ROOTS OF ISRAEL'S SOVEREIGNTY AND BOUNDARIES IN INTERNATIONAL LAW: IN DEFENSE OF THE LEVY REPORT
by Wallace Brand
Introduction
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".
Below we tell you who the judges were, what gave them jurisdiction or authority to make the decision, when the competing claims were received and when they were acted upon, how the Judges communicated their decision, and why the decision was to provide a two-step process, first a Jewish National Home and then a Jewish State.
The recent Levy Report is one of a series of legal opinions by several people, each independently reaching the same conclusion. This is the conclusion that World Jewry has had as of 1920, a Jewish National Home in all of Palestine, or since 1922 at least in that part of Palestine west of the Jordan River. That National Home was always intended to be a prelude to a reconstituted Jewish State in Palestine. It was a part of the mandate system provided for in the League of Nations Covenant or charter, Article 22. These mandated areas were areas ruled from afar for many years and were 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 the standards originally established i.e. to attain a majority of Jewish population in the area governed, and to become as capable of exercising sovereignty as any modern European State.
Recent Levy Report on whether settlements in Judea, Samaria and East Jerusalem are illegal
I started my own inquiry and analysis several years ago. It was commenced before the recent publication of the report of the Levy Commission [1] finding that Jewish Settlements in Judea and Samaria were not illegal as Article 49 of the 4th Geneva Convention [2] prohibiting the "deportation or transfer" of its citizens was not applicable to decisions of individual Israeli citizens to move their place of residence. Permitting them to do so or even facilitating the relocation was not the proscribed exercise of State Power. The Levy Report held that the 4th Geneva Convention was directed solely at prohibiting the exercise of state power. 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 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 [5] confirmed the San Remo agreement as the source of Jewish political or national rights to Palestine, with a new Article 25 intended to limit Jewish settlement East of the Jordan River.
Other opinions reaching the same conclusion
In the course of my own inquiry, I learned that before I had started, Dr. Jacques Gauthier had compiled a monumental 1400 page doctoral thesis, [6] Dr. Gauthier's work was followed by a legal tome of 732 pages written by Howard Grief, Esq. a Canadian lawyer now residing in Israel.[7] Grief's book was followed by that of a non-lawyer, Mr. Salomon Benzimra of Toronto, who stated in a much shorter and more readable work — with helpful maps — the factual premises leading to the legal conclusions of Gauthier and Grief. His book was published in Kindle by Amazon in November, 2011. [8] My own view was initially published on-line in a blog — Think-Israel.org — but thereafter, with greater 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 Justice Edmund Levy, formerly a Justice of the Supreme Court of Israel. These jurists, for the first time, delivered an opinion on the status of Judea, Samaria and East Jerusalem that was not dominated by an Israeli left wing Labour Government.
All these opinions have only minor differences and reach the same conclusion — that World Jewry owns the political or national rights to all of Palestine West of the Jordan, and possibly some of that east of the Jordan as well. Legal opinions reaching the same conclusion, to my knowledge, go back at least to 1993 [12] so it cannot be said to be a recent politically inspired fabrication as some of its critics have charged. See especially, "Israel's Rights to Samaria" [13] and excellent articles by Douglas Feith and Elliott A. Green.[14] Feith was later the Deputy Secretary of Defense for Policy under Rumsfeld in the George W Bush Administration; Elliott Green is an Israeli researcher. The critics with this view have responded
ad hominem but few have raised issues of fact or law.
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 Labour government lawyer, Theodor Meron [15] had suggested the proper law to apply was the law of "belligerent occupation." Military occupation occurs when a belligerent state invades the territory of another sovereign state with the intention of holding the territory at least temporarily. That law is based on Article 43 of the 4th Hague Convention of 1907 that assumes that land being occupied has a legitimate sovereign. It is not applicable because Jordan was illegally occupying it after an aggressive invasion in 1948. Another Labour Party lawyer, Talia Sasson, [16] also claimed the occupation was illegal, also assumed belligerent occupation, and strongly criticized the settlements. But even if belligerent occupation were found applicable, there would have to be shown that under the Geneva Convention the state of Israel had "deported or transferred" the "settlers". These "settlers" [17] were individuals who had decided on their own for economic or religious reasons to move to a new place to live outside the 1949 Armistice "Green Line". Some of them were re-settlers, who just wanted to return to 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 to go back home, no state had "transferred" them. They simply moved for their own reasons.
The term "transfer" must be distorted to be applied to situations it simply was not intended to cover such as a movement of that kind. The 4th Geneva Convention is directed at state action, not the action of individuals. The earlier opinions of Labour Government lawyers took a Convention that was directed at states and attempted to apply it to individuals by holding that it meant that the State of Israel was required to prevent its citizens from moving where they wanted to even though preventing them from doing so would violate the UN Universal Declaration of Human Rights, Articles 13 and 15(2).[18] One of the authors of the Levy Report had in 2011 written about the interpretation that distorted the word "transfer".[19]
After finding that the Geneva Convention did not apply, the Levy Commission looked to determine the state that did have sovereignty over the area conquered by the Arab Legion in 1948.[20]
In 1948, the Arab Legion, acting as the army of transJordan that later became the Nation State of Jordan, invaded the area that had been ruled by the 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]
The Arab Legion was an Army consisting in the main of Arab transJordanian soldiers but they were supplied with arms by the British and led by British Officers under the command of British General Glubb, (Glubb Pasha) even though Britain the US and many other countries had embargoed arms to Israel. For some 19 years, from 1948 to 1967, Jordan illegally occupied what had been Judea, Samaria and East Jerusalem. Under its rule all the 58 synagogues in the area but one were destroyed; some 38,000 tombstones from the Jewish Cemetery on the Mount of Olives were broken or defaced; all Jews were expelled from the area it acquired. Jordan's promises in the 1948 Armistice Agreement to permit visits by Christians and Jews to their holy places were not kept. In 1967, when the IDF reached the Western Wall of the Temple Mount, they found a latrine had been built against it.
While the former leftist Labour Government lawyers had held after 1967 that Israeli was holding the territory under the Law of Belligerent Occupation, it is hard to see how they arrived at that conclusion. That doctrine only applies to belligerent occupation against a lawful sovereign in an area. Only two countries in 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 and a Jewish state. In that resolution Jerusalem and the nearby holy places were to be held separately as a
corpus separatum at least temporarily under control of the UN. It was a recommendation that had no force and no effect because one of the parties it was addressed to, the Arabs, rejected it and went to war.
What is International Law
International Law is created by treaties (also called "conventions) between and among states or by long standing custom. International Law cannot be created by the UN. The UN General Assembly does not have that authority; nor does any international entity. The International Court of Justice has no authority to create International law. This is particularly true where International Law recognizes sovereignty over areas such as Palestine. That is because the UN Charter in Article 80 says in pertinent part, "...nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties. [22]
Its being saved is also the consequence of the legal doctrines of "acquired legal rights" and of "estoppel. As explained by Howard Grief "the principle of 'acquired legal rights' which, as applied to the Jewish people, means that the rights they acquired or were recognized as belonging to them when Palestine was legally recognized by 52 nations as the Jewish National Home [as a prelude to a reconstituted Jewish State] are not affected by the termination of the treaty or the acts of international law which were the source of those rights. This principle already existed when the Anglo-American Convention came to an end simultaneously with the termination of the Mandate for Palestine on May 14-15, 1948. It has since been codified in Article 70(1)(b) of the 1969 Vienna Convention on the Law of Treaties. This principle of international law would apply even if one of the parties to the treaty failed to perform the obligations imposed on it, as was the case with the British government in regard to the Mandate for Palestine.
The reverse side of the principle of acquired legal rights is the doctrine of estoppel which is also of great importance in preserving Jewish national rights. This doctrine prohibits any state from denying what it previously admitted or recognized in a treaty or other international agreement. In the Convention of 1924, the United States recognized all the rights recognized as belonging to the Jewish people under the Mandate, in particular the right of Jewish settlement anywhere in Palestine or the Land of Israel. Therefore the US government is legally estopped today from denying the right of Jews in Israel to establish settlements in Judea, Samaria and Gaza, which have been approved by the government of Israel." [23]
Article 80 is in UN Chapter XII that gives the UN the authority to establish and administer trust territories. That is pertinent because Israel once was a "mandate". The UN calls them "trusteeships". "Mandate" is what the League of Nations, the UN's predecessor in world government called an area placed in trust until it was capable of self government. Recognition of this political or national right was saved by Jews concerned about the rights under the British Mandate for Palestine when the UN was given authority to deal with trusteeships as the Mandate was a trusteeship under the League of Nations name. [24]
The Paris Peace Talks and the decision at San 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 to be entitled The League of Nations. Its Covenant or charter was Part one of the Treaty of Versailles. The participants to the Paris Peace talks included the Principal War Powers and European claimants primarily interested in territories in Europe. Even before the end of the war, in November, 1917 the Lord Balfour Policy had been established as British policy that World Jewry would be the beneficiary of the trust of the political or national rights to Palestine. 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.
"Palestine shall be placed under such political, administrative and economic conditions as will secure the establishment there of the Jewish National Home and ultimately render possible the creation of an autonomous Commonwealth, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine or the rights and political status enjoyed by Jews in any other country.[emphasis added]
To this end the Mandatory Power shall
inter alia:
Promote Jewish immigration and close settlement on the land, the established rights of the present non-Jewish population being equitably safeguarded.
Accept the cooperation in such measures of a Council representative of the Jews of Palestine and of the world that may be established for the development of the Jewish National Home in Palestine and entrust the organization of Jewish education to such Council
On being satisfied that the constitution of such Council precludes the making of private profit, offer to the Council in priority any concession for public works or for the development of natural resources that it may be found desirable to grant The Mandatory Power shall encourage the widest measure of self-government for localities practicable in the conditions of the country
There shall be forever the fullest freedom of religious worship for all creeds in Palestine. There shall be no discrimination among the inhabitants with regard to citizenship and civil rights, on the grounds of religion, or of race" [25]
What the Zionist organization was asking for in Paris in 1919 was essentially the already decided British policy in the 1917 Balfour Declaration that the Principal War Powers later adopted at San Remo in 1920: That the Jews wanted essentially a protectorate that would ultimately transition into a reconstituted state was well known as even the small Jewish population in Palestine did not believe it was ready to exercise sovereignty. As reported in the Voltaire Network, a somewhat anti-semitic news network, of the three things the Jewish People wanted, one was "the establishment of a Jewish National Home in Palestine
as a prelude to a reconstituted Jewish state". [emphasis added] [26]
The Principal War Powers were able to complete their review and implement its action on the claims over European territories in the Paris Peace Talks. The written decision is within part II of the Treaty of Versailles. They needed to extend their deliberations to decide on the claims on what had been Ottoman territory in the Middle East. To do just that, they met again in San Remo, Italy in April, 1920 and dealt with the Arab and Jewish claims on April 24th and 25th. At the end of that meeting, the claims were
res judicata. The WWI Principal War Powers decided to recognize the then current Arab inhabitants of Syria and Mesopotamia as the beneficial owners of the political powers for those countries but adopt the British Balfour policy and recognize World Jewry as the beneficial owner of the political rights to Palestine.
Three documents recorded the decision of the Principal War Powers on Palestine: the Treaty of Sevres, the Treaty of Lausanne, and the San Remo Resolution. Article 95 of the Treaty of Sevres was confirmed by the later Treaty of Lausanne as by that time the cession — transfer of sovereignty; 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 cession 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 all of Palestine, as of 1917, the BFO estimated Jewish population at only 10% of the total.
Critics of the Balfour Policy had argued that a government ruled by a "people" that was only a 10% minority would be "antidemocratic". The BFO countered this argument by saying that even though Britain agreed with the "antidemocratic" argument in principle, as applied to the proposed Balfour policy the argument was "imaginary". In a memorandum of September 19, 1917, Arnold Toynbee and Lewis Namier, speaking for the BFO, said that the political rights would initially be placed in trust — the trustee likely being England or the United States. The trustee would have legal dominion over the political rights and although the Jews would have a beneficial interest, the legal interest would not vest until such time as the Jews had attained a majority population in Palestine and were as fully capable of exercising sovereignty as a modern European state. Their decision was later incorporated in article 95 of the treaty of Sevres by a cession of Ottoman sovereignty over Palestine to that trustee, incorporated in the San Remo Resolution and to be defined in greater detail in the Mandate for Palestine.[27]
This same recommendation for a two step process was incorporated in the discussion in the Briefing Document of the U.S. Delegation to the Paris Peace Conference, in 1919.
"3. It is recommended that the Jews be invited to return to Palestine and settle there, being assured by the Conference of all proper assistance in so doing that may be consistent with the protection of the personal (especially the religious) and the property rights of the non-Jewish population, and being further assured that it will be the policy of the League of Nations to recognize Palestine as a Jewish state as soon as it is a Jewish state in fact.
"It is right that Palestine should become a Jewish state, if the Jews, being given the full opportunity, make it such. It was the cradle and home of their vital race, which has made large spiritual contribution to mankind, and is the only land in which they can hope to find a home of their own; they being in this last respect unique among significant peoples.
"At present, however, the Jews form barely a sixth of the total population of 700,000 in Palestine, and whether they are to form a majority, or even a plurality, of the population in the future state remains uncertain. Palestine, in short, is far from being a Jewish country now. England, as mandatory, can be relied on to give the Jews the privileged position they should have without sacrificing the rights of non-Jews." [Note #12, p. 113.]
Woodrow Wilson had stated in 1919 "I am persuaded that the Allied nations, with the fullest concurrence of our own government and people, are agreed that in Palestine shall be laid the foundations of a Jewish Commonwealth."
A Mandate is a trust
The term "Mandate" applied in this context is confusing. It seems to mean an "order". But construed in the light of Article 22 of the Covenant or Charter of the League of Nations, it is clear that in the case of Mandates created as envisioned by Article 22 of the League Covenant or charter, such as the Mandates for Palestine, Syria and Mesopotamia, it means a device which was created under the British legal concepts of trusts and guardianships. This was the conclusion in May of 1921, about one year after San Remo, by a British barrister and member of the NY bar Duncan Campbell Lee in his lecture at University College, London University entitled "The Mandate for Mespotamia and the Principle of Trusteeship in English Law." [Note #24] If the Mandate is a trust, what is the
trust res, the thing placed in trust? It must be the political or national rights to Palestine. The most important question is "Who is the beneficiary of the trust? All who have looked at the trust and compared it with trusts for Syria and Mesopotamia have concluded that it is World Jewry.
Compare it yourself with the Mandate for Syria and the Mandate for Mesopotamia. For the latter, "This Organic law shall be formed in
agreement with the native authorities and shall take into account the rights, interests and wishes of all the Population inhabiting the mandated territory, (Article 1 of the Mandate for Syria and The Lebanon) For Mesopotamia, now Iraq, the mandate provided: This Organic law shall be framed
in consultation with the native authorities and shall take into account the rights, interests and wishes of all the population of the mandated territory. (Article 1 of the Mespotamia [Iraq] Mandate. [emphasis added}
However in the Palestine Mandate, Article 2 says "The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions
as will secure the establishment of the Jewish national home as laid down in the preamble and the establishment of self governing institutions" [emphasis added].
And the preamble states "Whereas the Principle Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2, 1917, by the Government of His Britannic Majesty [The Balfour Declaration] and adopted by the said Powers in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of the non-Jewish communities in Palestine ... and Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country; ..."
Compare the Mandates
It seems clear that in the other mandates, the rights, interests and wishes of the then current inhabitants are to be taken into account but in Palestine Mandate they were ignored in favor of a Jewish National Home in which solely the advice of the Zionist Organization was to be taken into account (Mandate Article 4). In the Palestine Mandate only Jewish immigration was expressly required to be facilitated with the result that eventually a Jewish population majority would have been attained. (Mandate article 6) It therefore appears that the Jewish National Home was a beneficial interest in the political rights to Palestine, to mature into a later legal interest in those rights and sovereignty for them. However for the non Jews in the existing population, it provided only protection for their civil and religious rights after Jewish sovereignty was achieved. It is Jewish immigration alone that must be facilitated. It is the Zionist Organization alone reflecting the rights, interests and wishes of World Jewry that was the appointed advisor to the Administration set up by the trustee to administer the Mandate.
Balfour resigned as foreign secretary following the Paris Conference in 1919, but continued in the Cabinet as lord president of the council. In a memorandum of August 11, 1919 addressed to new Foreign Secretary Lord Curzon, he stated ...
"All of the other engagements contained pledges that the Arab or Muslim populations could establish national governments of their own choosing according to the principle of self-determination. Balfour explained: "... in Palestine we do not propose to even go through the form of consulting the wishes of the present (majority) inhabitants of the country ..."
Balfour stated explicitly to Curzon:
"The Four Great Powers [Britain, France, Italy and the United States] are committed to Zionism. And Zionism, be it right or wrong, good or bad, is rooted in age-long traditions, in present needs, and future hopes, of far profounder import than the desires and prejudices of the 700,000 Arabs who now inhabit that ancient land. In my opinion that is right." * * * * *
He continued:
"I do not think that Zionism will hurt the Arabs, but they will never say they want it. Whatever be the future of Palestine it is not now an 'independent nation', nor is it yet on the way to become one. Whatever deference should be paid to the views of those living there, the Powers in their selection of a mandatory do not propose, as I understand the matter, to consult them."..."If Zionism is to influence the Jewish problem throughout the world, Palestine must be made available for the largest number of Jewish immigrants"[28]
Was the League of Nations creator or settler of the trust? No it was the Principal Allied Powers who met at San Remo according to Douglas Feith [Note #14]. It is they who by winning the war had the authority to dispose of the territories as they saw fit. It is also those Powers, not the League who accepted Britain's offer to serve as Mandatory Power or Trustee at San Remo.
A Trustee has fiduciary obligations
Britain's offer and the Principal Allied Power's acceptance of Britain as Trustee on April 25, 1920 created a fiduciary relationship between the beneficiary, 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 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.
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 power. In the secret Sykes-Picot agreement, the Governments of Europe split up the former Ottoman territory into spheres of influence. England was to get Palestine and Mesopotamia (now Iraq), and France would get Syria.
Immediately after the war, England had placed Feisal on the throne in Syria. When he asserted independence, France was offended and after the Battle of Maysalun, it deposed Feisal. Abdullah, who was very warlike, marched his army into transJordan and made ready to attack Damascus. Churchill did not want the Arabs to war against the French so he gave the throne of Iraq to Feisal. The story can be filled in from the Diary of Sir Alec Kirkbride, one of three British officers who were told after WWI to set up governments in transJordan. After he had set up a government Kirkbride was warned that Abdullah was marching his army toward his area and wired the British headquarters in Jerusalem. They wired back telling Kirkbride to ignore the warning as Abdullah would never invade a territory being ruled by His Majesty's government. When Abdullah did, in fact, show up, Kirkbride had only a few policeman to help him and wisely decided not to fight. He wired Jerusalem once again and this time His Majesty's government, decided that it was a
fait accompli. At a meeting in Cairo on March 21, 1921 Churchill decided the best way out of this problem was to limit the political rights of the Jews to Palestine west of the Jordan. Kirkbride then chuckles over the "remarkable discovery" made by the government that the framers of the Balfour policy never really wanted to give all of Palestine to World Jewry for its Jewish National Home. Why then did the Toynbee-Namier memorandum predating the Balfour Declaration assume that the 600,000 total population of all of Palestine would be under Jewish rule but for putting the political rights in trust? [29]
As for the Hussayn-McMahon correspondence, George Antonius claimed that the British had promised King Ibn Hussayn the rule of Syria, and Palestine as well as the Arabian Peninsula if he got the Arab tribesmen to revolt against the Ottomans. But as shown by Isaiah Friedman, Hussayn had told McMahon that he would get some 258,000 fighters to fight on behalf of the British and at the most came up with about 5,000.[30] It appears there was a failure of consideration for any promise McMahon had made. There was a question on whether Hussayn was promised any territory that his own fighters had not conquered. And in fact in Syria and Palestine none of the Arabs fought on the side of the British and many fought for the Ottomans. Finally assuming these were not a problem there was a dispute over the territory that Hussayn was promised even though his fighters had conquered it. A line was drawn that would eliminate territory to the west and south of the line as being an area that should be under the control of others and Palestine was excluded and according to the British, Hussayn understood that Palestine was excluded. Moreover the British also contended that the Hussayn-McMahon Correspondence had never matured into a final agreement.
The change in the Mandate decided after San Remo in March, 1921 was worded only to be a temporary suspension of Jewish settlement in transJordan but transJordan eventually matured into the country of Jordan and was eventually ceded to Abdullah and his Hashemite tribe even though Abdullah and his Tribe was a "foreign power" from the Hedjaz of the Arabian Peninsula, expressly prohibited from receiving any of the political rights in trust.
This, the 1922 White Paper was the first example of England breaking its obligations to the Jews. It would do so again and again in the White Papers of 1930 and 1939 even after the confirmation of the Mandate by the League of Nations in July, 1922. Britain had volunteered at San Remo in April to be the mandatory power or trustee of the League of Nations Mandate for Palestine. As a trustee it owed the beneficial owner of the
trust res the obligations of a fiduciary. A fiduciary's obligation is to prefer its beneficiary's interests over those of its own. Yet England in July, 1922 had persuaded the League to change the terms of the trust the Principals had agreed to at San Remo, to solve Britain's own political difficulties with France. This cost the beneficiary, World Jewry. some 40% of the territory extending east to the Hejaz Railway that had initially been recognized by the Principal Allied Powers as the area they wanted recognized as Jewish.
Britain's retreat from the Balfour policy.
Through the meeting at San Remo, all the Principal War Powers were very protective of the rights of World Jewry. When at San Remo, the French wanted to amend the "savings clause" saving the "civil and religious rights" of non Jewish communities when the Jews ultimately exercised sovereignty in Palestine, to add "political rights" the British and the other Principal War Powers declined to accept the amendment. France was satisfied with a "
process verbal" a side agreement noted in the minutes explaining that the savings clause meant that the non-Jews would not have to surrender any of their rights. That was acceptable to the others because all knew that the Arabs in Palestine had never exercised sovereignty there. The only "people" in Palestine that had exercised self government in Palestine was the Jews. After the Churchill White Paper of 1922 diminished Jewish rights East of the Jordan River, Perfidious Albion continued to abuse its position as Mandatory Power or trustee in the British Passfield White Paper of 1930 and the MacDonald White Paper of 1939. In 1939 it adopted a British White paper blocking further Jewish immigration into Palestine West of the Jordan at the request of the Arabs. It did this despite an express requirement of the Mandate or trust that the trustee should "facilitate" Jewish immigration" into Palestine so that the Jews would ultimately become the majority population and the Jewish National Home could change into a reconstituted Jewish state. The 1939 White Paper would freeze Jewish population at about a one third minority. It contemplated a grant of self government to the population of Palestine in 1949 but with Jewish immigration blocked, there would still be an Arab majority.
Many of those who had participated in the original deliberations on the Balfour policy that had been adopted at San Remo strongly objected. David Lloyd-George who had been the Prime Minister of England then, characterized this action as "an act of national perfidy which will bring dishonor to the British name." Winston Churchill, in the House of Commons, condemned the Paper as "plainly a breach and repudiation of the Balfour Declaration" and he referred to it as "another Munich" (Neville Chamberlain was Prime Minister in 1939). Harry Truman, then a U.S. Senator also criticized the 1939 White Paper as a "repudiation of British obligations" and President Franklin Roosevelt expressed his "dismay [at] the decisions of the British Government regarding its Palestine Policy". That 1939 White Paper even blocked the sale of property in Palestine to the Jews.
The MacDonald 1939 White Paper was Illegal
But even more importantly, the League of Nations Permanent Mandates Commission whose duty it was to oversee the Mandatories appointed by the League, was unanimous that the interpretation on which the 1939 White Paper was based was inconsistent with the interpretation previously placed on it by the Mandatory. That Commission, by a majority, ruled that the interpretation was inconsistent with the express obligations of the Mandate, i.e. to facilitate Jewish immigration into Palestine so that the Jews would become a majority and could become a reconstituted Jewish State.
Under the terms of the 1939 White Paper a single Arab majority state was contemplated by 1949, completely abandoning the objective of the Balfour Agreement. This was a unilateral measure without the prior consent of the Council of the League of Nations, therefore violating Article 27 of the Mandate that required its approval before any modification. A meeting of that Council was scheduled for September 8, 1939 but was never held because of the outbreak of WWII. Nevertheless the British, for the next ten years from 1939 until May, 1948 viciously enforced an illegal blockade preventing Jews from fleeing death in Nazi extermination camps and later blocking Holocaust survivors from reaching sanctuary in Israel even though the blockade had been determined to be illegal by the Permanent Mandates Commission authorized to make that determination. Its enforcement contributed to the death of some six million Jews who were trying to flee from the European Holocaust. It lasted, because of the obsessed Ernest Bevin, even after the war, blocking Holocaust survivors from entering a place where they could received help from others of their people.[31] [32]
In 1947 the British after seeking monetary and military aid from the United States that was denied, announced its proposed abandonment in 1948 of its trusteeship that it said it could no longer afford. The UN, had replaced the League of Nations as world government, and this new world government included the United States as a member. It had as Article 80 of its Charter, preserved the recognition by its 51-state membership of the Jews ownership of the political rights to Palestine, now reduced to Palestine west of the Jordan River. The UN formed a special committee to determine what should be done, because of the threatened violence of the Arabs. [33]
The UN Partition Recommendation
The UN General Assembly, after the Special Committee completed its deliberations, enacted a resolution, Resolution 181 [34] recommending that Palestine West of the Jordan should be divided into Arab and Jewish states and a
Corpus Separatum encompassing Jerusalem and surrounding religious holy sites. Such a recommendation is of no continuing force and effect unless both parties to it accept the recommendation. One party, the Jews, did. They were willing to give up much of their political rights in exchange for an end to the threats of violence and so they could aid in the immigration of Holocaust survivors.
The Secretary General of the Arab League had threatened war. He said: "This war will be a war of extermination and a momentous massacre which will be spoken of like the Mongol massacre and the Crusades." The Arabs declined to accept the compromise and went to war. The Arab warfare was initially conducted by Arabs local to Palestine but was soon joined by seven armies of surrounding Arab States. Some 450,000 to 700,000 Arabs fled without seeing a single Jewish soldier although a few at Ramle and Lydda were removed by the Jewish forces because after agreeing to an armistice they had resumed fighting and the Jews did not want them in back of their lines. As to almost all the rest, the rich left first, followed by many more at the urging of the Arab Higher Committee who asked them to get out of the way of the invading armies. It predicted the defeat of the Jews in some two weeks and assured them that the Arabs could then return. Mahmoud Abbas (Abu Mazen) wrote an article in the official organ of the PLO, "Filastin", complaining of this, and that when the Arab armies lost, the refugees were imprisoned in camps in the neighboring Arab states [35]. Hazam Nusseibeh, who worked for the Palestine Broadcasting Service in 1948, admitted being told by Hussein Khalidi, a Palestinian Arab leader, to fabricate the atrocity claims. Abu Mahmud, a Deir Yassin resident in 1948 told Khalidi "there was no rape," but Khalidi replied, "We have to say this, so the Arab armies will come to liberate Palestine from the Jews." Nusseibeh told the BBC 50 years later, "This was our biggest mistake. We did not realize how our people would react. As soon as they heard that women had been raped at Deir Yassin, Palestinians fled in terror." [36] This massacre rumor was also a major contributing factor in the exodus of Arabs from Palestine. Those who fled were not invited back by the Jews who won. No peace treaty was signed until many years later and the Jews did not want to have a Fifth Column in their midst. The treaties that were signed with Egypt did not reestablish normal relations. It has been a cold peace. The peace with Jordan has perhaps been a little better.
In the 1948 War the Jews weren't 100% successful in repelling the invasion of the surrounding Arab armies. Jordan, at the time, had for its armed forces The Arab Legion, supplied by the British and led by British Officers. At the same time the Jews were subject to an arms embargo. The Arab Legion was therefore successful in invading westward from Jordan, to and including East Jerusalem. The Egyptian forces moved north and got as far as the Gaza strip. Under International Law this territory, having been won in an aggressive war, the capture of this land did not gain the invaders the political rights to it. Only Britain and Pakistan recognized Jordan as holding sovereignty over it.
Israeli liberation of Judea, Samaria and East Jerusalem
In 1967, once again Arabs threatened to annihilate the Jews. Egypt blocked Israeli shipping through the Straits of Tiran and massed tanks and troops on its border with Israel. It ordered the UN buffer force, established in 1956, to leave and the UN buffer forces left without even seeking UN approval. Nasser threatened annihilation of the Jews or driving them into the sea. Israel struck back at Egypt but even after being shelled by Jordanian artillery, sent a note to King of Jordan saying that if they stopped the shelling they need not be a part of the war. Jordan declined and its army in Judea, Samaria and East Jerusalem was driven back to the Jordan River by the Jews.
CONCLUSION
The Mandate system was designed to help states that had been subject to Ottoman occupation for 400 years, to become independent after they learned democratic principles, formed political parties and were able to self govern. An exception was the Mandate for Israel where the Jewish People who had been driven out of Palestine and dispersed by the Romans, were recognized as the owners of the political rights. There the tacit standard for ending the Mandate was the attainment of a Jewish population majority in the area they were to govern and their capability to exercise sovereignty. Before enacting the Partition Resolution of 1947, the UN in effect found the Jews were capable of exercising sovereignty. The resolution itself was only a failed recommendation and the partition had no continuing force and effect. When the trustee, Britain, abandoned its trust in May, 1948, the beneficiary of the 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, just three years later, by 1950 the Jews had attained a majority of the population of the area within the Armistice line.
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 states. Even with the change of Paragraph 25 suspending the right to settle East Palestine, there remained for World Jewry a right to Palestine west of the Jordan approved by the 51 countries in the League of Nations and by the US, who had declined membership — a total of 52 countries. But the thrust of the Labour Government claim was not the San Remo Agreement but under facts occurring in 1948 and thereafter. The Israeli Government said that Jordan's aggression in 1948 resulted in Jordan never obtaining sovereignty over Judea, Samaria and East Jerusalem. So when in 1967 in a defensive war, it drove the Jordanians out of that area, it was thereafter not engaged in a belligerent occupation. Jordan was not a legitimate sovereign but was illegally occupying an area that was disputed and in which the Jews had the better claim. The Government of Israel never directly made the claim based on the competing Arab and Jewish claims made at the Paris Peace talks and the disposition of them in the Treaty of Sevres, the San Remo Resolution and the Mandate for Palestine. It only hinted at it.
Now, Douglas Feith, Jacques Gauthier, Howard Grief, Salomon Benzimra, Cynthia Wallace, former Israel Supreme Court Justice Levy and his two distinguished colleagues, Alan Baker, Tshia Shapira, and I are directly making that claim. By now it should be perfectly clear that the claim is not based on the UN General Assembly partition resolution of 1947, nor is it based only on facts occurring in 1948 and thereafter. It is based on facts commencing as early as 1917 when the British adopted its Balfour policy and it became International Law on the agreement of the Principal War Powers at San Remo in 1920 after consideration of both the claims of the Arabs and that of the Jews to the political or national rights to Palestine. It was confirmed by the League's action on at least Palestine West of the Jordan River by the 51 nations that were its members. It is based on the presentation of the competing claims of the Arabs and Jews submitted to the Principal War Powers at the Paris Peace Conference and the adjudication and ruling on those claims at San Remo in detail in the order that was called the League of Nations Mandate for Palestine. It is based on the legal doctrines of "acquired rights" and "estoppel" that prohibits any state from denying what it previously admitted or recognized in a treaty or other international agreement. It is based on Article 80 of the UN Charter that preserves political rights that had been recognized by the United States and Principal Allied Powers in the 1920s. While Chaim Weizmann and some of the Zionist Organization had been willing to give up those rights, many had never agreed to it and split off into another organization headed by Jabotinsky.
Even despite accepting the later loss of transJordan, Chaim Weizmann, instrumental in obtaining the Balfour 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]
END NOTES1. Levy Report, English Translation,
http://elderofziyon.blogspot.com/2012/07/english-translation-of- legal-arguments.html?goback=%2Egde_3188536_member_134228375
2. Fourth Geneva Convention, Article 49,
http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=3ae6b36d2
3. San Remo Resolution,
http://www.cfr.org/israel/san-remo-resolution/p15248
4. Balfour Declaration,
http://unispal.un.org/UNISPAL.NSF/0/E210CA73E38D9E1D052565FA00705C61
5. British Mandate for Palestine, (1922)
See Hertz, "Mandate for Palestine," Appendix A,
http://www.mythsandfacts.org/conflict/mandate_for_palestine/mandate_for_palestine.htm or http://www.think-israel.org/hertz.palestinemandate-html.html. Both versions include maps and additional material.
6.
Sovereignty Over the Old City of Jerusalem; A Study of the Historical, Religious, Political and Legal Aspects of the Question of the Old City, submitted by Dr. Jacques Gauthier as a thesis to the University of Geneva in 2007.
7. Howard Grief,
Legal Foundations and Boundaries of Israel under International Law 8. Salomon Benzimra,
The Jewish Peoples' Rights to the Land of Israel9. Wallace Brand, op ed, Part 1:
http://www.irsraelnationalnews.com/Articles/Article.aspx/11408. Part 2:
http://www.israelnationalnews.com/Articles/Article.aspx/11412.
10. Cynthia Wallace, "Foundations of the International Legal Rights of the Jewish People and the State of Israel and the Implications for the Proposed New Palestinian State."
11. http://elderofziyon.blogspot.com/2012/07/english-translation-of-legal-arguments.html?goback=%2Egde_3188536_member_134228375
12.
Israel's Legitimacy in Law and History, edited by Edward M. Siegel, Esq., Center for Near East Policy Research, New York (1993). pp 113.
13."Israel's Legal Right to Samaria,"
http://shomroncentral.blogspot.com/p/5-legal-rights-to-samaria.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.think-israel.org/green.sanremo.html
15. Theodor Meron opinion:
http://www.soas.ac.uk/lawpeacemideast/resources/file48485.pdf
16. Talia Sasson report:
http://rt.com/news/sasson-israel-settlement-money-089/
17. http://elderofziyon.blogspot.com/2012/07/english-translation-of-legal-arguments.html?goback=%2Egde_3188536_member_134228375
18. http://www.un.org/en/documents/udhr/
19. Alan Baker, "The Settlements Issue: Distorting the Geneva Convention and the Oslo Accords,"
http://jcpa.org/article/the-settlements-issue-distorting-the-geneva-convention-and-the-oslo-accords/
20. Levy Report, English Translation,
supra. Note #1.
21. UNGA Resolution 181, 1947 Partition Recommendation
http://www.yale.edu/lawweb/avalon/un/res181.htm
22.http://www.un.org/en/documents/charter/chapter12.shtml
23.Howard Grief "
Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law"
http://www.acpr.org.il/ENGLISH-NATIV/02-issue/grief-2.htm [bracketed material added]
24. Lee,
The Mandate for Mesopotamia and the Principle of Trusteeship in English Law, (1921) League of Nations Union, Forgotten Books Critical Reprint Series (2012). See also the International Court of Justice decision in the Namibia case, LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN NAMIBIA (SOUTH-WEST AFRICA) NOTWITHSTANDING SECURITY COUNCIL RESOLUTION 276 (1970) Advisory Opinion of 21 June 1971
25.http://www.nytimes.com/learning/general/onthisday/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 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/duboard.php?az=view_all&address=124x352032
36.Myth and Fact
http://www.jewishvirtuallibrary.org/jsource/myths3/MFrefugees.html
37. http://jhvonline.com/jerusalem-our-redeemable-right-jews-hold-legal-sovereignty-over-israels-p10173-96.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.,
Israel's Legitimacy in Law and History, note #12
supra, pp. 55,56.
Wallace Edward Brand, JD, is an alumnus of Harvard and UCLA. He is a retired lawyer living in Virginia. This article was submitted April 18, 2013.
