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Israel’s Major Wars. The Legal Aspects of Coming into Possession of the Territories, Eli E. Hertz

Un document clair fort bien documenté, sans jargon. Traduction souhaitée (amateurs s’abstenir) ! (Menahem Macina).

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 the 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.”

1954: 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”

Who 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.”

Egypt 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 Government14 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 lawfully 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 Con quest: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;

“(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

“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, launched a vicious guerilla war against Israel in October 2000. But the insights and opinions voiced, beg the question – should Palestinians not be considered accountable for their repeated aggression when it comes to setting “secure and recognized borders”?


Eli E. Hertz


© Myths and Facts




1 “From Mandate to Partition, Lessons Learned or Mistakes Repeated – The United Nations and Palestine,” al majdal, December 2000. Dans cette critique, le magazine justifie le rejet du Plan de Partage de 1947, puis accuse l’ONU de n’être pas intervenue pour l’imposer en 1948, quand les Palestiniens commençaient à perdre la guerre, et il décrète que le problème des réfugiés est "la conséquence de l’inaction de l’ONU” (11286)

2 “Back to the Future: NPR Rewrites Israel’s War of Independence” citing A. J. Barker, The Arab Israeli Wars, October 9, 2002, Ici.

3 For a study of the struggle to obtain arms for the state in the making, see Leonard Slater, “The Pledge,” Simon and Schuster, 1970.

4 Between November 1947 – July 1949. Voir ici :

5 For an overview of this, see Yoav Gelber, “Why Did the Palestinians Run Away in 1948?” December 10, 2002, History News Network (10623).

6 UN Security Council 69 (S/RES/69, 4 March 1949. See: UN General Assembly 273 (III) A/RES/273, 11 May 1949. See:

7 Cited in “Occupied Territories: Forgotten Facts About the West Bank and Gaza Strip,” Ministry of Foreign Affairs, February 2003, at: TERRITORIES- Forgotten Facts About the We.htm. (11287)

8 See:

9 In 1999, at the height of optimism regarding an impending settlement, 80 percent of the public in neighboring countries supported continuing the conflict and 54 percent wanted Israel to ‘disappear.’ See data cited in conclusion of Antisemitism Worldwide 1999/2000, Institute for the Study of Contemporary Antisemitism and Racism, Tel Aviv University,­Semitism/asw99-2000/arab.htm. More indirect tactics include the ‘phase strategy’ to gain the West Bank, then attack Israel, and use demography as a weapon – Palestinians have the highest birthrate in the world, twice as high as the overall Arab world’s high birthrate. Another tactic is to use the Right of Return and demand that Israel accept Arab refugees.

10 Carta’s Atlas of Israel: The Third Decade 1971-1981, p.130. By comparison, in the Six-Day War a three-front war, not a two-front war, Israel sustained 759 fatalities.

11 Professor, Judge Schwebel has served on the International Court since 15 January 1981. He was Vice-President of the Court from 1994 to 1997 and President from 1997 to 2000. A former Deputy Legal Adviser of the United States Department of State and Burling Professor of International Law at the School of Advanced International Studies of The Johns Hopkins University (Washington). Judge Schwebel is the author of numerous books and articles on problems of international law and organization, including the notable “Justice in International Law,” Cambridge University Press, 1994. Opinions quoted are not derived from his position as a judge of the ICJ.

12 See UN General Assembly Resolution 3314. (10378)

13 See Cato Policy Analysis No. 159; The Suez Crisis, 1956, "Ancient History": U.S. Conduct in the Middle East Since World War II and the Folly of Intervention, by senior editor Sheldon L. Richman. See: In, see the section titled “Time 100” and dedicated to the most important people of the 20th century, including the section devoted to David Ben-Gurion and describing UN deliberation over the war of 1956 – The Sinai Campaign, states: “At this point, France’s Premier Guy MoDd and Foreign Minister Christian 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: (11297)

14 See Jordan official website: “The Disaster of 1967” at: (10364)

15 See “Disputed Territories: Forgotten Facts About the West Bank and Gaza Strip,” Israel Ministry of Foreign Affairs, February 2003, at: (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: (10327)

21 The History of Gush Etzion, see: (11535)This document uses extensive links via the Internet. If you experience a broken link, please note the 5 digit number (xxxxx) at the end of the URL and use it as a Keyword in the Search Box at:


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