CLAIMS OF THE JEWISH AND ARAB PEOPLES UNDER INTERNATIONAL LAW TO THE RIGHT OF POLITICAL SELF-DETERMINATION IN PALESTINE by Wallace Brand

CLAIMS OF THE JEWISH AND ARAB PEOPLES UNDER INTERNATIONAL LAW TO THE RIGHT OF POLITICAL SELF-DETERMINATION IN PALESTINE by Wallace Brand Introduction Most people don't understand that Palestine, or at least the alleged "Palestinian People," has no right to be sovereign even though they read UN Conventions dealing with the right of a “people” that appear to say any "people" has the right to self-determination. They haven't obeyed the scholar's imperative: "read on" to where the Charter provides for "sovereign equality". These are the legal code words guaranteeing the territorial integrity of sovereign states. CNH Long became the Dean of the Yale Medical School. When he was a freshman at Oxford, one of his friends found in the 600 year old 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 Electronic copy available at: http://ssrn.com/abstract=2385304 2 punished. One of the students pointed to the rule, the Wardens replied: “Read on.” and pointed to another rule two pages on that provided: “When practicing archery one must be wearing Lincoln Green. So Long and the other students were punished. They should have read further. By the 70s the natural law provision entitling a “people” to selfdetermination 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? Electronic copy available at: http://ssrn.com/abstract=2385304 3 Most people reading it assumed that the UN General Assembly was like the Congress. They assumed that when the UN General Assembly enacted a resolution, it became a part of international law. That is not so and the Mallisons did nothing to disabuse them of that assumption. These UN General Assembly resolutions are only recommendations. If they are accepted by all parties to a dispute, the parties may enter into a treaty. That becomes a part of international law. See e.g. The Effect of Resolutions of the U.N. General Assembly on Customary International Law by Stephen M. Schwebel, deputy legal advisor to the US Department of State in Proceedings of the Annual Meeting (American Society of International Law), Vol. 73(APRIL 26-28, 1979), pp. 301-309. He said: "It is trite but no less true that the General Assembly of the United Nations lacks legislative powers. Its resolutions are not, generally speaking, binding on the States Members of the United Nations or binding in international law at large. It could hardly be otherwise. We do not have a world legislature. If we had one, hopefully it would not be composed as is the General Assembly on the basis of the unrepresentative principle of the sovereign equality of states, states which in turn are represented by governments so many of which are themselves not representative of their peoples. "As the [United States] Secretary of State recently put it: 'In considering the decision making process in the United Nations, it is important to bear in mind that while the one-state, one-vote procedure for expressing the sense of the General Assembly is from many points of view unsatisfactory, the incorporation of this principle in the Charter was balanced by giving the Assembly only recommendatory powers.'" Schwebel went on to say there were some International Lawyers 4 that tried to fit recurring statements in UN Resolutions into the category of long standing custom or practice between or among states. The Mallison legal opinion assumed that the UN Partition Resolution was a part of International Law. It divided Palestine west of the Jordan River into three parts. One part went to the Jews, one part to the Arabs, and one part was to become, at least initially, a "corpus separatum" to be ruled by a Committee of the UN. That was the Jerusalem area -- containing many religious sites that were holy for all three major religions. That the legal opinion was a gross distortion of international law outraged Julius Stone, an Australian,world recognized international lawyer. In response he wrote a book published in 1981 entitled Israel and Palestine: Assault on the Law of Nations. In it he showed that the Major UN General Assembly Resolutions were not international law because Resolution 181, the Partition Resolution, although accepted by the Jews was not accepted by the Arabs and therefore it died at birth. For that reason the Jews were not limited to the territory they were assigned in Resolution 181. Also, the Jews were not illegally in the Jerusalem area because the corpus separatum also died at birth along with Resolution 181. Mallison's legal opinion also opined that Arabs residing in Palestine had, under international law, a right to self-determination. But that right has never been awarded under international law in the case of attempted secession where its application would have empowered the UN to redraw the boundaries of an existing sovereign state. It has only been applied to cases of decolonization. Mallison ignored that all of Palestine west of the Jordan River was recognized by some 53 states in 1922 as being owned by the Jews when they approved the Palestine Mandate. Some 52 were members of the League of Nations that approved it as a treaty and the United States that wasn't a member of the League approved it 5 by a Joint Resolution of Congress in 1922 and in a separate treaty, the Anglo-American Convention of 1924. 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 selfdetermination, they would place these political rights in trust, not to vest until the Jews had both a population majority as well as the 6 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 7 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 8 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 talk for "the issue has already been decided". We tell you below who the judges were, what gave them jurisdiction or authority to make the decision, when the competing claims were received and when they were acted upon, how the Judges communicated their decision, and why the decision was to provide a twostep process, first a Jewish National Home and then a Jewish State. The recent Levy Report is one of a series of legal opinions by several people, each independently reaching the same conclusion. This is the conclusion that World Jewry has had as of 1920, a Jewish National Home in all of Palestine, or since 1922 at least in that 9 part of Palestine west of the Jordan River. That National Home was always intended to be a prelude to a reconstituted Jewish State in Palestine. It was a part of the mandate system provided for in the League of Nations Covenant or charter, Article 22. These mandated areas were areas ruled from afar for many years and were intended to be helped by more established states to become self-governing states when they were found to be ready for it. The Mandate for Palestine had different standards for statehood. It was to become a reconstituted viable Jewish State of Israel when it met two standards originally established i.e. to attain a majority of Jewish population in the area governed, and to become as capable of exercising sovereignty as any modern European State. Recent Levy Report on whether settlements in Judea, Samaria and East Jerusalem are illegal I started my own inquiry and analysis several years ago. It was commenced before the recent publication of the report of the Levy Commission [1] finding that Jewish Settlements in Judea and Samaria were not illegal as Article 49 of the 4th Geneva Convention [2] prohibiting the "deportation or transfer" of its citizens was not applicable to decisions of individual Israeli citizens to move their place of residence. Permitting them to do so or even facilitating the relocation was not the proscribed exercise of State Power. The Levy Report held that the 4th Geneva Convention was directed solely 10 at prohibiting the exercise of state power. Under Article 2 of the Convention, any occupation must be of the territory of “another party” . But below we show that Palestine west of the Jordan belonged to the Jewish People in 1967, not another party. The report also held that the claim by Israel to the ownership of the political rights to this territory was a good claim based on the 1920 San Remo Resolution and on the British Mandate for Palestine as of 1922 [3] because The San Remo decision, a treaty among the Principal Allied War Powers, had adopted the 1917 Balfour Declaration of British Policy [4] with the result that it had now become International Law. The 1922 League of Nations Mandate for Palestine, providing detail for administering the content of the Balfour Declaration [5] confirmed the San Remo agreement as the source of Jewish political or national rights to Palestine, with a new Article 25 intended to limit Jewish settlement East of the Jordan River. Other opinions reaching the same conclusion In the course of my own inquiry, I learned that before I had started, Dr. Jacques Gauthier had compiled a monumental 1400 page doctoral thesis, [6] Dr. Gauthier's work was followed by a legal tome of 732 pages written by Howard Grief, Esq. a Canadian lawyer now residing in Israel.[7] Grief's book was followed by that of a non-lawyer, Mr. Salomon Benzimra of Toronto, who stated in a much shorter and more readable work 11 — with helpful maps — the factual premises leading to the legal conclusions of Gauthier and Grief. His book was published in Kindle by Amazon in November, 2011. [8] My own view was initially published on-line in a blog — Think-Israel.org — but thereafter, with greater documentation, in a two part op ed in a conservative newspaper in Israel known as Arutz Sheva. [9] My legal opinion was followed by the opinion of Dr. Cynthia Wallace,[10] who had been retained by a Christian Evangelical group. Finally, a recent report by the Levy Commission authorized by the current Prime Minister of Israel [English translation of the legal arguments in the Levy Report (updated) [11] contained the legal opinions of three distinguished Israeli jurists. One was the late Justice Edmund Levy, formerly a Justice of the Supreme Court of Israel. These jurists, for the first time, delivered an opinion on the status of Judea, Samaria and East Jerusalem that was not dominated by an Israeli left wing Labour Government. All these opinions have only minor differences and reach the same conclusion — that World Jewry owns the political or national rights to all of Palestine West of the Jordan, and possibly some of that east of the Jordan as well. Legal opinions reaching the same conclusion, to my knowledge, go back at least to 1993 [12] so it cannot be said to be a recent politically inspired fabrication as some of its critics have charged. See especially, "Israel's Rights to Samaria" [13] and excellent articles by Douglas Feith and Elliott A. Green.[14] Feith was later the Deputy Secretary of Defense for Policy under 12 Rumsfeld in the George W Bush Administration; Elliott Green is an Israeli researcher. The critics with this view have responded ad hominem but few have raised issues of fact or law. More recently I have encountered the opinion of the acclaimed international lawyer, the late Julius Stone of Australia, the author of Israel and Palestine: Assault on the Law of Nations. [15a] The major points of the Levy Report In the Levy Report, the first issue was whether Jewish settlements in Judea, Samaria, and East Jerusalem, three areas invaded by the Arab Legion in 1948 and illegally occupied until 1967, were unlawful. The Israeli Labour Government lawyer, Theodor Meron [15b] had suggested the proper law to apply was the law of "belligerent occupation." Belligerent occupation occurs when a belligerent state invades the territory of another sovereign state with the intention of holding the territory at least temporarily. That law is based on Article 43 of the 4th Hague Convention of 1907 that assumes that land being occupied has a legitimate sovereign. It is not applicable because Jordan was illegally occupying it after an aggressive invasion in 1948. Another Labour Party lawyer, Talia Sasson, [16] also claimed the occupation was illegal, also assumed belligerent occupation, and strongly criticized the settlements. But even if belligerent occupation were found applicable, there would have to be shown that under the Geneva Convention the state of Israel had 13 "deported or transferred" the "settlers". These "settlers" [17] were individuals who had decided on their own for economic or religious reasons to move to a new place to live outside the 1949 Armistice "Green Line". Some of them were re-settlers, who just wanted to return to their homes — after the area had been liberated. Their homes were in a place that had been illegally occupied by Jordan and they had been expelled by Jordan in 1948 or thereafter. They clearly were not "deported" by Israel and if they relocated under their own motivation for patriotic reasons, religious reasons or just to go back to the home from which they were expelled in 1948, no state had "transferred" them. They simply moved for their own reasons. The term "transfer" must be distorted to be applied to situations it simply was not intended to cover such as a movement of that kind. The 4th Geneva Convention is directed at state action, not the action of individuals. The 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 and attempted to apply it to individuals by holding that it meant that the State of Israel was required to prevent its Jewish citizens from moving where they wanted to even though preventing them from doing so would violate the UN Universal Declaration of Human Rights, Articles 13 and 15(2).[18] One of the authors of the Levy Report had in 2011 written about the interpretation that distorted the word "transfer".[19]14 After finding that the Geneva Convention did not apply, the Levy Commission looked to determine the state that did have sovereignty over the area conquered by the Arab Legion in 1948.[20] In 1948, the Arab Legion, acting as the army of Transjordan that later became the 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 still available to them. The Jews were no longer subject to territorial limits of the boundaries set forth in the Resolution. The Arab Legion was an Army consisting in the main of Arab Transjordanian soldiers but they were supplied with arms by the British and led by British Officers under the command of British General Glubb, (Glubb Pasha) even though Britain the US and many other countries had embargoed arms to Israel. For some 19 years, from 1948 to 1967, Jordan illegally occupied what had been Judea, Samaria and East Jerusalem. Under its rule of the 58 synagogues in the area all one were destroyed; some 38,000 tombstones 15 from the Jewish Cemetery on the Mount of Olives were broken or defaced; all Jews were expelled from the area it acquired. Jordan's promises in the 1948 Armistice Agreement to permit visits by Christians and Jews to their holy places were not kept. In 1967, when the IDF reached the Western Wall of the Temple Mount, they found a latrine had been built against it. While the former leftist Labour Government lawyers had held after 1967 that Israeli was holding the territory under the “Law of Belligerent Occupation”, it is hard to see how they arrived at that conclusion. That doctrine only applies to occupation of territory of a lawful sovereign in an area. Only two countries in the whole world, Britain and Pakistan had recognized Jordan's sovereignty over what they renamed the "West Bank". All of Jordan's territory dating back to before 1948 was on the East Bank of the River Jordan. Perhaps they renamed the area the Israelis had liberated — called Judea, Samaria and East Jerusalem since historic times — "The West Bank" because they would look silly claiming that the Jews were illegally occupying Judea. (Hats off to Professor Steven Plaut) The San Remo Resolution Israel's roots in International Law start in the San Remo Resolution of 1920 and not as most assume, in the UN General Assembly Resolution of 1947. It was the latter that recommended Partition of Palestine into an Arab 16 and a Jewish state. In that resolution Jerusalem and the nearby holy places were to be held separately as a corpus separatum at least temporarily under control of the UN. It was a recommendation that had no force and no effect because one of the parties it was addressed to, the Arabs, had rejected it and started a war. What is International Law International Law is created by treaties or conventions between and among states or by long standing custom. International Law cannot be created by the UN. The UN General Assembly does not have that authority; nor does any international entity. The International Court of Justice has no authority to create International law. This is particularly true where International Law recognizes sovereignty over areas such as Palestine. That is because the UN Charter in Article 80 says in pertinent part, "...nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties. [22] Its being saved is also the consequence of the legal doctrines of "acquired legal rights" and of "estoppel. As explained by Howard Grief "the principle of 'acquired legal rights' which, as applied to the Jewish people, means that the rights they acquired or were recognized as belonging to them when Palestine was legally 17 recognized by 52 nations as the Jewish National Home [as a prelude to a reconstituted Jewish State] are not affected by the termination of the treaty or the acts of international law which were the source of those rights. This principle already existed when the Anglo-American Convention came to an end. It has since been codified in Article 70(1)(b) of the 1969 Vienna Convention on the Law of Treaties. This principle of international law would apply even if one of the parties to the treaty failed to perform the obligations imposed on it, as was the case with the British government in regard to the Mandate for Palestine. The reverse side of the principle of acquired legal rights is the doctrine of estoppel which is also of great importance in preserving Jewish national rights. This doctrine prohibits any state from denying what it previously admitted or recognized in a treaty or other international agreement. In the Convention of 1924, the United States recognized all the rights recognized as belonging to the Jewish people under the Mandate, in particular the right of Jewish settlement anywhere in Palestine or the Land of Israel. Therefore the US government is legally estopped today from denying the right of Jews in Israel to establish settlements in Judea, Samaria and Gaza, which have been approved by the government of Israel." [23] Article 80 is in UN Chapter XII that gives the UN the authority to establish and administer trust territories. That is pertinent because Israel once was a "mandate". 18 The UN calls them "trusteeships". "Mandate" is what the League of Nations, the UN's predecessor in world government called an area placed in trust until it was capable of self government. Recognition of this political or national right was saved by Jews concerned about the rights under the British Mandate for Palestine when the UN was given authority to deal with trusteeships as the Mandate was a trusteeship under the League of Nations name. [24] The Paris Peace Talks and the decision at San Remo To understand the San Remo Agreement we must go back in time to WWI when the Turkish Ottoman Empire entered the War on the side of Germany. Germany and Turkey lost that war. They entered into an Armistice Agreement on November 11, 1918. As the holder of territory after being the winner of a defensive war the Principal Allied War Powers — The British Commonwealth, France, the US, Italy and Japan — were entitled under International Law of long standing custom to occupy the Ottoman Empire until a peace treaty was signed that delineated boundaries agreed on by the parties. After the Paris Peace talks that were held commencing January 4th, 1919 the Principals determined to establish a world government to maintain peace. It would be entitled “The League of Nations”. Its Covenant or charter was Part One of the Treaty of Versailles. The participants to the Paris Peace 19 talks included the Allied Principal War Powers and claimants for territories, mainly territories in Europe. Even before the end of the war, in November, 1917 the Balfour Declaration had been established as British policy that World Jewry would be the beneficiary of the trust of the “political” or “national rights” to Palestine. These are the rights that entitle the collective right of political self-determination, 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 submitted their claims there. The Arabs claims were made under the auspices of King Ibn Hussayn, however they were presented by Lawrence of Arabia and also through George Antonius. Antonius brought up Arab and French claims conflicting with the Balfour Declaration, notably claims based on the Hussayn-McMahon correspondence and the secret Sykes-Picot Agreement. Antonius had made a careful study of these and his arguments initially seemed quite convincing that the British “had sold the same horse three times”. The Zionist Organization made the following claim for a two-step process in which the territory would first become a Jewish National Home and then would become a reconstituted Jewish state.20 "Palestine shall be placed under such political, administrative and economic conditions as will secure the establishment there of the Jewish National Home and ultimately render possible the creation of an autonomous Commonwealth, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing nonJewish communities in Palestine or the rights and political status enjoyed by Jews in any other country. [emphasis added] To this end the Mandatory Power shall inter alia: Promote Jewish immigration and close settlement on the land, the established rights of the present nonJewish population being equitably safeguarded. Accept the cooperation in such measures of a Council representative of the Jews of Palestine and of the world that may be established for the development of the Jewish National Home in Palestine and entrust the organization of Jewish education to such Council. On being satisfied that the constitution of such Council precludes the making of private profit, offer to the Council in priority any concession for public works or for the development of natural resources that it may be found desirable to grant. The Mandatory Power shall encourage the widest measure of self-government for localities practicable in the conditions of the country There shall be forever the fullest freedom of religious worship for all creeds in Palestine. There shall be no discrimination among the inhabitants with regard to 21 citizenship and civil rights, on the grounds of religion, or of race" [25] What the Zionist organization was asking for in Paris in 1919 was essentially the already decided British policy in the 1917 Balfour Declaration that the Principal War Powers later adopted at San Remo in 1920: That the Jews wanted essentially a protectorate that would ultimately transition into a reconstituted state was well known as even the small Jewish population in Palestine did not believe it was ready to exercise sovereignty. As reported in the Voltaire Network, a somewhat antisemitic news network, of the three things the Jewish People wanted, one was "the establishment of a Jewish National Home in Palestine as a prelude to a reconstituted Jewish state". [emphasis added] [26] The Principal War Powers were able to complete their review and implement its action on the claims over European territories in the Paris Peace Talks. The written decision is within part II of the Treaty of Versailles. They needed to extend their deliberations to decide on the claims on what had been Ottoman territory in the Middle East. To do just that, they met again in San Remo, Italy in April, 1920 and dealt with the Arab and Jewish claims on April 24th and 25th. At the end of that meeting, the claims were res judicata. The WWI Principal War Powers decided to recognize the then current Arab inhabitants of Syria and Mesopotamia as the beneficial owners of the political 22 powers for those countries but adopt the British Balfour policy and recognize World Jewry as the beneficial owner of the political rights to Palestine. Three documents recorded the decision of the Principal War Powers on Palestine: the Treaty of Sevres, the Treaty of Lausanne, and the San Remo Resolution. Article 95 of the Treaty of Sevres was confirmed by the later Treaty of Lausanne as by that time the cession — transfer of sovereignty to the mandatory power, a formal giving up of rights, especially by a state — in Asia was a fait accompli and Articles 16 and 30 of the latter treaty left Turkey's relinquishment of its sovereignty over territories in Asia unchanged. The San Remo Resolution was also a writing that incorporated the decision of the Principal War Powers on those competing claims to Palestine adopting the Balfour Declaration in terms that were left to be further spelled out in the Mandate for Palestine. But the British Balfour Policy, while recognizing the Jews ownership of the political rights to Palestine, did not want them to exercise sovereignty immediately. Nor did the Jews want to do so. That is because as of 1917 when the Balfour Policy was being considered by the British, the Jews in all of Palestine were only 60,000 population out of a total population of 600,000 as estimated by the British Foreign Office (BFO). As long ago as 1845, the Jews had had a plurality of the population of Jerusalem and in 1863 a majority of the population there. But in all23 of Palestine, as of 1917, the BFO estimated Jewish population at only 10% of the total. Critics of the Balfour Policy had argued that a government ruled by a "people" that was only a 10% minority would be "antidemocratic". The British Foreign 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". In a memorandum of September 19, 1917, Arnold Toynbee and Lewis Namier, speaking for the BFO, pointed out that the political rights would initially be placed in trust — the trustee likely being England or the United States. The trustee would have legal dominion over the political rights and although the Jews would have a beneficial interest, the legal interest would not vest until such time as the Jews had attained a majority population in Palestine and were as fully capable of exercising sovereignty as a modern European state. Their decision was later incorporated in article 95 of the treaty of Sevres by a cession of Ottoman sovereignty over Palestine to that trustee, incorporated in the San Remo Resolution and to be defined in greater detail in the Mandate for Palestine.[27] This same recommendation for a two step process was incorporated in the discussion in the Briefing Document of the U.S. Delegation to the Paris Peace Conference, in 1919.24 "3. It is recommended that the Jews be invited to return to Palestine and settle there, being assured by the Conference of all proper assistance in so doing that may be consistent with the protection of the personal (especially the religious) and the property rights of the non-Jewish population, and being further assured that it will be the policy of the League of Nations to recognize Palestine as a Jewish state as soon as it is a Jewish state in fact. "It is right that Palestine should become a Jewish state, if the Jews, being given the full opportunity, make it such. It was the cradle and home of their vital race, which has made large spiritual contribution to mankind, and is the only land in which they can hope to find a home of their own; they being in this last respect unique among significant peoples. "At present, however, the Jews form barely a sixth of the total population of 700,000 in Palestine, and whether they are to form a majority, or even a plurality, of the population in the future state remains uncertain. Palestine, in short, is far from being a Jewish country now. England, as mandatory, can be relied on to give the Jews the privileged position they should have without sacrificing the rights of non-Jews." [Note #12, p. 113.] Woodrow Wilson had stated in 1919 "I am persuaded that the Allied nations, with the fullest concurrence of our own government and people, are agreed that in Palestine shall be laid the foundations of a Jewish Commonwealth."25 A Mandate is a trust The term "Mandate" applied in this context is confusing. It seems to mean an "order". But construed in the light of Article 22 of the Covenant or Charter of the League of Nations, it is clear that in the case of Mandates created as envisioned by Article 22 of the League Covenant or charter, such as the Mandates for Palestine, Syria and Mesopotamia, it means a device which was created under the British legal concepts of trusts and guardianships. It expressly “entrusts” the administration of Palestine to the mandatory power. This was the conclusion in May of 1921, about one year after San Remo, by a British barrister and member of the NY bar Duncan Campbell Lee in his lecture at University College, London University entitled "The Mandate for Mespotamia and the Principle of Trusteeship in English Law." [Note #24] If the Mandate is a trust, what is the trust res, the thing placed in trust? It must be the political or national rights to Palestine. The most important question is "Who is the beneficiary of the trust? All who have looked at the trust and compared it with trusts for Syria and Mesopotamia have concluded that it is World Jewry. Compare it yourself with the Mandate for Syria and the Mandate for Mesopotamia. For the former, "This Organic law shall be formed in agreement with the native authorities and shall take into account the rights, interests and 26 wishes of all the Population inhabiting the mandated territory, (Article 1 of the Mandate for Syria and The Lebanon) For Mesopotamia, now Iraq, the mandate provided: This Organic law shall be framed in consultation with the native authorities and shall take into account the rights, interests and wishes of all the population of the mandated territory. (Article 1 of the Mespotamia [Iraq] Mandate. [emphasis added] However in the Palestine Mandate, Article 2 says "The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home as laid down in the preamble and the establishment of self governing institutions" [emphasis added]. And the preamble states "Whereas the Principle Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2, 1917, by the Government of His Britannic Majesty [The Balfour Declaration] and adopted by the said Powers in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of the non-Jewish communities in Palestine ... and Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country; ..." Compare the Mandates27 It seems clear that in the other mandates, the rights, interests and wishes of the then current inhabitants are to be taken into account but in Palestine Mandate they were ignored in favor of a Jewish National Home in which solely the advice of the Zionist Organization was to be taken into account (Mandate Article 4). In the Palestine Mandate only Jewish immigration was expressly required to be facilitated with the result that eventually a Jewish population majority would have been attained. (Mandate article 6) It therefore appears that the Jewish National Home was a beneficial interest in the political rights to Palestine, to mature into a later legal interest in those rights and sovereignty for them. However for the non Jews in the existing population, it provided only protection for their civil and religious rights after Jewish sovereignty was achieved. A French effort at San Remo to add political rights was rejected by the other principal powers. It is Jewish immigration alone that must be facilitated. It is the Zionist Organization alone reflecting the rights, interests and wishes of World Jewry that was the appointed advisor to the Administration set up by the trustee to administer the Mandate. Balfour resigned as foreign secretary following the Paris Conference in 1919, but continued in the Cabinet as lord president of the council. In a memorandum of August 11, 1919 addressed to new Foreign Secretary Lord Curzon, he stated ...28 "All of the other engagements contained pledges that the Arab or Muslim populations could establish national governments of their own choosing according to the principle of self-determination. Balfour explained: "... in Palestine we do not propose to even go through the form of consulting the wishes of the present (majority) inhabitants of the country ..." Balfour stated explicitly to Curzon: "The Four Great Powers [Britain, France, Italy and the United States] are committed to Zionism. And Zionism, be it right or wrong, good or bad, is rooted in age-long traditions, in present needs, and future hopes, of far profounder import than the desires and prejudices of the 700,000 Arabs who now inhabit that ancient land. In my opinion that is right." * * * * * He continued: "I do not think that Zionism will hurt the Arabs, but they will never say they want it. Whatever be the future of Palestine it is not now an 'independent nation', nor is it yet on the way to become one. Whatever deference should be paid to the views of those living there, the Powers in their selection of a mandatory do not propose, as I understand the matter, to consult them."..."If Zionism is to influence the 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? No it was the Principal Allied Powers who met at San Remo according to Douglas Feith [Note #14]. It is they who by winning the war had the authority to 29 dispose of the territories as they saw fit. It is also those Powers, not the League who accepted Britain's offer to serve as Mandatory Power or Trustee at San Remo. A Trustee has fiduciary obligations Britain's offer and the Principal Allied Power's acceptance of Britain as Trustee on April 25, 1920 created a fiduciary relationship between the cestui que trust, World Jewry, and the Trustee. This principle is so well recognized in British and American law it needs no citation. It created a duty that required Britain to give priority to the beneficiary's interest over its own economic and political interests. The agreement between the Grantor and the Trustee was effective in April, 1920 not 1922, the date when the parties agreed the Mandate would become effective. This raises a question on whether Britain violated its fiduciary responsibilities when it eliminated from the political rights being placed in trust those pertaining to Eastern Palestine. What was the role of the League of Nations? Balfour saw it only as the instrument to carry out this policy. Balfour, on presenting the Mandate to the League of Nations stated: "Remember that a mandate is a self-imposed limitation by the conquerors on the sovereignty which they obtained over conquered territories. It is imposed by the Allied and Associated Powers on themselves in the interests of what they conceived to be the general 30 welfare of mankind...." "The League of Nations is not the author of the policy, but its instrument.... ". Britain's role was that of the Mandatory or trustee. But the conquerors, the Principal Allied Powers, did not give the political rights to World Jewry as a gift. The political rights were recognized as belonging to the Jews because of the long "historical connection of the Jewish People with Palestine" a history extending over some 3,700 years with a continuous presence of Jews during all that time. Article 95, Treaty of Sevres — was it legally effective? The Turks had regrouped and fought the Allies again over territories in Europe. So the Treaty of Sevres which also covered those areas was never ratified by Turkey but was superseded by the Treaty of Lausanne. By that time the decisions pertaining to the Middle East were a fait accompli. By not changing things the Treaty of Lausanne, in Article 16 and 30 ratified Article 95 of the treaty of Sevres that was the ruling of the Principal War Powers on the competing claims of the Arabs and Jews. That ended any claim of the Ottomans and left its status up to the other parties concerned. Article 95 had ceded Ottoman sovereignty over Palestine to the Mandatory Power in trust for the Jews. Nota bene that the Mandates for Syria and Mesopotamia were also established in that treaty. The Syrian Mandate was subsequently divided into two, a Syrian Mandate into which the Muslims were to be located, and Lebanon for the Christians.31 The British truncated the Jewish Political Rights But an interesting thing happened between the time of the meeting in San Remo and the confirmation of the League Mandate for Palestine. The language of the Mandate was changed to deal differently with Palestine east of the Jordan River known as "transJordan' in contrast to cisJordan that referred to Palestine west of the Jordan, between the Jordan and the Mediterranean Sea. An Article 25 had been inserted in paragraph 25 of the later 1922 draft, as it was presented to the League by Britain. Britain had on April 25, 1920 agreed to assume the responsibilities of a fiduciary. The later draft provided for temporarily suspending Jewish settlement in transJordan. How did this come about? King Hussayn who was then ruler in the Hedjaz in the Arabian Peninsula had four sons. Believing that his agreement with the British resulting from his correspondence with McMahon would give him a wide area covering Syria and Mesopotamia (now Iraq) as well as the Arabian peninsula, he told his son Feisal that he would rule in Syria and Abdullah to my recollection in Iraq. The third son would inherit Hussayn's throne and the fourth one was not interested in positions of political power. In the secret Sykes-Picot agreement, the Governments of Europe split up the former Ottoman 32 territory into spheres of influence. England was to get Palestine and Mesopotamia (now Iraq), and France would get Syria. Immediately after the war, England had placed Feisal on the throne in Syria. When he asserted independence, France was offended and after the Battle of Maysalun, it deposed Feisal. Abdullah, who was very warlike, marched his army into transJordan and made ready to attack Damascus. Churchill did not want the Arabs to war against the French so he gave the throne of Iraq to Feisal. The story can be filled in from the Diary of Sir Alec Kirkbride, one of three British officers who were told after WWI to set up governments in transJordan. After he had set up a government Kirkbride was warned that Abdullah was marching his army toward his area and wired the British headquarters in Jerusalem. They wired back telling Kirkbride to ignore the warning as Abdullah would never invade a territory being ruled by His Majesty's government. When Abdullah did, in fact, show up, Kirkbride had only a few policeman to help him and wisely decided not to fight. He wired Jerusalem once again and this time His Majesty's government, decided that it was a fait accompli. At a meeting in Cairo on March 21, 1921 Churchill decided the best way out of 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 government that the framers of the Balfour policy never really wanted to give all of Palestine to World Jewry for 33 its Jewish National Home. Skeptics might ask, why then did the Toynbee-Namier memorandum predating the Balfour Declaration assume that the 600,000 total population of all of Palestine would be under Jewish rule but for putting the political rights in trust? [29] As for the Hussayn-McMahon correspondence, George Antonius claimed that the British had promised King Ibn Hussayn the rule of Syria, and Palestine as well as the Arabian Peninsula if he got the Arab tribesmen to revolt against the Ottomans. But as shown by Isaiah Friedman, Hussayn had told McMahon that he would get some 258,000 fighters to fight on behalf of the British and at the most came up with about 5,000.[30] It appears there was a failure of consideration for any promise McMahon had made. There was a question on whether Hussayn was promised any territory that his own fighters had not conquered. And in fact in Syria and Palestine none of the Arabs fought on the side of the British and many fought for the Ottomans. Finally assuming these were not a problem there was a dispute over the territory that Hussayn was promised even though his fighters had conquered it. A line was drawn that would eliminate territory to the west of the line as being an area that should be under the control of others and Palestine was excluded and according to the British, Hussayn understood that Palestine was excluded. Moreover the British also contended that the HussaynMcMahon Correspondence had never matured into a final agreement.34 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, the 1922 White Paper was the first example of England breaking its obligations to the Jews. It would do so again and again in the White Papers of 1930 and 1939 even after the confirmation of the Mandate by the League of Nations in July, 1922. Britain had volunteered at San Remo in April to be the mandatory power or trustee of the League of Nations Mandate for Palestine. As a trustee it owed the beneficial owner of the trust res the obligations of a fiduciary. A fiduciary's obligation is to prefer its beneficiary's interests over those of its own. Yet England in July, 1922 had persuaded the League to change the terms of the trust the Principals had agreed to at San Remo, to solve Britain's own political difficulties with France. This cost the beneficiary, World Jewry. some 40% to 50% of the Palestine territory then extending east only to the Hejaz Railway that had initially been determined by the Principal Allied Powers as the area they wanted recognized as Jewish. Palestine’s eastern boundary was later extended to the boundary of Iraq.35 Britain's retreat from the Balfour policy. Through the meeting at San Remo, all the Principal War Powers were very protective of the rights of World Jewry. When at San Remo, the French wanted to amend the "savings clause" saving the "civil and religious rights" of non Jewish communities when the Jews ultimately exercised sovereignty in Palestine. 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 nonJews would not have to surrender any of their rights. That was acceptable to the others because all knew that the Arabs in Palestine had never exercised sovereignty there. The only "people" in Palestine that had exercised self government in Palestine was the Jews. After the Churchill White Paper of 1922 diminished Jewish rights East of the Jordan River, Perfidious Albion continued to abuse its position as Mandatory Power or trustee in the British Passfield White Paper of 1930 and the MacDonald White Paper of 1939. In 1939 it adopted a British White paper blocking further Jewish immigration into Palestine West of the Jordan at the request of the Arabs. It did this despite an express requirement of the Mandate or trust that the trustee should "facilitate" Jewish immigration" into Palestine so that the Jews would ultimately become the majority population and the Jewish National Home could change 36 into a reconstituted Jewish state. The 1939 White Paper would freeze Jewish population at about a one third minority. It contemplated a grant of self government to the population of Palestine in 1949 but with Jewish immigration blocked, there would still be an Arab majority. Many of those who had participated in the original deliberations on the Balfour policy that had been adopted at San Remo strongly objected. David LloydGeorge who had been the Prime Minister of England then, characterized this action as "an act of national perfidy which will bring dishonor to the British name." Winston Churchill, in the House of Commons, condemned the Paper as "plainly a breach and repudiation of the Balfour Declaration" and he referred to it as "another Munich" (Neville Chamberlain was Prime Minister in 1939). Harry Truman, then a U.S. Senator also criticized the 1939 White Paper as a "repudiation of British obligations" and President Franklin Roosevelt expressed his "dismay [at] the decisions of the British Government regarding its Palestine Policy". That 1939 White Paper even blocked the sale of property in Palestine to Jews. The MacDonald 1939 White Paper was Illegal37 But even more importantly, the League of Nations Permanent Mandates Commission whose duty it was to oversee the Mandatories appointed by the League, was unanimous that the interpretation on which the 1939 White Paper was based was inconsistent with the interpretation previously placed on it by the Mandatory. That Commission, by a majority, ruled that the interpretation was inconsistent with the express obligations of the Mandate, i.e. to facilitate Jewish immigration into Palestine so that the Jews would become a majority and could become a reconstituted Jewish State. Under the terms of the 1939 White Paper a single Arab majority state was contemplated by 1949, completely abandoning the objective of the Balfour Agreement. This was a unilateral measure without the prior consent of the Council of the League of Nations, therefore violating Article 27 of the Mandate that required its approval before any modification. A meeting of that Council was scheduled for September 8, 1939 but was never held because of the outbreak of WWII. Nevertheless the British, for the next ten years from 1939 until May, 1948 viciously enforced an illegal blockade preventing Jews from fleeing death in Nazi extermination camps and later blocking Holocaust survivors from reaching sanctuary in Israel even though the blockade had been determined to be illegal by the Permanent Mandates Commission authorized to make that determination. Its enforcement contributed to the 38 death of some six million Jews who were trying to flee from the European Holocaust. It lasted, because of the obsessed Ernest Bevin, even after the war, blocking Holocaust survivors from entering a place where they could received help from others of their people.[31] [32] In 1947 the British after seeking monetary and military aid from the United States that was denied, announced its proposed abandonment in 1948 of its trusteeship that it said it could no longer afford. The UN, had replaced the League of Nations as world government, and this new world government included the United States as a member. It had as Article 80 of its Charter, preserved the recognition by its 51-state membership of the Jews ownership of the political rights to Palestine, now reduced to Palestine west of the Jordan River. The UN formed a special committee to determine what should be done, because of the threatened violence of the Arabs. [33] The UN Partition Recommendation The UN General Assembly, after the Special Committee completed its deliberations, enacted a resolution, Resolution 181 [34] recommending that Palestine West of the Jordan should be divided into Arab and Jewish states and a Corpus Separatum encompassing Jerusalem and surrounding religious holy sites. Such a recommendation is of no continuing force and effect 39 unless both parties to it accept the recommendation. One party, the Jews, did. They were willing to give up much of their political rights in exchange for an end to the threats of violence and so they could aid in the immigration of Holocaust survivors. The Secretary General of the Arab League had threatened war. He said: "This war will be a war of extermination and a momentous massacre which will be spoken of like the Mongol massacre and the Crusades." The Arabs declined to accept the compromise and went to war. The Arab warfare was initially conducted by Arabs local to Palestine but was soon joined by seven armies of surrounding Arab States. Some 450,000 to 700,000 Arabs fled without seeing a single Jewish soldier although a few at Ramle and Lydda were removed by the Jewish forces because after agreeing to an armistice they had resumed fighting and the Jews did not want them in back of their lines. As to almost all the rest, the rich left first, followed by many more at the urging of the Arab Higher Committee who asked them to get out of the way of the invading armies. It predicted the defeat of the Jews in some two weeks and assured them that the Arabs could then return. Mahmoud Abbas (Abu Mazen) wrote an article in the official organ of the PLO, "Filastin", complaining of this, and that when the Arab armies lost, the refugees were imprisoned in camps in the neighboring Arab states [35]. Hazam Nusseibeh, who worked for the Palestine Broadcasting Service in 1948, admitted being told by Hussein Khalidi, a Palestinian Arab leader, to fabricate 40 the atrocity claims. Abu Mahmud, a Deir Yassin resident in 1948 told Khalidi "there was no rape," but Khalidi replied, "We have to say this, so the Arab armies will come to liberate Palestine from the Jews." Nusseibeh told the BBC 50 years later, "This was our biggest mistake. We did not realize how our people would react. As soon as they heard that women had been raped at Deir Yassin, Palestinians fled in terror." [36] This massacre rumor was also a major contributing factor in the exodus of Arabs from Palestine. Those who fled were not invited back by the Jews who won. No peace treaty was signed until many years later and the Jews did not want to have a Fifth Column in their midst. The treaties that were signed with Egypt did not reestablish normal relations. It has been a cold peace. The peace with Jordan has perhaps been a little better. In the 1948 War the Jews weren't 100% successful in repelling the invasion of the surrounding Arab armies. Jordan, at the time, had for its armed forces The Arab Legion, supplied by the British and led by British Officers. At the same time the Jews were subject to an arms embargo. The Arab Legion was therefore successful in invading westward from Jordan, to and including East Jerusalem. The Egyptian forces moved north and got as far as the Gaza strip. Under International Law this territory, having been won in an aggressive war, the capture of this land did not gain the invaders the political rights to it. Only Britain and 41 Pakistan recognized Jordan as holding sovereignty over it. Israeli liberation of Judea, Samaria and East Jerusalem In 1967, once again Arabs threatened to annihilate the Jews. Egypt blocked Israeli shipping through the Straits of Tiran and massed tanks and troops on its border with Israel. It ordered the UN buffer force, established in 1956, to leave and the UN buffer forces left without even seeking UN approval. Nasser threatened annihilation of the Jews or driving them into the sea. Israel struck back at Egypt but even after being shelled by Jordanian artillery, sent a note to King of Jordan saying that if they stopped the shelling they need not be a part of the war. Jordan declined and its army in Judea, Samaria and East Jerusalem was driven back to the Jordan River by the Jews. CONCLUSION The Mandate system was designed to help states that had been subject to Ottoman occupation for 400 years, to become independent after they learned democratic principles, formed political parties and were able to self govern. An exception was the Mandate for Israel where the Jewish People who had been driven out of Palestine and dispersed by the Romans, were recognized by first the British, next the Allied Principal War Powers, and 42 finally, the members of the League of Nations as the owners of the political rights because of their historic association with Palestine but initially were to be solely a cestui que trust with regard to Palestine’s political rights. There, the tacit standard for ending the Mandate by the vesting of the trust res was to be the attainment of a Jewish population majority in the area they were to govern and their capability to exercise sovereignty. Although now people point to the designation “Jewish National Home” to bolster their argument that the British Balfour Policy was never intended to create a state, there was little doubt in the British newspapers when the Balfour Declaration was published. “That the Declaration paved the way for a Jewish State seems to, judging from the press, to have been taken for granted. The headlines in the London newspapers – ‘A state for the Jews’ (Daily Express) – ‘Palestine for the Jews’ (The Times, Morning Post, Daily News). The Spectator wrote of ‘the proposal for the establishment of a Jewish State in Palestine.’ The Manchester Guardian saw the Declaration as leading to ‘the ultimate establishment of a Jewish State.’ The Observer wrote: ‘It is no idle dream that by the close of another generation the new Zion may become a state.’ Leonard Stein at 562, 63 [42] Before enacting the Partition Resolution of 1947, the UN in effect found the Jews were capable of exercising sovereignty. The resolution itself became only a failed recommendation when rejected by the Arabs and the 43 partition resolution had no continuing force and effect. When the trustee, Britain, abandoned its trust in May, 1948, the cestui que trust, World Jewry, was the logical entity to get legal dominion of the political rights that theretofore had been held in trust. Had the UN thought the Jews were still incapable of the exercise of sovereignty, in 1948 they would have appointed another trustee. In any event, by 1948, coincidentally, the Jews had attained a majority of the population of Palestine, at least within the area of Palestine west of the Jordan within the Armistice line where they were to rule. In doing my research I learned of Woodrow Wilson’s stand on the natural law concept of self-determination of “peoples” and wondered how he would have evaluated giving the Jewish People, a small minority in Palestine at the time of the Paris Peace Talks in 1919, the political rights to that territory. In doing my research I learned that Lord Balfour had the same doubts . “When Balfour met Brandeis in Paris in June 1919, he remarked . . . . that Palestine represented a unique situation. We are dealing not with the wishes of an existing community but are consciously seeking to reconstitute a new community and definitely building for a numerical majority in the future’ . He had, he went on, great difficulty in seeing how President Wilson could reconcile his adherence to Zionism with the doctrine of 44 self-determination, to which Brandeis replied that ‘the whole conception of Zionism as a Jewish homeland was a definite building up for the future as the means of dealing with a world problem and not merely with the disposition of an existing community. ‘ Balfour gave the argument a slightly different turn at his interview with Meinertzhagen a few weeks later. ‘ [Meinertzhagen was also very pro-Zionist.] He agreed . . . in principle, Meinertzhagen wrote in his diary (30 July 1919), in the principle of self-determination, but it could not be indiscriminately applied to the whole world, and Palestine was a case in point . . . In any Palestinian plebiscite the Jews of the world must be consulted in which case he sincerely believed that an overwhelming majority would declare for Zionism under a British mandate.’ Leonard Stein at p. 649 Finally, it turns out that Wilson’s Inquiry Commission established September 1917, favored the Jewish People for the very reason that it was that people who deserved self-determination. Infra at note 44. Leopold Amery, one of the Secretaries to the British War Cabinet of 1917-1918 testified under oath to the Anglo-American Committee of Inquiry in January, 1946 from his personal knowledge [Tr. 1/30/46, p 112] that: 1. He believed that the Jewish National Home was an experiment to determine whether there would 45 eventually be a Jewish majority over the whole of Palestine. 2. He believed that the territory for which political rights were to be recognized was intended to include all of Palestine both east and west of the Jordan River. 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 46 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: “. ‘ ‘ speaking as a member of the Arab Office—and I believe as the last witness who will appear on the Arab side—I think it is right to emphasize, without elaborating what needs no further elaboration, the unalterable opposition of the Arab nation to the attempt to impose a Jewish State upon it. This opposition is based upon the unwavering conviction of unshakeable rights and a conviction of the injustice of forcing a longsettled population to accept immigrants without its consent being asked and against its known and expressed will; the injustice of turning a majority into a minority in its own country; the injustice of withholding 47 self-government until the Zionists are in the majority and able to profit by it. P. 80 [43] The late Professor Julius Stone was recognized as one of the twentieth century's leading authorities on International law. His “Israel and Palestine, Assault on the Law of Nations” which appeared in 1980, presented a detailed analysis of the central principles of international law governing the issues raised by the Arab-Israel conflict.” Building on principles of International Law, he showed that the Jewish settlements were not illegal. Based on that opinion the US Department of State changed the view it had provided President Carter. But Stone’s view did not take into account the principles of equity jurisprudence made applicable by Article 22 referred to in the preamble of the Palestine Mandate. He does point out that “Not only does Jordan lack any legal title to the territories concerned, but the [Geneva] Convention itself does not by its terms apply to these territories. For, under Article 2, the [4th Geneva ] Convention applies "to cases of … occupation of the territory of a High Contracting Party, by another such Party". Insofar as the West Bank at present held by Israel does not belong to any other State, the Convention would not seem to apply to it at all.” [44] He doesn’t point out that in fact it belongs to the Jewish People as does the State of Israel that is not “another party” so that the correct characterization is not only “occupied” as in military occupation. Rather since “occupied”carries the 48 pejorative meaning of belligerent occupation, a better descriptive would be “liberated.” Politics and the Jewish political rights to Palestine Under the left wing Labour government, Israel has never directly made a claim under the political or national rights that its principal, World Jewry, had under International Law that had been recognized, first by the Principal War Powers, and then by 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 by the 51 countries in the League of Nations and by the US, who had declined membership — a total of 52 countries. But the thrust of the Labour Government claim was not the San Remo Agreement but under facts occurring in 1948 and thereafter. The Israeli Government said that Jordan's aggression in 1948 resulted in Jordan never obtaining sovereignty over Judea, Samaria and East Jerusalem. So when in 1967 in a defensive war, it drove the Jordanians out of that area, it was thereafter not engaged in a belligerent occupation. Jordan was not a legitimate sovereign but was illegally occupying an area that was disputed and in which the Jews had the better claim. The Government of Israel never directly made the claim based on the competing Arab and Jewish claims made at the Paris Peace talks and the disposition of them in the Treaty of Sevres, the 49 San Remo Resolution and the Mandate for Palestine. It only hinted at it. Now, Douglas Feith, Jacques Gauthier, Howard Grief, Salomon Benzimra, Cynthia Wallace, former Israel Supreme Court Justice Levy and his two distinguished colleagues, Alan Baker, Tshia Shapira, the late Julius Stone and I are directly making that claim. By now it should be perfectly clear that the claim is not based on the UN General Assembly partition resolution of 1947, nor is it based only on facts occurring in 1948 and thereafter. It is based on facts commencing as early as 1917 when the British adopted its Balfour policy and it became International Law on the agreement of the Principal War Powers at San Remo in 1920 after consideration of both the claims of the Arabs and that of the Jews to the political or national rights to Palestine. It was confirmed by the League's action on at least Palestine West of the Jordan River by the 51 nations that were its members. It is based on the presentation of the competing claims of the Arabs and Jews submitted to the Principal War Powers at the Paris Peace Conference and the adjudication and ruling on those claims at San Remo in detail in the order that was called the League of Nations Mandate for Palestine. It is based on the legal doctrines of "acquired rights" and "estoppel" that prohibits any state from denying what it previously admitted or recognized in a treaty or other international agreement. It is based on Article 80 of the UN Charter that preserves political rights that had been recognized by the United States and Principal Allied 50 Powers in the 1920s. While Chaim Weizmann and some of the Zionist Organization had been willing to give up those rights, many had never agreed to it and split off into another organization headed by Jabotinsky. Even despite accepting the later loss of Transjordan, Chaim Weizmann, instrumental in obtaining the Balfour Declaration, was delighted with what was left. Gauthier has paraphrased[37] Weizmann's reactions to the San Remo decision, which gave Jews their rights under international law: "This is the most momentous political event in the whole history of the Zionist movement, and it's no exaggeration to say, in the whole history of our people since the Exile." What importance do the Arabs place on the Balfour Declaration? A reviewer of "The Iron Cage: The Story of the Palestinian Struggle for Statehood" [38] a book by Columbia Professor Rashid Khalidi who formerly was a spokesman for the PLO, says "Khalidi has his own set of external culprits, beyond the blame he is willing to accept for the Arabs for the nabka or catastrophe as they call it." The very first of the three listed is "British colonial masters like Lord Balfour, who refused to recognize the national [political] rights of non-Jews; ..." [39] What then is the rule under International Law? It is "There is no legal claim to national self-determination for Palestinian Arabs west of the Jordan River other than as peaceful citizens in a democratic structure covering the area as a whole." [40]51 Israel's Legitimacy in Law and History, note #12 supra, pp. 55,56. Part II: Where There is a Tension Between the Right of a "People" to Self-determination and the Right of a Sovereign State to Territorial Integrity, the Right of the State is 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]52 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 53 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 selfdetermination 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 54 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 55 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 selfdetermination as it looked to the Allied Principal Powers who considered it in 1920. According to the late Julius Stone, the widely acclaimed Australian international lawyer, "That the provision for a Jewish national home in Palestine was an application of the principle of selfdetermination 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 56 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 selfdetermination obtained by decolonization but not when sought by secession where the territorial integrity of a sovereign state is at issue. Territorial integrity of the sovereign state had been the mainstay of the new world order established after the Peace of Westphalia in 1648. It is considered inviolable. Under the current rule of International Law "Without the consent of the existing state, the international community will not recognize secessionist territories as sovereign and independent States.* * * There is no general right of secession in international law. The principle of sovereign 57 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 58 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 selfdetermination in the Declaration On Principles Of International Law Concerning Friendly Relations And Co-Operation Among States In Accordance With The Charter Of The United Nations. It provided: "By virtue of the principle of equal rights and selfdetermination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status . . ." But it also said: " Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country." [emphasis added] The most serious problem facing Israel today is the split in unity of its people. That split is being fostered by the current action of the United States on the question of Arab self-determination in Palestine west of the Jordan River. Under International Law, the clear rule is that International Law supports the self-determination of a "people" when it can be attained without affecting the boundary of a sovereign state as is 59 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 60 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 61 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 62 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 Role63 Since 1950 the Soviet Union has sought domination of the Middle East as a stepping stone to hegemony over Western Europe according to the late Eugene Rostow, Dean of the Yale Law School and Professor of International Law in Palestinian SelfDetermination: Possible Futures for the Unallocated Territories of the Palestine Mandate (1980) "For nearly thirty turbulent years, the Soviet Union has sought control of this geo‐political nerve center in order to bring Western Europe into its sphere. Even if Soviet ambitions were confined to Europe, Soviet hegemony in the Middle East would profoundly change the world balance of power. But Soviet control of the Middle East would lead inevitably to further accretions of Soviet power if China, Japan, and many smaller and more vulnerable countries should conclude that the United States had lost the will or the capacity to defend its vital interests, . . ." * * * "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 64 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.65 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) END NOTES 1. Levy Report, English Translation, http://elderofziyon.blogspot.com/2012/07/englishtranslation-of- legal-66 arguments.html?goback=%2Egde_3188536_member_1 34228375 2. Fourth Geneva Convention, Article 49, http://www.refworld.org/cgibin/texis/vtx/rwmain?docid=3ae6b36d2 3. San Remo Resolution, http://www.cfr.org/israel/san-remoresolution/p15248 4. Balfour Declaration, http://unispal.un.org/UNISPAL.NSF/0/E210CA73E38 D9E1D052565FA00705C61 5. British Mandate for Palestine, (1922) See Hertz, "Mandate for Palestine," Appendix A, http://www.mythsandfacts.org/conflict/mandate_for_p alestine/mandate_for_palestine.htm or http://www.think-israel.org/hertz.palestinemandatehtml.html. Both versions include maps and additional material. 6. Sovereignty Over the Old City of Jerusalem; A Study of the Historical, Religious, Political and Legal Aspects of the Question of the Old City, submitted by Dr. Jacques Gauthier as a thesis to the University of Geneva in 2007. 7. Howard Grief, Legal Foundations and Boundaries of Israel under International Law 8. Salomon Benzimra, The Jewish Peoples' Rights to the Land of Israel 9. Wallace Brand, op ed, Part 1: http://www.irsraelnationalnews.com/Articles/Article. aspx/11408. Part 2: 67 http://www.israelnationalnews.com/Articles/Article.a spx/11412. 10. Cynthia Wallace, "Foundations of the International Legal Rights of the Jewish People and the State of Israel and the Implications for the Proposed New Palestinian State." 11. http://elderofziyon.blogspot.com/2012/07/englishtranslation-of-legalarguments.html?goback=%2Egde_3188536_member_1 34228375 12. Israel's Legitimacy in Law and History, edited by Edward M. Siegel, Esq., Center for Near East Policy Research, New York (1993). pp 113. 13."Israel's Legal Right to Samaria," http://shomroncentral.blogspot.com/p/5-legal-rightsto-samaria.html 14. Douglas Feith, "A Mandate for Palestine," http://www.zionismontheweb.org/middle_east/Israel /Israel_and_palestine_mandate_for_israel.htm. Elliott A. Green, "International Law regarding the State of Israel and Jerusalem," Think-Israel.org, http://www.thinkisrael.org/green.sanremo.html 15a. Israel and Palestine: Assault on the Law of Nations (1981) Johns Hopkins University Press, Baltimore and London http://www.aijac.org.au/news/article/internationallaw-and-the-arab-israel-conflict#268 15b. Theodor Meron legal opinion: http://www.soas.ac.uk/lawpeacemideast/resources/fil e48485.pdf 16. Talia Sasson report: http://rt.com/news/sassonisrael-settlement-money-089/ 17. http://elderofziyon.blogspot.com/2012/07/englishtranslation-of-legalarguments.html?goback=%2Egde_3188536_member_1 34228375 18. http://www.un.org/en/documents/udhr/ 19. Alan Baker, "The Settlements Issue: Distorting the Geneva Convention and the Oslo Accords," http://jcpa.org/article/the-settlements-issuedistorting-the-geneva-convention-and-the-osloaccords/ 20. Levy Report, English Translation, supra. Note #1. 21. UNGA Resolution 181, 1947 Partition Recommendation http://www.yale.edu/lawweb/avalon/un/res181.htm 22.http://www.un.org/en/documents/charter/chapter 12.shtml 23.Howard Grief "Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law" http://www.acpr.org.il/ENGLISH-NATIV/02- issue/grief-2.htm [bracketed material added] 24. Lee, The Mandate for Mesopotamia and the Principle of Trusteeship in English Law, (1921) League of Nations Union, Forgotten Books Critical Reprint Series (2012). 69 See also the International Court of Justice decision in the Namibia case, LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN NAMIBIA (SOUTH-WEST AFRICA) NOTWITHSTANDING SECURITY COUNCIL RESOLUTION 276 (1970) Advisory Opinion of 21 June 1971 25.http://www.nytimes.com/learning/general/onthisd ay/big/1111.html#article 26. http://www.mideastweb.org/zionistborders.htm 27. Treaty of Sevres Article 95, http://www.hri.org/docs/sevres/part3.html 28 Memorandum from Lord Balfour to Lord Curzon, August 11, 1919, Document number 242 from: EL Woodward and Rohan Butler, Documents on British Foreign Policy, 1919-1939. (London: HM Stationery Office, 1952), 340-348. 29. Kirkbride, A Crackle of Thorns, Chapter 3 30. Friedman, Palestine: A Twice-Promised Land, Vol. 1: The British, the Arabs, and Zionism, 1915-1920. (2000) 31. Sacher, The Establishment of a Jewish State, London (1952), Hyperion Reprint edition, 1976 32. Benzimra, The Jewish Peoples Rights to the Land of Israel., note #8 33. See: "Acts of Aggression Provoked, Committed, and Prepared by Arab States in Concert with the Palestine Arab Higher Committee against the Jewish Population of Palestine in an Attempt to Alter by Force the Settlement Envisaged by the General Assembly's Resolution on the Future Government of Palestine," memorandum submitted by the Jewish Agency for Palestine to the 70 United Nations Palestine Commission, Feb. 2, 1948; Moshe Shertok, "Letter from the Jewish Agency for Palestine Dated 29 March 1948, Addressed to the Secretary-General Transmitting a Memorandum on Acts of Arab Aggression," UNSC, S/710, Apr. 5, 1948. http://domino.un.org/pdfs/AAC21JA12.pdf 34. UNGA Res 181, Recommending Partition, note #21, supra. 35. Wall St. Journal, http://www.democraticunderground.com/discuss/du board.php?az=view_all&address=124x352032 36.Myth and Fact http://www.jewishvirtuallibrary.org/jsource/myths3/ MFrefugees.html 37. http://jhvonline.com/jerusalem-our-redeemableright-jews-hold-legal-sovereignty-over-israels-p10173- 96.htm 38. The Iron Cage: The Story of the Palestinian Struggle for Statehood by Rashid Khalidi (Oct 15, 2006) [bracketed material added] 39. "Assessing the Role Palestinians Have Played in the Failed Bid for Statehood," Steven Erlanger, NY Times, Oct. 7, 2006. 40. Riebenfeld, "The Legitimacy of Jewish Settlement in Judea, Samaria and Gaza," in Edward M. Siegel, ed.,41. 41. Tulin, Book of Documents submitted to the United Nations General Assembly Relating to the National Home for the Jewish People, The Jewish Agency, New York, 1947, Tr. 1/30/46 at p. 112. 71 42. Leonard Stein, The Balfour Declaration. Pp. 562, 63. 649. 43. Public Hearings Before the Anglo-American Committee of Inquiry, Jerusalem (Palestine) March, 1946, Albert Hourani, The Case Against a Jewish State in Palestine. Statement to the Anglo-American Committee of Enquiry of 1946 Transcript at P. 80 44. http://www.aijac.org.au/news/article/internationallaw-and-the-arab-israel-conflict