Fundamentals of the International Legal Rights of the Jewish People and the State of Israel - Palestine aka Greater Israel - Draiman

Fundamentals of the International Legal Rights of the Jewish People and the State of Israel - Palestine aka Greater Israel

Introduction

There is perhaps no area in the world more sensitive or strategic to world security and peace than the Middle East, and arguably no country or city more central to this sensitivity than The Jewish State of Israel its capital and most revered Holy City "Jerusalem".

There are as many opinions on the corresponding issues—even legally speaking—as there are proposed solutions. This is not only true of Israel itself and the territories it liberated and administers, but it extends to the city of Jerusalem and the many different views concerning its legal status.  Israel in general and Jerusalem in particular represent unique circumstances and, in many ways, do not fit into the normal legal parameters.

Taking Jerusalem, for example, there is no city anywhere in the world that holds such deep-seated roots of religious and spiritual heritage and emotional and cultural passionate  bonds.  These deep roots and the potential threats to their sanctity play an extraordinarily vital role in that city’s significance and can seem to "trump" even national and international law norms in terms of relevance.

Why is this so vitally significant?

The Jewish heritage reaches back more than three thousand years, Jerusalem itself having been established perhaps more than 2,000 years before it was captured from the Jebusites by King David about 1,000 BC. The Temple Mount in the Old City (in now so-called "East Jerusalem") is the site of the First and Second Jewish sacred Temples, containing the "Holy of Holies"— the most hallowed of all spiritual sites for the Jews. As regards the whole of the Land, expressed in their own words:

The Land of Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. After majority of Jews being forcibly exiled from their land numerous times, the people kept faith with it throughout their Dispersion (Diaspora) and never ceased to pray and hope for their return to it and for the restoration in it of their political and religious freedom.

Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-establish themselves in their ancient ancestral homeland.

Jerusalem is mentioned in the Bible by name more than six hundred times in the Old Testament alone, as well as throughout the New Testament, and has always been considered the "capital" for the Jewish people.

The Muslim connection dates back to the oral tradition of Mohammed’s "miraculous night journey" ("Miraj"), in AD. 621, on a "winged creature" from Mecca to the Temple Mount, accompanied by the Angel Gabriel, thus making it—with today’s Al-Aqsa Mosque and Dome of the Rock—for many (though not all ) Muslims, the third holiest site of Islam, after Mecca and Medina (which were formerly developed and occupied by the Jews and expelled by the Muslims). At the same time, even this "night ride", as referenced in verse 1 of Sura 17 of the Koran, does not mention Jerusalem at all, only "the farthest [al-Aqsa] mosque". Since there was no mosque in Jerusalem at that time, the "farthest" mosque cannot have been the one now bearing that name on the Temple Mount in the Old City of ("East") Jerusalem. Still, Islamic tradition holds fast to this claim. In actual fact, early commentators interpreted the further place of worship as heaven. The city of Jerusalem is not once mentioned in the Koran, nor has Jerusalem ever served as the capital of Islam or of Arab-controlled Palestine, under that or any other name.

The Christians date their heritage from the time of Christ, the Jewish "Founder" of their faith, as well as reaching back to take in the entire history of the Jewish people, which was Christ’s own heritage and which Christians regard as their own, mutually with the Jews. For Christians, the Holy Land is "holy" because that is where Jesus Christ was born, grew up, performed His ministry, was crucified, resurrected and ascended from the Mount of Olives, to which He promised to return.

But while the Christians are "at home" in every land in which they choose to dwell, and while the Arabs enjoy jurisdiction over vast areas of territory (twenty-one sovereign Arab States consisting over 5,000 sq. miles), the Jewish people have only one area of territorial “homeland": the small State of Israel, which is less than one percent of the Arab territories of 5 million square miles.

For the Jewish people, Israel is their only national home and Jerusalem their only Holy City and proclaimed "indivisible" capital. The very term Wailing Wall —- as the Western Wall of the Temple was commonly called prior to the 1967. Jewish recapture of the Temple Mount, under Arab control since 1949—indicates the depth of the emotionally charged significance of this most sacred place for the Jewish people. As regards the whole of the Land, in the words of Dr. Chaim Weizmann (later president of the World Zionist Organization):

As to the land that is to be the Jewish land there can be no question. Palestine aka Greater Israel alone, of all the countries in which the Jew has set foot throughout its long history, has an abiding place in his national tradition and a long historical connection.

The recognition of the Jewish people’s singularly ancient historic, religious, political, and cultural link with an ancestral home has more legal significance than it may at first appear, and is easily bypassed in the current heated and polarized debate. These religious and spiritual claims are what have thus far made attempted solutions to territorial and other questions of international law in this area particularly delicate. The real issues are often lacking in clear definition and consensual interpretation of the relevant "law", at times even attributing to it a kind of sui generis (one of a kind, unique or "peculiar") character.

International law, in itself, does not rely on religious or cultural ties but rather on accepted international law norms and standards, which is why the legal recognition of these historical aspects, in a binding international legal instrument, is so highly significant. It is precisely these age-old historic ties that remain the most compelling reason for maintaining sovereignty over all the territory the Jewish people are legally entitled to under international law and treaties, confirmed by the International Court of Justice.

The particular sacredness of this Land to such differing faiths is clearly demonstrated by the ongoing dispute over the governance of the Holy City of Jerusalem, from the Vatican to the United Nations, including periodic initiatives to give it violating International law a separate international legal status as a so-called corpus separatum. Indeed, because of the delicate and sensitive nature of these "spiritual" connections, Jerusalem is frequently left out altogether from discussions over other so-called disputed territories such as the "West Bank aka Judea and Samaria" and (earlier) Gaza.

The legal arguments will go on and on, with differing interpretations often even on the same side of the arguments. But the fundamental fact that the historical claims of the Jewish Zionist Organization, based on centuries-old continuous connections between the Jewish people and "Palestine aka Greater Israel", were given recognition in a small town on the Italian Riviera named San Remo, in 1920 which incorporated the 1917 Balfour Declaration and confirmed by the 1920 Treaty of Sevres and Lausanne, thus, adopted and confirmed unequivocally by the terms of the League of Nations Mandate for Palestine aka Greater Israel in 1922, takes on enormous significance when questions of territorial rights persist.

The ongoing and never-ending legal arguments and political posturing on both sides of the question of the "Palestine aka Greater Israel" statehood issue will not be resolved in these pages. Yet if the above basic truths with regard to ancestral territory are ignored, all the legal arguments in the world will not bring about an equitable solution. Thus it is important to see in what way(s) this most significant factor of historical ties has been endowed with a legal character and status that undermine Israel’s legitimate rights in its Land as it confronts today’s territorial conflicts.

While there is no way that the complex current political issues, a culmination of centuries of conflict and legal ambiguities, can be adequately dealt with in one brief exposé, one thing is certain: laws may change, perceptions may vary, but historical fact is immutable. Therefore, for the special case of Israel and Arab-Palestine, we need to look at fact rather than opinion or emotions and seek to avoid the promulgation of law that can result from persistent pressures of often misguided, misinformed, fabricated and/or skillfully manipulated public opinion.

Thus our mission here is not to attempt to pronounce legal judgments or to offer legal opinions, where even the best legal minds have not been able to achieve consensus, but rather to proclaim international legal truths in a largely political environment that is too frequently polluted with distortions of the truth and outright untruths and fabrications.

A correlated intent here is to show where Israel’s age-old historic links with the land intersect with legal parameters to give effect to its international legal status in the face of current and often misguided political initiatives.

Accordingly it should be understood from the outset that the following is in no way intended to present itself as an exhaustive coverage of the many-faceted and age-long disputed issues relating to this territory. It is meant primarily as a wakeup call and/or reminder of the fundamental international legal rights of the Jewish people that were conferred beginning at the San Remo Conference in 1920 which incorporated the 1917 Balfour Declaration and that had threatened to all but slip into obscurity in the current debate, despite the fact that these rights have never been rescinded and the UN has no authority to supersede or modify them. 

Furthermore, The 1920 San Remo International Conference of The Supreme Allied Powers confirmed the Jewish peoples rights to its historical ancestral  land of Israel going back over 3700 years and recognized it and incorporated it as part of current International law and treaty.

To accomplish these aims, we have only to revert back to the milestone international legal instrument, the Mandate for Palestine of 1922, which emerged from the 1920 San Remo sessions of the Paris Peace Conference of 1919 and in effect transformed the Balfour Declaration of 1917 (the “Magna Carta” of the Jewish people) into a legally binding international agreement that changed the course of history forever for the Jewish people worldwide.

Legal Rights of the Jewish People and the State of Israel

Before examining the all-important international legal decisions made at San Remo in 1920, it is useful to trace back a few years to get a sense of the legal and political environment that followed in the wake of the dissolution of the Ottoman Empire in 1918, leading up to these significant legal and diplomatic events that both emerged from historical roots and went on to shape Jewish contemporary history.

The 1917 Balfour Declaration

The history of the international legal turning point for the Jewish people begins in 1917. World War I was exposing a growing need of Jews dispersed all over the world to have a "national home", and in 1917 Prime Minister David Lloyd George expressed to the British War Cabinet that he "was convinced that a Jewish National Home was an historic necessity and that every opportunity should be granted to reconstitute the Jewish State". This ultimately led to Great Britain issuing, on 2 November 1917, a political declaration known as the "Balfour Declaration". This Declaration stated that:

"His Majesty’s Government view with favor the establishment in Palestine of a national home for the Jewish people, and will use their best endeavors to facilitate the achievement of this object, it being clearly understood that nothing should be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country".

As confirmed by Lord Balfour to Prime Minister Lloyd George:

Our justification for our policy is that we regard Palestine as being absolutely exceptional; that we consider the question of the Jews outside Palestine as one of world importance and that we conceive the Jews to have an historic claim to a home in their ancient land; provided that a home can be given them without either dispossessing or oppressing the present inhabitants.

This position was shared by the other Principal Allied and Associated Powers who, in the words of Lord Balfour, "had committed themselves to the Zionist program which inevitably excluded numerical self-determination". Still, a declaration is not law, and a British declaration is not international. So while it is arguable that certain obligations of the Balfour Declaration were attributable to the British Government, it was neither applicable to other States nor a binding instrument under international law.

U.S. President Wilson’s “Fourteen Points” and the League of Nations

At the time, the territory known as "Palestine" was still part of the Turkish Ottoman Empire, with which Britain and her allies were at war. Although the British forces entered Jerusalem in December 1917, the war with Turkey in Palestine continued into 1918. Once Britain liberated Palestine from Turkish rule in 1918, it was in a position to implement its policy.

Meanwhile, on 8 January 1918, U.S. President Woodrow Wilson delivered a speech to a joint session of the United States Congress that was to become known as his "Fourteen Points". Included in these points was the statement that the "Turkish portion of the present Ottoman Empire should be assured a secure sovereignty, but the other nationalities which are now under Turkish rule should be assured an undoubted security of life and an absolutely unmolested opportunity of autonomous development".  These Fourteen Points were accepted by some of the key Allied Powers and "informed" (influenced and were incorporated in part into) certain principles embodied in the Covenant of the League of Nations.

Thus the League of Nations was a direct result of the First World War, its Covenant or Articles of Organization being incorporated in the Treaty of Versailles, which entered into effect in January 1920. I might state that President Wilson was not confident that some of the other members of the

Principal Allied Powers had ulterior motives for not incorporating all 14 points (history has proven him to be right).

1920 San Remo Sessions of the Paris Peace Conference

The following sections on the San Remo Conference and its legacy borrow heavily upon—in some places recording verbatim or virtually verbatim (with the full agreement of the author)—Dr. Jacques Paul Gauthier’s monumental work, Sovereignty Over the Old City of Jerusalem: A Study of the Historical, Religious, Political and Legal Aspects of the Question of the Old City, Thesis no. 725, University of Geneva, 2007.  Part I of the present work draws liberally on Dr.  Gauthier’s thorough historical account. While some references to Gauthier’s work are precisely cited, others are so interwoven, interchanged, interspersed and integrated with the author’s own further research and formulations that it is virtually impossible to do proper justice to Dr. Gauthier in every instance. His indulgence is gratefully acknowledged.

The next important milestone on the road to international legal status and a Jewish national home was the San Remo Conference, held at Villa Devachan in San Remo, Italy, from 18 to 26 April 1920. This was a post World War I international reconvening of the Supreme Council of the Principal Allied Powers that had met together in Paris in 1919 with the powers of disposition over the territories which, as a consequence of World War I, had ceased to be under the sovereignty of the Ottoman Turkish Empire. The Ottoman Empire had signed formal document relinquishing their rights title and interest to the territories now controlled by The Principal Allied Powers.

The Principal Allied Powers of World War I present at San Remo in 1920 were Great Britain, France, Italy and Japan. The United States had entered the war as an "Associated Power", rather than as a formal ally of France and Great Britain, in order to pursue its new policy of avoiding "foreign entanglements".  Thus while the United States was a member of the "Supreme Council of the Principal Allied and Associated Powers" of the Paris Peace Conference, and was known as one of the five "Great Powers", it is not to be associated with the term "Principal Allied Powers", of which there were four. These four Powers were represented in San Remo by the Prime Ministers of Britain (David Lloyd George), France (Alexandre Millerand) and Italy (Francesco Nitti), and by Japan’s Ambassador Keishiro Matsui. The United States was present as an "observer", represented by Robert Johnson, the U.S. Ambassador to Italy.

The 1920 San Remo Conference acted as an "extension" of the Paris Peace Conference, for the purpose of dealing with some outstanding issues that had not managed to be resolved in 1919, including certain claims and legal submissions made by key claimants in Paris, among which Zionist and Arab delegations. In San Remo, the aim of the Principal Allied Powers was to consider the claims, deliberate and hand down decisions on the legal recognition of each claim. The fundamental objective of the San Remo Conference, then, was effectively to decide the future of the Middle East following the collapse of the Ottoman Empire. In accordance with President Wilson’s "Fourteen Points", it was not the intent of the victorious allies to acquire new colonies in the area but rather to establish there new sovereign States, over the course of time.

The Principal Allied Powers in San Remo were charged, inter alia, with responding to the claims that the Zionist Organization had submitted in February 1919 at the Peace Conference in Paris, while taking into consideration the submissions of the Arab delegation. (The Arab and Zionist delegations had pledged to support each other’s claims.) The claims of the Zionist Organization included a demand for the recognition of "the historic title of the Jewish people to Palestine and the rights of the Jews to reconstitute their National Home in Palestine".

The boundaries of the "Palestine" referred to in these submissions included territories west and east of the Jordan River. The Zionist Organization had requested the appointment of Great Britain as Mandatory (or Trustee) of the League in respect of the Mandate over Palestine. The submissions specified that the ultimate purpose of the Mandate would be the "creation of an

autonomous ‘Commonwealth’", with the clear understanding "that nothing must be done that might prejudice the civil and religious rights of the non-Jewish communities at present established in Palestine, nor the rights and political status enjoyed by the Jews in all other countries".

The policy to be given effect in the Mandate for Palestine was to be consistent with the 1917 Balfour Declaration in recognizing the historic, cultural and religious ties of the Jewish people to the Holy Land and the fundamental principle that Palestine should be the location of the reestablished national home of the Jewish people. It is particularly relevant to underline the inclusion in the terms of the Mandate (through Article 2) of the fundamental principle set out in the Preamble of this international agreement that:

recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.

Similarly consistent with the 1917 Balfour Declaration, as reiterated in the submissions to the Paris Peace Conference, the Mandate’s Preamble retained the condition that: "nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country". This conferred no new rights on either the non-Jewish inhabitants of Palestine or the Jewish populations in other countries; it merely preserved existing rights in both cases (see also Articles 2, 6, 9, and 13). The Mandate for Palestine aka Greater Israel can nonetheless be regarded as affecting the Jewish people worldwide to the extent that it provided a national home for all Jews everywhere to return to, encouraging settlement in Palestine and therefore immigration (Article 6) and facilitating the acquisition of citizenship (Article 7). It was anticipated that non-Jews would live as a protected population within the Jewish national home.

The Decision of the Principal Allied Powers Relating to the Mandate for Palestine

The Allied Powers, assembled in San Remo to deliberate this and other submissions, recognized that not all areas of the Middle East were yet ready for full independence. So they agreed to set up Mandates for each territory, with one of the Allied Powers to be in charge of implementing each Mandate, respectively, "until such time as [the territories] are able to stand alone".

Initially three Mandates were assigned—one over both Syria and Lebanon, one over Mesopotamia (Iraq) and one over Palestine. In the first two Mandates, the native inhabitants were recognized as having the capacity to govern themselves, with the Mandatory Power merely serving to advise and facilitate the establishment of the necessary institutions of government. Accordingly, Article 1 of the Mandate for Mesopotamia states:

The Mandatory will frame within the shortest possible time, not exceeding three years from the date of the coming into force of this Mandate, an Organic Law for Mesopotamia. This Organic Law shall be framed in consultation with the native authorities, and shall take account of the rights, interests and wishes of all the populations inhabiting the mandated territory.

The language notably differed in the case of the Mandate for Palestine, in which it was specifically stipulated in Article 4 that:

See San Remo Resolution, Appendix C, para. (c).

An appropriate Jewish agency shall be recognized as a public body for the purpose of advising and co-operating with the Administration of Palestine: in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration, to assist and take part in "the development of the country". The Zionist organization, so long as its organization and constitution are in the opinion of the Mandatory appropriate, shall be recognized as such agency.

So while the Preamble states that it is "clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine", the political authority was explicitly vested in the Jewish people, with the ultimate objective of the establishment of the Jewish national home. The language of the Mandate persistently refers specifically to the reconstituted "national home" for the Jewish people.

Although the Jewish people were part of the indigenous population of Palestine for over 3700 years, the majority of them at that time were not living in the Land. At the same time, while the civil and religious rights of the Arab and other inhabitants were safeguarded, including voting rights, no sovereign political rights were assigned to them. (It is of significance that the Mandate did not distinguish these non-Jewish inhabitants similarly as "a people" or as lacking a "national home".)

Thus the Mandate for Palestine differed significantly from those established for the other former Ottoman Asiatic territories, setting out how the Land was to be settled by the Jewish people in preparation for their forming a viable nation within all the territory then known as "Palestine". The unique obligations of the Mandatory to the Jewish people in respect of the establishment of their national home in Palestine thus gave a sui generis (one of a kind, unique) character to the Mandate for Palestine aka Greater Israel.

It is also important to note that, pursuant to Article 5 of the Mandate:

No Palestine territory shall be ceded or leased to, or in any way placed under the control of the non-Jewish government of any people or foreign Power.

So having considered the claims, deliberated and reached a decision, the parties to the 1920 San Remo Conference produced binding resolutions relating to the recognition of claims to the Ottoman territories presented in Paris by the Jews and the Arabs. These members of the Supreme Council thus reached an agreement that had the force of a legally binding decision of the Powers with the right to dispose of the territories in question which included Arab territories in Syria and Lebanon, also Mesopotamia aka Iraq.

Accordingly, the Principal Allied Powers decisions, in conformity with the provisions of Article 22 of the Covenant of the League of Nations, decided to entrust to Great Britain the Mandate for Palestine aka Greater Israel which involved a "sacred trust of civilization" in respect of "the establishment in Palestine of a national home for the Jewish people", thus confirming the decision made a few months earlier by these same Powers at a conference in London in February of that year.

The decision made in San Remo was a watershed moment in the history of the Jewish people - a major turning-point, Jews who had been a people without a permanent home for some two thousand years. From the perspective of Dr. Chaim Weizmann, president of the newly formed Zionist Organization and later to become the first President of the State of Israel, the decision made relating to the destiny of Palestine at the San Remo sessions of the Paris Peace Conference was a turning point in the history of the Jewish people. In Weizmann’s own words:

Recognition of our rights in Palestine is embodied in the treaty with Turkey, and has become part of international law. This is the most momentous political event in the whole history of our movement, and it is, perhaps, no exaggeration to say in the whole history of our people since the Exile. For this great declaration of deliverance we have to thank the Allied and Associated Powers.

To the Zionist Organization of America, the decision of the Supreme Council of the Principal Allied Powers "crowned the British declaration by enacting it as part of the law of nations of the world".

There are a number of points that should be noted concerning the 1920 San Remo decision.

1.  For the first time in modern history, Palestine became a legal entity. Hitherto; for many centuries it had been just a geographical area.

2.  All relevant agreements prior to the 1920 San Remo Conference were superseded. (Although not all specifically named at the Conference, this would include both the Sykes-Picot agreement and the Feisal-Weizmann agreement.)

3.  The Balfour Declaration, which had been given recognition by many Powers prior to 1920 San Remo, achieved international legal status by being incorporated into the agreement.

4.  “Jewish people" were designated as the exclusive beneficiaries of a sacred trust in the Mandate for Palestine, the first step on the road leading to national sovereignty of the Jewish people, even though a substantial number of the Jews had not yet returned to their Land.

5.  Hence forward, transfer of the title on Palestine could not be revoked or modified, either by the League of Nations or the United Nations as its successor, unless the Jewish people should choose to give up their title only by mutual valid agreement.

6.  The San Remo decisions were incorporated into the Treaty of Sèvres, signed on 10 August 1920 by, inter alia, the four Principal Powers and Turkey. [Note: Although the treaty was never ratified by Turkey (non-the-less by the 4 Principal executing it, it obligated them to abide by those terms as it relate to Palestine, additionally the same parties (including Turkey) did sign and ratify the superseding Treaty of Lausanne in 1923.

7.  The Arabs gained even greater rights in Lebanon, Syria and Mesopotamia, as they were considered ready, or near ready, for autonomy.

8. The San Remo decision marks the end of the longest colonized period in history, lasting around 1,800 years in Palestine.

    With reference to the historic connection of the Jews with Palestine, as recognized in the Mandate, Churchill wrote in his White Paper of 1922, after reneging on the complete territory of Palestine for the Jewish people and allocating over three quarters of the Jewish territory to set-up an Arab State of Trans-Jordan, shortly before the Mandate’s adoption by the League of Nations:

    …it is essential that [the Jewish community in Palestine] should know that it is in Palestine as of right and not on sufferance. That is the reason why it is necessary that the existence of a Jewish National Home in all of Palestine should be internationally guaranteed, and that it should be formally recognized to rest upon ancient historic connection.

The League of Nations and the Mandate for Palestine aka Greater Israel

The ultimate Mandate for Palestine aka Greater Israel approved by the Council of the League of Nations on 24 July 1922 explicitly refers back to the decisions of the Supreme Council of the Principal Allied Powers of 25 April 1920. The Mandate begins: "Whereas the Principal Allied Powers have agreed…". The League Council adopted the 1920 San Remo Treaty verbatim, the Palestine Mandate became binding on all fifty-one members of the League. Since the United States officially endorsed the terms of the Mandate but had not joined the League of Nations, special negotiations between Great Britain and the United States with regard to the Palestine Mandate aka Greater Israel had been successfully concluded in May 1922 and approved by the Council of the League in July. The United States ultimately signed a bilateral treaty with Britain (on 3 December 1924), actually incorporating the text of the Mandate for Palestine and approve by the US Congress and Senate, thus completing its legal alignment with the terms of the Mandate under the League of Nations.

This act of the League Council enabled the ultimate realization of "the long cherished dream of the restoration of the Jewish people to their ancient land" and validated “the existence of historical facts and events linking the Jewish people to Palestine aka Greater Israel. For the members of the Supreme Council, these historical facts were considered to be accepted and established". In the words of Neville Barbour, "In 1922, international sanction was given to the Balfour Declaration by the adoption of the San Remo Resolution issued in the Palestine Mandate".

In actual fact, the Mandate went beyond the Balfour Declaration of 1917.

The incorporation, in the Preamble of the Mandate, of the principle that Greater Israel aka Palestine should be reconstituted as the national home of the Jewish people represented a deliberate broadening of the policies contained in the Balfour Declaration, which did not explicitly include the concept of reconstitution. It is of some interest that, while the word "reconstitute" was absent from the Balfour Declaration, it was actually Lord Balfour himself who ensured the inclusion of this concept in the final, internationally legally binding Mandate. Thus it was not a new idea, "grafted on" at the last moment, but was well deliberated. The ultimate effect was that the rights of the Jewish people under the Mandate for Palestine were thereby greater than the rights contemplated in its source document, the 1917 Balfour Declaration. According to Abraham Baumkoller:

The choice of the term "reconstitute" clearly indicates that in the eyes of the Council, it was not a question of creating something new, but of admitting the reconstitution of a situation that already existed ages ago. This idea coincides, if you will, with the notion of "historic ties", even if these are not altogether identical.

In addition to the insertion of the "reconstituting" language, the phrase in the Mandate’s Article 2: "…will secure the establishment" (of the Jewish national home, as laid down in the Preamble of the Mandate for Palestine) is equally said to go beyond the Balfour Declaration which uses the considerably milder language: "…view with favor the establishment in Palestine of a national home for the Jewish people" and "will use their best endeavors to facilitate the achievement of this object".

Looking beyond the details, the important point is that the primary objective of the Mandate for Palestine is to provide a national home for the Jewish people—including Jewish people dispersed worldwide—in their ancestral Land, had been fulfilled.

The Arab people, who already exercised jurisdictional sovereignty in a large number of States, were guaranteed protection of their civil and religious rights under the Mandate as long as they wished to remain—even after the State of Israel was ultimately formed in 1948—including citizenship if they so chose. Moreover, for the Arab population, Trans-Jordan had meanwhile been added as a territory under Arab sovereignty, carved out of Jewish Palestine itself, the very mandated territory at issue, prior to the actual signing of the Mandate in 1922 under the League of Nations.

In sum, the Mandate for Palestine aka Greater Israel, adopted and approved by the Council of the League of Nations in July 1922, was an international treaty and, as such, was legally binding. The International Court of Justice (I.C.J.) has since confirmed that the Mandate for Palestine instrument granting all the territory west of the Jordan river "in fact and in law, is an international agreement having the character and force of a treaty or convention".

The Mandate for Palestine aka Greater Israel as it Pertains to Jerusalem and the Old City

The rights granted to the Jewish people in the 1920 San Remo Conference and adopted by the Mandate for Palestine relating to the establishment of the Jewish national home were to be given effect in all parts and regions of the Palestine territory. No exception was made for Jerusalem and its Old City, which were not singled out for special reference in either the Balfour Declaration, the 1920 San Remo Treaty or the Mandate for Palestine, other than to call for the preservation of existing rights in the Holy Places. As concerns the Holy Places, including those located in the Old City, specific obligations and responsibilities were imposed on the Mandatory.

It follows that the legal rights of the claimants to sovereignty over the Old City of Jerusalem similarly derive from the decisions of the Principal Allied Powers in the 1920 San Remo conference and from the terms of the Mandate for Palestine adopted and approved by the Council of the League of Nations. In evaluating the validity of the claims of Israel relating to the Old City, the Council decision is of great significance from the perspective of the rights and obligations that it created under international law.

In the view of Oxford international law professor Ian Brownlie, "in many instances the rights of parties to a dispute derive from legally significant acts, or a treaty concluded very long ago". As a result of these "legally significant acts", there are legal as well as historical ties between the State of Israel and the Old City of Jerusalem.

The intellectual ties were further solidified by the official opening of the Hebrew University on 1 April 1925 in Jerusalem, attended by many dignitaries, including the University’s founding father, Dr. Chaim Weizmann, Field Marshall Allenby, Lord Balfour, Professor William Rappard and Sir Herbert Samuel, among many other distinguished guests. According to Dr. Weizmann, addressing the dignitaries and some twelve thousand other attendees at this memorable event, the opening of the University in Jerusalem was "the distinctive symbol, as it is destined to be the crowning glory, of the National Home of the Jewish people which we are seeking to rebuild".

In addition to the legal, historical and intellectual heritage, in the words of  Canadian scholar Dr. Jacques Paul Gauthier: "To attempt to solve the Jerusalem / Old City problem without taking into consideration the historical and religious facts is like trying to put together a ten thousand piece puzzle without the most strategic pieces of that puzzle".  In his monumental work entitled Sovereignty Over the Old City of Jerusalem:  A Study of the Historical, Religious, Political and Legal Aspects of the Question of the Old City, Dr. Gauthier offers an exhaustive review of these historical/spiritual/political/legal bonds, emphasizing the "extraordinary meaning" of the Old City of Jerusalem and the temple to the Jewish people.

Indeed, with respect to the question of the Old City, the historical facts and the res religiosae (or things involving religion) are rendered legally relevant by the decisions taken at the 1920 San Remo sessions of the Paris Peace Conference, together with the terms of the Mandate for Greater Israel aka Palestine. Notwithstanding the fact that historical, religious or other non-legal considerations may not be considered relevant or sufficient to support a legal claim normally in international law cases, these aspects of the issue of the city of Jerusalem are relevant in evaluating the claims of Israel and the Arab-Palestinians relating to sovereignty over the Old City, just as much or perhaps even more than over the entire State of Israel and the Holy Land, as noted in the Introduction.

Arab-Palestinians Opposition

The Arab-Palestinians of Greater Israel aka Palestine did not want to give up any of the land and, among other objections, generally took the position that the terms of the Mandate for Palestine aka Greater Israel relating to the establishment of a Jewish national home there contravened the provisions of Article 22 of the Covenant of the League of Nations (setting up the Mandates of Syria, Mesopotamia and Palestine). This argument is, however, not valid and deceptive regarding the Mandate for Palestine, since the Principal Allied Powers who were the founders of the League of Nations and the authors of its Covenant had specifically approved the inclusion of the policies of the Balfour Declaration in the Mandate for Palestine in San Remo in April 1920 and confirmed by the 1920 Treaty of Sevres and Lausanne. The members of the League of Nations did not challenge the validity of this Mandate for Palestine after it was adopted and approved by the Council of the League of Nations in July 1922. The Council was very much aware of the objections of the Arabs of Palestine when it decided to approve the terms of the Mandate for Palestine aka Greater Israel. It made all the territory west of the Jordan river as exclusively Jewish territory under international law after it took away 78% of Jewish allocated territory and reallocated it to the Arabs as the new Arab state of Trans-Jordan.

The 1921 Partition of Palestine aka Greater Israel (in violation of international treaties)

One possible exception regarding the Mandatory’s obligations was that relating to the "territories lying between the Jordan and the eastern boundary of Palestine" (Article 25). In March 1921, in Cairo, Great Britain decided (in violation of international treaties) to partition the mandated territory of Greater Israel aka Palestine, for international political reasons of its own (it wanted control of the oil).  Article 25 of the Mandate gave the Mandatory Power permission to "postpone or withhold" (but not partition or assign territory to other nationality or people. The Mandate terms specifically stated that Palestine is allocated to the Jewish people and no territory may be ceded to anyone else) most of the terms of the Mandate for Palestine in the area of land east of the Jordan River ("Trans-Jordan"), if it wrongly did not consider them to be applicable. Great Britain, as Mandatory Power, wrongly exercised that right (in violation of international treaties - The League of Nation and the U.N. cannot supersede, modify or amend international treaties).

The Greater Israel aka Palestine partition proposal was illegally approved by the Council of the League of Nations on 16 September 1922. Thus from 1921-1922 there was not yet any effective "partition", only a separate administration. The Zionist Organization presented its objections to this partition decision because part of the "Promised Land" was located on the east bank of the Jordan River (referred to in Hebrew as Ever-Hayarden). Therefore, …to all intents and purposes [Trans-Jordan was] an integral part of Greater Israel aka Palestine. We do not differentiate in our sentimental and historical relation between west and east of the Jordan.

Sir Hersch Lauterpacht—one-time Cambridge international law professor and ad hoc judge at the International Court of Justice, and considered one of the leading international lawyers of the twentieth century—expressed the opinion that this fundamental modification of the Mandate for Greater Israel aka Palestine made by Great Britain and later approved by the Council of the League of Nations contravened the terms of the Mandate for Greater Israel aka Palestine, which was a recognized international treaty concluded between the Principal Allied Powers and the Mandatory Power in 1920. For Lauterpacht, the consent of the Principal Allied Powers should have been obtained prior to modifying one of the material terms of the Mandate for Palestine agreement. Furthermore, the modification intentionally failed to protect the rights of non-Arabs in Trans-Jordan, in marked contrast to the protection of the rights of non-Jews in the rest of (Jewish) Palestine (later, Israel).

In actual fact, the language of Article 25 ("postpone or withhold") suggests that this provision was meant to be only temporary. Whatever the case, once the territory of Palestine aka Greater Israel was partitioned it violated the treaty. Winston Churchill—British Colonial Secretary at the time—reaffirmed the commitment of Great Britain to give effect to the policies of the 1917 Balfour Declaration in all the other parts of the territory covered by the Mandate for Palestine aka Greater Israel all the territory west of the Jordan River. This pledge included the area of Jerusalem and its Old City. In Churchill’s own words:

It is manifestly right that the Jews who are scattered all over the world should have a national center and a return of their national home where some of them may be reunited. And where else could that be but in the land of Greater Israel aka Palestine, with which for more than 3000 years they have been intimately and profoundly associated?

The effect of the partition of the territory covered by the Greater Israel aka Palestine Mandate was that 90,000 square kilometers out of a total area of about 117,000 square kilometers—representing about 78 percent of the territory under the Mandate for Palestine granted to Great Britain in Greater Israel aka Palestine—was placed illegally under partial control of a new Arab government.

The increasing tensions during the next decades between Jews and Arabs in the remnant of the territory covered by the Palestine Mandate was, according to Chaim Weizmann, partially attributable to the fact that:

…in the dead of the night Trans-Jordan had been separated from Greater Israel aka Palestine. When the policy of the National Home was framed, eastern and western Palestine were considered a unit. Suddenly, more than half [in fact over three quarters of] the territory was illegally cut off and an embargo laid on it as far as Jewish colonization or the prohibition of Jewish residency was concerned [emphasis added].

There was no new Mandate for Trans-Jordan.  It was still covered by the Mandate for Greater Israel aka Palestine. Thus Great Britain continued as the trustee and Mandatory Power over both Jewish and Arab portions. The real partition was finally consummated only in 1946 when, on 25 May, Trans-Jordan achieved independence, relying on the support of Great Britain and the illegal endorsement of the Council of the League of Nations. For former Israeli Ambassador to the UN, Professor Yehuda Zvi Blum, the rights vested in the Arab people of Greater Israel aka Palestine with respect to the principle of self-determination were fulfilled as a result of this initial illegal partition of Greater Israel aka Palestine and illegally approved by the Council of the League of Nations in 1922. According to Professor Blum:

The Palestinian Arabs have long enjoyed self-determination in their own state - the Palestinian Arab State of Jordan.

Worth mentioning here, Colonel T.E. Lawrence ("Lawrence of Arabia"),

in a letter apparently written on 17 January 1921, informed Churchill’s private secretary that he had reached an "agreement" with Emir Feisal, the eldest son of King Hussein (internationally recognized King of Hedjaz and self-proclaimed King of all Arabs). Feisal—a man said by Lawrence to be known for keeping his word—had agreed that in return for Arab sovereignty in Iraq, Trans-Jordan and Syria, he would abandon all claims of his father to Palestine.48 While such an agreement cannot be enforced under international law, Great Britain would seem to have accepted this condition in good faith and acted upon it in a way that had legally binding consequences. As recently as 1981, King Hussein of Jordan himself exclaimed: "The truth is that Jordan is Palestine and Palestine is Jordan".

This is apart from the fact that, before the dissolution of the League of Nations on 17 April 1946, all the so-called Class A mandates (i.e. those mandated territories that had been deemed ready or near ready for self-government), including the Hashemite 50 Kingdom of Trans-Jordan as the Arab state which constituted 80% of Jewish territory under international treaties, had become autonomous or gained their independence—all except for the territory covered by the British Mandate for Greater Israel aka Palestine located west of the Jordan River.

It should be remarked that the illegal partition of  Greater Israel aka Palestine by Great Britain did not remove the rights under the terms of the Mandate for Greater Israel aka Palestine of the Arab inhabitants of the territory of Greater Israel aka Palestine located west of the Jordan River. But in violation of the Mandate, West of the Jordan river Jews were illegally prohibited from residing or purchasing land in their own ancestral land.

History is left to judge how Britain violated and carried out the "sacred trust" vested in her by the League of Nations.

Prior to the dissolution of the League of Nation in 1946, the League was preparing to file a formal complaint against Britain as trustee for violating the terms of the Mandate for Greater Israel aka Palestine. The British by violating the terms of the Mandate for Greater Israel aka Palestine and severely restricting Jewish immigration from 1939-1948 caused the deaths of millions of Jews trying to escape German Nazi extermination camps. The British went as far as blowing up Jewish refugee ships bound for Greater Israel aka Palestine under "Operation Embarrass".