CLAIMS OF THE JEWISH AND ARAB PEOPLES UNDER INTERNATIONAL LAW TO THE
RIGHT OF POLITICAL SELF 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.
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 rule book, 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 2
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.
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? 3
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.
"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 4
that tried to fit recurring statements in UN 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.
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
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 5
by a Joint Resolution of 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 6
immigration (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.
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.
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 7
Resolution, that had died at birth, into 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
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 the League 8
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.
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
mandated areas were areas ruled from afar for many 9
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.
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 10
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.
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
— with helpful maps — 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 — Think‐Israel.org — but thereafter, with greater 11
documentation, in a two part op ed in a 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.
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 — 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 12
Julius Stone of Australia, the author of 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 13
their homes — after the area had been 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]
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 British14
Mandatory government for Palestine 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 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. 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 the15
whole world, 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 —
called Judea, Samaria and East Jerusalem since historic
times — "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. The 16
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.17
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]
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]
The Paris Peace Talks and the decision at San Remo18
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 — The British
Commonwealth, France, the US, Italy and Japan — 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 “political” or “national rights” 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. 19
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.
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]
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 20
Jewish National Home in 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]
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]21
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.
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 —
transfer of sovereignty to the mandatory power, a
formal giving up of rights, especially by a state — 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 was also a writing that incorporated
the decision of the Principal War Powers on those
competing claims to Palestine adopting the Balfour 22
Declaration in 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 60,000 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 Ooffice (“BFO”) countered this argument by
saying that even though Britain agreed with the
"antidemocratic" 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 — 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 23
population in 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 sixth of the
total population of 700,000 in Palestine, and whether 24
they are to form a majority, or even a 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."
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 Mespotamia 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. 25
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 Mespotamia [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].
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 26
the Jewish people, 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 27
appointed advisor to the Administration set up by the
trustee to 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 700,000 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 the 28
Jewish problem 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.
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.29
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:
"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.
Article 95, Treaty of Sevres — 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 30
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.
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.
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 31
would give him a wide area 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 32
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]
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 33
the line as being an area that should 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 the34
Hejaz Railway 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 35
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.
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
decisions of the British Government regarding its
Palestine Policy". That 1939 White Paper even blocked
the sale of property in Palestine to the Jews.36
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.
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 37
Permanent 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]
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]
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 38
and 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 450,000 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 Palestine39
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
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 40
invaders the political rights to it. Only Britain and
Pakistan recognized Jordan as holding sovereignty over
it.
Israeli liberation of Judea, 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.
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 41
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 Palestine’s 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 the London newspapers – ‘A state for
the Jews’ (Daily Express) – ‘Palestine for the Jews’ (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 ‘the 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]
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 42
recommendation when 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 Wilson’s
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
.
“When 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 43
self‐determination, to 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. ‘ Balfour gave the
argument a slightly different turn at his interview with
Meinertzhagen a few weeks later. ‘ [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.’ 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 of
Palestine.
2. He believed that the territory for which political
rights were to be recognized was intended to
include all of Palestine both east and west of the
Jordan River.44
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 that
Palestine would ultimately become a “Jewish
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]:
“...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 to Palestine,
if the Jews had meanwhile responded to the
opportunity afforded them … and had become a
definite majority of the inhabitants, then Palestine45
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 Office—and 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]
The late Professor Julius Stone was recognised as one of
the twentieth century's leading authorities on the
International law. His “Israel and Palestine, Assault on 46
the Law of Nations” which appeared in 1980, presented
a detailed analysis of the central principles of
international law governing the issues raised by the
Arab‐Israel conflict.” 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 Stone’s 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 “Not only does Jordan 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 [4th Geneva ] Convention applies "to
cases of … occupation of the territory of a High
Contracting Party, by another 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.” He doesn’t point out that in fact it
belongs to the Jewish People as does the State of Israel
that is not “another party” so that the correct
characterization is not only “occupied” as in military
occupation. Rather since “occupied”carries the
pejorative meaning of belligerent occupation, a better
descriptive would be “liberated.”
Politics and the Jewish political rights to Palestine47
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 — 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 that Jordan'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.
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.
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 48
Stone and I are directly 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 at San 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
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.
Even despite accepting the later loss of transJordan,
Chaim Weizmann, instrumental in obtaining the Balfour 49
Declaration, was delighted 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 nabka 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]
Israel's Legitimacy in Law and History, note #12 supra,
pp. 55,56.
Part II: Where There is a Tension Between the
Right of a "People" to Self-determination and
the Right of a Sovereign State to Territorial
Integrity, the Right of the State is Paramount50
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.
[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]
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 51
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.
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 second myth is that the "Palestinian People" is a real rather
than an invented "people" and that they want a right to self-52
determination under 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.
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 53
on Palestinian self-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. TheArab 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. 54
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 selfdetermination
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]
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, 55
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 selfdetermination
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.
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 56
of a state.
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,
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.57
In 1970, the UN General Assembly spoke again on selfdetermination
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.
This provided: "By virtue of the principle of equal rights and selfdetermination
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
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 58
territory removed as well as not removing anything vital to the
continued existence of those in the remaining territory.
How do these principles apply to the Arab‐Israeli
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 59
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%.60
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 61
of a legal interest in the 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 Isreal 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 SelfDetermination:
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, . . ."62
* * *
"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 Palestininan 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.63
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 64
the so 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‐65
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.html66
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 #1.67
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]
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
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 368
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;
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.htm69
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
I am somewhat surprised at all the commotion regarding the U.N resolution 2334 which condemns Jewish Communities and Settlements in the West Bank aka Judea and Samaria. It should be noted Israel regained land and rebuilt communities previously taken from it illegally via the Defensive War of 1967 when it had to defend itself from an unprovoked attack from Jordan. If the U.N voted a resolution declaring the Vatican as Muslim territory, is anyone going to abide by it?
According to my research, the U.N. Charter only provides for the recommendation(s) of a non-binding Resolution, with no legal standing. In fact, the U.N. has absolutely no legal standing or power to enforce any Resolution(s). Furthermore, it cannot be ignored the U.N. has recommended hundreds of Resolutions against Israel with no legal, or factual standing to support said Resolutions. There is also the U.N. Article 51 which provides for defense against attack. The U.N, and the ICJ have no appeal process and that is against every Democratic law. Their opinions and resolutions are based on false information; there is no procedure to remedy the erroneous biased decisions.
Israel is on solid legal and historical ground as far as its' territorial boundaries west of the Jordan River. In fact, history proves Israel has both a legal and historical claim for a lot of land held by Jordan.
The World at large has for thousands of years wrongfully persecuted the Jews, confiscated and stole their assets including land. The world at large will try and push us around if we let them. It is time to put an end to such unjustified persecution.
All the distortions of history up to and including modern day, by biased nations relying upon fictitious make-believe facts and wishful beliefs, must not be tolerated any more. While most of the biased world continues to unjustly assail Israel, the nation of Israel contributes to the world a substantial amount of advancement and technology in all fields, including medicine, energy, water desalination, IT, and much more.
Today the Jewish State of Israel has the man-power and the resources to defend itself against most world powers. Thus, it is time for us Jews to become unified and stand up for ourselves as was done during the days of Moses, King David and King Solomon.
We are supposed to be "a stubborn nation" (Am Kshey Oref). Let us utilize our "stubborn" resolve with a strong backbone steeled with our unwavering faith. If we stand our ground without capitulations, we might encounter some obstacles and suffer some set-backs. But in the long run we will be stronger and the world at large will respect us more.
We must overcome the "victim mentality" we have too easily accepted over thousands of years. It is time for all Jews worldwide to raise our heads, and steel our resolve as a proud nation with proud people.
YJ Draiman
The U.N. a useless organization – Non-binding
In a Democratic legal system if you have decision that you think is erroneous or unjust you can appeal that decision and many times it is reversed.
U.N. opinions and or resolutions are biased, unjust, arbitrary and capricious (the same apply to the ICJ – International Court of Justice).
The U.N. has issued numerous opinions and resolutions that are biased, unsubstantiated and contrary to historical and factual evidence. This U.N. collusion with corrupt and biased countries and the issuance of egregious opinions and resolution has eroded the credibility of the U.N. beyond repair.
This has raised the ire and an outcry by many nations, politicians and institutions to de-fund the U.N. and dismantle it.
It is well known that the U.N. and the ICJ can only offer and issue a non-binding advisory recommended opinions and resolutions which carry no legal standing or affect. They can only issue a non-binding recommendation and resolution and if it is accepted by all parties, then their recommended opinion and resolution is applicable. Otherwise it has no meaning, validity, and no legal standing.
Therefore, my suggestion is stop panicking and aggrandizing these biased criminal organizations. Their recommended opinion has no meaningful value.
By reacting to and citing the recommendations of this criminal organization as having any validity, you are misleading the public that the recommended opinions by these criminal organizations might have some validity.
It is time to expose the fraud and deception by these unethical, corrupt and unjust organizations and dismantle them completely.
It will also save a substantial amount of money and resources that could be put to a better use.
YJ Draiman
P.S. The League of Nations was replaced by the United Nations, since the league did not accomplish its purpose. The U.N. has not accomplished its purpose for what it was created to perform ethically and honestly.
In today's society the Nations of the world can function without an organization such as the U.N.
If the Nations of the world desire to establish a new International Peace organization, it must put some very specific Charter, with a caveat, that if it is not performing unbiased, ethically, honestly and justly, with respect to each member country, it will be dismantled.
A citizens committee might be set to monitor its functions to perform ethically, justly and unbiased, un-falsified, verified and substantiated factual unbiased opinions.
YJ Draiman
The U.N. a useless organization – Issues Non-binding resolutions with no legal standing
In a Democratic legal system if you have decision that you think is erroneous or unjust you can appeal that decision and many times it is reversed.
U.N. opinions and or resolutions are (non-binding) biased, unjust, arbitrary and capricious (the same apply to the ICJ – International Court of Justice).
The U.N. has issued numerous opinions and non-binding resolutions that are biased, unsubstantiated and contrary to historical and factual evidence. This U.N. collusion with corrupt and biased countries and the issuance of non-binding egregious opinions and resolution has eroded the credibility of the U.N. beyond repair.
This has raised the ire and an outcry by many nations, politicians and institutions to de-fund the U.N. and dismantle it.
It is well known that the U.N. and the ICJ can only offer and issue a non-binding advisory recommended opinions and resolutions which carry no legal standing or affect. They can only issue a non-binding recommendation and resolution and if it is accepted by all parties in writing, then their recommended opinion and resolution is applicable (Provided the parties abide by the terms). Otherwise it has no meaning, validity, and no legal standing.
Therefore, my suggestion is stop panicking and aggrandizing these biased criminal organizations. Their recommended non-binding opinion has no meaningful value.
By reacting to and citing the non-binding recommendations of this criminal organization as having any validity, you are misleading the public that the recommended opinions by these criminal organizations might have some validity, which it does not.
It is time to expose the fraud and deception by these unethical, corrupt and unjust organizations and dismantle them completely.
It will also save a substantial amount of money and resources that could be put to a better use.
YJ Draiman
P.S. The League of Nations was replaced by the United Nations, since the league did not accomplish its purpose. The U.N. has not accomplished its purpose for what it was created to perform ethically and honestly.
In today's society the Nations of the world can function without an organization such as the U.N.
If the Nations of the world desire to establish a new International Peace organization, it must put some very specific Charter, with a caveat, that if it is not performing unbiased, ethically, honestly and justly, with respect to each member country, it will be dismantled.
A citizens committee might be set to monitor its functions to perform ethically, justly and unbiased, un-falsified, verified and substantiated factual unbiased opinions.
YJ Draiman
Greater Israel is the Biblical Israel, which included a good part of the territory east of the Jordan River
To me and to most Traditional Jews, Greater Israel is the Biblical Israel, which included a good part of the territory east of the Jordan River. The original allocation of Palestine aka The Historical Land of Israel to the Jewish people included the territory east of the Jordan River and up-to the Railroad line which is about 120,000 sq. km.. The best defense is offense, no capitulation to Arab or worldwide pressure; we want what is ours no exceptions. See the minutes of the 1919 Paris conference, The 1920 San Remo Conference and the Faisal Weizmann Agreement of January 1919. The Arabs-Muslims received over 12 million sq. km. with a wealth of oil reserves of which over half of it has no habitation, plus the British in violation of treaties and agreements gave away over 77% of allocated Jewish territory and created the new Arab-Palestinian state of Jordan and prohibiting Jews from living there and confiscating all their assets, and now the Biased U.N. with non-binding resolutions and no legal standing (which has no authority to create countries, modify borders and violate international treaties and agreements, it can only recommend a non-binding opinion/resolution with no legal standing) and other nations who are intentionally deceived and or misinformed, want Israel to cede again their own historical territory for over 3,500 years, Judea and Samaria as a second Arab-Palestinian state (and plant a terrorist state in the heart of Israel, just like Gaza), after the disastrous ceding of Gaza and the constant rocket attacks against Jewish communities in Israel). My response to that is it is not going to happen; it is suicide for Israel, this is Jewish land with a history going back over 3,800 years; Jews are the remaining indigenous people, with the Jewish holiest city Jerusalem and the Capital of Israel (It was never a Capital of any other nation). Moreover Jerusalem is the home to two Jewish temples and the city of Hebron as the 2nd holiest city for the Jews with the Cave of The Jewish Patriarchs (The atrocities and murder committed by the Arabs in Hebron against the Jews goes at least as far back as 1517). The Arabs also terrorized and expelled over a million Jewish families with their children and confiscated all their assets including, personal property, businesses, homes and about 120,000 sq. km. of Jewish owned Real Estate property and land for over 2,500 years; valued in the trillions of dollars. Most of the expelled Jewish families and their children were resettled in Israel, and today comprise over half the population. Any Jew who wants to cede land to the Arabs has no place in Israel, especially in view of past results that such land for peace has brought more terror and violence and less safety and security for Israel and its people.
No Jew has the right or authority to cede Jewish territory and any such ceding of Jewish territory is not valid.
“A United Israel is a strong Israel”
YJ Draiman, President of AFSI in the Greater Los Angeles area
AFSI – Americans for a Safe Israel
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