Muddying the Waters Still Further: A Response to Steven Kay and Joshua Kern

[Victor Kattan is a Senior Research Fellow of the Middle East Institute at the National University of Singapore where he heads the Transsystemic Law Cluster. He is also an Associate Fellow of NUS Law. ]

Steven Kay QC and Joshua Kern’s rebuttal to my critique of their Article 15 Communication to the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) (see here and here) is an attempt to further muddy the waters regarding Palestine’s statehood. By rehashing old and stale arguments, it appears they hope to convince the OTP to take their Article 15 communication seriously. There is, however, no reason to take it seriously.

The arguments being advanced by Kay and Kern are an attempt to provide legitimacy to the views of the Revisionist Right that came to power in Israel in 1977, and that has never recognized the national rights of the Palestinian people to establish a state of their own in the “Land of Israel.”

What Kay and Kern have provided in their rebuttal is a revisionist legal history for Revisionists. In 1948, contrary to what Kay and Kern claim, Israel did not claim sovereignty over the West Bank, which was under the control of the Arab Legion. This territory subsequently become part of the Kingdom of Jordan from 1948 until 1988, after which it was recognized as being part of the Palestinian state.

The effect of General Assembly Resolution 181(II)

It is ironic that Kay and Kern claim that General Assembly Resolution 181(II) did not have dispositive effects when this was the position of the Provisional Government of Israel in 1947. I already quoted what the Director General of Israel’s Foreign Ministry said in 1949 in my response to their first article. They have ignored what he said. Then there was the statement made by the Foreign Minister of the Provisional Government of Israel in April 1948, which addressed the very point they now contest:

“With regard to the status of Assembly resolutions in international law, it was admitted that any which touched the national sovereignty of the Members of the United Nations were mere recommendations and not binding. However, the Palestine resolution was essentially different for it concerned the future of a territory subject to an international trust. Only the United Nations as a whole was competent to determine the future of the territory and its decision, therefore, had a binding force” (emphasis added).

(Moshe Shertok, 127th meeting, UN Doc. A/C.1/SR.127, 27 April 1948, p. 108).

Remember this was a statement made by the Israeli official responsible for formulating foreign policy who was articulating his Government’s position in international law. As he said, “Only the United Nations as a whole was competent to determine the future of the territory (emphasis added).”

Although most of the Arab states (except for Jordan) rejected the UN Partition Plan for perfectly valid reasons in 1947, I am of the view, after giving the matter further thought, that the Israeli Government had the better argument in law.

Israel’s Declaration of Independence

Kay and Kern make a great deal of Israel’s Declaration of Independence. They claim that Israel’s sovereignty claims in 1948 as contained in this declaration applied over the entirety of the mandate territory i.e. “Eretz Israel”. This is doubtful, as the declaration explicitly referred to the UN Partition Plan that demarcated the territory of the Jewish state. It is patently obvious from looking at a map of that plan that this did not include the West Bank. Only two Revisionist representatives (of 37 signatories) signed the Declaration of Independence, and their party was not invited to participate in the Provisional Government.

Israeli officials did not make a sweeping claim to the West Bank at the UN General Assembly or in their communications to UN officials between 1947 and 1967.

Nor did Israeli officials claim that the Declaration of Independence applied over the whole of the former territory of the Palestine mandate when they communicated that declaration to foreign governments. Consider the following telegram sent from Israel’s representative in Washington DC to the U.S. President and the U.S. Secretary of State on 14 May 1948, the very day that declaration was made:

“I have the honour to notify you that the State of Israel has been proclaimed as an independent republic within the frontiers approved by the General Assembly of the United Nations in its Resolution of November 29, 1947, and that the Provisional Government has been charged to assume the rights and duties of government for preserving law and order within the boundaries of Israel… The Act of Independence will become effective one minute after six o’clock on the evening of 14 May, 1948, Washington time.”

(See E. Epstein to M. Shertok, 14 May 1948 in Yehoshua Freundlich (ed.), Documents on the Foreign Policy of Israel, Israel State Archives (Jerusalem, the Government Printer, 1981), p. 3). (emphasis added).

In response to an inquiry about the declaration from the U.S. State Department, the agent representing the Provisional Government of Israel in Washington DC gave: “unqualified assurances that Israel will respect the boundaries established for the Jewish State in the General Assembly Resolution of November 29.” (See E. Epstein to M. Shertok, 14 May 1948 in Yehoshua Freundlich (ed.), Documents on the Foreign Policy of Israel, Israel State Archives (Jerusalem, the Government Printer, 1981), p. 4). (emphasis added).

Given that Israeli officials did not make a sovereignty claim to the West Bank in 1948, it is misleading for Kay and Kern to speak of a waiver, when there was nothing for Israel to waive. Israel did not dispute Jordanian sovereignty over the West Bank until after June 1967 war, when the Security Council had made it clear that the West Bank (and other territories occupied in that conflict) was not Israeli territory in Resolution 242.  

Unilateral declarations can be binding in international law

Given the unqualified statements made by Israeli officials in 1948, it could be argued that General Assembly Resolution 181(II) was binding upon Israel by virtue of these statements. As the International Court of Justice (ICJ) made clear in the Nuclear Tests Case unilateral declarations can be binding in international law if it is the intention of the state making the declaration that it should become bound according to its terms. (p. 267, para. 43.) The Israeli declarations made to the UN General Assembly and to the U.S. President and U.S. Secretary of State conveyed an intention to be bound, especially as the latter was framed as an “unqualified assurance.”

No breach of Article 2(4) UN Charter in 1948

Jordan did not breach Article 2(4) of the UN Charter. Neither Jordan nor Israel were members of the UN in May 1948 and Israel did not meet the criteria for statehood in international law at that moment. This explains why Israel’s first application for UN membership was rejected by the Security Council (see the 383rd, 384th, 385th and 386th meetings of the Security Council on the 2nd, 15th, and 17th December 1948.) The absurdity of the claim that there was a breach of Article 2(4) is underscored by the fact that units of the Arab Legion were stationed in mandate Palestine (west of the Jordan River) under British command and guarding British supply lines as Britain withdrew in May 1948.

The fusion of Jordanian and Palestinian sovereignty

I stand by my claim that the Jordanian Act of Union of 1950 fused Jordanian and Palestinian sovereignty between 1950 and 1988. However, Kay and Kern claim that “given that Jordan’s occupation arose from a breach of Article 2(4) of the UN Charter and considering the coercive nature of Jordanian control, the law of occupation is the only appropriate normative framework which can define Jordanian effective control of the West Bank territory between 1949 and 1967.” I have already dealt with Article 2(4). It was clearly not applicable. Regarding the law of occupation, it should be noted that Jordan terminated its occupation of the West Bank on 2 November 1949. Accordingly, there is no basis in law to claim that Jordan was an occupying power in the West Bank from 1948 until 1967.

The nature of Jordanian control was far from coercive as Kay and Kern claim. Jordan was responding to appeals for assistance from Palestinian fleeing the fighting, which began before the termination of the mandate at midnight on 14/15 May 1948. The elections held on 11 April 1950 were the first to be organized in Arab Palestine since the Ottomans left the country in 1917. The Palestinian people were far happier living in the Kingdom of Jordan between 1948 and 1967 than they have been living under Israeli occupation since 1967.

Security Council Resolution 242

It is puzzling to see the argument about the missing definite article from the withdrawal clause of Security Council Resolution 242 invoked to justify an extension of Israeli sovereignty to most of the West Bank. (For a comprehensive rebuttal of that argument, see John McHugo, “Resolution 242: A Legal Reappraisal of the Right-Wing Israeli Interpretation of the Withdrawal Phrase with Reference to the Conflict Between Israel and the Palestinians”, 51(4) ICLQ (2002), pp. 851-881.)

It is clear from the debates in the Fifth Emergency Special Session of the General Assembly (1526th – 1537th plenary meetings, UN doc. A/PV.1526-1537, 19-27 June 1967) that no state accepted that Israel had a right to keep the territory that it captured in the June 1967 war. In fact, some states like the Soviet Union and Pakistan even questioned Israel’s right to retain territory it had acquired from the Arab state in the UN Partition Plan in 1947.

If these debates demonstrate anything, they demonstrate uncertainty about Israel’s pre-1967 borders. They can hardly be cited to affirm Israel’s right to territory it captured in 1967, which clearly breached Article 2(4) of the Charter. In the words of the United Kingdom Foreign Secretary: “Britain does not accept war as a means of settling disputes, nor that a State should be allowed to extend its frontiers as a result of war. This means that Israel must withdraw.” (Quoted from the statement by the United Kingdom representative, Security Council, Official Records, 1381st meeting, UN doc. S/PV.1381, 20 November 1967, p. 3, para. 20).

The settlement blocs are not in Israel  

Kay and Kern provide no evidence to support their claim that the settlements blocs are in Israeli sovereign territory. In my previous post, I referred to Security Council Resolutions on the matter, which I will not repeat here. As the ICJ explained in paragraph 78 of its Wall opinion all the territories situated between the 1949 ceasefire line, and the former eastern boundary of Palestine under the British mandate, remain occupied territories where Israel is an occupying power. Accordingly, it was not surprising that the ICJ concluded in paragraph 120 of the Wall Advisory Opinion that: “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.”

The settlements are contrary to international law not only because they breach Article 49, paragraph 6 of the Fourth Geneva Convention, but also because they have been built in territory where Israel has no sovereignty. Given the size and scale of some of the settlement blocs and the closed military zones that have been established around them, the settlements also violate the Palestinian people’s right to self-determination. This can be inferred from what the ICJ said about the route of the wall in paragraph 122 of its Advisory Opinion.

Conclusion

Title to the territories occupied in June 1967 remain vested in the Palestinian people. The 1947 UN Partition Resolution, when read in conjunction with Article 22, paragraph 4 of the Covenant of the League of Nations had constitutive effect, as recognized by leading Israeli jurists at the time. Following the conclusion of the 1949 armistice agreements, sovereignty over the territory of the remnants of the Arab State in the UN Partition Plan remained vested in the Palestinian people in Gaza and was shared between Jordan and the Palestinian people in the West Bank between 1948 and 1988. In 1988, title was vested exclusively in the Palestinian people over the territories that Israel had occupied since June 1967.

The resolution adopted by the General Assembly on 29 November 2012 conferred observer statehood on Palestine and amounted to an act of collective recognition by those states that voted in favour of that resolution. The recognition of Palestine by over two-thirds of UN members, its membership of international organizations and courts, and its accession to major multilateral treaties demonstrates that its statehood enjoys quasi-unanimous support. And we must remember that the recognition of Palestine in 2012 was not of a new state, but of a state that already existed, as Palestine had applied for membership in the UN in September 2011.

A final word on self-determination. The UN Partition Plan, which was explicitly mentioned in Resolution 67/19, and in Palestine’s application for membership of the UN, enshrined the principle of self-determination for two peoples in two states. Neither Arabs nor Israelis can renounce that right. In the words of Moshe Shertok, the Foreign Minister of the Provisional Government of Israel in 1947, the UN Partition Plan “conferred statehood upon Jews and Arabs and each group acquired rights which it could not be forced to renounce.” (UN Doc. A/C.1/SR.127, 27 April 1948, p. 108). The Palestinian state established over the territories occupied by Israel in 1967, including the West Bank, East Jerusalem and Gaza strip, is in exercise of the Palestinian people’s right to self-determination as recognized by the international community. The right of self-determination is widely acknowledged as a peremptory norm of international law. Only the Palestinian people and their political representatives have a legally valid claim to any part of these territories.