Legal Rights and Title of
Sovereignty of the Jewish People to the Land of Israel and Palestine under
International Law
Howard Grief
The objective of this paper is to set down
in a brief, yet clear and precise manner the legal rights and title of
sovereignty of the Jewish people to the Land of Israel and Palestine under
international law. These rights originated in the global political and legal
settlement, conceived during World War I and carried into execution in the
post-war years between 1919 and 1923. Insofar as the Ottoman Turkish Empire
was concerned, the settlement embraced the claims of the Zionist Organization,
the Arab National movement, the Kurds, the Assyrians and the Armenians.
As part of the settlement in which the
Arabs received most of the lands formerly under Turkish sovereignty in the
Middle East, the whole of Palestine, on both sides of the Jordan, was reserved
exclusively for the Jewish people as their national home and future
independent state.
Under the terms of the settlement that
were made by the Principal Allied Powers consisting of Britain, France, Italy
and Japan, there would be no annexation of the conquered Turkish territories
by any of the Powers, as had been planned in the secret Sykes-Picot Agreement
of May 9 and 16, 1916. Instead, these territories, including the peoples for
whom they were designated, would be placed under the Mandates System and
administered by an advanced nation until they were ready to stand by
themselves. The Mandates System was established and governed by Article 22 of
the Covenant of the League of Nations, contained in the Treaty of Versailles
and all the other peace treaties made with the Central Powers – Germany,
Austria-Hungary, Bulgaria and Turkey. The Covenant was the idea of US
President Woodrow Wilson and contained in it his program of Fourteen Points of
January 8, 1918, while Article 22 which established the Mandates System, was
largely the work of Jan Christiaan Smuts who formulated the details in a
memorandum that became known as the Smuts Resolution, officially endorsed by
the Council of Ten on January 30, 1919, in which Palestine as envisaged in the
Balfour Declaration was named as one of the mandated states to be created. The
official creation of the country took place at the San Remo Peace Conference
where the Balfour Declaration was adopted by the Supreme Council of the
Principal Allied Powers as the basis for the future administration of
Palestine which would henceforth be recognized as the Jewish National Home.
The moment of birth of Jewish legal
rights and title of sovereignty thus took place at the same time Palestine was
created a mandated state, since it was created for no other reason than to
reconstitute the ancient Jewish state of Judea in fulfillment of the Balfour
Declaration and the general provisions of Article 22 of the League Covenant.
This meant that Palestine from the start was legally a Jewish state in theory
that was to be guided towards independence by a Mandatory or Trustee, also
acting as Tutor, and who would take the necessary political, administrative and
economic measures to establish the Jewish National Home. The chief means for
accomplishing this was by encouraging large-scale Jewish immigration to
Palestine, which would eventually result in making Palestine an independent
Jewish state, not only legally but also in the demographic and cultural
senses.
The details for the planned independent
Jewish state were set forth in three basic documents, which may be termed the
founding documents of mandated Palestine and the modern Jewish state of Israel
that arose from it. These were the San Remo Resolution of April 25, 1920, the
Mandate for Palestine conferred on Britain by the Principal Allied Powers and
confirmed by the League of Nations on July 24, 1922, and the Franco-British
Boundary Convention of December 23, 1920. These founding documents were
supplemented by the Anglo-American Convention of December 3, 1924 respecting
the Mandate for Palestine. It is of supreme importance to remember always that
these documents were the source or well-spring of Jewish legal rights and
title of sovereignty over Palestine and the Land of Israel under international
law, because of the near-universal but completely false belief that it was the
United Nations General Assembly Partition Resolution of November 29, 1947 that
brought the State of Israel into existence. In fact, the UN resolution was an
illegal abrogation of Jewish legal rights and title of sovereignty to the
whole of Palestine and the Land of Israel, rather than an affirmation of such
rights or progenitor of them.
The San Remo Resolution converted the
Balfour Declaration of November 2, 1917 from a mere statement of British
policy expressing sympathy with the goal of the Zionist movement to create a
Jewish state into a binding act of international law that required specific
fulfillment by Britain of this object in active cooperation with the Jewish
people. Under the Balfour Declaration as originally issued by the British
government, the latter only promised to use their best endeavors to facilitate
the establishment in Palestine of a national home for the Jewish people. But
under the San Remo Resolution of April 24-25, 1920, the Principal Allied
Powers as a cohesive group charged the British government with the
responsibility or legal obligation of putting into effect the Balfour
Declaration. A legal onus was thus placed on Britain to ensure that the Jewish
National Home would be duly established. This onus the British Government
willingly accepted because at the time the Balfour Declaration was issued and
adopted at the San Remo Peace Conference, Palestine was considered a valuable
strategic asset and communications center, and so a vital necessity for
protecting far-flung British imperial interests extending from Egypt to India.
Britain was fearful of having any major country or power other than itself,
especially France or Germany, positioned alongside the Suez Canal.
The term “Jewish National Home” was
defined to mean a state by the British government at the Cabinet session which
approved the Balfour Declaration on October 31, 1917. That was also the
meaning originally given to this phrase by the program committee which drafted
the Basel Program at the first Zionist Congress in August 1897 and by Theodor
Herzl, the founder of the Zionist Organization. The word “home” as used in the
Balfour Declaration and subsequently in the San Remo Resolution was simply the
euphemism for a state originally adopted by the Zionist Organization when the
territory of Palestine was subject to the rule of the Ottoman Empire, so as
not to arouse the sharp opposition of the Sultan and his government to the
Zionist aim, which involved a potential loss of this territory by the Empire.
There was no doubt in the minds of the authors of the Basel Program and the
Balfour Declaration regarding the true meaning of this word, a meaning
reinforced by the addition of the adjective “national” to “home”. However, as
a result of not using the word “state” directly and proclaiming that meaning
openly or even attempting to hide its true meaning when it was first used to
denote the aim of Zionism, ammunition was provided to those who sought to
prevent the emergence of a Jewish state or who saw the Home only in cultural
terms.
The phrase “in Palestine”, another
expression found in the Balfour Declaration that generated much controversy,
referred to the whole country, including both Cisjordan and Transjordan. It
was absurd to imagine that this phrase could be used to indicate that only a
part of Palestine was reserved for the future Jewish National Home, since both
were created simultaneously and used interchangeably, with the term
“Palestine” pointing out the geographical location of the future independent
Jewish state. Had “Palestine” meant a partitioned country with certain areas
of it set aside for Jews and others for Arabs, that intention would have been
stated explicitly at the time the Balfour Declaration was drafted and approved
and later adopted by the Principal Allied Powers. No such allusion was ever
made in the prolonged discussions that took place in fashioning the
Declaration and ensuring it international approval.
There is therefore no juridical or
factual basis for asserting that the phrase "in Palestine" limited the
establishment of the Jewish National Home to only a part of the country. On
the contrary, Palestine and the Jewish National Home were synonymous terms, as
is evidenced by the use of the same phrase in the second half of the Balfour
Declaration which refers to the existing non-Jewish communities "in
Palestine", clearly indicating the whole country. Similar evidence exists in
the preamble and terms of the Mandate Charter.
The San Remo Resolution on Palestine
combined the Balfour Declaration with Article 22 of the League Covenant. This
meant that the general provisions of Article 22 applied to the Jewish people
exclusively, who would set up their home and state in Palestine. There was no
intention to apply Article 22 to the Arabs of the country, as was mistakenly
concluded by the Palestine Royal Commission which relied on that article of
the Covenant as the legal basis to justify the partition of Palestine, apart
from the other reasons it gave. The proof of the applicability of Article 22
to the Jewish people, including not only those in Palestine at the time, but
those who were expected to arrive in large numbers in the future, is found in
the Smuts Resolution, which became Article 22 of the Covenant. It specifically
names Palestine as one of the countries to which this article would apply.
There was no doubt that when Palestine was named in the context of Article 22,
it was linked exclusively to the Jewish National Home, as set down in the
Balfour Declaration, a fact everyone was aware of at the time, including the
representatives of the Arab national movement, as evidenced by the agreement
between Emir Feisal and Dr. Chaim Weizmann dated January 3, 1919 as well as an
important letter sent by the Emir to future US Supreme Court Justice Felix
Frankfurter dated March 3, 1919. In that letter, Feisal characterized as
“moderate and proper” the Zionist proposals presented by Nahum Sokolow and
Weizmann to the Council of Ten at the Paris Peace Conference on February 27,
1919, which called for the development of Palestine into a Jewish commonwealth
with extensive boundaries. The argument later made by Arab leaders that the
Balfour Declaration and the Mandate for Palestine were incompatible with
Article 22 of the Covenant is totally undermined by the fact that the Smuts
Resolution – the precursor of Article 22 – specifically included Palestine
within its legal framework.
The San Remo Resolution on Palestine
became Article 95 of the Treaty of Sevres which was intended to end the war
with Turkey, but though this treaty was never ratified by the Turkish National
Government of Kemal Ataturk, the Resolution retained its validity as an
independent act of international law when it was inserted into the Preamble of
the Mandate for Palestine and confirmed by 52 states. The San Remo Resolution
is the base document upon which the Mandate was constructed and to which it
had to conform. It is therefore the pre-eminent foundation document of the
State of Israel and the crowning achievement of pre-state Zionism. It has been
accurately described as the Magna Carta of the Jewish people. It is the best
proof that the whole country of Palestine and the Land of Israel belong
exclusively to the Jewish people under international law.
The Mandate for Palestine implemented
both the Balfour Declaration and Article 22 of the League Covenant, i.e. the
San Remo Resolution. All four of these acts were building blocks in the legal
structure that was created for the purpose of bringing about the establishment
of an independent Jewish state. The Balfour Declaration in essence stated the
principle or object of a Jewish state. The San Remo Resolution gave it the
stamp of international law. The Mandate furnished all the details and means
for the realization of the Jewish state. As noted, Britain’s chief obligation
as Mandatory, Trustee and Tutor was the creation of the appropriate political,
administrative and economic conditions to secure the Jewish state. All 28
articles of the Mandate were directed to this objective, including those
articles that did not specifically mention the Jewish National Home. The
Mandate created a right of return for the Jewish people to Palestine and the
right to establish settlements on the land throughout the country in order to
create the envisaged Jewish state.
In conferring the Mandate for Palestine
on Britain, a contractual bond was created between the Principal Allied Powers
and Britain, the former as Mandator and the latter as Mandatory. The Principal
Allied Powers designated the Council of the League of Nations as the
supervisor of the Mandatory to ensure that all the terms of the Mandate
Charter would be strictly observed. The Mandate was drawn up in the form of a
Decision of the League Council confirming the Mandate rather than making it
part of a treaty with Turkey signed by the High Contracting Parties, as
originally contemplated. To ensure compliance with the Mandate, the Mandatory
had to submit an annual report to the League Council reporting on all its
activities and the measures taken during the preceding year to realize the
purpose of the Mandate and for the fulfillment of its obligations. This also
created a contractual relationship between the League of Nations and Britain.
The first drafts of the Mandate for
Palestine were formulated by the Zionist Organization and were presented to
the British delegation at the Paris Peace Conference in 1919. The content,
style and mold of the Mandate was thus determined by the Zionist Organization.
The British Peace Delegation at the Conference produced a draft of their own
and the two then cooperated in formulating a joint draft. This cooperation
which took place while Arthur James Balfour was Foreign Minister came to an
end only after Lord Curzon, the Foreign Secretary who replaced Balfour on
October 24, 1919, took personal charge of the Mandate drafting process in
March 1920. He shut out the Zionist Organization from further direct
participation in the actual drafting, but the Zionist leader, Chaim Weizmann,
was kept informed of new changes made in the Draft Mandate and allowed to
comment on them. The changes engineered by Curzon watered down the obvious
Jewish character of the Mandate, but did not succeed in suppressing its aim –
the creation of a Jewish state. The participation of the Zionist Organization
in the Mandate drafting process confirmed the fact that the Jewish people were
the exclusive beneficiary of the national rights enshrined in the Mandate. No
Arab party was ever consulted regarding its views on the terms of the Mandate
prior to the submission of this instrument to the League Council for
confirmation, on December 6, 1920. By contrast, the civil and religious rights
of all existing religious communities in Palestine, whether Moslem or
Christian, were safeguarded, as well as the civil and religious rights of all
the inhabitants of Palestine, irrespective of race and religion. The rights of
Arabs, whether as individuals or as members of religious communities, but not
as a nation, were therefore legally assured. In addition, no prejudice was to
be caused to their financial and economic position by the expected growth of
the Jewish population.
It was originally intended that the
Mandate Charter would delineate the boundaries of Palestine, but that proved
to be a lengthy process involving negotiations with France over the northern
and northeastern borders of Palestine with Syria. It was therefore decided to
fix these boundaries in a separate treaty, which was done in the
Franco-British Boundary Convention of December 23, 1920. The borders were
based on a formula first put forth by the British Prime Minister David Lloyd
George when he met his French counterpart, Georges Clemenceau, in London on
December 1, 1918 and defined Palestine as extending from the ancient towns of
Dan to Beersheba. This definition was immediately accepted by Clemenceau,
which meant that Palestine would have the borders that included all areas of
the country settled by the Twelve Tribes of Israel during the First Temple
Period, embracing historic Palestine both east and west of the Jordan River.
The very words “from Dan to Beersheba” implied that the whole of Jewish
Palestine would be reconstituted as a Jewish state. Though the San Remo
Resolution did not specifically delineate the borders of Palestine, it was
understood by the Principal Allied Powers that this formula would be the
criterion to be used in delineating them. However, when the actual boundary
negotiations began after the San Remo Peace Conference, the French illegally
and stubbornly insisted on following the defunct Sykes-Picot line for the
northern border of Palestine, accompanied by Gallic outbursts of anti-Semitic
and anti-Zionist sentiments, though they agreed to extend this border to
include the Galilee but not any of the water sources from the Litani valley
and the land adjoining it. As a result, some parts of historic Palestine in
the north and northeast were illegally excluded from the Jewish National
Home. The 1920 Boundary Convention was amended by another British-French
Agreement respecting the boundary line between Syria and Palestine dated
February 3, 1922, which took effect on March 10, 1923. It illegally removed
the portion of the Golan that had previously been included in Palestine in the
1920 Convention, in exchange for placing the Kinneret (Sea of Galilee) wholly
within the bounds of the Jewish National Home, and made other small
territorial adjustments. The British and French negotiators had no legal right
to remove or exclude any “Palestine territory” from the limits of Palestine,
but could only ensure that all such territory was included. The exchange of
“Palestine territory” for other “Palestine territory” between Britain and
France was therefore prohibited as a violation of the Lloyd George formula
accepted at the San Remo Peace Conference.
The 1920 Convention also included
Transjordan in the area of the Jewish National Home, but a surprise
last-minute intervention by the US government unnecessarily delayed the
confirmation of the pending Mandate. This gave an unexpected opportunity to
Winston Churchill, the new Colonial Secretary placed in charge of the affairs
of Palestine, to change the character of the Mandate: first, by having a new
article inserted (Article 25) which allowed for the provisional administrative
separation of Transjordan from Cisjordan; second, by redefining the Jewish
National Home to mean not an eventual independent Jewish state but limited to
a cultural or spiritual center for the Jewish people. These radical changes
were officially introduced in the Churchill White Paper of June 3, 1922 and
led directly to the sabotage of the Mandate. Thereafter, the British never
departed from the false interpretation they gave to the Jewish National Home
which ended all hope of achieving the envisaged Jewish state under their
auspices.
The question of which state, nation or
entity held sovereignty over a mandated territory sparked great debate
throughout the Mandate period, and no definitive answer was ever given. That
is extremely surprising because the Treaty of Versailles, signed on June 28,
1919 and ratified on January 10, 1920, stated flatly in Article 22 that the
states which formerly governed those territories which were subsequently
administered by a Mandatory had lost their sovereignty as a consequence of
World War I. That meant that Germany no longer had sovereignty over its former
colonies in Africa and the Pacific, while Turkey no longer had sovereignty
over its possessions in the Middle East, prior to the signing of the Treaty of
Versailles. The date when the change of sovereignty occurred could only have
been on January 30, 1919, the date when it was irrevocably decided by the
Council of Ten in adopting the Smuts Resolution, that none of the ex-German
and ex-Turkish territories would be returned to their former owners. These
territories were then placed in the collective hands of the Principal Allied
and Associated Powers for their disposition. In the case of Palestine, that
decision was made in favor of the Jewish people at the session of the San Remo
Peace Conference that took place on April 24, 1920 when the Balfour
Declaration was adopted as the reason for creating and administering the new
country of Palestine that, until then, had had no official existence. Inasmuch
as the Balfour Declaration was made in favor of the Jewish people, it was the
latter upon whom de jure sovereignty was devolved over all of
Palestine. However, during the Mandate period, the British government and not
the Jewish people exercised the attributes of sovereignty, while sovereignty
in the purely theoretical or nominal sense (i.e. de jure sovereignty)
remained vested in the Jewish people. This state of affairs was reflected in
the Mandate Charter where the components of the title of sovereignty of the
Jewish people over Palestine are specifically mentioned in the first three
recitals of the Preamble, namely, Article 22, the Balfour Declaration and the
historical connection of the Jewish people with Palestine. These three
components of the title of sovereignty were the grounds for reconstituting the
Jewish National Home in Palestine as specifically stated in the third recital
of the Preamble. On the other hand, since the Jewish people were under the
tutelage of Great Britain during the Mandate Period, it was the latter which
exercised the attributes of Jewish sovereignty over Palestine, as confirmed by
Article 1 of the Mandate, which placed full powers of legislation and of
administration in the hands of the Mandatory, save as they may be limited by
the terms of the Mandate.
This situation continued so long as the
Mandate was in force and the Jewish people living in Palestine were not able
to stand alone and hence not able to exercise the sovereignty awarded them by
the Principal Allied Powers under international law.
The decisive moment of change came on May
14, 1948 when the representatives of the Jewish people in Palestine and of the
Zionist Organization proclaimed the independence of a Jewish state whose
military forces held only a small portion of the territory originally
allocated for the Jewish National Home. The rest of the country was in the
illegal possession of neighboring Arab states who had no sovereign rights over
the areas they illegally occupied, that were historically a part of Palestine
and the Land of Israel and were not meant for Arab independence or the
creation of another Arab state. It is for this reason that Israel, which
inherited the sovereign rights of the Jewish people over Palestine, has the
legal right to keep all the lands it liberated in the Six Day War that were
either included in the Jewish National Home during the time of the Mandate or
formed integral parts of the Land of Israel that were illegally detached from
the Jewish National Home when the boundaries of Palestine were fixed in 1920
and 1923. For the same reason, Israel cannot be accused by anyone of
“occupying” lands under international law that were clearly part of the Jewish
National Home or the Land of Israel. Thus the whole debate today that centers
on the question of whether Israel must return “occupied territories” to their
alleged Arab owners in order to obtain peace is one of the greatest falsehoods
of international law and diplomacy.
The most amazing development concerning
the question of sovereignty over Palestine is that the State of Israel, when
it finally had an opportunity to exercise its sovereignty over all of the
country west of the Jordan, after being victorious in the Six Day War of June
5-10, 1967, did not do so – except in the case of Jerusalem. The Knesset did,
however, pass an amendment to the Law and Administration Ordinance of 1948,
adding Section 11B, which allowed for that possibility and was premised on the
idea that Israel possessed such sovereignty. Israel did not even enforce the
existing law on sovereignty passed by the Ben Gurion government in September
1948, known as the Area of Jurisdiction and Powers Ordinance, which required
it to incorporate immediately any area of the Land of Israel which the
Minister of Defense had defined by proclamation as being held by the Defense
Army of Israel.
Israel’s legal rights and title of
sovereignty over all of the Land of Israel – specifically in regard to Judea,
Samaria and Gaza – suffered a severe setback when the Government of Prime
Minister Menahem Begin approved the Camp David Framework Agreement for Peace
in the Middle East, under which it was proposed that negotiations would take
place to determine the “final status” of those territories. The phrase “final
status” was a synonym for the word “sovereignty”. It was inexcusable that
neither Begin nor his legal advisers, including Aharon Barak, the future
President of the Israel Supreme Court, knew that sovereignty had already been
vested in the Jewish people and hence the State of Israel many years before,
at the San Remo Peace Conference. The situation became much worse, reaching
the level of treason when the Government of Prime Minister Yitzhak Rabin
signed the Declaration of Principles (DOP) with the Palestine Liberation
Organization (PLO) and agreed to give it about 90% or more of Judea and
Samaria and most of Gaza over a five-year transitional period in order to
“achieve a just, lasting and comprehensive peaceful settlement and historic
reconciliation through the agreed political process” with the Arabs of
Palestine. The illegal surrender of territory to the “Palestinian Authority”
originally called the “Council” in Article IV of the DOP was hidden by the use
of the word “jurisdiction” instead of “sovereignty” in that article. Further
dissimulation was shown by the sanitized reference to “redeployment of Israeli
military forces in Judea, Samaria and the Gaza Strip” to disguise the illegal
act of transferring parts of the Jewish National Home to the PLO. A spade was
not called a spade.
To understand why even the State of
Israel does not believe in its own title of sovereignty over what are
wrongfully termed “occupied territories” even by leading politicians and
jurists in Israel, it is necessary to locate the causes in the Mandate period:
-
The non-ratification of the Treaty of
Sevres of August 10, 1920 with Turkey which contained the San Remo
Resolution on Palestine and the non-inclusion of this Resolution in the
Treaty of Lausanne of July 24, 1923. This gave the wrong impression that
the legal status of Palestine as a whole was never settled definitively as
being the Jewish National Home under international law and that Turkey did
not lose its sovereignty until the signing of this latter treaty.
-
The non-enforcement of most of the
terms of the Mandate within Palestine itself, according to their true
intent and meaning, by both the British government and the
British-administered judiciary which servilely served the former to the
point of misfeasance.
-
The deliberate misinterpretation of
the meaning of the Mandate by the British government to include
obligations of equal weight which it supposedly had undertaken in favor of
the Arabs of Palestine, when in actual fact no such obligations ever
existed, particularly the obligation to develop self-governing
institutions for their benefit, which – on the contrary – were meant for
the Jewish National Home.
-
The issuance of several White Papers
beginning with the Churchill White Paper of June 3, 1922 and culminating
with the Malcolm MacDonald White Paper of May 17, 1939, whose effect was
to nullify the fundamental terms of the Mandate and prevent a Jewish state
covering the whole of Palestine from ever coming into being during the
British administration of the country. What the British essentially did in
governing Palestine was to implement their false interpretations of the
Mandate rather than its plain language and meaning. This turned the
Mandate Charter upside down and made its aim of a Jewish state
unrealizable.
-
The illegal introduction of Article
25 into the Mandate Charter that after its application on September 16,
1922 led to the dislocation of Transjordan from the Jewish National Home
and also had a deleterious influence on the administration of Cisjordan by
encouraging the false idea that Arab national rights existed not only in
the severed part of the Jewish National Home across the Jordan, but in the
remaining part as well.
The end result of British sabotage,
misinterpretation, distortion and outright denial of what the Mandate stood
for was that Jewish legal rights and title of sovereignty over the whole of
Palestine as originally envisaged in the San Remo Resolution and the Mandate
became so blurred, obfuscated and confused by the time the Mandate ended that it
was no longer understood or held to be true. Not even the legal experts of the
Jewish Agency for Palestine and the Zionist Organization asserted Jewish
sovereignty over the whole country in any official paper or memorandum
submitted to the British government or to the League of Nations.
The mutilation of the Mandate Charter was
continued by the United Nations when this new world organization considered
the question of Palestine. On August 31, 1947, the United Nations Special
Committee on Palestine (UNSCOP) proposed an illegal partition plan which
recognized Arab national rights in western Palestine, specifically in the
areas of western Galilee, Judea, Samaria, the southern coastal plain from
Ashdod to the Egyptian frontier and a portion of the western Negev including
Beersheba and what became Eilat. It apparently did not occur to the members of
the Committee representing 11 states headed by Swedish Chief Justice Emil
Sandstrom, that the UN did not have the legal authority to partition the
country in favor of the Arabs of Palestine who were not the national
beneficiary of the Mandate entitled to self-determination. The trampling of
the legal rights of the Jewish people to the whole of Palestine by the United
Nations was in clear violation of the Mandate which forbade partition and also
Article 80 of the UN Charter which, in effect, prevented the alteration of
Jewish rights granted under the Mandate whether or not a trusteeship was set
up to replace it, which could only be done by a prior agreement made by the
states directly concerned. The illegal partition plan, with some territorial
modifications made in the original majority plan presented by UNSCOP, was then
approved by the General Assembly on November 29, 1947 as Resolution 181 (II).
The Jewish Agency for Palestine, recoiling from the loss of six million Jews
in the Holocaust and trying to salvage something from British misrule of
Palestine, accepted this illegal Resolution. By doing so, it lent credence to
the false idea that Palestine belonged to both Arabs and Jews, which was an
idea foreign to the San Remo Resolution, the Mandate and the Franco-British
Boundary Convention of December 23, 1920. The Jewish Agency should have relied
on these three documents exclusively in declaring the Jewish state over all of
Palestine, even if it was unable to control all areas of the country,
following the example of what was done in Syria and Lebanon during World War
II.
Another facet of the story that concerned
the illegal denial of Jewish legal rights and title of sovereignty over
Palestine was the attitude adopted by the United States government towards the
infamous British White Paper of May 17, 1939. The United States agreed to the
British administration of Palestine pursuant to the Mandate when it signed and
ratified the Anglo-American Convention of December 3, 1924. This imposed a
solemn obligation on the US government to protest any British violation of
this treaty, which had repeated every word, jot and tittle of the Mandate
Charter in the preamble of the Convention, regardless of whether the violation
affected American rights or those of the Jewish people. Yet when the White
Paper was issued in the year of 1939, the US government did not lift a finger
to point out the blaring illegalities contained in the new statement of
British policy that smashed to smithereens the Balfour Declaration and the
Mandate, and brought immense joy to the Arab side. It accepted the incredible
British contention that changes in the terms of the Mandate effected by the
White Paper did not require American consent because no US rights or those of
its nationals were impaired, an argument that was demonstrably false. This US
passivity in the face of British perfidy, which was strongly denounced by the
venerable David Lloyd George and even by Winston Churchill who had himself
contributed to the betrayal of the Jewish people and their rights to
Palestine, allowed the British government to get away with the highest
violation of international law at the very moment when the Jewish people were
about to suffer the greatest catastrophe in their history. There can be no
doubt that the Holocaust could have largely been prevented or its effects
greatly mitigated had the terms of the Mandate been duly implemented to allow
for a massive influx of Jews to their national home.
American inaction against the British
government was particularly unforgivable in view of the fact that the articles
of the Mandate were a part of American domestic law and the US was the only
state which could have forced the British to repudiate the malevolent White
Paper and restore the right of the Jews of Europe to gain refuge in their
homeland.
Both the Mandate and the Anglo-American
Convention have ceased to exist. However, all the rights of the Jewish people
that derive from the Mandate remain in full force. This is the consequence of
the principle of acquired legal rights which, as applied to the Jewish people,
means that the rights they acquired or were recognized as belonging to them
when Palestine was legally created as the Jewish National Home are not
affected by the termination of the treaty or the acts of international law
which were the source of those rights. This principle already existed when the
Anglo-American Convention came to an end simultaneously with the termination
of the Mandate for Palestine on May 14-15, 1948. It has since been codified in
Article 70(1)(b) of the 1969 Vienna Convention on the Law of Treaties. This
principle of international law would apply even if one of the parties to the
treaty failed to perform the obligations imposed on it, as was the case with
the British government in regard to the Mandate for Palestine.
The reverse side of the principle of
acquired legal rights is the doctrine of estoppel which is also of great
importance in preserving Jewish national rights. This doctrine prohibits any
state from denying what it previously admitted or recognized in a treaty or
other international agreement. In the Convention of 1924, the United States
recognized all the rights granted to the Jewish people under the Mandate, in
particular the right of Jewish settlement anywhere in Palestine or the Land of
Israel. Therefore the US government is legally estopped today from denying the
right of Jews in Israel to establish settlements in Judea, Samaria and Gaza,
which have been approved by the government of Israel. In addition, the United
States is also debarred from protesting the establishment of these settlements
because they are based on a right which became embedded in US domestic law
after the 1924 Convention was ratified by the US Senate and proclaimed by
President Calvin Coolidge on December 5, 1925. This convention has terminated,
but not the rights granted under it to the Jewish people. The American policy
opposing Jewish settlements in Judea, Samaria and Gaza is a fit subject for
judicial review in US courts because it violates Jewish legal rights formerly
recognized by the United States and which still remain part of its domestic
law. A legal action to overturn this policy if it was to be adjudicated might
also put an end to the American initiative to promote a so-called
“Palestinian” state which would abrogate the existing right of Jewish
settlement in all areas of the Land of Israel that fall under its illegal
rule.
The gravest threat to Jewish legal rights
and title of sovereignty over the Land of Israel still comes from the same
source that has always fought the return of the Jews to their homeland,
namely, the medley of Arabic-speaking Gentiles who inhabit the land alongside
the Jews. They no longer call themselves Arabs or Syrians, but “Palestinians”.
This has resulted in a switch of national identity. The Palestinians used to
be the Jews during the Mandate Period, but the Arabs adopted the name after
the Jews of Palestine established the State of Israel and began to be called
Israelis. The use of the name “Palestinians” for Arabs did not take general
hold until 1969 when the United Nations recognized the existence of this
supposed new nation, and began passing resolutions thereafter affirming its
legitimate and inalienable rights to Palestine. The whole idea that such a
nation exists is the greatest hoax of the 20th century and
continues unabated into the 21st century. This hoax is easily
exposed by the fact that the “Palestinians” possess no distinctive history,
language or culture, and are not essentially different in the ethnological
sense from the Arabs living in the neighboring countries of Syria, Jordan,
Lebanon and Iraq. The very name of the supposed nation is non-Arabic in origin
and derives from Hebrew root letters. The Arabs of Palestine have no
connection or relationship to the ancient Philistines from whom they have
taken their new name.
It is a matter of the greatest irony and
astonishment that the so-called Palestinian nation has received its greatest
boost from Israel itself when it allowed a “Palestinian” administration to be
set up in the areas of Judea, Samaria and Gaza under the leadership of Yasser
Arafat.
The situation in which the Arabs of
Palestine and the Land of Israel claim the same legal rights as the Jewish
people violates the authentic international law that was created by the San
Remo Resolution, the Mandate and the 1920 Franco-British Convention. It is
part of the worldwide folly that has occurred since 1969 when the “Palestinian
people” were first accorded international recognition, that authentic
international law has been replaced by an ersatz international law
composed of illegal UN Resolutions. The Fourth Geneva Convention of 1949 and
the Hague Regulations of 1907 are acts of genuine international law, but they
have no direct application or relevance to the legal status of Judea, Samaria
and Gaza which are integral territories of the Jewish National Home and the
Land of Israel under the sovereignty of the State of Israel. These acts would
apply only to the Arab occupation of Jewish territories, as occurred between
1948 and 1967, and not to the case of Israeli rule over the Jewish homeland.
The hoax of the Palestinian people and their alleged rights to the Land of
Israel as well as the farce that results from citing pseudo-international law
to support their fabricated case must be exposed and brought to an end.
The Arabs of the Land of Israel have
ignited a terrorist war against Israel to recover what they consider to be
their occupied homeland. Their aim is a fantasy based on a gross myth and lie
that can never be satisfied, since that would mean the conversion of the Land
of Israel into an Arab country. It is up to the government of Israel to take
the necessary steps to remedy what has become an intolerable situation that
threatens the Jewish people with the loss of their immutable rights to their
one and only homeland.
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