When Doc Evatt Did a Job on Palestine 4

This is the final aspect of the 1947 session which I would like to address. I find it the most significant in terms of what I believe it reveals of Evatt's bias and of the deliberate subversion of proper procedure in this case as a result of his bias.

We have already seen that the case of Palestine was a challenge and a proving ground for the new UNO. However, the partition resolution of 1947 was only a recommendation, although it carried "tremendous moral force" in Evatt's words (Freilich, p 161) and was exploited by the Zionists to lend an air of legitimacy to their future actions in Palestine. The UN of course had no means at its disposal to implement such recommendations, and all participants were well of this fact. The Arabs, for instance, said that they would continue to resist the Zionist settlers regardless of what the UN decided.

In the interests of sustaining this "moral force" it could well be argued that Evatt should not have steam-rolled the partition decision through a weary and often resentful Special Committee in order to finish the deliberations in November. The Jews and Palestinian Arabs had been fighting for two decades anyway, and some tired delegates argued to Evatt that a few more months would make little difference. But Evatt was adamant. (Evatt, p 148)

His opposition to a proposal to put some of the legal problems before the ICJ for a ruling was perhaps part of the unseemly haste which he imposed on proceedings, and worse, perhaps it also reveals his real opinion as to the legality of the proceedings. I can think of no other reasons for this opposition, because Evatt had emerged as one of the leading supporters for a major role for the ICJ in all UN problems.

At the San Francisco conference he had championed the concept that the ICJ must become a key UN institution. In an address given shortly after the conference to the Royal Institute of International Affairs in London, he said: "The future working of the world organisation would be greatly helped if access to the ICJ is made possible wherever international disputes of a legal or justiciable character are not disposed of by conciliation or direct negotiation... By such means the Court would be given an opportunity of developing a code of sound international law and practice which could help greatly in balancing the Security Council." (Australia in World Affairs, 1946, p 20)

As Sir Frederic Eggleston commented in 1946: "Dr Evatt advocates not only an expansion of the ambit of international law but also an extension of the power of the ICJ." (26. ibid, Preface)

I have already noted that during October 1947 while Evatt was rushing the Special Committee through its agenda, he found time to deliver lectures at Harvard Law School on Frankfurter's invitation. In these lectures, published soon after, Evatt described his own role in pushing for a more democratic UN structure. One of his nine main objectives had been "to declare that justice and the rule of law shall be principles guiding the actions of the Security Council, and for this purpose to require the maximum employment of the Permanent Court (ICJ) in determining the legal aspects of international disputes." He continued: "Faults have become apparent in the working of the UN. The International Court has so far been denied almost totally the opportunity of working..."

In his third lecture, he repeated this theme: "Article 96 (of the UN Charter) provides that the General Assembly or the Security Council may seek advisory opinions from the Court on any legal question... Yet to date not a single advisory opinion has been sought from the Court... It is clearly necessary to make every effort to ensure the fullest possible use of the functions assigned to the Court. To this end Australia has introduced an important resolution into the present Assembly, seeking a recommendation that each organ of the UN and each specialized agency should regularly review the difficult and important questions of law which have arisen in the course of their activities and which involve questions of principle which it is desirable to have settled." (27. The Task of Nations, p 42)

This resolution, inspired by Evatt, was actually adopted on November 14 by UNGA in plenary session while its sponsor was apparently doing his best to see that the Palestine 'hot potato' did not in fact come before that. august body.

For at one of the late night sittings of the Special Committee in the last week of November, the proposals to refer several matters concerning Palestine to the ICJ came to the vote. Evatt wrote in his memoirs of that occasion: "The only matter on which there was any substantial disagreement was whether the UN itself had jurisdiction to reach a decision as to the future government of Palestine. The voting on this point was very close but the proposal for its reference to the Court was defeated. As to the validity of the action proposed to be taken by the UNGA, I never had any doubt... " (28. pp 155-6)

He himself had decided that some of the points which the Arab delegates wanted to refer to the ICJ were "patently absurd, for instance whether or not the Balfour Declaration was a legally binding declaration. Obviously it was political in essence and in character... " (29. p 157)

Precisely - yet the Balfour Declaration, promising a homeland for the Jews in Palestine, had been explicitly written into the text of of the British Mandate as if it were a legally binding declaration (with the aid of Frankfurter, as we have seen). The policies of British rule in Palestine had been based on the "authority" of the 1917 Balfour Declaration in this way. Evatt himself wrote that one of the main arguments against the Arab proposal for a unitary state was that "the promises of the Balfour Declaration would have been dishonoured."

The ICJ would very likely have handed down a ruling that the Balfour Declaration was legally invalid, and perhaps that the Mandate which imposed Jewish migration on the unwilling indigenous inhabitants was also invalid.. Any such ruling would have been disastrous for the Zionist cause at that time, and would have made the partition vote even harder to swing.

Furthermore, regarding Evatt's pronouncement on the validity of the partition resolution, obviously it was not Evatt's opinion that was being sought by a number of members of the Special Committee, but that of the body designed and set up to give the legal judgements which they felt were needed in order to help them in their deliberations.

A spokesperson for this group was the Pakistani representative, Sir Muhammad Zafrulla Khan, a distinguished lawyer who himself later became a judge on the ICJ. He wrote that by the end of the sittings of Evatt's Special Committee he no longer believed in the good faith of the delegates. He analysed the voting pattern concerning referral to the ICJ: "As to our legal questions, the Committee rejected the resolutions on all the first 7 questions, but on the eighth question, i.e. whether the UN had any legal authority to do what they were proposing to do, the resolution to the effect that it had the authority was passed by 21 votes to 20. It is interesting to analyse those figures. In all, the Committee were 57. Only 21 who gave a positive vote were satisfied that the UN had authority to do what they were proposing to do and 36 were not satisfied." (30. Khalidi, p 716)

Evatt was highly satisfied that the ICJ, the instrument of international law whose 'maximum employment' he so ardently sought in theory, and whose prestige was a matter of such concern to him, was once again bypassed on this occasion. Yet idf ever a learned opinion and a considered judgement by the top legal authorities of the UNO was appropriate, it was in the case of Palestine in 1947.

This brings this paper to its conclusion, though there are other important aspects to consider such as the actual outcome of the decision. Evatt's attitude to the Arabs and the Palestinians, and his double standards on the issue of migration (in the case of Australia, he was a firm supporter of the White Australia policy and the right of Australians to have complete control over immigration policy, a right he wanted to deny to those inhabitants of Palestine who were opposed to Jewish immigration.

I conclude with a brief postscript.

Evatt was elected to the Presidency of the UNGA for the 1948 session, which was held in Paris.

In Palestine itself, violence had erupted almost immediately after the UNGA vote was announced.

In India, where partition was actually being enacted as the Special Committee was sitting, 225,000 people had been killed by inter-communal violence by October, 1947. Mahatma Gandhi believed that generations to come would continue to pay the price for the mistake of partition.. By the same token he came out strongly against the partition of Palestine: "... Palestine belongs to the Arabs in the same sense that England belongs to the English. It is wrong and inhuman to impose the Jews on the Arabs. What is going on in Palestine today cannot be justified by any moral code of conduct... The nobler course would be to insist on a just treatment of the Jews wherever they are born and bred... As it is, they are co-sharers with the British in despoiling a people who have done no wrong to them." (31. Khalidi, p 367)

By the middle of 1948 there were already over 800,000 homeless Palestinian refugees and the state of Israel had been proclaimed. The UN-appointed Count Bernadotte, a patrician Swedish idealist, as its mediator in Palestine. His brief was to recommend final border plans for Israel, which had already occupied more land than had been allotted to it in the partition plan. He reported to the UN that "it would be an offence against the principles of elemental justice if these victims of the conflict were denied the right to return to their homes while Jewish emigrants flow into Palestine." (32. David Gilmour, The Dispossessed, p 74)

On September 17, Count Bernadotte and his aide, Colonel Serot, were assassinated by members of the Stern Gang in Palestine. This occurred on the very day on which Evatt commenced his reign at the UN. At this fateful moment, "the flag-draped coffins of Count Bernadotte and Colonel Serot, gunned down in Jerusalem, arrived at the airport on the day that the President of France handed over the golden key of the Palais de Chaillot and declared it United Nations territory for the time of the Assembly. The two coffins lay at the airport, a reminder of what came of the United Nations intervention." (33. Tennant, p 232)