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 Oxford
They were haled before the Wardens who said they would be punished.
Electronic copy available at: http://ssrn.com/abstract=2385304
2
One of the students pointed to the rule, the Wardens replied: “Read on.” and pointed to another rule two pages on that provided: “When practicing archery one must be wearing Lincoln Green. So Long and the other students were punished. They should have read further.
By the 70s the natural law provision entitling a “people” to self determination had become international law. But the international lawyers drafting these provisions had inserted into the rules a provision for “sovereign equality” — legal code words standing for the proposition that a sovereign may not invade the boundary of another sovereign’s territory. So while the law might provide for the self-determination of a “people”, they could not unilaterally secede from a preexisting state. That is the rule followed by the US
Most people also think that the basis for Israel Palestine
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
Schwebel went on to say there were some International Lawyers that tried to fit 4 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 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
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 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
The chronology 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 Palestine Palestine Jordan River . The Allies disposed of the claims to European territories at Versailles Middle East territories until they had reconvened at San Remo Syria Mesopotamia (now Iraq Palestine Palestine Palestine Jerusalem Syria Palestine Syria Palestine Jordan River had motivated Britain territory of Palestine Jordan Palestine Jordan
In 1947 the British decided to abdicate their responsibilities as trustee of the political rights to Palestine in 1948. The political rights of the Jews matured in 1950 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 can be found 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 responding to Professor Stone's treatise. In it, in an article entitled "The Juridical Basis of Palestinian Self-Determination" 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 7
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
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 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. Part I also discusses the sorry history of Britain
In sum, "the Mandate system provided in Article 22 of the League of Nations’ Covenant 8 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 Palestine
The decision on whether the Arabs or the Jews have sovereignty over all of Palestine 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 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 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
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, a treaty among the Principal Allied War Powers, had adopted the 1917 Balfour Declaration of 10 British Policy [4] with the result that it had now become International Law. The 1922 League of Nations Mandate for
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
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 11 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
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
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. More recently
I have encountered the opinion of the acclaimed international lawyer, the late Julius Stone
of
points of the Levy Report 12 In the Levy Report, the first issue was whether Jewish
settlements in
in 1948 and illegally occupied until 1967, were unlawful.
9
The Israeli Labour Government lawyer, Theodor Meron [15] 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 "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 13 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 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] 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 14 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 — 15 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 a
s 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 16 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 17 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
territory after being the winner of a defensive war the 18 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. These are the rights that entitle political self--‐ determination. 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 19 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 20 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 21 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 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 22 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 British Foreign Ooffice (“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] 23 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.] 24 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 25 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 26 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 27 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 28
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.
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
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 29 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 30 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
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 31 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
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--‐ 32 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. 33 The
change in the Mandate decided after San Remo in March, 1921 was worded
only to be a temporary suspension of Jewish settlement in transJordan but
transJordan eventually matured into the country of Jordan and was eventually
ceded to Abdullah and his Hashemite tribe 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. 34
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 35 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 36 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
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 37 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 38 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 39 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. 40
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. [41 --‐ 43] Before
41 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 42 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.
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