When Doc Evatt Did a Job on Palestine 2

Evatt's Bias

One key legal principal is that a person or body required to make decisions in accordance with the rules of natural justice must not have an interest in the causes which might prevent impartial decisions. It is common and accepted practice for persons with interests, including acquaintance and/or friendship with one party in a dispute, or a known bias, to disqualify themselves from a tribunal. This kind of interest is less clearcut than the grosser forms of interest, e.g. pecuniary; however the failure of a biased tribunal  member to disqualify him/herself can leave it open to the complaint to show that the decision of the tribunal or administrative body against her/him was vitiated by bias. This may not necessarily render the decision void, but at the very least it casts a dubious light on the proceedings. (6. D Benjafield & H Whitmore, Principles of Australian Administrative Law, 1971, Ch. VII)

Was Evatt "interested" in promoting the partition of Palestine, in the legal and technical sense of interest? And, if so, should he have disqualified himself from chairing the Special Ad Hoc Committee on Palestine?

Oddly enough, critics of the UN partition decision, like the Palestinian lawyer Sami Hadawi, for example, suggests that Evatt was doing the bidding of the British and Americans, in a general sense, in his role as chairman; but no-one to the best of my knowledge has ever raised the problem of Evatt's strong relationship with prominent Zionists and his prior support for their tactical goal of partition. Evatt was known as a supporter of partition both by the leaders of the international Zionist movement and by at least some of his associates.

For example, Alan Renouf, one of Evatt's first diplomatic cadets, wrote: "The issue was close to Evatt's heart. Near associates recall him as saying, as early as September 1945, that the Jewish people had to have a permanent home, where they could live with dignity and self-respect, and that they had full historical rights to Palestine. If the Arabs refused this, the United Nations had to decree and guarantee it." (7. Let Justice Be Done: The Foreign Policy of H.V. Evatt, 1983, p 247)

From the late 1930s Evatt had become friendly with one of the most influential and effective American Zionist leaders, Professor Felix Frankfurter. Frankfurter had worked on behalf of the Zionist project in Palestine since the turn of the century, in tandem with his uncle, the famous and greatly respected liberal judge Louis Brandeis, a personal hero of Evatt's. Brandeis had been a close counsellor and friend of President Wilson and had also had a hand in drafting the 1917 Balfour Declaration, through which the British government supported a homeland for the Jews in Palestine. (8. J.M.N Jeffries, Palestine: The Reality, 1939, p 244)

Frankfurter had been a consultant to President Wilson at the Paris Peace Conference and helped to draft the wording for the British Mandate over Palestine, which incorporated the promise of the Balfour Declaration. (9. Walid Khalidi, From Haven to Conquest, 1971, p 195) Though Brandeis died in WW2, Evatt was befriended by Frankfurter and they were very close, at least until the 50s. (10. Kylie Tennant, Evatt: Politics & Justice, 1970, p 146)

In 1938, Evatt visited Harvard, where Frankfurter was Professor of Law, while on leave from the Bench. Frankfurter invited Evatt, as an eminent and progressive Australian lawyer, to give the Oliver Wendell Holmes series of lectures, and Evatt's biographer Kylie Tennant gives us some idea of the impact that the Harvard/Frankfurter interlude had upon the gauche but ambitious Australian: "He felt, in the freedom of that university, as if all his life he had been exiled in a foreign country. Felix Frankfurter insisted that he meet Franklin Delano Roosevelt, and each man recognised a nature cordial to his own... After such encounters Evatt found the tedium and the small hostilities of the High Court almost intolerable..." (11. Tennant, p 102)

Back in Australia, Evatt wrote to Roosevelt analysing the composition of the US Supreme Court and recommending that Frankfurter should be appointed to make it "more progressive." (He was in fact appointed on Bradeis' retirement, though Evatt's letter probably did not help him in any way). (12. A. Renouf, p 16)

Evatt left the High Court for Parliament in 1938, and as Minister for External Affairs he sent an urgent telegram to Felix Frankfurter after the fall of Singapore in 1942, asking that its contents be passed on to Roosevelt. Frankfurter obliged. (13. Renouf pp 65-66)

Then, in 1947, in the period when he was actually chairing the Special Committee on Palestine at the UN at Lake Success, Frankfurter once again invited Evatt to give the prestigious Oliver Wendell Holmes series of 3 lectures at Harvard, which he did on October 17, 20 and 24.

Though this friendship was based on shared legal and social views, and though Evatt did not at first share the Frankfurter-Brandeis passion for the Zionist project, since he knew little if anything about the Middle East and its history, it would be surprising if Frankfurter failed to influence Evatt towards the Zionist goal of partition.

In 1943, an Australian Zionist deputation was given an audience by Evatt and received the promise of his "utmost support... When the time comes"- somewhat to their surprise as they had imagined that he would have been influenced against Zionism by his old acquaintance Sir Isaac Isaacs: the judge and later Governor-General, and a lifelong Jewish opponent of Zionism. (14. Freilich, p 114)

By 1944, Max Freilich, a leading Australian Zionist, could claim that he had developed a "warm personal friendship" with Evatt "during the critical and historic days for Zionism... when the partition of Palestine was dealt with by the United Nations at Lake Success..." (15. Freilich, pp 114)

Freilich and the Zionist Federation organised a reception for Evatt before he left Australia to attend the 1946 Peace Conference, and a welcome home reception on his return. In 1947 Freilich was able to tell Zionist leaders in London, members of the World Zionist Executive, that Dr Evatts "was in sympathy with Zionist aspirations." (16. Freilich, p 114-5)

After another meeting with Evatt just before he left for the 1947 UNGA session, Freilich recalled: "We left Dr Evatt with the confident feeling that the Australian Government would support the recommendation to partition Palestine into Jewish and Arab states." (17. Freilich, p 155)

These are just a few examples of Evatt's open support for partition. There were other indications of bias, such as his private meetings with leaders of world Zionism who had arrived in the US to witness the progress of the Palestine question in the UN and to speak in the Special Committee hearings chaired by Evatt. (18. Freilich, p 197)

The Zionist movement hoped that the partition resolution would be put before the UN before the end of the 1947 session, thus allowing an immediate expansion of immigration into Palestine. Therefore they did not want the matter referred to the International Court of Justice, which would have caused a perhaps lengthy delay and an uncertain outcome. Also, they were entirely opposed to the unanimous UNSCOP recommendation which proposed an international solution to the problem of the Jewish refugees (i.e. a plan for all UN member states to take a quota, thus relieving the pressure on Palestine). They did not want the question of Palestine to be considered as part of a more general solution, as this obviously would draw attention to the fact that a Jewish state in Palestine was not the only panacea for European Jewry. (19. Khalidi, pp 491-4)

President Roosevelt favoured a plan for a world budget for resettling all displaced persons, including all Jews, with each nation taking a share of immigrants. (20. Khalidi, pp 529-30; Dr Alfred Lilienthal writes that in 1946 secret instructions were given to Jewish advisers in the occupied German zone to prevent Jews going anywhere except Palestine. The Zionist Connection, 1978, p 124) Although no surveys were taken about the wishes and hopes of Jewish DPs, it was estimated by officials on the spot that a majority did not want to go to Palestine. The Chief of UNRRA operations in Europe, 1945-6, wrote that "in reality, there were few among the travellers who, of their own free will, would have gone elsewhere than to the USA".

But of course neither the Indigenous Palestinian Arabs not the "displaced" victims of European anti-semitism were systematically canvassed as to their choices about their own fates. Meanwhile, Evatt fulfilled Zionist hopes for the outcome of the Special Committee on Palestine to the letter.

I have not the space to detail Evatt's total opposition to European fascism or his sympathy with its victims (with a liberal this can be taken for granted). On the other hand nor have I been able to detail his opposition, along with the rest of the ALP Cabinet, to a non-Zionist Jewish proposition to settle some 50,000 of the Jewish refugees in the Kimberleys in 1944, pleasing the Zionists but not, I imagine, the 50,000 hopeful immigrants. (21. See M. Blakeney, Australia & the Jewish Refugees, 1985)

To conclude this section: Evatt's bias towards partition was quite widely known an appreciated from at least 1945, both in Australia and overseas. It was therefore most improper, and contrary to the principles of natural justice, for Evatt to have accepted the chair of the body which had the duty of deliberating and deciding upon the UNSCOP partition recommendation in 1947.

Next installment: The Question of UN Competence