THE RIGHTS OF THE JEWISH PEOPLE OVER THE LAND OF ISRAEL UNDER INTERNATIONAL LAW
by Howard Grief
This Lecture* was delivered By Attorney Howard Grief at the Ashkelon Municipality Cultural Hall at 11 A.M. on December 5, 2010. The conference was sponsored by The Academic College Of Ashkelon.
Good morning, Honoured Guests from Europe, Ladies and Gentlemen,
I am honoured to address you about the legal rights of the Jewish People over the Land of Israel and former Mandated Palestine under international law, the subject of the book I wrote, The Legal Foundation and Borders of Israel under International Law, published exactly two years ago. As a practicing attorney for many years, formerly in Montreal, Canada, and then in Israel, who has also served as a legal adviser to Professor Yuval Ne'eman, when he was the Minister of Energy and Infrastructure in the Yitzhak Shamir Government, the subject of Jewish legal rights to the land we live in has always been very close to my heart. Today, Israel is whip-lashed and denounced all over the globe — even in friendly countries, in Europe and the United States — for occupying land to which it supposedly has no right. That criticism of Israel flies in the face of various basic documents of international law that were formulated at the end of the First World War, that specifically reserved the land of Palestine — in its entirety — for the Jewish People, to the exclusion of any foreign — especially Arab — claim to it. These rights have never been legally altered — I stress the word "legally" — until the present day.
Those critics of Israel who base their arguments on events of recent origin, who support Arab national claims to Judea, Samaria and Gaza and deny Israel its legally acquired rights to those very lands, are absolutely wrong or ignorant of the true facts which they never learned or do not wish to know.
The departure-point in discussing Israel's position in the Middle East is not 1967, the year of the Six Day War, nor is it the Israel-PLO Agreements of the 1990s, nor even the Road Map Peace Plan of 2003. The correct departure date for understanding the conflict in the Middle East, once called the Arab-Jewish Conflict, then the Arab-Israeli Conflict and most recently the Palestinian-Israeli Conflict,'[1] is the ten-year period from 1915 to 1925, the period that shaped the Middle East that we know today.
In 1915, plans had already been formulated to determine the fate of the Ottoman Turkish lands in the event of Turkey's defeat in the Great War then under way. In April of that year, the British set up an interdepartmental committee — called the De Bunsen Committee, named after its Chairman, Maurice de Bunsen, an assistant Secretary of State at the Foreign Office — to determine their war aims or future policy following an expected Allied victory. One key conclusion of the Committee's Report was that Palestine was to be considered a political entity separate and distinguished from Syria and Mesopotamia (subsequently renamed Iraq), and its destiny would be decided by "special negotiations" between all the interested parties, Britain, France, Russia and Turkey itself, which had controlled the territory for the previous four centuries. France's claim to rule Palestine was rejected outright. A map of Palestine was attached to the 1915 Report, that corresponded more or less to the territory encompassed in the subsequent Mandate for Palestine, including what was later termed Transjordan.
Following the release of this Report, Britain entered into negotiations with the Sherif of Mecca, Hussein ibn Ali, promising that Britain would support Arab independence over a wide swath of the Middle East, if the Arabs joined the War against Turkey and achieved the conquest of the four principal towns of Syria. This promise excluded Palestine — more precisely, Palestine on both sides of the Jordan River — as stated by the man who actually made this promise on behalf of the Herbert Asquith Government, Henry McMahon, then the British High Commissioner to Egypt. It is important to recall that until October 1916 when the Hedjaz in Western Arabia declared its independence from Turkey, no Arab state had existed for many hundreds of years.
Britain was thus instrumental in fostering Arab independence from Turkey in the same way it planned to act for the Jewish People when it issued the Balfour Declaration on November 2, 1917. As is evident from the Imperial War Cabinet minutes that approved the Balfour Declaration, and in private statements made by high-ranking British officials to Zionist leaders at the time, the aim of the Declaration was to establish an eventual independent Jewish State as more and more Jews moved to Palestine in the years to come and became a majority of the population. The term "state" did not appear in the Balfour Declaration, but rather the euphemism "home", a throwback to the Zionist Program drafted at the First Zionist Congress in 1897 at Basel, Switzerland, when it was thought prudent not to offend the sensibilities of the Turkish Sultan's Government from which Theodor Herzl hoped to obtain a charter to colonize Palestine, as it was unofficially called at the time. It was the Zionist co-leader, Nahum Sokolow, and not the British, who insisted in 1917 on retaining the term "home" as the Zionist aim, rather than "state", which proved to be a grave misjudgment. The use of the word "home" — instead of "state" — had disastrous consequences once the British gained firm control of Palestine and no longer needed to court the Zionists as they did in 1917 to gain their support for the Allied cause in the War and to justify their planned invasion of Palestine. In a 1922 White Paper, Colonial Secretary Winston Churchill altered the meaning of the phrase "Jewish National Home" — not a state, he implied, but rather a spiritual or cultural center, not in the whole territory of Palestine, but only in a part of it. This was the beginning of the sabotage of the intended aim of the Balfour Declaration and its implementation by means of the Mandate for Palestine.
When issued in 1917, the Balfour Declaration was not a legally-binding document under international law, but the Declaration did have from the outset a contractual or synallagmatic character as between Britain and World Jewry represented by the Zionist Organization (see Prof. Nathan Feinberg, Studies In International Law, The Magnes Press, Hebrew University, Jerusalem (1979), p. 241). In the words of Prime Minister David Lloyd George, "it was a bargain [i.e., a contract or mutual agreement] in return for a valuable consideration given to us — the effective support of the Jews of the world to the Allied cause, notably in America, Russia and Central Europe" [p. 407 of my book]. As further noted by W.J.M. Childs, one of the principal contributors to the six-volume classic work, A History of the Peace Conference of Paris, Edited by H.W.V. Temperley, the Balfour Declaration was "beyond question" "a definite contract between the British Government and Jewry represented by the Zionists" (see Temperley, Vol. VI, pp. 173-174). At first the Balfour Declaration did not oblige the British Government to establish a Jewish National Home in Palestine, but as stated in the Declaration itself, "His Majesty's Government will use their best endeavours to facilitate the achievement of this object". That all changed at the San Remo Peace Conference convened by the Supreme Council of the Principal Allied Powers, namely, Britain, France, Italy and Japan, which met in this Italian resort town in mid-April 1920 to hammer out the terms of a peace treaty with Turkey and to dispose of all the Ottoman provinces in Asia outside Anatolia. For this purpose, Britain submitted to the assembled Powers on April 24, 1920 the far-reaching San Remo Resolution for their approval, and it was officially adopted at the following day's session. Under the provisions of this Resolution, the Balfour Declaration was approved as the governing document of Palestine, the basic reason for which it was to be created officially as a mandated territory, in conjunction with and in fulfillment of the general provisions of Article 22 of the Covenant of the League of Nations. As a result of the adoption of the San Remo Resolution, the language of the Balfour Declaration was strengthened considerably. Henceforth, instead of Britain being required to merely "use its best endeavours" to establish in Palestine a national home for the Jewish People, it now had a legal obligation or responsibility for "putting into effect" the Balfour Declaration.
This was further confirmed by Article 2 of the Mandate under which Britain was responsible for placing Palestine under such political, administrative and economic conditions as would secure the establishment of the Jewish National Home. The use of the term "secure" could only mean that Britain was now under an obligation of specific performance to create the promised Jewish State, instead of a mere obligation of means, as denoted in the provisions of French civil law. That a Jewish State was the intended objective of the San Remo Resolution will be clear to anyone who takes the time to read both the English and the French minutes of the San Remo Peace Conference. Both the French and British representatives present at the Conference alluded to a Jewish State as the ultimate goal of the San Remo Resolution on Palestine.
This Resolution was in and of itself a binding legal agreement under international law between the four Principal Allied Powers that four months later was incorporated into the Treaty of Sèvres and, in addition, into the Preamble of the Mandate for Palestine subsequently approved by the 52 nations who were members of the League of Nations in 1922, and separately by the United States in a treaty it concluded with Britain in 1924. As regards the Treaty of Sèvres, it should be noted that though it was never ratified because of the overthrow of the Turkish Sultan's Government by Mustafa Kemal Ataturk (the father of modern Turkey), it still remained as a valid inter-Allied agreement that reveals how the Principal Allied Powers intended to dispose of the liberated Ottoman territories.
The San Remo Resolution also provided for the future independence of both Syria and Mesopotamia. Thus the same foundational document recognized both Jewish national rights to Palestine and Arab national rights to the neighbouring countries of Syria and Iraq. The San Remo Resolution replaced the secret Sykes-Picot Treaty of May 1916, between Britain, France and Russia, the countries of the former Triple Entente, a treaty which now became a dead letter, though France continued to rely on it to base its territorial claims for its mandated territory of Syria. France later subdivided this territory to create the Maronite Christian state of Lebanon, which was extended south of the Litani River to include historically Jewish land originally sought by both the British and the Zionists for Palestine and the Jewish National Home.
I have originated the thesis, as fully set out in my book, that de jure sovereignty over the whole of Palestine was vested in the Jewish People from the time the San Remo Resolution was adopted, though the attributes of sovereignty were temporarily exercised by the Mandatory Power, Britain, during the entire period the Mandate was in force. Lord Curzon, the British Foreign Secretary who attended the San Remo Conference referred to the San Remo Resolution, as the Magna Carta of the Zionists, representing the Charter of Freedom that Theodor Herzl, the founder of the Zionist Organization, had vainly sought from the Turkish Sultan and other European Powers, but which eluded him when he died at the young age of 44. The State of Israel traces its legal existence and rights to the Land of Israel from the San Remo Resolution, and not from the U.N. Partition Resolution of November 29, 1947, as is most often mistakenly asserted.
The national and political rights of the Jewish People to Palestine were codified in the Mandate Charter, which was formulated jointly by the Zionist Organization and Great Britain in 1919 and 1920. This instrument of international law was in essence a blueprint for establishing a future independent Jewish State, though the British Foreign Secretary, Lord Curzon, an avowed anti-Zionist, who had succeeded Lord Balfour in office, took pains to obscure this objective by replacing the term "commonwealth" which had been included in the early drafts of the Mandate when Balfour was still in charge, by the phrase "self-governing institutions" that were intended to apply to the Jewish National Home and definitely not for Arab self-government and self-determination in Palestine. The principal means for establishing an independent Jewish State was laid down in two basic articles of the Mandate Charter: Article 2 that listed the conditions necessary to achieve that purpose, and Article 6, which required the British to facilitate Jewish immigration and encourage close settlement by Jews on the land. The latter article was buttressed by Article 11 which required Britain to "introduce a land system... having regard... to the desirability of promoting the close settlement and intensive cultivation of the land", evidently a clear reference to Article 6.
The British sabotaged the realization of both of these articles. First, as to Article 2, Lord Curzon ensured that the Jews would have no active role in the administration of Palestine for fear that would lead to demands to set up a Jewish Government. A Jewish Government for Mandatory Palestine would have been a natural precursor to an independent Jewish State, which, as just noted, was the ultimate aim of the Mandate for Palestine, in the same way that local governments were being set up in the other mandated territories of Syria, Lebanon and Iraq, before they became independent states.
Second, as to Article 6, the British placed severe limits on Jewish immigration by introducing the concept of the "economic absorptive capacity" of the country, a concept not found in the Mandate itself. The British also subsequently placed limits on Jewish land acquisition in Palestine, thus narrowing the area of Jewish settlement. All these restrictions had the cumulative effect of delaying the emergence of an independent Jewish State.
Despite the British sabotage of the Mandate by interpreting its provisions in ways never intended by its formulators, the national beneficiary of the Mandate was the Jewish People and not the local Arab population of Palestine. Collective national and political rights were accorded only to the Jewish People. No collective rights were given to Arabs as such, nor is there any mention of them in the Mandate itself. What the Mandate does recognize are the individual civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion, as well as the civil and religious rights of the existing non-Jewish communities. It should be noted at this point that the term "communities" appears in the plural, and referred only to "religious communities" then existing in Palestine, rather than to national or ethnological groups such as the Arabs. This use of "communities" to denote only "religious communities" is also evident in the Italian translation of the Balfour Declaration, as well as the meaning conveyed in the Joint Resolution of the U.S. Congress, approved by President Warren Harding, in September 1922, favouring the establishment in Palestine of a national home for the Jewish People, commonly called the Lodge-Fish Resolution. These "religious communities" noted in the Declaration were composed of citizens of foreign Powers or local inhabitants under their protection, in particular French Roman Catholics, Franciscans and others, who enjoyed special privileges and immunities granted to them by the Ottoman Empire according to various agreements Turkey had concluded previously with those Powers under the system known as "Capitulations". It was the civil and religious rights of those particular religious communities that were not to be prejudiced by the eventual establishment of an independent Jewish State. The Mandate for Palestine, which incorporated the text of the Balfour Declaration in its Preamble and provided for the Declaration's full implementation, thus recognized and preserved the same rights of the "existing non-Jewish communities" that formerly existed under the capitulatory regime, a regime that would no longer apply to Palestine once the Mandate took effect. It is therefore not the case, as has been commonly stated, even today, that the oft-quoted proviso in the Balfour Declaration in regard to those religious communities referred to the Arab national community of Palestine. In actual fact, this proviso was primarily a specific reference to the various Christian communities of Palestine, as is further confirmed by the fact that France agreed in the San Remo Resolution of April 25, 1920 to end its religious protectorate in Palestine only upon the assurance given by Britain, the Mandatory Power, that all the rights hitherto enjoyed by the existing Christian communities would not be surrendered. The civil and religious rights of the Moslem and Druze religious communities in Palestine were naturally included in the same proviso; the Moslem community was also protected by other provisions in the Mandate Charter, specifically Articles 9 and 13, that related to Wakfs and Moslem sacred shrines. From the foregoing, it should be clear, therefore, that under the Mandate the Arabs as a people or nation were given no right to Palestine which had been created specifically to become the Jewish National Home and the Jewish State-to-be. It bears repeating that no Arab state was ever intended to be created in any part of Palestine under the Balfour Declaration, the San Remo Resolution and the Mandate for Palestine.
The Mandate for Palestine was preceded by two other notable legal documents that confirm the exclusive Jewish national rights to Palestine. The first of these documents was the Agreement between Emir Feisal, representing the Arab Kingdom of Hedjaz (Western Arabia), and Dr. Chaim Weizmann, representing the Zionist Organization, signed in London on January 3, 1919. This agreement is documentary proof that the foremost leader and representative of the Arab national movement, who presented the Arab case at the Paris Peace Conference, excluded Palestine, including Transjordan up to the Hedjaz Railway, from the area of Arab independence, and is therefore of great importance even today in refuting the Arab aim to establish yet another Arab state in Palestine. We need only read the first three articles of the Feisal-Weizmann Agreement to understand the great significance of that document. Article I provides for the establishment and maintenance of cordial diplomatic relations between the Arab State and Palestine through the exchange of "duly accredited agents" [i.e., ambassadors] "in the respective territories". In the context of this article, the underlying assumption is evidently that Palestine would become a Jewish State with a Jewish Government, since it is only states that are represented by "duly accredited agents". Article II refers to "the definite boundaries between the Arab state and Palestine", which were to be determined after the Peace Conference by a Boundary Commission agreed upon by the parties. Since only states have "boundaries" between them, that is further evidence that Feisal agreed that Palestine would become an independent Jewish State alongside an independent Arab state. Article III further provides that the Constitution and Administration of Palestine should "afford the fullest guarantees for carrying into effect" the Balfour Declaration, and is thus another indication that Palestine was indeed to become a Jewish State. Had Feisal, acting on behalf of his father to whom the McMahon Pledge for Arab independence had been given, truly believed that Palestine was included in that Pledge — a claim made at a later date — he would never have signed this agreement with Weizmann.
The second important document to note in regard to Jewish rights to Palestine is the Smuts Resolution of January 30, 1919, which was adopted at the Paris Peace Conference by the Supreme Council of the Principal Allied Powers; this Resolution gave birth to the Mandates System and ended any lingering Turkish hope of preserving the Ottoman Empire intact. The Smuts Resolution, which shortly became Article 22 of the Covenant of the League of Nations, was primarily the work of the South African statesman, General Jan Christiaan Smuts, who had served as a Minister without Portfolio in the Imperial War Cabinet of British Prime Minister David Lloyd George at the time the Balfour Declaration was issued and was actually one of its framers. The Smuts Resolution recognized that Palestine was one of the six countries to which the Mandates System was to be applied. The other countries were Armenia, Kurdistan, Syria, Mesopotamia and Arabia. The Smuts Resolution, with slight variations, was incorporated into the Treaty of Versailles and four other peace treaties, but in that form did not name any of the countries that would be subject to the Mandates System because any enumeration, it was thought, would inevitably have been incomplete. The significance of the Smuts Resolution insofar as the Jewish People is concerned, is that when the Principal Allied Powers adopted it, they signified that Palestine would be set aside for the establishment of the Jewish National Home under the tutelage of an advanced nation, a step which would ultimately lead to the emergence of an independent Jewish State. This is evident from the fact that in the prevailing circumstances of 1919, Palestine and the Jewish National Home were considered by everyone as synonymous entities, a reality that even the Arabs hostile to the Balfour Declaration recognized. "Palestine" was therefore a reference to the Jewish People and its homeland; thus Article 22 of the League Covenant applied to the Jewish People, rather than to the local Arab population of Palestine. Article 22 reaffirms the concept, already inherent in the Balfour Declaration, the San Remo Resolution and the Mandate for Palestine, that an ultimate Jewish State would be established in the entire territory of Palestine, not merely in part of it.
Jewish rights to Palestine received additional recognition from the U.S. Government, first, as already mentioned, in September 1922 by means of the Lodge-Fish Joint Resolution, then two years later by a U.S.-U.K. treaty known as the Anglo-American Convention Respecting the Mandate for Palestine, signed at London on December 3, 1924 and proclaimed by President Calvin Coolidge on December 5, 1925, under which the U.S. expressly recognized all the rights of the Jewish People contained in the Mandate reproduced verbatim in the Preamble of the Convention. This Convention in effect made the U.S. an additional contracting party to the Mandate, as well as a guarantor to ensure the faithful implementation of the Mandate by Britain — as indicated by Britain's obligation to provide the U.S. with a duplicate of the annual report made to the Council of the League of Nations detailing the measures taken during the year to carry out the provisions of the Mandate. Most importantly, since the Mandate Charter was incorporated in a treaty, it became part of the supreme law of the U.S., under Article VI of the U.S. Constitution. Both the Mandate and the Convention terminated on May 15, 1948 upon the re-birth of the Jewish State of Israel, but all the national and collective political rights accorded to the Jewish People under the Mandate still retained full legal force, and do so to this very day, under the principle of acquired legal rights, codified in the 1969 Vienna Convention on the Law of Treaties in Article 70 (I)(b). This means that the U.S. is legally barred from denying Jewish rights to Palestine under the doctrine of estoppel.
The boundaries of Palestine recognized under international law as the Jewish National Home were to be fixed according to Lloyd George's definition from "Dan to Beersheba", mentioned in various Biblical verses. This was known as the historical or biblical formula. The minutes of the San Remo Peace Conference make it clear that this formula meant that Palestine would include all land to which there was a Jewish historical connection going back to the time of the Twelve Tribes of Israel and the subsequent First and Second Temple Periods. Other considerations involved in determining Palestine's boundaries were economic, geopolitical and strategic in nature, especially as regards the territory east of the Jordan.
The first agreement delineating Palestine's borders was the Franco-British Boundary Convention of December 23, 1920, which separated Palestine from Syria-Lebanon in the north and northeast. The boundaries defined in this Convention were then traced on the ground in accordance with the Demarcation Agreement of February 3, 1922, that was ratified and took effect in March 1923. What is indisputable is that as a result of these initial boundary agreements, Judea, Samaria and Gaza became integral parts of the Jewish National Home where Jews could exercise their national and political rights enunciated in the Mandate for Palestine, and that has been their legal status under international law ever since. That is why it is absolutely false to describe those regions of the Land of Israel as "occupied territories" today, when they were assigned to the Jewish National Home and thus legally recognized under international law as belonging to the Jewish People. There was never any intention by those who formulated the Mandate to include Judea, Samaria and Gaza, illegally conquered and occupied by Jordan and Egypt in 1948, in any Arab state, most particularly not in what the Arabs and the United Nations at present call "Palestine". It is a travesty of language that a term designating the Jewish National Home and, indeed, the Jewish People prior to 1948 — a term which the Arabs of Mandated Palestine contemptuously rejected for themselves, since they considered the country to be not a separate political entity, but rather an integral part of southern Syria — should be transformed in meaning so completely so as to identify the Arabs of the Land of Israel and the so-called "refugees" living in the neighbouring Arab states. That is the upside-down definition of "Palestinians", an inversion of its original meaning that is nothing more than a propaganda ploy concocted in 1969 to deceive the world and garner its sympathy by changing the dimensions of the Arab-Israel conflict from twenty-one states against one to a completely different ratio of one against one. This ploy has worked magnificently and explains the world's support for the establishment of a new Arab state in the heartland of the Jewish National Home. This support, now exemplified in "the Two-State Solution", has unfortunately and incredibly been adopted in principle even by all Governments of Israel ever since the Camp David Summit of 2000 convoked by U.S. President Bill Clinton.
A final word should be said about the 1920 Boundary Convention in regard to the territory of Transjordan. As already noted, its fertile region, extending from the Jordan River to the Hedjaz Railway, was included in the Jewish National Home under this Convention, but its final boundary as an integral part of Palestine was yet to be determined. Transjordan was later gradually extended eastwards to embrace the desert expanse and thus make it contiguous with Iraq. One reason for its expansion was that the British did not want French-ruled Syria to adjoin the autonomous Arabian Peninsula which was under exclusive British influence. Some French officials serving in Syria had harboured the hope of making Transjordan part of the mandated territory of Syria, but the British flatly refused the French claim, declaring that Transjordan was needed for the economic development of the National Home. However, just several months after the Boundary Convention was concluded, the new Colonial Secretary, Winston Churchill, unaware until reminded by Chaim Weizmann of what British negotiators in the boundary discussions had told the French about Transjordan, and who moreover had played no role in the decisions taken concerning the Balfour Declaration and the San Remo Resolution, decided to detach this territory from the National Home and to appoint Abdullah, the son of Sherif Hussein, self-styled King of the Hedjaz, to serve as its provisional administrator. Churchill did this to appease the Sherifian family after the French had expelled Emir Feisal, Abdullah's younger brother, from Syria in July 1920. Thus began an additional chapter in the British sabotage of the Mandate even before its confirmation by the League Council, which led eventually to the permanent detachment of Transjordan from the future independent Jewish State, a loss never imagined or contemplated by the authors of the Mandate.
The British undermining of the Mandate and of Jewish rights to Palestine reached its zenith in 1939 with the issuance of the infamous White Paper by the Neville Chamberlain Government, which ended all hope for the establishment of a Jewish State in Palestine under British auspices. After a five-year period allowing a grand total of 75,000 Jews to enter Palestine, no further Jewish immigration would be permitted without Arab consent, in flagrant violation of Article 6 of the Mandate, thus ensuring that Jews would always be a minority in an Arab-dominated Palestine, never more than one-third of its population. Here I would like to highlight the courageous stand taken by the four European members of the Permanent Mandates Commission, the body set up under Article 22 of the Covenant of the League of Nations to monitor the compliance of the Mandatory Power with its duties and obligations under the Mandate and to report its findings to the League Council. The Chairman of the Permanent Mandates Commission was Pierre Orts of Belgium, who was a member of this body for 17 years — from 1923 to 1940, the last 4 years as its Chairman. Orts pulled no punches in denouncing Britain's new White Paper policy as contrary to the Mandate. He stated that the Mandates Commission could not consent to this White Paper which would place the Jewish National Home in an independent State with a permanent Arab majority and see "its destinies in the hands of a race which could not forgive its existence" (Minutes of the Thirty-Sixth Session of the Permanent Mandates Commission of the League of Nations at Geneva in June 1939, pp. 206-207). These prescient words spoken by Pierre Orts still ring true today. I truly wish that the present Belgian Government would follow the path trodden by their illustrious diplomat, who gallantly spoke the truth about Jewish rights to Palestine, British misrule and Arab ingratitude for the Allied liberation of their lands from the Ottoman Empire and the unrelenting Arab opposition to the establishment of the Jewish National Home and future independent Jewish State.
Orts was joined in his criticism of the 1939 White Paper by Baron van Asbeck of Holland, Professor William Rappard of Switzerland and Miss Valentine Dannevig of Norway. These four members of the Commission ruled that the White Paper did not conform to the Mandate, as shown by "the very terms of the Mandate and by the fundamental intentions of its authors" (see the Report of the Permanent Mandates Commission of the League of Nations on the Policy Laid Down in the MacDonald White Paper of May 1939, made at the Thirty-Sixth Session of the Permanent Mandates Commission, [June] 1939, paragraph 14 of the Report). A minority view was adduced by British, French and Portuguese members of the Permanent Mandates Commission, who justified the policy of the White Paper because of the "existing circumstances", "provided that the [League] Council did not oppose it" (ibid., paragraph 15). That august body was scheduled to meet on the matter early in September 1939, but before it could do so, World War II broke out and the planned meeting of the League Council never took place. In addition, American approval of the White Paper was never obtained though it was legally required under the aforementioned 1924 treaty. Despite the non-approval of the White Paper by both the League of Nations and the United States, Britain — in open defiance of international law as embodied in the Mandate — began to implement the illegal White Paper policy that won overwhelming parliamentary approval by a vote of 268 to 179 and thus was accorded the status of law or treated as such by the predominant Conservative Party in Churchill's Coalition Government with the Labour Party (Martin Gilbert, Churchill and the Jews, Simon and Schuster UK Ltd., Pocket Books [2008], London, pp. 162, 209, 243). This assisted Hitler's demonic policy of liquidating European Jewry since the White Paper effectively closed the gates to Palestine, thus blocking the only escape route the Jews had to avoid the horrors of Hitler and the Holocaust he was perpetrating. Had those gates been thrown open in conformity with international law (especially Articles 2 and 6 of the Mandate), hundreds of thousands of Jews — at least — would undoubtedly have been saved from Hitler's furnaces and gas chambers at Auschwitz, Bergen-Belsen, Buchenwald, Dachau and other notorious death camps. That transformed the British violation of the Mandate provisions into an unforgivable sin and turned Britain into a major collaborator in the genocide of European Jewry, a crime against the Jewish People and against humanity that can and will never be erased from the history of mankind. Britain continued to administer Palestine under the illegal White Paper until it surrendered the Mandate to the United Nations and withdrew its administration and military forces at midnight between May 14 and May 15, 1948.
It is pertinent to recall the role of the United Nations in the affairs of Mandated Palestine. Before surrendering the Mandate, the British first asked the UN for its advice as to how the Mandate could better be administered. The UN General Assembly appointed an eleven-member committee — the UN Special Committee on Palestine or UNSCOP — to investigate all questions and issues relevant to the Palestine problem and to propose a solution. It assumed it had the right to do so under Article 14 of the UN Charter which stated that the Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations. However, the UN General Assembly was bound at the same time to observe the existing provisions of international law embodied not only in Article 5 of the Mandate that prohibited the partition of the country, but also in Article 80 of the UN Charter itself that preserved the rights of the Jewish People to all of Palestine. In the event, the General Assembly did exactly what it had no right to do — it recommended the partition of Palestine, contrary to Article 5 of the Mandate, thus failing to preserve Jewish rights to the entire country as required by Article 80 of the UN Charter.
To bring this situation up-to-date, the "Palestinian Authority", headquartered in Ramallah, the site of an ancient Jewish town called Ramah, is now threatening to go to the United Nations to gain recognition for a new Arab state in Palestine it wishes to establish within the "Green Line", the former armistice lines that existed between Israel and the Jordanian-ruled "West Bank" from 1948 to 1967. and between Israel and the Egyptian-ruled "Gaza Strip" during the same period. I wish to emphasize that neither the UN Security Council nor the UN General Assembly has any legal authority to intervene in this matter. The United Nations never inherited any power from the League of Nations to determine the borders of Palestine as it existed under the Mandate. This power was the exclusive preserve of the four Principal Allied Powers who defeated Turkey in World War I, as evidenced in three separate documents of international law — the San Remo Resolution, the Treaty of Sèvres and the Mandate for Palestine. Britain acting alone did not have the legal power to fix the borders of the country. It needed the consent of the other Principal Allied Powers to do so. Once the borders were determined, they could not be legally changed by the actions of the Mandatory Power taken unilaterally[2] or with the consent of either the League of Nations or its successor, the United Nations, as underscored by Article 5 of the Mandate that banned any such changes; moreover, such changes would have also contradicted the historical formula for the determination of Palestine's boundaries, as adopted by the Principal Allied Powers at the 1920 San Remo Peace Conference. In order to make major or substantive changes in the Mandate after the demise of the League of Nations, there would have to have been concluded a trusteeship agreement between the parties directly concerned, as stipulated under Articles 79 and 80 of the UN Charter, concerning which the Jewish People, represented by the Zionist Organization and the Jewish Agency for Palestine, would certainly have had to be consulted, but no such trusteeship agreement was ever made. The time to make such an agreement expired when the independent State of Israel came into being. To entertain the thought of making a trusteeship agreement today for the state of Arab "Palestine" is ludicrous and out of the question.
What Jordan called the West Bank and which Israel officially calls Judea and Samaria constitutes territory that is an indisputable part of the Jewish National Home, and therefore falls within the purview of Israel's domestic jurisdiction, notwithstanding the fact that the Governments of Israel have negligently never asserted this. Under Article 2 (7) of the UN Charter, the UN has no authority to intervene in matters which are essentially within the domestic jurisdiction of any state. Judea and Samaria are ancient territories belonging to the Jewish People ever since the period of the conquest of Canaan by the Twelve Tribes over three millenia ago. In the modern period, these territories never belonged to any Arab state under international law; rather, they were officially included in the Jewish National Home, as evidenced by the Boundary Convention Britain concluded with France on December 23, 1920 to delineate Palestine's northern border with Syria-Lebanon. Despite their strong historical ties with the Jewish People, Judea and Samaria were illegally designated by UNSCOP and the UN General Assembly in 1947 for inclusion in a proposed Arab state, but that state never came into existence. Rather, they were illegally occupied by the Hashemite Kingdom of Jordan for nineteen years until they were finally restored to the Jewish People and State of Israel in the 1967 Six-Day War.
However, it was then that a monumental violation of Israeli law occurred, one that still reverberates today. Instead of incorporating these historical regions of the Jewish National Home into the State of Israel as the Israeli Government had every right and legal obligation to do, the Government applied the laws of war on the erroneous advice of the then Military Advocate- General, Meir Shamgar, later the President of the Supreme Court of Israel, in particular, Articles 42 and 43 of the Hague Regulations. This grave self-perpetrated illegality gave the entire world — including many in Israel itself — the mistaken impression that Judea and Samaria and Gaza were indeed "occupied territories" belonging to a foreign sovereign, contrary to their true legal status as part of the Jewish National Home, that had temporarily been under illegal Jordanian and Egyptian occupation respectively. Accordingly, Israel is itself responsible for the legal confusion it created by not annexing Judea and Samaria at the appropriate time, in June 1967. Had the Israeli Government acted in accordance with its own constitutional law, there would have been no question that all the liberated Jewish lands were subject to Israel's domestic jurisdiction and outside the authority of the UN or the concern of any foreign country.
The mess was exacerbated, first by concluding with Egypt the 1979 Camp David Framework Agreement for Peace in the Middle East which proposed an autonomy plan for the local Arab inhabitants of Judea, Samaria and Gaza, thus setting the stage for future upheavals.[3] This situation was then further aggravated by the greatest folly to date, the Israel-PLO accords of the 1990s, under which an unrepentant terrorist and criminal organization, the Palestine Liberation Organization, was invited into the Land of Israel by the Government of Israel, then led by Prime Minister Yitzhak Rabin and Foreign Minister Shim'on Peres. Bringing the PLO to set up shop here with its own endemically corrupt administration was not only an insane move that has wreaked havoc on the Jews of Israel and on our image abroad, but was also a disastrous violation of Israel's existing constitutional and criminal laws, overlooked by Israel's legal establishment from the moment of its very perpetration.
I enumerated all violations of laws committed by the Israeli Government in several Petitions I filed before Israel's Supreme Court in the mid-1990s, but the Court refused to adjudicate the merits of the case on the lame excuse that these Petitions dealt with a political matter. In my humble opinion, the real issue an unbiased court was called upon to decide was the legality of a contract or binding agreement drawn up and signed with an outlaw terrorist organization, irrespective of any other consideration.
Israel is now stuck in an intolerable situation that cries out for a drastic remedy. The so-called Palestinian Authority (PA) now controls about 42% of Judea and Samaria, while Hamas controls all of Gaza. The continued rule of the Fatah-dominated Palestinian Authority in Judea and Samaria poses an existential threat to the survival of the Jewish State, since the PA still seeks the ultimate destruction of our state and its replacement by an Arab state, as evidenced by its own statements and its actions. This is also the avowed purpose of Hamas, which makes no secret whatsoever of its objectives. The Arab plan to bring about this nightmare for the Jewish People and the Jewish State is to encourage millions of Arabs to stream across the present borders of the Jewish State and become the majority of its population, based on a pretended "Right of Return" that never legally existed for the Arabs who, in the main, voluntarily left their homes in former Mandated Palestine in response to the call of their leaders. There is only one practical solution for thwarting this scenario: most of the Arabs now living in the Land of Israel, in particular in Judea, Samaria and Gaza, as well as those Arabs of the State of Israel who deny the Jewish character of the State and commit acts of terrorism against it, should be repatriated to and relocated in the neighbouring Arab countries whence most of their ancestors came upon the return of the Jewish People to their land in the 19th and 20th centuries. This solution was proposed by none other than U.S. President Franklin Delano Roosevelt, British Prime Minister Winston Churchill and the President of the Jewish Agency for Palestine and the Zionist Organization, Chaim Weizmann in the early 1940s. It was also proposed by one of the most committed advocates of the Arab cause, Harry St. John Philby, an English convert to Islam who had a very friendly relationship with Ibn Saud, the first King of Saudi Arabia and its long-time ruler.
The repatriation of the Arabs of the Land of Israel to other Arab states should be seen as the continuation of a population exchange involving Jews and Arabs that began even before the re-birth of the Jewish State. Close to a million Jews whose forefathers once lived in Arab lands and Iran even before the advent of Islam have been re-settled in Israel or in other countries and have become productive citizens. There is ample precedent in international law for completing this population exchange. To cite one example of many: 12 million ethnic Germans who had lived for centuries in former East Prussia, Poland, the Czech Republic and other countries in Central and Eastern Europe were evacuated to West Germany immediately after World War II under the Potsdam Agreement of August 2, 1945 — approved by the Heads of Government of the U.S.S.R., the U.S.A. and the U.K., and later by China and France. The question of population transfer is discussed in greater depth in Chapter 20 of my book.
It is not only the growing number of Arabs in the Land of Israel that poses an existential threat to Israel. A great danger also lies in wait if the Two-State Solution embodied in the Road Map Peace Plan ever attains fruition. A new Arab state west of the Jordan alongside that of Israel is, as many here see it, including myself, a recipe for national suicide. If that takes place, terrorism will be increased exponentially; mortars, rockets and missiles will be aimed at Israel's main population centers, thus causing mass casualties. That reason alone makes it eminently clear why an Arab — so-called "Palestinian" — state must never be allowed to come into existence, separate and apart from the mockery it would make of our immutable rights to Eretz-Israel.
The establishment of an Arab — so-called "Palestinian" — state will also give credence to the false accusation that Israel occupies the land of another people, notwithstanding the fact that this land was specifically and universally recognized as part of the Jewish National Home under international law in 1919 (the Smuts Resolution), in 1920 (the San Remo Resolution and the Franco-British Boundary Convention of December 23, 1920) and in 1922 (the Mandate for Palestine). Jewish rights to the land have never legally expired despite the many changes that have taken place in the international arena. This was in no small measure due to the foresight of Israel's first Prime Minister David Ben-Gurion in initiating legislation enacted by the Provisional State Council in 1948 for the future incorporation of those parts of the Land of Israel not yet in Israel's possession. This legislation was legally justified by the fact that only the Jews had national and political rights to all of Palestine, based on the aforesaid documents. Those Jewish rights, as I have written in my book, are imprescriptible, i.e., not subject to any statue of limitations, indefeasible, i.e., cannot be annulled or voided, and inalienable, i.e., cannot be legally transferred or surrendered to another state or nation, so long as the Jewish People survives as a distinct nation. If this was not the case, international law would never have recognized the right of the Jewish People to reconstitute their long-defunct state despite its non-existence for nineteen centuries
There is no document of international law that confers an equal right to the Land on the so-called "Palestinian people" or on anyone else. Neither the 1947 UN Partition Resolution, nor the Israel-PLO Agreements, nor the Road Map Peace Plan is a document of binding international law, none of which can legally displace or alter the exclusive national and political rights vested in the Jewish People over Palestine and the Land of Israel. All such recent efforts to assign these rights to a fictitious people, the "Palestinians", over various areas of the Jewish National Home are completely bereft of legal validity. Indeed, the United States and most European nations recognized the exclusive Jewish right to Palestine when they endorsed the Mandate for Palestine. Under the doctrine of estoppel they are debarred from repudiating what they formerly recognized concerning these rights. This has special relevance to the United States which, as already noted, signed a treaty with Britain regarding the Mandate for Palestine and thereby recognized in its own public law all of the rights conferred on the Jewish People under that instrument of international law, in particular, Jewish title to the land and the right of Jewish settlement in all parts of the country.
In light of the vociferous opposition by the 2008 Obama Administration and by previous American administrations which have excoriated Israel for building settlements in the ancestral land of the Jewish People, including building many housing projects in various Jewish neighbourhoods of Jerusalem, such as Ramat Shlomo, Gilo, Pisgat Ze'ev and Har Homa, formerly under illegal Jordanian occupation, I have advocated instituting a legal action against the United States Executive for violating the legal rights of Jews to all of the Land of Palestine, which the United States explicitly recognized in the 1924 treaty but has for decades conveniently ignored or forgotten. This proposed case is at present being researched by American attorneys prior to its institution.
A similar case could be initiated in the International Court of Justice by the State of Israel, the inheritor of all the rights to the Land of Israel bestowed on the Jewish People under the Mandate for Palestine as its chosen assignee, against each Allied Power that confirmed its provisions, i.e., Britain, France, Italy and Japan, but who now steadfastly refuse to recognize such rights derived from that document of international law. In point of law, all of these countries are bound by and subject to the legal doctrine of estoppel from denying such rights. In addition, an action should also be instituted against the United Nations for its brazen violation of Jewish legal rights to Palestine, in clear contradiction of Article 80 of the UN Charter. These actions should normally be taken by the State of Israel, but are at present extremely improbable in light of the fact that the Governments of Israel have never asserted and implemented to their fullest extent Jewish legal rights to Judea, Samaria and Gaza by annexing these areas of the Jewish National Home or incorporating them into the borders of the State. In the absence of an Israeli initiative, such actions can, however, be taken by friendly states which support Jewish legal rights to the Land of Israel. I humbly suggest to the distinguished group here this morning that they can render an enormous service to the Jewish People if, upon attaining power in their own lands — and we are hopeful that this will indeed occur — they consider the possibility of instituting these actions in the International Court of Justice (ICJ) or another appropriate tribunal in the stead of the State of Israel. I am not that naive to predict successful outcomes, considering the present composition of the Court and its pro-Arab proclivities, but in any case it will surely bring enormous educational benefits by highlighting Jewish rights to the entire Land of Israel that have already been internationally recognized in the documents of international law cited above. All these documents here discussed could be brought to the fore in order to demolish the false Arab demands to appropriate large sections of the Jewish homeland. This reason alone makes such actions worthwhile, for until now the ICJ has never been truly apprised of Israel's ironclad legal case to be the sole sovereign of the Land of Israel. If in the future another war breaks out with the Arabs, the world will be on notice that the Jews of Israel are merely defending their national patrimony, to which no foreign country can legitimately object, nor indeed the International Court of Justice.
The past and present Governments of Israel since 1967 have placed security above all other considerations, to the grave prejudice of Jewish legal rights to the Land. While I do not question the absolute need for ensuring Israel's security, Jewish rights to the Land must be stressed equally in every diplomatic forum and in every political capital of the world which maintains diplomatic relations with Israel, for without those inherent rights, there is no legal justification for the existence of a Jewish State.
I would like to conclude by suggesting to our distinguished visitors from Europe, that upon your return to your homes, you make known to your own governments your strong opposition to the creation of a projected twenty-second Arab state in the Middle East, that will have the direst consequences for the survival of Israel as a Jewish State if it were ever to come about.
End Notes
[*] Due to time constraints, certain sections of the lecture were omitted during its oral presentation.
[1] More accurately, this conflict should be termed "the Perpetual Arab War for the Extinction of the Sovereign Jewish Presence in the Land of Israel".
[2] Having concluded a 1924 treaty on Palestine with the U.S., Britain would also have needed American consent for any substantive modification of the Mandate.
[3] The Arab autonomy plan was conceived by Prime Minister Menahem Begin, based on or inspired by the Helsingfors (Helsinki) Program adopted in December 1906 at a conference of Russian Zionists which took place in Helsingfors, Finland, drafted in the main by his ideological mentor, Vladimir Ze'ev Jabotinsky, who sought wide, autonomous national rights, including self-government, for the Jewish minority in Russia as well as other minorities in that country. Begin applied the same concept of giving "minority rights" or self-rule to the Arab population of Judea, Samaria and Gaza, when he, too, drafted his Arab autonomy scheme in December 1977 that was a year later embodied in the September 1978 Camp David Framework Agreement for Peace in the Middle East.
EDITOR'S ADDENDUM:
See also additional material by Howard Grief on Israel's Legal Rights
Also Google for key words such as "San Remo" "Samaria Judea" "Wallace Brand" "Yoram Shifftan" "legal rights" in Think-Israel for additional material on historical documents and on Israel's right to Jewish land.
Videos on San Remo are available. One is San Remo's Mandate: Israel's 'Magna Carta'. A version of this video with Hebrew subtitles is here.
Another is called "Stand Firm on San Remo Congressional Briefing", and was released by the Israel Unity Coalition (UCI). It is accessible together with additional historical information here. Also see "Give peace a chance." produced by the European Coalition for Israel.
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