WHO IS ENTITLED TO GIFT AWAY JEWISH NATIONAL RIGHTS?
by Yoram Shifftan
We are reprinting it without revision.
- The Sharon-Olmert proposition to uproot a Jewish presence in Gaza and North Shomron (and to transfer the area to the enemy) would be an irreversible gift because it is unilateral, voluntary, and does not put any obligation on the other side.
- It is unlawful to gift away property and rights without prior consultation of the lawful owner, and even more so if the owner is not even aware of his rights.
The trust of the League of Nations for the "Jewish people", which is the "beneficiary" of the "trust", operates on the same principle as a trust for an individual beneficiary, say a property held in trust for a young individual until he is eighteen. Once this individual attains the age of eighteen, this individual, and only he, is entitled to decide what will happen to the property and rights involved. These rights of the individual are invariant to the passage of time, the changing composition of the board of trustees, and the location of the trust. It is clear that in the post-colonialization era, the "Jewish people" has long passed its "eighteen". The Jewish people is the sole owner of the rights bestowed on him in perpetuity by the League of Nations' mandate, whatever these rights are.
According to the Palestine mandate (trusteeship) of the League of Nations, the owner of "Palestine" is the "Jewish people" and its rights includes "the reconstituting their national home in that country" by creating "such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions" including the urgent "facilitation and encouragement of Jewish immigration and close [dense] settlement by Jews on the lands, including State lands and waste lands not required for public purposes."
It is not allowed to transfer the land out of Jewish control: "No Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power." Later, these Jewish rights were temporarily "postponed", "withheld", in four fifths of Palestine, i.e., in the "Jordan" of today. It is to be emphasized that according to the Mandate, only the Jews have "political and national rights" in Palestine.
These rights were given to the Jewish people by the community of nations in perpetuity and were enshrined in the Charter of the United Nations. Thus according to international law these rights of the "Jewish people" are still valid and legally binding. The sole beneficiary of this trusteeship, the "Jewish people", has to be consulted before some of these rights are given away. But the owner of these rights (the beneficiary of the trust) himself is not even aware of his rights. This can be ascertained by every Israeli by simply asking his neighbours. Indeed during the existence of Israel and even before the declaration of the state in 1948 these rights were not taught in Israel's education system. As strange as it may appear to the outside observer, the modern Magna Charta (the original magna charta being the bible) of the Jewish people is absent in the official education system in Israel and diaspora Jews. Furthermore, since Oslo, Israel's official representatives are forbidden to declare these rights in public.
It is therefore suggested that a public campaign shall be initiated, and petitions shall be launched to Israel's state comptroller and Supreme Court. External courts, in particular the court of the ex-Mandatory Power, the U.K., could be approached. The purpose of the public campaign and the request from the court shall involve four requirements.
A. That the owner shall be consulted. Since the sole owner and beneficiary of these rights is the "Jewish people", a referendum (or appropriate election) will be organized among all Jews living in Palestine, since only the Jews are the "owner" of these rights. Israeli Arabs and Knesset members of the anti-Zionist Arab parties, who are not the owner of these rights and therefore are not entitled to gift away what is not theirs, shall not be involved in the referendum (or in the Knesset) in any way."No Jew has the right to yield the rights of the Jewish People in Israel. No Jews has the authority to do so. No Jewish body has the authority to do so. Not even the entire Jewish People alive today has the right to yield any part of Israel."
B. That prior to such a referendum the people of Israel shall be made aware of the above-mentioned national rights of the Jewish people. This should include the government of Israel on its own expense hiring advertisement sections in all Israeli newspapers in all languages and informing the population about Jewish National Rights, preferably by citing the original formulation of the mandate and explaining its current validity. Special programs on radio and television should be dedicated for the teaching of this information. Additionally, this information can be propagated by the distribution of leaflets with this information to all households in Israel (like the Geneva people have done). The inclusion of these rights in Israel's education system and in Israel's advocacy abroad should also be urgently instituted and actively encouraged. In view of the very many years of neglect is it is clear that a compensatory positive action is required in informing the public. Without this special effort of informing the owner of his rights the "general principle of law" that requires that the owner is to be made aware of his rights will not be fulfilled, and a referendum (or even a Knesset vote on the subject) will be meaningless and invalid in law.
C. After the Israeli public has been made aware of Jewish National Rights as described in (B), and before the referendum described in (A) is carried out, there will be a period of public discussion of the wisdom and advisability of the Sharon-Olmert uprooting proposal. It is to be emphasized that Olmert and the quartet have emphasized many times that the proposed uprooting is only the beginning in the process of Israel returning to the pre-1967 lines. The younger Israeli generations cannot imagine the sense of vulnerability that prevailed in pre-1967 Israel and how deep was the sense of relief that was provided by the 1967 victory. This discussion will inform the younger generations that the victory in 1967 was a matter of touch and go, of pure luck, that may not repeat again, and unlike the Arabs, Israel cannot afford to lose even one major war.
One example among many of the extreme vulnerability of pre-1967 Israel is seen from the fact that in this war a Jordanian tank brigade was about to cut Israel into two parts in its narrowest waist, the seventeen kilometres of the Natanya Tul-Karem axis. There were no meaningful forces on the ground to stop the Jordanians and so a desperate last-minute effort was made to divert some planes, since the whole airforce was occupied in Egypt, and these few planes managed to stop the Jordanian tank brigade at the last minute. The younger generations will be informed about the security nightmare of pre-1967 Israel which included the fear that the country would be cut into two parts, the permanent infiltration of terrorists, even though Israel then faced the more disciplined Jordanian and Egyptian armies and not the much more chaotic Palestinian Authority (which we brought on ourselves). And because the West Bank and Gaza were no-go areas for Israelis (as it is gradually becoming now again by our free choice!), it was very hard to take defensive measures, to gather information, to mobilize in time the reserves, to hit the terrorists in their shelter towns without hitting the innocent, to have enough space for military jets to fly in. And the whole country lived under the permanent threat of annihilation and massacre as was indeed promised by all the Arab states.
The defence (not to mention ecological, living space and more) value of the territories has much increased since 1967; also it is a deterrent against the use of WMD. The crawling return to the 1967 situation will return the nightmare that prevailed in pre-1967 Israel but it will be much worse because of WMD and the sense of demoralization that we brought all this misery on ourselves.
Already it is seen that the more territorial concessions are made the more difficult it becomes to stop the supply of weapon and ammunition to the terrorists. Soon civilian aircraft will be under dire threat. And the more official and legal Arab status in the West Bank and Gaza becomes, the more difficult it will be to face the world and to return again to the territories. After 1967 Israeli soldiers had comfortable military bases in the "territories" which they gifted away to the Palestinian Authority, so when they had to return after the second intifada began, they had to live and fight for days in the crowded spaces of tanks, because now their bases were occupied by Palestinian forces.
The public discussion should also raise the irreversibility of gifts, and the difficulties the world will have in accepting Israeli military forces in the territories without accompanying civilian Jewish settlements (which also serve as essential logistic bases). Such a military-only presence will appear colonial and contribute to anti-Israel feelings.
The court shall set the lengths of the periods of the activities described in (B) and (C).
D. It is self-evident that during the activities described in (A)-(C), all preparations for the proposed evacuation shall be suspended.
-- David Ben-Gurion
In view of the momentous, irreversible and unheard-of nature of the Sharon-Olmert uprooting proposition, that a government shall volitionally and unilaterally single out for transfer its own citizens from areas where it has the right to sovereignty (whereas in fact no area in the world should be made judenrein), and forcibly uproot them and replace them with the enemy, and in view of the total ignorance of the Israeli public of Jewish National Rights according to the League of Nations Mandate, and of the fact that according to current international law Israel is entitled to sovereignty and formal annexation of at least all of the area of Western Palestine, it is clear that the periods of each of the activities specified in (B) and (C) should be many months.
Rushing such momentous decision is unlawful. Here too, we find that the current 'iatrogenic' crisis is the opposite of a lawful situation. The Government has negated the need for a referendum, because it would interfere with its self-imposed deadline. No reason has been given by the Israeli authorities for the urgency. Such an urgency only follows a major military defeat and in this case a total surrender to terror. Such a surrender is a guarantee for encouraging further terror as indeed was recently admitted by Hamas, which explicitly said that the "disengagement" justifies a posteriori their terror tactics and suicide bombing. Nevertheless, a referendum was explicitly ruled out by the Prime Minister because of this unexplained and artificial urgency:
In a holiday interview with Maariv (14 September 2004), Sharon said,
"A national referendum isn't on the agenda since it would cause a delay in the timetable of implementing the disengagement plan."Such an urgency is unacceptable. The unprecedented nature of the uprooting proposal is obvious if we recall that from the point of view of international law Israel is entitled to urgently encourage and facilitate dense Jewish settlement in the West Bank, the Gaza Strip and East Jerusalem to an equal extent that it is entitled to encourage Jewish settlement within the 1949 armistice lines; see for example "The Legal Context of the Middle East Peace Talks," by the former Assistant Secretary of State and the former dean of the Yale law faculty, Prof. Eugene V. Rostow, in Policywatch, The Washington Institute, February 24, 1992.
"I wanted to carry out a plebiscite at the time but I was told it would be a very long process," the prime minister said. "The disengagement plan will be carried out without delay, according to dates I have outlined. If the plebiscite wouldn't have caused a delay, I would have considered it, but that is not the case."
As for requirement A above that the referendum shall be restricted to Jews only (it is technically impossible to include those Jews that are not living in Israel and we also note that diaspora Jews deserve to a smaller extent to be included because they do not do military service and they will not directly suffer the consequences of the decisions as compared to Palestine-based Jews), the major reason for this restriction is that only the Jews are the beneficiary of the League of Nations trust.
This should be enough. But one can invoke many other reasons for this restriction. Israel is the only country in the world which gives voting rights in the national level to its Arab citizens who are not required as a sector to do military service. This military service involves 3 years for men (shorter period for women) and later long periods in the reserves for many years. Such a service is a very dangerous activity and it also sets back economically Jewish citizens of Israel as compared to Arab citizens of Israel. The Arab citizens are not even required to do some kind of "National Service", they even refuse to voluntarily do national service in their own community, and there have been cases of intimidation and firing from jobs of those few Israeli Arabs that dared even raise the subject for discussion.
So what kind of democracy is it that gives all the rights to an ethnic section (even though it belongs to the enemy ethnically) that does not bear all the duties of a citizen? Without the readiness to endanger one's life for the state one lives in, one has no right to decide on questions of national survival, security, sovereignty, frontiers, and the dominant culture of the state. The universal situation in the world is like the Jews in the first world war that were killing each other in the service of the opposing combatant armies.
It is normal for a nation state to discriminate in favour of its own ethnic majority. For example, Israel is already discriminating in favour of Jews in its law of return. Similarly Germany favours in its laws ethnic Germans and facilitate their return and integration after absence from Germany of many generations, and nobody says that this discrimination is racist. On the other hand, millions of Turks live in Germany and neither they or their descendants have German nationality and the right to vote in the national level, and this occurs when, in contrast to the analogous situation in Israel, Germany is not at war with Turkey. The situation is similar in Switzerland where for many years guest workers and their families have found it very difficult to get Swiss citizenship.
In a referendum in Switzerland on September 26, 2004, the populace rejected liberalization of the naturalization procedure. Currently, Swiss-born children, and even grandchildren, of foreigners do not automatically get citizenship. There is a right to apply for citizenship after 12 years in the country, but it is very difficult to obtain citizenship because local committees have to certify that the candidate is really "suisse". It is ironic that a referendum on a relatively mild change in the character of a country - Switzerland - invoked a long period of discussions and debate, while in Israel, PM Sharon is attempting to railroad through a ukase that will forever change the character and cohesiveness of the Jewish state. He is doing this knowing ahead of time that it will be a bloody and bitter expulsion. And the only ones that will benefit are the Arab terrorists, who will have an easier time in attacking Israel.
The community of nations, as expressed in the Mandate (trust) for Palestine of the League of Nations has explicitly referred to only Jews being consulted in all matter national:
"An appropriate Jewish agency shall be recognized as a public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration, to assist and take part in the development of the country.It is the natural continuation of this that Jews only shall decide on national questions related to the Jewish national home in Palestine, or rather in the one fifth that remains from it. It is not appropriate to involve members of the ethnic minority belonging to the ethnicity of the enemy and who do not even do military service as a whole sector of the population (recall that some ultra orthodox Jews are only given temporary postponement of their military service). The Sharon-Olmert uprooting plan is typically such a national question, as distinct from questions of a local and municipal nature that involve all the population of Western Palestine.
"The Zionist organization ...shall be recognized as such agency. It shall take steps in consultation with His Britannic Majesty's Government to secure the co-operation of all Jews who are willing to assist in the establishment of the Jewish national home (Article 4 of the Mandate for Palestine)".
Democracy is also an arbitrary notion and in any case is just one consideration among others. For example, even when one applies the democratic principle, one person one vote, there is the prior arbitrary decision, for example which tribes in Africa to include in a certain national state, or whether to include Northern Ireland in the U.K. or in the Irish republic (both can be justified), which might strongly affect the final result. Then there is the phenomenon of "one-time democracy", e.g., Hitler coming to power democratically and then abolishing democracy or, similarly, an extreme Muslim regime rising to power democratically (i.e., by the principle "one person one vote") and then persisting for ever - see Algeria as an example. It is probably with this possibility in mind that Atta Turk, the father of modern Turkey, enshrined constitutionally a complete separation of religion and state, and had it not been for the Turkish army preserving the constitution, this separation would have long disappeared. But such a constitutional act is inherently undemocratic because it is invariant to the passage of time.
Similarly, Israel is entitled, considering the importance of having at least one Jewish state (compare with already 22 states, for the ONE ONLY Arab nation as the Arabs themselves are not tired of repeating). It is an overriding value to constitutionally enshrine in law that Israel shall forever be a Jewish state, and in the name of this supreme value it may need to take correcting actions that are not always idealistically democratic - but this is what all other nations do in the real world. Refusing to recognize this less-than-utopian democracy only in the case of the Jews, this anti-Zionism, is by definition anti-Semitic (Judeophobia) because it singles out the Jew (as Martin Luther King recognized). One such correcting action is limiting decision making on the national level to Jews only. This applies even more if we invoke the proven Muslim - and in particular Arab - intolerance to Jewish sovereignty in any territory of any size.
Indeed the empirically proven failure of the Oslo conception of Shimon Peres resides in his lack of recognition that better economic and educational status will not override the inherent Muslim intolerance of any Jewish sovereignty. The failure of the Peres Oslo conception is demonstrated in the "paradox" that even in countries at "peace" with Israel, such as Jordan and Egypt, the organizations of journalists, actors, doctors, engineers, etc. are the most virulently anti-Israel and anti-Jewish.
I recall a supposedly secular urbane Palestinian journalist working for CNN extolling on the waves of the BBC the virtue of life for Jews under Islam, but the mask fell when he said that the normal situation was exemplified when the Jews living in the Old city of Jerusalem asked the Turkish Sultan for permission to settle out of the walls of the Jerusalem. According to him Jews should always ask permission of a Muslim authority before any "independent" act. This is the normal Muslim mentality according to which Jews can only be second rate (dihimmis), a tolerated, humiliated when not massacred, minority. Even if there is a Muslim-Arab that thinks otherwise, he would soon be intimidated and shut up.
Again, every Israeli can find out that this is indeed the situation by simply asking his Muslim neighbour if he thinks that a state with a dominant Jewish culture is justified. It is the Left's persistent ignoring of this fundamental intolerance within the Muslim-Arab mentality that creates the wishful thinking that has led to catastrophe of Olso. This mentality is sometimes dissimulated to obtain the next concession. But it is easy to recognize it if one follows intra-Arab utterings, in particular at Palestinian Media Watch at http://www.pmw.org.il and MEMRI at http://www.memri.org. Every concession of Israel is cashed in for the final showdown.
It is the Israeli Left's refusal to see that peace in this part of the world can only be based on deterrence that now endangers the very existence of the only Jewish state. A typical reflection of this blindness of the Left to recognize unpleasant reality is the idea that the referendum on the uprooting in Gaza and North Shomron shall include the very same Arabs that objected and continue to object to the Israeli declaration of independence in 1948 and to the notion of a Jewish state. It is projected that in 15 years Israeli Arabs will grow to 30% of the population of the State of Israel. What if then they and the Israeli Left will decide to abolish the dominant Jewish nature of Israel? And later still, what if the Jews of Palestine will become dihimmis in yet another Arab totalitarian state, as a prelude to the final massacre.
If Israel will not constitutionally anticipate this eventuality when there is still time, the end of the Jewish state, not to mention the final massacre, is very much in sight. And like in the days of Hitler, the Leftists and their descendants who helped to create this situation will not be spared.
The so-called liberal, progressive Left, which is in fact gauchiste de salon, was always affected by a fixation on one utopian slogan, which created a mental inflexibility that disabled them from enlarging their universe of discourse to see other aspects of reality. When they fixed on Stalin, they were not able to see the atrocities he committed. The current romance is with extreme Muslim terrorist fanatics - it has, of course, to be a totalitarian entity - so they are unable to demonstrate against the atrocities committed, with the full support and participation of an Arab government, against the African natives in the Sudan. Their fixation on a utopian democracy disables them from seeing an additional aspect of reality - the overriding value of securing one Jewish state in Palestine.
As a typical example, Moshe Hanegbi, the Voice of Israel's legal commentator, is not able to refer to the fact that the very preservation of a democracy requires at times the curtailment of some democratic rights. In his analysis there is never a concession to the fact that a democracy at war is not the same as democracy in peace. He focuses, like the rest of the Voice of Israel personnel, on the danger the settlers pose to democracy, while completely ignoring the undemocratic conduct of Sharon. This is also the behaviour of the so-called Israel Institute for Democracy.
Israel is sometime compared to South Africa's apartheid. But in the apartheid regime there were rules, issued by the state itself, which would be the equivalent of the Israeli authorities not allowing Arabs and Jews to marry, to share the same benches in public parks, to use the same pubs, to work in the same lab in the Hebrew University, to sit in the same bus in peacetime. Israel allows Israeli Arabs and Israeli Jews to travel in the same buses, even though it is Arabs only that provide the suicide bombers, and in some cases Israeli Arabs are among the perpetrators. One could compare the segregation period in the south of the US to apartheid, but to take preventive measures of security and self-defence, or measures to secure the dominant Jewish nature of Israel, and to label them apartheid, is yet another Orwellian abuse of language. If this is apartheid, what should we make of the British locking up Jewish refugees from Hitler and exposing them to perilous journeys to Australia and Canada just because they escaped from German-speaking countries? What should we say about the US arresting, again in World War II, American citizens of Japanese origin?
As to requirement (B) above, every Israeli can verify that his neighbours think that there is something illegal from the point of view of international law about Israeli settlements. Therefore, so the conventional wisdom goes, the more Israeli settlements will be dismantled the more we shall be loved in the world. The Israeli Leftist elite has infiltrated and gained control of the legal system, the media and many of the government positions (on the principle that a friend brings a friend); it acts as Lenin fools or because it is bribed. It has an interest to perpetuate this false belief held by the man in the street, so that the uprooting can be accomplished with a semblance of democracy and without public outcry.
A striking example occurred when Dr Alon Liel labelled the settlements "illegal" on the "Haarachat Mazav" radio program, many months before the uprooting plan in Gaza and North Shomron was raised. I then spoke to the head of correspondents on the Voice of Israel (his name is Gad Ben Yizhak) and asked him to bring to the same ongoing radio program another expert to state that the settlements are in fact legal according to international law. He refused to comply with this request explaining that "the Voice of Israel has to prepare the nation for the uprooting of settlements"!
It could be that he trusted me to divulge his motives because my focus was the importance of teaching the legality of the settlements for the purpose of foreign Hasbara (advocacy). Combining this with similar incidents, such as a conversation with Dov Weisglass in 2001 in which he remained unresponsive to my appeal that the legality of the settlements shall be taught and asserted, it is hard to avoid the conclusion that in Israel the value of objective truth, as a value in itself, and as a basis of rational decision making and Hasbara, is not held in high regard by those responsible for setting Hasbara policy. The situation is not as bad as in the Soviet Union, where there were various versions of the newspaper Pravda, and only the Communist elite got the real truth while the rest got different degrees of diluted and fabricated "truth", but the Israeli elite and its subservient newspapers and electronic media in the nineties did conceal from the Israeli public the Palestinian infractions of Oslo and the continuation of Palestinian and other Arab incitement against Jews.
In Israel, voters choose among parties according to their manifestos; individuals are not directly elected. So what is the point in maintaining periodical elections if important information is actively concealed from the public, while a policy diametrically opposed to the one declared before the election and included in the manifesto is implemented immediately after the election? Before his election, Sharon ridiculed his opponent, the Left-wing Laborite, Amram Mitzna, who advocated dismantling Jewish settlements in Samaria, Judea and Gaza. Sharon said, "Netzarim [Gaza] is as Tel-Aviv." After the election, Sharon started carrying out Mitzna's policy.
Israel now is only a facade of a democracy, pretending to go through the motions. But then only in Israel the editorial writers and columnists of Haaretz - the newspaper for thinking people, the Israeli UK Guardian or Le Monde - are not ashamed to write that Sharon may well be personally corrupt and his conduct is undemocratic, but this should be ignored as long as he carries out the uprooting policy. Similar opinions were expressed by professional journalists in other major Hebrew newspapers.
In a world where there is no value of "objective truth", there is also no value of "objective justice."
This article has focussed on the legitimacy of the Sharon-Olmert uprooting plan in Gaza and North Shomron. But it should be clear that the "agreement" of the Sharon government to the Road Map (despite the Likud party objecting to a "Palestinian state" and pointing out strongly that such a state is in complete contradiction of the Likud's manifesto) is illegitimate because it does not fulfil the four gifting requirements. This lack of legitimacy makes it invalid for the Quartet to ask Israel to fulfil its obligations according to the Road Map. (In any case, the Arab side has not fulfilled its part according to the Road Map.)
The gifting involved in accepting the Road Map is illegitimate not only because the Jewish public is unaware of its rights and was not consulted in a multistage procedure, but a gifting under duress is invalid. (This was elaborated on in an earlier publication, "Sharon As Judas Goat: Leading the Jews out of the Promised Land," http://www.think-israel.org/shifftanisraelipr.html.) There should be no doubt that the Road Map involves gifting away Jewish National Rights: according to international law as expressed in the Palestine Mandate of the League of Nations, all empty spaces (which are not privately owned) in Judea, East Jerusalem, Samaria and Gaza are to be allocated for dense Jewish settlement, and it is the duty of the Israeli government and the international community to encourage and facilitate this Jewish settlement. This is incompatible with the Road Map, unless a proper procedure of gifting away of Jewish National Rights has preceded the acceptance of the Road Map.
Dr. Yoram Shifftan has published many articles on Israeli hasbara, in publications such as Ha'aretz, Ma'ariv, Hatzofeh, Hamodia and Ha'Uma, Think-Israel and Jewish Internet Association. He has also presented a special series about hasbara on Arutz-7 radio.
You may wish to underscore Dr Shifftan's arguments by writing to Elyezer Goldberg, the State Comptroller. His address is POB 1081, 12 Beit Hadfus St., Givat Shaul, Jerusalem, 91010. His email address is: mevaker@mevaker.gov.il; his fax number is: 02-6665204; and his telephone number is 02-6665000.
The attorney general's address is 29 Salah-a-Din St., Jerusalem 91490 and his fax number is: 02-627 4481.
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