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In examining and giving his approval to the text of the Resolution 242, US Secretary of State Williams Rogers is reputed to have commented that the changes in the 1949 Armistice lines should be (1) "insubstantial alterations required for mutual security" and (2) that they "should not reflect the weight of conquest." (The text of Rogers statement published in full in New York Times, December 11, 1969, p. 16.)
Stephen Schwebel, formerly a Judge at the International Court of Justice, in an extensive comment, questions Rogers’ criteria in determining the limited extent of the changes demanded of Israel and the assumptions upon which the criteria were based.
"As a general principle of international law,..it is correct to say that there shall be no weight to conquest, that the acquisition of territory by war is inadmissible. But that principle must be read ….together with other general principles,… 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."
So read, the distinctions between
aggressive conquest and defensive conquest, [and]
between the taking of territory legally held and the taking of territory illegally held,
become no less vital and correct than the central principle itself. (gma emphasis and paragraphing) (see Schwebel, What Weight to Conquest”, Justice In International Law, Selected Writings pp 521-526: First published in (1970), American J. International Law 64)
Schwebel briefly surveys that factual events giving rise to Israel’s response to the Egyptian, Syrian and Jordanian aggressive moves prior to the outbreak of:
the Six Day War: (Egypt’s prior closure of the Straits of Tiran, blockade of the Israeli port of Eilat, massing of UAR’s troops in Sinai, and its ejection of UNEF); and
the 1948 Arab attack on the nascent State of Israel: (Egypt’s seizure of the Gaza Strip, and Jordan’s seizure and subsequent annexation of the West Bank and the old city of Jerusalem following Israel’s proclamation as an independent State within the boundaries allotted to her by the General Assembly’s partition resolution 181)
and concludes, in both cases, that not only was Israel reacted defensively against the threat and use of force against her by her Arab neighbours, but in addition the rejection by the Arabs of the Resolution 181 on partition was no warrant for the invasion by those Arab States of Palestine, whether of territory allotted to Israel, to the projected, stillborn Arab State or to the projected, internationalized city of Jerusalem.
It follows that the Egyptian occupation of Gaza, and the Jordanian annexation of the West Bank and Jerusalem, could not vest in Egypt and Jordan lawful, indefinite control, whether as occupying Power or sovereign ex injuria jus non oritur.
This conclusion impacts on the nature, timing and extent of Israeli withdrawal
a. Withdrawal - Within What Time Frame?
The language of Resolution 242 does not provide a time frame within which withdrawal should be implemented. How long, therefore, is Israel justified in delaying redeployment of its troops? Judge Schwebel suggests that in the absence of peace agreement, withdrawal of Israeli forces from captured territory is not required until a state of peace was established instead of belligerency, and that the continued Israeli occupation of Arab territory would be legal until such event.
Since Israel's action in 1967 was defensive and the danger in response to which that defensive action was still taken remains, occupation - though not annexation - is justified, pending a peace settlement
b. Conditional Nature and Extent of Israel’s Required Withdrawal
In contrasting conquest arising from defensive action from that of conquest by aggression, Judge Schwebel points out the implications and conclusions to be drawn:
Those distinctions may be summarized as follows: (a) a State acting in lawful exercise of its right of self-defence may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self defence; (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-defence; (c) where the prior holder of territory had seized that territory unlawfully, the State which subsequently takes that territory in the lawful exercise of self-defence has, against that prior holder, better title.
This last point (c) requires some further examination because it raises by implication the issue of the legitimacy of Israeli civilian settlement in the West Bank.
c. Defensive Conquest Gives Better Title than Conquest by Aggression
Inasmuch as Israeli action in 1967 was defensive and the 1948 aggressive Arab action was inadequate to legalize Egyptian and Jordanian taking of Palestinian territory, in Judge Schwebel’s opinion, Israel has better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt. It therefore follows that the application of the Rogers’ doctrine of “according no weight to conquest” requires to be modified.
“[I]t follows that modifications of the 1949 armistice lines among those States within former Palestinian territory are lawful (if not necessarily desirable), whether those modifications are, in Secretary Rogers's words, "insubstantial alterations required for mutual security" or more substantial alterations - such as recognition of Israeli sovereignty over the whole of Jerusalem.”
The state of the law has been correctly summarized by Elihu Lauterpacht, as follows:
"[T]erritorial 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." (Elihu Lauterpacht, Jerusalem and the Holy Places, Anglo-Israel Association, Pamphlet No. 19 (1968), p. 52. cited in Schwebel)
While legal analysis may provide some assistance in the search for a resolution of the local and regional conflict between Israel on the one hand and Palestinians and Syria on the other, the root of the current Middle East impasse continues to lie in the dissemination of hate emanating from Arab media, mosques and schools, directed at the West in general, and Israel in particular, together with the lack of political will and effective leadership in all parties to substitute co-existence for violence.
Of considerable impact, however, is the ripple effect which mid-eastern regional political instability has on the global community. The continuing Western reliance on Arab oil resources coupled with the aggressive nature of expanding Islamic fundamentalism backed by Iranian aspirations to attain nuclear capability should also now be of major concern.
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