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The Six-Day War and the Right of Self-Defence

Published online by Cambridge University Press:  12 February 2016

Amos Shapira
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A.Brief Factual Background: It is not proposed here to unfold the entire history of the Arab-Israel conflict. Our purpose is rather to outline briefly the major, and by and large undisputed, events preceding the outburst of all-out hostilities on the morning of June 5, 1967.

In the aftermath of the first Arab-Israel war, in 1949, Israel and the surrounding Arab countries signed armistice agreements, according to which all hostile military activities between the signing parties were to cease. However, throughout the years following the signing of the agreements, innumerable border incidents, military or semi-military raids and reprisals, sabotage and mining operations, and other belligerent actions occurred, each side charging the other with aggression. In May 1948, Egypt closed the Suez Canal to passage by Israeli shipping and, at the end of 1949, installed guns at Sharm-el-Sheikh, overlooking the Straits of Tiran, thus blockading the Israeli port of Eilat. To justify her actions, Egypt persistently asserted the existence of a “state of war” or “state of belligerency” between Israel and herself, irrespective of the armistice agreement and her obligations under the United Nations Charter. In October 1956, the second Arab-Israel war, known as the Suez (or Sinai) Campaign, broke out. But even this violent confrontation and the arrangements which followed, including the stationing of the United Nations Emergency Force (UNEF) in the Gaza Strip and Sharm el-Sheikh, did not bring about stability and peace. Tension continued to mount in the area.

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Articles
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Israel Law Review , Volume 6 , Issue 1 , January 1971 , pp. 65 - 80
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1971

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References

1 For a detailed and amply documented survey, see Draper, , Israel and World Politics (N.Y., The Viking Press, 1968)Google Scholar; see also e.g., Laqueur, , The Road to War (London, Weidenfeld & Nicolson, 1968)Google Scholar; Safran, , From War to War, The Arab-Israeli Confrontation, 1948–1967 (N.Y., Pegasus, 1969)Google Scholar; “The Arab-Israeli Conflict (The 1967 Campaign)”, Keesing's Research Report (1968); Yost, , “The Arab-Israeli War—How it Began”, (1967–1968) 46 Foreign Affairs, 304Google Scholar; Lapidoth, , “The Security Council in the May 1967 Crisis: A Study in Frustration”, (1969) 4 Is.L.R. 534Google Scholar; Israel Ministry of Foreign Affairs, The Arab War Against Israel, Statements and Documents (Jerusalem, 1967); for an Arab-oriented view of the events precipitating the Six-Day War, see Khouri, , The Arab-Israeli Dilemma (1968), 242–92.Google Scholar

2 For official Egyptian statements to this effect, see, e.g. S.C.O.R., 659th Mtg., Feb. 15, 1954, para. 26, p. 5; ibid., 686th Mtg., Dec. 7, 1954, para. 100, p. 20. The Security Council, in Resolution 95 of September 1, 1951, called upon Egypt to “terminate the restrictions on the passage of international commercial shipping and goods through the Suez Canal wherever bound”. It further declared that “since the armistice regime‥is of a permanent character, neither party can reasonably assert that it actively is a belligerent…” There is strong support in professional literature for the view that the Egyptian claim of belligerency is in violation of the United Nations Charter. See, e.g., Feinberg, , The Legality of a “State of War” After the Cessation of Hostilities (Jerusalem, 1961)Google Scholar; Wright, , “Legal Aspects of the Middle East Situation”, (1968) 33 Law & Contemp. Prob. 5, 16–17CrossRefGoogle Scholar; Lauterpacht, E. “The Legal Irrelevance of the ‘State of War’“ (1968) 58 Proceedings, Am. Soc. Int'l. L. (62nd Annual Meeting)Google Scholar. But see Baxter, “The Legal Consequences of the Unlawful Use of Force Under the Charter”, ibid., 68. The “insistence on maintaining the state of belligerence”, writes Julius Stone, “…constituted in effect a continuing declaration of war.” The Middle East Under Cease-Fire (Sydney, Australia, A Bridge Publication, Oct. 1967), p. 4.

3 See The New York Times, April 8, 1967.

4 See the statement of Secretary General U Thant at the United Nations, Press Conference, May 11, 1967 (Press Release SG/SM/708), p. 13.

5 Quoted from the official Israeli Weekly News Bulletin (May 9–15, 1967), p. 20. President Nasser later justified his decision to move Egyptian troops to the Israeli border and to close the Straits of Tiran by characterizing these statements as a threat which “reached an extent that no one would accept…if Israel wanted to threaten war—which it actually did—then Israel is welcome”. Press Conference of President Nasser at the Presidential Palace, May 28, 1967. In his famous speech of resignation on June 9, President Nasser alluded to reports, of Soviet origin, which had convinced him of Israeli troop concentrations on the Syrian frontier early in May. See the Reuters report in The New York Times, June 10, 1967. See also the speech of President Nasser at Cairo University Auditorium, July 23, 1967. In his report to the Security Council of May 19, 1967, however, Secretary General U Thant stated: “There have been in the past few days persistent reports about troop movements and concentrations, particularly on the Israel side of the Syrian border…The Government of Israel very recently has assured me that there are no unusual Israel troop concentrations or movements along the Syrian line…Reports from UNTSO Observers have confirmed the absence of troop concentrations and significant troop movements on both sides of the line.” Doc. S/7896, para. 9. It should be noted that this report was available to President Nasser a few days before his announcement regarding the closure of the Straits of Tiran. See infra.

6 See the Report of the Secretary General to the General Assembly on the withdrawal of the United Nations Emergency Force, of June 26, 1967, Doc. A/6730. See also his earlier Reports to the General Assembly of May 18, 1967, Doc. A/6669; and to the Security Council of May 19, 1967, Doc. S/7896.

7 See the Report of the Secretary General to the Security Council of May 26, 1967, Doc. S/7906, paras. 10–13.

8 Quoted from the speech of President Nasser to the Central Council of the International Confederation of Arab Trade Unions, May 26, 1967. For the reaction of the Egyptian semi-official press, see Howard, and Hunter, , “Israel and the Arab World: The Crisis of 1967”, Adelphi Papers, No. 41 (London, The Institute for Strategic Studies, October 1967), p. 24.Google Scholar

9 See the speech of Prime Minister Eshkol in the Knesset, May 22, 1967.

10 That much is conceded even by Muhammad Hassanein Heykal, President Nasser's spokesman, in his semi-official newspaper al Ahram (Cairo), October 6, 1967.

11 It is, nonetheless, widely believed that Israel “fired the first shot”. “There is no doubt that Israel initiated the attack,” writes Safran, but adds: “Those who would draw from this the conclusion that Israel was the ‘aggressor’ confuse attack and aggression—two different ideas. ‘The aggressor’, as Taine put it, ‘is the one who makes war unavoidable.’ And Heykal wrote a whole column in al Ahram of May 26, 1967, to demonstrate that ‘Nasser's moves had made war unavoidable”. Op. cit., note 1, p. 320, n. 4.

12 Draper, op. cit., note 1, p. 76.

13 Bowett, , Self Defence in International Law (1958), 185.Google Scholar See also pp. 12, 13.

14 Stone, op. cit., note 2, p. 10 (emphasis in the original). See generally, Stone, , Aggression and World Order (1958), 92–103Google Scholar, where the author notes that “…any implied prohibition on Members to use force seems conditional on the assumption that effective collective measures can be taken under the Charter to bring about adjustment or settlement…[T]o assume that this extreme view [of the prohibition of legal resort to force under Article 2 (4)] can be constructed…regardless of whether the machinery for adjustment works or has any prospect of working is…[to require] Members to submit abjectly and without respite to any and all wrongs which do not involve ‘armed attack on a Member’ within Article 51…[T]he extreme view of Article 2 [4]…is neither self-evident nor even beyond reasonable doubt‥[I]t is well to pause and consider how it would be if States were committed by Membership in the United Nations to submit, in default of collective action, to all kinds of illegality, injustice and inhumanity…[A]re we to say that resort to force [as a means of vindicating rights] has been completely outlawed, even when no substitute means of relief is available?” Id. pp. 96, 97, 98, 99, 100. See also, Kelsen, , Principles of International Law (2nd rev. ed., Tucker, 1966), 67, 68, 71, 83, 84, 85Google Scholar; but see ibid., 66–67, 85–87.

15 See Kelsen, , The Law of the United Nations, (1950), 791–92.Google Scholar

16 See ibid., 914; Bowett, op. cit., note 13, pp. 185, 187; Kelsen, op. cit., note 14, pp. 73–83.

17 Bowett, for example, maintains that the Charter does not contain any prohibition of action which would be regarded as a legitimate exercise of the right of self-defence under general international law. Both the language and the “legislative history” of Article 51, he claims, suggest the intention to safeguard, not restrict, the customary right of self-defence, which is an existing right, independent of the Charter and not the subject of an express grant. Op. cit., note 13, pp. 85, 191; see also Kelsen, op. cit., note 14, pp. 68–69; cf. Brierly, , The Law of Nations (Waldock, 6th ed., 1963), 416–20.Google Scholar

18 Kelsen observes that: “For those who do not accept [the natural-law doctrine], Article 51 has in spite of its wording, a constitutive character. It is this article which establishes the right of self-defence; and this right, as a right which states have in their capacity as Members of the United Nations, has no other content than the one determined by Article 51.” Op. cit., note 15, p. 914.

19 See generally Stone, op. cit., note 14, pp. 72–76; Kelsen, op. cit., note 14, pp. 69–71; Feinberg, , “The Question of Defining Armed Attack”, Mélanges Gidel (Paris: Sirey, 1961), 257–73.Google Scholar

20 Kelsen, op. cit., note 15, p. 269.

21 “It is of importance to note,” writes Kelsen, “that Article 51 does not use the term ‘aggression’ but the much narrower concept of ‘armed attack,’ which means that a merely ‘imminent’ attack or any act of aggression which has not the character of an attack…does not justify resort to force as an exercise of the right established by Article 51.” Ibid., pp. 797–98. As an authority for his position, Kelsen relates the fact that the San Francisco Conference rejected the following draft amendment (introduced by the French delegate): “Should the Council not succeed in reaching a decision, the Members of the Organization reserve to themselves the right to act as they may consider necessary in the interest of peace, right and justice.” See also, Kelsen, op. cit., note 14, p. 72. Lauterpacht takes a similar stand: “[T]he Charter confines the right of armed self-defence to the case of an armed attack as distinguished from anticipated attack…” Oppenheim-Lauterpacht, , International Law, vol. II (7th ed., 1952) 156.Google Scholar See ibid., 154–59. See also, Brownlie, , International Law and the Use of Force by States (1963), 278, 367CrossRefGoogle Scholar; Kunz, , “Individual and Collective Self-Defence in Article 51 of the Charter of the U.N.”, (1947) 41 Am. J. Int'l. L., 872, 878.CrossRefGoogle Scholar But see Stone, , Legal Controls of International Conflict (1954) 242–46.Google Scholar

22 See, e.g., Bowett, op. cit., note 13, pp. 104, 148, 152, 192; Higgins, , The Development of International Law Through the Political Organs of the United Nations (1963), p. 200Google Scholar, n. 49, p. 201; McDougal, and Feliciano, , Law and Minimum World Public Order (1961), 229–44Google Scholar; Waldock, , “The Regulation of the Use of Force by Individual States in International Law”, (1952–II) 81 Recueil des Cours de l'Académie de Droit international de la Haye, 455, 497–98Google Scholar; Schwarzenberger, , “The Fundamental Principles of International Law” (1955–I) 87 Recueil des Cours de l'Académie de Droit international de la Haye, 195, 332–35.Google ScholarCf. “The Corfu Channel Case” (1949) I.C.J. Reports, 4; Goodrich & Hambro, The Charter of the United Nations (2nd ed., 1949), 300, 301.Google Scholar On the concept of “preventive war” see, e.g., Potter, , “Preventive War Critically Considered”, (1951) 45 Am. J. Int'l L., 143.CrossRefGoogle Scholar The Report of the United Nations Atomic Energy Commission of December 1946 stated that: “[I]n consideration of the problem of violation of the terms of the treaty it should also be borne in mind that a violation might be of so grave a character as to give rise to the inherent right of self-defence recognised in Article 51 of the Charter of the United Nations.” Repertory of Practice of United Nations Organs, Vol. II (1955), 435. In Resolution 191 (III) of November 4, 1948, the General Assembly approved, by 46 votes to 6, the general findings and recommendations of the Report. This approval seems to endorse the view, that grave violations of the treaty on international control of atomic energy might, in themselves, be regarded as an “armed attack” within the meaning of Article 51.

23 See McDougal & Feliciano, op. cit., note 22, p. 218; Schwarzenberger, , “Report on Some Aspects of the Principle of Self-Defence in the Charter of the United Nations and the Topics Covered by the Dubravnik Resolution”, (1958) 23 Int. Law Assoc.Google Scholar; cf. Kahn, , On Escalation (1968), 123–24Google Scholar; see also Dinstein, , “The Legal Issues of ‘Para-war’ and Peace in the Middle East” (1970) 44 St. John's L.R. 466, 468–70.Google Scholar

24 “An attack,” writes Stone, “may be against a State even if the attackers are stopped on the very frontier, or five yards, or (for that matter, considering the speed of modern aircraft or even mechanised units) five miles, from it…[T]he question of lawfulness of self-defensive action depend[s] not on the technicality of which side's soldiers, or shells, or tanks or aircraft first physically passed the frontier; but rather on another…question. Which side was it, in all the circumstances…which produced a military situation in which the only two options given to the opponent were either to resort to arms, or submit to destruction?” Op. cit., note 2, pp. 7, 8. Compare the test of good faith and reasonableness suggested in the text with the criterion formulated by United States Secretary of State Webster, in 1841 during the Caroline dispute (1840/41) 29 British and Foreign State Papers, 1129, 1138. See Jennings, , “The Caroline and McLeod Cases”, (1938) 32 Am. J. In'l. L., 82.CrossRefGoogle Scholar See also, Wright, , “The Meaning of the Pact of Paris”, (1933) 27 Am. J. In'l L. 39, 54.CrossRefGoogle Scholar

25 See Lapidoth, op. cit., note 1, particularly pp. 543–49. See, generally, Lall, , The United Nations and the Middle East Crisis, 1967 (1968).Google ScholarCf. Higgins, , “The Place of International Law in the Settlement of Disputes by the Security Council”, (1970) 64 Am. J. Int'l L., 1, 12, 18CrossRefGoogle Scholar; Blum, “The Beirut Raid and the International Double Standard”, ibid., 98–104.

26 Both Stone, op.cit., note 2, pp. 7–8 and Wright, op. cit., note 2, p. 27, reach the same conclusion. See also, O'Brien, , “International Law and the Outbreak of War in the Middle East, 1967”, (1967) 11 Orbis, 692, 722–23Google Scholar; Berman, , “Recrudescence of the ‘Bellum Justum et Pium’ Controversy and Israel's Reunification of Jerusalem”, (1969) 7 International Problems, 29, 32–33Google Scholar; Lapidoth, , “The Security Council Resolution of November 22, 1967 Concerning the Middle East”, (1969) 15 Gesher, 8, 12 (in Hebrew)Google Scholar; Feinberg, , The Arab-Israel Conflict in International Law (Jerusalem, Magnes Press, 1970), 114–15.Google Scholar Professor Falk expresses his strong conviction that “Israel was entitled to strike first in June of 1967, so menacing and imminent was the threat of aggression being mounted against her.” Correspondence, Reply to Professor Julius Stone, (1970) 64 Am.J.Int'l.L. 162, 163. The same position is taken by Professor Schwebel—see Editorial Comment, “What Weight to Conquest?”, (1970) 64 Am.J.Int'l.L., 344–47.

27 Article 51 authorizes resort to self-defence only “until the Security Council has taken the measures necessary to maintain international peace and security”. It also directs that “measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council…”

28 See Wright, op. cit., note 2, p. 27.

29 Stone suggests that a protagonist of the Israel case could make such an argument, see op. cit., note 2, p. 6. E. Lauterpacht observes that the defending state “may take such measures as are necessary to repel the attack, to restore the status quo ante and perhaps to exclude the renewal of aggressive measures,” though it is not entitled “to annex the whole of the attacker's territory”. Op. cit., note 2, p. 64 (emphasis added). Baxter goes even further maintaining that “it is conceivable that in some instances the complete subjugation of a persistent aggressor may be the only way to maintain the territorial integrity and political independence of the state attacked. And it has been asserted that in appropriate instances the victim of aggression may be entitled to claim some of the territory of its aggressive enemy for its own protection.” Op. cit., note 2, p. 74. Kelsen notes that “…the preventive purpose of self-defence does not preclude interpreting the principle of proportionality to permit action directed to removing the danger, on the ground that a right of self-defence is without substance if it does not permit removal of the danger which initially justified the resort to measures of self-defence.” Op. cit., note 14, p. 82 (emphasis in the original). Higgins focuses on the distinction between territorial acquisition and military occupation, emphasizing that “…there is nothing in either the Charter or general international law which leads one to suppose that military occupation, pending a peace treaty, is illegal…The law of military occupation…remains entirely relevant, and until such time as the Arab nations agree to negotiate a peace treaty, Israel is in legal terms entitled to remain in the territories she now holds.” Op. cit., note 24, p. 8. See also Higgins, , “The June War: The United Nations and Legal Background” (1968) 3 .J. Contemp. Hist., 253, 271.CrossRefGoogle Scholar Schwebel, concludes that “(a) A state acting in ‥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…(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.” Op. cit., note 26, pp. 345–46. See generally, Stone, , No Peace—No War in the Middle East (Sydney, Maitland Publications, 1969), particularly pp. 32–35, 38–40Google Scholar; Lauterpacht, E., Jerusalem and the Holy Places (1968)Google Scholar; but see, Wright, , “The Middle East Problem”, (1970) 64 Am. J. Int'l L., 270.CrossRefGoogle Scholar

30 On the status of the acceptance of the cease-fire resolutions see U.N. Doc. S/7985, June 15, 1967 and U.N. Doc. S/8279, Novmber 30, 1967.

31 Security Council resolutions 233, June 6, 1967; 234, June 7, 1967; and 235, June 9, 1967. See Feinberg, op. cit., note 25, p. 115. Compare these resolutions with the resolutions adopted at the First Emergency Special Session of the General Assembly in November 1956, in the wake of the Suez Campaign, where Israel was called upon promptly to withdraw its armed forces behind the established armistice lines. Yearbook of the United Nations, 1956 (New York, 1957) 35–36, 38.

32 See the voting at the 1360th meeting of the Security Council on June 14, 1967 (U.N. Doc. S/PV. 1360), where the Soviet draft resolutions S/7951, S/7951/Rev. 1 and S/7951/Rev. 2 were rejected and at the 1548th Plenary meeting of the General Assembly on July 4, 1967 (A/PV. 1548), where the Soviet draft resolution A/L519 and the Albanian draft resolution A/L521, A/L524 and A/L525 were rejected. See also the statement of the Israeli representative at the 1618th meeting of the General Assembly on December 4, 1967 (U.N. Doc. A/PV. 1618, p. 133). Compare this voting with the Security Council resolutions of June 15 and 17, 1950, where the action of North Korea was expressly branded as a “breach of the peace”. Yearbook of the United Nations, 1950 (New York, 1951), 222, 223–24, 250.

33 Op. cit., note 2, pp. 6, 10. See Rosenne, , “Directions for a Middle East Settlement—Some Underlying Legal Problems”, (1968) 33 Law & Contemp. Prob., 44, 55–56CrossRefGoogle Scholar; Blum, , “The Missing Reversioner: Reflections on the Status of Judea and Samaria” (1968) 3 Is.L.R., 279, 301.CrossRefGoogle Scholar