Israel’s Major Wars The Legal Aspects of Coming into Possession of the Territories

Eli E. Hertz
International law makes a clear distinction between defensive wars
and wars of aggression. All of Israel’s wars with its Arab neighbors
were in self-defence.
About six months before the War of Independence in 1948, Palestinian Arabs
launched a series of riots, pillaging, and bloodletting, then came the invasion of
seven Arab armies from neighboring states attempting to prevent the
establishment of a Jewish state in accordance with the UN’s 1947
recommendation to Partition Palestine, a plan the Arabs rejected.
1

The Jewish state not only survived, it came into possession of territories – land
from which its adversaries launched their first attempt to destroy the newly
created State of Israel.
In the first critical weeks after the British left the region and Israel declared its
independence, the combined Arab armies of Egypt, Lebanon, Syria, Trans-Jordan,
Iraq, and contingents from Saudi Arabia and Yemen2
aimed at a small Jewish
militia with three tanks and five artillery pieces. Israel had no air force, and until
arms were rushed in from abroad3
and a regular army could be organized, it
relied on the only strength it had: 70 years of social solidarity inspired by the
Zionist endeavor.
Israel’s citizens understood that defeat meant the end of their Jewish state before
it could even get off the ground. In the first critical weeks of battle, and against all
odds, Israel prevailed on several fronts.
The metaphor of Israel having her back to the sea reflected the image crafted by
Arab political and religious leaders’ rhetoric and incitement. Already in 1948
several car bombs had killed Jews, and massacres of Jewish civilians underscored
Arab determination to wipe out the Jews and their state.
There were over 6,000 Israelis killed and over 15,000 wounded as a result of that
war, in a population of 600,000. One percent of the Jewish population was gone.
In American terms, the equivalent is 3 million American civilians and soldiers
killed over an 18-month period.4

Under the pressure of war, Palestinian society collapsed in disarray.5
Both sides
were left to cope with hundreds of thousands of refugees – Jewish and Arab. Yet
© 2009, Eli E. Hertz © 2009, Eli E. Hertz 11 Israel’s Major Wars Israel’s Major Warsthe way the Arab world dealt with their refugees was as different from the Jews,
as the way Jews and Arabs have approached the notion of compromise over the
past 100 years.
Israel War of Independence in 1948 was considered lawful and in self-defense as
may be reflected in UN resolutions naming Israel a “peace loving state”6
when it
applied for membership at the United Nations. Both the Security Council (4
March, 1949, S/RES/69) and the UN General Assembly (11 May, 1949,
(A/RES/273 (III)) declared:
“[Security Council] Decides in its judgment that Israel is a peace-loving State and
is able and willing to carry out the obligations contained in the Charter …”
Arab Losses Caused by Unlawful Acts of Aggression in 1967
In June 1967, the combined armies of Egypt, Syria, and Jordan attacked Israel
with the clear purpose expressed by Egypt’s President: “Destruction of Israel.” At
the end of what is now known as the Six-Day War, Israel, against all odds, was
victorious and in possession of the territories of the West Bank, Sinai and the
Golan Heights.
International law makes a clear distinction between defensive wars and wars of
aggression. Egypt’s blockade of the waterway known as the Strait of Tiran, which
prevented access to Israel’s southern port of Eilat, was an act of aggression that
led to the Six-Day War in 1967. More than six decades after the 1948 War and
four decades since the 1967 Six-Day War, it is hard to imagine the dire
circumstances Israel faced and the price it paid to fend off its neighbors’ attacks.
In 1967, the combined Arab armies had approximately 465,000 troops, more
than 2,880 tanks and 810 aircrafts,7
preparing to attack Israel at once. Israel,
faced with the imminent threat of obliteration, was forced to invoke its right of
self-defense, a basic tenet of international law, enshrined in Article 518
of the
United Nations Charter. Israel launched a surprised pre-emptive air strike
against Egypt on June 5, 1967.
Israel’s Wars with Her Neighbors are Zero-Sum Games
The Arab objective in the 1948 War of Independence, the 1967 Six-Day War and
the 1973 Yom Kippur War was to overrun and eradicate the Jewish state.
That objective is very much in the minds of Palestinian Arabs – in the leadership
and the general population, as well as in the minds of their brethren in other
Arab countries – though their tactics may have changed.9

1948: Arab League Secretary-General Azzam Pasha exulted: “This will be a war
of extermination and a momentous massacre which will be spoken of like the
Mongolian massacres and the Crusades.”
© 2009, Eli E. Hertz © 2009, Eli E. Hertz 2 2 Israel’s Major Wars Israel’s Major Wars1954: Saudi Arabian King Saud ibn Abdul Aziz: “The Arab nations should
sacrifice up to 10 million of their 50 million people, if necessary, to wipe out
Israel. … Israel to the Arab world is like a cancer to the human body, and the only
way of remedy is to uproot it, just like a cancer.”
1967: Egyptian President Gamal Abdel Nasser: “Our basic objective will be the
destruction of Israel.” (May 27, 1967, nine days before the start of the Six-Day
War)
1973: Libyan President Mohammar Qadaffi: “The battle with Israel must be such
that, after it, Israel will cease to exist.” (al-Usbu al-Arrabi, Beirut. Quoted by
Algiers Radio, Nov. 12, 1973)
1980: PLO representative in Saudi Arabia Rafiq Najshah: “There has been no
change whatsoever in the fundamental strategy of the PLO, which is based on the
total liberation of Palestine and the destruction of the occupying country…. On no
accounts will the Palestinians accept part of Palestine and call it the Palestinian
state, while forfeiting the remaining areas which are called the State of Israel.”
1996: Palestinian Chairman Yasser Arafat: “[Our aim is] to eliminate the State of
Israel and establish a purely Palestinian one.” (In a closed meeting with Arab
diplomats in Europe, quoted in the Middle East Digest, March 7, 1996)
1996: PLO spokesperson Bassam abu-Sharif: “The struggle against the Zionist
enemy is not a matter of borders but relates to the mere existence of the Zionist
entity.” (In an interview with the Kuwait News Agency, May 31, 1996)
2001: PA Minister for Jerusalem Affairs, Faisal al-Husseini: “The strategic goal
is the liberation of Palestine from the Jordanian [sic] River to the Mediterranean
Sea, even if this means that the conflict will last for another thousand years or for
many generations.” (In an interview with the Egyptian paper al-Arabi, June 24,
2001)
2003: Dr. Abdel Aziz Rantisi, the key leader of Hamas: “By God, we will not
leave one Jew in Palestine. We will fight them with all the strength we have. This
is our land, not the Jews’.” (In a telephone interview with Al Jazeera television.
Reported in the Jerusalem Times, June 10, 2003)
2007: Hamas’ statement in response to criticism by Al-Qaeda’s Ayman alZawahri, March 12, 2007: “We will not betray promises we made to God to
continue the path of Jihad and resistance until the liberation of Palestine, all of
Palestine …”
2009: Egyptian Cleric Muhammad Hussein Ya’qoub: “The Jews are the enemies
of Muslims regardless of the occupation of Palestine; you must believe that we
will fight, defeat, and annihilate them, until not a single Jew remains on the face
of the earth”
© 2009, Eli E. Hertz © 2009, Eli E. Hertz 3 3 Israel’s Major Wars Israel’s Major WarsWho Starts Wars Does Matter
UN Charter Article 51 clearly recognizes “the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of the United
Nations” by anyone.
The suggestion that a small country such as Israel should be expected to absorb
the shock of a first strike against horrendous odds or be branded an aggressor
abridges both the spirit and intention of Article 51. It also is untenable in practice,
as demonstrated in the existential threat and horrific cost in human life that
Israel suffered in the 1973 Yom Kippur War.
Recall that the government of Israel decided against a preemptive air strike, just
hours before the outbreak of the Yom Kippur War in 1973, choosing not to
jeopardize her support from Washington, after the Nixon Administration warned
Israel to allow the Arabs to fire the first shot and not make “provocative moves.”
The results for Israel’s “good” behavior: 2,222 Israeli dead and 5,596 wounded.
10

Arabs would like the world to believe that in 1967, Israel simply woke-up one
morning and invaded them, and therefore Israel’s control of the Golan Heights,
West Bank and Sinai is the illicit fruit of an illegal act – like Iraq’s invasion of
Kuwait in 1991.
Arab leaders ‘bundle’ the countries who fought Israel in the 1967 Six-Day War
into one ‘entity’ in order to cloud the issues. They point to Israel’s surprise preemptive attack on Egypt as an act of unlawful aggression, and add that this
“unlawful aggression” prevents Israel from claiming the Territories under
international law.
Professor, Judge Stephen M. Schwebel, past President of the International Court
of Justice (ICJ)
11
states the following facts:
“The facts of the June 1967 ‘Six Day War’ demonstrate that Israel reacted
defensively against the threat and use of force against her by her Arab neighbors.
This is indicated by the fact that Israel responded to Egypt’s prior closure of the
Straits of Tiran, its proclamation of a blockade of the Israeli port of Eilat, and the
manifest threat of the UAR’s use of force inherent in its massing of troops in
Sinai, coupled with its ejection of UNEF. It is indicated by the fact that, upon
Israeli responsive action against the UAR, Jordan initiated hostilities against
Israel. It is suggested as well by the fact that, despite the most intense efforts by
the Arab States and their supporters, led by the Premier of the Soviet Union, to
gain condemnation of Israel as an aggressor by the hospitable organs of the
United Nations, those efforts were decisively defeated. The conclusion to which
these facts lead is that the Israeli conquest of Arab and Arab-held territory was
defensive rather than aggressive conquest.”
© 2009, Eli E. Hertz © 2009, Eli E. Hertz 4 4 Israel’s Major Wars Israel’s Major WarsEgypt in 1956 and 1967
Before Israel’s pre-emptive and surprise attack on the Egyptian Air Force, a series
of belligerent acts by the Arab state justified Israel’s resort to arms in self-defense
in accordance with the Law of Nations.
The Egyptians were responsible for:
· The expulsion of UN peacekeepers from Sinai – stationed there since 1956 to act
as a buffer when Israel withdrew from Sinai;
· The closure of Israel’s outlet from the Red Sea in defiance of the Geneva
Conference of 1958 on free navigation “through straits used for international
navigation between one part of the high seas and … the territorial sea of a foreign
nation” (For 16 years Egypt illegally blocked Israeli use of the Suez Canal);
· The failure of the international community to break the blockade; and
· The massing of Egyptian forces in Sinai and moving them toward Israel’s
border.
12

In 1956, when Egypt provoked Israel by blockading the Red Sea – crippling her
ability to conduct sea trade with Africa and the Far East – the major Western
powers negotiated Israel’s withdrawal from the Sinai Peninsula, and agreed that
Israel’s rights would be reserved under Article 51 of the UN Charter if Egypt
staged future raids and blockades against Israel.
13

In 1967, Egypt’s closing of the Straits of Tiran to Israeli ships before June 5, was
an unlawful act of aggression. The Israeli response was a lawful act of selfdefense under Article 51 and UN General Assembly Resolution 3314.
Israel’s enemies and critics ignore or conveniently forget the facts, as Arabs and
their sympathizers continue to blame Israel for ‘starting’ the 1967 war.
Were the acts by Egyptian President Gamal Abdel Nasser in 1967 against Israel
aggressive enough to warrant Israel’s exercise of her right to self-defense?
The answer can be found on the official website of the Jordanian Government
14
under the heading “The Disaster of 1967.” It describes the events of the days prior
to June 5, 1967 and clearly indicates that Jordan, at least, expected Egypt to
launch the offensive war against Israel. Israel did not enter the West Bank until it
was first attacked by Jordan:
“On May 16, Nasser shocked the world by asking the United Nations to withdraw
its forces from Sinai. To the surprise of many, his request was honored two days
later. Moreover, the Egyptian president closed the Straits of Tiran on May 22.
Sensing that war was now likely, [And] … in response to the Israeli attack [on the
Egyptian Air Force], Jordanian forces launched an offensive into Israel, but were
soon driven back as the Israeli forces counterattacked into the West Bank and
Arab East Jerusalem.” [Italic by author]
In fact, Jordan was an illegal occupier of the West Bank from 1948 to 1967, and
the undisputable aggressor in the Six-Day War of 1967. Thus, Israel acted
© 2009, Eli E. Hertz © 2009, Eli E. Hertz 5 5 Israel’s Major Wars Israel’s Major Warslawfully by exercising its right of self-defense when it redeemed and legally
occupied Judea and Samaria, known also as the West Bank.
Israel had clarified to Jordan through UN diplomatic channels that it should stay
out of the war. It stated simply: “We shall not attack any country unless it opens
war on us.”
15
King Hussein of Jordan sent a reply via the UN envoy that “since
Israel had attacked Egypt, [Israel] would receive his reply by air” – a ‘message’
that came in the form of Jordanian air raids on civilian and military targets,
shelling Jerusalem with mortars and long-range artillery on Ben-Gurion Airport,
then extending the front to shelling Israel’s ‘narrow hips’ under the mistaken
belief that the Arabs were winning. Had Jordan heeded Israel’s message of peace
instead of Egypt’s lies that the Arabs were winning the war, the Hashemite
Kingdom could have remained neutral in the conflict, and Eastern Jerusalem and
the West Bank would have remained in Jordan’s possession. Jordan was far from
a ‘minor player’ in the Arabs’ war of aggression as their narrative implies. Israel
lost 183 soldiers in battle with Jordanian forces.
Judge Sir Elihu Lauterpacht wrote in 1968, just one year after the 1967 Six-Day
War:
“On 5th June, 1967, Jordan deliberately overthrew the Armistice Agreement by
attacking the Israeli-held part of Jerusalem. There was no question of this
Jordanian action being a reaction to any Israeli attack. It took place notwithstanding explicit Israeli assurances, conveyed to King Hussein through the U.N.
Commander, that if Jordan did not attack Israel, Israel would not attack Jordan.
Although the charge of aggression is freely made against Israel in relation to the
Six-Days War the fact remains that the two attempts made in the General
Assembly in June-July 1967 to secure the condemnation of Israel as an aggressor
failed. A clear and striking majority of the members of the U.N. voted against the
proposition that Israel was an aggressor.”
Professor, Judge Schwebel’s writings lead to the conclusion that under
international law, Israel is permitted to stay in the West Bank as long as it is
necessary to her self-defense.
Defensive Wars and Wars of Aggression
International law makes a clear distinction between defensive wars and wars of
aggression. All of Israel’s wars with its Arab neighbors were in self-defense.
Professor, Judge Schwebel, wrote in What Weight to Conquest:
16

“(a) a state [Israel] acting in lawful exercise of its right of self-defense may seize
and occupy foreign territory as long as such seizure and occupation are necessary
to its self-defense;
“(b) as a condition of its withdrawal from such territory, that State may require
the institution of security measures reasonably designed to ensure that that
territory shall not again be used to mount a threat or use of force against it of such
a nature as to justify exercise of self-defense;
© 2009, Eli E. Hertz © 2009, Eli E. Hertz 6 6 Israel’s Major Wars Israel’s Major Wars“(c) where the prior holder of territory [Jordan] had seized that territory
unlawfully, the state which subsequently takes that territory in the lawful exercise
of self-defense has, against that prior holder, better title.
“… as between Israel, acting defensively in 1948 and 1967, on the one hand, and
her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has
the better title in the territory of what was Palestine, including the whole of
Jerusalem, than do Jordan and Egypt.”
UN “Inadmissibility of the Acquisition of Territory by Force”
Most UN General Assembly Resolutions regarding Israel read at the start:
“Aware of the established principle of international law on the inadmissibility of
the acquisition of territory by force.”
Professor, Judge Schwebel, a former President of the International Court of
Justice (ICJ), explains that the principle of “acquisition of territory by war is
inadmissible” must be read together with other principles:
17

“… namely, that no legal right shall spring from a wrong, and the Charter
principle that the Members of the United Nations shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any State.”
Simply stated: Arab illegal aggression against the territorial integrity and political
independence of Israel, can not and should not be rewarded.
Judge Sir Elihu Lauterpacht, Judge ad hoc of the International Court of Justice,
argued in 1968 that:
18

“… Territorial change cannot properly take place as a result of the ‘unlawful’ use
of force. But to omit the word ‘unlawful’ is to change the substantive content of
the rule and to turn an important safeguard of legal principle into an aggressor’s
charter. For if force can never be used to effect lawful territory change, then, if
territory has once changed hands as a result of the unlawful use of force, the
illegitimacy of the position thus established is sterilized by the prohibition upon
the use of force to restore the lawful sovereign. This cannot be regarded as
reasonable or correct.”
Professor Julius Stone, a leading authority on the Law of Nations, stated:
19

“Territorial Rights Under International Law. … By their [Arab countries] armed
attacks against the State of Israel in 1948, 1967, and 1973, and by various acts of
belligerency throughout this period, these Arab states flouted their basic
obligations as United Nations members to refrain from threat or use of force
against Israel’s territorial integrity and political independence. These acts were in
flagrant violation inter alia [among other things] of Article 2(4) and paragraphs
(1), (2), and (3) of the same article.”
Columbia University Law Professor George Fletcher further clarified those points,
after the former UN Secretary-General Kofi Annan called Israel’s occupation of
lands acquired in the 1967 Six-Day War “illegal.”20
© 2009, Eli E. Hertz © 2009, Eli E. Hertz 7 7 Israel’s Major Wars Israel’s Major Wars“Annan, Fletcher suggested, is trying to redefine the Middle East conflict by
calling “Israel’s occupation of lands acquired in the 1967 Six-Day War ‘illegal.’ A
new and provocative label of ‘illegality’ is now out of the chute and running loose,
ready to wreak damage. The worst prospect is that Palestinians will dig in with a
new feeling of righteousness and believe that the international community will
force Israel to withdraw from its “illegal occupation.” … Israel’s presence in the
occupied territories is consistent with international law. In this context, the
choice of the words ‘illegal occupation’ is a perilous threat to the diplomatic
search for peace.”
Kofi Annan became victim to the ‘Occupation’ Mantra as his own organization
has repeated it over and over in its propaganda campaign to legitimize the Arab
position.
UN Security Council Resolutions 242 and 338
Because the Arabs were clearly the aggressors, nowhere in UN Security Council
Resolutions 242 or 338 – the cornerstones of a peace settlement – is Israel
branded as an invader or unlawful occupier of the Territories, nor is there any
call for Israel to withdraw from all the Territories. Palestinian Arab allegations
that the wording of 242 was “deliberately ambiguous” or misconstrued are
unfounded.
Resolutions 242 and 338 both rest on the concept of lawful occupations and
acknowledge the current legal status of western Palestine as one unit by its
reference to the lack of “recognized and secure boundaries.”
Strategically, the West Bank juts into Israel’s densely populated coastal plain, and
invites Arab aggression. Consequently, the Palestinians’ guerilla war on Israel is
not an isolated case. Palestinian forces repeatedly attacked Jews from Arabdominated areas of the West Bank before Israel ‘occupied’ the West Bank in 1967:
Jenin and Nablus on the West Bank were the heart of the 1936-39 Arab Revolt
that targeted both British authorities and Zionist settlements.
West Bank Arab villagers played a key role in this first stage of the 1948 war,
when organized armed gangs based on geographic and familial affinity cut off or
overran isolated Jewish settlements and laid siege to Jerusalem by attacking
Jewish convoys containing food, medical supplies and other essentials. This stage
of the war was also marked by several horrific war crimes, including the April
1948 massacre of a convoy of 78 doctors, nurses, patients, and their guards on
their way to Hadassah Hospital on Mount Scopus and the murder of 127 men and
women from the beleaguered village of Kfar Etzion near Bethlehem in May 1948
by a lynch mob of thousands of local Palestinian Arabs after the defenders
surrendered to the Jordanian Arab Legion.21
And during the early 1950s the West
Bank served as a safe haven for Palestinian infiltrators in a series of cross-border
terrorist attacks.
Nearly all of the above legal commentary regarding ‘wars of aggression’ was
written long before the Palestinian Authority, a semi-autonomous political entity,
© 2009, Eli E. Hertz © 2009, Eli E. Hertz 8 8 Israel’s Major Wars Israel’s Major Wars
Pineau arrived in Washington. … Pineau submitted to Dulles a draft resolution whereby 1) Israel
would withdraw unconditionally, and 2) Israel’s rights would be reserved under the Charter’s selfdefense clause if Egypt should go back to raids and blockades against her.” See:
http://www.time.com/time/time100/leaders/profile/bengurion_related5.html. (11297)
14
See Jordan official website: “The Disaster of 1967” at:
http://www.kinghussein.gov.jo/his_periods3.html. (10364)
15
See “Disputed Territories: Forgotten Facts About the West Bank and Gaza Strip,” Israel
Ministry of Foreign Affairs, February 2003, at: http://www.mfa.gov.il/mfa/go.asp?MFAH0n1m0.
(11939)
16
Professor, Judge Schwebel, “Justice in International Law,” Cambridge University Press, 1994.
Opinions quoted are not derived from his position as a judge of the ICJ.
17
Ibid. Professor, Judge Schwebel in “What Weight to Conquest?”
18
See “Jerusalem and the Holy Places,” The Anglo-Israel Association, October 1968, page 52. Sir
Elihu Lauterpacht has had a distinguished career in international law. He practiced extensively
before the International Court of Justice and other international jurisdictions. Among his
expertise are territorial disputes. Lauterpacht academic works include: “The Development of the
Law of International Organizations by the Decisions of International Tribunals” (1976), and
“Aspects of the Administration of International Justice (1991), as well as numerous articles. He
has systematically arranged and edited International Law: the Collected Papers of Hersch
Lauterpacht [His father who served as a judge in the International Court of Justice ICJ], the fifth
and final volume of which was published in 2004.
19
“Israel and Palestine, Assault on the Law of Nations” The Johns Hopkins University Press, 1981,
p. 127. The late Professor Julius Stone was recognised as one of the twentieth century’s leading
authorities on the Law of Nations. His short work represents a detailed analysis of the central
principles of international law governing the issues raised by the Arab-Israel conflict. He was one
of a few scholars to gain outstanding recognition in more than one field. Professor Stone was one
of the world’s best-known authorities in both Jurisprudence and International Law.
20
George P. Fletcher is a professor at Columbia University School of Law and author of
Romantics at War: Glory and Guilt in the Age of Terrorism. See “Annan’s Careless Language,” The
New York Times, March 21, 2002, at:
http://www.uscj.org/neweng/worcester/Link_Fletcher020321.htm. (10327)
21
The History of Gush Etzion, see: http://www.jafi.org.il/education/festivls/zkatz/atz/etzion9.html.
(11535)

Advertisements
This entry was posted in Uncategorized. Bookmark the permalink.

THANK YOU FOR YOUR COMMENTS. SHALOM!

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s