PALESTINE AND INTERNATIONAL LAW 1948 were opposed to the concept and establishment of a Jewish State.⁴ More- over, the majority of the Jews who proclaimed the State of Israel in 1948 had not even become citizens of Palestine. Although the mandatory Power facili- tated the acquisition of Palestinian citizenship by Jewish immigrants and did not require more than two years' residence in order to give them Palestinian nation- ality, the total number of certificates of naturalization granted by the Govern- ment of Palestine between 1925 and 1945 to all categories of immigrants – Jews and others – did not exceed 91,350.⁵ The number of Jewish immigrants who had acquired Palestinian citizenship up to 1945 was 132,616 persons.⁶ Thus the total number of Jews who possessed Palestinian citizenship in 1948, comprising both indigenous Jewish inhabitants of Palestine and naturalized Jewish immigrants, hardly reached one-third of the Jewish population⁷ or one-ninth of the total population. The Palestine Government statistics indicated the provenance of immigrants into Palestine.⁸ According to these statistics the Jewish immigrants came largely from Poland, Germany, Rumania and Czechoslovakia. Accord- ingly, when the Proclamation of the State of Israel states that it was made by the "Jewish people in Palestine", it does not mean the indigenous Jewish inhabi- tants of Palestine, who in any event, as we have seen, were opposed to the establishment of a Jewish State, but means, in effect, the Jews and nationals of Poland, Germany, Rumania and Czechoslovakia and other countries who had emigrated to Palestine and who did not even possess Palestinian citizenship or the political rights or status of Palestinian citizens. In these circumstances, the proclamation of the State of Israel by a minority of alien settlers, foreign both in origin and nationality, possessing no power or authority to proclaim a Jewish State in Palestine, had no legal basis. Their action could not even be viewed as a secession from the mother country by a section of the original inhabitants. Turning to the co-author of the Proclamation, namely the "World Zionist Movement", it is obvious that such a Movement had not the slightest power or competence to proclaim the establishment of a State in Palestine. Any argument that a foreign body or movement, such as the "World Zionist Movement", South Africa and other countries, and cannot even claim to belong to the country by birth on its soil. Ben Gurion, Israel's former Prime Minister, has taken pride in asserting that he came to Palestine in 1906 as a Russian tourist on a three-months' visa and simply overstayed: Ben Gurion, Israël, Années de Lutte, p. 9, Flammarion, Paris, 1964. 4 As to the opposition of the Orthodox Jews of Palestine to the establishment of a Jewish State, see Ronald Storrs, Orientations, p. 340, Nicholson and Watson, London, 1945, and Section 2 of Chapter I, ante. 5 Government of Palestine, A Survey of Palestine, Vol. I, p. 208; Government of Palestine, Statistical Abstract, 1944–1945, pp. 36 and 46. 6 Government of Palestine, A Survey of Palestine, Vol. I, p. 208. 7 Official Records of the 3rd Session of the General Assembly, First Committee, Part I, p. 849. The total number of the inhabitants of Palestine in 1946 amounted to 1,972,560, divided as follows: 1,203,850 Moslems, 145,060 Christians, 608,240 Jews, 15,490 others. (Official Records of the 2nd Session of the General Assembly, 1947, Appendix I to report of Sub-Committee 1, p. 270.) 8 Statistical Abstract of Palestine, 1941, p. 33.
THE ILLEGITIMACY OF ISRAEL possessed any legal capacity or competence to create a Stare in the territory of Palestine would be simply ridiculous. It follows, therefore, that the parties which purported to proclaim the State of Israel in 1948 possessed no power under the internal law of Palestine or under international law to proclaim a Jewish State in Palestine and their action must be considered null and void. If we now turn to the grounds upon which the Proclamation was based we find them as invalid as the parties that made it were incompetent. The first of those grounds was stated to be "the natural and historic right of the Jewish people." There is no need to repeat here what was said in Section 1 of Chapter I about this claim being spurious in law and false in fact. This ground entirely collapses under an historical and legal scrutiny. With the collapse of one of the two legs which supported its statehood, Israel cannot even limp along on the other leg, namely, the partition resolution. This second ground has no more legal basis than the first. We have seen, in Chapter III, the grounds which invalidate this resolution and it is clear that it gave the Jews neither a legal basis for establishing a State in Palestine, nor title to the territory which they occupied. The view that the State of Israel derived no valid root of title from the parti- tion resolution is further reinforced by the consideration that Israel was estab- lished not in conformity with, but in "flagrant violation" of, the UN resolution.⁹ Neither territorially, nor demographically, nor organically does the State of Israel correspond to the concept of the Jewish State that was envisaged by the UN. Thus, territorially, Israel is not the Jewish State which was envisaged by the UN resolution. We have already described in Section 4 of Chapter IV the areas which Israel seized in excess of the partition plan. Such seizure was no accident, but was deliberate, and the ground for it was prepared by the complete omission in the Proclamation of the State of Israel of any reference to boundaries. David Ben Gurion states that the question of boundaries was considered at the time of drafting the Proclamation. There were then two conflicting possibilities: to create a State without defining its frontiers, or to fix its frontiers as determined by the UN. Ben Gurion opposed the fixing of any frontiers for the Jewish State, thus preparing the ground for its expansion. By five votes to four it was decided that the question of frontiers should not be mentioned in the Declaration of Independence.¹⁰ Likewise, neither demographically nor organically could Israel be considered to be the Jewish State contemplated by the UN. The Jewish State as envisaged by the General Assembly resolution was Jewish only in name, for in fact it would have had an Arab majority. The proposed Jewish State would have had 9 See statement of Fuad Ammoun, Lebanese Delegate to the UN. Oscial Records of the 3rd Session of the General Assembly, 1948, First Committee, p. 23. 10 David Ben Gurion, Israël, Années de Lutte, pp. 49-50, Flammarion, Paris, 1964.
EL of of er De re of d el S r e e 3 f E 1 PALESTINE AND INTERNATIONAL LAW a total population of 1,008,500, consisting of 509,780 Arabs and 499,020 Jews.¹¹ Israel, however, planned to be a Jewish State undiluted by Gentiles, and it therefore forcibly reduced its Arab population to about ten per cent of its original number. (See Section 1 of Chapter VI, post.) Thus, by their seizure of a large part of the territory earmarked for the pro- posed Arab State and by displacing the majority of the Arab population, the Israelis completely distorted the concept of the Jewish State as originally envisaged by the UN and created something entirely and radically different. It is evident that the UN never intended to create a racist and theocratic state from which the original inhabitants of the country, both Moslems and Christians, would be ousted. Hence Israel cannot lay claim to the territorial and political rights which were intended by the partition resolution for a materially different demographic entity. In conclusion, it can be said that neither of the two grounds invoked for the establishment of Israel is sustainable either under the internal law of Palestine or under international law. This conclusion affects, and even destroys, the very foundations of the State of Israel. Sensing the absence of any legal grounds for the establishment of the State of Israel, Zionist advocacy now falls back on fanciful grounds to justify Israel's creation. Thus, the partition resolution is presented as "an act of international legislation" on the part of the General Assembly of the UN.¹² Such a dogmatic assertion of the existence of an international legislative power in the General Assembly is, of course, devoid of any legal basis. The UN does not possess, nor was it ever intended to possess, any legislative power either to create or to dismember States. Another fanciful and imaginative ground to clothe the creation of Israel with some kind of legitimacy was advanced by Mrs Golda Meir. In an interview published in Le Monde, Israel's Prime Minister declared that she feels no concern over the non-recognition of Israel by the Arabs: "This country," she said, "exists as a result of a promise made by God himself. It would be ridiculous to ask for the recognition of its legitimacy."¹³ Needless to say, the concept of the creation and legitimacy of States by divine promise is unknown in international law. Israel's illegitimacy is self-evident. Neither the parties that proclaimed its statehood, nor the grounds upon which the proclamation was made can with- stand legal scrutiny. Fanciful explanations of its creation under a divine promise or by an act of international legislation cannot obliterate its illegitimate origin. The stigma of illegitimacy will continue to attach to Israel, with all its legal and political consequences. ¹¹ UN Document A/AC 14/32, 11 November 1947, Official Records of the 2nd Session of the General Assembly. Ad Hoc Committee, 1947, p. 291. ¹² Louis Blom-Cooper in a letter to The Times, London, 4 September 1970. ¹³ Translated from Le Monde, 15 October 1971.
Section 3 Was the illegitimacy of Israel cured by recognition, by admission to the UN, or by prescription? Since the emergence of Israel, certain jurists have searched for some ground to legitimate its creation and to cover up the illegality of its origin. Some have found a ground for its legitimation in the fact of its recognition by a number of other States; others have found such a ground in the fact of its admission to membership of the UN. These two arguments in favour of Israel's legitimation were summarized by Quincy Wright as follows: "The Arab claims that the Balfour Declaration and the partition of Palestine violated their rights were probably originally valid, but became moot after the general recognition of Israel and its admission to the United Nations."14 Clarifying his thought further, the same writer declared that the admission of Israel to the UN and its recognition by most States "gave legal effectiveness to the partition resolution."15 At this point suffice it to remark generally that one fails to see on what legal basis a UN resolution which is ab initio void and of no effect could subsequently and retroactively acquire legal effectiveness. If, as is clear, the General Assembly was incompetent to partition Palestine, then it is difficult to understand how it could have subsequently acquired any such competence. Similarly, one also fails to see how the invalidating effect of the various grounds that nullify the resolution, namely the encroachment on the sovereignty of the people of Palestine, the violation of the Covenant of the League of Nations and of the Charter of the UN, the denial of justice, the exer- cise of undue influence, and the iniquity of partition, has ceased and come to an end just because some states have recognized Israel or because Israel was admit- ted to membership of the UN. If the partition resolution was null and void, then 14 Quincy Wright, "Legal Aspects of the Middle East Situation", The Middle East Crisis, p. 28, Oceana, 1969. 15 Quincy Wright, "The Middle East Problem", AJIL, 1970, p. 271.
PALESTINE AND INTERNATIONAL LAW such nullity remains for all time and cannot be removed by extraneous and irrelevant circumstances. The difficulties involved in the validation of the defective title of a State in international law are mentioned by D. P. O'Connell: "The problem of reconciling, no matter how ardently we desire it, the theory of the invalidity of title founded on aggression with the necessity of acknowledging the juridical implications of the fact of power in a given territory is quite as acute as the problem of defining aggression... Jurisprudentially, resort to recognition or to prescription for validation of title is fraught with difficulties."¹⁶ In the following pages we shall examine specifically the two grounds that have been suggested for the legitimation of the State of Israel. In addition, we shall consider whether this State's illegitimacy and the wrong done in Palestine could be buried under a plea of prescription. a. Recognition of Israel by other States Israel is recognized either de jure or de facto by over two-thirds of the States of the world. About forty States, including all the Arab States, refuse to accord it their recognition. Of greater legal significance is the fact that Israel is not *recognized by the Palestinians. Let us now examine what is the legal effect of Israel's recognition by a number of States. This leads to the question: what is the function of the recognition of a State under international law? "The primary function of recognition," says Brierly, "is to acknowledge as a fact something which has hitherto been uncer- tain, namely the independence of the body claiming to be a State, and to declare the recognizing State's readiness to accept the normal consequences of that fact, namely the usual courtesies of international intercourse."¹⁷ Oppenheim men- tions the more important consequences that flow from recognition. These are, principally, the capacity for the new State to enter into diplomatic relations, the right to sue in the courts of the recognizing State, and immunity from jurisdic- tion.¹⁸ It is obvious, therefore, that the function of recognition is not the legiti- mation of the State which is recognized. On the other hand, the recognition of a State is not determined by considera- tions relating to its legitimacy. Philip C. Jessup has observed that the practice of basing recognition on constitutional legitimacy instead of on actual exis- tence and control of the country has not as yet been widely enough accepted to be acknowledged as having the force of customary law.¹⁹ Neither de jure recognition nor de facto recognition implies the legitimacy or the legitimation of the recognized State. Philip Brown states: ¹⁶ D. P. O'Connell, International Law, Vol. I, p. 262, Stevens, London. ¹⁷ J. L. Brierly, The Law of Nations, 6th ed., p. 139, Clarendon Press, 1963. ¹⁸ Oppenheim, International Law, Vol. I, 8th ed., pp. 137-139. ¹⁹ AJIL, 1931, p. 721.
THE ILLEGITIMACY OF ISRAEL "De jure recognition means full complete recognition. It does not refer to the legality of the recognized Government. De facto recognition means the situation created by the continuance or the establishment of diplomatic relations with a new Government, irrespective of its origin."20 In the Tinoco arbitration, Chief Justice Taft laid down the principle that recognition of a Government is determined by inquiry into "its de facto sove- reignty and complete governmental control," but not into "its illegitimacy or irregularity of origin."21 De Visscher states: "One might be inclined to think that State recognition is strictly a juridical institution governed by precise legal criteria . . . Observation demonstrates that this is far from being the case, and the matter, in varying degrees, depends on politics much more than on law."22 The same author remarks that "recognition is based on effectiveness of power, not on the internal constitutional legality of its origins."23 Again, Lauterpacht declares that "legitimacy of origin as a criterion of recognition was rejected in favour of the principle of effectiveness of governmental power."24 Rousseau observes that recognition does not entail moral approbation, but solely an ascertainment of effectiveness.25 Recognition, then, is neither evidence of the legitimacy nor a means of legitimation of the recognized State. Just as recognition has no effect upon the legitimacy or illegitimacy of the recognized State, so also recognition has no effect upon the question of title of the recognized State to the territory under its occupation. As an example among many, in 1936 a large number of States accorded de facto or de jure recognition to Italy's annexation of Ethiopia, but this recognition did not legalize Italy's occupation of Ethiopian territory nor vest Italy with title over such territory. Recognition by other States does not remove the vice with which an occupation is tainted: "La reconnaissance par les Puissances ne peut avoir au point de vue juridique aucune influence sur la validité de l'occupation . . . La reconnaissance du fait accompli par les Puissances civilisées est impuissante à couvrir le vice qui entache la prise de possession."26 The rule that recognition has no bearing on the title of the recognized State to the territory under its occupation is, however, subject to one qualification. 20 Philip M. Brown, "The Legal Effects of Recognition", AJIL, Vol. 44, 1950, p. 617. 21 AJIL, 1924, p. 152. 22 Translation from De Visscher, Théories et Réalités en Droit International Public, 4th ed., pp. 254-255, Pedone, Paris, 1970. 23 Ibid., p. 321. 24 H. Lauterpacht, Recognition in International Law, p. 102, University Press, Cambridge, 1947. 25 Charles Rousseau, Le Conflit Italo-Ethiopien, p. 235, Pedone, Paris, 1938. 26 Gaston Jèze, Etude Théorique et Pratique sur l'Occupation, p. 298, Paris, 1896.