Wednesday, July 25, 2012

The Mandate For Palestine Still Matters 90 Years Later

by Eli E. Hertz

Israelis and friends of the Jewish State alike are accustomed to the never-ending scorn the United Nations heaps on the Middle East's only free democracy, never mind its desire for peace with all of its Arab neighbors. It may seem unfathomable that the very same institution was ultimately responsible for the creation of Israel nearly 65 years ago.

Today marks the 90th anniversary of the League of Nations, the forerunner of the UN, that published the legally binding document the "Mandate for Palestine." The Mandate's roots can be traced to the founding of modern Zionism in August 1897 and the Balfour Declaration of November 1917.

After witnessing the spread of anti-Semitism around the world, Theodor Herzl felt compelled to create a political movement with the goal of establishing a Jewish National Home in historic Palestine, and assembled the first Zionist Congress in Basel, Switzerland. During World War I, Foreign Secretary Arthur Balfour simply expressed Great Britain's view with favor for "the establishment in Palestine of a national home for the Jewish people."

In contrast, the Mandate is the multilateral binding agreement which laid down the Jewish legal right to settle anywhere in the geographical area called Palestine, the land between the Jordan River and the Mediterranean Sea, an entitlement unaltered in international law.

The Mandate was not a naive vision briefly embraced by the international community. The entire League of Nations – 51 countries – unanimously declared on that July 24th, 1922: "Whereas recognition has been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country."

Washington went a step further: In September of that year, President Warren Harding signed the Lodge-Fish Joint Resolution, which had passed both Houses of Congress without dissent, which read, "Favors the establishment in Palestine of a National Home for the Jewish people."

The Mandate clearly differentiates between political rights referring to Jewish self-determination as an emerging polity—and civil and religious rights, referring to guarantees of equal personal freedoms to non-Jewish residents as individuals and within select communities. Not once are Arabs as a people mentioned in the Mandate for Palestine. Nowhere in the document is there any granting of political rights to Arabs.

Article 5 of the Mandate clearly states that "The Mandatory [Great Britain] shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign power." The territory of Palestine was exclusively assigned for the Jewish National Home.

Article 6 states that "the Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes."

Accordingly, this article makes clear that Jewish settlements are not only permissible, but actually encouraged. Jewish settlements in Judea and Samaria (i.e., the West Bank) are perfectly legal. The use of the phrase "Occupied Palestinian Territories" is a disingenuous term that misleads the international community, while encouraging Palestinian Arabs, with the right to use all measures to attack Israel, including the use of terrorism.

The Mandate was subsequently protected by Article 80 of the United Nations Charter that recognizes the continued validity of the rights granted to all states or peoples, or already existing international instruments including those adopted by the League of Nations. The International Court of Justice has consistently recognized that the Mandate survived the demise of the League of Nations.

Legal arguments aside, it is worth noting that the Arabs never established a Palestinian state when the UN in 1947 recommended to partition Palestine, and to establish "an Arab and a Jewish state" - not a Palestinian state, it should be noted. Nor did the Arab countries recognize or establish a Palestinian state during the two decades prior to the Six-Day War when the West Bank was under Jordanian control and the Gaza Strip was under Egyptian control. Nor did the Palestinian Arabs clamor for autonomy, independence, or self-determination during those years.

Political right to self-determination as a polity for Arabs, were guaranteed by the League of Nations, in four other mandates: Lebanon, Syria, Iraq, and Trans-Jordan.

Any attempt to negate the Jewish people's rights to Palestine, and to deny them access and control in the area designated for the Jewish people by the League of Nations, is in serious conflict with the Mandate's legal framework, set up on this date 90 years ago.

Until the United Nations remembers and accepts these obligations, a genuine peace between an Israeli government and its Arab neighbors is likely to remain elusive.

Eli E. Hertz


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

1 comment:

salubrius said...

The Government of Israel should:
1. Recognize the validity of the legal opinion in the Levy Report.
2. Annex all of Judea and Samaria as they are land the political rights for which had been granted to World Jewry and the Government of Israel is their agent to exercise sovereignty.
3. Require all in the newly annexed area to swear fealty to the State of Israel if they wish to attain citizenship. If they do not, offer them compensation to leave. In the alternative, they should be permitted to stay on as non-citizen permanent residents.
4. Recognize the continuing shelling of Israel by Gaza as a casus belli, and ask the IDF to retake Gaza.
5. Permit Gaza home rule until such time as Jewish population has grown sufficiently so that annexing Gaza would not jeopardize Jewish population majority. Retain authority over all external affairs and to eliminate from local elections candidates or parties that are terrorists or that seek to deny Israeli polity.

Discussion. The question naturally arises as to whether these actions would be inconsistent with the grant of political rights in the San Remo Resolution. In my opinion they would not. The San Remo grant was not to vest until the Jews had a population majority. We can see today the tragic error of the French mandate that granted sovereignty to the Alawite Syrians, a small percentage of the Syrian population. The Jews had fairly attained a population majority as of 1950 after 700,000 non-Jews left, almost all voluntarily without seeing a single Israel soldier. . It was reasonable for Israel to exercise sovereignty for two years after the abandonment of the trusteeship by England as they had had a beneficial interest in the original grant and the UN as the successor organization to the League recognized that they were required to recognize Jewish sovereignty by Article 80 of its Charter that preserved the original grant.
The chimera of loss of a population majority has been dispelled by a showing that the PA has overstated the relevant Arab population, i.e. that of Judea and Samaria, by one million.
Granting Gaza home rule would not require permitting the Gazans to vote in elections that set Israeli policy. That is because the savings clause in the San Remo Resolution has been interpreted by the French, and agreed to by all parties, as meaning that the non-Jews would not be required to surrender any rights. They would not be required to surrender any political rights because they never had any. The Arabs in Gaza never had any right to vote on matters of policy for the Ottoman Caliphate for the 400 years preceding the San Remo agreement when they were occupied by Colonial Turkey.

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