CLAIMS
OF THE JEWISH AND ARAB PEOPLES UNDER INTERNATIONAL LAW TO THE RIGHT OF
POLITICAL SELF DETERMINATION IN PALESTINE
by
Wallace Brand
Introduction
Most
people don't understand that Palestine, or at least the alleged
"Palestinian People," has no right to be sovereign even though they
read UN Conventions dealing with the right of a “people” that appear to say any
"people" has the right to self-determination.
They
haven't obeyed the scholar's imperative: "read on" to where the Charter
provides for "sovereign equality". These are the legal code words
guaranteeing the territorial integrity of sovereign states.
CNH
Long became the Dean of the Yale Medical School Oxford
They
were haled before the Wardens who said they would be punished.
Electronic
copy available at: http://ssrn.com/abstract=2385304
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 League
of Nations
members
in 1922 and the US San Remo
People were persuaded as above because the UN
Committee on the Exercise of the Inalienable Rights of the Palestinian People,
dominated by Arabs and Africans, got a law professor at George Washington
University W.T. Mallison (and his wife Sally) to write
a
legal opinion to the effect that the occupation of Judea and Samaria
Electronic
copy available at: http://ssrn.com/abstract=2385304
Most
people reading it assumed that the UN General Assembly was like the Congress.
They assumed that when the UN General Assembly enacted a resolution, it became
a part of international law. That is not so and the Mallisons did nothing to
disabuse them
of
that assumption. These UN General Assembly resolutions are only
recommendations. If they are accepted by all parties to a dispute, the parties
may enter into a treaty. That becomes a part of international law. See e.g. The
Effect of Resolutions of the U.N.
General
Assembly on Customary International Law by Stephen M. Schwebel, deputy legal
advisor to the US Department of State in Proceedings of the Annual Meeting (American
Society of International Law), Vol. 73(APRIL 26-28, 1979), pp. 301-309.
He
said:
"It
is trite but no less true that the General Assembly of the United Nations lacks
legislative powers. Its resolutions are not, generally speaking, binding on the
States Members of the United Nations or binding in international law at large.
It could hardly be otherwise.
We
do not have a world legislature. If we had one, hopefully it would not be
composed as is the General Assembly on the basis of the unrepresentative
principle of the sovereign equality of states, states which in turn are
represented by governments so many of which are themselves not representative
of their peoples.
"As
the [United States] Secretary of State recently put it: 'In considering the
decision making process in the United Nations, it is important to bear in mind
that while the one-state, one-vote procedure for expressing the sense of the
General Assembly is from many points of view unsatisfactory, the incorporation
of this principle in the Charter was balanced by giving the Assembly only
recommendatory powers.'"
Schwebel
went on to say there were some International Lawyers 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
Mallison's
legal opinion also opined that Arabs residing in Palestine
Mallison ignored that all of Palestine 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
Resolution
of Congress in 1922 and in a separate treaty, the Anglo-American Convention of
1924.
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
though the Jews had enjoyed a majority population
in the Jerusalem
government, rule by a 10% minority — like the
later French recognition of the Alawites as sovereign over Syria that has
resulted in so much death and destruction. To award the Jewish People only the
equitable ownership of the political rights to Palestine — the rights to
self-determination, they would place these political rights in trust, not to
vest until the Jews had both a population majority as well as the capability of
exercising
sovereignty
and would require the trustee to facilitate Jewish immigration (but not
Arab immigration) so as to obtain that majority more quickly. However between
1920 and 1922 events in Syria and in trans-Jordan, Palestine east of the Jordan
River had motivated Britain to limit the area placed in trust for the Jews
to the territory of Palestine west of the Jordan. The Palestine Mandate
was drafted to specify in detail the new British Policy in Article 25, a
temporary limitation on Jewish settlement east of the Jordan
In
1947 the British decided to abdicate their responsibilities as trustee of the
political rights to Palestine
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
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 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 Judea , Samaria 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 Palestine
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 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 Palestine Jordan River . That National Home was
always intended to be a prelude to a reconstituted Jewish State in Palestine Palestine
State
of Israel
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 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, a treaty among the
Principal Allied War Powers, had adopted the 1917 Balfour Declaration of
British Policy [4] with the result that it had now become International Law.
The 1922 League of Nations Mandate for Palestine San Remo Palestine 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
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 East Jerusalem that was not dominated by
an Israeli left wing Labor 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 Jordan
recent politically inspired fabrication as some of
its critics have charged. See especially, "Israel Samaria
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 Australia Israel Palestine Judea , Samaria East Jerusalem , three areas invaded by
the Arab Legion in 1948 and illegally occupied until 1967, were
unlawful.
The Israeli Labour Government lawyer, Theodor
Meron [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 Israel Jordan Jordan Israel
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 trans-Jordan that later became the Nation State of Jordan, invaded
the
area
that had been ruled by the British Mandatory Government for Palestine Palestine
It was soon after the Mandate or trust had been
abandoned by its trustee, Great Britain Israel Israel
Assembly Resolution 181.[21] The Arab Legion was
an Army consisting in the main of Arab trans-Jordanian 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 Judea , Samaria 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 Temple Mount Britain Pakistan Jordan West Bank ". All of Jordan Judea , Samaria 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 Jerusalem Palestine Palestine Palestine
it previously admitted or recognized in a treaty
or other 17 international agreement. In the Convention of 1924, the United States Palestine Land of Israel US Israel Judea , Samaria Gaza
government
of Israel Israel 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 League of Nations name. [24] The Paris Peace Talks and the
decision at San Remo Germany
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 Middle East were also present at the Peace Talks in Paris
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 Paris
essentially
the already decided British policy in the 1917 Balfour Declaration that the
Principal War Powers later adopted at San Remo Palestine
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
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
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 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 Palestine Asia was a fait accompli and
Articles 16 and 30 of the latter treaty left Turkey
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 Palestine Palestine Palestine Jerusalem Palestine 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 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
the U.S. Paris
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
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 Palestine England Palestine
This
was the conclusion in May of 1921, about one year after San Remo University College London University Palestine Syria Mesopotamia have concluded that it
is World Jewry. Compare it yourself with the Mandate for Syria 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
For Mesopotamia , now Iraq
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
However
in the Palestine
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
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
"The
Four Great Powers [Britain Italy United States
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
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
Was
the League
of Nations creator or settler of the trust?
No
it was the Principal Allied Powers who met at 28
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 San Remo Britain
parties
agreed the Mandate would become effective. This raises a question
on whether Britain 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 Palestine
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 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
Mandatory Power in trust for the Jews. Nota bene
that the Mandates for Syria 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 San Remo Palestine Palestine Jordan River known as "trans-Jordan' in
contrast to cis-Jordan that referred to Palestine Jordan Jordan 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 April 25, 1920 agreed to assume the responsibilities of a
fiduciary. The later draft provided for temporarily suspending Jewish
settlement in trans-Jordan. 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 Mesopotamia (now Iraq Arabian peninsula , he told his son Feisal
that he would rule in Syria Iraq
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 Palestine Mesopotamia (now Iraq France Syria England Syria
independence, France Damascus Iraq Jerusalem
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 Cairo March 21, 1921 Churchill decided the best way out of this
problem was to limit the political rights of the Jews to Palestine Jordan
discovery" made by the government that the
framers of the Balfour policy never really wanted to give all of Palestine Palestine
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 Palestine
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
Hussayn understood that Palestine
trans-Jordan eventually matured into the country
of Jordan 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 League of Nations in July, 1922. Britain San Remo 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
change
the terms of the trust the Principals had agreed to at San Remo Britain France Britain
Through the meeting at San Remo San Remo Palestine France
"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 Palestine Palestine
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 Palestine
freeze
Jewish population at about a one third minority. It contemplated a grant
of self government to 35 the population of Palestine San Remo
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
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
interpretation was inconsistent with the express
obligations of the Mandate, i.e. to facilitate Jewish immigration into Palestine
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
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
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 Palestine Palestine 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
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
fled in terror." [36] This massacre rumor was
also a major contributing factor in the exodus of Arabs from Palestine Egypt Jordan
1948 War the Jews weren't 100% successful in
repelling the invasion of the surrounding Arab armies. Jordan
time
the Jews were subject to an arms embargo. The Arab Legion was therefore
successful in invading westward from Jordan East Jerusalem . The Egyptian forces
moved north and got as far as the Gaza
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 Pakistan Jordan Judea , Samaria Egypt
blocked
Israeli shipping through the Straits of Tiran and massed tanks and troops
on its border with Israel
In
1967 Nasser threatened annihilation of the Jews or driving them into the
sea.
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 Palestine
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 Israel
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 Jordan Judea , Samaria 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 Palestine
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 Palestine 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 Palestine
recognized
by the United States
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
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]
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 Yale Law School OSLO
[Part
1.] "The 1920 mandate [for Palestine
[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 Britain Judea , Samaria 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
:
"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 Gaza Gaza
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 Turkey Syria Mesopotamia and Palestine United 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 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 Israel United States Palestine 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
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 Syria Syria Lebanon Mesopotamia (now called Iraq Palestine Palestine 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 Palestine Palestine Syria Mesopotamia were awarded a beneficial
interest in the political rights to those territories and eventually became sovereigns
of those states. The Ottomans (Turkey Palestine Britain Jordan Egypt Judea and Samaria Jordan Jordan River because it had captured
it in an aggressive war. No Arab state recognized Jordan Jordan 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 Israel 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
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
loss of the Judea , Samaria 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
Jewish
People's Rights to Israel Israel Iran Israel Judea and Samaria North Vietnam
When
Netanyahu approves the Levy Report and asserts Jewish sovereignty over Judea and Samaria Israel
END
NOTES
1. Levy Report, English
Translation, http://elderofziyon.blogspot.com/2012/07/
English--‐ translation--‐of--‐
legal--‐ arguments.html?goback=%2Egde_3188536_member_1 34228375 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/E210CA73E38 D9E1D052565FA00705C61
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 Land of Israel
Part
1: http://www.irsraelnationalnews.com/Articles/Article. aspx/11408.
Part
2: http://www.israelnationalnews.com/Articles/Article.a spx/11412.
10.
Cynthia Wallace, "Foundations
of the International Legal Rights of the
Jewish People and the State of Israel and
the Implications for the Proposed New Palestinian
State." 11. http://elderofziyon.blogspot.com/2012/07/english--
translation--of--legal-- arguments.html?goback=%2Egde_3188536_member_1 34228375
12. Israel New York Israel 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 59 and Jerusalem," Think--Israel.org,
http://www.think--israel.org/green.sanremo.html 15. Theodor Meron
opinion: http://www.soas.ac.uk/lawpeacemideast/resources/fil
e48485.pdf
16. Talia Sasson report: http://rt.com/news/sasson--
Israel
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] 60 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/onthisd
ay/big/1111.html#article 26.
http://www.mideastweb.org/zionistborders.htm
27. Treaty of Sevres Article 95,
http://www.hri.org/docs/sevres/part3.html 28
Memorandum from Lord Balfour to Lord Curzon,
August 11, 1919, Document number 242 from:
EL
Woodward
and Rohan Butler, Documents on British Foreign
Policy, 1919--1939. (London: HM Stationery Office,
1952), 340--348. 29. Kirkbride, A Crackle
of Thorns, Chapter 3 30. Friedman, Palestine
A
Twice--Promised Land, Vol. 1: The British,
the Arabs, and Zionism, 1915--‐1920. (2000) 31.
Sacher, The Establishment of a Jewish State,
London
Hyperion Reprint edition, 1976
32. Benzimra, The Jewish Peoples Rights
to the Land of Israel.
http://www.democraticunderground.com/discuss/du
board.php?az=view_all&address=124x352032 36.Myth and Fact
http://www.jewishvirtuallibrary.org/jsource/myths3/
MFrefugees.html 37. http://jhvonline.com/jerusalem--our--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., 62 41.
Tulin, Book of Documents submitted to the United Nations
General Assembly Relating to the National Home for
the Jewish People, The Jewish Agency, New
York, 1947, p. 5,6. Some additional
evidence supporting the propositions in the
foregoing pages: In approving the Balfour
Declaration, Leopold Amery, one of the
Secretaries to the British War Cabinet of 1917--1918
testified under oath to the Anglo--American
Committee of Inquiry in January, 1946 from
his personal knowledge [Tr. 1/30/46, p 112]
that: 1. He believed that the Jewish
National Home was an experiment to determine whether there
would eventually be a Jewish majority over the whole of Palestine.
2. He believed that the territory for which
political rights were to be recognized was
intended to include all of Palestine both
east and west of the Jordan River. 3.
He had always assumed that the particular reference to not infringing the civil
or religious liberties of Arab population was not so much a safeguard
against the British Government infringing those liberties . . ., but a
Jewish state infringing those liberties. Therefore, at the time
that possibility of a Jewish majority over the whole of the larger Palestine Palestine Palestine Palestine Palestine
Declaration
paved the way for a Jewish State
seems to judging from the press, to
have been taken for granted. The headlines
in the London newspapers – ‘A state
for the Jews’ (Daily Express) – ‘Palestine for
the Jews’ (The Times, Morning Post, Daily
News).
The Spectator wrote of ‘the proposal for the
establishment of a Jewish State in Palestine Palestine 30 July
1919 ), in the principle of self--determination, but it could not
be indiscriminately applied to the whole world, and Palestine Jerusalem Palestine
emphasize,
without elaborating what needs no further
elaboration, the unalterable opposition of the
Arab nation to the attempt to impose
a Jewish State upon it. This opposition is
based upon the unwavering conviction of
unshakeable rights and a conviction of the
injustice of forcing a long--settled population
to accept immigrants without its consent
being asked and against its known and
expressed will; the injustice of turning a
majority into a minority in its own
country; the injustice of withholding self--government
until the Zionists are in the majority and able to profit by it. P. 80
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