ISRAEL’S LEGAL FOUNDATION, BORDERS AND RIGHTS
TO THE LAND OF ISRAEL UNDER INTERNATIONAL LAW
Good evening, Ladies and Gentlemen,
It is my honour to speak to you tonight about Israel’s Legal Foundation, Borders and Rights to the Land of Israel under international law, the subject of my book published in December 2008 by Mazo Publishers, Jerusalem.
I wrote this book because I did not find any that truly presented Israel’s solid legal case to the whole territory of Palestine or the Land of Israel based on all the important documents of international law that came into existence during and after World War I. This became evident to me when all the territories liberated by the Israel Defense Forces in the Six-Day War of June 1967 were inaccurately described as “occupied territories”, both in Israel and abroad, despite the fact that those territories were either integral parts of the internationally recognized Jewish National Home, as in the case of eastern Jerusalem, Judea, Samaria and Gaza, or were illegally removed from it, as in the case of the Golan Heights, or finally, not included in the Jewish National Home, as the Sinai Peninsula should have been. Had the Jewish legal case been properly and systematically adduced by Israeli or Jewish jurists, prior to and after the Six-Day War, the territories liberated in that war would have been correctly characterized as the redeemed national patrimony of the Jewish People and incorporated forthwith into the State of Israel, as was done only for eastern Jerusalem and much later for the Golan Heights. The very use of the term “occupied territories” by many in Israel itself conveyed the impression that the lands liberated really belonged to Arabs and not to Jews. At the critical moment in June 1967, the State of Israel did not assert its true rights to the liberated territories and by not incorporating them into the State, led foreign nations, especially the United States and those in Europe, to believe that Israel had to return these lands to their presumed Arab owners. This decision not to annex was a monumental error and, moreover, constituted a gross violation of existing Israeli constitutional law which required the application of Israeli law, rather than the laws of war, to the liberated territories of the Jewish National Home and Land of Israel. It is worth noting that had Israel acted correctly in 1967, based on its legal rights to the liberated territories, it could have avoided the false accusation that Israeli settlements there are illegal or illegitimate, and there would be no possibility of establishing a twenty-second Arab state in the heartland of the Jewish National Home.
To understand Israel’s legal foundation, borders and rights to the entire land of Palestine, one must journey back to the critical period from 1915 to 1925 when the modern Middle East was shaped. There is only one departure point and whoever thinks it began in 1948 or 1967 is woefully ignorant of the situation or badly misinformed. That departure point began with the eruption of the First World War, the Great War as it was then called, that led to the demise of the Ottoman Turkish Empire that had ruled the lands of the Middle East for the four preceding centuries. Few remember today that until World War I, no independent Arab state had existed for many centuries. Nor of course was there any Jewish State, although that was already a hotly-discussed question ever since the first Zionist Congress was convened in Basle, Switzerland in 1897 under the leadership of Theodor Herzl.
In anticipation of a Turkish defeat in World War I – since the Turks had allied themselves with Germany and the Central European Powers – the countries of Britain, France and Russia opposing them, later joined by Italy, known collectively as the Entente or Principal Allied Powers, conspired in a secret treaty to divide up the still-extant Ottoman Empire amongst themselves. Thus was born the Sykes-Picot Treaty, named after the Chief British negotiator Sir Mark Sykes and his French counterpart, Georges Picot. Under the terms of that treaty, the Arabs were promised a state or states of their own, in accordance with the McMahon Pledge, given to the Sherif of Mecca, Hussein ibn-Ali, in a letter dated October 24, 1915 to entice him to join the Allied war effort against the Turks. The McMahon Pledge, conveyed to Hussein by Henry McMahon, the British High Commissioner to Egypt, did not include Palestine. While the Sykes-Picot Treaty sought to satisfy Arab national aspirations, it completely ignored those of the Jewish People and Zionism. A small truncated area of central Palestine, without Upper Galilee, the Negev and Transjordan, called the Brown area, was to be placed under an international condominium, jointly ruled by Britain, France and Russia, in consultation with Italy and Japan and the representatives of the Sherif of Mecca. A year later, with the formation of a new British Government led by Prime Minister David Lloyd George,Q Britain sought to disentangle itself from the shackles of the secret Sykes-Picot Treaty and rule Palestine alone. For this purpose, it wooed the Zionist Organization and issued the Balfour Declaration on November 2, 1917, viewing with favour the establishment in Palestine of a national home for the Jewish People and promising to “use their best endeavours to facilitate the achievement of this object”. Under the new British policy, Palestine was to be reserved exclusively for Jews under British auspices and not for Arabs. Lloyd George made this very clear in instructions he conveyed to Mark Sykes, on his way to join the British army in Egypt to take up his new post as Chief Political Officer. He told Sykes – and I quote – “not to enter into any political pledge to the Arabs, and particularly none in regard to Palestine”. (This quotation is found on p.426 of my book.) According to the Cabinet note of the meeting which took place on April 3, 1917, seven months before the Balfour Declaration was issued, Sykes responded to Lloyd George – and I quote again – “The Arabs probably realized that there was no prospect of their being allowed any control over Palestine”.
Inasmuch as the Balfour Declaration was transformed into the San Remo Resolution on April 25, 1920 when it was combined with Article 22 of the Covenant of the League of Nations found in the Treaty of Versailles, and inasmuch as the San Remo Resolution is the pre-eminent foundation document of the State of Israel, it is important to elucidate the meaning of several terms and phrases in the Balfour Declaration which were seized upon by various opponents of Zionism or by others who wished to confuse or conceal its true meaning.
The first term in contention is the word “home”. What did “home”, as it appears in both the Balfour Declaration and San Remo Resolution, really mean? This term originated with the Zionist Movement. It was first used in 1882 by a group of Bilu pioneers in Constantinople, who asked the Ottoman authorities for a home in the Land of Zion, where Jews would have complete political autonomy, except for external affairs, quite a daring proposal at the time. This term was then inserted into the Zionist Program adopted at the First Zionist Congress in Basle, Switzerland in 1897. The Program stated: “The aim of Zionism is to create for the Jewish People a home in Palestine secured by public law.” Those who composed the Zionist Program were acutely aware of Turkish sensibilities not to see their shrinking empire shrink even further by the loss of another one of their lands. It was therefore thought prudent and more diplomatic to use the term “home”, instead of the term “state”, so as not to openly offend the Turks, especially in light of the fact that Herzl intended to seek from the Turkish Sultan a charter for renewed Jewish settlement in Palestine. That is why delegates to the First Zionist Congress chose the term “home”. However, what Herzl meant by a home was revealed in his diary where he wrote, and I quote: ‘In Basle, I created the Jewish State. Were I to say this aloud, I would be greeted by universal laughter. But perhaps five years hence, certainly fifty years hence, everybody will perceive it” (p. 76 of my book).
Twenty years after the Zionist Program was first adopted, the term “home” was again used to express the aim of Zionism – this time in the Balfour Declaration. A few words should be devoted to a discussion of the origins of that pro-Zionist Declaration. In mid-June 1917, Chaim Weizmann met with Foreign Secretary Arthur James Balfour and suggested to him “that the time had come for the British Government to give [the Zionists] a definite declaration of support and encouragement” (Weizmann, Trial and Error, Harper & Brothers, New York , p. 203). Weizmann felt free to make this request because over the previous three years, eminent members of the British Government had made known to him their staunch support for the Zionist cause. The British were thus highly pre-disposed to accommodate Weizmann’s overture. In response, Balfour told Weizmann to submit a draft declaration to him, “which he would try and put before the War Cabinet” (ibid.).
The person Weizmann placed in charge of drafting the declaration that Balfour asked for, was Nahum Sokolow, the most senior member of the Zionist Organization based in London, as well as a ranking member of the Zionist Executive who had attended the 1897 Zionist Congress convened by Herzl. Sokolow was assisted in his task by a committee of advisers.
Two of those prominent advisers were Attorney Harry Sacher and British journalist Herbert Sidebotham, both of whom strongly urged Sokolow to call for the reconstitution of a Jewish State in Palestine in his draft declaration, but Sokolow declined to do so on the ground that this would be asking for “too much”. He thought that if the Zionist draft was actually formulated so overtly, it may have resulted in the Zionists getting nothing at all (Stein, The Balfour Declaration, The Magnes Press, Jerusalem , p. 466). He thus preferred a less forthright declaration of sympathy which he mistakenly believed would enable the Zionists afterwards to “gradually get more and more” (Stein, ibid.). Accordingly, Sokolow decided not to deviate from the wording of the original Zionist Program of 1897, except to propose that the word “national” be placed in front of the word “home”, which did in fact give added force to the meaning of that term, thereafter called the “Jewish National Home”.
What Sokolow did not appreciate was the fact that the circumstances existing in 1917 were vastly different from those that had prevailed in Herzl’s day, since Turkey, having allied itself with the Central Powers, stood to lose its four-century- long control over the territory of Palestine in favour of the British. What he also did not take into account was that the British were very anxious to obtain Zionist support to justify their imminent invasion and conquest of Palestine and were therefore only too willing to give their support to the Zionist aim for a Jewish State. Such support the British shrewdly calculated would then allow them to disassociate themselves from the now burdensome Sykes-Picot Treaty and become the sole protector of Palestine to the exclusion of the French, in accordance with Zionist wishes. For these reasons alone, the British would more than likely have acceded to an explicit Zionist formulation in the proposed draft declaration, that the aim of Zionism was no less than the establishment of a Jewish State, as originally conceived and visualized by Herzl. In addition, the British were anxious to secure for the Allied cause “at the darkest hour of the War”° what they perceived to be the invaluable support of the large and influential Jewish communities in the United States and Russia in the prosecution of the war against the Central Powers. Finally, a pro-Zionist declaration would also foil or preempt a feared parallel German pronouncement that was then being contemplated for the identical purpose.
Under the prevailing circumstances it was quite ironic that while Sokolow was needlessly fearful of asking for too much from the British, i.e., a Jewish State, that was exactly what the Imperial War Cabinet had in mind when it adopted the Balfour Declaration and what it understood “a national home for the Jewish People” indeed meant. For them, at this early stage in British-Zionist relations, before any disaffections or second thoughts had set in, the two terms were completely synonymous in British eyes, both in Government circles and in the press. This is proven by the very words spoken by Balfour at the meeting of the War Cabinet on October 31, 1917, which approved the Balfour Declaration. He stated that the Jews would be given full facilities “to build up a real center of national culture and focus of national life. It did not necessarily involve the early establishment of an independent Jewish State which was a matter of gradual development in accordance with the ordinary laws of political evolution.” (This quotation is found on p. 78 of my book.) Balfour’s explanation that an independent sovereign Jewish State was the eventual goal of his pro-Zionist pronouncement was also confirmed by what Balfour himself told Colonel Richard Meinertzhagen, who recorded in his diary the conversations he had had with the Foreign Secretary.
Balfour’s unambiguous view that Palestine would eventually become an independent Jewish State was reiterated by Prime Minister Lloyd George who, in his definitive work on the various Peace Treaties that ended World War I, wrote the following passage summing up the meaning of the Jewish National Home as that term appears in the Balfour Declaration and related documents: “…it was contemplated that when the time arrived for according representative institutions to Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a national home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth” (The Truth about the Peace Treaties, vol. ii, pp. 1138-9).
Further proof, if any is needed, that the British Government, in favouring a Jewish National Home, actually meant a Jewish State derives from what various Government ministers and officials constantly told Weizmann prior to the issuance of the Balfour Declaration, namely, that “if Great Britain gained control of Palestine, she could be relied upon to favour the building up of a Jewish Commonwealth. They had hinted… that they were authorized to give this assurance…” (Stein, op. cit., pp. 462, 511, 551 and especially p. 463). Moreover, Lord Lionel Walter Rothschild, to whom the Balfour Declaration was addressed, had twice made it known, prior to its issuance, that he favoured a Jewish State in Palestine under the British Crown or under the protection of one of the Allied Powers (Stein, pp. 372, 523). Finally, one can cite the candid remarks made by Eric Forbes Adam, who served as Balfour’s chief negotiator with the Zionists in regard to formulating the early drafts of the Mandate for Palestine. He stated on December 30, 1919 that the British Government has accepted “the natural implications which Zionists give to the declaration of a national home, i.e., an attempt to make Palestine a State… and… to turn the State into a Jewish State.” (Stein, p. 554).
By refraining from asking directly for a Jewish State in the Zionist draft submitted to Balfour on July 18,1917, Sokolow made a calamitous strategic error, for just five years later, after Colonial Secretary Winston Churchill had taken charge of Palestine’s affairs that previously lay in the hands of Balfour and Lord Curzon successively, he issued a White Paper on June 3, 1922 that defined the term “national home” in an entirely different way from that of Balfour’s original intention. This White Paper equated the Jewish National Home in Palestine with a spiritual or cultural center rather than a Jewish State, and for all practical purposes blocked the emergence of the State under British auspices (p. 450ff of my book). The view that no Jewish State was ever implied by the phrase “national home” was then reiterated most emphatically by the minister who replaced Churchill at the Colonial Office, the Duke of Devonshire. In his speech to the House of Lords on June 27, 1923, he said: “Again and again it has been stated that the intention from the beginning has been to make a National Home for the Jews, but every provision has been made to prevent it from becoming in any sense a Jewish State or a State under Jewish domination” (Stein, p. 556). Thus we see, that in the short period that had elapsed since the Balfour Declaration was issued, both Churchill and Devonshire overturned and betrayed the basic purpose and meaning of the Declaration, to the severe detriment of Zionism. This British perfidy may have been prevented or at least significantly forestalled if Sokolow and Weizmann had harkened to the wise advice proferred by Harry Sacker and Herbert Sidebotham to include the words “Jewish State” in the draft formula originally submitted to Balfour. The Zionist leaders showed great naiveté in assuming that what the British had so readily agreed to in 1917 would never be rescinded in the succeeding years that saw new ministers, who had played no part in the formulation of the Balfour Declaration nor had any personal recollection of its true meaning or scope, come and go. This was truly a case of misplaced trust by the leaders of the Zionist Movement in England in the goodwill of perfidious Albion, for which the Jewish People subsequently paid heavily in the years of the Holocaust.
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Another contentious expression in the Balfour Declaration that gave rise to misinterpretation was the phrase “in Palestine”. Those who sought to minimize the importance of the Declaration said it meant that the Jewish National Home envisaged in the Declaration would be established not in the whole country, but only in a part of it. Ironically enough, the chief proponent of this false and contrived interpretation was none other than Ahad Ha’Am, the Zionist mentor of Chaim Weizmann and, before then, the bitter and jealous opponent of Theodor Herzl. The same argument was made by Herbert Samuel, the High Commissioner of Palestine, when he and not Winston Churchill wrote the Churchill White Paper of June 3, 1922. Samuel undoubtedly learned this interpretation from Ahad Ha’Am when Samuel worked closely with the Zionist Organization in London in 1919.
This interpretation ran completely counter to the global political and legal settlement that was made at the San Remo Peace Conference in April 1920. Syria, Mesopotamia and Arabia were set aside for Arab independence by the Allied Powers, while Palestine, on the other hand, was set aside for Jewish independence, as can be confirmed by reading the minutes of the two sessions of the San Remo Peace Conference that took place on April 24th and April 25th, 1920, and were first published in 1958. That all of Palestine was designated as the Jewish National Home and was definitely excluded from Arab self-determination is also confirmed in an Arab-Jewish Agreement concluded on January 3, 1919 between Emir Feisal on behalf of the Arab Kingdom of newly-independent Hedjaz in Western Arabia and Dr. Chaim Weizmann, acting for the the Zionist Organization. At the Paris Peace Conference that took place in 1919, Emir Feisal listed the exact areas to be set aside for Arab independence, but deliberately excluded Palestine from his list – in conformity with the agreement he had just reached with Weizmann. Other evidence exists to show that all of Palestine was designated for a Jewish State and not an Arab State. I will cite two more examples. First, at a meeting between Supreme Court Justice Louis Dembitz Brandeis and Foreign Secretary Balfour in Paris on June 26, 1919, Balfour gave his assent to the following statement made by Justice Brandeis: “Palestine should be the Jewish homeland and not merely that there be a Jewish homeland in Palestine” (This quotation and Balfour’s assent to it can by found on p. 101 of my book.). Second, during a dinner conversation between Prime Minister Lloyd George and President Wilson’s closest adviser, Colonel Edward Mandell House, on November 20, 1917, just weeks after the issuance of the Balfour Declaration, Lloyd George informed him that “Palestine [is] to be given to the Zionists under British or if desired by [the U.S.], under American control” (p. 99 of my book). I would also like to add that when Palestine’s northern boundary was being discussed between Britain and France throughout 1920, the assumption made by both countries was that all of Palestine would coincide with the Jewish National Home. There was thus no difference between Palestine and the Jewish National Home.
One final comment on this point. The phrase “in Palestine” as used in the Balfour Declaration originated from the same Zionist source as the word “home”, namely in the Basle Zionist Program of 1897. This phrase, “in Palestine”, is used twice in the Balfour Declaration once in the operative part, and then again in the first proviso of the Declaration, which states “that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine.” The use of this phrase in the just-quoted proviso could only mean Palestine as a whole, which is exactly what it also meant in the operative part of the Declaration. The words “in Palestine” appear 15 times in the preamble and provisions of the Mandate that prove beyond any doubt that these words, in the context in which they were used in both the Balfour Declaration and the Mandate for Palestine, referred to the whole country and not merely to a part of it.
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Further controversy arose over the exact meaning of the phrase “the civil and religious rights of existing non-Jewish communities in Palestine”. Civil and religious rights excluded collective political rights to Palestine, which were intended or reserved only for the Jewish People. Civil rights certainly include individual political rights with regard to the right to vote and the right to take part in elections, as is the common practice in all democracies. But political control over Palestine was not included in the term “civil rights”, as Lloyd George made crystal clear in the quotation cited earlier. As used in the Balfour Declaration, the civil and religious rights of existing non-Jewish communities in Palestine referred to the religious communities then existing in the country and not to the Arab nation per se, as is commonly believed and often mistakenly asserted. Those religious communities comprised all the Christian, Moslem and Druze communities in Palestine, the civil and religious rights of which would be safeguarded in a future independent Jewish State. This proviso in the Declaration is actually further evidence that a Jewish State was the intended aim of the Balfour Declaration, otherwise there would have been no purpose to put that proviso in the Declaration. It should also be noted that the term “communities” was used in the plural and not in the singular, and therefore did not refer to the Arab nation as such or to the local inhabitants, but simply to religious communities in Palestine. That indeed was the interpretation placed on this term by Britain and France in the recorded minutes of the San Remo Peace Conference of April 24, 1920 as well as in the American and Italian understanding of that term.
One more point about the Balfour Declaration. It referred to the country of Palestine, as did the Basle Zionist Program, that did not then officially exist as a province or as a separate country in the Ottoman Administrative System. However, everyone knew that Palestine was the unofficial name for the country known in Jewish sources as Eretz-Israel. Another common name used for it was the Holy Land or the Land of Zion. What is important to note here is that Palestine was synonymous with the future Jewish National Home and referred to the Jewish People and not to Arabs, who preferred to consider this territory a part of Southern Syria. On this important point I quote the exact words of former Prime Minister Golda Meir from an article she wrote for the New York Times, published on January 14, 1976 (found on p. 512 of my book):
“When in 1921 I came to Palestine… we, the Jewish pioneers were the avowed Palestinians. So we were named in the world. Arab nationalists, on the other hand, stridently rejected the designation. Arab spokesmen continued to insist that the land we cherished for centuries was, like Lebanon, merely a fragment of Syria.”
Any doubts about what the Balfour Declaration truly meant were laid to rest at the 1920 San Remo Peace Conference, convened by the Principal Allied Powers – Britain, France, Italy and Japan – to dispose of the Ottoman territories in the Middle East. The first important decision made at the Conference was to adopt the Balfour Declaration as the basis for administering Palestine under the newly-created Mandates System, in accordance with article 22 of the League of Nations Covenant. That decision was made by the Supreme Council of the Principal Allied Powers at the first session of the Conference on April 24, 1920 devoted entirely to Palestine. On the following day, the San Remo Resolution was adopted by the representatives of the four Principal Allied Powers (the U.S. was an interested observer at the Conference). The Resolution made the Mandatory Power responsible for putting into effect the Balfour Declaration. Britain was then officially chosen as the Mandatory Power, as recorded in the Resolution itself.
During the heated discussions that took place between the French and British representatives at the sessions of the Supreme Council, France strongly opposed the insertion of the Balfour Declaration into the pending peace treaty with Turkey on the ground that doing so meant the establishment of a Jewish State. France withdrew its opposition only after Britain gave it an assurance that none of the rights hitherto enjoyed by the non-Jewish communities in Palestine, especially those of the French Roman Catholic community, would be surrendered. The British representative, Foreign Secretary Lord Curzon, an avowed anti-Zionist, found himself in the strange and uncomfortable position of having to defend the Balfour Declaration against the French attack on it, though he had earlier (in1917) opposed it. He told the French “that Palestine was in the future to be the National Home of the Jews throughout the world”. In the French minutes of the Conference, he is reported to have stated that a future state of Palestine was promised to the Jews in the Balfour Declaration. It should be clear, therefore, that the only reason Palestine was originally carved out of the Ottoman Empire was to become an eventual independent Jewish State. This would redress, as Balfour said, the ancient wrong committed by the Roman destruction of the last Jewish State in Judea 19 centuries before.
The San Remo Resolution did not merely duplicate the exact words of the Balfour Declaration, but strengthened its language considerably. The British Government now actually had the obligation (contrary to the opinion expressed by Winston Churchill before the Peel Royal Commission on March 12, 1937) to put the Declaration into effect, rather than as before, simply “to use their best endeavours to facilitate the establishment in Palestine of a national home for the Jewish People”. This constituted what is known in legal parlance as an obligation of specific performance or an obligation of result, as opposed to an obligation of means. This far more tangible obligation was also evidenced by Article 2 of the Mandate for Palestine, which made the Mandatory Power responsible for securing the establishment of the Jewish National Home (see pp. 453-4 of my book).
Since Palestine was created to be a Jewish State under the San Remo Resolution, I have concluded from that fundamental fact that de jure sovereignty over the entire land of Palestine was devolved upon the Jewish People from the moment of the adoption of this resolution. However, the attributes of sovereignty, particularly the law-making function and the administration of the country, were exercised by Britain alone as the Mandatory Power until the establishment of the Jewish State, when the Jews had become a majority of the population in Palestine and could govern the country by themselves. During the Mandate period, the British were also supposed to fulfil the roles of Trustee and Tutor of the Jewish People.
The San Remo Resolution is of the utmost importance, because the State of Israel draws its legal existence from that document and not from the UN Partition Resolution of November 29, 1947, as is commonly believed, even in Israel. The San Remo Resolution, which gave binding legal force to the Balfour Declaration under international law, was no less than the Magna Carta of the Jewish People. It is the Charter of Jewish Freedom and Rights to all of Palestine and the Land of Israel, the charter which Theodor Herzl sought from the Turkish Sultan, but which eluded him when he died prematurely at age 44.
The San Remo Resolution also provided for the provisional independence of Syria and Mesopotamia, later called Iraq. These Arab states, just like Palestine, owe their legal existence to the San Remo Resolution. The Arabs have shown immense ingratitude and inconsistency in accepting the Allied commitment made in the San Remo Resolution to recognize their own eventual independence, while denouncing the same resolution for also providing for eventual Jewish independence.
The Allied decisions taken at the San Remo Peace Conference were then inserted into the Peace Treaty with Turkey – namely, the Treaty of Sèvres signed on August 10, 1920. Though this treaty was never ratified since Turkish nationalist leader Mustafa Kemal (Ataturk) replaced the Sultan’s Government, it still has legal value as an inter-allied agreement showing exactly what the intentions of the victorious Allied Powers were in disposing of the Ottoman lands. In actual fact, the provisions of this unratified treaty were subsequently carried out in Palestine, Syria, Iraq, the Arabian Peninsula and the rest of the Middle East. The Treaty of Lausanne which replaced that of Sèvres did not alter the basic political and legal settlement made in the Middle East, except in some particulars that did not affect Palestine as the Jewish National Home.
In regard to Palestine, the decision taken at San Remo to adopt the Balfour Declaration was inserted in the first three recitals of the Preamble of the Mandate for Palestine. This made the San Remo Resolution a binding act of international law since the Mandate was then approved by 52 nations in 1922 and separately by the United States in a 1924 treaty. With the inclusion of the San Remo Resolution in the Mandate Charter, the Mandate for Palestine became the final resting place for the Jewish legal title of sovereignty over the entire country.
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Few people know that the prototype for the Mandate Charter was based on a draft model drawn up by Professor Felix Frankfurter, then a Harvard Law School Professor who later became a renowned U.S. Supreme Court Justice. In composing his draft model, he worked in close co-ordination with the sitting Supreme Court Justice, Louis Brandeis. Frankfurter attended the Paris Peace Conference as a member of the American Zionist Delegation. Frankfurter’s draft mandate bearing the date of March 28, 1919 affirmed in its Preamble that the Signatory Powers, a reference to the Principal Allied Powers, recognized, and I quote: “The historic title of the Jewish People to Palestine and the right of the Jews to reconstitute Palestine as their National Home: and there to establish the foundations of a Jewish Commonwealth” (this quotation is found on p. 119 of my book).
The early drafts of the Mandate were formulated by representatives of the Zionist Organization and then presented to the British delegation in Paris. A draft agreed upon by the two sides was concluded on December 11, 1919. When Curzon replaced Balfour as the British Foreign Secretary and later oversaw the final drafts of the Mandate, from March 1920 onwards, he was horrified at the depth of the British commitment to the cause of Zionism and did his best to have his subordinates water down the Zionist character of the Mandate. He had the phrase “self-governing Commonwealth” that was included in the early drafts supervised by Balfour replaced by more general wording: “self-governing institutions”, as finally used in Article 2 of the Mandate. This change of language obscured what the Mandate actually intended: a Jewish State or Commonwealth – and the British subsequently applied it to the Arabs, rather than the Jews of Palestine, an inversion of what was originally intended. Curzon also had the reference to Eretz-Israel previously approved by Balfour taken out of the draft Mandate without so much as a peep out of the mouth of Weizmann. Finally, the British Cabinet approved the draft Mandate on November 29, 1920 and submitted it to the Council of the League of Nations on December 6, 1920 for international confirmation. That is when the United States, Italy and the Vatican unexpectedly intervened to delay the actual confirmation until July 24, 1922, a terrible delay that allowed for a crucial insertion to be made in the text of the Mandate, namely, a deleterious provision relating to Transjordan that was out-of-sync with the rest of the Mandate’s provisions, and caused immeasurable harm to the Jewish National Home.
Without going into great detail concerning the Mandate’s provisions, it is sufficient to note that the Mandate accorded national and political rights to Palestine only to the Jewish People and not to the Arab nation. The reason for that was very simple. The Arabs were granted self-determination in Syria-Lebanon, Iraq and in the Arabian Peninsula, while Palestine was designated as the Jewish National Home for Jewish self-determination. This is why there is no mention of Arab national and political rights in the Mandate for Palestine, except for the recognition of Arabic as an official language. Had it been otherwise, the Arabs would have been consulted in drawing up the terms of the Mandate. They knew about its composition and contents only after its submission to the League Council.
As the question of Israeli settlements in Judea and Samaria is one of the most contentious issues today, it is important to remember that the Mandate bestowed this very right on Jews throughout the entire land of Palestine. I draw your attention not only to Article 6 of the Mandate which specifies this right but also to in Article 11 which requires the Administration of Palestine to introduce a land system that promotes the close settlement and intensive cultivation of the land. The phrase “close settlement” as used in Article 11 takes you back to Article 6, where it says that the Administration of Palestine shall encourage close settlement by Jews on the land. Furthermore, under Article 15 of the Mandate, Jews could not be excluded from any part of Palestine on the sole ground of their religious belief, a provision that also applied to Transjordan, even when it was administered by Abdullah from 1921 to 1946 under the revised terms of the Mandate that removed all explicit references to the Jewish National Home. The right of individual Jews to live or settle in what was once called Eastern Palestine, now the Hashemite Kingdom of Jordan, has never been legally revoked or altered, and remains in full theoretical force today under international law, despite Jordan’s illegal exclusion of Jews from its territory;° in any case, the right of Jewish settlement remains valid today in all regions of Eretz-Israel under Israeli control, based on the rights inherited and devolved from the provisions of the Mandate as well as on the 1950 Law of Return that applies to Eretz-Israel, not just to the State of Israel.
The Mandate did not define the territorial boundaries of Palestine, as originally intended in the early drafts of the Mandate where a blank space was left open for that purpose. The decision was jointly taken by Britain and France to fix the limits of their respective mandated territories in a separate act. This was accomplished in a boundary convention concluded on December 23, 1920, followed by a Demarcation Agreement signed on February 3, 1922 that took effect on March 10, 1923.
It was originally agreed between Britain and France that the borders of Palestine would be based on the historical or biblical formula, “from Dan to Beersheba”, a phrase appearing several times in the Bible. This was interpreted up until 1920 by Prime Minister Lloyd George and other British officials to mean that Palestine would include all the lands or regions historically associated with the Jewish People, that is all territory which at one time or other was conquered, settled and governed by the Israelites in the First or Second Temple periods. The historical formula for determining Palestine’s boundaries was accepted at the San Remo Peace Conference and was also alluded to in the Preamble of the Mandate Charter, which referred to the historical connection of the Jewish People with Palestine. To show the extent of historical Palestine, the British relied on George Adam Smith’s “Atlas of the Historical Geography of the Holy Land”, published in 1915, in particular on Plate No. 34 that depicted the area of Palestine under David and Solomon. However, the French, who had originally agreed to the historical formula, later backtracked and absolutely refused to abide by its meaning relying instead on the defunct Sykes-Picot Treaty to draw the borders separating Syria-Lebanon from Palestine. Indeed, the French treated the mandated territory of Syria-Lebanon as if it were under French sovereignty and so prevented Palestine from having the borders that the historical formula should have given it. Palestine was thus deprived of what is today southern Lebanon, which is really an extension of Upper Galilee up to the bend of the Litani River. It was also deprived of most of the Bashan north of the Yarmuk River, which the Turks called Hauran. Bashan included the Golan which historically was an integral part of the Land of Israel, and not part of historical Syria. The loss of these historical areas also meant the loss of use of the waters of the Litani River and the streams on Mount Hermon, which at the time were considered vital for Palestine’s future economic development.
In the east, Palestine was also deprived of land historically connected to it. During the 1920 boundary negotiations with France, Britain told the French that Transjordan was also needed for the economic development of the Jewish National Home, but a year later when Winston Churchill became Colonial Secretary in charge of Palestine’s affairs, he made a fateful decision, later approved reluctantly by the Lloyd George Government to provisionally detach Transjordan from the Jewish National Home, because of the so-called “existing local conditions”, a decision that over the course of the following years and decades became a permanent detachment that was illegal under the very terms of the Mandate under which this decision was initially taken. The permanent detachment of Transjordan from Palestine that took place in 1946 was announced to the Assembly of the League of Nations who welcomed it, but it was never approved by the appropriate legal bodies of the League of Nations, which were the Permanent Mandates Commission and the League Council, rather than the League Assembly.
In the South and south-west, the Sinai Peninsula which geographically is an extension of the Negev and has a deep historical and religious connection to the Jewish People, should have been included in Palestine’s borders, based on the historical formula. As noted in the Bible, King Solomon’s kingdom extended to Nahal Mitzrayim which, according to Biblical scholars, covered either half of Sinai or all of it, depending on the exact location of this river, which is still uncertain today. In any case, what is certain is that Sinai was never historically and geographically a part of Egypt. When Moses crossed the Sea of Reeds, he thereby left Egypt on his 40-year trek to the Promised Land. Britain administered the Sinai Peninsula ever since 1906, when the British seized it from the Turkish Sultan in order to protect the Suez Canal from a possible Turkish invasion. Just prior to 1906, the area of central Sinai formed part of the Independent Sanjak of Jerusalem. For purposes of administrative convenience, Britain appended all of Sinai to Egypt which had never claimed it for itself until the 1940’s when it appeared that a Jewish State would be established and might possibly also claim it. In point of fact, Egypt inherited the entire Sinai as a legacy of British imperialism. Egyptian sovereignty over Sinai was recognized by Israel in the peace treaty with Egypt concluded on March 26, 1979. Prior to 1979, Egypt was never legally the sovereign of Sinai (contrary to what is explicit° in the Peace Treaty), but merely its administrator – a significant different status under international law. The cession of Sinai by Israel to Egypt was, in my opinion, illegal because Sinai was part of the historical land of Israel, and not a part of historical Egypt.
One last thought about Israel’s cession of the Sinai in the 1979 treaty with Egypt: had it not taken place, there would have been no disengagement or withdrawal from Gaza in 2005 where about 8,500 Jews were evicted from 21 flourishing Israeli communities with the loss of their homes, farms and livelihoods. And Sinai would not have become a terrorist’s and smuggler’s paradise, as it is today. Finally, there would have been no war in Gaza in December 2008-January 2009 to stop ceaseless rocket attacks from Hamas terrorists – for which Israel has just been wrongly condemned by the mendacious Goldstone Report for committing alleged war crimes and possible crimes against humanity, based largely on fabricated, dishonest Arab accounts.
It is interesting to remember that the Zionist proposal for Palestine’s future borders presented to the Paris Peace Conference in February 1919, which included in it all of the historical regions of Palestine, except for Sinai, elicited the praise of Emir Faisal, the leading spokesman for the Arab cause, as being “moderate and proper”. No cry of extremism here.
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I now turn to the recognition of Jewish legal rights to Palestine by the United States, a subject which has important ramifications for today. In 1922, both houses of the U.S. Congress passed a Joint Resolution, known as the Lodge-Fish Resolution, favouring the establishment in Palestine of a national home for the Jewish People, as laid down in the Balfour Declaration. The Joint Congressional Resolution was signed by President Warren G. Harding on September 21, 1922, thus giving it the force of law. Two years later, the United States signed a treaty with Great Britain, called the Anglo-American Convention respecting the Mandate for Palestine, in which the U.S. consented to the British administration of Palestine, pursuant to the Mandate, that was incorporated word for word into the Preamble of the Convention. In agreeing to the administration of Palestine based on the Mandate, the U.S. recognized thereby the national and political rights of the Jewish People to all of Palestine, not to one-third of it, one-fourth of it or one-eighth of it – but most emphatically to the whole of it, as the future independent Jewish State. This American recognition implicitly embraced the city of Jerusalem, which served as the administrative capital of Mandated Palestine where all the principal government departments had their offices, including that of the British High Commissioner for Palestine.° In return, the U.S. was accorded various rights for itself, in regard to commerce, property, education, philanthropy, religion, the judiciary and equality of treatment with other members of the League of Nations, despite the fact that the U.S. never joined the League. This treaty became part of the supreme law of the U.S. under Article VI of its constitution. The U.S. was now in effect a contracting party to the Mandate for Palestine and a guarantor of Jewish rights to Palestine.
It must also be stressed that neither the Joint Congressional Resolution nor the 1924 treaty recognized the national or political rights of any fictitiously-named nation, that never existed in history, the so-called “Palestinians”, particular their presumed right to create a new Arab state in Judea, Samaria and Gaza, as former President George W. Bush and current President Barack Hussein Obama have both advocated. The U.S. recognition of the right of Arabs to a state in the land designated as the Jewish National Home is illegal under U.S. law. It is true that the 1924 treaty expired with the expiry of the Mandate on May 15, 1948, but Jewish rights to Palestine under the Mandate never expired and have remained embedded in U.S. public law to this very day. Under the doctrine of estoppel, which applies in all democratic legal systems, the U.S. is estopped from denying or impugning Jewish legal rights to former Mandated Palestine and transferring those rights to Arabs in the Land of Israel. The U.S. can no more do that than Britain can revoke U.S. independence under the 1783 Treaty of Paris or revoke the creation of Canada under the U.K. statute known as the British North America Act of 1867.Q
It is a rule of international law as well as a legal norm that rights that emanate from a treaty or international agreement and are subsequently implemented to create a new state as in the case of Israel cannot thereafter be revoked by the party which granted those rights or by any party that recognized them in return for due consideration as happened in the case of the 1924 treaty. The matter has already been decided and it becomes a closed chapter. If it were otherwise, international chaos would result and there would be no legal order in the world. The principle that rights survive the expiry of a treaty has been codified in the 1969 Vienna Convention on the Law of Treaties, specifically in Article 70(1)(b).
The U.S. is evidently ignoring the earlier legal recognition it gave to Jewish legal rights to all of Palestine. We in Israel must remind the U.S. that it is still legally bound to honour our rights to the land in its entirety and that it cannot transfer them to other parties. Legally, it is estopped from insisting on a settlement freeze or protesting new Israeli building projects in Jerusalem, as demanded by President Obama. Since diplomacy does not appear to work in this particular matter the only way to enforce Jewish legal rights to the land is to resort to a legal action in a U.S. District Court to require the U.S. Government to honour these rights. In my opinion, there is a sound legal basis for this proposed action, which I first proposed in an article I wrote in 2003 and verbally even earlier. Steps are presently underway to take this action in the months and days ahead. It will be taken in the name of U.S. citizens who live in eastern Jerusalem, Judea and Samaria, whose right to live there has been recognized in U.S. public law, but is now openly challenged by the Obama Administration.
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A few concluding remarks about the UN Partition Plan of November 29, 1947 and the 2003 Road Map Peace Plan for a Permanent Two-State Solution. Neither of these plans has legally abrogated or rescinded Jewish legal rights to all of the Land of Israel, although that was their intended effect in the regions where an Arab state was to be established.
The UN Partition Plan embodied in General Assembly Resolution 181(II) was adopted at a time when the Mandate was still in force. This Plan awarded national and political rights to Arabs of the Land of Israel that were never contemplated in the Mandate. Article 5 of the Mandate prohibited the partitioning of the land and bringing it under the rule of a foreign government. The UN General Assembly Resolution violated Article 5 and was therefore illegal. In addition, the UN Partition Plan also violated Article 80 of the UN Charter itself, which preserved from alteration all Jewish rights to Palestine accorded under the Mandate. Separate and apart from that, Resolution 181 (II) became a dead letter when the neighbouring Arab states, in cooperation with and at the instigation of the local Arab leadership, invaded the fledgling Jewish State of Israel. Once the war erupted, Prime Minister David Ben-Gurion rightly no longer considered Israel bound by the Partition Plan and annexed areas of the Land of Israel beyond the UN-recommended borders, areas that had been re-captured by Jewish military forces, subsequently united as the Israel Defense Forces. This is how cities such as Beersheba, Ashkelon, Ashdod, Nahariya, Nazareth, Acco, Lod and Ramla became part of the State of Israel in 1948. Under the illegal UN Partition Plan they were to be part of an Arab state that never came into being.
Curiously enough, the real reason the United States Government and other countries still refuse to recognize Jerusalem as the capital city of Israel and treat Judea and Samaria as “occupied territories” is because they still base their policy on the invalid UN General Assembly Resolution of November 29, 1947 that never had the force of law.
The U.S., in cooperation with Russia, the European Union and the United Nations, is now seeking to put an end to what it declares is the Israeli occupation of eastern Jerusalem, Judea and Samaria, as set out in the Road Map Peace Plan. I wish to point out that this plan is neither a treaty nor a signed international agreement. Israel accepted this plan conditionally, subject to 14 reservations that are of critical importance, including inter alia an end to Arab terror, violence and incitement against Israel, the dissolution of Hamas, Islamic Jihad and other terrorist organizations, the recognition of Israel’s right to exist as a Jewish State, the rejection of any alleged “right of return” for so-called Arab refugees to the State of Israel and the absolute necessity that each step of the plan be fulfilled before moving on to the next one. Since none of the 14 Israeli reservations was accepted either by the Arab side or by the Quartet, with the exception that the U.S. has recognized the fact that Israel is a Jewish State, there was therefore no meeting of minds on essential points, so necessary for the formation of a valid and binding contract or agreement. Israel’s previous consent to the plan has thus been rendered null and void or simply meaningless. As a result, the Road Map Peace Plan remains only what it says it is, i.e., a plan to achieve peace that has no legal force and does not entail, as is often said, legal obligations on the part of Israel. The plan was supposed to be implemented by no later than 2005, and that year has passed without the execution of the plan. In sum, this non-binding plan is no longer in force and in no way does it diminish Jewish legal rights to all parts of the Land of Israel, including Jerusalem, Judea and Samaria. Over and above that, the plan which purports to freeze all Israeli settlement activity in the so-called “occupied territories” is a violation of Israeli law, U.S. law and international law and therefore has no validity, nor would it be valid even if there were a signed document. Israeli law does not sanction the cession of any areas of Eretz-Israel to anybody, but assumes that they shall be incorporated into the State of Israel.
To gain a fuller understanding of the depth and strength of Israel’s iron-clad legal case to the Land of Israel, I can only suggest that those here tonight read my book on the Legal Foundation and Borders of Israel under International Law, obtainable from Mazo Publishers, Jerusalem, and other outlets.
Attorney Howard Grief’s contact information:
Address: 13/2 David Goitein Street, Pisgat Ze’ev Mizrah, 97782 Jerusalem, Israel
Tel. (Fax): 972-2-656-0085
Q On December 5, 1916, the then Prime Minister Herbert Asquith, resigned under heavy criticism for mismanaging the War. He was replaced by David Lloyd George on December 7 of that year, who succeeded in forming a War Cabinet two days later.
° As worded by General Jan Christiaan Smuts in a cablegram sent to Prime Minister J. Ramsay MacDonald, in reaction to the anti-Zionist conclusions of the Passfield White Paper issued on October 21, 1930.
° As a result of the policy followed by the British Mandatory Power and subsequently by the Government of Jordan, the land of Jordan became completely judenrein, i.e., “cleansed or free of Jews”. Jordanian legislation, particularly the Jordanian Nationality Law of 1954, openly discriminated against Jews, denying them the right to acquire citizenship. Jordanian law also imposes a death penalty on anyone who has sold land to a Jew. Such laws brazenly violated the specific terms of the by-then-expired Mandate which banned exactly that kind of discrimination – based on race, religion or language. The enactment of these discriminatory laws also flouted international law that continued to apply to Jordan even after the British-administered Mandate expired as regards Eastern Palestine (Jordan) upon its gaining independence in March 1946. In terms of the Mandate, Jordan was created illegally on formerly-Mandated territory that was never intended to be permanently detached from the Jewish National Home. Moreover, Britain was never legally authorized to grant independence to the Arabian emir, Abdullah of Transjordan, neither under Articles 5 and 25 of the Mandate nor by the appropriate bodies of the League of Nations. The consequences of Jordan’s illegal creation are huge, but have never been properly addressed or admitted, even by Israel which concluded its own illegal peace treaty with Jordan on October 26, 1994. This treaty should be considered illegal because Israel thereby recognized and sanctioned the explicitly forbidden partition of Mandated Palestine by the British Government as well as renouncing Jewish sovereign territory in favour of a foreign state (See pp. 384-90 of my book).
° Article One of the Peace Treaty between Israel and Egypt states that upon its ratification, “Egypt will resume the exercise of its full sovereignty over the Sinai”. The word “resume” indicates that, prior to Israel’s conquest of Sinai in the Six-Day War of June 1967, Egypt had already enjoyed recognized sovereignty over all of Sinai – when this was actually not the case under international law. Sinai had never been under the sovereignty of modern-day Egypt until the concluding of the 1979 Peace Treaty.
° This recognition is an important fact to remember whenever the U.S. Administration protests the construction of new Israeli housing projects in the eastern part of Jerusalem, formerly under illegal Jordanian occupation for nineteen years.
Q This British Act that unified several Canadian provinces into the Dominion of Canada was renamed and superseded by the Canada Act (or Constitutional Act) of 1982 giving Canada the right to amend its own constitution without reference to the U.K. Parliament, thus removing the last vestige of Canadian constitutional dependence on Great Britain.