Israeli Sovereignty Over Jerusalem Judea and Samaria

Israeli Sovereignty Over Jerusalem Judea and Samaria

A summary of facts in support of Israel’s lawful exercise of sovereignty over East Jerusalem, Judea and Samaria

It is widely accepted, but not correct, that the West Bank belongs to the local Arabs in Palestine who call themselves Palestinians. Israel’s position has not recently been fully stated. At most, it is said that no one has sovereignty over the West Bank. A better view is that the Jews obtained a beneficial interest in sovereignty over all of Palestine in 1922 by enactment of the Palestine Mandate,[1] entrusting it to Britain and on the abandonment of its trusteeship by Britain in 1948,[2]Israel obtained the political rights over which it theretofore had had a beneficial interest so that it had sovereignty under International Law as granted by the British Mandate. Later, in 1924, the British Mandate became the domestic law of England and the US as I explain below.

In 1920 the Ottoman Empire in Article 95 of the Treaty of Sevres,[3] granted its sovereignty in Palestine, which had been undisputed for 400 years, to a trustee in trust for a National Homeland for the Jews. The trustee selected by the League of Nations was Great Britain. (Sovereignty, i.e. political rights, over the other 99% of the lands captured from the Ottomans in the Middle East and the Maghreb was allocated to Arabs and Muslims.) It was in fact expected that the Jewish Homeland would eventually become a state when immigration gave the Jews a majority of the population, but at the time the Jews were incapable of exercising sovereignty although the “Jewish Agency” was exercising administrative authority of wide scope. In the ’20s, the US was not a member of the League but a joint resolution of Congress on June 30, 1922 adopted and approved the League of Nations selection of trustee and its grant of authority.[4]

It all started in 1917 when Lord Balfour, the British Foreign Secretary, issued his famous “Declaration”[5] with the consent of the cabinet. In it he said that after WWI, when the Allies were victorious, Palestine should be designated a National Homeland for the Jews. The political rights, i.e. sovereignty over Palestine should be held in trust for the Jews until they were capable of exercising sovereignty. There was considerable sympathy among many Christian Evangelicals in England who thought the Jews should be restored to Palestine. British workmen, however, had complained that Jews were flooding in to England and taking their jobs and working for less. This led to the Aliens Act of 1909 restricting Jewish immigration into England.[6] But the British recognized that the oppression of the Jews in Russia and Poland was very bad and they needed some place to go. And England also desired that the Jews in Russia influence the new Marxist government to remain in WWI on the side of the Allies.

Chaim Weitzman, an ardent Zionist and also a good chemist had helped Britain in the war by developing an inexpensive method of manufacturing acetone used in cordite for munitions and had given it to the British. It was a great help to the British war effort.

WWI ended with the Allies having captured all the Ottoman Empire lands in the Middle East and North Africa (the Maghreb). In a conference in 1920 at San Remo,[7] the Allies adopted Lord Balfour’s declaration as Allied Policy and it was sent to the League of Nations for a proclamation called “The British Mandate” that became International Law.[8] The UN later called the same arrangements “trusteeships”.[9] It restricted the Jews, when they did exercise sovereignty, from doing anything that would impair the civil or religious rights of the Arabs but was silent as to the political rights of the Arabs. In the San Remo Conference it was also decided to give Arabs and Muslims sovereignty over 99% of the lands captured from the Ottomans. Palestine was the last 1%.

The Mandate Law also became the domestic law of the UK and the US in 1924 when the Mandate became the subject of the Anglo American Convention of 1924.[10] Perfidious Albion did not maintain its trust for very long. Circumstances changed, British interests changed, and the British Government also changed. Great Britain was charged in the press with giving sovereignty over Palestine to three different groups, the French in the Sykes-Picot agreement,[11] the Arabs in the McMahon-Hussein correspondence,[12] and the Jews in the Balfour Declaration.[13] The latter was adopted by the WWI allies in the conference at San Remo and in 1924 by the League of Nations as the British Mandate. Careful scrutiny would show the charges were not true but rarely does the press give anything careful scrutiny and world opinion was much against England.

England had installed Feisal as the King of Syria.[14] After the Battle of Maysalun, in which the French Armed Forces defeated the Syrian Army the French deposed Feisal.[15] Abdullah, Feisal’s brother, was furious. He marched his troops from their home in the Hejaz (in the Arabian Peninsula) to Eastern Palestine and made ready to attack the French in Syria. Churchill did not want war between the Arabs and the French. He gave Feisal the Kingdom of Iraq as a consolation prize[16]and gave Abdullah Eastern Palestine in violation of the British Mandate.[17] The Mandate had prohibited the Mandatory from ceding any land to a foreign nation. In Article 25 it approved delaying settlement East of the Jordan River, but prohibited the Mandatory Power from discriminating among races.[18] The land East of the Jordan River became TransJordan and then Jordan and the Mandatory, despite the specific terms of the mandate, prohibited Jews from settling there.

The publicity generated about Lawrence of Arabia and the Arabs help to the Allies by Lowell Thomas contributed to the decision[19] but in fact the story was overblown to sell newspapers. The Arabs local to Palestine, unlike the Arabs from the Arabian Peninsula that had been led by Lawrence, had declined the British offer of political self determination and had preferred to fight for the Ottomans who ruled from Constantinople. According to Winston Churchill, in his Remarks in the House of Commons opposing the White Paper of 1939,[20] “The Palestinian Arabs, of course, were for the most part fighting against us, …” “However the Jews assembled several battalions of Jewish soldiers that fought alongside the British in Palestine.”

At that point the Jews had, de facto, lost 77% of their Mandated beneficial right to sovereignty in Palestine. Only 23% of Palestine was left.

Article 80 of the UN Charter[21] had preserved the rights that had been granted by the League of Nations prior to its demise. In 1947 nevertheless, the UN recommended (not a grant inconsistent with the Mandate) a partition that offered a part of the area West of the Jordan (a part of the 23% remaining) to the Jews, in effect, releasing that part of the trust res to them, and the remainder to the local Arabs although the latter was unauthorized by the Mandate.

In the San Remo Resolution, the Allies agreed

“To accept the terms of the Mandates Article as given below with reference to Palestine, on the understanding that there was inserted in the process-verbal an undertaking by the Mandatory Power that this would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine;”[22]

What were those rights? The Mandate preserved the civil and religious rights of the local Arabs but did not create any political rights for them. It did not and could not “preserve” any political rights in Palestine for local Arabs in Palestine as they had never in history had any. As to political rights, the local Arabs were no worse off than they were under the Ottoman rule from 1520 to 1920, the British suzerainty from 1920 to 1948, or the Jordanian rule from 1948 to 1967.

In 1948, the Jews accepted the UN recommendation and promptly proclaimed independence.[23]The Arabs declined. They wanted all of the land. As noted above, in 1920 the Arabs and Muslims had been awarded political rights in 99% of the captured Ottoman land. Political rights for only 1%, Palestine, was awarded to the Jews.

Under those circumstances, what can be said about the territory, recommended to be awarded to the Arabs but which they declined? After Churchill gave Transjordan to Abdullah, the Arabs and Muslims had 99.77% of the captured Ottoman lands in the Middle East and the Maghreb and the Jews only 0.23%.[24] But the Arabs didn’t want the Jews to have any because it violated Islam to have any inroads on the Dar-al-Islam.[25] They engaged in jihad against the Jews and the Arab Higher Committee brought in the Armies of the surrounding Arab and Muslims States. In 1948 the Trustee had abandoned its trust and its suzerainty was thereby ended. Therefore International Law under the doctrine of “acquired rights” favors the claim of Israel over the remaining trust res, i.e. political rights over Palestine, i.e. sovereignty including sovereignty over the West Bank granted by the League of Nations.[26]

“Howard Grief’s excellent exposition Legal Foundation and Borders of Israel under International Law and his shorter articles[27] are basic to the subject matter at hand. I have been guided by his work. He states that the “acquired rights” doctrine in International Law is codified by the 1969 Vienna Convention on the Law of Treaties. It provides, in Article 70 1. (b) for the consequences of the termination of a treaty.”

Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention: does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.

Was the National Homeland for the Jews referred to in the Mandate intended to be a proposed Jewish State encompassing all of Palestine, or a smaller enclave within Palestine?

The Report of the Anglo-Anglo American Inquiry held in 1946 suggests in paragraph 1 of Chapter V [Jewish Attitude] that the demand for a Jewish State goes beyond the policy of Lord Balfour and the grant of the League of Nations in the British Mandate. But its only justification for that view, according to its report, was its claim that in late 1932 the chairman of the Jewish Agency, Nahum Sokolow had disowned that view.

The Anglo American inquirers overlooked the following history:

By 1922 the British Government’s interests had changed and the government had changed. It was defending itself from charges that it had conferred political rights to the same land to the French, the Arabs and the Jews in three different agreements, the Sykes-Picot agreement, the McMahon-Hussein correspondence, and the Lord Balfour Declaration. So in 1922, Churchill, in a White Paper, tried wiggle out of England’s obligation by hinting broadly that a “national home” was not necessarily a state. However in private, many British officials agreed with the interpretation of the Zionists that a state would be established when a Jewish majority was achieved.[28]

In the British cabinet discussion during final consideration of the language of the Balfour Declaration, in responding to the opposition of Lord Curzon, who viewed the language as giving rise to the presumption that Great Britain favored a Jewish State, Lord Balfour stated:

“As to the meaning of the words ‘national home’, to which the Zionists attach so much importance, he understood it to mean some form of British, American, or other protectorate, under which full facilities would be given to the Jews to work out their own salvation and to build up, by means of education, agriculture, and industry, a real center of national culture and focus of national life. It did not necessarily involve the early establishment of an independent Jewish State, which was a matter for gradual development in accordance with the ordinary laws of political evolution.” The key word here was ‘early'; otherwise, the statement makes it quite clear that Balfour envisaged the eventual emergence of an independent Jewish state. Doubtless he had in mind a period somewhat longer than a mere thirty years; but the same could also be said of Chaim Weitzman.”[29]

According to Lloyd George, one of Churchill’s contemporaries, for example, the meaning was quite clear:

“There has been a good deal of discussion as to the meaning of the words “Jewish National Home” and whether it involved the setting up of a Jewish National State in Palestine. I have already quoted the words actually used by Mr. Balfour when he submitted the declaration to the Cabinet for its approval. They were not challenged at the time by any member present, and there could be no doubt as to what the Cabinet then had in their minds. It was not their idea that a Jewish State should be set up immediately by the Peace Treaty without reference to the wishes of the majority of the inhabitants. On the other hand, it was contemplated that when the time arrived for according representative institutions to Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth. The notion that Jewish immigration would have to be artificially restricted in order to ensure 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.”[30]

If there is any further doubt in the matter, Balfour himself told a Jewish gathering on February 7,1918: “My personal hope is that the Jews will make good in Palestine and eventually found a Jewish state. It is up to them now; we have given them their great opportunity.”[31]

A “Mandate” and a “Trusteeship” were essentially the same suzerainty. The mandate name was abandoned by the UN in favor of “trusteeships” in order not to have the stigma of the moribund League of Nations to carry in its baggage.

Following an opinion of the renowned international lawyer Julius Stone that focused on the settlement question,[32] President Reagan and succeeding Presidents through George W. Bush maintained a US view that the Jewish Settlements in the West Bank were legal but as a policy matter should be discouraged because of their tendency to discourage the Peace Process. President Obama while continuing the position on policy has not specifically stated his view on legality of the settlements.

As to Jerusalem, East Jerusalem fell in 1948[33] to an attack of the Arab Legion supplied and trained by the British and led by Sir John Bagot Glubb frequently referred to as “Glubb pasha”. The Arab Legion later became the Jordanian Army.

The Jordanians demolished 58 synagogues and their contents, uprooted the tombstones of Jewish cemeteries, and used them for paving or building latrines, and built a latrine against the Western Wall of the Temple Mount, the single most holy site for Jews.[34] They expelled all the Jewish inhabitants of East Jerusalem and it became, as Adolph Hitler liked to say, judenrein or cleansed of Jews. In 1967 in the Six Day War, Israel drove the Jordanians east to the Jordan River and became in control of East Jerusalem.[35] They did not use their conquest to deprive the Moslems access to their holy sites in East Jerusalem as the Jordanians had done to the Jews and Christians.

Are the Jews Judaizing the city of Jerusalem? How can that be? The Jewish population was 74% in 1967 and now it is down to 66% with the Arab population growing from 23% to 32% and the Christian population, currently 2%. However the Jews are going back into East Jerusalem where they had been driven out in 1948. If anyone is doing ethnic cleansing, it is the Arabs. It appears to the Israelis, therefore, that Obama and Ban Ki Moon wants to keep East Jerusalem judenrein.

In fact you read in the news and hear on TV a lot about Jewish settlements outside of Jerusalem, but have you ever seen or heard a reference to new Arab settlements there? Since 1950 more than twice as many new settlements have been built by Arabs in the West Bank as have been built by Jews,[36] totally ignored by the press. They fill them with Lebanese, Iraqis, Jordanians and Egyptians, and mirabile dictu they are Palestinians. I think the Arabs must have changed the name of the area from Judea and Samaria to the “West Bank” so they wouldn’t look silly in claiming that the Jews were illegally settling in Judea.

Wallace Edward Brand is a retired lawyer living in Virginia.