Published online by Cambridge University Press: 12 February 2016
Two recent decisions handed down by the Hebron magistrate, Mr. Hussein El-Shajuchi, and by the Bethlehem magistrate, Mr. Tawfik El-Sakka, on February 5, 1968 and on February 27, 1968, respectively, have brought to the fore some interesting legal problems arising from the Six Day War of June, 1967 as a result of which Judea and Samaria (formerly known as the “West Bank” of the Kingdom of Jordan) have come under Israeli control.
The immediate cause that has given rise to the elaboration by the two learned magistrates of the problems to be dealt with in this paper was the promulgation by the Officer Commanding, Israel Defence Forces in Judea and Samaria, on October 23, 1967, of Order No. 145, concerning the status of Israeli advocates in the courts of Judea and Samaria. Article 2 of the said Order provides that “notwithstanding any existing provisions to the contrary, any party to civil proceedings and any defendant in criminal proceedings may authorise an Israeli advocate to represent him in such proceedings.” Article 4 of the same Order stipulates that the Order shall be in force for a period of six months from the date of its entry into force (i.e. October 23, 1967) unless it is terminated at an earlier date by the Officer Commanding, Israel Defence Forces in Judea and Samaria. In the preamble to the Order the reasons given for its promulgation are “to ensure the efficient maintenance of the law, to enable the uninterrupted functioning of the Courts in the District [of Judea and Samaria] and to make available the services of advocates to the local population.” As will be more fully explained later, the reason for promulgating this Order was the strike of Arab lawyers in Judea and Samaria, which threatened to deprive courts and clients there of legal services.
1 See Collection of Decrees, Orders and Appointments by the Officer Commanding, Israel Defence Forces in the West Bank District, No. 8 of December 29, 1967, p. 306 (in Hebrew and Arabic).
2 Ibid. An “Israeli advocate” is defined in Art.1 of the Order as “a person who is a member of the Israeli Bar.” All translations from the Hebrew are by the present writer.
3 Ibid.
4 Ibid. In view of the fact that the Arab lawyers in Judea and Samaria had not resumed their professional activities by the time the Order expired, it was announced on April 23, 1968 that the duration of the Order was extended and that itwas to remain in force so long as it was needed to maintain the functioning of the judicial system. (“The Jerusalem Post” of April 24, 1968, p. 7.)
5 Art. 43 reads: “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”
6 Art. 64 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of August 12, 1949 (the official designation of the Fourth Red Cross Convention) provides: “The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensurethe security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.”
7 Chowdhuri, , International Mandates and Trusteeship Systems (1955) 230.CrossRefGoogle Scholar Of the extremely rich literature on this subject, the following are particularly referred to: Stoyanovsky, , La théorie générale des mandats internationaux (1925) 83–86Google Scholar; Wright, , Mandates under the League of Nations (1930) 319–39Google Scholar; Pelichet, , La personnalité distincte des collectivités sous mandat (1932) 81–98Google Scholar; Springe, , Die Beendigung des völkerrechtlichen Mandats durch Zweckerreichung (1935) 18–21Google Scholar; Comisetti, , Mandats et souveraineté (1934) 77–125Google Scholar; Hall, , “International Trusteeship” (1947) 24 British Year Book of International Law, 33, 48–56Google Scholar; Sayre, , “Legal Problems arising from the United Nations Trusteeship System” (1948) 42 Amer. J. of Int. Law, 263, 268–72CrossRefGoogle Scholar; Leeper, , “Trusteeship compared with Mandate” (1951) 49 Mich. L.R. 1199, 1204–08.CrossRefGoogle Scholar
8 Chowdhuri, op. cit., 236.
9 I.C.J. Reports, 1950, p. 150.
10 Ibid. Emphasis supplied.
11 For a discussion of the various justifications for the use of force under the Charter régime, see Brownlie, , International Law and the Use of Force by States (1963) 251–349.CrossRefGoogle Scholar See also Higgins, Rosalyn, The Development of International Law through the Political Organs of the United Nations (1963) 197–221.Google Scholar
Transjordan was not a member of the United Nations in 1948, but, as has been pointed out by Kelsen, (The Law of the United Nations (1950) 107)Google Scholar, “[t]he Organisation is certainly authorised to ensure that non-Member states shall act in conformity with the principles laid down in Article 2, paragraphs 3, 4 and 5; that is to say, that non-Member states are obliged by the Charter, just as Members are,…to refrain intheir relation to other states from the threat or use of force.” See also Soder, , Die Vereinten Nationen und die Nichtmitglieder (1956) 156–57.Google Scholar
12 U.N. Doc. S/743.
13 U.N. Doc. S/748.
14 S.C.O.R., 292nd meeting of May 15, 1948, p. 25.
15 S.C.O.R., 297th meeting of May 20, 1948, p. 5.
16 S.C.O.R., 306th meeting of May 27, 1948, p. 7.
17 U.N. Doc. S/745.
18 S.C.O.R., 299th meeting of May 21, 1948, pp. 13–15.
19 S.C.O.R., 301st meeting of May 22, 1948, p. 7.
20 The replies of the Arab States may be found Ibid., p. 7 (Egypt), p. 12 (Syria), p. 14 (Iraq) and p. 15 (Lebanon).
21 S.C.O.R., 302nd meeting of May 22, 1948, p. 42; also reproduced in Schwadran, , Jordan—a State of Tension (1959) 258, n. 10.Google Scholar
22 S C O R, 302nd meeting of May 22, 1948, pp. 41–2
23 Ibid, 42–3
23a Thus, at the meeting of Premiers and Foreign Ministers of Arab League States held in Cairo between December 8 and December 17, 1947, following the General Assembly's resolution recommending the partition of Palestine, it was decided thatthe Arabs were “determined to enter battle against the United Nations decision to partition Palestine and, by the will of God, to carry it to a successful conclusion.” ((1946–8) 6 Keesing's Contemporary Archives, 9244). At the same meeting it was also agreed to take “decisive measures” to prevent the partition ofPalestine, and the General Assembly's resolution on the matter was defined as a violation of the “principles of right and justice.” (Ibid.)
On April 22, 1948 (i.e. less than one month before the termination of the British Mandate over Palestine), King Abdullah of Transjordan declared that the Arab world must “take joint action against Zionism” and issued a call to all Arab countries to join with the Transjordan Army “in a movement to Palestine to retain the Arab character of that country.” (Ibid.)
24 The Israel-Egypt General Armistice Agreement may be found in 42 United Nations Treaty Series, 251; the Israel-Lebanon Agreement Ibid., at 287; the Israel-Jordan Agreement Ibid., at 303; the Israel-Syria Agreement Ibid., at 327.
The name of the “Hashemite Kingdom of Transjordan” was changed in 1949 to the “Hashemite Kingdom of Jordan,” the reason for this change being the fact that “the country to-day includes a large part of Arab Palestine…thus extending geographically on both banks of the Jordan [River].” (Official announcement of the Jordan Government of June 2, 1949, reproduced in (1948–50) 7 Keesing's Contemporary Archives, 10050). In view of the fact that the official announcement regarding the change of name was made only on June 2, 1949, it is not clear why the Armistice Agreement with Israel was signed on April 3, 1949 by “Jordan”, rather than by “Transjordan”.
25 See Rosenne, , Israel's Armistice Agreements with the Arab States (1951) 24–32Google Scholar; Feinberg, , The Legality of a “State of War” after the Cessation of Hostilities (1961)Google Scholar; Levie, , “The Nature and Scope of the Armistice Agreement” (1956) 50 Amer. J. of Int. Law, 880.CrossRefGoogle Scholar
26 42 United Nations Treaty Series, 306; emphasis supplied.
28 Schwadran, op. cit., 295–7.
29 Stone, , The Middle East under Cease-Fire (A Bridge Publication), October 1967, p. 12.Google Scholar
30 Ibid.
31 McNair, , The Legal Effect of War (3rd ed., 1948) 320.Google Scholar
32 Castrén, , The Present Law of War and Neutrality (1954) 215–16Google Scholar; emphasis in original.
33 Stone, , Legal Controls of International Conflict (rev. ed., 1959) 720.Google Scholar
34 Kelsen, , Principles of International Law (2nd ed., edited by Turner, , 1967) 139.Google Scholar See to the same effect Glahn, , The Occupation of Enemy Territory (1957) 274.Google Scholar
35 Glahn, op. cit., 28.
36 Greenspan, , The Modern Law of Land Warfare (1959) 390.Google Scholar Seealso to the same effect Castrén, op. cit., 214; Stone, op. cit., 696, n. 14.
37 For the text of the resolution in English, see Schwadran, op.cit., 296–7.
38 Three days after the Jordanian resolution, on April 27, 1950, Mr. Kenneth Younger, Minister of State, announced in the House of Commons: “His Majesty's Government have decided to accord formal recognition to the union.” (Parliamentary Debates, Commons, vol. 474, col. 1137). See also Stone, , The Middle East under Cease-Fire, (1967) 13.Google Scholar
39 (1950–2) 8 Keesing's Contemporary Archives, 10812.
40 Ibid.
41 Schwadran, op. cit., 298.
42 (1950–2) 8 Keesing's Contemporary Archives, 10812.
The use of the term “Arab Palestine” is rather interesting, for it constitutes an oblique and indirect admission of the existence of a “non-Arab” part of Palestine. In view of the fact that Transjordan originally invaded Palestine “toretain the Arab character of that country” (see supra, n. 23a), the terminology employed here would appear to reflect a hitherto unacknowledged change in the official Arab position. See also footnotes 24, 39 and 43.
43 Schwadran, op. cit. 298.
44 (1950–2) 8 Keesing's Contemporary Archives, 10812. The adoption of the resolution by the Political Committee rather than by the Council is explained by the fact that, according to Art. 7 of the Pact of Arab States of March 22, 1945, only the Council's decisions are binding; the Political Committee's decisions, on the other hand, are only in the nature of recommendations. (See 70 United Nations Treaty Series, 237, at 254.)
45 (1950–2) 8 Keesing's Contemporary Archives, 10812.
46 U.N. Doc. S/PV. 1345 of May 31, 1967, p. 47; emphasis supplied.
47 Schwarzenberger, , “The Fundamental Principles of International Law” (1955–I) 87 Hague Recueil, 191, at 257.Google Scholar
48 I.C.J. Reports, 1962, p. 23.
49 Blum, , Historic Titles in International Law (1965) 133.CrossRefGoogle Scholar See to the same effect Brüel, “La protestation en droit international” (1932) 3 Acta Scandinavica Juris Gentium, 75Google Scholar; Suy, , Les actes juridiques unilatéraux en droit international public (1962) 63–64.Google Scholar
50 42 United Nations Treaty Series, 306.
51 U.N. Doc. S/PV. 1345 of May 31, 1967, 47.
52 Art. 4 of that Treaty provides, inter alia, that “no acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty”, and that “no new claim…shall be asserted while the present Treaty is in force.” (402 United Nations Treaty Series, 70, at 74.)
53 Seyersted, , United Nations Forces in the Law of Peace and War (1966) 224Google Scholar; emphasis in original.
54 Ibid, 245
55 Glahn, op cit, 273
56 For a survey of the widely divergent views on this question, see Glahn, op cit, 273–86
57 See e g Seyersted, op cit, 281, Bowett, , United NationsForces (1964) 491Google Scholar
58 While the partial inapplicability of the traditional law of occupation was explained in the case of Germany by the disappearance of the legitimate sovereign, here the same conclusion has been reached because of the absence of a “genuine” belligerent occupant, in the technical meaning of that term.
59 This severability of the rules of a humanitarian nature from those protecting the ousted sovereign's reversion is probably implied in Art. 47 of theFourth Geneva Red Cross Convention of 1949 which stipulates, inter alia: “Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by…any annexation by the [Occupying Power]…of the whole or part of the occupied territory.”
It must be noted, however, that according to the Commentary published by the International Committee of the Red Cross, “the reference to annexation in this Article cannot be considered as implying recognition of this manner of acquiring sovereignty.” (Pictet, General Editor, Commentary on Geneva Convention relative to the Protection of Civilian Persons in Time of War (1958) 276.)
60 The conclusion reached here, according to which Israel is more than a “belligerent occupant” with regard to Judea and Samaria, while Jordan could be regarded, during the period 1948–67, at the most as a “belligerent occupant” there, has, of course, far-reaching implications. It must be remembered that title to territory is normally based not on a claim of absolute validity (few such claims could be substantiated), but rather on one of relative validity. Thus, e.g. in the Minquiers and Ecrehos case, the International Court of Justice, when called upon to adjudicate in the territorial dispute between the United Kingdom and France, decided “to appraise the relative strength of the opposing claims to…sovereignty.” (I.C.J. Reports, 1953, p. 67; emphasis supplied.)
Since in the present view no State can make out a legal claim that is equal to that of Israel, this relative superiority of Israel may be sufficient, under international law, to make Israel possession of Judea and Samaria virtually indistinguishable from an absolute title, to be valid erga omnes. The same conclusion would hold good also in respect of the “Gaza Strip” (an area of roughly 200 km2, which was under Egyptian military occupation until June, 1967) as well as in respect of certain minor Palestinian border areas which were held by the Syrians—who had invaded them in 1948—until June, 1967.
However, these possibilities cannot be futher explored in the present paper. On the questions relating to the relative strength of territorial claims in general, see Blum, op. cit., 229–29, 335–36 and the authorities referred to there. See also O'Connell, , International Law (1965) vol. I, 468.Google Scholar
61 Thus, for instance, says Oppenheim-Lauterpacht (International Law (1952) 7th ed., vol. II, 437), that the occupant “has no right to make changes in the laws…other than those which are temporarily necessitated by his interest in the maintenance and safety of his army and the realisation of the purpose of war.” Cf., however, Ibid., 446.
62 Glahn, op. cit., 97.
63 Kelsen, op. cit., 141.
64 Stone, , Legal Controls of International Conflict (rev. ed. 1959) 698.Google Scholar
65 Glahn, op. cit., 99.
65 That this was indeed the Israeli authorities' intention in issuing Order No. 145, is clearly evidenced by the fact that in the “Gaza Strip”—where local members of the legal profession have been engaging in their various professional activities also under Israeli rule—no similar Order has been promulgated by the military authorities there.
66 Ibid., 107.
67 Greenspan, op. cit., 258.
68 The fact that the Order has been limited to a period of six months only, has led the Hebron magistrate to the curious argument that “the characteristics of a legislative act being continuity and stability”, the Order under discussion did not fulfil the necessary requirements.
69 Greenspan, op. cit., 246, n. 120.
70 Ibid.
71 Morgenstern, Felice, “Validity of the Acts of the Belligerent Occupant” (1951) 28 British Year Book of International Law, 291, at 306.Google Scholar
72 Ibid., 307.
73 Glahn, op. cit., 110.
74 Fraenkel, , Military Occupation and the Rule of Law (1944) 222–24.Google Scholar
75 Oppenheim-Lauterpacht, op. cit., 447; emphasis supplied.
76 Greenspan, op. cit., 262.
77 Glahn, op. cit., 107.
78 Collection of Decrees, Orders and Appointments by the Officer Commanding, Israel Defence Forces in the West Bank District, No. 5 of November 15, 1967, p. 157 (in Hebrew and Arabic).
79 For the abortive fate of the various Soviet-sponsored resolutions in the Council and in the Assembly, see Stone, , The Middle East under Cease-Fire (1967) pp. 6 ff. and nn.Google Scholar
80 Ibid., 14.
81 Article 57(1) of the International Law Commission's final draft articles on the law of treaties, 1966 Yearbook of the…Commission, vol.II, p. 184.
