Ivan Rand enjoys a reputation in Canada as one of the greatest judges in Canadian history, superior perhaps even to Bora Laskin. Yet as a member of UNSCOP, he was almost openly despised by the esteemed Dr. Ralph Bunche, the Special Assistant to the Personal Representative of the Secretary-General (and also, secretly, a member of the precursor to the CIA, the U.S. Office of Strategic Services – OSS).[i] Ivan Rand was also quietly derided by the chairman, Emil Sandström.[ii] Why? And what did those attitudes have to do with his role on the committee?
Rand was perhaps most famous in Canada for the so-called Rand formula, the institutional mechanism that was set in place when the workers at the Ford plant in Windsor went on strike. The formula provided universal payments by all workers who benefitted from the negotiations of a union on their behalf but respected their freedom of association by not compelling them to join the union. Was Ivan Rand as Solomon-like in his service on UNSCOP? In particular, what did Sandström have against him since both were Supreme Court justices and both, in the end, supported partition?
David Bercuson[iii] offered a realist explanation of Rand’s (and Canada’s subsequent) position claiming that the decision to support partition arose out of concern with Canadian national interests rather than the specifics of the Arab-Jewish conflict in Palestine, primarily the Canadian role in bridging American and British interests in the context of the emerging Cold War. In my conclusion, the intersection between the attitude and approach of Ian Rand with the views of others on the committee were much more germane.
A London lawyer who examined Rand’s private papers came to a similar conclusion.[iv] Bercuson had argued that Rand’s decision to support partition was not so much the conclusions of a detached and dispassionate judge based on the evidence presented before him since, through most of the deliberations of UNSCOP, he did not support partition but argued for a federal state. (p. 100) But Ross and others, such as Jonathan Grossman at Queen’s University[v], argued that, “Rand’s decision to support partition arose from a sense of justice— justice being defined by the characteristics of objectivity and pragmatism” but “was also affected by his previous experiences and values.” “Rand advocated partition due to his belief in jurisprudence…Rand heard all the pertinent information and arguments in the case of Palestine. Just as a judge would do, only after both sides had made their case did he then arbitrate in search of the best possible solution.” Were Rand’s conclusions determined by reference to the “enlightened and intelligent conscience of mankind” or was this simply abstract verbiage to disguise his own biases and methods?
If he was so rational and objective why was he disliked so much by both Bunche and Sandström? The records seem to tell a very different story, not of fair-minded Solomonic judgement from on high, but of a man determined on finding a compromise (and being the individual who forged the position). While his position was strongly informed by prior convictions, was he a man without principles who ultimately surrendering to the group thinking of the committee to defend a position which he had previously opposed? The reality is that his central modus vivendi was neither judicial detached reasoning nor Canadian national self-interest, but rather an expression of the predominant quintessential Canadian disposition to find a compromise irrespective of principles (and, in Bunche’s eyes, facts).
Rand began his considerations based on a procedure which favoured eliminating solutions without any support – an Arab or a Jewish state in all of Palestine.[vi] This left four options from the original six that Sandström had presented: a) a bilateral (namely a binational) state; b) a federal state; c) a state based on a number of separate cantons like Switzerland, and d) partition. Rand quickly made clear that he believed that a binational state was unrealistic. “Magnes [Judah who along with Martin Buber advocated such a solution] is living in a spiritual plane and doesn’t sense the psychology of the Jewish mass.” This left three choices. But, for Rand, the Jews required “a visible symbol as a basis for their loyalty – a state symbol.” This is something all peoples, including Arabs, demand and require. This eliminated a cantonal solution as well as the bi-national one and narrowed the options down to two – a federal or a partitioned state. From the get-go, this was Rand’s starting point and through most of the deliberations he would give preference to the federal solution.
As Rand stated in the third informal meeting of UNSCOP on 7 August, he was “rather sympathetic to a federal state.” A “federal state would constitute [a] general state as a state in fact, whatever the administrative division; [a] federal state would have sovereignty and membership in [a] world organization.” What seems clear in reading the reactions of others on the committee is that they thought this was gobbledygook. He seemed to be saying that if a nation needed a state, it did not matter if it was organized federally. But then it also would not matter if it was organized bi-nationally. Yet he rejected that option. Further, it was clear that for neither the Arabs nor the Jews would a federal state express the strong feelings of nationalism inherent in both groups. His solution: two separate states in a single federal union.
As Rand went on to express his support for a federal state, it had less to do with national feelings and psychology, except as a sop, and more to do with practical economics and an ability to ostensibly resolve the intractable differences over immigration. The federal state would be enjoined with both responsibilities. But on the immigration question, as Blom had so clearly pointed out, this would lead to deadlock and make the state dysfunctional. Similarly, if the federal state was given power over the land, as Rand had initially argued, the political federal apparatus would just offer a source of perpetual contention rather than a basis for resolution.
Given how impoverished these ideas were, it might seem surprising how much they gained traction among the members of UNSCOP, like Karel Lisicky of Czechoslovakia, Sir Abdul Rahman of India, and Vladimir Simic of Yugoslavia who came from various versions of such a federal state and to Nasrollah Entezam of Iran who was totally opposed to Jews having a state of their own in Palestine. In fact, Rand might be given credit for reading the dispositions of the committee members and presuming that the federal solution would have the support of himself as well as these four other members. Since Blom also seemed at that point opposed to a Jewish state, since Dr. Arturo Garcia Salazar of Peru, the alternate from that country who became the de facto representative on the committee, seemed interested in any solution that provided for a presence of the Catholic Church in the governance of Jerusalem, and since, at that time, John Hood of Australia also seemed wary of a solution that created a stand alone Jewish state (if, as later learned, it was also, like Blom’s stand, intended to appease the Arab states since John Evatt, the Australian Foreign Minister coveted becoming President of the UN and needed Arab state support), the prognosis on 7 August could be read that four people might be rounded up to support partition and the creation of a separate Jewish state (Granados, Professor Enrique Rodriguez Frabregat of Uruguay – another Latin American nineteenth century liberal but without the pushiness of Granados – and Sandström himself), the anticipated eventual vote could be read as 8 in support of a federal solution along the lines Rand initially proposed and 3 in support of partition.
It may have been the case that Rand was much more of a political operator than one driven by the national interests of Canada (Bercuson) or dispassionate judicial reasoning. This might explain both Sandström’s and Bunche’s antipathy. They resented that he played to the bleachers and had no deep-down principles of his own. That might explain why he eventually left Rahman, Simic and Entezam in the lurch supporting the minority view of a federal state while he jumped to join the advocates of partition. Is this what actually happened?
Rand had argued that an economic union at least was fundamental and, in the proposal for partition, he managed to retain that requirement – an economic union in which the “economic and social life of Palestine must remain as a unit; people must be free to go and buy as they please; no custom duties.” So, like the Rand formula he had devised for union membership in Canada, both communities could have it both ways – a state of their own to express their national aspirations, each with membership in the UN, but a federated state with strong central powers over a coercive force – the army – over customs duties and trade and especially over immigration and land distribution, the most contentious issues between the two nations so at odds over Palestine. But Bunche kept asking – how could tow such antithetical nations cooperate on the exercise of such divisive and important areas as the use of the military, land and immigration policy?
Since the central body governing the federal state would have three Arabs, three Jews and three Christians from outside of Palestine, a position with a strong appeal to Salazar, the balance of power would be held by others and neither the Jews or the Arabs. At the same time, this might be a mechanism that would resolve Blom’s conundrum that the Jews be permitted to at least be allowed to have some immigration. “Immigration [is] one of [the] crucial, basic problems and therefore a solution must be found whereby immigration of Jews should not be excluded.” That this abrogated the principle of self-determination held so dearly and strongly by both communities did not seem to phase Rand or even occur to him, for he does not mention it. Rand also strongly opposed Bunche’s recommendations on Trusteeship since he viewed it simply as a continuation of the mandate under another name and of no appeal to anyone.
It was clear from the minutes that Rand, in his words[vii], was willing to “go to almost any length to preserve economic and social unity and Palestine” and, one might mutter, to be the leader on the committee of the final solution recommended. Further, Rand did not at that time support Jewish control over immigration, as Grossman contended, but rather insisted that a mechanism be in place to allow the contention between totally open Jewish immigration and no Jewish immigration at all to be arbitrated. Jews had to be permitted to have some immigration. Immigration yes but not necessarily open immigration. The economic interests of both groups in addition to the mechanism for arbitration would keep the nationalistic aspirations of both parties in check.
The two communities were economically interdependent since the Jews had a large trade deficit with the Arabs but the Arabs relied on the Jews for large injections of capital and innovation. Rand had served as counsel for the Canadian National Railways from 1926 to 1943 and recognized the need for political stability to support large scale infusions of capital. Given his Canadian experience, he believed that common economic interests allowed differing contending nationalities to work together within one federal political entity.
So why then did he eventually support partition and not a federal state?