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
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One more point about the Balfour Declaration. It referred to the country of Palestine, as did the Basle Zionist Program, that did not then officially exist as a province or as a separate country in the Ottoman Administrative System. However, everyone knew that Palestine was the unofficial name for the country known in Jewish sources as Eretz-Israel. Another common name used for it was the Holy Land or the Land of Zion. What is important to note here is that Palestine was synonymous with the future Jewish National Home and referred to the Jewish People and not to Arabs, who preferred to consider this territory a part of Southern Syria. On this important point I quote the exact words of former Prime Minister Golda Meir from an article she wrote for the New York Times, published on January 14, 1976 (found on p. 512 of my book):
"When in 1921 I came to Palestine… we, the Jewish pioneers were the avowed Palestinians. So we were named in the world. Arab nationalists, on the other hand, stridently rejected the designation. Arab spokesmen continued to insist that the land we cherished for centuries was, like Lebanon, merely a fragment of Syria."
Any doubts about what the Balfour Declaration truly meant were laid to rest at the 1920 San Remo Peace Conference, convened by the Principal Allied Powers - Britain, France, Italy and Japan - to dispose of the Ottoman territories in the Middle East. The first important decision made at the Conference was to adopt the Balfour Declaration as the basis for administering Palestine under the newly-created Mandates System, in accordance with article 22 of the League of Nations Covenant. That decision was made by the Supreme Council of the Principal Allied Powers at the first session of the Conference on April 24, 1920 devoted entirely to Palestine. On the following day, the San Remo Resolution was adopted by the representatives of the four Principal Allied Powers (the U.S. was an interested observer at the Conference). The Resolution made the Mandatory Power responsible for putting into effect the Balfour Declaration. Britain was then officially chosen as the Mandatory Power, as recorded in the Resolution itself.
During the heated discussions that took place between the French and British representatives at the sessions of the Supreme Council, France strongly opposed the insertion of the Balfour Declaration into the pending peace treaty with Turkey on the ground that doing so meant the establishment of a Jewish State. France withdrew its opposition only after Britain gave it an assurance that none of the rights hitherto enjoyed by the non-Jewish communities in Palestine, especially those of the French Roman Catholic community, would be surrendered. The British representative, Foreign Secretary Lord Curzon, an avowed anti-Zionist, found himself in the strange and uncomfortable position of having to defend the Balfour Declaration against the French attack on it, though he had earlier (in1917) opposed it. He told the French "that Palestine was in the future to be the National Home of the Jews throughout the world". In the French minutes of the Conference, he is reported to have stated that a future state of Palestine was promised to the Jews in the Balfour Declaration. It should be clear, therefore, that the only reason Palestine was originally carved out of the Ottoman Empire was to become an eventual independent Jewish State. This would redress, as Balfour said, the ancient wrong committed by the Roman destruction of the last Jewish State in Judea 19 centuries before.
The San Remo Resolution did not merely duplicate the exact words of the Balfour Declaration, but strengthened its language considerably. The British Government now actually had the obligation (contrary to the opinion expressed by Winston Churchill before the Peel Royal Commission on March 12, 1937) to put the Declaration into effect, rather than as before, simply "to use their best endeavours to facilitate the establishment in Palestine of a national home for the Jewish People". This constituted what is known in legal parlance as an obligation of specific performance or an obligation of result, as opposed to an obligation of means. This far more tangible obligation was also evidenced by Article 2 of the Mandate for Palestine, which made the Mandatory Power responsible for securing the establishment of the Jewish National Home (see pp. 453-4 of my book).
Since Palestine was created to be a Jewish State under the San Remo Resolution, I have concluded from that fundamental fact that de jure sovereignty over the entire land of Palestine was devolved upon the Jewish People from the moment of the adoption of this resolution. However, the attributes of sovereignty, particularly the law-making function and the administration of the country, were exercised by Britain alone as the Mandatory Power until the establishment of the Jewish State, when the Jews had become a majority of the population in Palestine and could govern the country by themselves. During the Mandate period, the British were also supposed to fulfil the roles of Trustee and Tutor of the Jewish People.
The San Remo Resolution is of the utmost importance, because the State of Israel draws its legal existence from that document and not from the UN Partition Resolution of November 29, 1947, as is commonly believed, even in Israel. The San Remo Resolution, which gave binding legal force to the Balfour Declaration under international law, was no less than the Magna Carta of the Jewish People. It is the Charter of Jewish Freedom and Rights to all of Palestine and the Land of Israel, the charter which Theodor Herzl sought from the Turkish Sultan, but which eluded him when he died prematurely at age 44.
The San Remo Resolution also provided for the provisional independence of Syria and Mesopotamia, later called Iraq. These Arab states, just like Palestine, owe their legal existence to the San Remo Resolution. The Arabs have shown immense ingratitude and inconsistency in accepting the Allied commitment made in the San Remo Resolution to recognize their own eventual independence, while denouncing the same resolution for also providing for eventual Jewish independence.
The Allied decisions taken at the San Remo Peace Conference were then inserted into the Peace Treaty with Turkey - namely, the Treaty of Sטvres signed on August 10, 1920. Though this treaty was never ratified since Turkish nationalist leader Mustafa Kemal (Ataturk) replaced the Sultan's Government, it still has legal value as an inter-allied agreement showing exactly what the intentions of the victorious Allied Powers were in disposing of the Ottoman lands. In actual fact, the provisions of this unratified treaty were subsequently carried out in Palestine, Syria, Iraq, the Arabian Peninsula and the rest of the Middle East. The Treaty of Lausanne which replaced that of Sטvres did not alter the basic political and legal settlement made in the Middle East, except in some particulars that did not affect Palestine as the Jewish National Home.
In regard to Palestine, the decision taken at San Remo to adopt the Balfour Declaration was inserted in the first three recitals of the Preamble of the Mandate for Palestine. This made the San Remo Resolution a binding act of international law since the Mandate was then approved by 52 nations in 1922 and separately by the United States in a 1924 treaty. With the inclusion of the San Remo Resolution in the Mandate Charter, the Mandate for Palestine became the final resting place for the Jewish legal title of sovereignty over the entire country.
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Few people know that the prototype for the Mandate Charter was based on a draft model drawn up by Professor Felix Frankfurter, then a Harvard Law School Professor who later became a renowned U.S. Supreme Court Justice. In composing his draft model, he worked in close co-ordination with the sitting Supreme Court Justice, Louis Brandeis. Frankfurter attended the Paris Peace Conference as a member of the American Zionist Delegation. Frankfurter's draft mandate bearing the date of March 28, 1919 affirmed in its Preamble that the Signatory Powers, a reference to the Principal Allied Powers, recognized, and I quote: "The historic title of the Jewish People to Palestine and the right of the Jews to reconstitute Palestine as their National Home: and there to establish the foundations of a Jewish Commonwealth" (this quotation is found on p. 119 of my book).
The early drafts of the Mandate were formulated by representatives of the Zionist Organization and then presented to the British delegation in Paris. A draft agreed upon by the two sides was concluded on December 11, 1919. When Curzon replaced Balfour as the British Foreign Secretary and later oversaw the final drafts of the Mandate, from March 1920 onwards, he was horrified at the depth of the British commitment to the cause of Zionism and did his best to have his subordinates water down the Zionist character of the Mandate. He had the phrase "self-governing Commonwealth" that was included in the early drafts supervised by Balfour replaced by more general wording: "self-governing institutions", as finally used in Article 2 of the Mandate. This change of language obscured what the Mandate actually intended: a Jewish State or Commonwealth - and the British subsequently applied it to the Arabs, rather than the Jews of Palestine, an inversion of what was originally intended. Curzon also had the reference to Eretz-Israel previously approved by Balfour taken out of the draft Mandate without so much as a peep out of the mouth of Weizmann. Finally, the British Cabinet approved the draft Mandate on November 29, 1920 and submitted it to the Council of the League of Nations on December 6, 1920 for international confirmation. That is when the United States, Italy and the Vatican unexpectedly intervened to delay the actual confirmation until July 24, 1922, a terrible delay that allowed for a crucial insertion to be made in the text of the Mandate, namely, a deleterious provision relating to Transjordan that was out-of-sync with the rest of the Mandate's provisions, and caused immeasurable harm to the Jewish National Home.
Without going into great detail concerning the Mandate's provisions, it is sufficient to note that the Mandate accorded national and political rights to Palestine only to the Jewish People and not to the Arab nation. The reason for that was very simple. The Arabs were granted self-determination in Syria-Lebanon, Iraq and in the Arabian Peninsula, while Palestine was designated as the Jewish National Home for Jewish self-determination. This is why there is no mention of Arab national and political rights in the Mandate for Palestine, except for the recognition of Arabic as an official language. Had it been otherwise, the Arabs would have been consulted in drawing up the terms of the Mandate. They knew about its composition and contents only after its submission to the League Council.
As the question of Israeli settlements in Judea and Samaria is one of the most contentious issues today, it is important to remember that the Mandate bestowed this very right on Jews throughout the entire land of Palestine. I draw your attention not only to Article 6 of the Mandate which specifies this right but also to in Article 11 which requires the Administration of Palestine to introduce a land system that promotes the close settlement and intensive cultivation of the land. The phrase "close settlement" as used in Article 11 takes you back to Article 6, where it says that the Administration of Palestine shall encourage close settlement by Jews on the land. Furthermore, under Article 15 of the Mandate, Jews could not be excluded from any part of Palestine on the sole ground of their religious belief, a provision that also applied to Transjordan, even when it was administered by Abdullah from 1921 to 1946 under the revised terms of the Mandate that removed all explicit references to the Jewish National Home. The right of individual Jews to live or settle in what was once called Eastern Palestine, now the Hashemite Kingdom of Jordan, has never been legally revoked or altered, and remains in full theoretical force today under international law, despite Jordan's illegal exclusion of Jews from its territory;(As a result of the policy followed by the British Mandatory Power and subsequently by the Government of Jordan, the land of Jordan became completely judenrein, i.e., "cleansed or free of Jews". Jordanian legislation, particularly the Jordanian Nationality Law of 1954, openly discriminated against Jews, denying them the right to acquire citizenship. Jordanian law also imposes a death penalty on anyone who has sold land to a Jew. Such laws brazenly violated the specific terms of the by-then-expired Mandate which banned exactly that kind of discrimination - based on race, religion or language. The enactment of these discriminatory laws also flouted international law that continued to apply to Jordan even after the British-administered Mandate expired as regards Eastern Palestine (Jordan) upon its gaining independence in March 1946. In terms of the Mandate, Jordan was created illegally on formerly-Mandated territory that was never intended to be permanently detached from the Jewish National Home. Moreover, Britain was never legally authorized to grant independence to the Arabian emir, Abdullah of Transjordan, neither under Articles 5 and 25 of the Mandate nor by the appropriate bodies of the League of Nations. The consequences of Jordan's illegal creation are huge, but have never been properly addressed or admitted, even by Israel which concluded its own illegal peace treaty with Jordan on October 26, 1994. This treaty should be considered illegal because Israel thereby recognized and sanctioned the explicitly forbidden partition of Mandated Palestine by the British Government as well as renouncing Jewish sovereign territory in favour of a foreign state (See pp. 384-90 of my book).) in any case, the right of Jewish settlement remains valid today in all regions of Eretz-Israel under Israeli control, based on the rights inherited and devolved from the provisions of the Mandate as well as on the 1950 Law of Return that applies to Eretz-Israel, not just to the State of Israel.
The Mandate did not define the territorial boundaries of Palestine, as originally intended in the early drafts of the Mandate where a blank space was left open for that purpose. The decision was jointly taken by Britain and France to fix the limits of their respective mandated territories in a separate act. This was accomplished in a boundary convention concluded on December 23, 1920, followed by a Demarcation Agreement signed on February 3, 1922 that took effect on March 10, 1923.
It was originally agreed between Britain and France that the borders of Palestine would be based on the historical or biblical formula, "from Dan to Beersheba", a phrase appearing several times in the Bible. This was interpreted up until 1920 by Prime Minister Lloyd George and other British officials to mean that Palestine would include all the lands or regions historically associated with the Jewish People, that is all territory which at one time or other was conquered, settled and governed by the Israelites in the First or Second Temple periods. The historical formula for determining Palestine's boundaries was accepted at the San Remo Peace Conference and was also alluded to in the Preamble of the Mandate Charter, which referred to the historical connection of the Jewish People with Palestine. To show the extent of historical Palestine, the British relied on George Adam Smith's "Atlas of the Historical Geography of the Holy Land", published in 1915, in particular on Plate No. 34 that depicted the area of Palestine under David and Solomon. However, the French, who had originally agreed to the historical formula, later backtracked and absolutely refused to abide by its meaning relying instead on the defunct Sykes-Picot Treaty to draw the borders separating Syria-Lebanon from Palestine. Indeed, the French treated the mandated territory of Syria-Lebanon as if it were under French sovereignty and so prevented Palestine from having the borders that the historical formula should have given it. Palestine was thus deprived of what is today southern Lebanon, which is really an extension of Upper Galilee up to the bend of the Litani River. It was also deprived of most of the Bashan north of the Yarmuk River, which the Turks called Hauran. Bashan included the Golan which historically was an integral part of the Land of Israel, and not part of historical Syria. The loss of these historical areas also meant the loss of use of the waters of the Litani River and the streams on Mount Hermon, which at the time were considered vital for Palestine's future economic development.
In the east, Palestine was also deprived of land historically connected to it. During the 1920 boundary negotiations with France, Britain told the French that Transjordan was also needed for the economic development of the Jewish National Home, but a year later when Winston Churchill became Colonial Secretary in charge of Palestine's affairs, he made a fateful decision, later approved reluctantly by the Lloyd George Government to provisionally detach Transjordan from the Jewish National Home, because of the so-called "existing local conditions", a decision that over the course of the following years and decades became a permanent detachment that was illegal under the very terms of the Mandate under which this decision was initially taken. The permanent detachment of Transjordan from Palestine that took place in 1946 was announced to the Assembly of the League of Nations who welcomed it, but it was never approved by the appropriate legal bodies of the League of Nations, which were the Permanent Mandates Commission and the League Council, rather than the League Assembly.
In the South and south-west, the Sinai Peninsula which geographically is an extension of the Negev and has a deep historical and religious connection to the Jewish People, should have been included in Palestine's borders, based on the historical formula. As noted in the Bible, King Solomon's kingdom extended to Nahal Mitzrayim which, according to Biblical scholars, covered either half of Sinai or all of it, depending on the exact location of this river, which is still uncertain today. In any case, what is certain is that Sinai was never historically and geographically a part of Egypt. When Moses crossed the Sea of Reeds, he thereby left Egypt on his 40-year trek to the Promised Land. Britain administered the Sinai Peninsula ever since 1906, when the British seized it from the Turkish Sultan in order to protect the Suez Canal from a possible Turkish invasion. Just prior to 1906, the area of central Sinai formed part of the Independent Sanjak of Jerusalem. For purposes of administrative convenience, Britain appended all of Sinai to Egypt which had never claimed it for itself until the 1940's when it appeared that a Jewish State would be established and might possibly also claim it. In point of fact, Egypt inherited the entire Sinai as a legacy of British imperialism. Egyptian sovereignty over Sinai was recognized by Israel in the peace treaty with Egypt concluded on March 26, 1979. Prior to 1979, Egypt was never legally the sovereign of Sinai (contrary to what is explicit(Article One of the Peace Treaty between Israel and Egypt states that upon its ratification, "Egypt will resume the exercise of its full sovereignty over the Sinai". The word "resume" indicates that, prior to Israel's conquest of Sinai in the Six-Day War of June 1967, Egypt had already enjoyed recognized sovereignty over all of Sinai - when this was actually not the case under international law. Sinai had never been under the sovereignty of modern-day Egypt until the concluding of the 1979 Peace Treaty.) in the Peace Treaty), but merely its administrator - a significant different status under international law. The cession of Sinai by Israel to Egypt was, in my opinion, illegal because Sinai was part of the historical land of Israel, and not a part of historical Egypt.
One last thought about Israel's cession of the Sinai in the 1979 treaty with Egypt: had it not taken place, there would have been no disengagement or withdrawal from Gaza in 2005 where about 8,500 Jews were evicted from 21 flourishing Israeli communities with the loss of their homes, farms and livelihoods. And Sinai would not have become a terrorist's and smuggler's paradise, as it is today. Finally, there would have been no war in Gaza in December 2008-January 2009 to stop ceaseless rocket attacks from Hamas terrorists - for which Israel has just been wrongly condemned by the mendacious Goldstone Report for committing alleged war crimes and possible crimes against humanity, based largely on fabricated, dishonest Arab accounts.
It is interesting to remember that the Zionist proposal for Palestine's future borders presented to the Paris Peace Conference in February 1919, which included in it all of the historical regions of Palestine, except for Sinai, elicited the praise of Emir Faisal, the leading spokesman for the Arab cause, as being "moderate and proper". No cry of extremism here.