LECTURE DELIVERED BY ATTORNEY HOWARD GRIEF
AT THE MENAHEM BEGIN HERITAGE CENTER, JERUSALEM
OCTOBER 14, 2009
ISRAEL'S LEGAL FOUNDATION, BORDERS AND RIGHTS
TO THE LAND OF ISRAEL UNDER INTERNATIONAL LAW
Good evening, Ladies and Gentlemen,
It is my honour to speak to you tonight about Israel's Legal Foundation, Borders and Rights to the Land of Israel under international law, the subject of my book published in December 2008 by Mazo Publishers, Jerusalem.
I wrote this book because I did not find any that truly presented Israel's solid legal case to the whole territory of Palestine or the Land of Israel based on all the important documents of international law that came into existence during and after World War I. This became evident to me when all the territories liberated by the Israel Defense Forces in the Six-Day War of June 1967 were inaccurately described as "occupied territories", both in Israel and abroad, despite the fact that those territories were either integral parts of the internationally recognized Jewish National Home, as in the case of eastern Jerusalem, Judea, Samaria and Gaza, or were illegally removed from it, as in the case of the Golan Heights, or finally, not included in the Jewish National Home, as the Sinai Peninsula should have been. Had the Jewish legal case been properly and systematically adduced by Israeli or Jewish jurists, prior to and after the Six-Day War, the territories liberated in that war would have been correctly characterized as the redeemed national patrimony of the Jewish People and incorporated forthwith into the State of Israel, as was done only for eastern Jerusalem and much later for the Golan Heights.
The very use of the term "occupied territories" by many in Israel itself conveyed the impression that the lands liberated really belonged to Arabs and not to Jews. At the critical moment in June 1967, the State of Israel did not assert its true rights to the liberated territories and by not incorporating them into the State, led foreign nations, especially the United States and those in Europe, to believe that Israel had to return these lands to their presumed Arab owners. This decision not to annex was a monumental error and, moreover, constituted a gross violation of existing Israeli constitutional law which required the application of Israeli law, rather than the laws of war, to the liberated territories of the Jewish National Home and Land of Israel. It is worth noting that had Israel acted correctly in 1967, based on its legal rights to the liberated territories, it could have avoided the false accusation that Israeli settlements there are illegal or illegitimate, and there would be no possibility of establishing a twenty-second Arab state in the heartland of the Jewish National Home.
To understand Israel's legal foundation, borders and rights to the entire land of Palestine, one must journey back to the critical period from 1915 to 1925 when the modern Middle East was shaped. There is only one departure point and whoever thinks it began in 1948 or 1967 is woefully ignorant of the situation or badly misinformed. That departure point began with the eruption of the First World War, the Great War as it was then called, that led to the demise of the Ottoman Turkish Empire that had ruled the lands of the Middle East for the four preceding centuries. Few remember today that until World War I, no independent Arab state had existed for many centuries. Nor of course was there any Jewish State, although that was already a hotly-discussed question ever since the first Zionist Congress was convened in Basle, Switzerland in 1897 under the leadership of Theodor Herzl.
In anticipation of a Turkish defeat in World War I - since the Turks had allied themselves with Germany and the Central European Powers - the countries of Britain, France and Russia opposing them, later joined by Italy, known collectively as the Entente or Principal Allied Powers, conspired in a secret treaty to divide up the still-extant Ottoman Empire amongst themselves. Thus was born the Sykes-Picot Treaty, named after the Chief British negotiator Sir Mark Sykes and his French counterpart, Georges Picot. Under the terms of that treaty, the Arabs were promised a state or states of their own, in accordance with the McMahon Pledge, given to the Sherif of Mecca, Hussein ibn-Ali, in a letter dated October 24, 1915 to entice him to join the Allied war effort against the Turks. The McMahon Pledge, conveyed to Hussein by Henry McMahon, the British High Commissioner to Egypt, did not include Palestine. While the Sykes-Picot Treaty sought to satisfy Arab national aspirations, it completely ignored those of the Jewish People and Zionism. A small truncated area of central Palestine, without Upper Galilee, the Negev and Transjordan, called the Brown area, was to be placed under an international condominium, jointly ruled by Britain, France and Russia, in consultation with Italy and Japan and the representatives of the Sherif of Mecca. A year later, with the formation of a new British Government led by Prime Minister David Lloyd George,(On December 5, 1916, the then Prime Minister Herbert Asquith, resigned under heavy criticism for mismanaging the War. He was replaced by David Lloyd George on December 7 of that year, who succeeded in forming a War Cabinet two days later.) Britain sought to disentangle itself from the shackles of the secret Sykes-Picot Treaty and rule Palestine alone. For this purpose, it wooed the Zionist Organization and issued the Balfour Declaration on November 2, 1917, viewing with favour the establishment in Palestine of a national home for the Jewish People and promising to "use their best endeavours to facilitate the achievement of this object". Under the new British policy, Palestine was to be reserved exclusively for Jews under British auspices and not for Arabs. Lloyd George made this very clear in instructions he conveyed to Mark Sykes, on his way to join the British army in Egypt to take up his new post as Chief Political Officer. He told Sykes - and I quote - "not to enter into any political pledge to the Arabs, and particularly none in regard to Palestine". (This quotation is found on p.426 of my book.) According to the Cabinet note of the meeting which took place on April 3, 1917, seven months before the Balfour Declaration was issued, Sykes responded to Lloyd George - and I quote again - "The Arabs probably realized that there was no prospect of their being allowed any control over Palestine".
Inasmuch as the Balfour Declaration was transformed into the San Remo Resolution on April 25, 1920 when it was combined with Article 22 of the Covenant of the League of Nations found in the Treaty of Versailles, and inasmuch as the San Remo Resolution is the pre-eminent foundation document of the State of Israel, it is important to elucidate the meaning of several terms and phrases in the Balfour Declaration which were seized upon by various opponents of Zionism or by others who wished to confuse or conceal its true meaning.
The first term in contention is the word "home". What did "home", as it appears in both the Balfour Declaration and San Remo Resolution, really mean? This term originated with the Zionist Movement. It was first used in 1882 by a group of Bilu pioneers in Constantinople, who asked the Ottoman authorities for a home in the Land of Zion, where Jews would have complete political autonomy, except for external affairs, quite a daring proposal at the time. This term was then inserted into the Zionist Program adopted at the First Zionist Congress in Basle, Switzerland in 1897. The Program stated: "The aim of Zionism is to create for the Jewish People a home in Palestine secured by public law." Those who composed the Zionist Program were acutely aware of Turkish sensibilities not to see their shrinking empire shrink even further by the loss of another one of their lands. It was therefore thought prudent and more diplomatic to use the term "home", instead of the term "state", so as not to openly offend the Turks, especially in light of the fact that Herzl intended to seek from the Turkish Sultan a charter for renewed Jewish settlement in Palestine. That is why delegates to the First Zionist Congress chose the term "home". However, what Herzl meant by a home was revealed in his diary where he wrote, and I quote: 'In Basle, I created the Jewish State. Were I to say this aloud, I would be greeted by universal laughter. But perhaps five years hence, certainly fifty years hence, everybody will perceive it" (p. 76 of my book).
Twenty years after the Zionist Program was first adopted, the term "home" was again used to express the aim of Zionism - this time in the Balfour Declaration. A few words should be devoted to a discussion of the origins of that pro-Zionist Declaration. In mid-June 1917, Chaim Weizmann met with Foreign Secretary Arthur James Balfour and suggested to him "that the time had come for the British Government to give [the Zionists] a definite declaration of support and encouragement" (Weizmann, Trial and Error, Harper & Brothers, New York , p. 203). Weizmann felt free to make this request because over the previous three years, eminent members of the British Government had made known to him their staunch support for the Zionist cause. The British were thus highly pre-disposed to accommodate Weizmann's overture. In response, Balfour told Weizmann to submit a draft declaration to him, "which he would try and put before the War Cabinet" (ibid.).
The person Weizmann placed in charge of drafting the declaration that Balfour asked for, was Nahum Sokolow, the most senior member of the Zionist Organization based in London, as well as a ranking member of the Zionist Executive who had attended the 1897 Zionist Congress convened by Herzl. Sokolow was assisted in his task by a committee of advisers.
Two of those prominent advisers were Attorney Harry Sacher and British journalist Herbert Sidebotham, both of whom strongly urged Sokolow to call for the reconstitution of a Jewish State in Palestine in his draft declaration, but Sokolow declined to do so on the ground that this would be asking for "too much". He thought that if the Zionist draft was actually formulated so overtly, it may have resulted in the Zionists getting nothing at all (Stein, The Balfour Declaration, The Magnes Press, Jerusalem , p. 466). He thus preferred a less forthright declaration of sympathy which he mistakenly believed would enable the Zionists afterwards to "gradually get more and more" (Stein, ibid.). Accordingly, Sokolow decided not to deviate from the wording of the original Zionist Program of 1897, except to propose that the word "national" be placed in front of the word "home", which did in fact give added force to the meaning of that term, thereafter called the "Jewish National Home".
What Sokolow did not appreciate was the fact that the circumstances existing in 1917 were vastly different from those that had prevailed in Herzl's day, since Turkey, having allied itself with the Central Powers, stood to lose its four-century- long control over the territory of Palestine in favour of the British. What he also did not take into account was that the British were very anxious to obtain Zionist support to justify their imminent invasion and conquest of Palestine and were therefore only too willing to give their support to the Zionist aim for a Jewish State. Such support the British shrewdly calculated would then allow them to disassociate themselves from the now burdensome Sykes-Picot Treaty and become the sole protector of Palestine to the exclusion of the French, in accordance with Zionist wishes. For these reasons alone, the British would more than likely have acceded to an explicit Zionist formulation in the proposed draft declaration, that the aim of Zionism was no less than the establishment of a Jewish State, as originally conceived and visualized by Herzl. In addition, the British were anxious to secure for the Allied cause "at the darkest hour of the War"(As worded by General Jan Christiaan Smuts in a cablegram sent to Prime Minister J. Ramsay MacDonald, in reaction to the anti-Zionist conclusions of the Passfield White Paper issued on October 21, 1930.) what they perceived to be the invaluable support of the large and influential Jewish communities in the United States and Russia in the prosecution of the war against the Central Powers. Finally, a pro-Zionist declaration would also foil or preempt a feared parallel German pronouncement that was then being contemplated for the identical purpose.
Under the prevailing circumstances it was quite ironic that while Sokolow was needlessly fearful of asking for too much from the British, i.e., a Jewish State, that was exactly what the Imperial War Cabinet had in mind when it adopted the Balfour Declaration and what it understood "a national home for the Jewish People" indeed meant. For them, at this early stage in British-Zionist relations, before any disaffections or second thoughts had set in, the two terms were completely synonymous in British eyes, both in Government circles and in the press. This is proven by the very words spoken by Balfour at the meeting of the War Cabinet on October 31, 1917, which approved the Balfour Declaration. He stated that the Jews would be given full facilities "to build up 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 of gradual development in accordance with the ordinary laws of political evolution." (This quotation is found on p. 78 of my book.) Balfour's explanation that an independent sovereign Jewish State was the eventual goal of his pro-Zionist pronouncement was also confirmed by what Balfour himself told Colonel Richard Meinertzhagen, who recorded in his diary the conversations he had had with the Foreign Secretary.
Balfour's unambiguous view that Palestine would eventually become an independent Jewish State was reiterated by Prime Minister Lloyd George who, in his definitive work on the various Peace Treaties that ended World War I, wrote the following passage summing up the meaning of the Jewish National Home as that term appears in the Balfour Declaration and related documents: "…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 Truth about the Peace Treaties, vol. ii, pp. 1138-9).
Further proof, if any is needed, that the British Government, in favouring a Jewish National Home, actually meant a Jewish State derives from what various Government ministers and officials constantly told Weizmann prior to the issuance of the Balfour Declaration, namely, that "if Great Britain gained control of Palestine, she could be relied upon to favour the building up of a Jewish Commonwealth. They had hinted… that they were authorized to give this assurance…" (Stein, op. cit., pp. 462, 511, 551 and especially p. 463). Moreover, Lord Lionel Walter Rothschild, to whom the Balfour Declaration was addressed, had twice made it known, prior to its issuance, that he favoured a Jewish State in Palestine under the British Crown or under the protection of one of the Allied Powers (Stein, pp. 372, 523). Finally, one can cite the candid remarks made by Eric Forbes Adam, who served as Balfour's chief negotiator with the Zionists in regard to formulating the early drafts of the Mandate for Palestine. He stated on December 30, 1919 that the British Government has accepted "the natural implications which Zionists give to the declaration of a national home, i.e., an attempt to make Palestine a State… and… to turn the State into a Jewish State." (Stein, p. 554).
By refraining from asking directly for a Jewish State in the Zionist draft submitted to Balfour on July 18,1917, Sokolow made a calamitous strategic error, for just five years later, after Colonial Secretary Winston Churchill had taken charge of Palestine's affairs that previously lay in the hands of Balfour and Lord Curzon successively, he issued a White Paper on June 3, 1922 that defined the term "national home" in an entirely different way from that of Balfour's original intention. This White Paper equated the Jewish National Home in Palestine with a spiritual or cultural center rather than a Jewish State, and for all practical purposes blocked the emergence of the State under British auspices (p. 450ff of my book). The view that no Jewish State was ever implied by the phrase "national home" was then reiterated most emphatically by the minister who replaced Churchill at the Colonial Office, the Duke of Devonshire. In his speech to the House of Lords on June 27, 1923, he said: "Again and again it has been stated that the intention from the beginning has been to make a National Home for the Jews, but every provision has been made to prevent it from becoming in any sense a Jewish State or a State under Jewish domination" (Stein, p. 556). Thus we see, that in the short period that had elapsed since the Balfour Declaration was issued, both Churchill and Devonshire overturned and betrayed the basic purpose and meaning of the Declaration, to the severe detriment of Zionism. This British perfidy may have been prevented or at least significantly forestalled if Sokolow and Weizmann had harkened to the wise advice proferred by Harry Sacker and Herbert Sidebotham to include the words "Jewish State" in the draft formula originally submitted to Balfour. The Zionist leaders showed great naivetי in assuming that what the British had so readily agreed to in 1917 would never be rescinded in the succeeding years that saw new ministers, who had played no part in the formulation of the Balfour Declaration nor had any personal recollection of its true meaning or scope, come and go. This was truly a case of misplaced trust by the leaders of the Zionist Movement in England in the goodwill of perfidious Albion, for which the Jewish People subsequently paid heavily in the years of the Holocaust.
* * * * *
Another contentious expression in the Balfour Declaration that gave rise to misinterpretation was the phrase "in Palestine". Those who sought to minimize the importance of the Declaration said it meant that the Jewish National Home envisaged in the Declaration would be established not in the whole country, but only in a part of it. Ironically enough, the chief proponent of this false and contrived interpretation was none other than Ahad Ha'Am, the Zionist mentor of Chaim Weizmann and, before then, the bitter and jealous opponent of Theodor Herzl. The same argument was made by Herbert Samuel, the High Commissioner of Palestine, when he and not Winston Churchill wrote the Churchill White Paper of June 3, 1922. Samuel undoubtedly learned this interpretation from Ahad Ha'Am when Samuel worked closely with the Zionist Organization in London in 1919.
This interpretation ran completely counter to the global political and legal settlement that was made at the San Remo Peace Conference in April 1920. Syria, Mesopotamia and Arabia were set aside for Arab independence by the Allied Powers, while Palestine, on the other hand, was set aside for Jewish independence, as can be confirmed by reading the minutes of the two sessions of the San Remo Peace Conference that took place on April 24th and April 25th, 1920, and were first published in 1958. That all of Palestine was designated as the Jewish National Home and was definitely excluded from Arab self-determination is also confirmed in an Arab-Jewish Agreement concluded on January 3, 1919 between Emir Feisal on behalf of the Arab Kingdom of newly-independent Hedjaz in Western Arabia and Dr. Chaim Weizmann, acting for the the Zionist Organization. At the Paris Peace Conference that took place in 1919, Emir Feisal listed the exact areas to be set aside for Arab independence, but deliberately excluded Palestine from his list - in conformity with the agreement he had just reached with Weizmann.
Other evidence exists to show that all of Palestine was designated for a Jewish State and not an Arab State. I will cite two more examples. First, at a meeting between Supreme Court Justice Louis Dembitz Brandeis and Foreign Secretary Balfour in Paris on June 26, 1919, Balfour gave his assent to the following statement made by Justice Brandeis: "Palestine should be the Jewish homeland and not merely that there be a Jewish homeland in Palestine" (This quotation and Balfour's assent to it can by found on p. 101 of my book.). Second, during a dinner conversation between Prime Minister Lloyd George and President Wilson's closest adviser, Colonel Edward Mandell House, on November 20, 1917, just weeks after the issuance of the Balfour Declaration, Lloyd George informed him that "Palestine [is] to be given to the Zionists under British or if desired by [the U.S.], under American control" (p. 99 of my book). I would also like to add that when Palestine's northern boundary was being discussed between Britain and France throughout 1920, the assumption made by both countries was that all of Palestine would coincide with the Jewish National Home. There was thus no difference between Palestine and the Jewish National Home.
One final comment on this point. The phrase "in Palestine" as used in the Balfour Declaration originated from the same Zionist source as the word "home", namely in the Basle Zionist Program of 1897. This phrase, "in Palestine", is used twice in the Balfour Declaration once in the operative part, and then again in the first proviso of the Declaration, which states "that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine." The use of this phrase in the just-quoted proviso could only mean Palestine as a whole, which is exactly what it also meant in the operative part of the Declaration. The words "in Palestine" appear 15 times in the preamble and provisions of the Mandate that prove beyond any doubt that these words, in the context in which they were used in both the Balfour Declaration and the Mandate for Palestine, referred to the whole country and not merely to a part of it.
* * * * *
Further controversy arose over the exact meaning of the phrase "the civil and religious rights of existing non-Jewish communities in Palestine". Civil and religious rights excluded collective political rights to Palestine, which were intended or reserved only for the Jewish People. Civil rights certainly include individual political rights with regard to the right to vote and the right to take part in elections, as is the common practice in all democracies. But political control over Palestine was not included in the term "civil rights", as Lloyd George made crystal clear in the quotation cited earlier. As used in the Balfour Declaration, the civil and religious rights of existing non-Jewish communities in Palestine referred to the religious communities then existing in the country and not to the Arab nation per se, as is commonly believed and often mistakenly asserted. Those religious communities comprised all the Christian, Moslem and Druze communities in Palestine, the civil and religious rights of which would be safeguarded in a future independent Jewish State. This proviso in the Declaration is actually further evidence that a Jewish State was the intended aim of the Balfour Declaration, otherwise there would have been no purpose to put that proviso in the Declaration. It should also be noted that the term "communities" was used in the plural and not in the singular, and therefore did not refer to the Arab nation as such or to the local inhabitants, but simply to religious communities in Palestine. That indeed was the interpretation placed on this term by Britain and France in the recorded minutes of the San Remo Peace Conference of April 24, 1920 as well as in the American and Italian understanding of that term.