INTERNATIONAL LAW AND THE ARAB-ISRAEL CONFLICT: CONCLUSION The Mandate system was designed to help states that had been subject to Ottoman occupation for 400 years, to become independent

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. [41 --43] 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 Labor 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 Labor 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, the late Julius Sone 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 43 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 44 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]

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 The Jewish People's State — Eretz Yisrael.

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 favor 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] 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 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 1950 that the World Jewry met the tacit standards for vesting of the trust res. They 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 Montivideo 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 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 liberated in 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 area to be ruled, and Jewish capability to exercise sovereignty, was recognized by 53 states in 1922. One of those was the United States. These political rights vested in the Jewish People in 1950 without any fanfare. The second myth is that the "Palestinian People" is a real rather than an invented "people" and that they want a right to self determination under International Law. This is also not correct. Part II corrects this myth. I wrote two articles on these questions that were published by the Think-Israel blog under a non-exclusive license. They are entitled Soviet Russia, the Creators of the PLO and the Palestinian People ( http://www.think-israel.org/brand.russiatheenemy.html ).

: "Was there a Palestine Arab National Movement at the End of the Ottoman Period?" ( http://www.think-Israel.org/brand.palnationalism.html ). The view that a single Jewish state from the Jordan River to the Mediterranean Sea would involve giving up on 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 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 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 Obama-Care 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? Many believe that Woodrow Wilson's Fourteen Points speech in 1918 was the first mention of a right of self-- determination of a people since the time of John Locke. But Woodrow Wilson's Fourteen Points speech focused on three colonies of Turkey, namely Syria, Mesopotamia and Palestine. It was aimed at their decolonization. It was not meant to deal with open ended secession. Only 53 years before, the United States had suffered combat casualties of 215,000 and total casualties of 625,000 in the American Civil War in denying to the Southern Confederacy the right of secession. The American Revolutionary War, on the other hand, was a war to obtain American self--determination by decolonization. So American history itself supports self-determination obtained by decolonization but not when sought by secession where the territorial integrity of a sovereign state is at issue. Territorial integrity of the sovereign state had been the mainstay of the new world order established after the Peace of Westphalia in 1648. It is considered inviolable. Under the current rule of International Law "Without the consent of the existing state, the international community will not recognize secessionist territories as sovereign and independent States.

* * * There is no general right of secession in international law. The principle of sovereign 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 territorial integrity of sovereign states 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 49 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 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. of each provides: "The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. [emphasis added] The Charter requires sovereign equality and hence the inviolability of territorial integrity. In 1970, the UN General Assembly spoke again on self determination in the Declaration On Principles Of International Law Concerning Friendly Relations And Co-Operation Among States In Accordance With The Charter Of The United Nations. This provided: "By virtue of the principle of equal rights and self determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status . . ." But it also said: " Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country." [emphasis added] The most serious problem facing Israel today is the split in unity of its people. That split is being fostered by the current action of the United States on the question of Arab self-determination in Palestine west of the Jordan River. Under International Law, the clear rule is that International Law supports the self-determination of a "people" when it can be attained without affecting the boundary of a sovereign state as is 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 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 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 60%. By 1950 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 power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." Jordan never gained sovereignty over any land west of the Jordan River because it had captured it in an aggressive war. No Arab state recognized Jordan as the sovereign of this territory. In the whole world only two states recognized Jordan as sovereign over territory in the West Bank because to do so would violate International Law of long standing custom as well as the UN Charter.

Eretz Yisrael, the Jewish People's Sovereign State The Government of Israel, the agent of World Jewry has asserted sovereignty over East Jerusalem but not over Judea and Samaria. But those areas also meet the tacit test of the Mandate for vesting of a legal interest in the political rights to those territories. Israel has already asserted its sovereignty over East Jerusalem. And whether the Government of Israel asserts sovereignty or not, 1, The Jewish People have control over Judea and Samaria subject only to the OSLO agreement — an agreement that neither Israel nor its principal need continue to observe because of its material breach by the Arabs, and 2. The Government of Israel has asserted sovereignty over East Jerusalem that the so called Palestinians claim. That means that the Israel territorial boundaries would have to be redrawn to accommodate the territory the Palestinian Authority demands. Russia's Role Since 1950 the Soviet Union has sought domination of the Middle East as a stepping stone to hegemony over Western Europe according to the late Eugene Rostow, Dean of the Yale Law School and Professor of International Law in Palestinian Self-

Determination: Possible Futures for the Unallocated Territories of the Palestine Mandate (1980) "For nearly thirty turbulent years, the Soviet Union has sought control of this geo-political nerve center in order to bring Western Europe into its sphere. Even if Soviet ambitions were confined to Europe, Soviet hegemony in the Middle East would profoundly change the world balance of power. But Soviet control of the Middle East would lead inevitably to further accretions of Soviet power if China, Japan, and many smaller and more vulnerable countries should conclude that the United States had lost the will or the capacity to defend its vital interests, . . ."

* * * "The exploitation of Arab hostility to the Balfour Declaration, the Palestine Mandate, and the existence of Israel has been a major weapon in the Soviet campaign to dominate the Middle East." * * * ". . .the Soviet Union invited Arafat to Moscow, supported his appearance before the United Nations in November, 1974, and increased its pressure for General Assembly resolutions supporting claims of self-determination for the Palestinian Arabs and denouncing Zionism as "racism'" Even if philosopher Allen Buchanan's last resort theory instead of International Law were to be applied, the only evidence of the people hood 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 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. 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)