was to discredit legal arguments favorable to Palestine by attacking General Assembly resolutions which supported those arguments as not legally binding, and moreover as the product of a majoritarian world ganging up on Israel. There was indeed a fertile debate about the legal quality of General Assembly resolutions in the 1960's and 70's, following arguments about “instant custom” arising from the concentration of State practice in resolutions.13
But Stone’s criticisms here often missed the mark, in that resolutions were often relied upon as material evidence reflecting, rather than exclusively constituting, customary law, or being an instant source of law. His approach to resolutions is also highly selective. On one hand, he downplays their significance when they do not suit his purpose, as when the Security Council declared inadmissible Israel’s acquisition of territory by force,14 or in UN calls for partition in 1947 as well as for an international status for Jerusalem. On the other hand, he invokes them when it suits his position, as when resolutions called on the parties to negotiate a solution, thus not predetermining legal title to territory; or implicitly when writing in support of the legal importance of Israel’s 1948 Declaration of Independence, which itself relied on Assembly resolutions as one basis of its authority; or when he relies on the similarly non-binding Balfour Declaration of 1917 as a basis for Israeli statehood.
Legal ambiguity (and the language which creates and allows it) is ultimately set within outermost boundaries of meaning, limits beyond which the elasticity of rules cannot stretch without dissolving rules (or norms or principles) into polemic or pure politics. However wide a discretion, however indeterminate a rule, there are always zones of reasonableness or plausibility, an often wide range of possible arguments, beyond which arguments become fanciful, unreal, contradictory and unsustainable. That zone may be hazy and indistinct, but it is nonetheless material – unless one accepts a radical deconstructionist view that international law is so indeterminate that all legal arguments are possible within it; or alternatively, the view that international law is irremediably flawed in this context because “it encodes power and… enthrones a particular series of Western legal values”.15
Many of Stone’s positions on critical international legal issues in the Israel/Palestine conflict stepped outside even generous zones of plausibility, on the law as it then ambiguously stood. This chapter deals with some of those claims, an enterprise which remains important because his views, as an eminent international jurist, remain influential in some quarters, despite their tenuous nature or dubious provenance. For instance, prominence is still given to Stone’s views on key issues by 12 H Castleberry, Book Review (1982) 462 Annals of the American Academy of Political and Social Science 160. 13 See, e.g., Bin Cheng, ‘Custom: The Future of General State Practice in a Divided World’ in R St J Macdonald and D Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (1983) 513, 532. 14 UN Security Council resolution 242 (1967). 15 J Strawson, ‘Mandate Ways: Self-Determination in Palestine and the “Existing Non-Jewish Communities” in S Silverburg (ed), Palestine and International Law: Essays on Politics and Economics (McFarland and Company, 2002), 251, 253. 4 the Australia/Israel & Jewish Affairs Council,16 which does not place them in the context of competing (indeed prevailing) legal arguments and international opinion.
The purpose of this chapter is to interrogate Stone’s legal positions on the cluster of related issues identified at the outset of this chapter, rather than to seek to explain the impulses underpinning them. Certainly Stone acutely felt that Israel was unfairly victimized in international forums like the General Assembly, which, through the decolonization process, soon became dominated by blocs of newly independent and developing States, many openly hostile towards Israel. Stone accused the UN Committee on the Inalienable Rights of the Palestinian People of sponsoring “partisan theorizing in support of” the Palestinian position,17 and it is true that the Committee has been used as a forum in which to berate Israel, often on rhetorical or ideological grounds, and without grounding in international law arguments. That, of course, is inevitable, given its function as a political body within the United Nations; but abuses of the Committee should equally not be allowed to obscure the genuine contributions it has made to ventilating the complex legal issues involved.
It seems that Stone genuinely felt the need to spring to the defense of a beleaguered Israel and the Jewish people. As early as 1944, in his Open Letter (theatrically entitled “Stand Up and be Counted!”) to the Rt Hon Sir Isaac Isaacs (then aged in his 80's), Stone wrote in response to Isaac’s criticisms of the Zionist project:
I sought in this open letter to consider coldly the heated imputations which Sir Isaac has for some years cast at his fellow-Jews…. If in places I have unwittingly fallen short of coldness, I ask the reader to believe that it is solely because of the grief and indignation of this moment in Jewish history. I mean the grief of the fourth year of Hitler’s massacre of a helpless people…18
That dissipation of coldness manifested itself in considerable heat towards Sir Isaac, as Stone went on to write of his
…indignation that over most of that period Sir Isaac devoted himself, not to constructive thought and action, but to a bitter, unrestrained and misleading campaign against his fellow-Jews in the free countries, a campaign which could not but prejudice the hopes of survival and rehabilitation of Hitler’s victims.19
Stone openly acknowledged his own positionality in live political controversies and the prospects for partisanship which it entailed. Speaking of the Eichmann trial in the District Court of Jerusalem in 1961, which Stone attended, he wrote that: “Anyone, whether Jew or Gentile, knowing even a little of Nazi barbarism, must be emotionally engaged with the prosecution in this trial. But a Jew obviously rather more so.”20 That personal engagement no doubt informed his view that there was nothing unethical about abducting Eichmann from Argentina in order to prosecute him in Israel.21
16 Australia/Israel & Jewish Affairs Council, ‘International Law and the Arab Israeli Conflict’: www.aijac.org.au/?id=resourcedisplay&articleID=2149&_action=showArticleDetails&categoryID=26 5 (accessed 8 January 2008). 17 Stone, Israel and Palestine, above n3, 6. 18 J Stone, Stand Up and be Counted! An Open Letter to the Rt Hon Sir Isaac (Ponsford, Newman & Benson Pty Ltd, Sydney, 1944), preface. 19 Ibid. 20 J Stone, The Eichmann Trial and the Rule of Law (International Commission of Jurists, Sydney, 1961), 1. 21 Ibid, 15. 5
The significance of Stone’s Jewish ness to his legal views on Palestine is a question better left to others, whether biographers or psychologists. But it is clear that existential threats to the survival of the Jewish people weighed heavily on Stone, whether it was the threat of Nazi extermination, or the wars of 1948, 1967 and 1973, where Israel feared that its people would be infamously pushed into the sea. There is no doubt that some of those fears were well founded, not only because of the geographical vulnerability of the sliver of land that is Israel, but also because of the commitment of some extreme groups to accomplish what the Nazis could not. At the same time, casting the Jewish people as the only victims who matter fatally undermines the prospects for a just and equitable application, or creative adaptation, of international law to the Israel/Palestine dispute.
1. The Right of Self-Determination The meta-issue framing the Israel/Palestine dispute as a whole is the principle (or right) of self-determination, and its contested exercise by competing national groups or peoples (Jews and Palestinians) over shared territory. Stone characterized self-determination as potentially existing where a
claimant group constitutes a people or 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 a particular territory, and lacking an independent territorial home in which it may live according to its lights.22
Stone was uncertain whether self-determination ‘is already a doctrine of international law stricto sensu, or… a precept of politics or policy, or of justice, to be considered where appropriate’.23 He nonetheless put aside juris prudential controversy about the legal character of self-determination and, assuming its legal existence, proceeded to analyze the competing self-determination claims in the area.
Stone mounted three key arguments on self-determination as it applied to Israel/Palestine, from the premise that Jews and Arabs (rather than peculiarly Palestinian Arabs) were the relevant national groups which could claim under the principle.24 First, the provision for a Jewish national home in Palestine, as recognized by President Wilson and in the 1917 Balfour Declaration, was the relevant application of the principle of self-determination in the area now recognized as Israel.25 Secondly, Arab self-determination in the region was realized through the creation of Jordan, an essentially “Palestinian” State, in 1949.26
Thirdly, Palestinians were not an identifiable or coherent national group or “people” entitled to self-determination at least until the 1960's.27 Rather, according to Stone, there were only Arabs who lived in Palestine, but not a shared political or cultural community of Palestinians as such, and the PLO itself even sometimes denied the distinctiveness of Palestinians and emphasized pan-Arabism. Any competing, later in time claim to self-determination by the emergent Palestinian people from the 1960's onwards could not be seen to prejudice the stability of existing sovereign territorial 22 Stone, Israel and Palestine, above n3, 10. 23 Ibid, 10. 24 Ibid, 9. 25 Ibid, 13-15. 26 Ibid, 22-25. 27 Ibid, 12. 6 title and boundaries (that is, of the States of Israel and Jordan), pursuant to the accepted principle of uti possidetis.
Stone’s side-stepping of the legal characterization of self-determination is at once too neat and too simple. For whether one sees self-determination as hard law or discretionary politics, policy or justice potentially shapes the manner in which ones applies the concept to the factual situation at hand. Specifically, the identification of the relevant claimant group, the area covered by the claim, the critical date of the claim, and the manner of its execution or implementation may all depend on whether one conceives of self-determination as bounded by rigid or formal legal requirements, or by less stringent thresholds of flexible application.
The application of the principle of self-determination in Israel/Palestine is thus contingent on pinning down its legal significance at a given moment. As a statement of political philosophy, the modern notion of self-determination arose in the latter part of the eighteenth century, referring to a cluster of related ideas connected with revolutionary sentiment, territorial settlement, democratic legitimation, anti-colonialism, and minority rights.28
The principle progressively hardened in the aftermath of the First World War and under the League of Nations mandates. As the ICJ stated in 1950 in the International Status of South West Africa case, the League mandates were created “in the interest of the inhabitants of the territory, and of humanity in general, as an international institution with an international object – a sacred trust of civilization”.29 The ICJ iterated the key governing principles of non-annexation and the well-being and development of peoples not yet able to govern themselves; the “ultimate objective” was the “self-determination and independence of the peoples concerned”.30
Outside the specific League mandates framework, however, the principle tended to remain a selectively applied “policy line” which was subordinate to the overriding legal norms of State sovereignty and territorial integrity.31 It was only after the Second World War that self-determination acquired binding normative force within the framework of the United Nations Charter,32 although the precise contours of the principle remained to be worked out in practice over time.
In this light, Stone’s application of the self-determination principle suffers from a number of defects. He overstates the historical case in favor of Jewish self-determination in the area; he understates that cohesiveness of Palestinians as an identifiable people; he inflates the significance of some sources and minimizes the importance of others; he fixes upon an inadequate temporal dimension to the dispute; and he does not grapple with the modern basis of the Palestinian self-determination claim after the 1967 war.
Stone’s starting point in the 1917 Balfour Declaration is immediately problematic, since one wonders how a unilateral political declaration by the imperial British Government can constitute a relevant legal step in the expression of free political choice by the inhabitants of Palestine – the majority of who were Arabs. At 28 Cassese, above n7, 32. 29 International Status of South West Africa case (1950) ICJ, p 128. 30 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (1971) ICJ Reports at 31. 31 Cassese, above n7, 33. J Weiler, ‘Israel and the Creation of a Palestinian State: The Art of the Impossible and the Possible’ in S Silverburg (ed), Palestine and International Law: Essays on Politics and Economics (McFarland and Company, 2002), 55, 78, also argues that self-determination was not part of positive international law during the League Mandate era and in the lead up to the establishment of Israel. 32 Cassese, ibid, 43. 7 the time, the legitimacy of the Balfour Declaration as an expression of the will of the local population was dubious, given the predominant Arab perception that the Declaration favored Jewish aspirations, compounded by the escalation of Jewish immigration to the region during the 1920's and 30's.
Britain’s withdrawal from its mandate in Palestine disrupted a smooth transition based on the political compromise offered by the United Nations’ Partition Plan of 1947.33 The unilateral declaration of the State of Israel in May 1948 may well be seen as a realization of Jewish self-determination, but that, of course, cannot prejudice the equal right of Palestinians to the same end, arising out of the same League mandate and its sacred trust, and as distinct from the separate creation of Transjordan. The intractable problem, of course, is that two peoples were/are claiming the same territorial space,34 and Stone sought to resolve that tension by excluding the legitimacy of the Palestinian claim altogether. His approach is deeply rooted in Zionist aspirations: as Weiler observes, “[h]historical Zionism also advances a moral justification for establishing a modern State of Israel at the expense of displacing part of the indigenous population”35 and indeed “territorial compromise and recognition of a Palestinian right to self-determination arguably threaten some of the moral foundations of historical Zionism”.36
Palestinian national consciousness was arguably less well developed as a political project than Zionist consciousness in 1948, and in part developed by defining itself in opposition to the Israeli State. The imagining of any national identity is a process of positive and negative construction: particularly in circumstances of tension and violence, a people’s image of itself is often manufactured in opposition to adversarial forces, real or perceived.
But Stone tends to equate a lack of political solidarity or strategic cohesion amongst Palestinians with an absence of the existence of an underlying people, when some degree of political fragmentation and social difference is an inevitable feature of even the most cohesive human group. From the Mandate era, there has been a powerful discursive construction of Jews as an homogenous community and Palestinians as heterogeneous and diffuse.37 Yet, as Weiler notes, “Palestinian nationalism… is characterized by a strong measure of dualism; a dualism of Arab universalism and Palestinian particularism”.38 Multiplicity of identities, and Palestinian affinity with pan-Arabism, does not prejudice their coherence as a discrete “people” entitled to self-determination.
From the First World War onwards, and certainly by 1948, following the numerous eruptions of violence in the inter-war period, there was a (growing) expectation amongst Arabs in the region that they were entitled to their own independent territory and government, in territory in Palestine formerly held as a sacred trust on their behalf.39 The creation of the State of Jordan as a partial exercise of Arab self-determination did not exhaust all Arab self-determination claims in the 33 UN General Assembly resolution 181 (29 November 1947) (33 votes to 13, with 10 abstentions). 34 See Y Dinstein, The Non-Statal International Law (1979), 149. 35 Weiler, above n31, 66. 36 Ibid. Equally, “the traditional Palestinian claim that Jewish ness may have no unique national expression is just as untenable”: infra, 69. 37 See, eg, Strawson, above n1, 252. 38 Weiler, above n31, 70. 39 On the growth of Palestinian Arab political consciousness, see generally Yehoshua Porath, The Palestinian Arab National Movement: Vol I 1918-1929 (1974) and Vol II 1929-1939 (1977); see also Rashid Khalidi, Palestinian Identity: The Construction of Modern National Consciousness (1997); Muhammad Muslih, The Origins of Palestinian Nationalism (1988). 8 area. Arab peoples living outside Jordan could not be expected to uproot themselves in order to relocate toJordan; the self-determination of those Arab peoples cannot be subordinated within the realization of the self-determination of Jordanian Arabs who lived elsewhere.
While Stone was writing on Palestine into the 1980s, he primarily limits the temporal dimension of the self-determination issue to the period between 1917 and 1948, when the Palestinian claim to self-determination in the Occupied Territories arose as part of an ongoing process both prior to and following the 1967 war. Putting to one side the merits of the Jewish claim to self-determination in the territory declared to constitute Israel in 1948 (given the contemporaneous challenge by a parallel Palestinian Arab claim there) – during which time the law was less settled – the most secure basis for the modern Palestinian self-determination claim lies in its challenge to the foreign military occupation of Palestinian territory by Israel during and after the 1967 war.40 That claim is not contingent upon any separate continuing Palestinian claim to the modern sovereign territory of Israel; any such claim is now pragmatically unreal, although the right of return of refugees to Israeli remains alive.
2. Applicability of the 1949 Geneva Conventions to Occupied Territories Like the long held position of the Israeli Government,41 Stone contested the de jure applicability of the 1949 Geneva Conventions to the territories occupied by Israel during the 1967 war (including Gaza and the West Bank). In particular, Stone argued that the formal conditions of application under common article 2 of the four 1949 Geneva Conventions were not met,42 and thus there was not in existence an international armed conflict to which the Geneva Conventions (and particularly the law of occupation) applied. Common article 2 relevantly provides that
… the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Israel became a party to the 1949 Geneva Conventions in July 1951 and Jordan in May 1951. Stone asserted, however, that because Jordan never possessed sovereign title over the West Bank, Israel was not therefore occupying the territory of a High Contracting Party as demanded by common article 2. Stone argued that this was a “technical, though rather decisive, legal point”.43 In 1988, Jordan surrendered its claim to the West Bank (in favor of the Palestinian claim to self-determination),44 seeming to strengthen Stone’s case that sovereignty had not yet been established. Israel continues to dispute the de jure applicability of the 1949 Geneva Conventions, although it applies their humanitarian provisions as a matter of policy.
While Stone claims to be interpreting common article 2 in a technical manner, as if the provision is capable of only one obvious meaning, his construction of the 40 Cassese, above n7, 240. 41 See, e.g., Israeli Attorney-General Meir Shamgar, ‘The Observance of International Law in the Administered Territories’ (1971) 1 Israeli Yearbook of Human Rights 262. 42 Stone, Israel and Palestine, above n3, 177-178. 43 Ibid, 178. 44 Declaration by King Hussein of Jordan (1988) 28 International Legal Materials 1637. 9 provision is neither literal, nor consistent with drafting history or the object and purpose of those treaties. Stone focuses exclusively on the second paragraph of the common article 2 and interprets the reference there to the ‘territory’ of another State as territory over which sovereign legal title is established.
In construing a treaty, international treaty law requires that a provision be interpreted in good faith, in accordance with the ordinary meaning of its terms, in their context and in the light of its object and purpose.45 The preparatory work (travaux preparatoires) or drafting record may be considered where the foregoing interpretive principle leaves the meaning ambiguous or obscure.46 The object and purpose of the 1949 Geneva Conventions is to ensure the widest possible humanitarian protection in armed conflict, and where more than one interpretation is possible, the more restrictive (that is, the less protective) is to be avoided.
Common article 2 contains two disjunctive, not cumulative, elements. Stone’s insistence on the non-applicability of common article 2(2) to the Occupied Territories avoids confronting the problem of the relatively clear application of common article 2(1). The latter applies where ever an armed conflict arises between two State parties 47 – on the facts, as between Israel and Jordan in 1967 – and naturally to any territory which is involved in that conflict. As the International Court of Justice observed in the Israeli Wall Advisory Opinion (2003), ‘[i]f those two conditions are satisfied, the Convention applies, in particular, in any territory occupied in the course of the conflict by one of the contracting parties’.48 That includes territory in relation to which formal legal or sovereign title is unclear or indeterminate. What matters is that one State takes foreign territory by force in circumstances where that territory does not belong to the occupying State. As leading Israeli humanitarian law scholar Yoram Dinstein wrote in 1978, ‘the Fourth Geneva Convention does not make its applicability conditional on recognition of titles’.49 Common article 2(2) is an alternative threshold of application and is therefore not the only part of the article which applies to occupied territory, as suggested by Stone. The second aspect of common article 2 does not
restrict the scope of application of the Convention, as defined by the first paragraph, by excluding there from territories not falling under the sovereignty of one of the contracting parties. It is directed simply to making it clear that, even if occupation effected during the conflict met no armed resistance, the Convention is still applicable.50
Rather, it was intended by the drafters to cover cases of ‘bloodless’ invasion, as when Nazi Germany occupied Bohemia and Moravia in 1939.51 Territory occupied in other ways therefore remains within the protective ambit of common article 2(1).
Even construing common article 2(2) in isolation, there is some doubt about Stone’s interpretation of the provision. One literal reading of common article 2(2) – referring to ‘occupation of the territory of a High Contracting Party’ – might confirm 45 1969 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331), art 31(1). 46 Ibid, art 32(a). 47 Israel Wall Advisory Opinion (2003), above n2, para 95. 48 Ibid. 49 Y Dinstein, ‘The International Law of Belligerent Occupation and Human Rights’ (1978) 8 Israeli Yearbook on Human Rights 104, 107. 50 Israel Wall Advisory Opinion (2003), above n2, para 95. 51 Ibid. 10 Stone’s view that it is limited to foreign sovereign territory, since the phrase ‘territory of’ another State may seem to imply legal title. Equally, however, it could be interpreted to cover any territory which is effectively under the control of a foreign State, but where legal title is not held, since in a sense it would still be the ‘territory of’ that State at the time of control. In light of the ambiguity, the latter interpretation might be preferred since it is consistent with the humanitarian object and purpose of the 1949 Geneva Conventions in extending protection as widely as possible, so that inhabitants of occupied territories are not denied rights due to legal wrangles over where sovereign title to a particular territory lies. As noted above, in any event, the meaning of article 2(2) is not decisive in applying the Conventions to occupied territory under the broader scope of article 2(1).
While Israel and Jordan are no longer at war, and Jordan has renounced its sovereign claim to the West Bank, the legally critical time for triggering the application of common article 2 is the time at which the conflict commenced and the territory was occupied.52 Nothing in the peace agreement between Israel and Jordan purports to cede sovereign title over the West Bank to Israel, and even it were so, there would be serious legal question whether such cession of territory would be lawful in circumstances where the Jordanian sovereign claim itself was in doubt, and where the acquisition by Israel is underpinned by effective conquest, forbidden by the United Nations Charter after 1945.
The applicability of the 1949 Geneva Conventions to the Occupied Territories is also confirmed resolutions of the UN Security Council and General Assembly which were known to Stone.53 While Stone correctly denied the formal legal application of these sources as determinative of the legal questions at issue, the resolutions are persuasive iterations of the legal views of a majority of States. In this regard, it is a principle of treaty interpretation that subsequent practice in the application of a treaty may establish the agreement of the parties on its interpretation,54 and there is very substantial overlap between, for instance, the membership of the General Assembly and the States Parties to the 1949 Geneva Conventions.
3. Legality of Israeli Settlements in Occupied Territory Even if could be established that the 1949 Geneva Conventions did indeed apply to the Occupied Territories, Stone denied that the establishment of Israeli civilian settlements after the 1967 war was internationally unlawful. Article 49(6) of the Fourth Geneva Convention provides that: ‘The occupying Power shall not deport or transfer parts of its own civilian population into territory it occupies.’ An ordinary interpretation of that provision would seem to exclude both coercive (‘deport’) and voluntary or assisted (‘transfer’) movements of Israeli civilians by the Israeli government into occupied territory. As the International Court of Justice stated in its Israel Wall Advisory Opinion (2003), the provision
prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.55
52 Ibid, para 101. 53 UNSC res 237 (1967); 271 (1969); 446 (1979) 54 Vienna Convention on the Law of Treaties, art 31(3)(b). 55 Israel Wall Advisory Opinion (2003), above n2, para 120. 11
Stone’s interpretation of the provision, however, imposed a number of qualifications on its meaning which significantly raised the threshold for breaching it. Looking immediately to the drafting history – despite there being little obvious ambiguity about the provision on its face – Stone placed the provision in the context of
the heinous practice of the Nazi regime during the Nazi occupation of Europe in World War II, of forcibly transporting populations of which it wished to rid itself, into or out of occupied territories for the purpose of liquidating them with minimum disturbance of its metropolitan territory, or to provide slave labor or for other inhumane purposes.56
It was, therefore, principally directed against the Nazis’ ‘genocidal objectives’ in ridding Nazi occupied Europe of Jews and making it “Judenrein”. Purporting to draw on factors flagged in the ICRC Commentaries on the provision, Stone proceeds to impose two additional criteria for breaching the prohibition on a State deporting or transferring its own population into occupied territory: (1) to impair the economic situation or racial integrity of the native population of the occupied territory; or (2) to inhumanly treat its own population.
On the first criterion, Stone asserted that the ‘no serious dilution (much less extinction) of the “separate racial existence” of the native population has either taken place or is in prospect’.57 At the time of writing in 1981, Stone claimed that there were only about 20,000 Israeli settlers in the West Bank, amongst a population of 700,000 Arabs. At that time, the settlements were no where near as large as they had become two decades later, when by 2003 there were almost 400,000 Israeli settlers in the West Bank.58 Perhaps Stone was genuinely unaware that the settlements were designed as part of a purposeful colonization strategy over time, and believed that they would remain limited, static and temporary interventions – despite evidence available to him from at least 1977 onwards 59 that the Israeli Government was committed to the expansion of settlements.60 He indicates, for instance, that some of the settlements were for purposes of military security, and to that extent were not aimed at the civilian colonization of territory. Confronted with the contemporary statistics, however, Stone might have changed his mind about whether the settlements have diluted or impaired the demographic integrity of the local population.
A further limb to Stone’s argument was that the situation of the local inhabitants had dramatically improved, not worsened, since the 1967 occupation.61 This belief may have likewise been modified if Stone had come to see the severe modern impoverishment of Palestinians in the West Bank, as documented by major United Nations agencies and the World Bank in evidence before the ICJ in the Israeli Wall Advisory Opinion. 62
56 Stone, Israel and Palestine, above n3, 178. 57 Ibid, 179. 58 Israel Wall Advisory Opinion (2003), above n2, para 122. 59 Ibid, para 120; see also at that time UNSC resolutions 446 (1979), 452 (1979) and 465 (1980). 60 Even if the settlements are not prohibited by article 49(6), to the extent that the settlements were sponsored by the Israeli government, it is likely that an Occupying Power is not empowered under international humanitarian law to undertake such activities: E Benvenisti, The International Law of Occupation (Princeton University Press, Princeton, 1993), 140-141. 61 Stone, Israel and Palestine, above n3, 179. 62 Israel Wall Advisory Opinion (2003), above n2. 12
On the second stipulated criterion, Stone asserted that there no question of inhumane treatment of Israelis by Israel, such as to qualitatively attract the prohibition on the transfer of one’s own population into occupied territories. Again, Stone viewed this aspect of the prohibition as directed towards protecting minorities from genocide by their own governments, which was not at issue here. Indeed Stone argued that the provision cannot require Israel to forcibly ensure that the West Bank remains Judenrein, despite its ‘millennial association with Jewish life’;63 he thought it ironic that a provision designed in part for the protection of Jews would be used to limited that group’s prospects of flourishing.
Stone’s understandable preoccupation with the background of Nazism clouded his appreciation of the wider objectives served by article 49(6), which is plainly not limited to addressing policies only of the scale or equivalence of Nazi genocide, but is cast as a much wider protective or preventive provision. The law of occupation rests on a bedrock notion of trusteeship, which is why a strict approach is taken by the law to preclude an occupying power from resettling its own civilians in occupied territory, whether overtly, by stealth, or even by failing to control one’s own people from migrating there themselves voluntarily.
Stone’s interpretation of the provision purports to identify textual ambiguity where there is none, and thus resort to the drafting record where it is unnecessary to do so – and in a manner which contradicts the plain textual meaning. Although Stone’s two extra conditions are purportedly based on the historical background mentioned by the ICRC Commentary, the Commentary itself does not propose those criteria as factors to limit or qualify the plain meaning of the provision itself, and the ambiguity identified by the Commentary concerns the relationship between article 49(6) and the rest of article 49 (which addresses forced transfers out of occupied territories). Indeed the last sentence of the Commentary suggests that article 49(6) is conceptually distinguishable from the rest of the provision mainly because it is not limited to the ‘compulsory’ movement of civilians, and thus also covers civilians who voluntarily migrate into occupied territories and the trustee-occupier fails to act.
4. Legality of the Post-1967 Occupation Stone responded to assertions that Israel was an “illegal” occupier of Palestinian territories by arguing that Israel was lawfully in control of territory acquired in self-defense against external aggression.64 Such possession would remain lawful until a negotiated peace settlement occurred, as intimated by relevant United Nations resolutions.65 Stone further argued that Jordan did not enjoy legal title to the West Bank since it had illegally acquired that territory by force in the 1948 war. Since title to territory is relative and no other State enjoyed a better title, so Israel arguably acquired a superior absolute title over time.
In assessing these arguments concerning legality, the starting point must be to separate the jus ad bellum (the law on the resort to force) from the jus in bello (the law of war or humanitarian law). The humanitarian law of occupation of the 1907 Hague Regulations and the 1949 Geneva Conventions applies to an Occupying Power regardless of whether the occupation of territory was achieved defensively or aggressively (that is, lawfully or unlawfully respectively) under the jus ad bellum.
63 Stone, Israel and Palestine, above n3, 180. 64 Ibid, 51. 65 Ibid. 13
First, Stone is correct that territory temporarily acquired in self-defense cannot be immediately categorized as an unlawful under the jus ad bellum. Here much depends on whether one views the 1967 war, which created the occupation, as defensive or aggressive. Stone strongly argues that it was defensive, against an imminent Arab invasion; critics would submit that it was pre-emptive, committed prior to the commission of any armed attack on Israel, and thus unlawful under a strict (if unreal) interpretation of the law on the use of force under article 51 of the UN Charter (which permits self-defense only if an armed attack “occurs”).
It does not follow, however, that sovereign title to territory can be acquired on the basis of a lawful occupation of territory in self-defense. The occupation of territory in armed conflict has never been regarded as affecting underlying sovereign title to territory, and continuing to occupy territory cannot alone perfect legal title to it. Where the underlying legal title to territory is unclear, title either by prescription – though long established possession of the territory – or through some more tenuous principle of effectiveness (by establishing control over res nullius or territory characterized by a vacuum of sovereignty) cannot arise where such possession is continuously contested by other title claimants.66
In the case of the West Bank after 1967, title was initially contested by Jordan and later by a non-State entity, the Palestinian people, in the exercise of their internationally recognized right of self-determination, and which arguably grounds a superior claim to territorial title than an Israeli claim based on foreign occupation. A concomitant of the prohibition on the use of force in the UN Charter after 1945 was a prohibition on the acquisition of title to territory by force, even where force is used in self-defense resulting in occupation. As the International Court of Justice rightly implied in the Israel Wall Advisory Opinion, that the underlying historical sovereign title to the Occupied Territories is unclear is not to the point; regardless of who held historical title (which was unclear given the intervention of the League of Nations mandate), its current status remains one of occupation, not Israeli sovereignty.
Secondly, there is an ongoing legal debate about whether it is possible to speak of an illegal occupation under humanitarian law. Certainly particular acts by an Occupying Power may be unlawful under the law of occupation. But otherwise the existence of an occupation is a question of fact; that is, whether a State places foreign territory under its actual control.67 If so, an occupation is established; there is no room in that analysis under humanitarian law to consider whether such control is lawful or unlawful as such. The law of occupation does not expressly provide any time limit beyond which a continuing occupation becomes unlawful, nor does it provide any criteria requiring the termination of actual control and occupation.
Even so, on a progressive view of the law of occupation, a protracted occupation may become unlawful over time if the Occupying Power can be seen as having failed to make good faith efforts towards terminating its occupation and securing the resumption of normalcy. As Benvenisti writes:
an occupation regime that refuses to earnestly contribute to efforts to reach a peaceful solution should be considered illegal…. no such claim of illegality would be proper 66 Case Concerning Kasikili/Sedudu Island (Namibia v Botswana) (Judgment), ICJ, 13 December 1999, paras 90-95 (where that condition was agreed by the parties, though not in contention in the case). 67 1907 Hague Convention IV Respecting the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910, in (1908) 2 American Journal of International Law Supplement 90), annexed Regulations Respecting the Laws and Customs of War on Land, art 42. 14 as long as the occupant’s conditions for peaceful settlement of the conflict are motivated by reasonable security interests.68
Occupation is a temporary, exceptional state, in which sovereignty over territory does not pass to the Occupying Power. It is therefore implicit in the law that the Occupying Power, holding territory as trustee for the benefit of the local inhabitants, should take reasonable steps to discharge its occupation and establish the conditions for a peaceful return of governance to sovereign authorities. That implication is further supported by the principle of self-determination, which is not displaced by the law of occupation but persists concurrently with it. A protracted, unreasonable, bad faith denial of the realization of self-determination by an Occupying Power arguably aids in transforming an initially lawful occupation into an unlawful one over time.
5. Use of Force against Armed Bands Israeli incursions into the territories of neighboring States have been a periodic feature of Israeli counter-terrorism policy over many years. Stone argued that Israel’s cross-border pursuit of armed bands (such as terrorist organizations) based in neighboring territories is an exercise of the customary law of self-defence.69 Stone also saw such use of force as being compatible with the prohibition on the use of force in article 2(4) of the UN Charter, which only bans force “against the territorial integrity or political independence” of a State – neither of which was prejudiced by surgical incursions against non-State terrorist actors.70
Such an expansive, militant interpretation of the law on the use of force is not easily supported by the weight of State practice after 1945 and certainly prior to the terrorist attacks of 11 September 2001, which may have signaled something of a shift in practice (although it is arguably too soon to tell). The bulk of practice and opinion after 1945 confirmed that self-defense against armed bands on foreign territory is only permissible where the conduct of those bands is both serious enough to constitute the gravity of “armed attack” (of a magnitude such as committed by State forces) and attributable to a State under the law of State responsibility.71 Such an approach is consistent with the shift towards collective security after the Second World War, designed to minimize the risks associated with unilateral resort to force by States.
Where States such as Israel and apartheid South Africa resorted to such purportedly defensive uses of force after 1945, they were generally condemned by the overwhelming majority of States, who viewed such actions more in the nature of unlawful punitive reprisals and as unlawful interventions in the sovereign territories of other States.72 Nor did the South African justification for anti-terrorism force on the basis of hot pursuit, extrapolated from the law of the sea doctrine, find general acceptance.
Contrary to Stone’s view that the prohibition on the use of force in the Charter only applies to military force “against the territorial integrity or political independence” of a State, and not to limited defensive actions against terrorist groups, 68 Benefits, above n60, 146. 69 Stone, Israel and Palestine, above n3, 45-50. 70 Ibid, 50. 71 See Case Concerning Military And Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) (1986) ICJ Reports 14. 72 See C Gray, International Law and the Use of Force (2nd ed, Oxford University Press, Oxford, 2004), chapter 6 (‘The use of force against terrorism’). 15 the majority of States, and the drafters of the Charter (including Australia), saw that clause not as a limitation on or qualification of the prohibition on force, but as a means of strengthening and extending it, to ensure any use of force, even against political independence, would be covered.73
After September 11, however, there has been increasing sympathy for Stone’s position, given calls by the United States and others that a State which merely harbors or supports terrorist groups on their territory, without actually controlling or directing their operations, may be responsible for violence used by those groups and thus subject to defensive military operations by the victim State. Whatever the policy merits of those arguments – and they remain deeply contested – at the time Stone was writing, State practice was clearly not sufficiently consistent or dense to support Stone’s assertions.
6. Right of Return of Palestinian Refugees 74 Stone opposed demands that Israel facilitate a right of return of Palestinian refugees displaced during multiple phases of the Israeli-Palestinian conflict. Stone asserted that Israel had already shouldered the burden of taking hundreds of thousands of Jews displaced from Arab countries and Israel had incorporated a large number of Arabs within Israel.75 He argued that Arab countries should take responsibility for displaced persons, since most were displaced by Arab aggression rather than by the foundation of Israel. Further, Arab countries were seen to have manipulated the refugees to exert political pressure on Israel, instead of resettling and rehabilitating them. Given the special, internationalized nature of the situation, Stone also believed that the international community must share responsibility for the displaced.
Clearly many Palestinians were displaced by fighting ensuing from Arab ‘aggression’, but Arab attacks in 1948 were an immediate response to the unilateral declaration of the State of Israel, an action then thought to prejudice the realization of Arab self-determination in the area. Once hostilities commenced, Israeli (or before it, Zionist) violence was also responsible for substantial displacement of Arabs (one need only think of the killings of civilians by Jewish terrorist groups (Irgun and Stern Gang) at Deir Yassin in 1948, which provoked terror amongst Arab civilians and stimulated wider displacement), particularly as the Israeli military response expanded Israel’s territory beyond that declared at independence.76 It has become an Israeli foundation myth to assert that displacement simplistically resulted from Arab campaigns or strategy, while Palestinians have equally blamed the Israelis for a policy of systematic expulsion. Neither explanation is historically accurate; revisionist Israeli historian Benny Morris has chronicled the complex causes of forced displacement during the 1948 war.77
There is indeed some uncertainty about the legal position of Palestinian refugees, not only because international refugee law was still emergent in 1948 (prior to the 1951 Refugee Convention), but also because the United Nations later created a 73 Ibid. 74 See generally L Takkenberg, The Status of Palestinian Refugees in International Law (1998). 75 Israel and Palestine, 25-26. 76 Jean Allain, International Law in the Middle East: Closer to Power than Justice (Ashgate, 2004), 104. 77 See B Morris, 1948 and After: Israel and the Palestinians (Clarendon Press, Oxford, 1994), chapter 3 (‘The causes and character of the Arab exodus from Palestine’); see also Allain, ibid, 102-105. 16 sui generis legal regime for Palestinian refugees (UNRWA),78 outside the regular framework of the 1951 Refugee Convention. In part, this was at the insistence of Arab States, who feared that the special situation of Palestinians would be subsumed within any general framework on refugees. Paradoxically, the separate treatment of Palestinian refugees has arguably worked to their detriment, as the UNRWA mandate focused on humanitarian relief and assistance while undertaking minimal legal protection activities such as are ordinarily exercised by the UN High Commissioner for Refugees elsewhere. A factual complication is that many Palestinians have been displaced multiple times as a result of the successive conflicts.
In international law, a State is required to readmit its nationals,79 which would include Arabs displaced from within the new Israeli State. Such a right was recognized in non-binding UN General Assembly resolution 194(III) of December 1948, which resolved that
refugees wishing to return to their homes… 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…80
The subsequent political impasse between Israel and the Arab States prevented a UN Conciliation Commission from pursuing these issues81 and Israel has not accepted a right of return or a duty to pay compensation. Stone’s argument that Israel accepted Jewish refugees and some Palestinians does not discharge Israel from its obligations in respect of all persons formerly resident in Israel and displaced from their homes. In this respect, the causes of displacement – whether due to Israeli or Arab violence – are not strictly relevant to a displaced person’s entitlement to the right; rather, the right flows from the fact of displacement, and the duty is primarily born by the State in which displacement occurs.
Stone’s call for international burden sharing is, nonetheless, well made – UNRWA is the seed of such cooperation – but that does absolve Israel of its own responsibilities. International cooperation also ought not be seen as a means of avoiding international legal responsibilities. In the Oslo Accords, for instance, the question of return was left open to future negotiations (since Israel and the PLO were entrenched in opposing positions in the issue) and there is risk that the political bargaining process will surrender refugee rights for wider political objectives. Such trading of interests may well be necessary in finding an ultimate solution to the conflict, but the adequate participation of refugee communities in that decision-making process must be assured if the bargaining process is to be legitimate. As Weiler notes, we are increasingly confronted with dispute resolution which “takes place completely outside legal frameworks; negotiation and conciliation substitute almost entirely for any judicial process of adjudication.”82 Law becomes just another tool of diplomacy, rather than a framework of principle bounding diplomacy.
78 UN General Assembly resolution 302(IV) (8 December 1948). See also Allain, ibid, 120-124. 79 G Goodwin-Gill and J McAdam, The Refugee in International Law (3rd ed, Oxford University Press, Oxford, 2007), 3; see also 1966 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 3 January 1976, 993 UNTS 3), art 12(4); Allain, ibid, 118. 80 UN General Assembly resolution 194(III) (11 December 1948), para 11. 81 Allain, above n76, 116-117. 82 Weiler, above n31, 56. 17 18
Conclusion
One of the greatest modern challenges to the international rule of law, its normativity, its legitimacy, and global perceptions of its fairness, is the question of Palestine – a deeper, more systemic, and persistent challenge to international order than other contemporary fault-lines such the war in Iraq, Guantanamo Bay, Abu Ghraib or the war on terror. The failure to justly resolve the Israeli/Palestinian conflict infects and contaminates the international legal order as a whole, as it represents an ongoing denial of the fundamental right to self-determination; the perpetuation of an endless and repressive occupation; ongoing violations of humanitarian law and human rights on all sides; the poisoning of relations between Arabs, Muslims and the west; and the subjection of Israelis and Palestinians alike to the psychologically debilitating threat of sudden and imminent mass violence.
In 1944, Stone wrote in his letter to Sir Isaac that:
There are no Arab claims, moral or otherwise, which can reasonably be held to stand in the way of righting this great wrong to European Jewry…. if there were some substantial prejudice to the ordinary Palestine Arab from the Jewish National Home, this too might ground a moral claim. But here… official British papers testify rather to continuing benefits, material and other, to the Arab people.83
While this passage appears to reveal Stone’s benevolent concern for the plight of ordinary Palestinians, it arguably reveals a lack of genuine empathy for their situation, an inability to comprehend that Palestinians affected by the actions of others might interpret events differently from those whose people stand to gain from the events described. Other parts of Stone’s writings reveal sympathy for the plight of ordinary Palestinians, but usually blame is squarely allocated to Arab States, or the British, or the United Nations, or Palestinians, but never to Israel.
In the final analysis, Stone’s writings on Palestine are commendable for their commitment to the central place of the rule of law in the resolution of violent, intractable and highly politicized international disputes. But it is fair to observe that his views are often more like those of an impassioned advocate, rather than those of a somewhat drier, but more faithful, international legal scholar. Ultimately, Stone’s views are counter-productive even from a pro-Israeli perspective, since they have helped to prolong the dispute, obfuscate and elongate the legal arguments, generate false expectations amongst Jews, antagonize Palestinians and alienate much of the international community.
83 Stone, Stand Up and be Counted!, above n18, 20.
