Israeli sovereignty over Jerusalem, Judea and Samaria Part II

 

by Wallace Edward Brand

2^nd part of 2

In the San Remo Resolution, the Allies agreed

"To accept the terms of the Mandates Article as given below with reference to Palestine, on the understanding that there was inserted in the process-verbal an undertaking by the Mandatory Power that this would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine;"[22]

What were those rights? The Mandate preserved the civil and religious rights of the local Arabs but did not create any political rights for them. It did not and could not "preserve" any political rights in Palestine for local Arabs in Palestine as they had never in history had any. As to political rights, the local Arabs were no worse off than they were under the Ottoman rule from 1520 to 1920, the British suzerainty from 1920 to 1947, or the Jordanian rule from 1948 to 1967.

In 1948, the Jews accepted the UN recommendation and promptly proclaimed independence.[23] The Arabs declined. They wanted all of the land. As noted above, in 1920 the Arabs and Muslims had been awarded political rights in 99% of the captured Ottoman land. Political rights for only 1%, Palestine, was awarded to the Jews.

Under those circumstances, what can be said about the territory, recommended to be awarded to the Arabs but which they declined? After Churchill gave Transjordan to Abdullah, the Arabs and Muslims had 99.77% of the captured Ottoman lands in the Middle East and the Maghreb and the Jews only 0.23%.[24] But the Arabs didn't want the Jews to have any because it violated Islam to have any inroads on the Dar-al-Islam.[25] They engaged in jihad against the Jews and the Arab Higher Committee brought in the Armies of the surrounding Arab and Muslims States. In 1947 the Trustee had abandoned its trust and its suzerainty was thereby ended. Therefore International Law under the doctrine of "acquired rights" favors the claim of Israel over the remaining trust res, i.e. political rights over Palestine, i.e. sovereignty including sovereignty over the West Bank granted by the League of Nations.[26] Howard Grief, in his excellent exposition[27] that parallels this one but is far more detailed, says that this aspect of international law has been codified by the 1969 Vienna Convention on the Law of Treaties. It provides, in Article 70(1)(b) for the Consequences of the termination of a treaty.

Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention: does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.

Was the National Homeland for the Jews referred to in the Mandate intended to be a proposed Jewish State encompassing all of Palestine, or a smaller enclave within Palestine?

The Report of the Anglo-Anglo American Inquiry held in 1946 suggests in paragraph 1 of Chapter V [Jewish Attitude] that the demand for a Jewish State goes beyond the policy of Lord Balfour and the grant of the League of Nations in the British Mandate. But its only justification for that view, according to its report, was its claim that in late 1932 the chairman of the Jewish Agency, Nahum Sokolow had disowned that view.

The Anglo American inquirers overlooked the following history:

By 1922 the British Government's interests had changed and the government had changed. It was defending itself from charges that it had conferred political rights to the same land to the French, the Arabs and the Jews in three different agreements, the Sykes-Picot agreement, the McMahon-Hussein correspondence, and the Lord Balfour Declaration. So in 1922,Churchill, in a White Paper, tried wiggle out of England's obligation by hinting broadly that a "national home" was not necessarily a state. However in private, many British officials agreed with the interpretation of the Zionists that a state would be established when a Jewish majority was achieved.[28]

In the British cabinet discussion during final consideration of the language of the Balfour Declaration, in responding to the opposition of Lord Curzon, who viewed the language as giving rise to the presumption that Great Britain favored a Jewish State, Lord Balfour stated:

"As to the meaning of the words 'national home', to which the Zionists attach so much importance, he understood it to mean some form of British, American, or other protectorate, under which full facilities would be given to the Jews to work out their own salvation and to build up, by means of education, agriculture, and industry, a real center of national culture and focus of national life. It did not necessarily involve the early establishment of an independent Jewish State, which was a matter for gradual development in accordance with the ordinary laws of political evolution." The key word here was 'EARLY'; otherwise, the statement makes it quite clear that Balfour envisaged the eventual emergence of an independent Jewish state. Doubtless he had in mind a period somewhat longer than a mere thirty years; but the same could also be said of Chaim Weitzman."[29]

According to Lloyd George, one of Churchill's contemporaries, for example, the meaning was quite clear:

"There has been a good deal of discussion as to the meaning of the words "Jewish National Home" and whether it involved the setting up of a Jewish National State in Palestine. I have already quoted the words actually used by Mr. Balfour when he submitted the declaration to the Cabinet for its approval. They were not challenged at the time by any member present, and there could be no doubt as to what the Cabinet then had in their minds. It was not their idea that a Jewish State should be set up immediately by the Peace Treaty without reference to the wishes of the majority of the inhabitants. On the other hand, it was contemplated that when the time arrived for according representative institutions to Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth. The notion that Jewish immigration would have to be artificially restricted in order to ensure that the Jews should be a permanent minority never entered into the heads of anyone engaged in framing the policy. That would have been regarded as unjust and as a fraud on the people to whom we were appealing."[30]

If there is any further doubt in the matter, Balfour himself told a Jewish gathering on February 7,1918: "My personal hope is that the Jews will make good in Palestine and eventually found a Jewish state. It is up to them now; we have given them their great opportunity." [31]

A "Mandate" and a "Trusteeship" were essentially the same suzerainty. The mandate name was abandoned by the UN in favor of "trusteeships" in order not to have the stigma of the moribund League of Nations to carry in its baggage.

Following an opinion of the renowned international lawyer Julius Stone that focused on the settlement question,[32] President Reagan and succeeding Presidents through George W. Bush maintained a US view that the Jewish Settlements in the West Bank were legal but as a policy matter should be discouraged because of their tendency to discourage the Peace Process. President Obama while continuing the position on policy has not specifically stated his view on legality of the settlements.

As to Jerusalem, East Jerusalem fell in 1948[33] to an attack of the Arab Legion supplied and trained by the British and led by Sir John Bagot Glubb frequently referred to as "Glubb pasha". The Arab Legion later became the Jordanian Army.

The Jordanians demolished 58 synagogues and their contents, uprooted the tombstones of Jewish cemeteries, and used them for paving or building latrines, and built a latrine against the Western Wall of the Temple Mount, the single most holy site for Jews.[34] They expelled all the Jewish inhabitants of East Jerusalem and it became, as Adolph Hitler liked to say, judenrein or cleansed of Jews. In 1967 in the Six Day War, Israel drove the Jordanians east to the Jordan River and became in control of East Jerusalem.[35] They did not use their conquest to deprive the Moslems access to their holy sites in East Jerusalem as the Jordanians had done to the Jews and Christians.

Are the Jews Judaizing the city of Jerusalem? How can that be? The Jewish population was 74% in 1967 and now it is down to 66% with the Arab population growing from 23% to 32% and the Christian population, currently 2%. However the Jews are going back into East Jerusalem where they had been driven out in 1948. If anyone is doing ethnic cleansing, it is the Arabs. It appears to the Israelis, therefore, that Obama and Ban Ki Moon wants to keep East Jerusalem judenrein.

In fact you read in the news and hear on TV a lot about Jewish settlements outside of Jerusalem, but have you ever seen or heard a reference to new Arab settlements there? Since 1950 more than twice as many new settlements have been built by Arabs in the West Bank as have been built by Jews,[36] totally ignored by the press. They fill them with Lebanese, Iraqis, Jordanians and Egyptians, and mirabile dictu they are Palestinians. I think the Arabs must have changed the name of the area from Judea and Samaria to the "West Bank" so they wouldn't look silly in claiming that the Jews were illegally settling in Judea.
 

End Notes

[1] See the original documents in the Avalon Project at Yale University.
http://avalon.law.yale.edu/20th_century/palmanda.asp

[2] http://www.mideastweb.org/history.htm

[3] http://www.hri.org/docs/sevres/part3.html

[4] A general chronology is in Hertz, "Mandate for Palestine"
(http://www.mythsandfacts.com/conflict/mandate_for_ palestine/mandate_for_palestine.htm), which cites Palestine Royal Commission Report, July 1937, Chapter II, p. 31. The discussion by the international lawyer, Jacques Gauthier, is in
http://www.eitanbehar.org/archives/351.

[5] http://avalon.law.yale.edu/20th_century/balfour.asp; some context is discussed in
http://www.absoluteastronomy.com/topics/ Balfour_Declaration,_1917

[6]  http://www.nationalarchives.gov.uk/catalogue/RdLeaflet.asp?sLeafletID=243; For context, see
http://www.movinghere.org.uk/galleries/histories/jewish/ journeys/journeys.htm

[7] http://wwi.lib.byu.edu/index.php/San_Remo_Convention; what the Arabs got is discussed in
http://www.palestinefacts.org/pf_ww1_arab_result.php

[8] Same as the Palestine Mandate. See [1]

[9] http://www.absoluteastronomy.com/topics/ United_Nations_Trusteeship_Council

[10] My Right Word: That Anglo-American Convention of 1924;
http://www.think-israel.org/mehlman.griefbook.html

[11] http://avalon.law.yale.edu/20th_century/sykes.asp; http://www.jewishvirtuallibrary.org/jsource/judaica/ ejud_0002_0019_0_19421.html

[12] http://www.jewishvirtuallibrary.org/jsource/History/hussmac.html includes the text of the letters;
http://www.mideastweb.org/mcmahon.htm also includes text and maps.

[13] See [5]; also "What did the British promise to the Jews?",
http://www.palestinefacts.org/pf_ww1_british_promises_jews.php

[14] http://www.answers.com/topic/faisal-i-ibn-hussein

[15] http://www.statemaster.com/encyclopedia/Battle-of-Maysalun

[16] www.answers.com/topic/faisal-i-ibn-hussein; http://www.wnd.com/?pageId=5715 which also discusses Lawrence of Arabia's role in creating (Trans)Jordan.

[17] http://www.eretzyisroel.org/~jkatz/jordan.html; see also [16].

[18] http://www.mfa.gov.il/MFA/Peace+Process/ Guide+to+the+Peace+Process/The+Mandate+for+Palestine.htm; See also [4] and
http://middleeastfacts.org/content/UN-Documents/ Mandate-for-Palestine.htm

[19] http://www.radicalacademy.com/pollawrenceofarabia.htm; http://www.eretzyisroel.org/~samuel/britainfrance.html

[20] http://en.wikipedia.org/wiki/White_Paper_of_1939

[21] http://www.yale.edu/lawweb/avalon/un/unchart.htm/. The site contains all the articles of the UN Charter.

[22] http://en.wikipedia.org/wiki/San_Remo_conference; also
http://www.ruthfullyyours.com/2010/04/25/salomon-benzimra- israels-legal-rights-and-the-san-remo-conference-please-read/

[23] http://www.timesonline.co.uk/tol/system/topicRoot/ Establishment_of_the_State_of_I/

[24] http://www.masada2000.org/

[25] http://www.answers.com/topic/dar-al-islam

[26]  Basic general concept of trust res is explained in
http://legal-dictionary.thefreedictionary.com/trust; See also: http://www.think-israel.org/shifftan.gifting.html; http://www.think-israel.org/beres.ramificationspalstate.html; and http://www.think-israel.org/belman.israelowns samariajudea.html

[27] Howard Grief, The Legal Foundation and Borders of Israel under International Law: A Treatise on Jewish Sovereignty over the Land of Israel (ISBN-10: 9657344522). See also his articles at:
http://www.think-israel.org/grief.4thgenevaconvention.html and
http://www.think-israel.org/grief.occupationmyth.html

[28]  Peter Mansfield, The Arabs London,Penguin Books. 1922, Pp 176-77.

[29] Ronald Sanders, The High Walls of Jerusalem, p. 611

[30]  Lloyd George Memoirs, pp 736-7,
http://www.mideastweb.org/mebalfour.htm

[31]  Sanders, Ronald. Op cit, p 652)

[32] Citations from Stone are in
www.think-israel.org/shifftan.belligerentoccupation.html;
http://www.think-israel.org/shifftan.israelsimage.html;
http://www.think-israel.org/shifftan.uprooting.html;
http://www.think-israel.org/grief.4thgenevaconvention.html;
http://www.think-israel.org/shifftan.gifting.html;
http://www.think-israel.org/grief.occupation.html

[33] http://www.historynet.com/ glubb-pasha-and-the-arab-legion.htm

[34] "http://uk.answers.yahoo.com/question/ index?qid=20091225111633AAB8o1S" who quotes from
http://www.samsonblinded.org/said_end_pe...; see also
http://www.sixdaywar.org/content/jordanianocuupationjerusalem.asp

[35] http://www.sixdaywar.org/content/ReunificationJerusalem.asp

[36] http://www.eretzyisroel.org/~jkatz/settlementreport.html;
http://online.wsj.com/article/SB10001424052748704743404575127542291520202.html
 

Wallace Edward Brand is a retired lawyer living in Virginia.

Copyright - Original materials copyright (c) by the authors.