The July 2017 issue of the Israel Law Review celebrated the fiftieth anniversary of its publication, and for that occasion selected five articles (one for each decade) which, in the Editors’ view, ‘had a lasting impact on scholarly debate and beyond’. For the first decade the Editors chose my article ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria’, which appeared in the July 1968 issue, and asked Professor Eyal Benvenisti to comment on my piece, which he did under the title ‘An Article that Changed the Course of History?’ Not unexpectedly, Benvenisti has made a frontal attack on the central thesis of my article, which he reproduced in virtually identical language in the April 2017 issue of the American Journal of International Law.Footnote ¹

In the wake of the Six-Day War of 1967 Jerusalem experienced an influx of visitors – including many distinguished authorities on international law. Among them were Sir Elihu Lauterpacht of Cambridge, Professor Julius Stone of Sydney (Australia), and Professor Stephen Schwebel of Johns Hopkins University (later to become Judge and President of the International Court of Justice). That gave me a rare chance to discuss with them some of the legal problems relating to the outcome of the 1967 hostilities. While we had different ideas on these problems, we were agreed on two points:

1. 1. Jordan and Egypt had lost whatever rights they might have possessed in the territories of the former Palestine Mandate they had captured in the course of the hostilities of 1948.

2. 2. Israel had potentially better title to those territories than any other Power.

It was against this background that I published the article under scrutiny here. Elihu Lauterpacht had just published his book Jerusalem and the Holy Places Footnote ² and, while I agreed with his conclusions, I did not accept entirely his line of argumentation. Julius Stone was perhaps the closest to my way of thinking (it was he who actually suggested the words ‘missing reversioner’ in the title of my article), and he then published a piece of his own along those lines.Footnote ³ Stephen Schwebel offered the ‘better title’ argument to which I made a cursory reference in my article. In 1970 Schwebel published an editorial comment in the American Journal of International Law under the title ‘What Weight to Conquest?’, in which he stated that ‘Israel has better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt’.Footnote ⁴

As Benvenisti pointed out, I was a young lecturer at the time – a deficiency that is normally cured by the passage of time. I somehow felt that I had not sufficiently dealt with the basic issues of my article. I therefore engaged in further research and tried to expand and elaborate (or, if you will, even refine) my line of argumentation.

The product of my further research was published in two stages: first, in 1971 my book Secure Boundaries and Middle East Peace;Footnote ⁵ second, in 1974 an article entitled ‘The Juridical Status of Jerusalem’.Footnote ⁶ Regrettably, all this seems to have escaped Benvenisti's attention.

My position, as it evolved in the late 1960s and early 1970s, may be summarised as follows:

1. 1. The Arab armies, including those of Transjordan and Egypt, committed armed aggression when they crossed the boundaries of Palestine on the expiry of the British Mandate. Both the United States and the Soviet Union, along with most members of the UN Security Council, condemned the Arab states as aggressors. Soviet Ambassador Gromyko went so far as to speak of aggression against ‘the national liberation movement in Palestine’ – meaning Zionism.Footnote ⁷

2. 2. An aggressor can at best claim the rights of belligerent occupant in the territory captured by his aggression and loses whatever rights he might have possessed when ousted from the illegally captured territory.

3. 3. It follows that Transjordan's purported annexation of Judea and Samaria was invalid from the outset and certainly devoid of all legal effect after that (Egypt never asserted any rights of sovereignty in the Gaza Region).

4. 4. Israel has better title than any other Power within the territory of the former Palestine Mandate, including the whole of Jerusalem. Schwebel's argument rests on solid legal foundations. This approach had been applied by the International Court of Justice in the Minquiers and Ecrehos case, in which it stated that the Court, when faced with competing claims to territory, will ‘appraise the relative strength of the opposing claims to sovereignty’.Footnote ⁸

5. 5. As the very title of the Fourth Geneva Convention of 1949Footnote ⁹ indicates, the Convention deals with the protection of civilians; it is not concerned with the protection of claims of states (including claims to sovereignty, especially when such claims are based on acts of armed aggression).

6. 6. Article 49 of the Fourth Geneva Convention does not apply to Jews settling in Judea, Samaria and the Gaza Region, for the local residents were not ‘deported’ or otherwise expelled from their homes and the Jewish settlers were not ‘transferred’ to those areas by the Israeli government, but went there voluntarily.

When the former Kingdom of Transjordan – situated entirely beyond the east bank of the Jordan River – purported to annex Judea and Samaria on the west bank of that river, it also changed its name to The Kingdom of Jordan. Leaving aside the fact that all of Israel is situated west of the Jordan River, it is clear that the use of the term ‘West Bank’ to connote Judea and Samaria is dictated by political rather than geographical considerations. In the 1930s, under the Palestine Mandate, Hugh Foot – better known as Lord Caradon, Britain's Ambassador to the United Nations in the 1970s and the formal sponsor of Security Council Resolution 242 – served as Assistant District Commissioner of Samaria. The current well-nigh universal use of the term ‘West Bank’ in preference to Judea and Samaria not only prejudges the matter at issue, but also serves as clear evidence that, when it comes to Israel, more often than not political considerations prevail over legal ones.

It is undeniable that international law is inextricably intertwined with politics, both international and domestic. It cannot be otherwise, for states are not only the main subjects of international law, but also actively participate in the formation and development of its norms, thereby seeking to safeguard their own interests.

In introducing the bill that was to become the ‘Jerusalem Law’ of 27 June 1967, Minister of Justice Ya'akov Shimshon Shapira told the Knesset:Footnote ¹⁰

It will be recalled that the provisions of the law of 27 June 1967 have so far been applied merely to the eastern part of Jerusalem, but its non-application to other parts of Eretz Israel that came under Israeli control as a result of the Six-Day War is explained by political – as distinct from legal – considerations.

If one assumes that Minister of Justice Shapira, a former Attorney General and a leading member of Prime Minister Eshkol's cabinet, sought guidance from a young lecturer on the juridical status of Jerusalem, and did so based on an article that was to be published more than one year later, one must also assume that Minister Shapira was endowed with prophetic powers and was walking in the footsteps of fellow Jerusalemites Isaiah and Jeremiah. The same also applies to the Military Governor of Judea and Samaria who, in December 1967, repealed Article 35 of his Proclamation No 3 of August 1967 in anticipation, as it were, of my article published in the July 1968 issue of the Israel Law Review. It is to such absurdities that ideological ‘lawfare’ has led Benvenisti in his remarks.

In the Introduction to my book Will ‘Justice’ Bring Peace?,Footnote ¹¹ containing a selection of my articles and legal opinions written over half a century, I wrote: ‘It is quite likely that the article discussing the juridical status of the West Bank in the wake of the Six-Day War of 1967 (“The Missing Reversioner: Reflections on the Status of Judea and Samaria”) would have undergone, if written now, some changes in the light of later developments, primarily the Israel-PLO Declaration of Principles of 1993 and subsequent agreements based on it (commonly referred to as the “Oslo Accords”)’. Tempora mutantur et nos mutamur in illis.

For the first decade after the publication of the ‘Missing Reversioner’ article Israel was governed by successive Labour-led coalitions. In actual fact, Minister of Labour (later Foreign Minister) Yigal Allon of the Labour Alignment championed the establishment of settlements in Hebron and the Jordan Valley (the ‘Allon Plan’) as well as in the Gaza Region. Minister of Defence Shimon Peres initiated the establishment of settlements in Samaria. Thus, the policy initiated by the Labour-led governments was only continued – and intensified – when Begin's Likud Party won the elections in 1977.

Benvenisti would have done well to heed and apply to himself the admonition of Meir Shamgar – whom he quotes with approval – who, in 1971 as Attorney General (later a Justice and President of Israel's Supreme Court), spoke ofFootnote ¹²

For some reason, Benvenisti seems to imply that his reasoning is above ‘innate prejudices and deep-seated subjective outlook’.Footnote ¹³