The full name of the chair of UNSCOP was Alfred Emil Fredrik Sandström. He was a 59-year old Swedish Judge who would go on to become the chair of the International Federation of Red Cross and Red Crescent Societies, succeeding Count Folke Bernadotte who had been named Mediator in the Jewish/Arab dispute in Palestine in 1948 and had been assassinated by Jewish extremists. At the time of Sandström’s appointment, he was a judge on the Supreme Court in Sweden. He also sat on the Permanent Court of Arbitration (PCA) at The Hague, an international institution that dated back to the beginning of the century. It was an interstate juridical panel established by treaty in 1899 and set up using very specific tribunals to arbitrate disputes between and among states, though also available to private organizations. The PCA was the “world’s first judicial mechanism with truly global jurisdiction.” It “emerged not as a response to crisis, but as a bargain between powerful states.”[i] In practice, those tribunals utilized fact-finding commissions of inquiry. The PCA viewed itself as uniquely qualified to mediate and arbitrate disputes to find a peaceful resolution for an international conflict.
This provided the model for UNSCOP. Sandström was very familiar with international dispute resolution, but between states and even more, between states and foreigners rather than between nations in constituting a state or states. He had been appointed to the PCA in 1946, but had extensive experience in international arbitration from 1918 to 1926 when he served on various tribunals arbitrating disputes between the Government of Egypt and foreigners when he served as a judge on the Egyptian Mixed Court. In both contexts, he had imbibed the fundamental tenet that the administration of justice was to be impartial in the sense that the participants on the tribunal were independent and free from external political pressures.
At the same time, international law was beginning to be cited for the settlement of national disputes. In the historic Drummond Wren Canadian case (1945), Justice MacKay of the Ontario High Court in Canada determined that a restrictive covenant preventing the sale of property to Jews “or persons of objectionable nationality” was invalid. MacKay had cited the United Nations Charter, one of the early references to an international source to determine domestic policy. Mackay reasoned that, “It appears to me to be a moral duty, at least, to lend aid to all forces of cohesion, and similarly to repel all fissiparous tendencies which would imperil national unity.” The law which Drummond Wren had challenged on behalf of the Workers’ Educational Association was about justice, not interests. Law was intended to prevent the resort to violence, not foster it.
If these fundamental principles of liberalism informed everything Emil Sandström did, one historical event above all others was crucial in developing his consciousness. Sandström was seventeen years old when the dissolution of the union between Norway and Sweden took place. If two nations as close in language and religious beliefs as the Norwegians and Swedes could not live within the same polity, how were sworn enemies like the Zionists and Arabs in Palestine to accomplish that feat? We tend to think of the partition of the two polities – Sweden and Norway – as peaceful and orderly, which it was relatively, but in the approach to 7 June 1905 when the Norwegian parliament voted for independence, the air was full of enormous tension and rumours of war. That became worse as the Norwegians held a plebiscite which, on 13 August, overwhelmingly supported partition.
Cooler heads remained in charge and on 26 October 2005, Sweden recognized Norway as an independent state and King Oscar of Sweden renounced his claim to the Norwegian throne. Prince Carl of Denmark subsequently acceded to that throne. Of course, all of this was much easier than in the case of Palestine for the Scandinavian political union was a union of two nations and two clearly demarcated separate political states already. There was no need to demarcate borders. Two nations were not contending for the same piece of land.
The behaviour of Johan Ramstedt, the Prime Minister of Sweden during the year of the partition crisis, had an enormous influence on Emil Sandström. In 1909, Ramstedt was appointed the first Government Councilor of Sweden’s Supreme Administrative Court, a position which Emil Sandström himself would subsequently assume. Sandström had a hero and de facto tutor. Emil Sandström’s own character also played an important part as well. Isaiah Berlin described Emil Sandström as “wonderfully Swedish bland, fair, non-committal,” and, in Berlin’s wry language, “full of pacifying bromides, seeking for signs of amiability in all.”[ii] However, although Emil Sandström was most influenced by principles, by prudence as a governing norm, and by people and personalities, including his own, my reading of the historical materials indicates that practices on the ground had the largest influence on his decision as he directly observed them.
I mention only three of many. The first was the role of Britain in dealing with Jewish terrorism as well as his perspective on the Irgun itself. The culminating event was the hanging of three terrorists and the reprisal hanging by the Irgun one day later of two kidnapped British sergeants. A bit of background first. After WWII in September 1945, Britain introduced Defense Emergency Regulations in Palestine and made many anti-British acts subject to military courts and prescribed the death penalty for carrying weapons and belonging to illegal terrorist organizations. Though the courts sentenced a number of terrorists to death, the sentences were usually commuted in return for the release of kidnapped military officers and a judge. There had been exceptions before the Irgun introduced its own “gallows” justice. On 16 April 1947, Dov Gruner and three other Irgun militants, Yehiel Dresner, Mordechai Alkahi and Eliezer Kashani, were executed. But, as the Revisionists declared after they took the lives of the sergeants, Britain would not enforce the death penalty in a trade for British captives who were officers and judges, but when the lives of sergeants were at stake, Britain was unwilling to reduce the death penalty in return for their release.
On the day UNSCOP arrived in Palestine, three captured Irgun members were sentenced to be hung in Acre Prison as a result of their role in the attack on that prison on 4 May to free 41 Irgun and Lehis prisoners. (28 were freed as well as 200 Arabs, but nine Jews were killed in the process.) Of the five arrested, two – Amnon Michaelov and Nachman Zitterbaum – were minors. Avshalom Haviv, Yaakov Weiss and Meir Nakar were sentenced to death.
The Latin American liberals on the committee were particularly incensed at the failure to observe the distinction between political and civil crimes. Though more discreetly, Emil Sandström shared their sympathies. On 12 July, four days after the hangings were confirmed and ten days after the UNSCOP appeal to Britain to commute the death sentences had been rejected, the Irgun, in a tit for tat, captured two British sergeants. When on 29 July, the three members of the Irgun were hung, the two British sergeants, Cliff Martin and Mervyn Paice, were also hung on the following day as Begin had promised Sandström. The booby-trapped bodies of the two dead sergeants were left hanging from eucalyptus trees. The irony was that Martin was halachically Jewish since his mother was a Jew from Cairo.
The leftist parties, with David Ben Gurion in the lead, played an ambivalent role. On the one hand Mapai, Ahdut HaAvoda, HaOved HaDati, HaOved HaZioni, HaShomer HaTzair and Paolet Agudot Israel issued a joint statement condemning the arrests and sentences of the Revisionists. At the same time, in a speech at the national Assembly of the Mapai, Ben Gurion branded leaders of Lehi and Irgun as “thugs,” “terrorists,” and “fake patriots.”[iii] Thus, while the Jews were united in ending the mandate, they were very divided in the method of doing so as well as over whether partition was to be rejected or accepted.
Emil Sandström, against the protests of Ben Gurion, met privately with Menachem Begin through the help of the Associated Press correspondent, Carter Davidson, in the apartment of the poet, Yaacov Cahan[iv] (Ralph Bunche and Dr. Victor Hoo accompanied Sandström.) Later, Fabregat and Garcio-Granados would also have a secret meeting with Begin. The Sandström meeting with Begin was held on 24 June 1947, only eight days after the UNSCOP representatives first arrived in Palestine. Sandström received an earful on the British practice of torture of the Revisionists. Begin also made unequivocally clear the Revisionist program – the right of Jews to Eretz Israel on both sides of the Jordan, the right of Jews everywhere to repatriate to Eretz Israel, the conviction that only with force would the British cede to the Jewish demands, and the rejection of the call from some on the Zionist left for the transfer of Arabs out of the land. On this issue, Sandström clearly aligned with the Revisionists and ardently opposed “any compulsory transfer as proposed by the Peel Report.”[v]
UNSCOP tried to prevent the hangings from being carried out. The raid on the Acre Prison that provoked the arrests had not killed anyone. The sentences of hanging were regarded as improper military justice. Sandström wrote Trygve Lie, the then U.N. Secretary General. “The UN Commission expresses the concern of the majority of its members over the regrettable consequences liable to result from the carrying out of the three death sentences which the military court pronounced on June 16.”[vi]
Such interventions by a UN advisory committee in the British governance of a mandate was viewed as unprecedented. The British Mandate Authorities not only ignored UNSCOP, but conducted a wave of arrests at the beginning of August of 1947 just before UNSCOP would deliberate and arrive at its final recommendations. On 5 August 1947, Britain arrested 36 members of the Revisionist Movement in Palestine, including the Mayor of Tel Aviv, Israel Rokach, and the chair of the local council in Ramat Gan, and Avraham Krinitzi, chair of the Netanya Council, Oved Ben-Ami. Beitar was declared an illegal organization.
Those arrests had a specific purpose – influencing UNSCOP to recognize how unruly Palestine would become if left to its own devices. Britain had announced its intention of abandoning the Mandate, but Britain really deep down wanted UNSCOP to recommend the continuation of the mandate under a renewed process of legitimation. The actions of the British military – including the rampage of British soldiers and police that killed nine Jews and injured many other, 33 alone at the funerals of those killed – multiplied many times over by a spate of violent anti-Semitic attacks back in Britain, reinforced the conviction in all the committee members that the Mandate had to end.
UNSCOP’s official protest to the British about the hanging had been ineffective at ending the hanging and the tit-for-tat response, but extremely effective in consolidating the committee’s antipathy to the continuation of the Mandate. The immediate result was not simply the reinforcement, at least on the surface, of the determination of Britain to abandon the mandate, but of UNSCOP to insist that it end. That possible path to continue the rule of law as an intermediate stage accompanied by an enforcement mechanism had been irrevocably destroyed. The Mandate was de facto over. Emil Sandström saw the left coalition led by Ben Gurion which, contrary to the Revisionists, supported partition, as the only possible route to a peaceful resolution of the conflict. Emil Sandström bought into the picture painted by Ben Gurion – the Revisionists were threats to the rule of law and individual liberties? The Hagannah and the Palmach, in dropping their program of armed resistance to Britain, constituted the route of moderation, reasonableness and peace. At the same time, all Jews were united in the belief that the British Mandate had to end.
The dilemma is that force would be needed. And there was no enforcement mechanism ready at hand. There were two other major events that reinforced these two conclusions for Sandström – the incident of the Exodus and a visit to an Arab cigarette factory which I will discuss after I paint portraits of other members of the sub-committee.
[i] Suzanne Katzenstein (2014) “In the Shadow of Crisis: The Creation of International Courts in the Twentieth Century,” Harvard Law Journal 15:1, Winter, 154.
[ii] Isaiah Berlin ( ) Enlightening: Letters 1946 – 1960, eds. Henry Hardy and Jennifer Holmes, London: Chattus and Windus, fn. 140.
[iii] Cf. Erez Casif ( ) Why Was the State of Israel ‘Really” Established? 94.
[iv] Robert D. Kumamoto International Terrorism and American Foreign Relations, 1945-1976, 53-54. See also John Bowyer Bell Terror Out of Zion, 225 and James Barr ( ) A Line in the Sand: Britain, France and the Struggle that shaped the Middle East, Martin Sicker Pangs of the Messiah: The Troubled Birth of the Jewish State, 215.
[v] Minutes of “Fourth Informal Meeting, Mr. Sandström’s Office, 8 August 1947, p. 2.
[vi] Martin Sicker ( ) Pangs of the Messiah: The Troubled Birth of the Jewish State, 215