Fifteen Eighty Four

In The Six-Day War and Israeli Self-Defense, law professor John Quigley uses recently declassified government documents to question Israel’s preemptive defense for the war. Read or download the full excerpt here.

Preface

A mystery to be solved. When war broke out in the Middle East in June 1967, I was just finishing a year at the Faculty of Law of Moscow State University. US President Dwight Eisenhower had negotiated a cultural exchange treaty, and I was some of the culture being exchanged. My first source for news of the war was the Communist Party newspaper Pravda. Egypt was the victim of aggression. Israel had invaded for no good reason. Pravda translates as “truth.”Was this the truth?When I returned soon after to the United States, the “truth” was quite different. Egypt had threatened to invade, forcing Israel to protect itself. The disconnect between the Western and Soviet media accounts could not have been greater. After a year in Moscow, I was accustomed to black being white, and white being black, depending on which side of the Cold War was doing the talking. So I was not surprised at the disparity. Pravda was short on detail to back its view, but so too was the Western press. From the information available in the public sphere, there was little basis for choosing one version over the other.

The question of responsibility for the 1967  war remains as controversial today as it was in 1967 . I first wrote about it, albeit briefly, in 1990 , in a book titled Palestine and Israel: A Challenge to Justice. I argued – in opposition to most expert opinion – that Israel’s action in the war was not justifiable as self-defense. As of 1990 , publicly available information about the genesis of the war was hardly greater than it had been in 1967. It was still too close to the event for governments to open their store of cable traffic and intelligence analyses.

Since 1990 , documents that were classified on security grounds in 1967  have been opened for public inspection by the four outside powers that were heavily involved diplomatically in the run-up to the war: France, the United Kingdom, the United States, and Russia. The British government posted electronically the minutes of cabinet meetings for 1967 . The French government published a volume for the year 1967 in its series Documents Diplomatiques Francьais . The US government published documents for the year 1967  in its series Foreign Relations of the United States . The Russian government opened access to the Russian National Archives for documents of the period. This newly available information illuminates the steps that led to the war, and in particular the unsuccessful efforts made by the four powers to prevent it.

To date, this documentation has not been used to analyze the conflicting claims about the resort to force. Opinions based on previously available information have continued to be published. The failure, particularly in legal analyses, to utilize these new sources has two continuing consequences, both negative. Both became apparent in the first decade of the twenty-first century. As Israel-Palestine peace negotiations stalled, a continuing issue in controversy was whether Israel had any claim to Arab territory it occupied in the war and still held. Theories asserting the propriety of such a claim have been based on a particular analysis of the legalities of the 1967  war.

Second and more universally, the June 1967  war came to be invoked as backing for new ideas of the propriety of war waged preventively. If Israel went to war in 1967  because it expected an attack from Egypt, and if a principle is accepted to allow use of force in such a situation, how immediate must the expected attack be? Might one extrapolate so that a state may go to war even if the expected attack remains some considerable distance in the future? May a state go to war to prevent another state from developing weapons as yet in the planning stage?

Both these issues – Israel’s possible claim to territory and the legality of preventive war – raise the need for proper analysis of the self-defense issue in the June 1967  war. This book aims to provide that analysis, along with analysis of other legal arguments that have been made relating to the outbreak of that war. This book, it must be stressed, is limited to responsibility for the use of force that initiated the war. It does not explore aspects of that war that have drawn the attention of historians, such as psychological motivations of leadership figures or policy differences inside the different governments. Some of those aspects are referenced in this book, but what matters for a legality analysis is the action taken by a state as a corporate body. The fact that a state may have come to a decision only after soul-searching, or only over internal opposition, is not central. A historian may make a judgment about the June 1967  war by saying, as some do, that Egyptian President Nasser should have realized that his actions were leading Israel to war, or that it was a war “that nobody wanted,” meaning that the two sides reacted to steps taken by the other in a way that heightened tension finally to the breaking point. Such analyses may have some validity, but for a legal analysis, the judgment rests rather on the situation at the moment of initiation of hostilities, and on whether the initiating party had a lawful basis. A legal analysis may seem sterile for discounting the richer fabric of the situation.

I am indebted to Dr. Anis F. Kassim for valuable comments he made on a draft of this book. I am grateful to the staff of the Law Library of the Moritz College of Law of The Ohio State University for assistance in gaining access to sources. I am further grateful to the college itself for a supportive physical and intellectual environment, and in particular for a research leave that provided time to parse the declassified documents. I am grateful to the students who have endured my Middle East seminar. Their perspectives have helped me think through issues. Joel Lund, J.D. 2011 , at the college, researched the June 1967  war in the seminar and alerted me to key documentation. Finally, I am grateful to Susan Edwards, of the college staff, for preparation of the manuscript for publication, in particular the Index. Some passages quoted in the book are from sources in languages other than English. When English appears in the text from a source in another language, the translation is the responsibility of the author.

Read or download the full excerpt here.

 John Quigley, Columbus, Ohio