Chair in International Law, University of Edinburgh
ANTHONY PAGDEN
Distinguished Professor, University of California Los Angeles
BENJAMIN STRAUMANN
ERC Professor of History, University of Zurich
In the past few decades the understanding of the relationship between nations has undergone a radical transformation. e role of the traditional nation state is diminishing, along with many of the traditional vocabularies that were once used to describe what has been called, ever since Jeremy Bentham coined the phrase in 1780, ‘international law’. e older boundaries between states are growing ever more uid, new conceptions and new languages have emerged that are slowly coming to replace the image of a world of sovereign independent nation states that has dominated the study of international relations since the early nineteenth century. is rede nition of the international arena demands a new understanding of classical and contemporary questions in international and legal theory. It is the editors’ conviction that the best way to achieve this is by bridging the traditional divide between international legal theory, intellectual history, and legal and political history. e aim of the series, therefore, is to provide a forum for historical studies, from classical antiquity to the twenty- rst century, that are theoretically informed and for philosophical work that is historically conscious, in the hope that a new vision of the rapidly evolving international world, its past and its possible future, may emerge.
previously published in this series
Remaking Central Europe
e League of Nations and the Former Habsburg Lands
Peter Becker and Natasha Wheatley
e Renaissance of Roman Colonization
Carlo Sigonio and the Making of Legal Colonial Discourse
Jeremia Pelgrom and Arthur Weststeijn
Britain and International Law in West Africa
e Practice of Empire
Inge Van Hulle
e Laws of War in International ought
Pablo Kalmanovitz
A History of International Law in Italy
Edited by Giulio Bartolini
e New Histories of International Criminal Law Retrials
Edited by Immi Tallgren and omas Skouteris
Jews, Sovereignty, and International Law
Ideology and Ambivalence in Early Israeli
Legal Diplomacy
ROTEM GILADI
Great Clarendon Street, Oxford, OX2 6DP, United Kingdom
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Series Editors’ Preface
Recent years have seen a surge in interest in “Jewish International Lawyers,” and their contribution to 20th century international law. A 2019 edited volume devoted to Jewish Lawyers and International Law, pro les Kelsen, Lauterpacht, Henkin, Schwelb, and Cassin, among others,1 while Philippe Sands’ popular book East West Street, has drawn attention to the outsized signi cance of the Galician-Jewish community in Lvov/Lviv/Lemberg for international law from 1920. Loe er’s 2018 book, Rooted Cosmopolitans, 2 argues for a close a nity between European Jewry’s experience of persecution and discrimination, culminating in the failure of the Minority Protection treaties and the Holocaust, and the project to institutionalize international human rights in the post-1945 world order. But the relationship between Zionism and international law, in particular a er the creation of a sovereign Jewish State in Palestine, has received less attention. A quasi-o cial Israeli account published in 1956,3 emphasized Israel’s universalist outlook and cosmopolitan commitment to principles of the post-war international legal order, such as the prohibition on genocide, international human rights, and the Refugees’ Convention.
In this deeply researched and original book, which draws extensively on Israeli state archives and private papers, Dr Giladi paints a very di erent picture of Israel’s approach to the institutionalization of international human rights jurisdiction, to the Genocide Convention, and to the Refugees’ Convention. He asks the question, did the “Zionist creed” of Israel’s rst foreign ministry legal advisor, Shabtai Rosenne (Se on Rowson) and its rst legal advisor to its UN Mission, Jacob Robinson (Jokubas Robinzonas), shape Israel’s engagement with certain key developments in the post 1945 international legal order? Dr Giladi answers this question through a narrative which interweaves prosopography with a detailed reconstruction of debates within the Israel government about these legal commitments. Rosenne (d.2010) went on to a distinguished career as an international legal academic, Ambassador and jurist, while Robinson retired from the Israeli Foreign Ministry in 1957, but would work as a scholar of the Holocaust based in the United States until his death in 1977. Giladi describes these two jurist diplomats as
1 James Loe er and Moria Paz, eds, e Law of Strangers: Jewish Lawyers and International Law in the Twentieth Century (Cambridge UP, 2019).
2 James Loe er, Rooted Cosmpolitans: Jews and Human Rights in the Twentieth Century (Yale UP, 2018).
3 Nathan Feinberg, Israel and the United Nations: Report of a Study Group Set Up by the Hebrew University of Jerusalem (1956) discussed in this volume, 300-302.
“torchbearers” and “the engines of Israel’s early international law diplomacy,” each of which understood themselves by this stage of their lives as committed to political Zionism and the idea of the Jewish state.
In Giladi’s argument, this Zionist creed leads to a di erent relationship with international law, than that evident in the work of pre-war Jewish advocacy organizations, or in the cosmopolitanism of a Lauterpacht or a Kelsen. He shows in great detail how political Zionism’s posture towards international law was historically ambivalent, understanding the European law of nations as excluding Jews from statehood but also as a means through which Jews could become sovereign under the right diplomatic, political, and military conditions. Once sovereignty had been achieved, the critical political question was how international law could be a means to enhance the contested political and moral legitimacy of Israel, and to preserve its prerogatives to act as a homeland and safe haven for the Jewish people. Giladi shows that these imperatives were debated and pursued by Rosenne, Robinson, and their political superiors, leading to a combination of “disinterest, aversion and hostility towards the right of petition and the human rights project at large, the Genocide Convention and progenitor [Raphael Lemkin], and the Refugee Convention and the international refugee regime.”4 e book’s bold claim is carefully substantiated, and vividly captures the at times turbulent internal Israeli government discussions, and the fascinating characters of the two main protagonists, Rosenne and Robinson. ere is no doubt that this book will be an important contribution to Israeli and Jewish studies, to the history of Israel’s foreign policy, and to the current debates about Jews, Zionism, and international law in the 20th century.
Nehal Bhuta, May 2021
Edinburgh
4 is volume, 293.
Acknowledgements
I rst encountered Jacob Robinson in Ann Arbor, Michigan, in James Hathaway’s class on Refugee Law. His name, marked as a representative of Israel, appeared time and again in the voluminous travaux préparatoires of the 1951 Refugee Convention I had to read for nearly each class. I was intrigued: I had articled and practiced law, for a time, at the Legal Adviser’s O ce of Israel’s Ministry of Foreign A airs, where I met Shabtai Rosenne. Yet Robinson’s name commanded no familiarity. What seemed like evidence of Israel’s early investment in the Refugee Convention, moreover, did not cohere with media and civil society accounts of Israel’s present-day treatment of asylum seekers. Nor did it seem congruent with what I thought I knew of Israel’s outlook, in those early years, on the preferred destination of Jewish immigration. A er completing my doctoral studies at the University of Michigan Law School, I began tracing Robinson and Rosenne’s footsteps and, through their stories, exploring Israel’s early attitude towards international law. is book is the result.
In the course of the journey I have accumulated debts that cannot be repaid. I can only acknowledge what I owe friends, colleagues, and mentors whose support made the book possible—and the journey as rewarding as it has been. I owe a particular debt to Martti Koskenniemi for his insightful advice and enthusiastic encouragement at a crucial point—preparing a book proposal and submitting it to the right publisher. Martti’s work, besides, inspired my own turn to the history of international law and pointed at the vistas of political imagination it presented before the protagonists of this book, Jewish international lawyers invested in the Jewish national project. I am equally indebted to Yfaat Weiss, the director of the Leibniz Institute for Jewish History and Culture—Simon Dubnow in Leipzig, and not only for the generous grant that made completing the book possible. e Dubnow Institute, as it was known when I rst was invited to join its ranks, became my home away from home. Its vibrant intellectual community and traditional interest in Jewish engagements with international law remain unique; no other place could provide me the kind of alchemist laboratory required for synthesizing modern Jewish history with the history of international law. For these, as for her unwavering support and thoughtful advice, I am most grateful.
At Dubnow, my work also bene ted immensely from the invaluable expertise of Jörg Deventer, the Institute’s Deputy-Director, and Elizabeth Gallas, head of the ‘Law’ research unit, and other ressort members. Other fora where segments of the book were presented are too numerous to recount here. I would however be remiss if I failed to mention the research seminars of the Dubnow Institute and the annual
conferences of the Israeli Law and History Association. Each autumn, in Jerusalem and Saxony, I got to test my ideas—and so contend with rigorous critique that so o en, if unacknowledged, informed the nal shape things were to take.
Early research that found its way into this book was generously supported by the Cherrick Center for the Study of Zionism, Yishuv and the State of Israel; the Minerva Center for Human Rights; the Aharon Barak Center for Interdisciplinary Legal Research; and the Nathan and Judith Feinberg Fund, all at the Hebrew University of Jerusalem.
Many sel essly placed their time and knowledge at my disposal in countless conversations about international law and Jewish history; others read parts of the manuscript or commented on earlier versions of the research; more than a few willingly shared their archival ndings, dra s of their work, or personal and family memories. I am immensely grateful to all, and to the too many I no doubt neglected to mention here. ey are, in no particular order: Paul Mendes-Flohr, Ruth Lapidoth, Steve Ratner, Yuval Shany, Samuel Moyn, Tomer Broude, Philippe Sands, Louise Bethlehem, Gil Rubin, Iddo Nevo, Eliav Lieblich, Zohar Segev, Nathan Kurz, Orit Rozin, Nicholas Berg, Dmitry Shumsky, Donald Bloxham, Philipp Graf, Anat Stern (you were right: it was a book project), Piki Ish-Shalom, Gideon Shimoni, Gadi Heimann, Motti Golani, Leora Bilski, Dirk Moses, Moshe Hirsch, Marcos Silber, Michael Marrus, Hanna Yablonka, Laura Jockusch, Jochen von Bernstor , Alon Con no, the late Nissim Bar-Yaacov, Manuela Consonni, Neri Horwitz, Scott Ury, Amos Goldberg, Nehal Bhuta, James Loe er, Assaf Likovski, Arie Dubnov, Momme Schwarz, Yoram Shachar, Marcel Müller, Roni Mikel, Derek Penslar, Natasha Wheatley, Martin Jost, Mira Siegelberg, William Schabas, Eitan Bar-Yosef, Markus Kirchho , and James Hathaway.
I was fortunate to receive the help, along the way, of dedicated research assistants—Ayana Yacobovitch, Eitan Smith, Sara Cohen, Shani Dann, Irit Chen, Sophie Rabenow, and Maya Kreiner, and bene t from the useful advice and steadfast support of the sta of numerous archives and libraries in e Hague, Leipzig, Edinburgh, Jerusalem, New York, Washington, DC, Cincinnati, and elsewhere. I am particularly indebted to Shabtai Rosenne’s family for sharing his papers, life, and person with me.
At Oxford University Press, I was treated with never-ending patience, good counsel, and boundless encouragement by the editorial team—Merel Alstein and John Smallman—and series editors Nehal Bhuta, Anthony Pagden, and Benjamin Straumann. I thank them for making the publishing experience so pain-free. Another debt to acknowledge goes to the tolerant sta and owners of countless laptop-friendly cafes in Edinburgh, Helsinki, Leipzig, Amsterdam and e Hague, and several other cities—but rst and foremost Jerusalem—where large portions of this book were written. We all have our quirks and writing habits; mine seem to require an idiosyncratic type of background noise that you orchestrated. Whatever tips I le tried to but could never express enough my thanks.
As our girls—young women now—used say at a time when they were much younger and this book itself an infant: ‘best for last’. Only you know the full measure of sacri ce this journey required from you and the vast tolerance you have shown me. My parents, Dahlia and Nissim, my beloved partner Lauren, and our darling daughters Daria, Rama, and Leila: this book is dedicated to you with in nite love and endless gratitude.
Jerusalem, Winter 2020
Chapter 4 draws on and develops some materials and analysis published in Rotem Giladi, ‘Not Our Salvation: Israel, the Genocide Convention, and the World Court 1950–1951’ (2015) 26 Diplomacy & Statecra 473; Chapters 6–7 draw on and develop some materials and analysis published in Rotem Giladi, ‘A “Historical Commitment”? Identity and Ideology in Israel’s Attitude to the Refugee Convention 1951–4’ (2014) 37 e International History Review 745.
A Note on Translation and Archives
Unless otherwise indicated, all translations from Hebrew are by the author. I preferred to cite English titles of Hebrew works, where existing, over cumbersome transliterations. e few Hebrew words used in this work, unaccompanied by translation, have acquired general recognition: these include Gola or Galut (Diaspora or exile); Knesset (Israel’s parliament); and Yishuv (the organized Jewish community in mandatory Palestine).
Other than private archives—this is the case especially with Shabtai Rosenne’s papers, which the Rosenne family kindly made available to me—this book draws on materials in the Israel State Archive; the Central Zionist Archive; the Hebrew University Archive; the Abba Eban Archive at the Harry S Truman Research Institute for the Advancement of Peace, Hebrew University; and the National Library of Israel all in Jerusalem—as well as other archives and collections, including the American Jewish Archives (Cincinnati); the American Jewish Historical Society archive (New York); the United States Holocaust Memorial Museum Archives (Washington DC); and the New York Public Library
Abbreviations
AIU Alliance Israélite Universelle
AJA American Jewish Archives (Cincinnati)
AJC American Jewish Committee
AJHS American Jewish Historical Society (New York)
AJIL American Journal of International Law
ASIL Proc Proceedings of the American Society of International Law
Brit YB Intl L British Yearbook of International Law
CCJO Consultative Council of Jewish Organizations
CDJ Comité des Délégations Juives auprès de la Conference de la Paix
CP International Law, Being the Collected Papers of Hersch Lauterpacht
CUP Cambridge University Press
CV Centralverein deutscher Staatsbürger jüdischen Glaubens
CZA Central Zionist Archive (Jerusalem)
ECOSOC United Nations Economic and Social Council
EJIL European Journal of International Law
GA United Nations General Assembly
GAOR General Assembly O cial Records
HUA Hebrew University Archive (Jerusalem)
ICJ International Court of Justice
ICJ Rep International Court of Justice Reports
ICLQ International and Comparative Law Quarterly
ICRC International Committee of the Red Cross
IJA Institute of Jewish A airs (New York)
ILQ International Law Quarterly
IOD International Organizations Division, Israeli Ministry of Foreign A airs
IRO International Refugee Organization
ISA Israel State Archive (Jerusalem)
JA Jewish Agency for Palestine
MFA Ministry of Foreign A airs (Israel)
NGO Non-Governmental Organization
NYPL New York Public Library
OUP Oxford University Press
PMC Permanent Mandates Commission
RdC Recueil de cours de l’académie de droit international
RGDIP Revue Générale de Droit International Public
SCOR Security Council O cial Records
SG United Nations Secretary-General
UK United Kingdom
UN United Nations
xvi Abbreviations
UNHCR United Nations High Commissioner for Refugees
UNSCOP United Nations Special Committee on Palestine
UNTS United Nations Treaty Series
UP University Press
US United States
USHMM United States Holocaust Memorial Museum Archives (Washington DC)
USSR Union of Soviet Socialist Republics
WJC World Jewish Congress
YB Yearbook
Prologue
‘With an Eye to the Past’, But No Longer ‘An Object of International Law’
e Late Birth and Early Demise of the Jewish Yearbook of International Law
In the spring of 1949, the 1948 volume of the Jewish Yearbook of International Law appeared. It was printed in the newly declared state of Israel, by a Jerusalem publishing house: civil strife, siege, and war had delayed the publication.1 In February 1948, a carbomb exploded in front of the o ces of the Jerusalem Press. e resulting re consumed ‘some of the manuscripts which the editors had le there a few hours earlier’.2
Written in English, not Hebrew, it aimed for readership exceeding the local.3 is was the rst volume of the Jewish Yearbook. Its purpose, the editors explained, was tonally redress
e need for a periodical publication which would be devoted mainly to the study of questions of international law a ecting or of particular interest to the Jewish people [which] has long been felt by all those who realized the sui generis character of those questions.4
To anyone acquainted with the international legal aspects of the Jewish Question—or with the engagement of Jewish jurists with international law—the names of many contributors rang familiar. Some stood out in wider international law circles. Two full-length articles were written by a former teacher and his former student at the Law Faculty of the University of Vienna. Long before 1948, both had found new, distant homes. Each would be described as the greatest international lawyer of the twentieth century.5 e teacher, Hans Kelsen, now at the University
1 ‘Most of the contributions to this volume’, the editors reported, ‘were ready for print at the beginning of 1948’; it was ‘originally intended’ that ‘the Yearbook would have appeared towards the middle of’ 1948: emphasis in the original; ‘Introduction’ (1948) 1 Jewish YB Intl L v, vi; Nathan Feinberg, Reminiscences (Keter 1985) 150–1 (Hebrew).
2 ‘Introduction’ (n 1) vi.
3 Feinberg and Stoyanovsky to Jewish Agency Executive, 18 October 1946, A/306/6, Central Zionist Archive (‘CZA’).
4 Emphasis in original; ‘Introduction’ (n 1) v.
5 Luís Duarte d’Almeida, John Gardner, and Leslie Green (eds), Kelsen Revisited: New Essays on the Pure eory of Law (Hart 2013) 1 (‘the twentieth century’s foremost jurist and legal philosopher’); Philippe Sands, ‘My Legal Hero: Hersch Lauterpacht’ e Guardian (10 November 2010) http://www.
of California, wrote on ‘Collective and Individual Responsibility for Acts of State in International Law’. e student, Hersch Lauterpacht—the Cambridge Whewell Professor of International Law—authored ‘ e Nationality of Denationalized Persons’.6
Other essays dealt with issues whose Jewish aspect was more manifest—or more openly stated. ey were written by persons who had earned PhDs from Vienna, Rome, and Paris; LLDs from London; and SJDs from Harvard. ey were scholars, barristers, and leaders of Jewish legal advocacy—including two professors at the Hague Academy of International Law, as the table of contents presented those invited to deliver courses at the prestigious institution. Of the others, several would be so invited in later years.7
Nathan Feinberg, ‘Associate Professor of International Law and Relations at the Hebrew University at Jerusalem’—one of the Yearbook’s editors—discussed ‘ e Recognition of the Jewish People in International Law’. 8 Jacob Stoyanovsky, the other editor, had made a name as an expert on the mandate system. His contribution addressed ‘Law and Policy Under the Palestine Mandate’ 9 Ernst Frankenstein, one of the Hague Academy Professors, explored ‘ e Meaning of the Term “National Home for the Jewish People” ’ . 10 Benjamin Akzin, who boasted three doctoral degrees and had served, in the late 1930s, as personal secretary to Vladimir Jabotinsky—leader of revisionist Zionism—commented on ‘ e United Nations and Palestine’ 11
Others approached Jewish questions in broader normative contexts. Dr Jacob Robinson, ‘Director, Institute of Jewish A airs’ (‘IJA’) in New York, marked the transition ‘From Protection of Minorities to Promotion of Human Rights’.12 His brother Nehemiah, the head of the Indemni cation O ce at the World Jewish Congress (‘WJC’), discussed ‘Reparation and Restitution in International Law as A ecting Jews’. 13 Norman Bentwich—a second-generation Zionist lawyer, former Attorney-General of mandatory Palestine, and, since 1932, the Weizmann Chair of theguardian.com/law/2010/nov/10/my-legal-hero-hersch-lauterpacht (‘stands out as the great international jurist of the 20th century’) accessed 20 January 2020; Philippe Sands, East West Street: On the Origins of Genocide and Crimes against Humanity (Knopf 2016); Hans Kelsen, ‘Tribute to Sir Hersch Lauterpacht’ (1961) 10 ICLQ 1, 2–3.
6 Hans Kelsen, ‘Collective and Individual Responsibility for Acts of State in International Law’ (1948) 1 Jewish YB Intl L 226; Hersch Lauterpacht, ‘ e Nationality of Denationalized Persons’ (1948) 1 Jewish YB Intl L 164.
7 ‘Contents’ (1948) 1 Jewish YB Intl L vii–viii.
8 (1948) 1 Jewish YB Intl L 1.
9 ibid, 42.
10 ibid, 27.
11 ibid, 87.
12 ibid, 115.
13 ibid, 186.
‘
International Peace at the Hebrew University14 commented on the ‘International Refugee O ce of the United Nations’. 15 Anatole Goldstein, an IJA researcher, wrote on ‘Crimes Against Humanity—Some Jewish Aspects’.16
Other contributors, mostly of lesser renown, added shorter ‘Notes’ on matters that tended towards the parochial. One dealt with ‘Habeas Corpus in Palestine’;17 another with ‘Immigrant Ships before the Palestine Courts’.18 A third discussed ‘ e Boycott of “Zionist Goods” by the Arab League’.19 e penultimate note, penned by Se on WD Rowson, dealt with ‘ e Abolition of Nazi and Fascist AntiJewish Legislation by British Military Administrations of the Second World War’.20
Marc M Vishniak, the other Hague Academy Professor, wrote the last note on ‘Post-War Legislation against Racial Hatred’.21
e contributors were all men. All were born Jewish.22 Many were Zionist or at least harboured sympathy to the Jewish national revival project in Palestine.23 All had law degrees. Many were versed in Jewish a airs, old hands of Jewish politics, advocacy, and diplomacy. None was now living in the country of his birth.
e Jewish Yearbook was a polyglot a air. Correspondence was conducted in Hebrew, Yiddish, English, German, French, Russian, and Polish. It was, equally, a cosmopolitan a air, even if that correspondence passed over sites now erased from the map of Jewish demography: Berlin, Vienna, Warsaw, Lvov. e collective work of the contributors was a testimony to Jewish intellectual achievement, their biographies a monument to Jewish persecution, displacement, and annihilation. Together, their essays and itineraries sketched an inventory of international law’s engagement with the Jewish Question—and of the Jewish engagement with international law—since the nineteenth century.
14 Norman Bentwich, My 77 Years: An Account of my Life and Times 1883–1960 (Jewish Publication Society of America 1962) 97–8. Chaim Weizmann, the elderly Zionist leader, was appointed Israel’s rst President in February 1949.
15 (1948) 1 Jewish YB Intl L 152.
16 ibid, 206.
17 Edward David Goitein, ‘Habeas Corpus in Palestine’ (1948) 1 Jewish YB Intl L 240.
18 Arnold M Apelbom, ‘Immigrant Ships before the Palestine Courts’ (1948) 1 Jewish YB Intl L 247.
19 Edoardo Vitta, ‘ e Boycott of “Zionist Goods” by the Arab League’ (1948) 1 Jewish YB Intl L 253.
20 (1948) 1 Jewish YB Intl L 261.
21 ibid, 268.
22 Kelsen converted to Catholicism in 1905, and became a Lutheran in 1912, but reportedly retained or regained a Jewish identity: Reut Yael Paz, A Gateway between a Distant God and a Cruel World: e Contribution of Jewish German-Speaking Scholars to International Law (Brill 2012) 116; Feinberg, Reminiscences (n 1) 91 (Kelsen regretting assimilation in 1932); Nathan Feinberg, ‘ e Judaism of Hans Kelsen’ in Nathan Feinberg, Essays on Jewish Issues of Our Times (Dvir 1980) (Hebrew) 235, 236 (‘very sympathetic to Jewish people’s revival movement and supported renewal of its political life in its homeland’); cf Eliav Lieblich, ‘Assimilation rough Law: Hans Kelsen and the Jewish Experience’ in James Loe er and Moria Paz (eds), e Law of Strangers: Jewish Lawyers and International Law in the Twentieth Century (CUP 2019) 51.
23 Chs 2–3 discuss Lauterpacht’s Zionism; Eliav Leiblich and Yoram Shachar, ‘Cosmopolitanism at a Crossroads: Hersch Lauterpacht and the Israeli Declaration of Independence’ (2014) 84 Brit YB Intl L 1; James Loe er, ‘ e “Natural Right of the Jewish People”: Zionism, International Law, and the Paradox of Hersch Zvi Lauterpacht’ in Loe er and Paz (n 22) 23.
Taking stock was a deliberate choice. e editors elected to characterize the volume as:
[A]n attempt . . to sum up the unique position of the Jewish people in a series of articles, notes and documents, some of which deal with various questions arising out of the Palestine Mandate, while others relate to more general questions which present certain speci cally Jewish aspects or in which the Jewish people as a whole has a particular interest.24
e ‘plan of this volume has been conceived’, they con ded, ‘with an eye to the past rather than to the future’. e issues addressed by the various contributors sought to capture, or ‘sum up’, the past.25 One reviewer was blunt: the establishment of the State of Israel, wrote Francis A Mann, another Jewish jurist-refugee, ‘resulted in depriving many of the articles included in this volume of their topical character so that they have now an historical interest only’.26 Change had come.
Publishing a Jewish yearbook of international law, however, was a sign of time present.27 e past portrayed by the editors’ Introduction was one that clearly culminated in the present. Documents of import, reproduced at the end of the volume, included, rst, the 1947 Partition Resolution of the United Nations (‘UN’) General Assembly;28 it was followed by the texts (and annexes) of the Assembly Resolutions adopting the Universal Declaration of Human Rights and the Genocide Convention of 10 and 9 December 1948, respectively.29 Another document the editors deemed too signi cant for an annex. ey placed Israel’s Declaration of Independence immediately a er their introduction of the volume, at the end of a four-page essay they authored.30 e volume sought to set past and present apart. e Introduction explicitly marked the transition of the Jewish people. In the past, the editors observed, ‘they were merely the object, never the subject, of international law’. ey were, the editors emphasized, the ‘object of discriminatory legislative and administrative measures which went beyond the bounds of domestic jurisdiction’. ey were, the
24 Emphasis added; ‘Introduction’ (n 1) v.
25 ibid.
26 Francis A Mann, ‘Book Review’ (1950) 3 ICLQ 608, 609. Lawrence Collins, ‘F. A. Mann (1907–1991)’ in Jack Beatson and Reinhard Zimmermann (eds), Jurists Uprooted: German-Speaking Emigré Lawyers in Twentieth Century Britain (OUP 2004).
27 ‘[S]uch a book, the rst of its kind in the State of Israel, with the participation of the greatest of scientists of the world . . . has also a great propaganda [value] to the Hebrew University—at a time when the country was absorbed by life-or-death war the men of science . . including the . . editor, did not stop dealing with matters of the highest import to the scienti c world’: Rubin Mass Publishing to Hebrew University Management, 14 June 1949, Feinberg–Personal File 1945–55 vol 2, Hebrew University Archive (‘HUA’).
28 1 Jewish YB Intl L 273.
29 ibid, 293, 300.
30 ‘Israel’s Declaration of Independence’ (1948) 1 Jewish YB Intl L xi.
editors recalled, no more than ‘the object of international conferences, of diplomatic notes, of humanitarian interventions, and more recently, of judicial cognizance by the International Military Tribunal at Nuremberg’. ey were an ‘object of the international system of the protection of minorities and of the internationally secured national home in Palestine’. e essence of the Jewish past could thus be captured by a simple international law distinction that was, nonetheless, pregnant with signi cance: ‘At all the times they were merely the object, never the subject, of international law.’31
e present, however, brought a radical transformation.32 All that was in the past: the Jewish people could not ‘have been anything else before’, the editors reported, ‘the establishment of the State of Israel’.33 e volume may have dealt with the past, but it was conceived and prepared out of an acute, pervasive sense of the present that sought to note, mark, and seal o the past. In a sense, the rst volume of the Jewish Yearbook aimed to render obsolete Jewish objecthood, the very object of its inquiry.
e present was paramount. e editors’ essay on Israel’s Declaration of Independence spoke of ‘the centuries of world wide dispersion’, of past ‘moral and physical oppression . . . repeated persecutions and pogroms’ culminating ‘in the Nazi atrocities which resulted in the massacre of six millions’ Jews.34 But much of what they wrote pertained to the circumstances of Israel’s birth, stressed its legal foundation in ‘positive international law’, and decried the UN’s failure ‘to prevent that war or even to name the aggressor’.35 Discussing, last, Israel’s impending UN admission, the editors recorded the formalities of transition. Quoting the opening paragraph of the 1776 United States Declaration of Independence, deliberately referenced by Israel’s own constituent document,36 the editors proceeded to proclaim:
On joining the family of nations the Jewish State will have assumed ‘among the powers of the earth the separate and equal station’ of which the Jewish people was deprived for centuries.
In law and in fact Israel has come to stay.37
31 Emphases added; ‘Introduction’ (n 1) v. Feinberg’s contribution (n 8) systematically delved into these themes.
32 Uri Yadin, ‘ e Jewish Question in the Eyes of International Law’ (1949) 7 BeTerem: A Quarterly for Policy, Social A airs and Critique 63 (Hebrew) (‘no rung in a ladder, no “another step forward”, but a total, fundamental revolution . . From people-no people, an entirely exceptional creature, we have turned into a nation like all others’).
33 Emphasis added; ‘Introduction’ (n 1) v.
34 ‘Israel’s Declaration’ (n 30) xi.
35 ibid, x.
36 ‘[T]he necessity of solving the problem of the homelessness and lack of independence of the Jewish people by re-establishing the Jewish State which . . would endow the Jewish people with equality of status within the family of nations’: ‘Israel’s Declaration’ (n 30) xiii. See Yoram Shachar, ‘Je erson goes East: the American Origins of the Israeli Declaration of Independence’ (2009) 10 eoretical Inquiries in Law 589.
37 ‘Israel’s Declaration’ (n 30) x.
Still subscribing, evidently, to a view of international law that withheld sovereign capacity from those who had no knowledge of its rules,38 the very publication of the Jewish Yearbook signi ed a sovereign claim.39 With its appearance, the nonsovereign Jewish past was put to rest.
Yet the 1948 volume of the Yearbook also contained signs of things to come. In the Introduction, the editors refused to prophesize any future ‘di erent approach’ to international law, ‘the exact implications of which the editors cannot now foresee and in respect of which they cannot now commit themselves’.40 ‘Time alone’, yet unknown to them, would ‘determine the nature and scope of the future volumes of the Yearbook or of any other international law periodical which may be published in Israel’.41 ey would not predict the nature of future Jewish engagement with international law. Yet for all their circumspection, they had no doubt that the present and future, not the past, were to be the real focus of attention henceforth. ‘In the meantime’, they wrote, we ‘trust that some useful purpose will have been served by the publication of the present volume’42 dedicated, a er all, to the past. For all its potential usefulness, this volume was to be a record of a past now dead. ere were other signs of the future, many yet unknown to the editors. Stoyanovsky would dedicate himself to private practice. Feinberg would soon be appointed the rst Dean of the Law Faculty of the Hebrew University.43 Akzin would follow him in that position, for three di erent terms.44 e author of one note, Edward David Goitein, would soon become Israel’s rst envoy to South Africa. Appointed to Israel’s Supreme Court in 1953, he would later serve as an ad hoc judge in Israel’s claim against Bulgaria at the International Court of Justice.45 Arnold Apelbom, the author of another note, would be the rst executive editor of the Israel Law Review, founded by the Hebrew University Law Faculty in 1966.46 While his academic pursuits were secondary, he also le strong impressions on students of international law and English law as ‘Visiting teacher at the Hebrew University, Tel Aviv branch’ (later, the Tel Aviv University).47
38 Martti Koskenniemi, e Gentle Civilizer of Nations: e Rise and Fall of International Law 1870–1960 (CUP 2001).
39 Captured by Yadin (n 32) 63 (‘from the object of problems we have turned into a contributing member to that noble creation called international law’).
40 ‘Introduction’ (n 1) v.
41 ibid.
42 ibid.
43 Assaf Likhovski, ‘Law Studies at the Hebrew University during the British Mandate Period’ in Hagit Lavsky (ed), e History of the Hebrew University of Jerusalem: A Period of Consolidation and Growth (Magnes 2005) 543 (Hebrew); Rotem Giladi, ‘At the Sovereign Turn: International Law at the Hebrew University Law Faculty Early Years’ in Yfaat Weiss and Uzi Rebhun (eds), e History of the Hebrew University in Jerusalem, vol 5 (forthcoming Magnes 2021) (Hebrew).
44 Later, he founded the Hebrew University’s Political Science Department and became Haifa University’s rst rector.
45 Case Concerning the Aerial Incident of 27 July 1955 (Israel v Bulgaria) (Preliminary Objections, Judgment) [1959] ICJ Rep 127; Dissenting Opinion of Judge Goitein 195.
46 (1966) 1 Isr L Rev; Kelsen, Bentwich, and Apelbom wrote for the rst volume.
47 Aviezer Chelouche, Who Was at Apfelbaum (Rahel Publishing 1999) 326–39 (Hebrew); Editorial Board, ‘Arnold M. Apelbom—In Memoriam’ (1969) 4 Isr L Rev 173; email from Prof Yoram
Some of the contributors fast became members of Israel’s academic, judicial, and diplomatic elite.
For two of the contributors, the path for the future was already largely determined by the time the Yearbook was published. Lithuania-born Jacob Robinson (1889–1977) was a veteran of Jewish politics and international law advocacy.48 Years later, Hannah Arendt would mock his credentials as an ‘eminent authority on international law’ in the polemic that followed the trial of Adolf Eichmann. She was likely correct in questioning Robinson’s eminence; but this largely forgotten jurist was, without a doubt, an international law authority.49 In 1947, his expertise and experience proved indispensable for the cause of the Jewish state. ough presented in the Yearbook as the Director of the New York-based IJA, that year he was loaned to the Jewish Agency’s UN mission, joining a small band of wouldbe diplomats—otherwise bere of any experience in multilateral diplomacy or international institutions—campaigning for the establishment of a Jewish state.50 Following Israel’s independence, at age 59, he was appointed legal adviser to Israel’s UN mission. He would remain in that post until his retirement, in 1957. In the years it took to birth the Yearbook he had served, e ectively, as a one-man editorial board.
Another contributor who, by 1949, was set in his future career path was the author of the penultimate note. Probably the youngest of the authors, in 1949 he could boast rather modest credentials. ‘S.W.D. Rowson LL.B.’, as he was introduced in the Yearbook, was born in London three weeks before the Balfour Declaration proclaiming His Majesty’s sympathy to the Jewish ‘National Home’ policy in Palestine. At the end of 1947 he immigrated to Palestine to work for the Jewish Agency. Following independence, he was appointed the rst legal adviser to Israel’s Ministry of Foreign A airs (‘MFA’), a post he held until 1967. Under a new name, he would gain renown, in years to come, as an international law scholar and an expert on, among other matters, the International Court of Justice: Se on Wilfred David Rowson became Shabtai Rosenne (1917–2010).51 Together, Robinson and Rosenne would play a central role in conceiving, debating, shaping, and putting into e ect the new state’s outlook on and practice of international law in the decade that would follow and beyond. ey were the main protagonists of the future that the editors would not foresee.
Sachar to author (29 June 2014); Uri Kesari, ‘ e Kfar Shmaryahu Gentleman’ Ha’aretz (11 April 1969) (Hebrew).
48 Ch 5 delves into Robinson’s background.
49 cf Hanna Arendt, ‘ e Formidable Dr. Robinson: A Reply’ New York Review of Books (20 January 1966).
50 Shabtai Rosenne, ‘Jacob Robinson—In Memoriam’ (1978) 8 Isr L Rev 287; Moshe Sharett, At the reshold of Statehood: 1946–1949 (Am Oved 1958) (Hebrew).
51 Ch 1 provides more background on Rosenne; Rotem Giladi, ‘Shabtai Rosenne: e Transformation of Se on Rowson’ in Loe er and Paz (n 22) 221.
One portent of things to come could be read in the fate of the Jewish Yearbook itself. e editors’ optimism with regard to ‘future volumes’ proved unwarranted. ere were, even prior to publication, words of encouragement. Reception was, on the whole, favourable:52 ‘the appearance of e Jewish Yearbook of International Law’, reported a member of the Yale Law Journal editorial board, was ‘an important service’ to the ‘advancement of legal scholarship’, and a ‘signi cant event’.53 If reviewers noted that some of the materials were not original, or that legislative and institutional developments at the UN rendered some of the contributions a tad outdated, they did not hold it against the editors.54 One regretted that Lauterpacht’s contribution was included in ‘a publication to which the general reader will not have ready access’.55 Another, however, considered the Yearbook ‘evidence that Israel can now cast its lot with formalized law’; that its ‘outlook is international’; and that its ‘[e]mphasis on international law’ demonstrated ‘the solicitude for international law typical of the infant State’.56 In Israel, the volume’s value for lawyers and diplomats, as well as ‘wider audiences, Jewish and non-Jewish alike, in and outside the country’ was noted.57 A year a er the Yearbook was published, Rosenne wrote to Moshe Sharett, Israel’s rst Minister of Foreign A airs, that the Yearbook ‘acquired reputation in the greater legal world and undoubtedly raised the prestige of Jewish Science in this area’.58
‘A few days’ a er Yearbook was published, Rosenne sought to secure MFA support for the project, on the assumption that it would continue.59 Feinberg and Stoyanovsky, however, refused to commit themselves.60 Neither was enthused, apparently, by their collaboration; there were hints of disagreements over the role of an editor.61 ey were exhausted with deferrals, rejections, and other aggravations of editorial life. Feinberg’s attention, besides, was turning to more pressing projects.62
52 ‘Enthusiastic’, in Feinberg, Reminiscences (n 1) 151; encouragements or congratulatory letters received from international law luminaries including eg Manley O Hudson, Hersch Lauterpacht, Georges Scelle, Georg Schwarzenberger, Maurice Bourquin, Arthur Goodhart, Arnold McNair, JHW Verzijl, William Rappard; Feinberg and Stoyanovsky, Jewish Yearbook of International Law, December 1946, A/306/6, CZA. Stoyanovsky, however, was dismayed that the Yearbook ‘was received with seeming aloofness and did not evoke the response hoped for’: Stoyanovsky to Rosenne, 29 October 1951, FM–1816/1, Israel State Archive (‘ISA’).
53 Arthur M Michaelson, ‘Book Review’ (1950) 59 Yale LJ 389.
54 Mann (n 26) 609–10; Lawrence Preuss, ‘Book Review’ (1951) 45 AJIL 619 (‘Forthcoming issues . . will undoubtedly have a more general content; the present volume has exceptional value in collecting a wide range of material upon some of the most interesting legal problems of our time’).
55 Mann (n 26) 609.
56 Michaelson (n 53) 389, 391. Arthur Goodhart, ‘International Law’ Jewish Chronicle (25 November 1949) 12–13.
57 Yadin (n 32) 63, who ‘later served as chief codi er of the law of Israel’: Leiblich and Shachar (n 23) 10.
58 Rosenne to Sharett, 14 June 1950, FM–1816/1, ISA.
59 Rosenne to Sharett, 27 April 1949, FM–1816/1, ISA.
60 Feinberg, Reminiscences (n 1) 151–2; Stoyanovsky to Rosenne, 29 October 1951 (n 52).
61 Feinberg, Reminiscences (n 1) 150, who nonetheless admired Stoyanovsky’s skills: see also Nathan Feinberg, ‘In Memoriam—Dr. Jacob Stoyanovsky’ in Essays on Jewish Issues of Our Times (Dvir 1980) 239, 240 (Hebrew).
62 Rosenne to Robinson, 10 December 1950, FM–1816/1, ISA.
‘[O]ne thing was clear’, Robinson con rmed: ‘Feinberg–Stoyanovsky . . are not going to continue’.63 He counselled that ‘there is only one more factor which can take over—the Foreign O ce’.64
Rosenne moved to do precisely that. Having rst consulted Lauterpacht—the editor of the British Yearbook of International Law he proceeded to report the latter’s concerns with the Yearbook’s discontinuation to Sharett. He proposed a government takeover, with himself installed as general editor.65 Sharett was accommodating.66 Plans were drawn and revised, prospective contributors identi ed and approached. Dilemmas about language,67 authorship, readership, ‘scienti c objectivity’, and scope were debated and rehashed. Di culties emerged: resources were limited; paper was scarce; prospective contributors declined or evaded Rosenne’s overtures.68 He became ‘despaired with the university people’, their divisions and intrigues, and their resistance to government involvement: the cooperation of the original editors was not forthcoming. Mutual recriminations followed.69 ‘I see that the entirety of our beautiful plan goes down the drain’, Rosenne lamented to Robinson;70 he admitted to Stoyanovsky: ‘the e orts we have exerted . . came to naught’.71 By the end of 1951, Rosenne became resigned.72 e Yearbook faltered, stalled, and was abandoned. Rosenne would, every now and then, attempt to revive it, without success.73
Two matters, nonetheless, were clear all along. If it were to continue, the Jewish Yearbook would have to be renamed. Rosenne proposed to Feinberg ‘to change the name of the book to “Israeli Yearbook” ’ of international law.74 Implicit in the change of name was a change of outlook. Echoing the editors’ own sense that Jewish perspectives on international law were now bound to change, Sharett’s scribbled response to Rosenne was that ‘the change of name should be re ected in the transformation of the content’s center of gravity’.75 Robinson, while taking the position that the Israeli yearbook should serve ‘Israel and Diaspora Jewry’ both, considered
63 Robinson to Rosenne, 31 May 1950, FM–1816/1, ISA.
64 ibid.
65 Rosenne to Sharett, 14 June 1950 (n 58); Rosenne, Israel Yearbook of International Law: Plan, 6 August 1950, FM–1816/1, ISA.
66 Eytan to Sharett, 15 June 1950, FM–1816/1, ISA with Sharett’s handwritten notes.
67 e exclusion of Hebrew brought censure from the leadership of the ‘national institutions’: Feinberg, Reminiscences (n 1) 150.
68 Rosenne to Robinson, 28 February 1951, FM–1816/1, ISA.
69 Rosenne to Robinson, 22 November 1950; Rosenne to Robinson, 20 March 1957, FM–1816/1, ISA (‘the thing will have to be dropped again until the Hebrew University has a professor of international law who is capable of some constructive work’).
70 Rosenne to Robinson, 9 October 1951, FM–1816/1, ISA.
71 Rosenne to Stoyanovsky, 11 October 1951, FM–1816/1, ISA.
72 Rosenne to Robinson, 22 November 1951, FM–1816/1, ISA.
73 1957 saw his last recorded attempt: Rosenne to Feinberg, 22 February 1957, FM–1816/1, ISA.
74 Rosenne to Sharett, 27 April 1949 (n 59); Rosenne to Sharett, 14 June 1950 (n 58); Rosenne, ‘Plan’, 6 August 1950 (n 65). is change was also proposed by Yadin (n 32) 64.
75 Rosenne to Sharett, 27 April 1949 (n 59) with Sharett’s handwritten notes, 28 April 1949, 1 May 1949, FM–1816/1, ISA.
nonetheless that ‘matters of particular interest to Jewry as such’, which could fall within the Yearbook’s purview, were ‘mostly of marginal nature’.76 e task of the Israeli yearbook of international law, Rosenne wrote, would be to ‘emphasize for future generations [the part of] Israeli science in this area among all those who deal with international law’.77
At the end of things, there was no demand for a Jewish yearbook of international law in the Jewish state. Revival of Jewish sovereignty spelled a departure from the past. In the state of Israel, as the editors implied, breaking away from Jewish engagement with international law was imperative. A er 1948, the justi cation for a Jewish Yearbook of International Law contained the seed of its own negation. It was an epilogue, not a prologue, required to pave the way for a di erent future yet unseen. ‘[I]nasmuch as it is dedicated to the study of the Jewish Question’, declared the director of legislation of Israel’s Ministry of Justice, the Yearbook was ‘no beginning but an end’.78 Feinberg would later write chapters of the history of the Jewish engagement with international law;79 Rosenne and Robinson would now tread a di erent path. e rst volume of the Jewish Yearbook of International Law would also be its last.
76 Robinson to Rosenne, 31 May 1950 (n 63); Yadin (n 32) 63: (‘to our joy, the need for periodical publications to clarify the Jewish Question from the perspective of international law has now lapsed’).
International Law and the Sovereign Turn in Jewish History
1. Continuity and Change: From Jewish to Israeli Engagement with International Law
is book explores the future that the editors of the Jewish Yearbook of International Law would not, in the spring of 1949, prophesize.1 e question is not how international law approached the ‘Jewish Question’ at the age of Jewish legal-political sovereignty. Rather, it is how the Jewish state now approached international law. A er all, the editors’ sense of time revealed an acute awareness that the transformation in the political and legal status of the Jewish people, a ected by the establishment of the state of Israel in May 1948, would likely produce changes in the terms of Jewish engagement with international law.2 e book charts, then, the sovereign turn in Jewish history—from ‘object’ to ‘subject’ of international law, in the words of the Yearbook’s editors3 and its e ect on Israel’s attitude towards international law; it seeks to recover, that is, the terms of the Jewish state’s early engagement with international law.
is is, then, a question of continuity and change. In the past few decades, Jewish pre-sovereign engagements with international law and diplomacy have attracted the attention of scholars of international legal and Jewish history alike.4 Works in this vein, however, tend to come to a halt in 1948 so that any longue durée perspective on Jewish international law engagement and legal diplomacy recedes to the non-sovereign background: Jewish engagement with international law has so far been imagined largely as the experience of the stateless; the terms of the international law engagement of the sovereign Jewish state has hitherto received only scant attention. Still, existing inquiries into the twentieth century lives and work of Jewish international law scholars—or of Jewish institutions with signi cant international law investment—point to pertinent questions: was the Jewish state’s attitude to international law rooted in pre-sovereign Jewish
1 ‘Introduction’ (1948) 1 Jewish YB Intl L v, discussed in the Prologue.
sensibilities—cosmopolitan5 or otherwise—and experience? Or was it driven by an entirely novel, and particularistic—sovereign perspective determined principally by geopolitical circumstance and the exigencies of the Middle East con ict?
In this book, I make the case that the Jewish state approached international law with ambivalence. ough there were instances where Israel acknowledged its interest in the strength, goals, and promotion of post-war international law, its attitude towards international law for the most part ranged from indi erence to hostility. I argue, further, that this ambivalent attitude stemmed directly from presovereign sensibilities and experience that were only exacerbated by a newly acquired sovereign perspective. at is, Israel’s ambivalence towards international law demonstrates both continuity and change: it expressed sovereign sensibilities— but these preceded the sovereign turn and were rooted in the terms of pre-state Jewish engagements with international law preceding Israel’s establishment. e acquisition of sovereign status, at the same time, heightened these sensibilities and, o en, brought them to the fore and made them explicit. Furthermore, I also argue that these sensibilities—and Israel’s resulting ambivalence towards international law—were rooted in identity, ideology, and political experience: that is, in Israel’s Jewish identity—and in the ideology and political experience of the Jewish national movement that sought to establish a Jewish state in Palestine: Zionism.
2. Arenas, Institutions, Protagonists
is is the argument in a nutshell. Its ampli cation requires the elaboration of meaning, context, and the choices made in the design of this study of Israel’s attitude towards international law: this is the task of this introduction. It also requires an examination of pre-sovereign Zionist and other Jewish engagements with international law; that is the task, largely, of chapter 1. us, when referring to that international law attitude, I am referring rst and foremost to the opinions, positions, and policies of Israel’s Ministry of Foreign A airs (‘MFA’). e arena examined in this book is the foreign policy arena; the book, in that sense, narrates diplomatic history as much as it does a history of international law—or, indeed, Jewish history. Other branches of government and other departments of the executive make occasional appearances in the episodes examined here; still, Israel’s MFA remains the main object of analysis. Accordingly, much of the evidence I cite on Israel’s attitude towards international law comes from MFA les deposited in Israel’s State Archive in Jerusalem (‘ISA’).
Within the MFA, the principal protagonists whose actions, positions, and thoughts serve to gauge Israel’s attitude to concrete international law regimes
5 James Loe er, Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century (Yale UP 2018).
are two legal advisers. Both, ttingly, had contributed to the Jewish Yearbook of International Law. e older, Jacob Robinson (1889–1977), was loaned to the Jewish Agency’s (‘JA’) mission to the United Nations (‘UN’) in 1947. A er Israel’s establishment, he le the New York Institute of Jewish A airs (‘IJA’) for good to now serve as legal adviser to Israel’s UN mission. e younger was Shabtai Rosenne (1917–2010), formerly known as Se on Rowson. Twenty-eight years Robinson’s junior, he had worked for the JA’s London o ce since the spring of 1946. At the end of 1947, he immigrated to Mandatory Palestine to work in the JA’s Political Department under Moshe Shertok. In the summer of 1948, now Israel’s rst Foreign Minister, Shertok appointed Rosenne to serve as the MFA’s rst legal adviser.6 Robinson would remain in his post until his 1957 retirement; Rosenne would hold his position until 1967, but remain in Ministry service for some years a er. Israel’s early attitude towards international law was, to a remarkable degree, the product of these two jurist-diplomats. eir outlook had a cardinal e ect on how MFA and, in turn, Israel would approach international law in the external as well as the domestic arena. Israel’s early ambivalence to international law can most patently be discerned in their actions—and in the voluminous correspondence exchanged between the two.
Other, more or less familiar names make occasional appearances in the tale about to unfold. ey include MFA colleagues, such as Israel’s rst Foreign Minister, who soon would change his name to Sharett; Abba (Aubrey) Eban, who headed Israel’s UN mission at the period examined here; Walter Eytan (Ettinghausen), the MFA’s Director-General; and Ezekiel Gordon, a former—and future—o cial at the UN Secretariat who had served, for a brief but important period, as director of the MFA’s International Organizations Division (‘IOD’). Haim (Herman) Cohn and Pinchas (Felix) Rosen (Rosenblüth)—Israel’s Attorney-General and Justice Minister, respectively—also play a role in the episodes recounted here. Outside government circles, the dramatis personae include scholars and practitioners of international law. Of these, several had been involved in the Jewish Yearbook project: they include, among others, Hersch Lauterpacht of Cambridge University; Nathan Feinberg, one of the Yearbook’s editors and, soon a er its publication, the founding dean of the Hebrew University Law Faculty;7 Norman Bentwich, who
6 Very little information on Rosenne’s appointment can be found in the relevant les. By January 1948 his name was already coming up as a good candidate ‘for the Legal Division’ of the future foreign o ce; it was also ‘tentatively’ agreed that Robinson would head the UN Division ‘if he’ll come to Palestine’: Eytan to Sharett, 19 January 1948, FM–126/9, ISA. Robinson did not come to Palestine; Rosenne’s appointment was publicly announced in late July: ‘Foreign Ministry Structure Complete’ HaMashkif (21 July 1948) (Hebrew). e ‘In Memoria’ section of the MFA’s website reports he was hired on 16 May 1948, two days a er Israel’s establishment: https://mfa.gov.il/memorial/Perpetuated/Pages/ Shabtai-Rosenne.aspx accessed 30 July 2020 (Hebrew).
7 On Feinberg, see Rotem Giladi, ‘At the Sovereign Turn: International Law at the Hebrew University Law Faculty Early Years’ in Yfaat Weiss and Uzi Rebhun (eds), e History of the Hebrew University in Jerusalem, vol 5 (forthcoming Magnes 2021) (Hebrew). Feinberg’s international law engagement is the subject of a research project I am currently working on.
had held the Weizmann Chair of International Peace at the Hebrew University since 1932; as well as Raphael Lemkin, ‘father and midwife’8 of the Genocide Convention, conspicuously absent from the list of Yearbook contributors.9 Past and present o cers of Jewish non-governmental organizations, such as Paul Weis, now at the O ce of the UN High Commissioner for Refugees (‘UNHCR’), or Maurice Perlzweig of the World Jewish Congress (‘WJC’), also took some part in the drama. All these and others had a role to play: superiors and subordinates, colleagues and collaborators, interlocutors and fellow-travellers, and, sometimes, rivals and antagonists. Whatever role they had played, it was secondary to that of Robinson and Rosenne; they come into the limelight only to help identify and measure our two main protagonists’ attitude, and ambivalence, towards international law.
3. Framing Time: e Sovereign Turn
is book does not set out to identify any longue durée perspective on Israel’s international law engagement. Rather, I seek to recover Israel’s attitude towards international law in the rst few years of independence. e foregoing chapters demonstrate amply that it was in those few rst years that the sovereign sensibilities of the Jewish state—more on these to come—were openly re ected on and elaborated by the makers of its legal foreign policy, Robinson and Rosenne in particular. In later years, these sensibilities would become submerged by diplomatic habit, established vernaculars, and entrenched policies. Change and continuity would become harder to discern. Supervening circumstances—in Israel’s global orientation between East and West, in its circumstances in the Middle East, in its relationship with world Jewry, and in its domestic arena—would also play a role in blurring cause and e ect, reason and habit, weltanschauung and circumstance. at limited scope of inquiry into change and continuity—roughly, the period between 1949 and 1954—is not meant to consecrate any ‘original’ moment as such but rather to take a snapshot at a time when evidence of continuity and change was still conspicuous. How to relate any ndings of ambivalence to the present— indeed, why relate my ndings to the present at all—is a dilemma I turn to only in the concluding pages of the book.
Still, the recovery of early or even ‘original’ attitudes may well have some merit. Commentators on Israeli politics, society, and history o en speak of the rst, formative decade of Israel’s existence for a reason.10 ere are good reasons to consider, in the same vein, the years leading up to the 1956 Suez Crisis as the formative
8 William Korey, An Epitaph for Raphael Lemkin (American Jewish Committee 2001) iii.
9 Ch 5 discusses Lemkin’s absence.
10 Zvi Zameret and Hanna Yablonka (eds), e First Decade, 1948–1958 (Yad Ben-Zvi 1997) (Hebrew).
