CLAIMS OF THE JEWISH AND ARAB PEOPLES UNDER INTERNATIONAL LAW TO THE RIGHT OF POLITICAL SELF-
DETERMINATION IN
DETERMINATION IN
PALESTINE
by Wallace Brand
Introduction
Most people don't understand that Palestine, or at least the alleged "Palestinian
People," has no right to be sovereign even though they read UN
Conventions dealing with the right of a “people” that appear to say any "people" has the right to self-determination.
They haven't obeyed the scholar's imperative: "read on" to where the Charter provides for "sovereign equality". These are the legal code words guaranteeing the territorial integrity of sovereign
states.
They haven't obeyed the scholar's imperative: "read on" to where the Charter provides for "sovereign equality". These are the legal code words guaranteeing the territorial integrity of sovereign
states.
CNH Long became the Dean of the Yale Medical School. When he was a freshman at
Oxford, one of his friends found in the 600 year old rulebook, a rule permitting the
practice of archery in a certain way between the hours of 2 and 6. In the
intervening 550 years the way had become a boulevard and then a major traffic
artery. When they practiced one
day, they blocked
traffic and caused
a considerable
traffic jam.
They were haled before
the Wardens who said they would be
1
punished. One of the students pointed to the rule, the Wardens replied: “Read on.” and pointed to another
rule two pages on that provided: “When
practicing archery one must be wearing Lincoln Green. So Long and the other students were punished. They should have read further.
By the 70s the natural law provision entitling a “people” to self-determination
had become international law. But the international lawyers
drafting these provisions had inserted into the rules a
provision for “sovereign equality” — legal code words standing for the proposition that a sovereign may not invade the boundary of another sovereign’s territory. So while the law might provide for the self-determination of a “people”, they could not unilaterally secede from a preexisting state. That is the rule followed by the US in the current Ukrainian controversy and pushed by it at the European Union and NATO.
provision for “sovereign equality” — legal code words standing for the proposition that a sovereign may not invade the boundary of another sovereign’s territory. So while the law might provide for the self-determination of a “people”, they could not unilaterally secede from a preexisting state. That is the rule followed by the US in the current Ukrainian controversy and pushed by it at the European Union and NATO.
Most people also think that the basis for Israel's sovereignty was the UN
General Assembly's Resolution 181, the
Partition Resolution, not the 1920 San Remo Resolution and the Palestine
Mandate. The
latter was a treaty approved by 52 League of Nations members in
1922 and the US. This Mandate provided detail for the Balfour Declaration policy adopted by the Allies word-for-word at San Remo.
People were persuaded as above because the UN Committee on the Exercise
of the Inalienable Rights of the Palestinian People, dominated
by Arabs and Africans, got a law professor at George Washington
University W.T. Mallison (and his wife Sally) to write a legal
opinion to the effect that the occupation of Judea and Samaria
was illegal
under international law. The Committee published it
in pamphlet form in 1979.
It was entitled "An International Law
Analysis of the
Major United Nations Resolutions Concerning
the Palestine Question".
How many people on
the street know anything at all about international law?
2
Most people reading it assumed that the UN General Assembly was like
the Congress. They assumed that when the UN General Assembly
enacted a resolution, it became a part of international law. That
is not so and the Mallisons did nothing to disabuse them of that
assumption. These UN General Assembly resolutions are only
recommendations. If they are accepted by all parties to a dispute,
the parties may enter into a treaty. That becomes a part of international
law. See e.g. The
Effect of Resolutions of the U.N. General
Assembly on Customary International Law by Stephen M. Schwebel, deputy legal
advisor to the US Department of State in Proceedings
of the Annual
Meeting (American Society of International Law),
Vol. 73(APRIL 26-28, 1979), pp. 301-309.
He said:
"It is trite but no less true that the General Assembly of the United Nations
lacks legislative powers. Its resolutions are not, generally speaking,
binding on the States Members of the United Nations or binding in
international law at large. It could hardly be otherwise.
We do not have a world legislature. If we had one, hopefully it would not be composed as is the General Assembly on the basis of the unrepresentative principle of the sovereign equality of states, states which in turn are represented by governments so many of which are themselves not representative of their peoples.
We do not have a world legislature. If we had one, hopefully it would not be composed as is the General Assembly on the basis of the unrepresentative principle of the sovereign equality of states, states which in turn are represented by governments so many of which are themselves not representative of their peoples.
"As the [United States] Secretary of State recently put it: 'In considering the
decision making process in the United Nations, it is important to bear
in mind that while the one-state, one-vote procedure for expressing the sense of the
General Assembly is from many points of view unsatisfactory, the incorporation
of this principle
in the Charter was balanced by giving the Assembly only recommendatory
powers.'"
Schwebel went on to
say there were some International Lawyers that tried to fit recurring statements in UN
3
Resolutions into the category
of long standing custom or practice between or among states.
The Mallison legal
opinion assumed that
the UN Partition Resolution was a part of
International Law. It divided Palestine west of the Jordan River into three parts. One
part went to the Jews, one part to the Arabs, and one part was to become, at least initially, a "corpus separatum" to be ruled by
a Committee of the UN. That was the Jerusalem area -- containing many religious sites that were holy for all three major
religions.
That the legal opinion was a gross distortion of international law outraged
Julius Stone, an Australian,world recognized international lawyer.
In response he wrote a book published in 1981 entitled
Israel and Palestine: Assault on the Law of Nations.
In it he showed that the Major UN General Assembly Resolutions were not international law because Resolution 181, the Partition Resolution, although accepted by the Jews was not accepted by the Arabs and therefore it died at birth. For that reason the Jews were not limited to the territory they were assigned in Resolution 181. Also, the Jews were not illegally in the Jerusalem area because the corpus separatum also died at birth along with Resolution 181.
Israel and Palestine: Assault on the Law of Nations.
In it he showed that the Major UN General Assembly Resolutions were not international law because Resolution 181, the Partition Resolution, although accepted by the Jews was not accepted by the Arabs and therefore it died at birth. For that reason the Jews were not limited to the territory they were assigned in Resolution 181. Also, the Jews were not illegally in the Jerusalem area because the corpus separatum also died at birth along with Resolution 181.
Mallison's legal opinion
also opined that
Arabs residing in Palestine
had, under international law, a right to self-determination.
But that right has never been awarded under international law in the case of attempted secession where its application would have empowered the UN to redraw the boundaries of an existing sovereign state. It has only been applied to cases of decolonization.
Mallison ignored that all of Palestine west of the Jordan River was recognized by some 53 states in 1922 as being owned by the Jews when they approved the Palestine Mandate. Some 52 were
But that right has never been awarded under international law in the case of attempted secession where its application would have empowered the UN to redraw the boundaries of an existing sovereign state. It has only been applied to cases of decolonization.
Mallison ignored that all of Palestine west of the Jordan River was recognized by some 53 states in 1922 as being owned by the Jews when they approved the Palestine Mandate. Some 52 were
members of the League of Nations that approved it as a treaty and the United
States that wasn't a member of the League approved it by a Joint Resolution of
4
Congress in 1922 and in a separate treaty, the Anglo-American
Convention of 1924.
The chronology is this. At the Paris Peace Talks in 1919, claims to the European and Middle East territories that the Allies had won in WWI, for
them a defensive war, were the subject of claims by European
parties and also by the Arab people and the Jewish People. The Arabs through
King Hussein claimed Syria, Iraq and Palestine — the Jews, through the World Zionist Organization claimed only Palestine, both east and
west of the Jordan River. The
Allies disposed of the claims to European territories at Versailles but did not resolve the claims to the Middle East territories until they had reconvened at San Remo in 1920. There they placed the political rights to Syria and Mesopotamia (now Iraq) in trust for the Arab people who were in the majority in those areas when the Arabs were capable of exercising sovereignty and placed the political rights to Palestine in trust for the Jews in the light of their
historic association with Palestine. Why? At the time the Jewish population in all of Palestine was only about 10% of the total, even though the Jews had enjoyed a majority population in the Jerusalem area since 1863 and a plurality since 1845. The British, in their Balfour policy framed in November, 1917 had decided to handle this by placing the political rights in trust not only until the people in the territory were capable of exercising sovereignty but
also not until the Jews had attained a population majority by their hard work to bring back to Palestine Jews from the diaspora to get a population majority. This would avoid an "antidemocratic" government, rule by a 10% minority — like the later French
recognition of the Alawites as sovereign over Syria that has resulted in so much death and destruction. To award the Jewish People only the equitable ownership of the political rights to Palestine — the rights to self-determination, they would place these political rights in trust, not to vest until the Jews had both a population majority as well as the capability of exercising sovereignty and would require the trustee to facilitate Jewish immigration
Allies disposed of the claims to European territories at Versailles but did not resolve the claims to the Middle East territories until they had reconvened at San Remo in 1920. There they placed the political rights to Syria and Mesopotamia (now Iraq) in trust for the Arab people who were in the majority in those areas when the Arabs were capable of exercising sovereignty and placed the political rights to Palestine in trust for the Jews in the light of their
historic association with Palestine. Why? At the time the Jewish population in all of Palestine was only about 10% of the total, even though the Jews had enjoyed a majority population in the Jerusalem area since 1863 and a plurality since 1845. The British, in their Balfour policy framed in November, 1917 had decided to handle this by placing the political rights in trust not only until the people in the territory were capable of exercising sovereignty but
also not until the Jews had attained a population majority by their hard work to bring back to Palestine Jews from the diaspora to get a population majority. This would avoid an "antidemocratic" government, rule by a 10% minority — like the later French
recognition of the Alawites as sovereign over Syria that has resulted in so much death and destruction. To award the Jewish People only the equitable ownership of the political rights to Palestine — the rights to self-determination, they would place these political rights in trust, not to vest until the Jews had both a population majority as well as the capability of exercising sovereignty and would require the trustee to facilitate Jewish immigration
5
(but
not Arab immigration) so as to obtain that
majority more quickly. However between 1920 and 1922 events in Syria and in transJordan, Palestine east of the Jordan River had motivated Britain to limit the area placed in trust for the Jews to the territory of Palestine west of the Jordan. The Palestine Mandate was drafted to specify in detail the new British Policy in Article 25, a temporary limitation on Jewish settlement east of the Jordan.
majority more quickly. However between 1920 and 1922 events in Syria and in transJordan, Palestine east of the Jordan River had motivated Britain to limit the area placed in trust for the Jews to the territory of Palestine west of the Jordan. The Palestine Mandate was drafted to specify in detail the new British Policy in Article 25, a temporary limitation on Jewish settlement east of the Jordan.
In 1947 the British decided to abdicate their responsibilities as trustee of the political rights to Palestine in 1948. The political rights of
the Jews matured in 1948 when the Jews attained a population
majority in the area within the Armistice boundary.
Instead of only an equitable interest, now, without formal acclamation, the Jews now had a legal interest in the political rights and the Jewish National Home had matured into a Jewish
reconstituted Commonwealth as originally conceived in the framing of the Balfour Declaration. If those Arab people residing in Palestine west of the Jordan had any right to self-determination, the UN would have to redraw the boundary of the sovereign state of Israel to exclude at least East Jerusalem from the sovereign State of Israel, and also to exclude Judea and Samaria to which Israel was entitled but to which Israel had not as yet asserted its rights. This would violate Israel's territorial integrity that was
guaranteed by the UN Charter. My legal opinion to that effect can be found at SSRN.com/abstract=2385304 and is shown below in
detail.
Instead of only an equitable interest, now, without formal acclamation, the Jews now had a legal interest in the political rights and the Jewish National Home had matured into a Jewish
reconstituted Commonwealth as originally conceived in the framing of the Balfour Declaration. If those Arab people residing in Palestine west of the Jordan had any right to self-determination, the UN would have to redraw the boundary of the sovereign state of Israel to exclude at least East Jerusalem from the sovereign State of Israel, and also to exclude Judea and Samaria to which Israel was entitled but to which Israel had not as yet asserted its rights. This would violate Israel's territorial integrity that was
guaranteed by the UN Charter. My legal opinion to that effect can be found at SSRN.com/abstract=2385304 and is shown below in
detail.
International
Law is derived principally from treaties between or among states, but also can be derived from long standing custom between
or among states.
In 1984 those pushing
Palestinian statehood financed the publication of a scholarly appearing journal entitled Palestinian Yearbook
of International Law responding to Professor Stone's treatise. In it, in an
article entitled "The Juridical Basis of Palestinian Self-Determination" the Mallisons attempted to resurrect their legal opinion by trying to fit the UN's Partition Resolution, that had died at birth, into
6
the category
of a longstanding
custom or practice of many states. That is hard to accept because the Arab
states that were a major part of the group that dominated the UN and its Committee on
the Exercise of the Inalienable Rights of the Palestinian
People, at the time of the Partition Resolution
had not accepted
the Resolution as international law but instead had
rejected it so violently they had gone to war.
PART I: "Roots Of Israel's Sovereignty And Boundaries In International Law: In Defense Of
PART I: "Roots Of Israel's Sovereignty And Boundaries In International Law: In Defense Of
The Levy Report
Part I first examines the legal basis of the Levy report, which concluded that Jewish
settlements are legal. In fact, the legality of Israel's presence in Judea, Samaria and East
Jerusalem was res judicata as of April 25, 1920, when [at the San
Remo Conference] World Jewry received a beneficial interest in the political rights to Palestine that was intended to mature into a
legal interest. The policy for the Arab States that were
established at around the same time by other Mandates was to bestow
on the current Arab inhabitants of those states an
equitable interest in the political rights to those states, but the
beneficiary for Mandated Palestine was not the Jews residing in Palestine
but World Jewry. The Mandate thus confirmed a living
connection between the Jews and their homeland, extending over some
3700 years. Modern Israel was legally projected to be molded in
two stages, where [1] "Palestine was legally recognized as a Jewish National Home -- as a prelude to [2] a reconstituted Jewish
State," which would come into being when the Jews in Palestine were in the
majority. Part I also discusses the sorry
history of Britain’s role as trustee.
In sum, "the
Mandate system provided in Article 22 of
7
the League of Nations’ Covenant was designed to help states that had been subject to
Ottoman occupation for 400
years, to become independent after
they learned democratic
principles, formed political parties and were able to self govern. An
exception was the Mandate for
Palestine where the Jewish People who had largely been driven out of Palestine
and dispersed by the Romans, were recognized as the equitable owners of
the political rights." World Jewry became the cestui que trust.
The decision on whether the Arabs or the Jews
have sovereignty over all of Palestine west
of the Jordan River under International Law is res judicata, lawyer talk for "the issue has already
been decided".
We tell you below who the judges were, what gave them jurisdiction or authority to make the decision, when the competing claims were received and when they were acted upon, how the Judges communicated their decision, and why the decision was to provide a two step process, first a Jewish National Home and then a
Jewish State.
We tell you below who the judges were, what gave them jurisdiction or authority to make the decision, when the competing claims were received and when they were acted upon, how the Judges communicated their decision, and why the decision was to provide a two step process, first a Jewish National Home and then a
Jewish State.
The recent Levy
Report is one of a series of legal
opinions by several people, each independently
reaching the same conclusion. This is the conclusion that World Jewry has had as of 1920, a Jewish National Home in all of Palestine, or since 1922 at least in that part of Palestine west of the Jordan River. That National Home was always intended to be a prelude to a reconstituted Jewish State in Palestine. It was a part of the mandate system provided for in the League of
Nations Covenant or charter, Article 22. These
opinions by several people, each independently
reaching the same conclusion. This is the conclusion that World Jewry has had as of 1920, a Jewish National Home in all of Palestine, or since 1922 at least in that part of Palestine west of the Jordan River. That National Home was always intended to be a prelude to a reconstituted Jewish State in Palestine. It was a part of the mandate system provided for in the League of
Nations Covenant or charter, Article 22. These
mandated areas were areas ruled from afar for
many
8
years and
were intended to be helped
by more
established states to become self governing states when they were found to be ready for it. The Mandate for Palestine had different standards for statehood. It was to become a reconstituted viable Jewish State of Israel when it met two standards originally established i.e. to attain a majority of Jewish population in the area governed, and to become as capable of exercising sovereignty as any modern European State.
established states to become self governing states when they were found to be ready for it. The Mandate for Palestine had different standards for statehood. It was to become a reconstituted viable Jewish State of Israel when it met two standards originally established i.e. to attain a majority of Jewish population in the area governed, and to become as capable of exercising sovereignty as any modern European State.
Recent
Levy Report on whether settlements in Judea, Samaria and East Jerusalem are illegal
I started my own
inquiry and analysis several years ago.
It was commenced before the recent publication of the report of the Levy Commission [1] finding that Jewish Settlements in Judea and Samaria were not illegal as Article 49 of the 4th Geneva Convention [2] prohibiting the "deportation or transfer" of its citizens was not applicable to decisions of individual Israeli citizens to move their place of residence. Permitting them to do so or even facilitating the relocation was not the proscribed exercise of State Power. The Levy Report held that the 4th Geneva Convention was directed solely at prohibiting the exercise of state power. Under Article 2 of the Convention, Any occupation must be of the territory of another party. But below we show that Palestine west of the Jordan belonged to the Jewish People in 1967, not another party. The report also held that the claim by Israel to the ownership of the political
It was commenced before the recent publication of the report of the Levy Commission [1] finding that Jewish Settlements in Judea and Samaria were not illegal as Article 49 of the 4th Geneva Convention [2] prohibiting the "deportation or transfer" of its citizens was not applicable to decisions of individual Israeli citizens to move their place of residence. Permitting them to do so or even facilitating the relocation was not the proscribed exercise of State Power. The Levy Report held that the 4th Geneva Convention was directed solely at prohibiting the exercise of state power. Under Article 2 of the Convention, Any occupation must be of the territory of another party. But below we show that Palestine west of the Jordan belonged to the Jewish People in 1967, not another party. The report also held that the claim by Israel to the ownership of the political
9
rights to this
territory was a good claim based on the 1920 San Remo Resolution and on the British Mandate for Palestine as of 1922 [3] because The San
Remo decision, a
treaty among the
Principal Allied War Powers, had adopted the 1917 Balfour
Declaration of British Policy [4] with the result that
it had now become International Law. The 1922 League of
Nations Mandate for Palestine, providing detail for
administering the
content of the Balfour Declaration [5] confirmed the San Remo agreement as the source of Jewish political or national rights to Palestine, with a new Article 25 intended to limit Jewish settlement East of the Jordan River.
content of the Balfour Declaration [5] confirmed the San Remo agreement as the source of Jewish political or national rights to Palestine, with a new Article 25 intended to limit Jewish settlement East of the Jordan River.
Other opinions reaching
the same conclusion
In the course of my own inquiry, I
learned that before I had
started, Dr. Jacques
Gauthier had compiled
a monumental 1400 page doctoral
thesis, [6] Dr. Gauthier's work
was followed by a legal tome of 732 pages written by Howard Grief, Esq. a Canadian lawyer now residing in Israel.[7] Grief's book was followed by that of a non lawyer, Mr. Salomon Benzimra of
Toronto, who stated in a much shorter and more readable work ó with helpful maps ó the factual premises
leading to the legal conclusions of Gauthier and
Grief. His book
was published in Kindle by Amazon in
November, 2011.
[8] My own view was initially published on line in a blog ó Think Israel.org ó but thereafter, with greater documentation, in a two part op ed in a
[8] My own view was initially published on line in a blog ó Think Israel.org ó but thereafter, with greater
10
conservative newspaper in Israel known as Arutz Sheva. [9]
My legal opinion was followed by the opinion of Dr. Cynthia Wallace,[10] who had been retained by a Christian Evangelical group. Finally, a recent report by the Levy Commission authorized by the current Prime Minister of Israel [English translation of the legal arguments in the Levy Report (updated) [11] contained the legal opinions of three distinguished Israeli jurists.
My legal opinion was followed by the opinion of Dr. Cynthia Wallace,[10] who had been retained by a Christian Evangelical group. Finally, a recent report by the Levy Commission authorized by the current Prime Minister of Israel [English translation of the legal arguments in the Levy Report (updated) [11] contained the legal opinions of three distinguished Israeli jurists.
One was the late Justice Edmund Levy,
formerly a
Justice of the Supreme Court of Israel. These jurists, for the first time, delivered an opinion on the status of Judea, Samaria and East Jerusalem that was not dominated by an Israeli left wing Labour Government.
All these opinions have only minor differences and
reach the same conclusion ó that World Jewry owns the political or national rights to all of Palestine West of the Jordan, and possibly some of that east of the Jordan as well. Legal opinions reaching the same conclusion, to my knowledge, go back at least to 1993 [12] so it cannot be said to be a recent politically inspired fabrication as some of its critics have charged. See especially, "Israel's
Rights to Samaria" [13] and excellent articles by Douglas Feith and Elliott A. Green.[14] Feith was later the Deputy Secretary of Defense for Policy under Rumsfeld in the George W Bush Administration; Elliott Green is an Israeli researcher. The critics with this view have responded ad hominem but few have raised issues
Justice of the Supreme Court of Israel. These jurists, for the first time, delivered an opinion on the status of Judea, Samaria and East Jerusalem that was not dominated by an Israeli left wing Labour Government.
All these opinions have only minor differences and
reach the same conclusion ó that World Jewry owns the political or national rights to all of Palestine West of the Jordan, and possibly some of that east of the Jordan as well. Legal opinions reaching the same conclusion, to my knowledge, go back at least to 1993 [12] so it cannot be said to be a recent politically inspired fabrication as some of its critics have charged. See especially, "Israel's
Rights to Samaria" [13] and excellent articles by Douglas Feith and Elliott A. Green.[14] Feith was later the Deputy Secretary of Defense for Policy under Rumsfeld in the George W Bush Administration; Elliott Green is an Israeli researcher. The critics with this view have responded ad hominem but few have raised issues
of fact or law. More recently I have encountered the opinion of the acclaimed international
lawyer, the late Julius Stone of Australia, the author of
11
Israel
and Palestine:
Assault on the Law of Nations. [15a]
The major points of the
Levy Report
In the Levy
Report, the first issue was whether Jewish settlements in Judea, Samaria, and East
Jerusalem, three areas invaded by the Arab Legion in
1948 and illegally occupied until 1967, were unlawful. The Israeli Labour Government
lawyer, Theodor Meron [15b]
had suggested the
proper law to apply was the law of "belligerent occupation."
Belligerent occupation occurs when a belligerent state invades the
territory of another
sovereign state
with the intention
of holding the territory at least temporarily. That
law is based on Article 43 of the 4th Hague Convention
of 1907 that assumes that land being occupied has a
legitimate sovereign. It is not applicable
because Jordan was illegally occupying it after an
aggressive invasion in 1948. Another Labour Party lawyer,
Talia Sasson, [16] also claimed the occupation was
illegal, also assumed belligerent occupation,
and strongly criticized
the
settlements. But even if belligerent occupation were found applicable, there would have to be shown that under the Geneva Convention the state of Israel had "deported or transferred" the "settlers". These "settlers" [17] were individuals who had decided on their own for economic or religious reasons to move to a new place to live outside the 1949 Armistice "Green Line". Some of
them were re settlers, who just wanted to return to their homes ó after the area had been
settlements. But even if belligerent occupation were found applicable, there would have to be shown that under the Geneva Convention the state of Israel had "deported or transferred" the "settlers". These "settlers" [17] were individuals who had decided on their own for economic or religious reasons to move to a new place to live outside the 1949 Armistice "Green Line". Some of
them were re settlers, who just wanted to return to
12
liberated. Their homes were in a place that had been
illegally occupied by Jordan and they had been expelled by
Jordan in 1948 or thereafter. They clearly were not
"deported" by Israel and if they relocated under
their own motivation for patriotic reasons, religious
reasons or just to go back to the home from which they were
expelled in 1948, no state had "transferred"
them. They simply moved for their own reasons.
The term
"transfer" must be distorted to be applied to situations it simply was not intended
to cover such as a movement of that kind. The 4th Geneva
Convention is directed at state action, not the
action of individuals. The earlier opinions of Labour
Government lawyers took a Convention that was directed at
states and attempted to apply it to individuals
by holding that it meant that the State of Israel was
required to prevent its Jewish citizens from moving where they wanted to even though preventing them from doing
so would
violate the UN Universal Declaration of Human Rights, Articles 13 and 15(2).[18] One of the authors of the Levy Report had in 2011 written about the interpretation that distorted the word "transfer".[19]
violate the UN Universal Declaration of Human Rights, Articles 13 and 15(2).[18] One of the authors of the Levy Report had in 2011 written about the interpretation that distorted the word "transfer".[19]
After finding that
the Geneva Convention did not apply, the Levy Commission looked to determine the state that did have sovereignty over the area conquered
by the Arab Legion in 1948.[20]
In 1948, the Arab
Legion, acting as
the army of transJordan that later became the
Nation State of Jordan, invaded the area that had been ruled by
the British Mandatory government for Palestine
13
as the trustee under the Mandate for Palestine. It was soon after the Mandate or trust had been abandoned by its
trustee, Great Britain. Israel had announced
its sovereignty and independence and was ruling as
the reconstituted State of Israel as had been recommended by the UN General Assembly Resolution 181.[21]
The Arab Legion
was an Army consisting in the main of Arab transJordanian soldiers but they
were supplied with arms by the British and led by
British Officers under the command of British General
Glubb, (Glubb Pasha) even though Britain the US and
many other countries had embargoed arms to
Israel. For some 19 years, from 1948 to 1967, Jordan
illegally occupied what had been Judea, Samaria and East
Jerusalem.
Under its rule all the 58 synagogues in the area but one were destroyed; some 38,000 tombstones from the Jewish Cemetery on the Mount of Olives were broken or defaced; all Jews were expelled from the area it acquired their homes and property were taken over by the Arabs.
Jordan's promises in the 1948 Armistice Agreement to permit visits by Christians and Jews to their holy places were not kept. In 1967, when the IDF reached the Western Wall of the Temple Mount, they found a latrine had been built against it.
Under its rule all the 58 synagogues in the area but one were destroyed; some 38,000 tombstones from the Jewish Cemetery on the Mount of Olives were broken or defaced; all Jews were expelled from the area it acquired their homes and property were taken over by the Arabs.
Jordan's promises in the 1948 Armistice Agreement to permit visits by Christians and Jews to their holy places were not kept. In 1967, when the IDF reached the Western Wall of the Temple Mount, they found a latrine had been built against it.
While the former
leftist Labour Government lawyers had held after 1967 that
Israeli was holding
the territory under
the Law of Belligerent Occupation, it is hard to see how they arrived at that
conclusion. That doctrine only applies to belligerent
occupation against a lawful sovereign in an area. Only two
countries in the whole world,
14
Britain and Pakistan
had recognized Jordan's sovereignty over what they renamed the
"West Bank". All of Jordan's territory
dating back to before 1948 was on the
East Bank of the River Jordan. Perhaps they renamed the area the Israelis had liberated ó called Judea, Samaria and East Jerusalem since historic times ó
"The West Bank" because they would look silly claiming that the Jews were illegally occupying Judea. (Hats off to Professor Steven Plaut)
The San Remo Resolution
Israel's roots in
International Law start in the San Remo Resolution of 1920 and not as most assume, in the UN General Assembly Resolution of 1947. It was
the latter that recommended Partition of
Palestine into an Arab and a Jewish
state. In that resolution Jerusalem and the nearby holy places were to be held separately as a corpus separatum at least temporarily under
control of the UN. It was a recommendation
that had no force and no effect because
one of the parties it was addressed to, the Arabs, rejected it and went to war.
What is International Law
International Law
is created by treaties (also called "conventions) between and among
states or by long standing custom. International Law
cannot be created by the UN. The UN General Assembly does
not have that authority; nor
does any international
entity.
15
The International
Court of Justice has no authority to create International law. This
is particularly true
where International Law
recognizes sovereignty over areas such as Palestine. That is because the UN Charter in Article 80 says in pertinent part, "...nothing in this Chapter shall be construed in or of itself to
alter in any manner the rights
whatsoever of any states or any peoples or the
terms of existing
international instruments to
which Members of the United Nations may respectively be parties. [22]
Its being saved
is also the consequence of the legal
doctrines of "acquired legal rights" and of "estoppel. As explained by Howard Grief "the principle of 'acquired legal rights' which, as applied to the Jewish people, means that the rights they acquired or were recognized as belonging to them when Palestine was legally recognized by 52 nations as the Jewish National Home [as a prelude to a reconstituted Jewish State] are not
affected by the termination of the treaty or the acts of international law which were the source of those rights.
This principle already existed when the Anglo American Convention came to an end simultaneously with the termination of the Mandate for Palestine on May 14 15, 1948. It has since been codified in Article 70(1)(b) of
the 1969 Vienna Convention on the Law of Treaties.
This principle of international law would apply even if one of the parties to the treaty failed to perform the obligations imposed on it, as was the case with the British government in regard to the Mandate for Palestine.
doctrines of "acquired legal rights" and of "estoppel. As explained by Howard Grief "the principle of 'acquired legal rights' which, as applied to the Jewish people, means that the rights they acquired or were recognized as belonging to them when Palestine was legally recognized by 52 nations as the Jewish National Home [as a prelude to a reconstituted Jewish State] are not
affected by the termination of the treaty or the acts of international law which were the source of those rights.
This principle already existed when the Anglo American Convention came to an end simultaneously with the termination of the Mandate for Palestine on May 14 15, 1948. It has since been codified in Article 70(1)(b) of
the 1969 Vienna Convention on the Law of Treaties.
This principle of international law would apply even if one of the parties to the treaty failed to perform the obligations imposed on it, as was the case with the British government in regard to the Mandate for Palestine.
16
The reverse side
of the principle of acquired legal rights is the doctrine of estoppel which is
also of great importance in preserving Jewish
national rights. This doctrine prohibits
any state from
denying what it previously admitted or recognized in a
treaty or other international agreement. In the
Convention of 1924, the United States recognized all the
rights recognized as
belonging to the Jewish people under the Mandate, in particular the right of Jewish settlement anywhere in Palestine or the Land of Israel. Therefore the US government is legally estopped today from denying the right of Jews in Israel to establish settlements in Judea, Samaria and Gaza, which have been approved by the government of Israel." [23]
belonging to the Jewish people under the Mandate, in particular the right of Jewish settlement anywhere in Palestine or the Land of Israel. Therefore the US government is legally estopped today from denying the right of Jews in Israel to establish settlements in Judea, Samaria and Gaza, which have been approved by the government of Israel." [23]
Article 80 is in
UN Chapter XII that gives the UN the authority to establish and administer
trust territories.
That is pertinent because Israel once was a "mandate".
The UN calls them "trusteeships". "Mandate" is what the League of Nations, the UN's predecessor in world government called an area placed in trust until it was capable of self government. Recognition of this political or national right was saved by Jews concerned about
the rights under the British Mandate for Palestine when the UN was given authority to deal with trusteeships as the Mandate was a trusteeship under the League of Nations name. [24]
That is pertinent because Israel once was a "mandate".
The UN calls them "trusteeships". "Mandate" is what the League of Nations, the UN's predecessor in world government called an area placed in trust until it was capable of self government. Recognition of this political or national right was saved by Jews concerned about
the rights under the British Mandate for Palestine when the UN was given authority to deal with trusteeships as the Mandate was a trusteeship under the League of Nations name. [24]
The Paris Peace Talks and
the decision at San Remo
17
To understand the
San Remo Agreement we must go back in time to WWI when the Turkish
Ottoman Empire entered the War on the side of
Germany. Germany and Turkey lost that war. They entered
into an Armistice Agreement on November 11, 1918. As the
holder of territory after being the winner of a
defensive war the Principal Allied
War Powers ó
The British Commonwealth, France, the US, Italy and Japan ó were entitled
under International Law
of long standing custom to occupy the Ottoman Empire
until a peace treaty was signed that delineated
boundaries agreed on by the parties. After the Paris Peace talks
that were held commencing January 4th, 1919 the Principals
determined
to establish a
world government to
maintain peace to be entitled The League of Nations. Its Covenant or charter was Part One of the Treaty of Versailles. The participants to the Paris Peace talks included the Principal War Powers and European claimants primarily interested in territories in Europe.
Even before the end of the war, in November, 1917 the Lord Balfour Policy had been established as British policy that World Jewry would be the beneficiary of the trust of the ìpoliticalî or ìnational rightsî to Palestine.
These are the rights that entitle political self
determination. Both Arabs and Jews interested in
territories in the Middle East were also present at the Peace Talks in Paris and submitted their claims there.
The Arabs claims were made under the auspices of King Ibn Hussayn, however they were presented by Lawrence of Arabia and also through George Antonius.
maintain peace to be entitled The League of Nations. Its Covenant or charter was Part One of the Treaty of Versailles. The participants to the Paris Peace talks included the Principal War Powers and European claimants primarily interested in territories in Europe.
Even before the end of the war, in November, 1917 the Lord Balfour Policy had been established as British policy that World Jewry would be the beneficiary of the trust of the ìpoliticalî or ìnational rightsî to Palestine.
These are the rights that entitle political self
determination. Both Arabs and Jews interested in
territories in the Middle East were also present at the Peace Talks in Paris and submitted their claims there.
The Arabs claims were made under the auspices of King Ibn Hussayn, however they were presented by Lawrence of Arabia and also through George Antonius.
18
Antonius brought
up Arab and French claims conflicting with the Balfour Declaration, notably
claims based on the Hussayn McMahon correspondence and
the secret Sykes Picot Agreement. Antonius had
made a careful study of these and his arguments
initially seemed quite
convincing that the British had sold the same horse three times.
convincing that the British had sold the same horse three times.
The Zionist
Organization made the following claim for a two step process in which the territory would first become
a Jewish National
Home and then
would become a
reconstituted Jewish state.
"Palestine shall
be placed under
such political,
administrative and economic conditions as will secure the establishment there of the Jewish National Home and ultimately render possible the creation of an autonomous Commonwealth, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non Jewish communities in Palestine or the rights and political status enjoyed by Jews in any other country. [emphasis added]
administrative and economic conditions as will secure the establishment there of the Jewish National Home and ultimately render possible the creation of an autonomous Commonwealth, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non Jewish communities in Palestine or the rights and political status enjoyed by Jews in any other country. [emphasis added]
To this end the Mandatory Power shall inter alia:
Promote Jewish immigration and close
settlement on the land, the established rights of
the present non Jewish population being equitably
safeguarded.
Accept the cooperation in such measures of a Council representative of the Jews of Palestine and of the world that may be established for the development of the Jewish National Home in
Accept the cooperation in such measures of a Council representative of the Jews of Palestine and of the world that may be established for the development of the
19
Palestine and entrust
the organization of Jewish education to
such Council On being satisfied that the constitution of such Council precludes the making of private profit, offer
to the Council in priority any concession for
public works or for the development of natural
resources that it may be
found desirable to grant. The Mandatory Power shall encourage the widest measure of self government for localities practicable in the conditions of the country.
There shall be forever the fullest freedom of religious worship for all creeds in Palestine. There shall be no discrimination among the inhabitants with regard to citizenship and civil rights, on the grounds of religion, or of race" [25]
found desirable to grant. The Mandatory Power shall encourage the widest measure of self government for localities practicable in the conditions of the country.
There shall be forever the fullest freedom of religious worship for all creeds in Palestine. There shall be no discrimination among the inhabitants with regard to citizenship and civil rights, on the grounds of religion, or of race" [25]
What the Zionist
organization was asking for in Paris in 1919 was essentially the already decided British policy in the 1917 Balfour Declaration that
the Principal War Powers later adopted at San Remo in
1920: That the Jews
wanted essentially a
protectorate that would ultimately transition into a
reconstituted state was well known as even the small Jewish population in Palestine did not believe it was ready to exercise sovereignty. As
reported in the Voltaire Network, a somewhat anti
semitic news network, of the three things the Jewish People wanted, one was "the establishment of a Jewish National Home in Palestine as a prelude to a reconstituted Jewish state". [emphasis added] [26]
reported in the Voltaire Network, a somewhat anti
semitic news network, of the three things the Jewish People wanted, one was "the establishment of a Jewish National Home in Palestine as a prelude to a reconstituted Jewish state". [emphasis added] [26]
20
The Principal War
Powers were able to complete their review and implement its action on the
claims over European territories in the Paris
Peace Talks. The written decision is within part II of
the Treaty of Versailles. They needed to extend their
deliberations to decide
on the claims
on what had
been Ottoman territory in the Middle East. To do
just that, they met again in San Remo, Italy in April,
1920 and dealt with the Arab and Jewish claims on April
24th and 25th. At the end of that meeting, the claims
were res
judicata.
The WWI Principal War Powers decided to recognize the then current Arab inhabitants of Syria and Mesopotamia as the beneficial owners of the political powers for those countries but adopt the British Balfour policy and recognize World Jewry as the beneficial owner of the political rights to Palestine.
The WWI Principal War Powers decided to recognize the then current Arab inhabitants of Syria and Mesopotamia as the beneficial owners of the political powers for those countries but adopt the British Balfour policy and recognize World Jewry as the beneficial owner of the political rights to Palestine.
Three documents
recorded the decision of the Principal War Powers on Palestine: the Treaty of
Sevres, the Treaty of Lausanne, and the San Remo
Resolution.
Article 95 of the Treaty of Sevres was confirmed by the later Treaty of Lausanne as by that time the cession ó transfer of sovereignty to the mandatory power, a formal giving up of rights, especially by a state ó in Asia was a fait accompli and Articles 16 and 30 of the latter treaty left Turkey's relinquishment of its sovereignty over territories in Asia unchanged.
The San Remo Resolution of 1920 was also a writing that incorporated the decision of the Principal War Powers on those competing claims to Palestine adopting the Balfour Declaration in
Article 95 of the Treaty of Sevres was confirmed by the later Treaty of Lausanne as by that time the cession ó transfer of sovereignty to the mandatory power, a formal giving up of rights, especially by a state ó in Asia was a fait accompli and Articles 16 and 30 of the latter treaty left Turkey's relinquishment of its sovereignty over territories in Asia unchanged.
The San Remo Resolution of 1920 was also a writing that incorporated the decision of the Principal War Powers on those competing claims to Palestine adopting the Balfour Declaration in
21
terms that were left to be further spelled out in the Mandate for Palestine. But
the British Balfour
Policy, while recognizing the Jews ownership of the political rights to Palestine, did not want them to exercise sovereignty immediately. Nor did the Jews want to do so. That is because as of 1917 when the Balfour Policy was being considered by the British, the Jews in all of Palestine were only 80,000 population out of a total population of 600,000 as estimated by the British Foreign Office (BFO). As long ago as 1845, the Jews had had a plurality of the population of Jerusalem and in 1863 a majority of the population there. But in all
of Palestine, as of 1917, the BFO estimated Jewish
Policy, while recognizing the Jews ownership of the political rights to Palestine, did not want them to exercise sovereignty immediately. Nor did the Jews want to do so. That is because as of 1917 when the Balfour Policy was being considered by the British, the Jews in all of Palestine were only 80,000 population out of a total population of 600,000 as estimated by the British Foreign Office (BFO). As long ago as 1845, the Jews had had a plurality of the population of Jerusalem and in 1863 a majority of the population there. But in all
of Palestine, as of 1917, the BFO estimated Jewish
population at only 10% of the total.
Critics of
the Balfour Policy
had argued that a
government ruled by a "people" that was only a 10% minority would be "antidemocratic". The British Foreign Office (ìBFOî) countered this argument by saying that even though Britain agreed with the "anti-democratic" argument in principle, as applied to the proposed Balfour policy the argument was "imaginary". In a memorandum of September 19, 1917,
Arnold Toynbee and Lewis Namier, speaking for the BFO, said that the political rights would initially be placed in trust ó the trustee likely being England or the United States. The trustee would have legal dominion over the political rights and although the Jews would have a beneficial interest, the legal interest would not vest until such time as the Jews had attained a majority population in
government ruled by a "people" that was only a 10% minority would be "antidemocratic". The British Foreign Office (ìBFOî) countered this argument by saying that even though Britain agreed with the "anti-democratic" argument in principle, as applied to the proposed Balfour policy the argument was "imaginary". In a memorandum of September 19, 1917,
Arnold Toynbee and Lewis Namier, speaking for the BFO, said that the political rights would initially be placed in trust ó the trustee likely being England or the United States. The trustee would have legal dominion over the political rights and although the Jews would have a beneficial interest, the legal interest would not vest until such time as the Jews had attained a majority
22
Palestine and were as fully capable of exercising sovereignty as a modern European state. Their decision was later incorporated in
article 95 of the treaty of
Sevres by a cession of Ottoman sovereignty over Palestine to that trustee, incorporated in the San Remo Resolution and to be defined in greater
detail in the Mandate for Palestine.[27]
This same recommendation for a two
step process was incorporated in the discussion in the Briefing
Document of the U.S. Delegation to the Paris
Peace Conference, in 1919.
"3. It is
recommended that the Jews be invited to return to Palestine and settle there, being
assured by the Conference of all proper assistance in
so doing that may be
consistent with the
protection of the
personal (especially the religious) and the property rights of the non Jewish population, and being further
assured that it will be the policy of the League of Nations to recognize Palestine as a Jewish state as soon as it is a
Jewish state in fact.
"It is right that Palestine
should become a Jewish state, if the Jews,
being given the full opportunity, make it such. It was the cradle and home of their vital race, which has made large spiritual contribution to
mankind, and is the only land in which
they can hope to find a home of their
own; they being in this last respect unique among significant peoples.
"At present,
however, the Jews form barely a tenth of the total population of 700,000 in
Palestine, and whether they are to form a majority, or even a
23
plurality, of the population in
the future state
remains uncertain.
Palestine, in short, is far from being a Jewish country now. England, as mandatory, can be relied on to give the Jews the privileged position they should have without sacrificing the rights of non Jews." [Note #12, p. 113.]
Woodrow Wilson had stated in 1919 "I am persuaded that the Allied nations, with the fullest concurrence of our own government and people, are agreed that in Palestine shall be laid the foundations of a Jewish Commonwealth."
Palestine, in short, is far from being a Jewish country now. England, as mandatory, can be relied on to give the Jews the privileged position they should have without sacrificing the rights of non Jews." [Note #12, p. 113.]
Woodrow Wilson had stated in 1919 "I am persuaded that the Allied nations, with the fullest concurrence of our own government and people, are agreed that in Palestine shall be laid the foundations of a Jewish Commonwealth."
A Mandate is a trust
The term
"Mandate" applied in this context is confusing.
It seems to mean an "order". But construed in the light of Article 22 of the Covenant or Charter of the League of Nations, it is clear that in the case of Mandates created as envisioned by Article 22 of the League Covenant or charter, such as the Mandates for Palestine, Syria and Mesopotamia, it means a device which was created under the British legal concepts of trusts and
guardianships. This was the conclusion in May of 1921, about one year after San Remo, by a British barrister and member of the NY bar Duncan Campbell Lee in his lecture at University College, London University entitled "The Mandate for Mesopotamia and the Principle of Trusteeship in English Law." [Note #24] If the Mandate is a trust, what is the trust res, the thing placed in trust?
It must be the political or national rights to Palestine.
It seems to mean an "order". But construed in the light of Article 22 of the Covenant or Charter of the League of Nations, it is clear that in the case of Mandates created as envisioned by Article 22 of the League Covenant or charter, such as the Mandates for Palestine, Syria and Mesopotamia, it means a device which was created under the British legal concepts of trusts and
guardianships. This was the conclusion in May of 1921, about one year after San Remo, by a British barrister and member of the NY bar Duncan Campbell Lee in his lecture at University College, London University entitled "The Mandate for Mesopotamia and the Principle of Trusteeship in English Law." [Note #24] If the Mandate is a trust, what is the trust res, the thing placed in trust?
It must be the political or national rights to Palestine.
24
The most important
question is "Who is the beneficiary of the trust? All who have looked at the trust and compared it with trusts for Syria and
Mesopotamia have concluded that it
is World Jewry.
Compare it yourself with the Mandate for Syria
and the Mandate for Mesopotamia. For the latter, "This Organic law shall be formed in agreement with the native authorities and shall take into
account the rights, interests and wishes of all the
Population inhabiting the mandated territory, (Article 1 of the Mandate for Syria and The Lebanon) For Mesopotamia,
now Iraq, the mandate provided: This Organic law shall be framed in consultation with the native authorities and
shall take into account the rights, interests
and wishes of all the population of the mandated
territory. (Article 1 of the Mesopotamia [Iraq] Mandate. [emphasis
added}
However in the Palestine Mandate, Article 2 says "The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home as laid down in the preamble and the establishment of self governing institutions" [emphasis added].
However in the Palestine Mandate, Article 2 says "The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home as laid down in the preamble and the establishment of self governing institutions" [emphasis added].
And the preamble
states "Whereas the Principle Allied Powers have also agreed that the Mandatory should be responsible
for putting into
effect the declaration originally made
on November 2, 1917, by the Government of
His Britannic Majesty [The
Balfour Declaration] and
adopted by the said Powers in favor of the establishment in Palestine of a
national home for the Jewish people,
25
it being clearly understood that nothing should be
done which might prejudice the civil and
religious rights of the non Jewish communities in Palestine ... and
Whereas recognition has thereby been given to
the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country; ..."
Compare the Mandates
It seems clear
that in the other mandates, the rights, interests and wishes of the then
current inhabitants are to be taken into account but in
Palestine Mandate they were ignored in favor of a Jewish
National Home in which solely the advice of the Zionist Organization was to be taken into account (Mandate Article 4).
In the Palestine Mandate only
Jewish immigration was expressly required to be facilitated with the result that
eventually a Jewish population majority would have been attained. (Mandate article 6) It therefore appears that the Jewish National Home was a beneficial interest in the political rights to Palestine, to mature into a later legal interest in those rights and sovereignty for them.
However for the non Jews in the existing population, it provided only protection for their civil and religious rights after Jewish sovereignty was achieved. It is Jewish immigration alone that must be facilitated. It is the Zionist Organization alone reflecting the rights, interests and wishes of World Jewry that was the appointed advisor to the
eventually a Jewish population majority would have been attained. (Mandate article 6) It therefore appears that the Jewish National Home was a beneficial interest in the political rights to Palestine, to mature into a later legal interest in those rights and sovereignty for them.
However for the non Jews in the existing population, it provided only protection for their civil and religious rights after Jewish sovereignty was achieved. It is Jewish immigration alone that must be facilitated. It is the Zionist Organization alone reflecting the rights, interests and wishes of World Jewry that was the appointed advisor to the
26
Administration set up by the trustee to
administer the Mandate.
administer the Mandate.
Balfour resigned
as foreign secretary following the Paris Conference in 1919, but continued in the Cabinet as lord president of the council. In a memorandum of August 11, 1919 addressed to new Foreign Secretary
Lord Curzon, he stated ...
"All of the
other engagements contained pledges that the Arab or Muslim populations could establish national governments of their own choosing according to
the principle of self determination.
Balfour explained: "... in Palestine we do not propose to even go through the form of consulting the wishes of the present (majority) inhabitants of the country ..."
Balfour stated
explicitly to Curzon: "The Four Great
Powers [Britain, France, Italy and the United States] are committed to Zionism. And Zionism, be it right or wrong, good or bad, is rooted in age long traditions, in present needs, and future hopes, of far profounder import than the desires and prejudices of the 600,000 Arabs who now inhabit that ancient land. In my opinion that is right." * * He continued: "I do not think that Zionism will hurt the Arabs, but they will never say they want it. Whatever be the future of Palestine it is not now an 'independent nation', nor is it yet on the way to become one. Whatever deference should be paid to the views of those living there, the Powers in their selection of a mandatory do not propose, as I understand the matter, to consult them."..."If Zionism is to influence theJewish problem
Powers [Britain, France, Italy and the United States] are committed to Zionism. And Zionism, be it right or wrong, good or bad, is rooted in age long traditions, in present needs, and future hopes, of far profounder import than the desires and prejudices of the 600,000 Arabs who now inhabit that ancient land. In my opinion that is right." * * He continued: "I do not think that Zionism will hurt the Arabs, but they will never say they want it. Whatever be the future of Palestine it is not now an 'independent nation', nor is it yet on the way to become one. Whatever deference should be paid to the views of those living there, the Powers in their selection of a mandatory do not propose, as I understand the matter, to consult them."..."If Zionism is to influence theJewish problem
27
throughout the world, Palestine must be made available for the largest number of Jewish immigrants"[28]
Was the League of
Nations creator or settler of the
trust? No it was the Principal Allied Powers who met at San Remo according to Douglas Feith [Note #14]. It is they who by winning the war had the authority to dispose of the territories as they saw fit. It is also those Powers, not the League who accepted Britain's offer to serve as Mandatory Power or Trustee at San Remo.
trust? No it was the Principal Allied Powers who met at San Remo according to Douglas Feith [Note #14]. It is they who by winning the war had the authority to dispose of the territories as they saw fit. It is also those Powers, not the League who accepted Britain's offer to serve as Mandatory Power or Trustee at San Remo.
A Trustee has fiduciary
obligations
Britain's offer
and the Principal
Allied Power's
acceptance of Britain as Trustee on April 25, 1920
created a fiduciary relationship between the cestui que trust, World Jewry, and the Trustee. This principle is so well recognized in British and American law it needs no citation. It created a duty that required Britain to give priority to the beneficiary's interest over its own economic and political interests. The agreement between the Grantor and the Trustee was effective in April, 1920 not 1922, the date when the parties agreed
the Mandate would become effective. This raises a
question on whether Britain violated its fiduciary responsibilities when it eliminated from the political rights being placed in trust those pertaining to Eastern Palestine.
acceptance of Britain as Trustee on April 25, 1920
created a fiduciary relationship between the cestui que trust, World Jewry, and the Trustee. This principle is so well recognized in British and American law it needs no citation. It created a duty that required Britain to give priority to the beneficiary's interest over its own economic and political interests. The agreement between the Grantor and the Trustee was effective in April, 1920 not 1922, the date when the parties agreed
the Mandate would become effective. This raises a
question on whether Britain violated its fiduciary responsibilities when it eliminated from the political rights being placed in trust those pertaining to Eastern Palestine.
28
What was the role
of the League of Nations? Balfour saw it only as the instrument to carry out
this policy. Balfour,
on presenting the Mandate to the League of Nations
stated:
on presenting the Mandate to the League of Nations
stated:
"Remember that a mandate is a
self imposed limitation by the
conquerors on the
sovereignty which they obtained over conquered territories. It
is imposed by the Allied and
Associated Powers on themselves in the interests
of what they conceived to be the general welfare of mankind...." "The League of Nations is not the author of the policy, but its instrument.... ".
Britain's role was that of the
Mandatory or trustee. But the conquerors, the Principal Allied Powers,
did not give the political rights to World Jewry as
a gift. The political rights were recognized as belonging to
the Jews because of the long "historical
connection of the Jewish People with Palestine" a history
extending over some 3,700
years with a continuous presence of Jews during all that time.
years with a continuous presence of Jews during all that time.
Article 95, Treaty of
Sevres ó was it legally effective?
The Turks had
regrouped and fought the Allies again over territories in Europe. So the
Treaty of Sevres which also covered those areas was never
ratified by Turkey but was superseded by the Treaty of Lausanne. By that time the decisions pertaining to the Middle
East were a fait
accompli. By not changing things the Treaty of
Lausanne, in Article 16 and 30 ratified Article 95 of the treaty of Sevres that was the ruling of the
Principal War
29
Powers on the
competing claims of the Arabs and Jews.
That ended any claim of the Ottomans and left its status up to the other parties concerned. Article 95 had ceded Ottoman sovereignty over Palestine to the Mandatory Power in trust for the Jews. Nota bene that the Mandates for Syria and Mesopotamia were also established in that treaty. The Syrian Mandate was subsequently divided into two, a Syrian Mandate into which the Muslims were to be located, and Lebanon for the Christians.
That ended any claim of the Ottomans and left its status up to the other parties concerned. Article 95 had ceded Ottoman sovereignty over Palestine to the Mandatory Power in trust for the Jews. Nota bene that the Mandates for Syria and Mesopotamia were also established in that treaty. The Syrian Mandate was subsequently divided into two, a Syrian Mandate into which the Muslims were to be located, and Lebanon for the Christians.
The British truncated the
Jewish Political Rights
But an interesting thing happened
between the time of the meeting in San Remo and the confirmation
of the League Mandate for Palestine. The
language of the Mandate was changed to deal differently
with Palestine east of the Jordan River known as
"transJordan' in contrast to cisJordan that referred to
Palestine west of the Jordan, between the Jordan and the Mediterranean Sea. An Article 25 had been inserted in
paragraph 25 of
the later 1922 draft, as it was presented to the League by Britain. Britain had on April 25, 1920 agreed to assume the responsibilities of a fiduciary. The later draft provided for temporarily suspending Jewish settlement in transJordan.
the later 1922 draft, as it was presented to the League by Britain. Britain had on April 25, 1920 agreed to assume the responsibilities of a fiduciary. The later draft provided for temporarily suspending Jewish settlement in transJordan.
How did this come about? King Hussayn
who was then ruler in the Hedjaz in the Arabian Peninsula
had four sons. Believing that his agreement
with the British resulting from
his correspondence with
McMahon would give him a wide area
30
covering
Syria and Mesopotamia (now
Iraq) as well
as the Arabian peninsula, he told his son Feisal that
he would rule in Syria and Abdullah to my recollection
in Iraq. The third son would inherit Hussayn's throne and the fourth one was not interested in positions of power. In the
secret
Sykes Picot agreement, the Governments of Europe split up the former Ottoman territory into spheres of influence. England was to get Palestine and Mesopotamia (now Iraq), and France would get Syria.
Immediately after the war, England had placed Feisal on the throne in Syria. When he asserted independence, France was offended and after the Battle of Maysalun, it deposed Feisal. Abdullah, who was very warlike, marched his army into transJordan and made ready to attack Damascus. Churchill did not want the Arabs to war against the French so he gave the throne of Iraq to Feisal. The story can be filled in from the Diary of Sir
Alec Kirkbride, one of three British officers who were told after WWI to set up governments in transJordan.
After he had set up a government Kirkbride was warned that Abdullah was marching his army toward his area and wired the British headquarters in Jerusalem. They wired back telling Kirkbride to ignore the warning as
Abdullah would never invade a territory being ruled by His Majesty's government. When Abdullah did, in fact, show up, Kirkbride had only a few policeman to help him and wisely decided not to fight. He wired Jerusalem once again and this time His Majesty's government, decided that it was a fait accompli. At a meeting in Cairo
Sykes Picot agreement, the Governments of Europe split up the former Ottoman territory into spheres of influence. England was to get Palestine and Mesopotamia (now Iraq), and France would get Syria.
Immediately after the war, England had placed Feisal on the throne in Syria. When he asserted independence, France was offended and after the Battle of Maysalun, it deposed Feisal. Abdullah, who was very warlike, marched his army into transJordan and made ready to attack Damascus. Churchill did not want the Arabs to war against the French so he gave the throne of Iraq to Feisal. The story can be filled in from the Diary of Sir
Alec Kirkbride, one of three British officers who were told after WWI to set up governments in transJordan.
After he had set up a government Kirkbride was warned that Abdullah was marching his army toward his area and wired the British headquarters in Jerusalem. They wired back telling Kirkbride to ignore the warning as
Abdullah would never invade a territory being ruled by His Majesty's government. When Abdullah did, in fact, show up, Kirkbride had only a few policeman to help him and wisely decided not to fight. He wired Jerusalem once again and this time His Majesty's government, decided that it was a fait accompli. At a meeting in Cairo
31
on March 21, 1921
Churchill decided the best way out of this problem was to limit the political
rights of the Jews to Palestine west of the Jordan. Kirkbride then chuckles over
the "remarkable discovery" made
by the government that the framers of the
Balfour policy never really wanted to give all of Palestine
to World Jewry for its Jewish National Home. Why then did
the Toynbee
Namier memorandum predating the Balfour
Declaration assume that the 600,000 total population of all of Palestine would be under Jewish rule but for putting the political rights in trust? [29]
Namier memorandum predating the Balfour
Declaration assume that the 600,000 total population of all of Palestine would be under Jewish rule but for putting the political rights in trust? [29]
As for the
Hussayn McMahon correspondence, George Antonius claimed that the British had
promised King Ibn Hussayn the rule of Syria, and
Palestine as well as the Arabian Peninsula if he got the
Arab tribesmen to revolt against the Ottomans. But as
shown by Isaiah Friedman, Hussayn had told McMahon
that he would get some 258,000 fighters to fight on
behalf of the British and at the most came up with
about 5,000.[30]
It appears there was a failure of consideration for any promise McMahon had made. There was a question on whether Hussayn was promised any territory that his own fighters had not conquered. And in fact in Syria and Palestine none of the Arabs fought on the side of the British and many fought for the Ottomans. Finally assuming these were not a problem there was a dispute over the territory that Hussayn was promised even though his fighters had conquered it. A line was drawn
that would eliminate territory to the west and south of the line as being an area that should
It appears there was a failure of consideration for any promise McMahon had made. There was a question on whether Hussayn was promised any territory that his own fighters had not conquered. And in fact in Syria and Palestine none of the Arabs fought on the side of the British and many fought for the Ottomans. Finally assuming these were not a problem there was a dispute over the territory that Hussayn was promised even though his fighters had conquered it. A line was drawn
that would eliminate territory to the west and south of
32
be under the control of others
and Palestine was
excluded and according to
the British, Hussayn
understood that Palestine was
excluded. Moreover the
British also contended that the Hussayn McMahon Correspondence
had never matured into a final
agreement.
The change in the
Mandate decided after San Remo in March, 1921 was worded
only to be a temporary suspension of
Jewish settlement in transJordan but transJordan eventually matured into the
country of Jordan and was eventually ceded to
Abdullah and his Hashemite tribe
even though Abdullah and his Tribe was a "foreign power" from the Hedjaz of the Arabian Peninsula, expressly prohibited from receiving
any of the political rights in trust.
This, the 1922
White Paper was the first example of England breaking its obligations to the
Jews. It would do so again and again in the White Papers
of 1930 and 1939 even after the confirmation of the
Mandate by the League of Nations in July, 1922. Britain
had volunteered at San Remo in April to be the
mandatory power or trustee of the League of Nations Mandate for Palestine.
As a trustee it owed the beneficial owner of the trust res the obligations of a fiduciary. A fiduciary's obligation is to prefer its beneficiary's interests over those of its own.
Yet England in July, 1922 had persuaded the League to change the terms of the trust the Principals had agreed to at San Remo, to solve Britain's own political difficulties with France. This cost the beneficiary, World Jewry. some 40% of the territory extending east to the Hejaz Railway
As a trustee it owed the beneficial owner of the trust res the obligations of a fiduciary. A fiduciary's obligation is to prefer its beneficiary's interests over those of its own.
Yet England in July, 1922 had persuaded the League to change the terms of the trust the Principals had agreed to at San Remo, to solve Britain's own political difficulties with France. This cost the beneficiary, World Jewry. some 40% of the territory extending east to the
33
that had initially been
recognized by the Principal Allied
Powers as the
area they wanted recognized as Jewish.
Britain's retreat from
the Balfour policy.
Through the
meeting at San Remo, all the Principal War Powers were very protective of the
rights of World Jewry. When at San Remo, the French
wanted to amend the "savings clause" saving
the "civil and religious rights" of non Jewish communities
when the Jews ultimately exercised sovereignty in
Palestine, to add "political rights" the
British and the other Principal War Powers declined to accept the amendment. France was
satisfied with a "process verbal" a side agreement noted in the minutes explaining that the savings clause meant that the non Jews would not have to surrender any of their rights. That was acceptable to the others because all knew that the Arabs in Palestine had never exercised sovereignty there. The only "people" in Palestine that had exercised self government in Palestine was the Jews.
After the Churchill White Paper of 1922 diminished Jewish rights East of the Jordan River, Perfidious Albion continued to abuse its position as Mandatory Power or trustee in the British Passfield White Paper of 1930 and the MacDonald White Paper of 1939. In 1939 it adopted a British White paper blocking further Jewish immigration into Palestine West of the Jordan at the request of the Arabs. It did this despite an express requirement of the Mandate or trust that the trustee
satisfied with a "process verbal" a side agreement noted in the minutes explaining that the savings clause meant that the non Jews would not have to surrender any of their rights. That was acceptable to the others because all knew that the Arabs in Palestine had never exercised sovereignty there. The only "people" in Palestine that had exercised self government in Palestine was the Jews.
After the Churchill White Paper of 1922 diminished Jewish rights East of the Jordan River, Perfidious Albion continued to abuse its position as Mandatory Power or trustee in the British Passfield White Paper of 1930 and the MacDonald White Paper of 1939. In 1939 it adopted a British White paper blocking further Jewish immigration into Palestine West of the Jordan at the request of the Arabs. It did this despite an express requirement of the Mandate or trust that the trustee
34
should
"facilitate" Jewish immigration" into Palestine so that the Jews would ultimately become
the majority population and the Jewish National Home
could change into a reconstituted Jewish state. The
1939 White Paper would freeze Jewish population at
about a one third minority. It contemplated a grant of
self government to the population of Palestine in 1949
but with Jewish
immigration blocked, there would still be an Arab
majority.
immigration blocked, there would still be an Arab
majority.
Many of those who
had participated in the original
deliberations on the Balfour policy that had been adopted at San Remo strongly objected. David Lloyd George who had been the Prime Minister of England then, characterized this action as "an act of national perfidy which will bring dishonor to the British name."
Winston Churchill, in the House of Commons,
condemned the Paper as "plainly a breach and
repudiation of the Balfour Declaration" and he referred to it as "another Munich" (Neville Chamberlain was Prime Minister in 1939). Harry Truman, then a U.S. Senator also criticized the 1939 White Paper as a "repudiation of British obligations" and President Franklin Roosevelt expressed his "dismay [at] the
deliberations on the Balfour policy that had been adopted at San Remo strongly objected. David Lloyd George who had been the Prime Minister of England then, characterized this action as "an act of national perfidy which will bring dishonor to the British name."
Winston Churchill, in the House of Commons,
condemned the Paper as "plainly a breach and
repudiation of the Balfour Declaration" and he referred to it as "another Munich" (Neville Chamberlain was Prime Minister in 1939). Harry Truman, then a U.S. Senator also criticized the 1939 White Paper as a "repudiation of British obligations" and President Franklin Roosevelt expressed his "dismay [at] the
decisions of
the British Government
regarding its Palestine Policy". That 1939 White Paper even blocked the sale of property in Palestine to the Jews.
35
The MacDonald 1939 White
Paper was Illegal
But even more
importantly, the League of Nations
Permanent Mandates Commission whose duty it was to oversee the Mandatories appointed by the League, was unanimous that the interpretation on which the 1939 White Paper was based was inconsistent with the interpretation previously placed on it by the Mandatory.
That Commission, by a majority, ruled that the
interpretation was inconsistent with the express obligations of the Mandate, i.e. to facilitate Jewish immigration into Palestine so that the Jews would become a majority and could become a reconstituted Jewish State.
Permanent Mandates Commission whose duty it was to oversee the Mandatories appointed by the League, was unanimous that the interpretation on which the 1939 White Paper was based was inconsistent with the interpretation previously placed on it by the Mandatory.
That Commission, by a majority, ruled that the
interpretation was inconsistent with the express obligations of the Mandate, i.e. to facilitate Jewish immigration into Palestine so that the Jews would become a majority and could become a reconstituted Jewish State.
Under the terms of the 1939 White
Paper a single Arab majority state was contemplated by 1949,
completely abandoning the objective of the
Balfour Agreement.
This was a unilateral measure without the prior consent of the Council of the League of Nations, therefore violating Article 27 of the Mandate that required its approval before any modification. A meeting of that Council was scheduled for September 8, 1939 but was never held because of the outbreak of WWII.
Nevertheless the British, for the next ten years from 1939 until May, 1948 viciously enforced an illegal blockade preventing Jews from fleeing death in Nazi extermination camps and later blocking Holocaust survivors from reaching sanctuary in Israel even though the blockade had been determined to be illegal by the Permanent
This was a unilateral measure without the prior consent of the Council of the League of Nations, therefore violating Article 27 of the Mandate that required its approval before any modification. A meeting of that Council was scheduled for September 8, 1939 but was never held because of the outbreak of WWII.
Nevertheless the British, for the next ten years from 1939 until May, 1948 viciously enforced an illegal blockade preventing Jews from fleeing death in Nazi extermination camps and later blocking Holocaust survivors from reaching sanctuary in Israel even though the blockade had been determined to be illegal by the Permanent
36
Mandates Commission authorized to make that
determination. Its enforcement contributed to the
death of some six million Jews who were trying to flee from the European Holocaust. It lasted, because of the obsessed Ernest Bevin, even after the war, blocking Holocaust survivors from entering a place where they could received help from others of their people.[31] [32]
determination. Its enforcement contributed to the
death of some six million Jews who were trying to flee from the European Holocaust. It lasted, because of the obsessed Ernest Bevin, even after the war, blocking Holocaust survivors from entering a place where they could received help from others of their people.[31] [32]
In 1947 the
British after seeking monetary and military aid from the United States that was denied, announced its proposed abandonment in 1948 of its
trusteeship that it said it could no longer
afford. The UN, had replaced the League of Nations as
world government, and this new world government included
the United States as a member. It had as Article
80 of its Charter,
preserved the recognition by its 51 state membership of the Jews ownership of the political rights to Palestine, now reduced to Palestine west of the Jordan River. The UN formed a special committee to determine what should be done, because of the threatened violence of the Arabs. [33]
preserved the recognition by its 51 state membership of the Jews ownership of the political rights to Palestine, now reduced to Palestine west of the Jordan River. The UN formed a special committee to determine what should be done, because of the threatened violence of the Arabs. [33]
The UN Partition
Recommendation
The UN General Assembly, after the
Special Committee completed
its deliberations, enacted
a resolution, Resolution 181 [34] recommending that
Palestine West of the Jordan should be divided into
Arab and Jewish states and a Corpus Separatum encompassing Jerusalem and
37
surrounding religious holy sites.
Such a recommendation is of no continuing force and
effect unless both parties to it accept the
recommendation. One party, the
Jews, did. They were willing to give up much of their political rights in exchange for an end to the threats of violence and so they could aid
in the immigration of Holocaust survivors.
The Secretary
General of the
Arab League had
threatened war. He said: "This war will be a war of
extermination and a momentous massacre which will be spoken of like the Mongol massacre and the Crusades." The Arabs declined to accept the compromise and went to war. The Arab warfare was initially conducted by Arabs local to Palestine but was soon joined by seven armies of surrounding Arab States.
Some 350,000 to 700,000 Arabs fled without seeing a single Jewish soldier although a few at Ramle and Lydda were removed by the Jewish forces because after agreeing to an armistice they had resumed fighting and the Jews did not want them in back of their lines. As to almost all the rest, the rich left first, followed by many more at the urging of the Arab Higher Committee who
asked them to get out of the way of the invading armies.
It predicted the defeat of the Jews in some two weeks and assured them that the Arabs could then return.
Mahmoud Abbas (Abu Mazen) wrote an article in the official organ of the PLO, "Filastin", complaining of this, and that when the Arab armies lost, the refugees were imprisoned in camps in the neighboring Arab states [35]. Hazam Nusseibeh, who worked for the Palestine
threatened war. He said: "This war will be a war of
extermination and a momentous massacre which will be spoken of like the Mongol massacre and the Crusades." The Arabs declined to accept the compromise and went to war. The Arab warfare was initially conducted by Arabs local to Palestine but was soon joined by seven armies of surrounding Arab States.
Some 350,000 to 700,000 Arabs fled without seeing a single Jewish soldier although a few at Ramle and Lydda were removed by the Jewish forces because after agreeing to an armistice they had resumed fighting and the Jews did not want them in back of their lines. As to almost all the rest, the rich left first, followed by many more at the urging of the Arab Higher Committee who
asked them to get out of the way of the invading armies.
It predicted the defeat of the Jews in some two weeks and assured them that the Arabs could then return.
Mahmoud Abbas (Abu Mazen) wrote an article in the official organ of the PLO, "Filastin", complaining of this, and that when the Arab armies lost, the refugees were imprisoned in camps in the neighboring Arab states [35]. Hazam Nusseibeh, who worked for the Palestine
38
Broadcasting
Service in 1948, admitted being told by Hussein Khalidi, a Palestinian Arab
leader, to fabricate the atrocity claims. Abu Mahmud, a Deir
Yassin resident in 1948 told Khalidi "there was
no rape," but Khalidi replied, "We have to say this, so the Arab armies will come to liberate Palestine from the
Jews." Nusseibeh told the BBC 50 years later,
"This was our biggest mistake. We did not realize how our
people would react.
As soon as they heard that women had been raped at Deir Yassin, Palestinians fled in terror." [36] This massacre rumor was also a major contributing factor in the exodus of Arabs from Palestine. Those who fled were not invited back by the Jews who won. No peace treaty was signed until many years later and the Jews did not want to have a Fifth Column in their midst. The treaties that were signed with Egypt did not reestablish
As soon as they heard that women had been raped at Deir Yassin, Palestinians fled in terror." [36] This massacre rumor was also a major contributing factor in the exodus of Arabs from Palestine. Those who fled were not invited back by the Jews who won. No peace treaty was signed until many years later and the Jews did not want to have a Fifth Column in their midst. The treaties that were signed with Egypt did not reestablish
normal relations. It has been a cold
peace. The peace with Jordan has perhaps been a little
better.
In the 1948 War
the Jews weren't 100% successful in repelling the invasion of the
surrounding Arab armies.
Jordan, at the time, had for its armed forces The Arab Legion, supplied by the British and led by British Officers. At the same time the Jews were subject to an arms embargo. The Arab Legion was therefore successful in invading westward from Jordan, to and including East Jerusalem. The Egyptian forces moved north and got as far as the Gaza strip. Under International Law this territory, having been won in an aggressive war, the capture of this land did not gain the invaders
Jordan, at the time, had for its armed forces The Arab Legion, supplied by the British and led by British Officers. At the same time the Jews were subject to an arms embargo. The Arab Legion was therefore successful in invading westward from Jordan, to and including East Jerusalem. The Egyptian forces moved north and got as far as the Gaza strip. Under International Law this territory, having been won in an aggressive war, the capture of this land did not gain the
39
the
political rights to it. Only Britain and Pakistan recognized Jordan as holding
sovereignty over it.
Israeli liberation ofJudea ,
Samaria and East Jerusalem In 1967, once
again Arabs threatened to annihilate the Jews. Egypt blocked Israeli shipping through the
Straits of Tiran and massed tanks and troops on its border with Israel . It ordered the UN buffer force,
established in 1956, to leave and the UN buffer forces left without even seeking UN approval. Nasser threatened annihilation of the Jews or driving them into the sea.
Israel struck back at Egypt but even after being shelled by Jordanian artillery, sent a note to King of Jordan saying that if they stopped the shelling they need not be a part of the war. Jordan declined and its army in Judea , Samaria and East Jerusalem was driven back to the Jordan River by the Jews.
Jordan was not a legitimate sovereign but was
illegally occupying an area that was disputed and in which the Jews had the better claim. The Government of Israel never directly made the claim based on the competing Arab and Jewish claims made at the Paris Peace talks and the disposition of them in the Treaty of Sevres, the San Remo Resolution and the Mandate for Palestine .
It only hinted at it.
Israel 's Legitimacy in Law and History, note
#12 supra, pp. 55,56.
Israeli liberation of
CONCLUSION
The Mandate system
was designed to help states that had been subject to Ottoman occupation for 400 years, to become independent after they learned democratic principles, formed political parties and were able to self govern. An exception was the Mandate for Israel where the Jewish People who had been driven out of Palestine and dispersed by the Romans, were recognized by first
40
the British, next
the Allied Principal War Powers, and finally, the members of the League of Nations as the owners of the political rights because of their historic association with Palestine but initially were to be solely a cestui que trust with regard to Palestineís political rights. There, the tacit standard for ending the Mandate by the vesting of the trust res was to be the attainment of a Jewish population majority in the area they were to govern and their capability to exercise sovereignty.
Although now
people point to the designation Jewish National Home to bolster their argument that the British Balfour Policy was never intended to create a state, there was little doubt in the British newspapers when the Balfour Declaration was published.
That the Declaration paved the way for a Jewish State seems to, judging from the press, to have been taken for granted.
The headlines in theLondon newspapers ñ ëA state for the Jewsí (Daily Express) ñ ëPalestine for the Jewsí (The Times, Morning Post, Daily News). The Spectator wrote of the proposal for the establishment of a Jewish State in Palestine. The Manchester Guardian saw
the Declaration as
leading to ëthe ultimate establishment of a Jewish State. The
Observer wrote: It is no idle dream that by the close of another
generation the new Zion may become a state. Leonard Stein at 562, 63 [42]
That the Declaration paved the way for a Jewish State seems to, judging from the press, to have been taken for granted.
The headlines in the
Before enacting
the Partition Resolution of 1947, the UN in effect found the Jews were capable of exercising sovereignty. The resolution itself became only a failed recommendation when
41
rejected by the Arabs and the partition resolution had no continuing force and effect.
When the trustee, Britain , abandoned its trust in May, 1948, the cestui que trust, World Jewry, was the logical entity to get legal dominion of the political rights that theretofore had been held in trust. Had the UN thought the Jews were still incapable of the
exercise of sovereignty, in 1948 they would have appointed another trustee.
In any event, by 1948, coincidentally the Jews had attained a majority of the population of Palestine , at least within the area of Palestine west of the Jordan within the Armistice line where they were
to rule.
In doing my
research I learned of Woodrow Wilsonís stand on the natural law concept of
self determination of peoples and wondered how he would have evaluated giving
the Jewish People, a small minority in Palestine at the time of the Paris Peace Talks
in 1919, the political rights to that territory. In doing my research I learned that
Lord Balfour had the same doubts ìWhen Balfour met
Brandeis in Paris in June 1919, he remarked . . . . that Palestine represented a unique situation. We are dealing not with the wishes of an existing community but are consciously seeking to re-
constitute a new community and definitely building for a numerical majority in the future. He had, he went on, great difficulty in seeing how President Wilson could reconcile his adherence to Zionism with the doctrine of self determination, to
42
which Brandeis replied that the whole conception of Zionism as a Jewish homeland was a definite building up for the future as the means of dealing with a world problem and not merely with the
disposition of an existing community. ë Balfour gave the argument a slightly different turn at his interview with Meinertzhagen a few weeks later. ë [Meinertzhagen was also very pro Zionist.] He agreed . . . in principle, Meinertzhagen wrote in his diary (30 July 1919), in the principle of self determination, but it could not be indiscriminately applied to the whole world, and Palestine was a case in point . . . In any Palestinian plebiscite the Jews of the world must be consulted in which case he sincerely believed that an overwhelming majority would declare for Zionism under a British mandate.í Leonard Stein at p. 649
disposition of an existing community. ë Balfour gave the argument a slightly different turn at his interview with Meinertzhagen a few weeks later. ë [Meinertzhagen was also very pro Zionist.] He agreed . . . in principle, Meinertzhagen wrote in his diary (30 July 1919), in the principle of self determination, but it could not be indiscriminately applied to the whole world, and Palestine was a case in point . . . In any Palestinian plebiscite the Jews of the world must be consulted in which case he sincerely believed that an overwhelming majority would declare for Zionism under a British mandate.í Leonard Stein at p. 649
Leopold Amery, one
of the Secretaries to the British War Cabinet of 1917 1918 testified under oath to the Anglo American Committee of Inquiry in January, 1946 from his personal knowledge [Tr. 1/30/46, p 112] that:
1. He believed
that the Jewish National Home was an experiment to determine whether there would
eventually be a Jewish majority over the whole ofPalestine .
eventually be a Jewish majority over the whole of
2. He believed
that the territory for which political
rights were to be recognized was intended to
include all ofPalestine both east and west of theJordan River .
rights were to be recognized was intended to
include all of
43
3. He had always
assumed that the particular
reference to not
infringing the civil or religious
liberties of Arab population was not so much a safeguard against the
British Government infringing those liberties . . ., but a Jewish state infringing those liberties. Therefore, at the time that
possibility of a Jewish majority over the whole of the larger Palestine was, he thought envisaged.
4. The phrase “the
establishment in Palestine of a
National Home for the Jewish people” was
intended and understood by all concerned to
mean at the time of the Balfour Declaration thatPalestine would ultimately become a “Jewish
Commonwealth” or a “Jewish State”, if only Jews
came and settled there in sufficient numbers.
National Home for the Jewish people” was
intended and understood by all concerned to
mean at the time of the Balfour Declaration that
Commonwealth” or a “Jewish State”, if only Jews
came and settled there in sufficient numbers.
5. Recalled that
Lloyd-George had testified earlier
[likely in 1939 at the time of the 1939 White
Paper]:
[likely in 1939 at the time of the 1939 White
Paper]:
“...There could be
no doubt as to what the
Cabinet then had
in mind. It was not their idea
that a Jewish
State should be set up immediately
by the Peace Treaty…. On the other hand, it was
contemplated that when the time arrived for
according representative institutions toPalestine ,
if the Jews had meanwhile responded to the
opportunity afforded them … and had become a
definite majority of the inhabitants, thenPalestine
by the Peace Treaty…. On the other hand, it was
contemplated that when the time arrived for
according representative institutions to
if the Jews had meanwhile responded to the
opportunity afforded them … and had become a
definite majority of the inhabitants, then
44
would thus become
a Jewish Commonwealth.
The notion that the Jews should be a permanent minority never entered into the heads of anyone engaged in framing the policy. That would have been regarded as unjust, and as a fraud on the people to whom we were appealing.”
Presenting in 1946
the Arab Case Against a
Jewish State in Palestine , Albert Hourani described his understanding of what was being considered:
speaking as
a member of the Arab Officeóand I
believe as the
last witness who will appear on the Arab side I think it is right to emphasize, without
elaborating what needs no further elaboration, the
unalterable opposition of the Arab nation to the attempt to impose a Jewish State upon it. This opposition is based upon the unwavering conviction of unshakeable rights and a conviction of the injustice of forcing a long settled population to accept immigrants without its
consent being asked and against its known and
expressed will; the injustice of turning a majority into a minority in its own country; the injustice of withholding self government until the Zionists are in the majority and able to profit by it. P. 80 [43]
elaborating what needs no further elaboration, the
unalterable opposition of the Arab nation to the attempt to impose a Jewish State upon it. This opposition is based upon the unwavering conviction of unshakeable rights and a conviction of the injustice of forcing a long settled population to accept immigrants without its
consent being asked and against its known and
expressed will; the injustice of turning a majority into a minority in its own country; the injustice of withholding self government until the Zionists are in the majority and able to profit by it. P. 80 [43]
The late Professor
Julius Stone was recognised as one of the twentieth century's leading authorities on the International law. His ìIsrael and Palestine , Assault on the Law of Nationsî which appeared
45
in 1980, presented a detailed analysis of the central principles of international law governing the issues raised by the Arab Israel conflict.î Building on principles of International Law, he showed that the Jewish settlements were not illegal. Based on that opinion the US Department of State changed the view it had provided President Carter. But Stoneís view did not take into account the principles of equity jurisprudence
made applicable by Article 22 referred to in the
preamble of the Palestine Mandate. [44] He does point out that ìNot only doesJordan lack any legal title to the territories concerned, but the [Geneva ] Convention itself does not by its terms apply to these territories.
For, under Article 2, the [4thGeneva ] Convention applies "to cases of Ö occupation of the territory of a High such Party". Insofar as the
West Bank at present held by Israel does not belong to any other State, the Convention would not seem to apply to it at all.î He doesnít point out that in fact it belongs to the Jewish People as does the State of Israel that is not ìanother partyî so that the correct characterization is not only ìoccupiedî as in military occupation. further since occupied land carries the pejorative meaning of belligerent occupation, a better descriptive would be liberated.
preamble of the Palestine Mandate. [44] He does point out that ìNot only does
For, under Article 2, the [4th
West Bank at present held by Israel does not belong to any other State, the Convention would not seem to apply to it at all.î He doesnít point out that in fact it belongs to the Jewish People as does the State of Israel that is not ìanother partyî so that the correct characterization is not only ìoccupiedî as in military occupation. further since occupied land carries the pejorative meaning of belligerent occupation, a better descriptive would be liberated.
Politics and the
Jewish political rights to Palestine
46
Under the left
wing Labour government, Israel has never directly made a claim under the political or national rights that its principal, World Jewry, had under International Law that had been recognized, first by the Principal War Powers, and then by most states.
Even with the change of Paragraph 25 suspending the right to settle East
Palestine , there
remained for World Jewry a right to Palestine west of the Jordan approved by the 51 countries in the League of Nations and by the US , who had declined membership ó a total of 52 countries. But the thrust of the Labour Government claim was not the San Remo Agreement but under facts occurring
in 1948
and thereafter.
The Israeli Government said thatJordan 's aggression
in 1948 resulted in Jordan never obtaining sovereignty over Judea , Samaria and East Jerusalem . So when in 1967 in a defensive war, it drove the Jordanians out of that area, it was thereafter not engaged in a belligerent occupation.
The Israeli Government said that
It only hinted at it.
Now, Douglas
Feith, Jacques Gauthier, Howard Grief, Salomon Benzimra, Cynthia Wallace, former Israel Supreme Court Justice Levy and his two distinguished colleagues, Alan Baker, Tshia Shapira, the late Julius Stone and I are directly
47
making that claim. By now it should be perfectly clear that the claim is not based on the UN General Assembly partition resolution of 1947,
nor is it based only on facts occurring in 1948 and
thereafter. It is based on facts commencing as early as 1917 when the British adopted its Balfour policy and it became International Law on the agreement of the Principal War Powers atSan Remo in 1920 after consideration of
both the claims of the Arabs and that of the Jews to the political or national rights to Palestine . It was confirmed by the League's action
on at least
nor is it based only on facts occurring in 1948 and
thereafter. It is based on facts commencing as early as 1917 when the British adopted its Balfour policy and it became International Law on the agreement of the Principal War Powers at
Palestine West of the Jordan River by the 51 nations that were its members. It is based on the presentation of the competing claims of the Arabs
and Jews submitted to the Principal War Powers at the Paris Peace Conference and the adjudication and ruling on those claims at San Remo in detail in the order that was called the League of Nations Mandate for Palestine . It is
based on the legal doctrines of "acquired rights" and "estoppel" that prohibits any state from denying what it previously admitted or recognized in a treaty or other international agreement. It is based on Article 80 of the UN Charter that preserves political rights that had been recognized by the United States and Principal Allied Powers in the 1920s. While Chaim Weizmann and some
of the Zionist Organization had been willing to give up those rights, many had never agreed to it and split off into another organization headed by Jabotinsky.
based on the legal doctrines of "acquired rights" and "estoppel" that prohibits any state from denying what it previously admitted or recognized in a treaty or other international agreement. It is based on Article 80 of the UN Charter that preserves political rights that had been recognized by the United States and Principal Allied Powers in the 1920s. While Chaim Weizmann and some
of the Zionist Organization had been willing to give up those rights, many had never agreed to it and split off into another organization headed by Jabotinsky.
Even despite
accepting the later loss of transJordan, Chaim Weizmann, instrumental in obtaining the Balfour Declaration, was delighted
48
with what was left. Gauthier has paraphrased[37] Weizmann's
reactions to the San Remo decision, which gave Jews their rights
under international law: "This is the most momentous political
event in the whole history of the Zionist movement, and it's no exaggeration to
say, in the whole history of our people since the Exile."
What importance do
the Arabs place on the Balfour Declaration? A reviewer of "The Iron Cage: The Story of the Palestinian Struggle for Statehood" [38] a book by Columbia Professor Rashid Khalidi who formerly was a spokesman for the PLO, says "Khalidi has his own set of
external culprits, beyond the blame he is willing to accept for the Arabs for the Nakba or catastrophe as they call it."
The very first of the three listed is "British colonial masters like Lord Balfour, who refused to recognize the national [political] rights of non Jews; ..." [39]
external culprits, beyond the blame he is willing to accept for the Arabs for the Nakba or catastrophe as they call it."
The very first of the three listed is "British colonial masters like Lord Balfour, who refused to recognize the national [political] rights of non Jews; ..." [39]
What then is the
rule under International Law? It is "There is no legal claim to
national self determination for Palestinian Arabs west of the Jordan River other than as peaceful citizens in a
democratic structure covering the area as a whole." [40]
Part II: Where
There is a Tension Between the
Right of a "People" to Self-determination and
the Right of aSovereign State to Territorial
Integrity, the Right of the State isParamount
Right of a "People" to Self-determination and
the Right of a
Integrity, the Right of the State is
49
The Jewish
People's State — Eretz Yisrael
International
Law on the question of the Jewish
People's sovereignty over Palestine between the River Jordan and the Sea can be summed up in two parts. This following summary was prepared by the late Eugene Rostow, an acclaimed International Lawyer, Dean of the Yale Law School and Under Secretary for Political Affairs in the State Department in the Lyndon Johnson Administration. It was written in 1991, just after the OSLO
Agreement was
signed.
[Part 1.]
"The 1920 mandate [for Palestine] implicitly denies Arab claims to national political rights in the area in favour of the Jews;
the mandated territory was in effect reserved to the Jewish people for their self-determination and political development, in acknowledgment of the historic connection of the Jewish people to
the land.
the mandated territory was in effect reserved to the Jewish people for their self-determination and political development, in acknowledgment of the historic connection of the Jewish people to
the land.
[Part 2.] There
remains simply the theory that the Arab inhabitants of the West Bank and
the Gaza Strip have an inherent "natural law" claim to the area.
Neither
customary international law nor the United
Nations Charter acknowledges that every group of people claiming to be a nation has the right to a state of its own." Eugene Rostow, The
Future of Palestine, Institute for Strategic Studies, November 1993, [bracketed numbers added]
Future of Palestine, Institute for Strategic Studies, November 1993, [bracketed numbers added]
I found the
foregoing summary after I had completed my own research and had written a more
detailed version. The only difference between Rostow's view and mine is that I sprinkled a little equity jurisprudence in mine making it a little easier to understand. The law of trusts is incorporated in the body of equity
50
jurisprudence and
helps explain Part I. The Palestine Mandate was in effect a trust agreement in which Britain held in trust the political rights recognized in 1920 to belong to the Jewish People.
It therefore had legal dominion over them so long as it was trustee — see below. The Jewish people owned only a beneficial interest in these political rights when Britain was trustee. It was not until
1948 that the World Jewry met the tacit standards for vesting of the trust res.
1948 that the World Jewry met the tacit standards for vesting of the trust res.
They met those
standards by attaining a population majority in the defined territory
(inside an Armistice boundary) that was under their rule, and by having
the capability of exercising sovereignty by their unified control over the population inside that boundary and control over their borders.
The standards for exercising sovereignty were restated in 1933 in the Montivideo Convention on the Rights and Duties of States. Now that 20 years have gone by and the "peace talks" and renunciation of violence have been proven to be a charade, it is time to contemplate what will come next. One alternative that hasn't been given a forum is a one lawful Jewish majority state from the River to the Sea. But two myths need correcting and a chimera must be dispelled. One myth is that Jewish sovereignty had its roots in the 1947 UNGA Partition Resolution 181 and success in battle in 1948, but does not include Judea, Samaria and East Jerusalem that were liberated in 1967.
A history lost in the sands of time shows the roots of the Jewish People's sovereignty was actually in 1920, not 1947. It is outlined in the San Remo Resolution -- word for word the Balfour Declaration — and detailed in the Palestine Mandate. This beneficial interest, awaiting a Jewish population majority in the area to be ruled, and Jewish capability to exercise sovereignty, was recognized by 52 states in 1922. One of those was the United States. These political rights vested in the Jewish People in 1948 under the principles of the law of trusts without any fanfare in fulfillment of the trust set up by the Mandate..
The standards for exercising sovereignty were restated in 1933 in the Montivideo Convention on the Rights and Duties of States. Now that 20 years have gone by and the "peace talks" and renunciation of violence have been proven to be a charade, it is time to contemplate what will come next. One alternative that hasn't been given a forum is a one lawful Jewish majority state from the River to the Sea. But two myths need correcting and a chimera must be dispelled. One myth is that Jewish sovereignty had its roots in the 1947 UNGA Partition Resolution 181 and success in battle in 1948, but does not include Judea, Samaria and East Jerusalem that were liberated in 1967.
A history lost in the sands of time shows the roots of the Jewish People's sovereignty was actually in 1920, not 1947. It is outlined in the San Remo Resolution -- word for word the Balfour Declaration — and detailed in the Palestine Mandate. This beneficial interest, awaiting a Jewish population majority in the area to be ruled, and Jewish capability to exercise sovereignty, was recognized by 52 states in 1922. One of those was the United States. These political rights vested in the Jewish People in 1948 under the principles of the law of trusts without any fanfare in fulfillment of the trust set up by the Mandate..
The second myth is
that the "Palestinian People" is a real rather than an invented
"people" and that they want a right to self- determination under
51
International Law. This is also not correct. Part II corrects this myth.
I wrote two articles on these questions that were published by the Think-Israel
blog under a non-exclusive license. They are entitled Soviet Russia, the
Creators of the PLO and the Palestinian People ( http://www.think-israel.org/brand.russiatheenemy.html).: Was there a Palestine Arab National Movement at the End of the Ottoman
Period?"
(http://www.think-Israel.org/brand.palnationalism.html).
The view that a single
Jewish state from the Jordan River to the Mediterranean Sea would involve giving up on a majority of Jewish citizenry in Israel is only a chimera. Annexation of Judea and Samaria would lower the existing Jewish population majority from 80% to only 66% -- as found by former Ambassador Yoram
Ettinger based on a study of the Begin Sadat Center, but that much only if every Arab in those territories swore fealty to the Jewish State to obtain citizenship. He also said that the Jewish birthrate is significantly greater than the Arab birthrate and is supplemented by significant Jewish immigration from the diaspora. If it becomes necessary to retake Gaza, that territory could be given internal autonomy (like Home Rule) until the Jewish majority in the entire area grows such that adding Gaza would not jeopardize a Jewish population majority. Internal autonomy is much like the current proposals of Netanyahu to the Palestinian Authority.
Ettinger based on a study of the Begin Sadat Center, but that much only if every Arab in those territories swore fealty to the Jewish State to obtain citizenship. He also said that the Jewish birthrate is significantly greater than the Arab birthrate and is supplemented by significant Jewish immigration from the diaspora. If it becomes necessary to retake Gaza, that territory could be given internal autonomy (like Home Rule) until the Jewish majority in the entire area grows such that adding Gaza would not jeopardize a Jewish population majority. Internal autonomy is much like the current proposals of Netanyahu to the Palestinian Authority.
Palestinian
Self-Determination under natural law and
International Law
In President
Obama's recent trip to Israel, he told the students there [having excluded students from outside the Green Line] that the Palestinian People had an inalienable right to self-determination.
But he also repeated to Americans many times that if they liked their health care policies, under ObamaCare they could keep them.
Neither is correct. The UN General Assembly made the same error on Palestinian self-
But he also repeated to Americans many times that if they liked their health care policies, under ObamaCare they could keep them.
Neither is correct. The UN General Assembly made the same error
52
determination in its Resolution 3236. This might
be true under natural law, but is
it the rule under International Law?
Does every
"people" have a unilateral right to self determination under International Law? Not the Kurds, nor the Basques. If not, why should the Arab people living in Palestine have that right?
One of the two
major arguments the alleged "Palestinian People" make to justify their claim is that under International Law they are a "people" and are therefore entitled to self-determination under International Law. In order to exercise
self-determination, according to this logic, international law gives them the right to their own state. Of course Arabs residing in Palestine are not a genuine "people". As noted herein they were invented in 1964 in Moscow by the Soviet dezinformatsiya. Zahir Muhsein, a member of the PLO Executive Board admitted in 1977, there is no such thing as a unique "Palestinian People". He said, and we agree, they are no different from the Arabs in surrounding countries. The term "Palestinian People" he has admitted, is used only as a political ploy.
In 1920 there was no "Palestinian People" that made a claim on any of the territory relinquished by the Ottoman Empire in the Treaty of Lausanne -- only an Arab People. The Arab People did make a claim that was rejected.
In 1920 there was no "Palestinian People" that made a claim on any of the territory relinquished by the Ottoman Empire in the Treaty of Lausanne -- only an Arab People. The Arab People did make a claim that was rejected.
There
never had been a "Palestinian"
language, never a "Palestinian" nation ruling themselves from a capital in Palestine, never a "Palestinian" coinage. That is because a
"Palestinian People" didn't exist then any more than it does now. Even if they were now a genuine people, they have no unilateral right under
international law, to become a state with territory taken from a preexisting state.
international law, to become a state with territory taken from a preexisting state.
53
But before
we examine the basis for any current claim of a genuine
"people" let us look at the claim for statehood for the Jewish
People based on the right of the Jewish People to self-determination as it
looked to the Allied Principal Powers who considered it in 1920.
According
to the late Julius Stone, the widely
acclaimed Australian international lawyer, "That the provision for a Jewish national home in Palestine was an application of the principle of
self-determination is manifest from the earliest seminal beginning of the principle. The Enquiry Commission, established by President Wilson in order to draft a map of the world based on the Fourteen Points, affirmed the right of the Jewish people that Palestine should become a Jewish State clearly on this ground.
Palestine, the Commission said, was 'the cradle and home of their vital race', 'the basis of the Jewish spiritual contribution', and the Jews were 'the only people whose only home was in Palestine'…"
[44]
self-determination is manifest from the earliest seminal beginning of the principle. The Enquiry Commission, established by President Wilson in order to draft a map of the world based on the Fourteen Points, affirmed the right of the Jewish people that Palestine should become a Jewish State clearly on this ground.
Palestine, the Commission said, was 'the cradle and home of their vital race', 'the basis of the Jewish spiritual contribution', and the Jews were 'the only people whose only home was in Palestine'…"
[44]
In any event, we
show below that even if the Arab people currently residing in Palestine
were a genuine "people", they would have no right under
international law to secede from the territory of a pre existing state.
Many believe that
Woodrow Wilson's Fourteen Points speech in 1918 was the first mention of a right of self-- determination of a people since the time of John Locke. But Woodrow Wilson's
Fourteen Points speech focused on three colonies of Turkey,
Fourteen Points speech focused on three colonies of Turkey,
54
namely Syria,
Mesopotamia and Palestine. It was aimed at their decolonization. It was not meant to
deal with open ended secession. Only 53 years before, the United States had suffered
combat casualties of 215,000 and total casualties of 625,000 in the American Civil War in denying to the Southern Confederacy the right of secession. The American Revolutionary War, on the other hand, was a war to obtain American
self-- determination by decolonization. So American history itself
supports self-determination obtained by decolonization but not when sought by secession where the territorial integrity of a sovereign state is at issue.
Territorial
integrity of the sovereign state had been the mainstay of the new world order established after the Peace of Westphalia in 1648. It is considered inviolable. Under
the current rule of International Law "Without the consent of the existing state, the international community will not recognize secessionist territories as sovereign and independent States.* * * There is no general right of secession in international law. The principle of sovereign equality of States includes the recognition that the territorial integrity of the State is
'inviolable'." Wheatley, Democracy, Minorities and International Law. [emphasis added] And there is
an existing Jewish People's state whether or not the Government of Israel adopts the Levy Report and annexes Judea and Samaria -as I discuss below.
an existing Jewish People's state whether or not the Government of Israel adopts the Levy Report and annexes Judea and Samaria -as I discuss below.
Franklin
Roosevelt's and Winston Churchill's wartime discussion of the subject of political self determination, framed on a battleship in the Atlantic Ocean appeared to be open ended. It was stated as natural law in the 1941 "Atlantic Charter." But when the right of self-determination is open ended, there will be a tension between that right of self-determination of "peoples" with the right of territorial integrity of sovereign states except when the right of self-determination of peoples can be met by a decolonization. A
decolonization can be carried out without affecting the boundaries of a state.
decolonization can be carried out without affecting the boundaries
55
The
first evolution of this natural law
on the "god given" inalienable right of self- determination into International Law was its mention in the UN Charter adopted in June, 1945 in Article 1 Section 2 provides as one purpose: "To develop friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples..." But Article 2 (1) preserved the territorial integrity of the sovereign
state: "The [UN] Organization is
based on the principle of the sovereign equality of all its Members."
The next mention
of the right of self-determination clearly focused on decolonization. Declaration
on the Granting of Independence to Colonial Countries and Peoples Adopted
by General Assembly resolution 1514 of 14 December 1960 provided "2.
All peoples have the right to self-determination. . . ."
The next two
International Conventions were not clearly focused on decolonization but did certainly retain the rights of territorial integrity of the sovereign state. These were enacted in 1966 to
become effective in 1976. They were The International Covenant on Civil and Political Rights, and The International Covenant on Economic, Social, and Cultural Rights Article 1.1. in each,
become effective in 1976. They were The International Covenant on Civil and Political Rights, and The International Covenant on Economic, Social, and Cultural Rights Article 1.1. in each,
provides:
"All peoples have the right of self-determination." But each covenant also reserves the territorial integrity of the sovereign state. Article 1.3. of each provides: The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. [emphasis added] The Charter requires sovereign equality and hence the
inviolability of territorial integrity.
56
In 1970,
the UN General Assembly spoke again
on self-determination in the Declaration On Principles Of International Law Concerning Friendly Relations And Co-Operation Among
States In Accordance With The Charter Of The United Nations.
States In Accordance With The Charter Of The United Nations.
This provided:
"By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status . . ." But it also said:
"
Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country." [emphasis added] The most serious
Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country." [emphasis added] The most serious
problem facing
Israel today is the split in unity of its people. That split is being
fostered by the current action of the United States on the question of Arab
self-determination in Palestine west of the Jordan River.
Under
International Law, the clear rule is that International Law supports the self-determination of a "people" when it can be attained without affecting the boundary of a sovereign state as is
the case in a decolonization. Political scientists, philosophers and those in the discipline of public administration have been suggesting that the right of self-determination should be available
unilaterally even under secession. The theory attracting the most followers appears to be that of Allen Buchanan a philosopher at the University of Wisconsin. He would preserve the strong priority of territorial integrity of sovereign states over the right of a people to self-determination but permit secession only as a remedy of last resort for a "people" when a majority in a state is badly oppressing a minority with the threat of genocide or cultural extinction. See:
Buchanan, The International Institutional Dimension of Secession in Lehning, Theories of Secession at pp. 241-247, justifying the need for a priority for territorial integrity. Other non-lawyers would not even require that an entire "people" want to secede but would permit it for any cohesive group nor would they require it to be a
last resort. They do require that it be fair to the minority in the territory removed as well as not
the case in a decolonization. Political scientists, philosophers and those in the discipline of public administration have been suggesting that the right of self-determination should be available
unilaterally even under secession. The theory attracting the most followers appears to be that of Allen Buchanan a philosopher at the University of Wisconsin. He would preserve the strong priority of territorial integrity of sovereign states over the right of a people to self-determination but permit secession only as a remedy of last resort for a "people" when a majority in a state is badly oppressing a minority with the threat of genocide or cultural extinction. See:
Buchanan, The International Institutional Dimension of Secession in Lehning, Theories of Secession at pp. 241-247, justifying the need for a priority for territorial integrity. Other non-lawyers would not even require that an entire "people" want to secede but would permit it for any cohesive group nor would they require it to be a
last resort. They do require that it be fair to the minority in the
57
removing anything vital to the continued existence of those
in the remaining territory.
How do these
principles apply to the Arab Israeli
conflict?
conflict?
First, that
conflict is res judicata under International Law and has been since 1920.
In 1919 the Arab and Jewish People brought to the Paris Peace
Talks their competing claims for Palestine. King Hussein, the
initial representative of the Arab People, also claimed Syria (now Syria
and Lebanon) and Mesopotamia (now called
Iraq). The World
Zionist Organization sought only Palestine, asking only in
effect for what the British Balfour Declaration policy had
promised them. That was recognition initially of an equitable interest
in the political rights to Palestine but when the Jews attained a
population majority in the area to be governed and had the capability
of exercising sovereignty, it was the intention to have
the rights vest so they could
reconstitute a Jewish Commonwealth.
Until that time the British as
trustees or mandatory, were to
have legal dominion over these rights with the authority
in the mandate or trust agreement of
legislation, administration and
adjudication. That was a precaution taken to
avoid
an antidemocratic government according to a
memo (9/17/1917)
of the British Foreign Office written
by Arnold Toynbee and Lewis
Namier. The same intention was noted in the
briefing documents
the American diplomats carried with them to the Paris Peace
Talks. That the mandate was simply a trust agreement was
early recognized by a British barrister in 1921, Lee, The Mandate for
Mesopotamia and the Principle of Trusteeship in English Law, (1921) League of Nations Union, Forgotten Books Critical Reprint
Series (2012). The International Court of Justice later followed the
same view in its decision on Namibia Legal
Consequences for States of the Continued Presence of South Africa
58
in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276 (1970)
Advisory Opinion of 21 June 1971" some 50 years later.
The mandatory or
trustee was to facilitate Jewish immigration. It was expected that Jewish
immigration from the diaspora would take a long time to effect a majority
Jewish population, therefore the mandatory power was prohibited from ceding any
of the land to any foreign party in the interim. The mandatory or trustee was
to facilitate Jewish immigration.
At the Paris Peace
Talks in 1919 the focus was on the European claimants of territories
in Europe but when the Allies reconvened in San Remo in
April, 1920, they recognized the Jewish People as
the owners of the
political rights to Palestine due to its long history of association
with that area. On April 25th they adopted the Balfour
Declaration word for word as their
decision on the
competing claims
to Palestine of the Jewish People and Arab people. They
rejected a French proposal to amend the Balfour Declaration to
include "political rights" in the savings clause which saved for the non
Jewish communities only their "civil" and "religious
rights". The Arab then current majority inhabitants of Syria and
Mesopotamia were awarded a beneficial interest in the political
rights to those territories and eventually
became sovereigns of
those states.
The Ottomans
(Turkey) ceded their sovereign rights to Palestine in the Treaty of
Sevres to the Mandatory Power. That treaty was never ratified but
in the later Treaty of Lausanne, Turkey released any claim to these
territories, the disposition of which by that time as a British
Mandate, was a fait accompli. In 1922 the 52 members of the League of
Nations and the US had approved the terms of the Palestine Mandate
except for truncating the territory to the that part
of Palestine west
of the Jordan River, reducing its area by about 40%.
59
By 1948 the Jews
had unified control and a population majority of the area they
governed within the Armistice Boundary (The Green Line) and Britain
had abdicated its responsibilities as trustee in 1948. In 1967 the
Jews drove out Jordan and Egypt from the areas they were
illegally occupying based on their aggressive war in 1948. So-- do the
"Palestinian People" have the unilateral right, to secede from the
Jewish People's State? The Government of Israel, the agent of the
Jewish People has so far not asserted sovereignty over the
territories of Judea and Samaria. This was likely because the lawyers under
the former labor government had held the Jews held the land
liberated in 1967 in "belligerent occupation". But they were
mistaken. That is because a belligerent occupier is one who has captured
the land from a legitimate sovereign. That is assumed in Article
43 of the 1907 Hague Convention: "Art. 43.
The authority of
the legitimate power having in fact passed into the hands of the
occupant, the latter shall take all the measures in his power to restore,
and ensure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the
country."
Jordan never
gained sovereignty over any land west of the Jordan River because it
had captured it in an aggressive war. No Arab state recognized
Jordan as the sovereign of this territory. In the
whole world only
two states recognized Jordan as sovereign over territory
in the West Bank because to do
so would violate International Law
of long standing custom as well as the UN
Charter.
Eretz Yisrael, the
Jewish People's Sovereign State
The Government of
Israel, the agent of World Jewry has asserted sovereignty over
East Jerusalem but not over Judea and Samaria.
But those areas
also meet the tacit test of the Mandate for vesting of a legal interest in the
60
political rights to those territories. Israel
has already
asserted its sovereignty over East Jerusalem. And whether the
Government of Israel asserts sovereignty or not, 1, The Jewish People have
control over Judea and Samaria subject only to the OSLO agreement
— an agreement that neither Israel nor its principal need
continue to observe because of its material breach by the Arabs, and
2. The Government of Israel has asserted sovereignty over
East Jerusalem that the so called Palestinians claim. That means that the
Israel territorial boundaries would have to be redrawn
to accommodate the territory the Palestinian
Authority demands.
Russia's Role
Since 1950 the
Soviet Union has sought domination of the Middle East as a stepping stone to
hegemony over Western Europe according to the late Eugene Rostow, Dean of the
Yale Law School and Professor of International
Law in Palestinian Self-Determination: Possible Futures
for the Unallocated Territories of the Palestine Mandate (1980)
"For nearly
thirty turbulent years, the Soviet Union has sought control of this geo
political nerve center in order to bring Western Europe into its sphere. Even
if Soviet ambitions were confined to Europe, Soviet hegemony in the Middle East
would profoundly change the world balance of power. But Soviet control of the
Middle East would lead inevitably to further accretions of Soviet power if
China, Japan, and many smaller and more vulnerable countries should conclude
that the United States had lost the will or the capacity to defend its vital
interests, . . ."
61
"The
exploitation of Arab hostility to the Balfour Declaration, the Palestine
Mandate, and the existence of Israel has been a major weapon in the Soviet
campaign to dominate the Middle East." * * * ". . .the Soviet Union
invited Arafat to Moscow, supported his appearance before the United Nations in
November, 1974, and increased its pressure for General Assembly resolutions
supporting claims of self-determination for the
Palestinian Arabs and denouncing Zionism as "racism'"
Even if
philosopher Allen Buchanan's last resort theory instead of International Law
were to be applied, the only evidence of the peoplehood of the
so called Palestinian People and their claim to a desire for
self-determination can be found in the preamble of the 1964 Charter of the
PLO drafted in Moscow and corroborated only by the first 422
members of the Palestinian National Council, each hand picked by the
KGB. In WWI the Palestinian Arabs were offered self
government if they fought on the side of the Allies -- they didn't; some
fought for the Ottomans. In 1947 Count Folke Bernadotte found
the Palestinian Arabs were not interested in nationalism and
never had been. And in 1973 Zahir Muhsein, a member of the
Executive Board of the PLO admitted to a Dutch newspaper that
there was no Palestinian "People" -- it was only a political ploy and
that once the Jews were annihilated, the PLO would merge with
Jordan. The circumstances surrounding the drafting of the
1964 PLO Charter and its corroboration we have from the personal
knowledge of Major General Ion Pacepa, the
highest ranking
defector from the Soviet bloc during the Cold War.
Even if they were
a real People, the Palestinians in the Jewish People's
State are not threatened with genocide
nor cultural extinction. Each
year the Palestinian population grows larger.
Arabic is a second
official language of Israel. The Arabs control their own schools
and use them to incite against the Jews.
62
If the
no priority-for-Sovereign State territorial-integrity theory were to be
applied, what of the plight of the minority in the territory to be
removed, and the plight of the majority of those
remaining which
those theorists say must be fair? The loss of the Judea, Samaria and
East Jerusalem would mean the loss to the Jewish People 1.
of defensible borders, 2, their cultural heritage
including the
Western Wall of the Temple Mount, and 3. the civil rights of those in
the territory removed as the Arabs are clear that all Jews would be
expelled from the territory removed from the Jewish People's
state.
Further facts and
law on the above are available in Benzimra, The Jewish People's Rights to Israel under
International Law, published by
Amazon on Kindle in 2011 and Part I of the present paper.
Vietnam Redux
Of the two biggest
threats to Israel, one is a nuclear Iran. The other is the split in the unity
of the Jewish People in Israel and the diaspora over Judea and Samaria.
It was Brezhnev
who pushed Arafat to drop the slogan that the PLO was going to
annihilate the Jews or push them into the sea,
and instead claim
they were liberating the Palestinian People; to pretend to
renounce violence and pretend to seek peace. The
Vietnamese General
Giap also counseled him to do this to split the unity of the
American people — it had worked so well for North Vietnam.
(http://www.discoverthenetworks.org/viewSubCategory.asp?id=46)
When Netanyahu
approves the Levy Report and asserts Jewish sovereignty over
Judea and Samaria, the question of statehood for the so
63
called Palestinian People becomes an internal matter of the sovereign state of
Israel as well as the Jewish People's state, Eretz Yisrael, and the
UN requires that other states not disrupt that unity.
" Every State
shall refrain from any action aimed at the partial or total disruption
of the national unity and territorial integrity of any other State or
country." Declaration On Principles Of Operation
Among States In Accordance With The Charter Of The United Nations (1970)
END NOTES
1. Levy Report,
English Translation,
http://elderofziyon.blogspot.com/2012/07/english translation
of legal arguments.html?goback=%2Egde_3188536_member_1 34228375
2. Fourth Geneva
Convention, Article 49, http://www.refworld.org/cgi
bin/texis/vtx/rwmain?docid=3ae6b36d2
3. San Remo
Resolution,
http://www.cfr.org/israel/san Remo resolution/p15248
4. Balfour
Declaration,
http://unispal.un.org/UNISPAL.NSF/0/E210CA73E38 D9E1D052565FA00705C61
5. British Mandate
for Palestine, (1922)
See Hertz,
"Mandate for Palestine," Appendix A,
http://www.mythsandfacts.org/conflict/mandate_for_p alestine/mandate_for_palestine.htm
or
http://www.think
israel.org/hertz.palestinemandate
64
html.html. Both
versions include maps and additional material.
6. Sovereignty
Over the Old City of Jerusalem; A Study of the Historical, Religious, Political and Legal Aspects of the Question of the Old City, submitted by Dr. Jacques Gauthier as a thesis to the University of Geneva in 2007.
7. Howard Grief, Legal
Foundations and Boundaries of Israel under International Law
8. Salomon
Benzimra, The Jewish Peoples' Rights to the Land of Israel
9. Wallace Brand,
op ed, Part 1:
http://www.irsraelnationalnews.com/Articles/Article. aspx/11408.
Part 2:
http://www.israelnationalnews.com/Articles/Article.a spx/11412.
10. Cynthia
Wallace, "Foundations of the International Legal Rights of the Jewish People and the State of Israel and the Implications for the Proposed New Palestinian State."
11.
http://elderofziyon.blogspot.com/2012/07/english translation
of legal arguments.html?goback=%2Egde_3188536_member_1 34228375
12. Israel's
Legitimacy in Law and History, edited by Edward M. Siegel, Esq., Center
for Near East Policy Research, New York (1993). pp 113.
13."Israel's
Legal Right to Samaria,"
http://shomroncentral.blogspot.com/p/5
legal rights to samaria.html
65
14. Douglas Feith,
"A Mandate for Palestine,"
http://www.zionismontheweb.org/middle_east/Israel
/Israel_and_palestine_mandate_for_israel.htm. Elliott A. Green,
"International Law regarding the State of Israel and Jerusalem,"
Think Israel.org, http://www.think israel.org/green.sanremo.html
15a. Israel and
Palestine: Assault on the Law of Nations (1981) Johns Hopkins University Press, Baltimore and London
http://www.aijac.org.au/news/article/international law
and the arab israel conflict#2
15b. Theodor Meron
legal opinion:
http://www.soas.ac.uk/lawpeacemideast/resources/fil e48485.pdf
16. Talia Sasson
report: http://rt.com/news/sasson israel settlement money 089/
17.
http://elderofziyon.blogspot.com/2012/07/english translation
of legal arguments.html?goback=%2Egde_3188536_member_1 34228375
18.
http://www.un.org/en/documents/udhr/
19. Alan Baker,
"The Settlements Issue: Distorting the Geneva Convention and the Oslo Accords," http://jcpa.org/article/the settlements issue distorting the geneva convention and the oslo accords/
20. Levy Report,
English Translation, supra. Note #1.
66
21. UNGA
Resolution 181, 1947 Partition Recommendation
http://www.yale.edu/lawweb/avalon/un/res181.htm
22.http://www.un.org/en/documents/charter/chapter 12.shtml
23.Howard Grief "Legal
Rights and Title of Sovereignty of the Jewish People to the Land of Israel and
Palestine under International Law"
http://www.acpr.org.il/ENGLISH
NATIV/02
issue/grief 2.htm [bracketed material added]
issue/grief 2.htm [bracketed material added]
24. Lee, The
Mandate for Mesopotamia and the Principle of Trusteeship in English Law, (1921) League of Nations Union, Forgotten Books Critical Reprint Series (2012).
See also the International Court of Justice decision in the Namibia case, LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN NAMIBIA (SOUTH WEST AFRICA) NOTWITHSTANDING SECURITY COUNCIL RESOLUTION 276 (1970) Advisory Opinion of 21 June 1971
See also the International Court of Justice decision in the Namibia case, LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN NAMIBIA (SOUTH WEST AFRICA) NOTWITHSTANDING SECURITY COUNCIL RESOLUTION 276 (1970) Advisory Opinion of 21 June 1971
25.http://www.nytimes.com/learning/general/onthisd ay/big/1111.html#article
26. http://www.mideastweb.org/zionistborders.htm
27. Treaty of
Sevres Article 95,
http://www.hri.org/docs/sevres/part3.html
28 Memorandum from
Lord Balfour to Lord Curzon, August 11, 1919, Document number 242 from: EL
Woodward and Rohan Butler, Documents on British Foreign Policy, 1919 1939.
(London: HM Stationery Office, 1952), 340 348.
29. Kirkbride, A
Crackle of Thorns, Chapter 3
67
30. Friedman, Palestine:
A Twice Promised Land, Vol. 1: The British, the Arabs, and Zionism, 1915 1920. (2000)
31. Sacher, The
Establishment of a Jewish State, London (1952), Hyperion Reprint edition,
1976
32. Benzimra, The
Jewish Peoples Rights to the Land of Israel., note #8
33. See:
"Acts of Aggression Provoked, Committed, and Prepared by Arab States in Concert with the Palestine Arab Higher Committee against the Jewish Population of
Palestine in an Attempt to Alter by Force the Settlement Envisaged by the General Assembly's Resolution on the Future Government of Palestine," memorandum submitted by the Jewish Agency for Palestine to the United Nations Palestine Commission, Feb. 2, 1948;
Palestine in an Attempt to Alter by Force the Settlement Envisaged by the General Assembly's Resolution on the Future Government of Palestine," memorandum submitted by the Jewish Agency for Palestine to the United Nations Palestine Commission, Feb. 2, 1948;
Moshe Shertok,
"Letter from the Jewish Agency for Palestine Dated 29
March 1948, Addressed to the Secretary General
Transmitting a Memorandum on Acts of Arab Aggression," UNSC, S/710, Apr.
5, 1948.
http://domino.un.org/pdfs/AAC21JA12.pdf
34. UNGA Res 181,
Recommending Partition, note #21, supra.
35. Wall St.
Journal,
http://www.democraticunderground.com/discuss/du board.php?az=view_all&address=124x352032
36.Myth and Fact
http://www.jewishvirtuallibrary.org/jsource/myths3/ MFrefugees.html
37.
http://jhvonline.com/jerusalem our redeemable
right jews hold legal sovereignty over israels p10173 96.htm
right jews hold legal sovereignty over israels p10173 96.htm
68
38. The Iron
Cage: The Story of the Palestinian Struggle for Statehood by Rashid
Khalidi (Oct 15, 2006) [bracketed material added]
39.
"Assessing the Role Palestinians Have Played in the Failed Bid for
Statehood," Steven Erlanger, NY Times, Oct. 7, 2006.
40. Riebenfeld, "The
Legitimacy of Jewish Settlement in Judea, Samaria and Gaza," in Edward M. Siegel, ed.,41.
41. Tulin, Book
of Documents submitted to the United Nations General Assembly Relating to
the National Home for the Jewish People, The Jewish Agency, New York, 1947,
Tr. 1/30/46 at p. 112.
42. Leonard Stein, The
Balfour Declaration. Pp. 562, 63. 649.
43.
Public Hearings Before the Anglo American Committee of Inquiry, Jerusalem (Palestine) March, 1946, Albert Hourani, The Case Against a Jewish State in Palestine. Statement to the Anglo American Committee of
Enquiry of 1946 Transcript at P. 80
44.
http://www.aijac.org.au/news/article/international law
and the arab Israel conflict
69
70
.
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