Israeli sovereignty over Jerusalem, Judea and Samaria Part I

 

by Wallace Edward Brand

 1^st part of 2

A summary of facts in support of Israel's lawful exercise of sovereignty over East Jerusalem, Judea and Samaria.

It is widely accepted, but not correct, that the West Bank belongs to the local Arabs in Palestine who call themselves Palestinians. Israel's position has not recently been fully stated. At most, it is said that no one has sovereignty over the West Bank. A better view is that the Jews obtained a beneficial interest in sovereignty over all of Palestine in 1922 by enactment of the Palestine Mandate,[1] entrusting it to Britain and on the abandonment of its trusteeship by Britain in 1948,[2] Israel obtained the political rights over which it theretofore had had a beneficial interest so that it had sovereignty under International Law as granted by the British Mandate. Later, in 1924, the British Mandate became the domestic law of England and the US as I explain below.

In 1920 the Ottoman Empire in Article 95 of the Treaty of Sevres,[3] granted its sovereignty in Palestine, which had been undisputed for 400 years, to a trustee in trust for a National Homeland for the Jews. The trustee selected by the League of Nations was Great Britain. (Sovereignty, i.e. political rights, over the other 99% of the lands captured from the Ottomans in the Middle East and the Maghreb was allocated to Arabs and Muslims.) It was in fact expected that the Jewish Homeland would eventually become a state when immigration gave the Jews a majority of the population, but at the time the Jews were incapable of exercising sovereignty although the "Jewish Agency" was exercising administrative authority of wide scope. In the '20s, the US was not a member of the League but a joint resolution of Congress on June 30, 1922 adopted and approved the League of Nations selection of trustee and its grant of authority.[4]

It all started in 1917 when Lord Balfour, the British Foreign Secretary, issued his famous "Declaration"[5] with the consent of the cabinet. In it he said that after WWI, when the Allies were victorious, Palestine should be designated a National Homeland for the Jews. The political rights, i.e. sovereignty over Palestine should be held in trust for the Jews until they were capable of exercising sovereignty. There was considerable sympathy among many Christian Evangelicals in England who thought the Jews should be restored to Palestine. British workmen, however, had complained that Jews were flooding in to England and taking their jobs and working for less. This led to the Aliens Act of 1909 restricting Jewish immigration into England.[6] But the British recognized that the oppression of the Jews in Russia and Poland was very bad and they needed some place to go. And England also desired that the Jews in Russia influence the new Marxist government to remain in WWI on the side of the Allies.

Chaim Weitzman, an ardent Zionist and also a good chemist had helped Britain in the war by developing an inexpensive method of manufacturing acetone used in cordite for munitions and had given it to the British. It was a great help to the British war effort.

WWI ended with the Allies having captured all the Ottoman Empire lands in the Middle East and North Africa (the Maghreb). In a conference in 1920 at San Remo,[7.] the Allies adopted Lord Balfour's declaration as Allied Policy and it was sent to the League of Nations for a proclamation called "The British Mandate" that became International Law.[8] The UN later called the same arrangements "trusteeships".[9] It restricted the Jews, when they did exercise sovereignty, from doing anything that would impair the civil or religious rights of the Arabs but was silent as to the political rights of the Arabs. In the San Remo Conference it was also decided to give Arabs and Muslims sovereignty over 99% of the lands captured from the Ottomans. Palestine was the last 1%.

The Mandate Law also became the domestic law of the UK and the US in 1924 when the Mandate became the subject of the Anglo American Convention of 1924.[10] Perfidious Albion did not maintain its trust for very long. Circumstances changed, British interests changed, and the British Government also changed. Great Britain was charged in the press with giving sovereignty over Palestine to three different groups, the French in the Sykes-Picot agreement,[11] the Arabs in the McMahon-Hussein correspondence,[12] and the Jews in the Balfour Declaration.[13] The latter was adopted by the WWI allies in the conference at San Remo and in 1924 by the League of Nations as the British Mandate. Careful scrutiny would show the charges were not true but rarely does the press give anything careful scrutiny and world opinion was much against England.

England had installed Feisal as the King of Syria.[14] After the Battle of Maysalun, in which the French Armed Forces defeated the Syrian Army the French deposed Feisal.[15] Abdullah, Feisal's brother, was furious. He marched his troops from their home in the Hejaz (in the Arabian Peninsula) to Eastern Palestine and made ready to attack the French in Syria. Churchill did not want war between the Arabs and the French. He gave Feisal the Kingdom of Iraq as a consolation prize[16] and gave Abdullah Eastern Palestine in violation of the British Mandate.[17] The Mandate had prohibited the Mandatory from ceding any land to a foreign nation. In Article 25 it approved delaying settlement East of the Jordan River, but prohibited the Mandatory Power from discriminating among races.[18] The land East of the Jordan River became TransJordan and then Jordan and the Mandatory, despite the specific terms of the mandate, prohibited Jews from settling there.

The publicity generated about Lawrence of Arabia and the Arabs help to the Allies by Lowell Thomas contributed to the decision[19] but in fact the story was overblown to sell newspapers. The Arabs local to Palestine, unlike the Arabs from the Arabian Peninsula that had been led by Lawrence, had declined the British offer of political self determination and had preferred to fight for the Ottomans who ruled from Constantinople. According to Winston Churchill, in his Remarks in the House of Commons opposing the White Paper of 1939,[20] "The Palestinian Arabs, of course, were for the most part fighting against us, ,,," "However the Jews assembled several battalions of Jewish soldiers that fought alongside the British in Palestine.

At that point the Jews had, de facto, lost 77% of their Mandated beneficial right to sovereignty in Palestine. Only 23% of Palestine was left.

Article 80 of the UN Charter[21] had preserved the rights that had been granted by the League of Nations prior to its demise. In 1947 nevertheless, the UN recommended (not a grant inconsistent with the Mandate) a partition that offered a part of the area West of the Jordan (a part of the 23% remaining) to the Jews, in effect, releasing that part of the trust res to them, and the remainder to the local Arabs although the latter was unauthorized by the Mandate.

 

Wallace Edward Brand is a retired lawyer living in Virginia.

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