47 Spring 2023 By acknowledging and presenting the persistent, differing interpretations of the parties, Professor Sabel provides an instructive presentation for the reader. Professor Sabel’s treatment of two notorious episodes during the 1948 war is illustrative. On April 9, 1948, prior to the declaration of the establishment of Israel on May 14, 1948, members of the Irgun (two Israeli armed groups, Etzel and Lehi, which later were compelled by the government of Israel to join the Israel Defense Forces, and which for years had engaged in terrorist attacks against British and Arab forces and individuals), attacked the village of Deir Yassin near Jerusalem, killing more than 100 civilians. Reports of this attack and rumors of others help explain why Arab villagers fled their homes. At this stage of the war, moreover, there was no State of Israel and so no international armed conflict. Nonetheless, as Professor Sabel notes, the attack constituted a “gross” violation of the laws of war. On April 13, 1948, an Arab attack on a convoy mainly of doctors and nurses heading to the Hadassah Hospital also constituted a war crime. According to Professor Sabel, relying on a number of different historians with different perspectives on the conduct of military operations in 1948, irregular armed forces on both sides thus committed war crimes. War crimes diminished in number after Israel’s declaration of statehood when all belligerents agreed to abide by the laws of war. The Palestinian refugee issue originated in the 1948 war. Professor Sabel examines the origin of the problem, the differing views as to its causes, and efforts to resolve it. Today, as they have for several years, the Palestinians claim an international law “right of return,” meaning that all Palestinian Arab refugees who in the course of the 1948 war left homes in what is now Israel, and descendants of those refugees, have a right to return to the homes that they left. Israel disputes that such a right exists in international law. In July 1950, Israel adopted a domestic immigration law providing that “Every Jew has the right to come to this country as an ‘oleh’ [a Jew immigrating to Israel].” Every state has the right to adopt immigration policies and laws. Israel is no different in this regard. Its law is known as the Law of Return. That does not mean such a right of return exists in international law. While perhaps as many as 700,000 persons constituted refugees in 1948, adding their descendants to this number increases the figure to some seven million people. Toward the end of his presidency, Bill Clinton noted that Israel cannot agree to such a claim without risking destruction by demography. Professor Sabel takes the reader through the legal literature on refugees and their rights. UN General Assembly Resolution 194 (1948) stated that refugees wishing to return to their homes and live in peace “should be permitted to do so.” Arab governments, the Palestinians, and a number of academic commentators have insisted that this resolution represents international law, even though the General Assembly’s power under the UN Charter does not include, per se, the power to make international law or say what it is. Even such a clever politician as President Bill Clinton was unable to find a solution to the Arab refugee problem that Israel and the Arabs could accept. It has not been possible even to reach agreement on a claims commission to assess compensation for both Palestinians and Jews forced out of their homes. Professor Sabel suggests that Israel has the capacity to take in living refugees from the 1948 war, but not their descendants who might want to live in Israel; he notes that parties have never entertained the idea. So far, what UN Security Council Resolution 242 (1967) called a “just settlement of the refugee problem” has eluded negotiators. The unwillingness of Palestinians and some Arab states to accept Israel’s existence is the source of the so far insoluble Arab-Israeli problems. Thus, for example, the parties have not been able to accept in a formal sense practical solutions to conflicting claims and needs to shared water resources dating back to sensible proposals by the Eisenhower administration. That said, Professor Sabel notes as an example that Syria and Israel will have to find a compromise if they are ever to achieve an acceptable regime regarding water resources. Robbie Sabel’s book is an outstanding contribution to understanding how international law runs through the Arab-Israeli conflict from the beginning, however one dates the start of the conflict. Among the inescapable conclusions are that true Arab-Israeli peace must be grounded in law, law all parties can accept. That will require compromises by both sides. n Nicholas Rostow is a Senior Research Scholar, Yale Law School; Senior Partner, Zumpano, Patricios & Popok, PLLC (New York, N.Y.), and Visiting Professor, Cornell Law School, Spring 2023.
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