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Claims of the Jewish and Arab Peoples under International Law to the Right of Political Self-Determination in Palestine
by Wallace Edward 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 rulebook, a rule permitting the practice of archery in a certain
way between the hours of 2 and 6. In the intervening 550 years the
way had become a boulevard and then a major traffic artery. When
they practiced one day, they blocked traffic and caused a
considerable traffic jam.
They were haled before the Wardens who said they would be
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Electronic copy available at: http://ssrn.com/abstract=2385304
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?
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Electronic copy available at: http://ssrn.com/abstract=2385304
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
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Electronic copy available at: http://ssrn.com/abstract=2385304
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
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by a Joint Resolution of Congress in 1922 and in a separate treaty,
the Anglo-American Convention of 1924. For more on the
Mallison opinion see: SSRN.com/abstract=2404738
The chronology of the Palestine Mandate 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 to vest when the Arabs were capable of exercising
sovereignty. They 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 sufficient to achieve a Jewish population
majority. This would avoid an "antidemocratic" government, i.e.
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
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capability of exercising sovereignty and would require the trustee
to facilitate Jewish 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. By coincidence,
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 is
archived 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. In it was an
article responding to Professor Stone's treatise entitled "The
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Juridical Basis of Palestinian Self-Determination". In the article
the Mallisons attempted to resurrect their legal opinion by trying to
fit the UN's Partition 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
Jewish People. 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. In the National Home Jews could settle in Palestine
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west of the Jordan, but could not rule. When legal dominion vested
in the political rights and the Jews in Palestine were capable of
exercising sovereignty, they could set up their own government.
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
of Nations’ Covenant was designed to help states that had been
subject to Ottoman occupation for 400 years, in their political
development so they could 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, the Jewish People 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
talkfor"theissuehasalreadybeendecided".
We tellyoubelowwhothejudgeswere,whatgavethem
jurisdictionorauthoritytomakethedecision,whenthe
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
JewishState.
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
thatWorldJewryhashadasof1920,aJewishNational
Home in all of Palestine, or since 1922 at least in that
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partofPalestinewestoftheJordanRiver.ThatNational
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
years and were intended to be helped by more
establishedstatestobecomeselfgoverningstateswhen
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
sovereigntyasanymodernEuropeanState.
Recent Levy Report on whether settlements in Judea,
SamariaandEastJerusalemareillegal
Istartedmyowninquiryandanalysisseveralyearsago.
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
Article49ofthe4thGenevaConvention[2]prohibiting
the "deportation or transfer" of its citizens was not
applicable to decisions of individual Israeli citizens to
movetheirplaceofresidence.Permittingthemtodoso
or even facilitating the relocation was not the
proscribed exercise of State Power. The Levy Report
heldthatthe4thGenevaConventionwasdirectedsolely
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atprohibitingtheexerciseofstatepower.UnderArticle
2 of the Convention, any occupation must be of the
territoryof “anotherparty” .Butbelowweshowthat
Palestine west of the Jordan belonged to the Jewish
Peoplein1967,notanotherparty.Thereportalsoheld
thattheclaimbyIsraeltotheownershipofthepolitical
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
BritishPolicy[4]withtheresultthatithadnowbecome
InternationalLaw.The1922LeagueofNationsMandate
for Palestine, providing detail for administering the
contentoftheBalfourDeclaration [5]confirmedtheSan
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.
Otheropinionsreachingthesameconclusion
Inthecourseofmyowninquiry,I learnedthatbeforeI
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
thatofanonlawyer,Mr.SalomonBenzimraofToronto,
who stated in a much shorter and more readable work
10
— withhelpfulmaps— thefactualpremisesleadingto
the legal conclusions of Gauthier and Grief. His book
waspublishedinKindlebyAmazoninNovember,2011.
[8] My own view was initially published online in a
blog — ThinkIsrael.org — but thereafter, with greater
documentation, in a two part op ed in a conservative
newspaperinIsraelknownasArutzSheva.[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
argumentsintheLevyReport(updated)[11]contained
the legal opinions of three distinguished Israeli jurists.
One was the late Justice Edmund Levy, formerly a
JusticeoftheSupremeCourtofIsrael.Thesejurists,for
the first time, delivered an opinion on the status of
Judea, Samaria and East Jerusalem that was not
dominatedbyanIsraelileftwingLabourGovernment.
All these opinions have only minor differences and
reach the same conclusion — that World Jewry owns
thepoliticalornationalrightstoallofPalestineWestof
theJordan,andpossiblysomeofthateastoftheJordan
aswell.Legalopinionsreachingthesameconclusion,to
myknowledge,gobackatleastto1993[12]soitcannot
be said to be a recent politically inspired fabrication as
someofitscriticshavecharged.Seeespecially,"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
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Rumsfeld in the George W Bush Administration; Elliott
GreenisanIsraeliresearcher.Thecriticswiththisview
haverespondedadhominem butfewhaveraisedissues
of fact or law. More recently I have encountered the
opinion of the acclaimed international lawyer, the late
Julius Stone of Australia, the author of Israel and
Palestine:AssaultontheLawofNations. [15a]
ThemajorpointsoftheLevyReport
In the Levy Report, the first issue was whether Jewish
settlementsinJudea,Samaria,andEastJerusalem,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
whenabelligerentstateinvadestheterritoryofanother
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
12
"deportedortransferred"the"settlers".These"settlers"
[17]wereindividualswhohaddecidedontheirownfor
economicorreligiousreasonstomovetoanewplaceto
live outside the 1949 Armistice "Green Line". Some of
them were resettlers, who just wanted to return to
their homes — after the area had been liberated. Their
homes were in a place that had been illegally occupied
byJordanandtheyhadbeenexpelledbyJordanin1948
or thereafter. They clearly were not "deported" by
Israelandiftheyrelocatedundertheirownmotivation
forpatrioticreasons,religiousreasonsorjusttogoback
tothehome fromwhichtheywereexpelledin1948,no
state had "transferred" them. They simply moved for
theirownreasons.
The term "transfer" must be distorted to be applied to
situationsitsimplywasnotintendedtocoversuchasa
movement of that kind. The 4th Geneva Convention is
directedatstateaction,nottheactionofindividuals.
The verb “transfer” characteristically takes on a
reflexive pronoun when the agent and the object are
identical. The earlier opinions of Labour Government
lawyers took a Convention that was directed at states
andattemptedtoapplyittoindividualsbyholdingthat
itmeantthattheStateofIsraelwasrequiredtoprevent
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
interpretationthatdistortedtheword"transfer".[19]
13
AfterfindingthattheGenevaConventiondidnotapply,
theLevyCommissionlookedtodeterminethestatethat
did have sovereignty over the area conquered by the
ArabLegionin1948.[20]
In 1948, the Arab Legion, acting as the army of
Transjordan that later became the State of Jordan,
invaded the area that had been ruled by the British
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] Although the Resolution died at
birth, the alternative under the Palestine Mandate was
stillavailabletothem. TheJewswerenolongersubject
to territorial limits of the boundaries set forth in the
Resolution.
TheArabLegionwasanArmyconsistinginthemainof
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
countrieshadembargoedarmstoIsrael.
For some 19 years, from 1948 to 1967, Jordan illegally
occupied what had been Judea, Samaria and East
Jerusalem. Under its rule of the 58 synagogues in the
area all one were destroyed; some 38,000 tombstones
14
from the Jewish Cemetery on the Mount of Olives were
brokenordefaced;allJewswereexpelledfromthearea
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
foundalatrinehadbeenbuiltagainstit.
While the former leftist Labour Government lawyers
had held after 1967 that Israeli was holding the
territoryunderthe“LawofBelligerentOccupation”,itis
hard to see how they arrived at that conclusion. That
doctrine only applies to occupation of territory of a
lawful sovereign in an area. Only two countries in the
whole world, Britain and Pakistan had recognized
Jordan'ssovereigntyoverwhattheyrenamedthe"West
Bank". All of Jordan's territory dating back to before
1948wasontheEastBankoftheRiverJordan. Perhaps
they renamed the area the Israelis had liberated —
called Judea, Samaria and East Jerusalem since historic
times— "TheWestBank"becausetheywouldlooksilly
claiming that the Jews were illegally occupying Judea.
(HatsofftoProfessorStevenPlaut)
TheSanRemoResolution
Israel'srootsinInternationalLawstartintheSanRemo
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
15
andaJewishstate.InthatresolutionJerusalemandthe
nearby holy places were to be held separately as a
corpus separatum at least temporarily under control of
theUN.Itwasarecommendationthathadnoforceand
noeffectbecauseoneofthepartiesitwasaddressedto,
theArabs,hadrejecteditandstartedawar.
WhatisInternationalLaw
International Law is created by treaties or conventions
between and among states or by long standing custom.
InternationalLawcannotbecreatedbytheUN.TheUN
General Assembly does not have that authority; nor
doesanyinternationalentity.TheInternationalCourtof
JusticehasnoauthoritytocreateInternationallaw.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
ofitselftoalterinanymannertherightswhatsoeverof
any states or any peoples or the terms of existing
international instruments to which Members of the
UnitedNationsmayrespectivelybeparties.[22]
Its being saved is also the consequence of the legal
doctrinesof"acquiredlegalrights"andof"estoppel.As
explained by Howard Grief "the principle of 'acquired
legal rights' which, as applied to the Jewish people,
meansthattherightstheyacquiredor wererecognized
as belonging to them when Palestine was legally
16
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
internationallawwhichwerethesourceofthoserights.
ThisprinciplealreadyexistedwhentheAngloAmerican
Conventioncametoanend. Ithassincebeencodifiedin
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
MandateforPalestine.
Thereversesideoftheprincipleofacquiredlegalrights
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
internationalagreement.IntheConventionof1924,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
governmentislegallyestoppedtodayfromdenyingthe
right of Jews in Israel to establish settlements in Judea,
Samaria and Gaza, which have been approved by the
governmentofIsrael."[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".
17
TheUNcallsthem"trusteeships"."Mandate"iswhatthe
League of Nations, the UN's predecessor in world
government called an area placed in trust until it was
capableofselfgovernment.Recognitionofthispolitical
or national right was saved by Jews concerned about
therightsundertheBritishMandateforPalestinewhen
theUNwasgivenauthoritytodealwithtrusteeshipsas
the Mandate was a trusteeship under the League of
Nationsname.[24]
TheParis PeaceTalksandthedecisionatSanRemo
To understand the San Remo Agreement we must go
backintimetoWWIwhentheTurkishOttomanEmpire
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,theUS,ItalyandJapan— were
entitled under International Law of long standing
custom to occupy the Ottoman Empire until a peace
treatywassignedthatdelineatedboundariesagreedon
bytheparties.AftertheParisPeacetalksthatwereheld
commencing January 4th, 1919 the Principals
determined to establish a world government to
maintain peace. It would be entitled “The League of
Nations”. Its Covenant or charter was Part One of the
TreatyofVersailles.TheparticipantstotheParisPeace
18
talks included the Allied Principal War Powers and
claimantsfor territories,mainlyterritories inEurope.
Evenbeforetheendofthewar,inNovember,1917the
Balfour Declaration had been established as British
policythatWorldJewrywouldbethebeneficiaryofthe
trustofthe“political” or“nationalrights” toPalestine.
These are the rights that entitle the collective right of
political selfdetermination, the right to establish and
administer the government of a territory. Both Arabs
and Jews interested in territories in the Middle East
were also present at the Peace Talks in Paris and
submittedtheirclaimsthere.
TheArabsclaimsweremadeundertheauspicesofKing
Ibn Hussayn, however they were presented by
Lawrence of Arabia and also through George Antonius.
AntoniusbroughtupArabandFrenchclaimsconflicting
with the Balfour Declaration, notably claims based on
the HussaynMcMahon correspondence and the secret
SykesPicot Agreement. Antonius had made a careful
studyoftheseandhisargumentsinitiallyseemedquite
convincing that the British “had sold the same horse
threetimes”.
TheZionistOrganizationmadethefollowingclaimfora
twostep process in which the territory would first
become a Jewish National Home and then would
becomeareconstitutedJewishstate.
19
"Palestine shall be placed under such political,
administrative and economic conditions as will secure
the establishment there of the Jewish National
Homeandultimatelyrenderpossiblethecreationof
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.
[emphasisadded]
TothisendtheMandatoryPowershallinteralia:
Promote Jewish immigration and close settlement on
the land, the established rights of the present non
Jewishpopulationbeingequitablysafeguarded.
Accept the cooperation in such measures of a Council
representativeoftheJewsofPalestineandoftheworld
that may be established for the development of the
Jewish National Home in Palestine and entrust the
organizationofJewisheducationtosuchCouncil.
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
forthedevelopmentofnaturalresourcesthatitmaybe
found desirable to grant. The Mandatory Power shall
encourage the widest measure of selfgovernment for
localitiespracticableintheconditionsofthecountry
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
20
citizenship and civil rights, on the grounds of religion,
orofrace"[25]
WhattheZionistorganizationwasaskingforinParisin
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
ultimatelytransitionintoareconstituted statewaswell
knownaseventhesmallJewishpopulationinPalestine
didnotbelieveitwasreadytoexercisesovereignty. 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
reconstitutedJewishstate". [emphasisadded][26]
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.Theyneededtoextendtheirdeliberationsto
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
21
powersforthosecountriesbutadopttheBritishBalfour
policy and recognize World Jewry as the beneficial
ownerofthepoliticalrightstoPalestine.
ThreedocumentsrecordedthedecisionofthePrincipal
War Powers on Palestine: the Treaty of Sevres, the
Treaty of Lausanne, and the San Remo Resolution.
Article95oftheTreatyofSevreswasconfirmedbythe
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
sovereigntyoverterritoriesinAsiaunchanged.TheSan
Remo Resolution was also a writing that incorporated
the decision of the Principal War Powers on those
competing claims to Palestine adopting the Balfour
Declarationintermsthatwerelefttobefurtherspelled
outintheMandateforPalestine.ButtheBritishBalfour
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
JewsinallofPalestinewereonly60,000populationout
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
andin1863amajorityofthepopulationthere.Butinall
22
of Palestine, as of 1917, the BFO estimated Jewish
populationatonly10%ofthetotal.
Critics of the Balfour Policy had argued that a
government ruled by a "people" that was only a 10%
minority would be "antidemocratic". The British
Foreign Office (“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". InamemorandumofSeptember19,1917,
Arnold Toynbee and Lewis Namier, speaking for the
BFO,pointedout thatthepoliticalrightswouldinitially
beplacedintrust— thetrusteelikelybeingEnglandor
the United States. The trustee would have legal
dominionoverthepoliticalrightsandalthoughtheJews
would have a beneficial interest, the legal interest
wouldnotvestuntilsuchtimeastheJewshadattained
a majority population in Palestine and were as fully
capableofexercisingsovereigntyasamodernEuropean
state.Theirdecisionwaslaterincorporatedinarticle95
of the treaty of Sevres by a cession of Ottoman
sovereigntyoverPalestinetothattrustee,incorporated
intheSanRemoResolutionandtobedefinedingreater
detailintheMandateforPalestine.[27]
This same recommendation for a two step process was
incorporatedinthediscussionintheBriefingDocument
of the U.S. Delegation to the Paris Peace Conference, in
1919.
23
"3.ItisrecommendedthattheJewsbeinvitedtoreturn
to Palestine and settle there, being assured by the
Conferenceofallproperassistanceinsodoingthatmay
be consistent with the protection of the personal
(especially the religious) and the property rights of the
nonJewishpopulation,andbeingfurtherassuredthatit
will be the policy of the League of Nations to recognize
PalestineasaJewishstateassoonasitisaJewishstate
infact.
"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,
whichhasmadelargespiritualcontributiontomankind,
and is the only land in which they can hope to find a
homeoftheirown;theybeinginthislastrespectunique
amongsignificantpeoples.
"Atpresent,however,theJewsformbarelyasixthofthe
total population of 700,000 in Palestine, and whether
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,asmandatory,canbereliedontogivethe
Jews the privileged position they should have without
sacrificingtherightsofnonJews."[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."
24
AMandateisatrust
Theterm"Mandate"appliedinthiscontextisconfusing.
It seems to mean an "order". But construed in the light
ofArticle22oftheCovenantorCharteroftheLeagueof
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. It expressly “entrusts” the
administration of Palestine to the mandatory power.
ThiswastheconclusioninMayof1921,aboutoneyear
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
TrusteeshipinEnglishLaw."[Note#24]IftheMandate
isatrust,whatisthetrustres,thethingplacedintrust?
ItmustbethepoliticalornationalrightstoPalestine.
Themostimportantquestionis"Whoisthebeneficiary
of the trust? All who have looked at the trust and
compareditwithtrustsforSyriaandMesopotamiahave
concluded that it is World Jewry. Compare it yourself
with the Mandate for Syria and the Mandate for
Mesopotamia.Fortheformer,"ThisOrganiclawshallbe
formedinagreementwiththenativeauthoritiesand
shall take into account the rights, interests and
25
wishes of all the Population inhabiting the
mandatedterritory, (Article1oftheMandateforSyria
and The Lebanon) For Mesopotamia, now Iraq, the
mandate provided: This Organic law shall be framedin
consultation with the native authorities and shall
takeintoaccounttherights,interestsandwishesof
all thepopulationofthemandatedterritory. (Article
1oftheMespotamia[Iraq]Mandate.[emphasisadded]
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
Mandatoryshouldberesponsibleforputtingintoeffect
the declaration originally made on November 2, 1917,
by the Government of His Britannic Majesty [The
BalfourDeclaration]andadoptedbythesaidPowersin
favor of the establishment in Palestine of a national
homefortheJewishpeople,itbeingclearlyunderstood
that nothing should be done which might prejudice the
civilandreligiousrightsofthenonJewishcommunities
in Palestine ... and Whereas recognition has thereby
been given to the historical connection of the Jewish
people with Palestine and to the grounds for
reconstitutingtheirnationalhomeinthatcountry;..."
ComparetheMandates
26
It seems clear that in the other mandates, the rights,
interestsandwishesofthethencurrentinhabitantsare
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
thattheJewishNationalHomewasabeneficialinterest
inthepoliticalrightstoPalestine,tomatureintoalater
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. A French
effort at San Remo to add political rights was rejected
bytheotherprincipalpowers.ItisJewishimmigration
alone that must be facilitated. It is the Zionist
Organization alone reflecting the rights, interests and
wishes of World Jewry that was the appointed advisor
to the Administration set up by the trustee to
administertheMandate.
BalfourresignedasforeignsecretaryfollowingtheParis
Conferencein1919,butcontinuedintheCabinetaslord
presidentofthecouncil.InamemorandumofAugust11,
1919addressedtonewForeignSecretaryLordCurzon,
hestated...
27
"All of the other engagements contained pledges that
theAraborMuslimpopulationscouldestablishnational
governments of their own choosing according to the
principleofselfdetermination.Balfourexplained:"...in
Palestine we do not propose to even go through the
form of consulting the wishes of the present (majority)
inhabitantsofthecountry..."
Balfour stated explicitly to Curzon:"The Four Great
Powers[Britain,France,ItalyandtheUnitedStates]are
committedtoZionism.AndZionism,beitrightorwrong,
goodorbad,isrootedinagelongtraditions,inpresent
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
ZionismwillhurttheArabs,buttheywillneversaythey
want it. Whatever be the future of Palestine it is not
nowan'independentnation',norisityetonthewayto
become one. Whatever deference should be paid to the
viewsofthoselivingthere,thePowersintheirselection
of a mandatory do not propose, as I understand the
matter,toconsultthem."..."IfZionismistoinfluencethe
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 settlor of the
trust?NoitwasthePrincipalAlliedPowerswhometat
San Remo according to Douglas Feith [Note #14]. It is
they who by winning the war had the authority to
28
disposeoftheterritoriesastheysawfit.Itisalsothose
Powers, not the League who accepted Britain's offer to
serveasMandatoryPowerorTrusteeatSanRemo.
ATrusteehasfiduciaryobligations
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,WorldJewry,andtheTrustee.Thisprincipleisso
wellrecognizedinBritishandAmericanlawitneedsno
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.
WhatwastheroleoftheLeagueofNations?Balfoursaw
itonlyasthe instrumenttocarryoutthispolicy.Balfour,
on presenting the Mandate to the League of Nations
stated:
"Remember that a mandate is a selfimposed 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
29
welfareofmankind....""TheLeagueofNationsisnotthe
authorofthepolicy,butitsinstrument....".
Britain's role was that of the Mandatory or trustee. But
theconquerors,thePrincipalAlliedPowers,didnotgive
thepoliticalrightstoWorldJewryasagift.Thepolitical
rightswererecognizedasbelongingtotheJewsbecause
of the long "historical connection of the Jewish People
with Palestine" a history extending over some 3,700
yearswithacontinuouspresenceofJewsduringallthat
time.
Article95,TreatyofSevres— wasitlegallyeffective?
The Turks had regrouped and fought the Allies again
overterritoriesinEurope.SotheTreatyofSevreswhich
also covered those areas was never ratified by Turkey
but was superseded by the Treaty of Lausanne. By that
timethedecisionspertainingtotheMiddleEastwerea
fait accompli. By not changing things the Treaty of
Lausanne,inArticle16and30ratifiedArticle95ofthe
treatyofSevresthatwastherulingofthePrincipalWar
PowersonthecompetingclaimsoftheArabsandJews.
ThatendedanyclaimoftheOttomansandleftitsstatus
uptotheotherpartiesconcerned.Article95hadceded
Ottoman sovereignty over Palestine to the Mandatory
PowerintrustfortheJews.Notabene thattheMandates
forSyriaandMesopotamiawerealsoestablishedinthat
treaty. The Syrian Mandate was subsequently divided
intotwo,aSyrianMandateinto whichtheMuslimswere
tobelocated,andLebanonfortheChristians.
30
TheBritishtruncatedtheJewishPoliticalRights
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
MandatewaschangedtodealdifferentlywithPalestine
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.AnArticle25hadbeeninsertedinparagraph25of
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
settlementintransJordan.
Howdidthiscomeabout?
King Hussayn who was then ruler in the Hedjaz in the
Arabian Peninsula had four sons. Believing that his
agreement with the British resulting from his
correspondence with McMahon would give him a wide
area covering Syria and Mesopotamia (now Iraq) as
wellastheArabianpeninsula,hetoldhissonFeisalthat
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
political power. In the secret SykesPicot agreement,
theGovernmentsofEuropesplituptheformerOttoman
31
territory into spheres of influence. England was to get
Palestine and Mesopotamia (now Iraq), and France
wouldgetSyria.
Immediatelyafterthewar,EnglandhadplacedFeisalon
the throne in Syria. When he asserted independence,
FrancewasoffendedandaftertheBattleofMaysalun,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
waragainsttheFrenchsohegavethethroneofIraqto
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.
AfterhehadsetupagovernmentKirkbridewaswarned
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
himandwiselydecidednottofight.HewiredJerusalem
once again and this time His Majesty's government,
decidedthatitwasafaitaccompli. AtameetinginCairo
onMarch21,1921Churchilldecidedthebestwayoutof
this problem was to limit the rights of the Jews to
Palestine west of the Jordan. Kirkbride then chuckles
over the "remarkable discovery" made by the
governmentthattheframersoftheBalfourpolicynever
reallywantedtogiveallofPalestinetoWorldJewryfor
32
itsJewishNationalHome.Skepticsmightask,why then
did the ToynbeeNamier memorandum predating the
Balfour Declaration assume that the 600,000 total
population of all of Palestine would be under Jewish
rulebutforputtingthepoliticalrightsintrust?[29]
As for the HussaynMcMahon 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
Britishandatthemostcameupwithabout5,000.[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
ownfightershadnotconquered.AndinfactinSyriaand
Palestine none of the Arabs fought on the side of the
British and many fought for the Ottomans. Finally
assumingthesewerenotaproblemtherewasadispute
over the territory that Hussayn was promised even
though his fighters had conquered it. A line was drawn
thatwouldeliminateterritorytothewestofthelineas
beinganareathatshouldbeunderthecontrolofothers
andPalestinewasexcludedandaccordingtotheBritish,
Hussayn understood that Palestine was excluded.
Moreover the British also contended that the Hussayn
McMahon Correspondence had never matured into a
finalagreement.
33
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. Note that Abdullah and his Tribe was
a "foreign power" from the Hedjaz of the Arabian
Peninsula, expressly prohibited in the Mandate
document from receiving any of the political rights in
trust.This,the1922WhitePaperwasthefirstexample
ofEnglandbreakingitsobligationstotheJews.Itwould
do so again and again in the White Papers of 1930 and
1939evenaftertheconfirmationoftheMandatebythe
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
thetrustres theobligationsofafiduciary. Afiduciary'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'sownpoliticaldifficultieswithFrance.Thiscost
the beneficiary, World Jewry. some 40% to 50% of the
PalestineterritorythenextendingeastonlytotheHejaz
Railway that had initially been determined by the
Principal Allied Powers as the area they wanted
recognizedasJewish. Palestine’seasternboundarywas
laterextendedtotheboundaryofIraq.
34
Britain'sretreatfromtheBalfourpolicy.
ThroughthemeetingatSanRemo,allthePrincipalWar
Powers were very protective of the rights of World
Jewry.WhenatSanRemo,theFrenchwanted toamend
the "savings clause" saving the "civil and religious
rights" of non Jewish communities when the Jews
ultimately exercised sovereignty in Palestine. They
proposed 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.
Thatwasacceptabletotheothersbecauseallknewthat
the Arabs in Palestine had never exercised sovereignty
there.Theonly"people"inPalestinethathadexercised
self government in Palestine was the Jews. After the
ChurchillWhitePaperof1922diminishedJewishrights
EastoftheJordanRiver,PerfidiousAlbioncontinuedto
abuseitspositionasMandatoryPowerortrusteeinthe
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
should"facilitate"Jewishimmigration"intoPalestineso
that the Jews would ultimately become the majority
populationandtheJewishNationalHomecouldchange
35
intoareconstitutedJewishstate.The1939WhitePaper
would freeze Jewish population at about a one third
minority.Itcontemplatedagrantofselfgovernmentto
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
repudiationoftheBalfourDeclaration"andhereferred
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
thesaleofpropertyinPalestinetoJews.
TheMacDonald1939WhitePaperwasIllegal
36
But even more importantly, the League of Nations
PermanentMandatesCommissionwhosedutyitwasto
oversee the Mandatories appointed by the League, was
unanimous that the interpretation on which the 1939
White Paper was based was inconsistent with the
interpretationpreviouslyplacedonitbytheMandatory.
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
JewishState.
Underthetermsofthe1939WhitePaperasingleArab
majority state was contemplated by 1949, completely
abandoning the objective of the Balfour Agreement.
Thiswasaunilateralmeasurewithoutthepriorconsent
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
survivorsfromreachingsanctuaryinIsraeleventhough
the blockade had been determined to be illegal by the
Permanent Mandates Commission authorized to make
that determination. Its enforcement contributed to the
37
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]
In1947theBritishafterseekingmonetaryandmilitary
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 51state membership
oftheJewsownershipofthepoliticalrightstoPalestine,
nowreducedtoPalestinewestoftheJordanRiver.The
UN formed a special committee to determine what
should be done, because of the threatened violence of
theArabs.[33]
TheUNPartitionRecommendation
The UN General Assembly, after the Special Committee
completed its deliberations, enacted a resolution,
Resolution181[34]recommendingthatPalestineWest
of the Jordan should be divided into Arab and Jewish
statesandaCorpusSeparatum encompassingJerusalem
and surrounding religious holy sites. Such a
recommendation is of no continuing force and effect
38
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
immigrationofHolocaustsurvivors.
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
soonjoinedbysevenarmiesofsurroundingArabStates.
Some 450,000 to 700,000 Arabs fled without seeing a
singleJewishsoldieralthoughafewatRamleandLydda
were removed by the Jewish forces because after
agreeingtoanarmisticetheyhadresumedfightingand
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
askedthemtogetoutofthewayoftheinvadingarmies.
It predicted the defeat of the Jews in some two weeks
and assured them that the Arabs could then return.
Mahmoud Abbas (Abu Mazen) wrote an article in the
official organ of the PLO, "Filastin", complaining of this,
and that when the Arab armies lost, the refugees were
imprisoned in camps in the neighboring Arab states
[35]. Hazam Nusseibeh, who worked for the Palestine
Broadcasting Service in 1948, admitted being told by
Hussein Khalidi, a Palestinian Arab leader, to fabricate
39
theatrocityclaims.AbuMahmud,aDeirYassinresident
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.Wedidnotrealizehow ourpeoplewouldreact.
As soon as they heard that women had been raped at
Deir Yassin, Palestinians fled in terror." [36] This
massacrerumorwasalsoamajorcontributingfactorin
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
didnotwanttohaveaFifthColumnintheirmidst.The
treatiesthatweresignedwithEgyptdidnotreestablish
normal relations. It has been a cold peace. The peace
with Jordanhasperhapsbeenalittlebetter.
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
InternationalLawthisterritory,havingbeenwoninan
aggressivewar,thecaptureofthislanddidnotgainthe
invaders the political rights to it. Only Britain and
40
PakistanrecognizedJordanasholdingsovereigntyover
it.
Israeli liberation of Judea, Samaria and East
Jerusalem
In 1967, once again Arabs threatened to annihilate the
Jews.EgyptblockedIsraelishippingthroughtheStraits
ofTiranandmassedtanksandtroopsonitsborderwith
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
sayingthatiftheystoppedtheshellingtheyneednotbe
apartofthewar.JordandeclinedanditsarmyinJudea,
Samaria and East Jerusalem was driven back to the
JordanRiverbytheJews.
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,formedpoliticalpartiesandwereabletoself
govern.AnexceptionwastheMandateforIsraelwhere
theJewishPeoplewhohadbeendrivenoutofPalestine
and dispersed by the Romans, were recognized by first
the British, next the Allied Principal War Powers, and
41
finally, the members of the League of Nations as the
owners of the political rights because of their historic
associationwithPalestinebutinitiallyweretobesolely
a cestui que trust with regard to Palestine’s political
rights.There,thetacitstandardforendingtheMandate
by the vesting of the trust res was to be the attainment
ofaJewishpopulationmajorityintheareatheywereto
governandtheircapabilitytoexercisesovereignty.
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’ (DailyExpress) – ‘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.’TheObserver wrote: ‘It is no idle dream
that by the close of another generation the new Zion
maybecomeastate.’LeonardSteinat562,63 [42]
BeforeenactingthePartitionResolutionof1947,theUN
in effect found the Jews were capable of exercising
sovereignty. The resolution itself became only a failed
recommendation when rejected by the Arabs and the
42
partition resolution had no continuing force and effect.
When the trustee, Britain, abandoned its trust in May,
1948, thecestuique 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
theJordanwithintheArmisticeline wheretheywereto
rule.
In doing my research I learned of Woodrow Wilson’s
stand on the natural law concept of selfdetermination
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
anumericalmajorityinthefuture’. Hehad,hewenton,
great difficulty in seeing how President Wilson could
reconcilehisadherencetoZionismwiththe doctrineof
43
selfdetermination, to which Brandeis replied that ‘the
wholeconceptionofZionismasaJewishhomelandwas
a definite building up for the future as the means of
dealing with a world problem and not merely with the
dispositionofanexistingcommunity.‘Balfourgavethe
argument a slightly different turn at his interview with
Meinertzhagenafewweekslater.‘ [Meinertzhagenwas
also very proZionist.] He agreed . . . in principle,
Meinertzhagenwroteinhisdiary(30July1919),inthe
principle of selfdetermination, 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.’LeonardSteinatp.649
Finally, it turns out that Wilson’s Inquiry Commission
establishedSeptember1917,favoredtheJewishPeople
for the very reason that it was that people who
deservedselfdetermination.Infraatnote44.
LeopoldAmery,oneoftheSecretariestotheBritish
WarCabinetof19171918testifiedunderoathtothe
AngloAmericanCommitteeofInquiryinJanuary,1946
fromhispersonalknowledge[Tr.1/30/46,p112]that:
1. HebelievedthattheJewishNationalHomewasan
experimenttodeterminewhethertherewould
44
eventuallybeaJewishmajorityoverthewholeof
Palestine.
2. Hebelievedthattheterritoryforwhichpolitical
rightsweretoberecognizedwasintendedto
includeallofPalestinebotheastandwestofthe
JordanRiver.
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
45
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 Palestine
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:
“.‘‘speakingasamemberoftheArabOffice—andI
believeasthelastwitnesswhowillappearontheArab
side—Ithinkitisrighttoemphasize,without
elaboratingwhatneedsnofurtherelaboration,the
unalterableoppositionoftheArabnationtotheattempt
toimposeaJewishStateuponit.Thisoppositionis
basedupontheunwaveringconvictionofunshakeable
rightsandaconvictionoftheinjusticeofforcingalong
settledpopulationtoacceptimmigrantswithoutits
consentbeingaskedandagainstitsknownand
expressedwill;theinjusticeofturningamajorityinto a
minorityinitsowncountry;theinjusticeofwithholding
46
selfgovernmentuntiltheZionistsareinthemajority
andabletoprofitbyit.P.80 [43]
ThelateProfessorJuliusStonewasrecognizedasoneof
thetwentiethcentury'sleadingauthoritieson
Internationallaw.His “IsraelandPalestine,Assaulton
theLawofNations”whichappearedin1980,presented
adetailedanalysisofthecentralprinciplesof
internationallawgoverningtheissuesraisedbythe
ArabIsraelconflict.”Buildingonprinciplesof
InternationalLaw,he showedthattheJewish
settlementswerenotillegal.Basedonthatopinionthe
USDepartmentofStatechangedtheviewithad
providedPresidentCarter.ButStone’sviewdidnot
takeintoaccounttheprinciplesofequity jurisprudence
madeapplicablebyArticle22referredtointhe
preambleofthePalestineMandate.Hedoespointout
that“NotonlydoesJordanlackanylegaltitletothe
territoriesconcerned,butthe[Geneva]Convention
itselfdoesnotbyitstermsapplytotheseterritories.For,
underArticle2,the[4
th
Geneva]Conventionapplies"to
casesof…occupationoftheterritoryofaHigh
ContractingParty,byanothersuchParty". Insofaras
theWestBankatpresentheldbyIsraeldoesnotbelong
toanyotherState,theConventionwouldnotseemto
applytoitatall.”[44]Hedoesn’tpointoutthatinfactit
belongstotheJewishPeopleasdoestheStateofIsrael
thatisnot“anotherparty”sothatthecorrect
characterizationisnotonly “occupied”asinmilitary
occupation. Rathersince“occupied”carriesthe
47
pejorativemeaningofbelligerentoccupation,abetter
descriptivewouldbe“liberated.”
PoliticsandtheJewishpoliticalrightstoPalestine
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
underInternationalLawthathadbeenrecognized,first
by the Principal War Powers, and then by 52 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
bythe51countriesintheLeagueofNationsandbythe
US, who had declined membership — a total of 52
countries. But the thrust of the Labour Government
claimwasnottheSanRemoAgreementbutunderfacts
occurring in 1948 and thereafter. The Israeli
Government said that Jordan's aggression in 1948
resulted in Jordan never obtaining sovereignty over
Judea,SamariaandEastJerusalem.Sowhenin1967ina
defensivewar,itdrovetheJordaniansoutofthatarea,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
48
San Remo Resolution and the Mandate for Palestine. It
onlyhintedatit.
Now, Douglas Feith, Jacques Gauthier, Howard Grief,
Salomon Benzimra, Cynthia Wallace, former Israel
Supreme Court Justice Levy and his two distinguished
colleagues, Alan Baker, Tshia Shapira, the late Julius
Stone and I are directly 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
1917whentheBritishadopteditsBalfourpolicyandit
became International Law on the agreement of the
Principal War Powers at San Remo in 1920 after
considerationofboththeclaimsoftheArabsandthatof
theJewstothepoliticalornationalrightstoPalestine.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
thoseclaimsatSanRemoindetailintheorderthatwas
calledtheLeagueofNationsMandateforPalestine.Itis
based on the legal doctrines of "acquired rights" and
"estoppel"thatprohibitsanystatefromdenyingwhatit
previously admitted or recognized in a treaty or other
internationalagreement.ItisbasedonArticle80ofthe
UNCharterthatpreservespoliticalrightsthathadbeen
recognized by the United States and Principal Allied
49
Powersinthe1920s.WhileChaimWeizmannandsome
of the Zionist Organization had been willing to give up
those rights, many had never agreed to it and split off
intoanotherorganizationheadedbyJabotinsky.
Even despite accepting the later loss of Transjordan,
ChaimWeizmann,instrumentalinobtainingtheBalfour
Declaration,wasdelightedwithwhatwasleft.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
peoplesincetheExile."
What importance do the Arabs place on the Balfour
Declaration? A reviewer of "TheIronCage:TheStoryof
the Palestinian Struggle for Statehood" [38] a book by
Columbia Professor Rashid Khalidi who formerly was a
spokesman for the PLO, says "Khalidihashisownsetof
externalculprits,beyondtheblameheiswillingtoaccept
fortheArabsforthenabkaorcatastropheastheycallit."
The very first of the three listed is "British colonial
masters like Lord Balfour, who refused to recognize the
national[political]rightsofnonJews;..." [39]
What then is the rule under International Law? It is
"There is no legal claim to national selfdetermination
for Palestinian Arabs west of the Jordan River other
than as peaceful citizens in a democratic structure
coveringtheareaasawhole."[40]
50
Israel'sLegitimacyinLawandHistory, note#12supra,
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 Paramount
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]
51
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, I hope, a little easier
to understand. The law of trusts is incorporated in the body of
equity 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.
It 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 Montevideo 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 until recently
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 not liberated
until 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
52
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 a
partial fulfillment of the trust set up by the Mandate..
The second myth is that the "Palestinian People" is a real rather
than an invented "people" and that they want a right to self-
determination under 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 the requirement of
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 even 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
53
Authority.
Palestinian Self-Determination under natural law
and International Law
In President Obama's recent trip to Israel, he told the students there
[having excluded students from outside the Green Line] that the
Palestinian People had an inalienable right to self-determination.
But he also repeated to Americans many times that if they liked
their health care policies, under ObamaCare they could keep them.
Neither is correct. The UN General Assembly made the same error
on Palestinian self-determination in its Resolution 3236. This
might be true under natural law, but is it the rule under
International Law?
Does every "people" have a unilateral right to self‐determination
under International Law? Not the Kurds, nor the Basques. If not,
why should the Arab people living in Palestine have that right?
One of the two major arguments the alleged "Palestinian People"
make to justify their claim is that under International Law they are
a "people" and are therefore entitled to self-determination under
International Law. In order to exercise self-determination,
according to this logic, international law gives them the right to
their own state. Of course Arabs residing in Palestine are not a
genuine "people". As noted herein they were invented in 1964 in
Moscow by the Soviet dezinformatsiya. Zahir Muhsein, a member
of the PLO Executive Board admitted in 1977, there is no such
thing as a unique "Palestinian People". He said, and we agree,
they are no different from the Arabs in surrounding countries. The
term "Palestinian People" he has admitted, is used only as a
political ploy. In 1920 there was no "Palestinian People" that made
a claim on any of the territory relinquished by the Ottoman Empire
in the Treaty of Lausanne -- only an Arab People. The Arab
54
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.
But before we examine the basis for any current claim of a
genuine "people" let us look at the claim for statehood for the
Jewish People based on the right of the Jewish People to self-
determination as it looked to the Allied Principal Powers who
considered it in 1920.
According to the late Julius Stone, the widely acclaimed Australian
international lawyer, "That the provision for a Jewish national
home in Palestine was an application of the principle of self-
determination is manifest from the earliest seminal beginning of
the principle. The Inquiry 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] The
Inquiry was a study group established in September 1917
by Woodrow Wilson to prepare materials for the peace negotiations
following World War I. The group, composed of around 150
academics, was directed by presidential adviser Edward House and
supervised directly by philosopher Sidney Mezes. The Heads of
Research were Walter Lippmann, who was later replaced by Isaiah
Bowman. The group first worked out of the New York Public
Library, but later worked from the offices of the American
55
Geographical Society of New York, once Bowman joined the
group
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,
namely Syria, Mesopotamia and Palestine. It was aimed at their
decolonization. It was not meant to deal with open ended
secession. Only 53 years before, the United States had suffered
combat casualties of 215,000 and total casualties of 625,000 in the
American Civil War in denying to the Southern Confederacy the
right of secession. The American Revolutionary War, on the other
hand, was a war to obtain American self--‐determination by
decolonization. So American history itself supports self-
determination obtained by decolonization but not when sought by
secession where the territorial integrity of a sovereign state is at
issue.
Territorial integrity of the sovereign state had been the mainstay of
the new world order established after the Peace of Westphalia in
1648. It is considered inviolable. Under the current rule of
International Law "Without the consent of the existing state, the
international community will not recognize secessionist territories
as sovereign and independent States.* * * There is no general right
of secession in international law. The principle of sovereign
56
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
sovereign states to territorial integrity except when the right of
self-determination of peoples can be met by a decolonization. A
decolonization can be carried out without affecting the boundaries
of a state.
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
57
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. in 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.
In 1970, the UN General Assembly spoke again on self-
determination in the Declaration On Principles Of International
Law Concerning Friendly Relations And Co-Operation Among
States In Accordance With The Charter Of The United Nations. It
provided: "By virtue of the principle of equal rights and self-
determination of peoples enshrined in the Charter of the United
Nations, all peoples have the right freely to determine, without
external interference, their political status . . ." But it also said: "
Every State shall refrain from any action aimed at the partial or
total disruption of the national unity and territorial integrity of any
other State or country." [emphasis added] The most serious
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
58
the case in a decolonization. Political scientists, philosophers and
those in the discipline of public administration have been
suggesting that the right of self-determination should be available
unilaterally even under secession. The theory attracting the most
followers appears to be that of Allen Buchanan a philosopher at the
University of Wisconsin. He would preserve the strong priority of
territorial integrity of sovereign states over the right of a people to
self-determination but permit secession only as a remedy of last
resort for a "people" when a majority in a state is badly oppressing
a minority with the threat of genocide or cultural extinction. See:
Buchanan, The International Institutional Dimension of Secession
in Lehning, Theories of Secession at pp. 241-247, justifying the
need for a priority for territorial integrity. Other non-lawyers would
not even require that an entire "people" want to secede but would
permit it for any cohesive group nor would they require it to be a
last resort. They do require that it be fair to the minority in the
territory removed as well as not 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
59
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
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
60
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% - 50%.
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
61
power to restore, and ensure, as far as possible, public order and
safety, while respecting, unless absolutely prevented, the laws in
force in the country."
Jordan never gained sovereignty over any land west of the Jordan
River because it had captured it in an aggressive war. No Arab
state recognized Jordan as the sovereign of this territory. In the
whole world only two states recognized Jordan as sovereign over
territory in the West Bank because to do so would violate
International Law of long standing custom as well as the UN
Charter.
Eretz Yisrael, the Jewish People's Sovereign State
The Government of Israel, the agent of World Jewry has asserted
sovereignty over East Jerusalem but not over Judea and Samaria.
But those areas also meet the tacit test of the Mandate for vesting
of a legal interest in the political rights to those territories. Israel
has already asserted its sovereignty over East Jerusalem. And
whether the Government of Israel asserts sovereignty or not, 1, The
Jewish People have control over Judea and Samaria subject only to
the OSLO agreement — an agreement that neither Israel nor its
principal need continue to observe because of its material breach
by the Arabs, and 2. The Government of Israel has asserted
sovereignty over East Jerusalem that the so called Palestinians
claim. That means that the Israel territorial boundaries would have
to be redrawn to accommodate the territory the Palestinian
Authority demands.
Russia's Role
62
Since 1950 the Soviet Union has sought domination of the Middle
East as a stepping stone to hegemony over Western Europe
according to the late Eugene Rostow, Dean of the Yale Law School
and Professor of International Law in Palestinian Self-
Determination: Possible Futures for the Unallocated Territories of
the Palestine Mandate (1980)
"For nearly thirty turbulent years, the Soviet Union has sought
control of this geo‐political nerve center in order to bring Western
Europe into its sphere. Even if Soviet ambitions were confined to
Europe, Soviet hegemony in the Middle East would profoundly
change the world balance of power. But Soviet control of the
Middle East would lead inevitably to further accretions of Soviet
power if China, Japan, and many smaller and more vulnerable
countries should conclude that the United States had lost the will
or the capacity to defend its vital interests, . . ."
* * *
"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
63
by the first 422 members of the Palestinian National Council, each
hand‐picked by the KGB. In WWI the Palestinian Arabs were
offered self‐government if they fought on the side of the Allies --
they didn't; some fought for the Ottomans. In 1947 Count Folke
Bernadotte found the Palestinian Arabs were not interested in
nationalism and never had been. And in 1973 Zahir Muhsein, a
member of the Executive Board of the PLO admitted to a Dutch
newspaper that there was no Palestinian "People" -- it was only a
political ploy and that once the Jews were annihilated, the PLO
would merge with Jordan. The circumstances surrounding the
drafting of the 1964 PLO Charter and its corroboration we have
from the personal knowledge of Major‐General Ion Pacepa, the
highest ranking defector from the Soviet bloc during the Cold War.
Even if they were a real People, the Palestinians in the Jewish
People's State are not threatened with genocide nor cultural
extinction. Each year the Palestinian population grows larger.
Arabic is a second official language of Israel. The Arabs control
their own schools and use them to incite against the Jews.
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.
64
Vietnam Redux
Of the two biggest threats to Israel, one is a nuclear Iran. The other
is the split in the unity of the Jewish People in Israel and the
diaspora over Judea and Samaria.
It was Brezhnev who pushed Arafat to drop the slogan that the
PLO was going to annihilate the Jews or push them into the sea,
and instead claim they were liberating the Palestinian People; to
pretend to renounce violence and pretend to seek peace. The
Vietnamese General Giap also counseled him to do this to split the
unity of the American people — it had worked so well for North
Vietnam.
(http://www.discoverthenetworks.org/viewSubCategory.asp?id=46)
When Netanyahu approves the Levy Report and asserts Jewish
sovereignty over Judea and Samaria, the question of statehood for
the so 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)
ENDNOTES
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http://elderofziyon.blogspot.com/2012/07/english
translationof legal
65
arguments.html?goback=%2Egde_3188536_member_1
34228375
2.FourthGenevaConvention,Article49,
http://www.refworld.org/cgi
bin/texis/vtx/rwmain?docid=3ae6b36d2
3.SanRemoResolution,
http://www.cfr.org/israel/sanremo
resolution/p15248
4.BalfourDeclaration,
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D9E1D052565FA00705C61
5.BritishMandateforPalestine,(1922)
SeeHertz,"MandateforPalestine,"AppendixA,
http://www.mythsandfacts.org/conflict/mandate_for_p
alestine/mandate_for_palestine.htmor
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html.html.Bothversionsincludemapsandadditional
material.
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QuestionoftheOldCity,submittedbyDr.Jacques
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7.HowardGrief,LegalFoundationsandBoundaries of
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aspx/11408.Part2:
66
http://www.israelnationalnews.com/Articles/Article.a
spx/11412.
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11.
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34228375
12.Israel'sLegitimacyinLawandHistory, editedby
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tosamaria.html
14.DouglasFeith,"AMandateforPalestine,"
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/Israel_and_palestine_mandate_for_israel.htm.Elliott A.
Green,"InternationalLawregardingtheStateofIsrael
andJerusalem,"ThinkIsrael.org,http://www.think
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(1981)JohnsHopkinsUniversityPress,Baltimoreand
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lawandthearabisraelconflict#2
67
15b.TheodorMeronlegalopinion:
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e48485.pdf
16.TaliaSassonreport:http://rt.com/news/sasson
israelsettlementmoney089/
17.
http://elderofziyon.blogspot.com/2012/07/english
translationoflegal
arguments.html?goback=%2Egde_3188536_member_1
34228375
18.http://www.un.org/en/documents/udhr/
19.AlanBaker,"TheSettlementsIssue:Distortingthe
GenevaConventionandtheOsloAccords,"
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distortingthegenevaconventionandtheoslo
accords/
20.LevyReport,EnglishTranslation,supra.Note#1.
21.UNGAResolution181,1947Partition
Recommendation
http://www.yale.edu/lawweb/avalon/un/res181.htm
22.http://www.un.org/en/documents/charter/chapter
12.shtml
23.HowardGrief"LegalRightsandTitleofSovereigntyof
theJewishPeopletotheLandofIsraelandPalestine
underInternationalLaw"
http://www.acpr.org.il/ENGLISHNATIV/02
issue/grief2.htm[bracketedmaterialadded]
24.Lee,TheMandateforMesopotamiaandthePrinciple
ofTrusteeshipinEnglishLaw, (1921)LeagueofNations
Union,ForgottenBooksCriticalReprintSeries(2012).
68
SeealsotheInternationalCourtofJusticedecisionin
theNamibiacase,LEGALCONSEQUENCESFORSTATES
OFTHECONTINUEDPRESENCEOFSOUTHAFRICAIN
NAMIBIA(SOUTHWESTAFRICA)NOTWITHSTANDING
SECURITYCOUNCILRESOLUTION276(1970)Advisory
Opinionof21June1971
25.http://www.nytimes.com/learning/general/onthisd
ay/big/1111.html#article
26.http://www.mideastweb.org/zionistborders.htm
27.TreatyofSevresArticle95,
http://www.hri.org/docs/sevres/part3.html
28MemorandumfromLordBalfourtoLordCurzon,
August11,1919,Documentnumber242from:EL
WoodwardandRohanButler,DocumentsonBritish
ForeignPolicy,19191939.(London:HMStationery
Office,1952),340348.
29.Kirkbride,ACrackleofThorns,Chapter3
30.Friedman,Palestine:ATwicePromisedLand,Vol.1:
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31.Sacher,TheEstablishmentofaJewishState,London
(1952),HyperionReprintedition,1976
32.Benzimra,TheJewishPeoplesRightstotheLandof
Israel.,note#8
33.See:"ActsofAggressionProvoked,Committed,and
PreparedbyArabStatesinConcertwiththePalestine
ArabHigherCommitteeagainsttheJewishPopulationof
PalestineinanAttempttoAlterbyForcetheSettlement
EnvisagedbytheGeneralAssembly'sResolutiononthe
FutureGovernmentofPalestine,"memorandum
submittedbytheJewishAgencyforPalestinetothe
69
UnitedNationsPalestineCommission,Feb.2,1948;
MosheShertok,"LetterfromtheJewishAgencyfor
PalestineDated29March1948,Addressedtothe
SecretaryGeneralTransmittingaMemorandumonActs
ofArabAggression,"UNSC,S/710,Apr.5,1948.
http://domino.un.org/pdfs/AAC21JA12.pdf
34.UNGARes181,RecommendingPartition,note#21,
supra.
35.WallSt.Journal,
http://www.democraticunderground.com/discuss/du
board.php?az=view_all&address=124x352032
36.MythandFact
http://www.jewishvirtuallibrary.org/jsource/myths3/
MFrefugees.html
37.http://jhvonline.com/jerusalemourredeemable
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96.htm
38.TheIronCage:TheStoryofthePalestinianStruggle
forStatehood byRashidKhalidi(Oct15,2006)
[bracketedmaterialadded]
39."AssessingtheRolePalestiniansHavePlayedinthe
FailedBidforStatehood,"StevenErlanger,NYTimes,
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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
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70
42. Leonard Stein, TheBalfourDeclaration. Pp. 562, 63.
649.
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http://www.aijac.org.au/news/article/international
lawandthearabisraelconflict
71
Claims of the Jewish and Arab Peoples under International Law to the Right of Political Self-Determination in Palestine
Wallace Edward Brand
Independent
January 25, 2014
Abstract:
This paper shows why, under International Law, the Jewish People have sovereignty over Palestine west of the Jordan River and the Arab people residing in Palestine calling themselves "The Palestinian Arab People" do not. It corrects the misimpression that the roots of Israel's sovereignty under International Law was UN Resolution 181, the Partition Resolution of 1947.
Number of Pages in PDF File: 71
working papers series
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