Middle East history for dummies by Shmuel Katz (Jerusalem Post article)

Even the Qur'an says that God gave the Land of Israel to the Jews ! "We [Allah] gave the persecuted people [the Jews] dominion over the eastern and western lands"
		Historical Approach to the Issue of Legality of Jewish Settlement Activity by the Late Eugene W. Rostow
		Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law by Howard Grief
		Middle East history for dummies by Shmuel Katz
		Revenant is relevant  by Yisrael Medad
		There is No "Occupation"  by Morton A. Klein National President, Zionist Organization of America
		On the Question of the Legality of the Jewish Civilian Communities in the Disputed Areas of Judea, Samaria and Gaza
		The Land of Israel and Palestine and the 4th Geneva Convention
		Staking our claim by Evelyn Gordon
		Bricks and stones: settling for leverage; Palestinian autonomyby Eugene V. Rostow
		Israel has every right to expand settlements by Michael Freund

Middle East history for dummies

by Shmuel Katz

(Jerusalem Post article)

There is much talk of illegal occupation in this land. But the only illegal occupation of Judea, Samaria and the Jordan Valley in modern times was effected by Transjordan.

When the Ottoman Empire collapsed in 1918 Britain was granted a Mandate by the League of Nations in 1922 as a trustee for the reconstitution of the Jewish National Home. This was the modern charter for the development of sovereignty for the Jewish people in its ancient homeland.

When, in 1947, the United Nations (successor to the League of Nations) recommended the partition of Palestine into two states, one Jewish, one Arab thereby gifting the Arabs with a part of the Jewish heritage the Jews consented, but the League of Arab States declared that it would not "allow the creation of a Jewish State in Palestine."

Consequently, in May 1948, the British having abandoned the Mandate, the Arab states launched their war for the annihilation of the infant Jewish state. They did not achieve the destruction of Israel, but Transjordan succeeded in capturing Judea, Samaria and the Jordan Valley, while Egypt captured the Gaza Strip. Transjordan went on to "annex" the captured territories and was henceforth renamed "Jordan." Jordan's rule lasted 19 years. Never during these years did the Arabs living in the annexed areas protest against the occupation, let alone rise up, declare themselves a separate nation or demand the territories for themselves. They peacefully accepted Jordanian citizenship.

True, after 16 years, the PLO was established in 1964 and carried out a number of terrorist acts not against Jordan and its occupation but against Israel inside the narrow waist of the armistice lines of 1949.

THE LEADERS of the Arab League, whose original purpose in 1948 to destroy Israel had been frustrated, decided in 1967 to try again. A charismatic president, Gamal Abdel Nasser, had come to power in Egypt, and, having decided that the Arabs' strength was now "sufficient" (as he said in a speech), he led the pan-Arab campaign for a new war.

In May he took practical preliminary steps. He demanded that the UN Peace Observer team be removed from Sinai which was done; and he closed the Tiran Straits, Israel's only gateway to the south and the east. While concentrating his armed forces in Sinai, Nasser delivered a series of belligerent speeches describing the lethal aim of the impending war. On May 25, Cairo radio announced to the world: "The Arab people is firmly resolved to wipe Israel off the map." And on May 30, Nasser declared: "The armies of Egypt, Jordan, Syria and Lebanon are stationed on the borders of Israel. Behind them stand the armies of Iraq, Algeria, Kuwait, Sudan and the whole of the Arab nation."

Cheering crowds in the Arab capitals greeted the promise that Israel's end was nigh. The effect of this preparatory campaign was tremendous. Abba Eban, Israel's foreign minister, subsequently described in detail the international armament ready to attack Israel on three fronts: "The greatest force ever assembled in that peninsula in all its history."

"Nobody who lived through those days in Israel," said Eban at the UN some days after the war, " will ever forget the air of doom that hovered over our country. "Hemmed in by hostile armies ready to strike, affronted and beset by a flagrant act of war, bombarded day and night by predictions of her approaching extinction, forced into a total mobilization of all her manpower, her main supplies of vital fuel choked by a belligerent act, Israel faced the greatest peril of her existence that she had known since her resistance against aggression 19 years before at the hour of her birth A crushing siege bore down upon us."

Fear gripped the Diaspora. The notion of an assault on tiny Israel by the massed forces of the Arab nations was overwhelming. Young men rushed to get places on planes to Israel. In synagogues Jews gathered to pray for Israel's security. In Israel old men, women and children dug trenches in the parks and open spaces of the cities; hospitals were emptied of all but urgent cases in preparation for thousands of casualties.

Then, in six days, the Israeli forces won a great victory. In part of that victory Judea and Samaria, the Jordan Valley and the Gaza Strip were liberated from their Jordanian and Egyptian occupation.

The stunning victory was followed by an equally stunning offer by Israel to hand back the liberated territories to the Arabs in return for peace. The Arabs refused categorically. From a conference at Khartoum, they announced that there would be no peace, no negotiations and no recognition of Israel.

It was then, in the early seventies, that Jews came to live and build their homes in the wide acres of Judea, Samaria, the Gaza Strip and the Golan. They are the "settlers" who have written a new and heroic chapter in the Zionist imperative of building the land; and their living where they are living is as legal and as natural as President George W. Bush living in Texas and Prime Minister Tony Blair in England.

THE MAKERS of the road map tried to impose a deleterious policy on Israel and evidently, to our shame, succeeded without any discussion, precisely because they did not want to discuss the central historical facts facts that expose the grotesque Arab fabrications on which rests the policy underlying the road map.

First, that the current "dispute" between Israel and the Arabs began with murderous Arab terror in the 1920s and 1930s; that deliberate Arab military aggression brought on the war of 1948, and Arab terror continued during the decades that followed.

Throughout this whole period there were no "settlers" in Judea and Samaria or Gaza; and when the Six Day War, which the Arabs pretend did not happen, was launched, there were no "settlers." The worldwide tumult about settlers being responsible for the conflict is simply a reflection of the grand hopes of the Arabs to evade responsibility for their lethal designs on Israel. The mapmakers are thus collaborating in trying to make the hoax work.

Secondly, the Arabs have demonstrated, admit even boast and teach their children that they mean to get rid of Israel and that killing Jews is a virtue, a mitzva.

Once you ignore these damning facts you can construct any scenario you like. And if the scenario is conceived by a consortium of veteran friends of the Arabs (like Britain, other Europeans and the US State Department) and the UN, which harbors dyed-in-the-wool anti-Semites (see Durban), plus Saudi Arabia, then you are not creating a vision of peace but of the next war; a repetition, as the Arabs see it, of 1948.

The alternative may simply be a continuation of terror against Israel from behind the protective wall of the sovereignty of a Palestinian state.THE ARABS have made it clear that the state they are now demanding represents the penultimate phase so often referred to by Arafat in the struggle for Israel's destruction.

It's a state they could have had in 1947, under the UN Partition plan. They could surely have had a state when Israel offered to give back Judea, Samaria and the Gaza Strip in return for peace after the Six Day War. Their contemptuous rejection of the offer was an open declaration that peace with Israel was not their objective.

The propaganda against Israel in the Arab world, indeed within the Muslim world, has since that time become more strident and more specific. In the mosques, on the streets and in the schoolrooms they do not call for a state on the "West Bank," they call for a Palestinian State "from the [Jordan] river to the [Mediterranean] sea." Why do they prefer to fight and kill (and die) in order to gain sovereign possession of this sliver of Jewish territory?The answer seems to be that they cannot tolerate the idea that the Jews who lived in Muslim lands as third-class citizens are now treated as equals in human society. That is why the Arabs, when they have been defeated in war by Israel, insist that it is England or America that fought the war for them.

If the present policy of pressure on Israel while the Arabs are cheering is pressed to the end, the Bush vision will prove empty and the road map a lie. And there will still be no peace.

The writer, a co-founder with Menachem Begin of the Herut Party and member of the first Knesset, is a biographer and essayist.

Revenant is relevant

by Yisrael Medad

September 29, 2002

The American writer Carolyn Wells, who died 60 years ago, asserted "actions lie louder than words." Be that as it may, words still play an important part in the craft of fooling people. This is especially so in the Arab-Israel conflict.

To take one example, the proper nomenclature for the Jewish civilian residential areas in the disputed territories of Judea, Samaria and Gaza, as New York Times columnist William Safire has indicated, should be communities rather than the pejorative "settlements." Jews live in communities or, for that matter, in cities, towns and villages. They do not live in "settlements."

In his August 5, 2001 column, On Language, Safire wrote: "Words have connotations. In the disputed territory known as the West Bank, an Israeli village is called a settlement, implying fresh intrusion; a small Palestinian town, even one recently settled, is called a village, implying permanence." Of course, his use of "disputed" rather than "occupied," or for that matter, "liberated," in another example of the importance of the terminology one uses.

This phenomenon, of harnessing language to political ideology, is not exceptional nor is it new. In a volume discussing political geography, Richard Muir deals with an "image system" whereby a subjective perception of reality is promoted via language so as to achieve superiority either at negotiations or other actions that will help establishing borders to territories.

The use of "occupied" and of "settlements" and "settlers" is a projection of a desired reality. That Israel's official state institutions such as the Foreign Ministry's information services and their employees continue to use these very terms is unfortunate, to say the least.

But what should we term the Jews who live in the territories? A substitute for the word "settlers" has been hard to come by. I once introduced myself to a British Foreign Office official as a "Jewish resident of a community in Samaria." Puzzled momentarily, he quickly interjected "but I thought I was to converse with a settler." Clearly, a more accurate noun is needed, one that is more relevant to the reality.
It is revenant.

THE DICTIONARY defines a revenant is one who returns after a lengthy absence. A revenant can be any person who shows up after a long absence such as those who come back to their ancestral home after years of political exile. This is the classic definition although Sir Walter Scott used it in his novel The Fair Maid, to denote a ghost. It stems from the French "revenir," which means simply "to return."

Jews lived in the hills of Judea and Samaria for over 3500 years, as nomads, as tribal chieftains and as kings, priests and prophets. They were dispersed once and returned. They were exiled and returned.

Despite foreign conquerors, they persisted in returning under the most difficult of political, religious and economic conditions. Their civilization was created in the area as was their literature. Their three most important cities are there.
The Torah and the New Testament use the terms Judea, Samaria and Gaza. The Quran records God's command that the Jews should live in the Promised Land. Eighty years ago, the world recognized unabashedly and with no disagreement the right of Jews to reestablish their historic homeland as a political entity. And following a brief 19 year long hiatus, Jews are once again living there.

Revenant, then, may be the word we need to employ.

If one is referred to as a settler, immediately the audience is disposed to consider the object as a near-monster, an oppressor, one who doesn't belong and so forth. The person described as a "settler' loses his humanity. He is a stereotype.

Those who contend that Jews possess no rights in Judea, Samaria and Gaza, have an easier task if they talk about a "settler." A revenant, on the other hand, belongs. He has rights to the land, both his personal location and the collective geography.

Good linguistic advice is that to own a word, one should use it ten times. I have employed it four times in this article. Perhaps you will join with me in multiplying its use?


The writer resides in Shiloh and comments on political, media, and cultural affairs.

There is No "Occupation"

by Morton A. Klein

National President, Zionist Organization of America


Arab spokesmen regularly complain about what they call "the Israeli occupation" of the Judea-Samaria-Gaza territories. But the truth is that there is no such "Israeli occupation."

To begin with, nearly all Palestinian Arabs currently live under Yasir Arafat's rule, not Israel's. Following the signing of the Oslo accords, the Israelis withdrew from nearly half of the territories, including the cities where 98.5% of Palestinian Arabs reside. The notion that the Palestinian Arabs are living under "Israeli occupation" is simply false. The areas from which Israel has not withdrawn are virtually uninhabited, except for the 2% where Israelis reside.

The term "occupation" is also used to indicate that Israel has no right to any presence in Judea-Samaria-Gaza or the Old City section of Jerusalem, and that the Israeli presence in any of those areas constitutes illegal "occupation" of someone else's land. In fact, Israel has the strongest religious, historical, and legal claim to this land, The territories of Judea-Samaria-Gaza and the Old City of Jerusalem were integral parts of the Jewish kingdoms throughout the biblical eras, and are explicitly mandated by the Hebrew Bible as part of the Land of Israel.

These lands were Jewish thousands years ago, under King David, King Solomon, and other Jewish rulers; can anybody name a Palestinian Arab king who ever ruled over "Palestine"? No--because there never were any.

All of the most important Jewish religious sites are situated in those territories. The very name "Judea" --a term which was commonly used by the international community throughout all the centuries until the Jordanian occupation in 1949-- is derived from the same root as the word "Jew," testifying to the deep Jewish connection to the land. The reason Jews are called "Jews" is because we come from Judea. This historical-religious right was the basis for the League of Nations decision, in 1922, to endorse the Jewish people's right to all of the Holy Land, on both sides of the Jordan River.

From the standpoint of international law, it is important to note that prior to 1967, there was no other recognized sovereign power in the territories. Israel's capture of Judea-Samaria-Gaza and the Old City of Jerusalem in 1967 did not constitute an illegal "occupation" of someone else's land, because prior to 1967, there was no legal or recognized sovereign power there. The Jordanian occupation Judea-Samaria and Jerusalem during 1949-1967 was illegal, having been carried out in defiance of the United Nations Security Council. The only countries in the world to recognize it were Pakistan and (in part) England.

Furthermore, Israel captured the territories in self-defense. Israel took over Judea-Samaria-Gaza and the Old City of Jerusalem in self-defense, in response to aggression by Jordan and Egypt in June 1967. Had Jordan not invaded Israel --ignoring pleas by Israel to stay out of the war-- Israel would not control Judea and Samaria today. As former State Department Legal Adviser and former head of the International Court of Justice in the Hague, Stephen Schwebel, has written: "Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defence has, against that prior holder, better title."

It is also significant that U.N. Security Council Resolution 242 does not require complete Israeli withdrawal from the territories. Resolution 242 requires Israel to withdraw "from territories" captured in 1967, but the authors of the resolution deliberately left out the word 'the' before 'territories' because it was their conviction --as articulated by then-British foreign secretary George Brown-- "that Israel will not withdraw from all the territories." The Soviets tried to insert 'the', but that effort was specifically rejected so as not to suggest that Israel is obliged to surrender all of the territories.

Finally, it should also be noted that the Oslo Accords recognize Israel's right to remain in the territories, at least until a final settlement is reached. The Oslo accords accept Israel's presence in the territories at least until an Israel-PA agreement on the final status of those areas. Chapter 2, Article X, Clause 4, specifically recognize that in the disputed territories, "Israel shall continue to carry the responsibility for external security, as well as the responsibility for overall security of Israelis for the purpose of safeguarding their internal security and public order" until a final accord is reached. Furthermore, the Oslo accords do not require Israel to dismantle any of the Israeli communities in Judea-Samaria-Gaza--in effect, an acknowledgment of Israel's right to maintain those communities, at least until a final-status agreement is reached.

In short, the notion that there is an illegal Israeli "occupation" is a myth.

Source: www.zoa.org/pressrel/20020510b.htm 

On the Question of the Legality of the Jewish Civilian Communities in the Disputed Areas of Judea, Samaria and Gaza

Within the context of international law, we draw attention to the Balfour Declaration of 1917. The text of the Declaration, as noted by the Palestine Royal Commission Report of 1937, p. 22, had been approved by U.S. President W. Wilson prior to its publication. Indeed, the Inquiry Commission established by President Wilson affirmed “that Palestine should become a Jewish State” and that “Palestine...was the cradle and home of their vital race”, a succinct statement of the essence of the principle of self-determination.

That document, issued by the British Government and later to serve as the basis for the League of Nations Mandate approved in 1922, refers on the one hand to “a National Home for the Jewish people in Palestine” while on the other, refers to “non-Jewish communities in Palestine”.

The distinction is not coincidental. National and historical rights are recognized clearly in the context of the Jewish people whereas the opposing parallel, that the land in question ‘belonged to an Arab people’ as it were, was not mentioned and purposefully ignored. What was included in the Balfour Declaration and the Mandate were the “civil and religious rights” of non-specified “non-Jewish communities”, without reference to Arabs at all.

Furthermore, the aforementioned Mandate text acknowledges 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”. In Article 6, the administration apparatus of the Mandate, a temporary form of government, was charged with facilitating and encouraging “close settlement by Jews on the land, including State lands and wastelands not required for public purposes”.

It is worthy to note that the United States House of Representatives and the Senate adopted resolutions supporting the Mandate, on June 30, 1922 and May 3, 1922 respectively. President W. Harding signed a proclamation on September 21, 1922 that stated that “the United States of America favors the establishment in Palestine of a national home for the Jewish People...and that the holy places and religious buildings and sites in Palestine shall be adequately protected”. These acts reinforced the position fully understood that the rights accruing a national grouping belonged solely to the Jewish people and that non-Jewish elements could claim but protection for singular and individual buildings and sites.

What cannot be ignored is the historical connection of the Jewish people to this Land. The continuous presence of Jews in their homeland over many centuries under Jewish independent rule (tribal federation and monarchy) and centuries of foreign rule is itself a proof of right and legality. This presence included, indeed primarily so, the areas known as Judea, Samaria and Gaza. This presence was maintained despite destruction of political sovereignty, conditions of exile, oppression and persecution by the Babylonian, Greek-Syrian, Roman, Persian, Arab and Ottoman Empires. Despite the early favorable attitude of the British Empire, the pursuance of the internationally recognized goals of the Mandate necessitated acts of national liberation akin to those of the American Colonies in 1777, as well as other countries such as India, Ireland and African nations. This struggle for freedom forced Great Britain to turn to the United Nations in 1947.

The resolution adopted by the General Assembly of the United Nations on November 29, 1947 and accepted by the governing institutions of the Jewish People is to be seen as the fountainhead of the recognition of Israel as an Independent State possessing sovereignty. In rejecting that resolution and in declaring war on the nascent state of Israel, the Arab communities and neighboring states severed all legal connection to claims they did or would, in the future, make. In a sense, that rejection of the compromise proposal of partition revived the full and inalienable rights of Jews to all the territories included in the Mandate. These territories include Judea, Samaria and Gaza.

As a result of armed acts of aggressions, the Jordanian entity subsequently conquered portions of the Palestine Mandate and Egypt occupied the Gaza Strip district. The non-Jewish communities of the areas of Judea and Samaria, never having expressed themselves in criteria of nationhood and geo-political sovereignty previously, never established a state on this territory following the 1947 Resolution and, in fact, requested, at the Second Palestine Arab Conference convened in Jericho on December 1, 1948, that these territories be enjoined to the Hashemite Kingdom. Indeed, a resolution of unification was signed into Jordanian law on April 24, 1950, which purported to transfer to the Hashemite Monarchy sovereign rights to those areas of Western Palestine not under Israeli control following the 1948-49 War of Independence. That law negated the terms of international law, and, in any case, was only recognized by Great Britain and Pakistan.

In the matter of General Assembly Resolution 242, we refer you to the testimony of Eugene V. Rostow who participated in the negotiations of that Resolution. For example, in The New Republic issue of October 21, 1991, page 14, Mr. Rostow treats the issue of illegality. He makes it plain that Jewish settlement in Judea and Samaria is indeed legal, and that the Jewish right of settlement west of the Jordan River is “unassailable”.

We now briefly address another point. The status of the areas of Judea, Samaria and Gaza (YESHA) can in no way be conceived as being governed by the Fourth Geneva Convention for the simple reason that they are not occupied territories as defined in this document. Paragraph (6) of Article 49 of the said Fourth Geneva Convention is irrelevant to the question at hand in that Article 2 stipulates that the territory under issue must belong to a High Contracting Party. This is not the case, as the territory under discussion did not belong to any such Party. Furthermore, the drafting history of Article 49 was directed against the practices of the Nazi regime in forcibly transporting populations. It would border on the ridiculous to claim that Article 49 (6) which was fixed so as to prevent a return of heinous Nazi practices of Judenrein should now be understood as meaning that Judea, Samaria and Gaza (YESHA) must become empty of Jews.

Moreover, the Convention does not and could not prohibit the establishment of communities, towns or other civilian centers. Even government economic incentives cannot be considered as “mass deportation” or “transfer”. Over 90 percent of the communities populated by Jews are located on state land, not land privately owned by Arabs. Indeed, some of the communities are built on land that was either owned by Jews prior to 1967 or purchased afterwards.

One last point. The basis for an Arab claim to Palestine, formulated by the PLO which represents itself as the legal vehicle for that claim, is the Palestinian National Covenant. This document can only be described as racist and invalid on humanitarian grounds and unacceptable in international law. In fact, a Palestinian identity has always been a tactical move by Arabs who always viewed themselves as belonging to a greater Arab nation as in the case of the request of the General Syrian Congress on July 2, 1919 “that there should be no separation of the southern part of Lebanon [that is, the Palestine territory] from the Syrian country”, a position repeated ever since as, for example, by Yasser Arafat when he declared over the Voice of Palestine on November 18, 1978 that “Palestine is southern Syria and Syria is northern Palestine”.

In an interview with Matt Lauer on NBC’s The Today Show on October 1, 1997, Secretary of State Madeleine K. Albright related to building in Yesha and said: “I wasn't happy…I felt that going forward with those kinds of buildings was not helpful. Mr. Lauer pressed her and stated: “ It's legal. “

And Albright admitted: “It's legal.”

The need for this legal commentary stems from the fact that Arabs aligned with the PLO have announced that Jewish communities established in the territories of YESHA are a priori “terrorist” in nature and are a form of “aggression”. Having thus defined Jewish civilian in this way, Arabs make the claim that they are defending themselves and are justified in using all means at their disposal including shooting, bombing and stabbing such as has been used in this latest wave of violence. We reject such an approach as immoral, illegal and reminiscent of war crimes of the recent past.

The Land of Israel and Palestine and the 4th Geneva Convention "Claims of their illegality are based on the final paragraph (6) of Article 49 of the 4th Geneva Convention, Relative to the Protection of Civilian Persons in Time of War, of August 12, 1949. This states: 'The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.' However, Article 2 states that the Convention applies 'to cases of ... occupation of the territory of a High Contracting Party' by another such Party. The West Bank was illegally occupied by Jordan after it rejected the UN partition resolution and attacked the nascent State of Israel in 1948. (According to the principle of 'ex injuria non oriturius' no legal claim to territory can arise out of an illegal aggression.) "In contrast, Israel's presence in this area is entirely lawful, since Israel entered it lawfully in self-defense, and she is entitled to negotiate the extent and the terms of her withdrawal. "As the West Bank does not belong to any other state (there has never been a nation-state of Palestine, and Jordan has since renounced its illegitimate territorial claims), the Convention can not apply to it at all. " (NB. It is universally recognized that the UN General Assembly has no power to create binding rules of law by simple resolution.) "Further, when Article 49 of the 4th Geneva Convention was drafted, it was directed against the Nazis' practice of forcibly transporting unwanted populations into or out of occupied territories for the purpose of 'liquidating' them, or to provide slave labor, or for other inhumane purposes. "These genocidal objectives were, of course, directed in large part against the Jews. " Thus, even if one assumed that Israel's position in the West Bank was one of merely an occupying power, Article 49 would forbid deportation or transfer of its own population onto the West Bank whenever this action (a) impaired the economic situation or racial integrity of the native population of the occupied territory, or (b) resulted in inhuman treatment of its own population. " Re point (a), the prominence of the question of legality of Jewish settlements on the West Bank reflects the tensions of the peace process, rather than the magnitude of any demographic movement. The reality is clear that there has been no serious dilution (and certainly no eradication) of the 'separate racial existence' of the native population - nor is such a scenario likely. Also, the standard of living of the large Arab population in the West Bank is significantly higher than that of Arab populations in neighboring states. "Re point (b), the terms of Article 49(6) are totally irrelevant. Were one to make them relevant, the effect of Article 49(6) would impose an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein (free of Jews). Thus, a legal instrument designed to prevent a repetition of Nazi genocidal policies of making areas judenrein would come to mean that the West Bank must be made judenrein and must be maintained in such a state, if necessary by the use of force by the government of Israel against its own inhabitants. "To argue this legal point I have quoted freely from "Israel and Palestine - Assault on the Law of Nations" by the late Julius Stone, the Challis Professor of International Law and Jurisprudence at the University of Sydney. (Among his many accolades, Professor Stone received the award of the American Society of International Law in 1956, and was made an honorary life member of the Society in 1962. In 1965, he received the World Law Research Award of the Washington Conference on World Peace Through Law. He was also Distinguished Professor of Jurisprudence and International Law at Hastings College of Law, University of California.)

Staking our claim

by Evelyn GordonAugust 12, 2002

US Secretary of Defense Donald Rumsfeld shocked the world last week when he referred to Israel's "so-called occupation" of the West Bank and Gaza. By implying that he does not consider Israel's presence in these territories to be an illegal occupation, Rumsfeld defied one of the modern world's most widely accepted dogmas. Yet the very fact that his statement was received as little short of heretical begs an obvious question: How did a label with not a shred of basis in international law turn into such a universally accepted truth?

The standard definition of an occupation under international law is found in the Fourth Geneva Convention, which applies explicitly to "partial or total occupation of the territory of a High Contracting Party" (Article 2, emphasis added). In other words, "occupation" for the purposes of the convention means the presence of one country's troops in territory that belongs to another sovereign state the only type of entity that can be a contracting party to the convention.
But when territory that does not clearly belong to another sovereign state is captured by one of the possible legitimate claimants as, for instance, in Kashmir, which is claimed by India, Pakistan, and the Kashmiris the term generally used is "disputed," not "occupied."

And that is precisely the situation in the West Bank and Gaza.

Neither of these territories belonged to any sovereign state when Israel captured them in 1967; they were essentially stateless territory. Both had originally been part of the League of Nations Mandate for Palestine and, according to the UN partition plan of 1947, they should have become part of a new Arab state when Britain abandoned the Mandate in 1948.

But since the Arabs themselves rejected this plan, not only did that state never come into being, it never even acquired theoretical legitimacy: The partition plan was no more than a non-binding "recommendation" (the resolution's own language) adopted by the General Assembly. Once rejected by one of the parties involved, it essentially became a dead letter.

The West Bank and Gaza were therefore not owned by anyone when they were seized by Jordan and Egypt, respectively, in 1948; and since their annexation by these countries was never internationally recognized (Jordan's annexation of the West Bank, for instance, was accepted only by Britain and Pakistan), they were still stateless territory in 1967.

Moreover, Israel had a very strong claim to both territories. Even aside from the obvious historical claim the heart of the biblical kingdom of Israel was in what is now called the West Bank the terms of the original League of Nations Mandate quite clearly assigned the West Bank and Gaza to the Jewish state.
The preamble to the Mandate explicitly stated that its purpose was "the establishment in Palestine of a national home for the Jewish people."

DOES THIS mean that all of Mandatory Palestine which included not only modern-day Israel, the West Bank and Gaza, but also the modern-day state of Jordan was supposed to be a Jewish state? An answer can be found in Article 25, which reads: "In the territories lying between the Jordan [River] and the eastern boundary of Palestine... the Mandatory shall be entitled, with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of this mandate as he may consider inapplicable to the existing local conditions."

No such permission, however, was given west of the Jordan. In other words, while the Mandate arguably gave Britain and the council together the right to "withhold application" of the Mandate's stated purpose east of the Jordan, the land west of this river which includes the West Bank and Gaza, as well as Israel was unequivocally earmarked for the Jewish national home. And the fact that both territories were captured in a defensive war from states that originally seized them through armed aggression strengthens Israel's claim still further.

How, then, did the myth of "occupation" i.e., the myth that these territories indisputably belong to someone other than Israel gain such universal credence? Sadly, the main culprit is Israel itself.

When Israel captured the territories in 1967, the government did not assert its claim. Instead, it insisted that Israel did not want these lands and was merely "holding them in trust" to be "returned" to the Arabs in exchange for a peace treaty. And every subsequent government reiterated this line. But since no third party could be expected to press a claim that Israel refused to press for itself, the Arab claim, by default, became the only one on the international agenda. And since territories cannot be "disputed" if there is only one claimant, the only alternative was to view them as belonging to the sole remaining claimant leaving Israel as the "occupier."

Israel did, of course, lay claim to one section of these territories from the start: east Jerusalem. But legally speaking, Israel's claim to east Jerusalem is no different from its claim to the rest of the West Bank. By essentially denying the latter claim, Israel badly undermined the former.
After 35 years, it may well be impossible to rectify this enormous historical error. But Israel cannot afford not to make the effort. It must explain, at every opportunity, the sound legal basis for its own claim to the West Bank and Gaza. To do otherwise is to guarantee that it begins any future negotiations from the irremediably inferior position of an "occupier." 

Bricks and stones: settling for leverage; Palestinian autonomy

by Rostow, Eugene V.

Over the past several weeks the long-standing American objection to further Israeli settlements in the West Bank has been pressed by the Bush administration with new vehemence. The outcome of this argument is crucial. It will affect the substance, fairness, and durability of any peace that may emerge.

With varying degrees of seriousness, all American administrations since 1967 have objected to Israeli settlements in the West Bank on the ground that they would make it more difficult to persuade the Arabs to make peace.

 President Carter decreed that the settlements were "illegal" as well as tactically unwise. President Reagan said that the settlements were legal but that they did make negotiations less likely. The strength of the argument is hardly self-evident. Jordan occupied the West Bank for nineteen years, allowed no Jewish settlements, and showed no sign of wanting to make peace.

 Yet if the West Bank were 98 or 100 percent Arab when the parties finally reached the bargaining table, the impulse to accept a peace that ceded the whole of the West Bank to an Arab state would be tempting to Americans and Europeans, and even to some weary Israelis. The growing reality of Israeli settlements in the area, on the other hand, should be a catalyst for peace, by imposing a price on the Arabs for their refusal to negotiate.
 But the American government keeps reciting the old formula. Secretary of State James Baker has gone beyond previous American positions by threatening to cut aid if the Israelis build more settlements in the West Bank. He spoke after Arab protests against the possibility of large numbers of Soviet Jews settling in Israel, particularly in the West Bank. Wouldn't it have been more useful if Baker had told his Arab interlocutors that if they want any parts of the West Bank to become Arab territory, they should persuade Jordan and the Arabs living in the occupied territories to make peace with Israel as rapidly as possible? Since 1949 the U.N. Security Council has repeatedly urged and occasionally commanded the Arab states to make peace, most recently in Resolutions 242 and 338. Thus far, with the exception of Egypt in 1977, they have simply refused to comply. But Baker yielded to the Arab outcry, and is trying to maneuver Israel into a position that no Israeli majority can accept: to renounce the right of settlement of the Jewish people"-in the words of the Mandate-in any part of the West Bank.

 The Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of Israel was created. The Mandate for Palestine differs in one important respect from the other League of Nations mandates, which were trusts for the benefit of the indigenous population.

The Palestine Mandate, recognizing "the historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home in that country," is dedicated to "the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing nonjewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country."

  The Mandate qualifies the Jewish right of settlement and political development in Palestine in only one respect. Article 25 gave Great Britain and the League Council discretion to "postpone" or "withhold" the Jewish people's right of settlement in the Trans-Jordanian province of Palestine-now the Kingdom of Jordan-if they decided that local conditions made such action desirable.
With the divided support of the council, the British took that step in 1922. The Mandate does not, however, permit even a temporary suspension of the Jewish right of settlement in the parts of the Mandate west of the Jordan River. The Armistice Lines of 1949, which are part of the West Bank boundary, represent nothing but the position of the contending armies when the final cease-fire was achieved in the War of Independence. And the Armistice Agreements specifically provide, except in the case of Lebanon, that the demarcation lines can be changed by agreement when the parties move from armistice to peace.
Resolution 242 is based on that provision of the Armistice Agreements and states certain criteria that would justify changes in the demarcation lines when the parties make peace.

 Many believe that the Palestine Mandate was somehow terminated in 1947, when the British government resigned as the mandatory power. This is incorrect. A trust never terminates when a trustee dies, resigns, embezzles the trust property, or is dismissed. The authority responsible for the trust appoints a new trustee, or otherwise arranges for the fulfillment of its purpose. Thus in the case of the Mandate for German South West Africa, the International Court of justice found the South African government to be derelict in its duties as the mandatory power, and it was deemed to have resigned. Decades of struggle and diplomacy then resulted in the creation of the new state of Namibia, which has just come into being. In Palestine the British Mandate ceased to be operative as to the territories of Israel and Jordan when those states were created and recognized by the international community. But its rules apply still to the West Bank and the Gaza Strip, which have not yet been allocated either to Israel or to Jordan or become an independent state. jordan attempted to annex the West Bank in 1951, but that annexation was never generally recognized, even by the Arab states, and now Jordan has abandoned all its claims to the territory.

 The State Department has never denied that under the Mandate "the Jewish people" have the right to settle in the area. Instead, it said that Jewish settlements in the West Bank violate Article 49 of the Fourth Geneva Convention of 1949, which deals with the protection of civilians in wartime. Where the territory of one contracting party is occupied by another contracting party, the Convention prohibits many of the inhumane practices of the Nazis and the Soviets before and during the Second World War-the mass transfer of people into or out of occupied territories for purposes of extermination, slave labor, or colonization, for example.

 Article 49 provides that the occupying power "shall not deport or transfer part of its own civilian population into the territory it occupies."

 But the Jewish settlers in the West Bank are volunteers. They have not been "deported" or "transferred" by the government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population the Geneva Convention was designed to prevent. Furthermore, the Convention applies only to acts by one signatory "carried out on the territory of another." The West Bank is not the territory of a signatory power, but an unallocated part of the British Mandate. It is hard, therefore, to see how even the most literal-minded reading of the Convention could make it apply to Jewish settlement in territories of the British Mandate west of the jordan River. Even if the Convention could be construed to prevent settlements during the period of occupation, however, it could do no more than suspend, not terminate, the rights conferred by the Mandate. Those rights can be ended only by the establishment and recognition of a new state or the incorporation of the territories into an old one.

 As claimants to the territory, the Israelis have denied that they are required to comply with the Geneva Convention but announced that they will do so as a matter of grace. The Israeli courts apply the Convention routinely, sometimes deciding against the Israeli government. Assuming for the moment the general applicability of the Convention, it could well be considered a violation if the Israelis deported convicts to the area or encouraged the settlemen of people who had no right to live there (Americans, for example).

 But how can the Convention be deemed to apply to Jews who have a right to settle in the territories under international law: a legal right assured by treaty and specifically protected by Article 80 of the U.N. Charter, which provides that nothing in the Charter shall be construed "to alter in any manner" rights conferred by existing international instruments" like the Mandate? The Jewish right of settlement in the area is equivalent in every way to the right of the existing Palestinian population to live there.

 Another principle of international law may affect the problem of the Jewish settlements. Under international law, an occupying power is supposed to apply the prevailing law of the occupied territory at the municipal level unless it interferes with the necessities of security or administration or is "repugnant to elementary conceptions of justice." From 1949 to 1967, when Jordan was the military occupant of the West Bank, it applied its own laws to prevent any Jews from living in the territory. To suggest that Israel as occupant is required to enforce such Jordanian laws-a necessary implication of applying the Convention-is simply absurd. When the Allies occupied Germany after the Second World War, the abrogation of the Nuremberg Laws was among their first acts.

 The general expectation of international law is that military occupations last a short time, and are succeeded by a state of peace established by treaty or otherwise. In the case of the West Bank, the territory was occupied by Jordan between 1949 and 1967, and has been occupied by Israel since 1967.

 Security Council Resolutions 242 and 338 rule that the Arab states and Israel must make peace, and that when "a just and lasting peace" is reached in the Middle East, Israel should withdraw from some but not all of the territory it occupied in the course of the 1967 war. The Resolutions leave it to the parties to agree on the terms of peace.

 The controversy about Jewish settlements in the West Bank is not, therefore, about legal rights but about the political will to override legal rights. Is the United States prepared to use all its influence in Israel to award the whole of the West Bank to Jordan or to a new Arab state, and force Israel back to its 1967 borders? Throughout Israel's occupation, the Arab countries, helped by the United States, have pushed to keep Jews out of the territories, so that at a convenient moment, or in a peace negotiation, the claim that the West Bank is "Arab" territory could be made more plausible. Some in Israel favor the settlements for the obverse reason: to reinforce Israel's claim for the fulfillment of the Mandate and of Resolution 242 in a peace treaty that would at least divide the territory. For the international community, the issue is much deeper and more difficult: whether the purposes of the Mandate can be considered satisfied if the Jews finally receive only the parts of Palestine behind the Armistice Lines-less than 17.5 percent of the land promised them after the First World War. The extraordinary recent changes in the international environment have brought with them new diplomatic opportunities for the United States and its allies, not least in the Middle East. Soviet military aid apparently is no longer available to the Arabs for the purpose of making another war against Israel. The intifada has failed, and the Arabs' bargaining position is weakening. It now may be possible to take long steps toward peace. But to do so, the participants in the Middle East negotiations-the United States, Israel, Egypt, and the PLO-will have to look beyond the territories.

  The goal of Yitzhak Shamir's election proposal is an interim regime of Arab autonomy in part of the West Bank and the Gaza Strip in accordance with the Camp David Accords; the goal of the PLO is to establish a Arab-Palestinian state in the whole of the territories. It is hard to be sanguine about the possibility of reconciling those positions through negotiations. Establishing a cooperative relationship between Israel and the Arabs who live in the occupied territories is a crucial part of the Palestine problem, but it is not the whole of it, and surely not an end in itself. The last thing Israel wants is an Arab Bantustan. If the status of the occupied territories is viewed in isolation, negotiation will be excruciatingly difficult, and every item on the agenda will be a tense and suspicious haggle on both sides. 

 The prospects for peace would be less forbidding if the question were approached as one element in a plan for achieving a larger goal: a confederation involving at least Israel, Jordan, and the occupied territories. Membership could perhaps be open to poor Lebanon as well, or parts of it. Even Syria, behind its ferocious words, may be preparing to move toward peace. Syria and Israel have congruent interest in Lebanon and elsewhere, and neither country wants a state dominated by the PLO as a neighbor.

 The idea of a Palestinian confederation has been the recommendation of every serious study of the Palestine problem for more than fifty years. It was the essence of the partition proposals of the Peel Commission in 1936, and of the General Assembly's 1947 partition plan, at least for Israel and the West Bank. With different boundaries, it was also the basic idea of Israel's 1967 peace offer, which will always correspond to Israeli public opinion: Palestine divided into a Jewish and an Arab state, united in a  common market, with special arrangements for Jerusalem and as much political cooperation as the traffic will bear. Before the intifada started, it was the notion behind the de facto Israel/Jordanian condominium for the West Bank, which was both effective and practical. After the past year's events in Eastern Europe and the Soviet Union, who can say that progress in the Middle East is impossible?

Copyright 1990 The New Republic Inc.

The New Republic

April 23, 1990

Israel has every right to expand settlements

by Michael Freund


Don't tell this to Secretary of State Colin Powell, but a friend of mine in a West Bank Jewish settlement is thinking of adding an extra bathroom to his home.

Normally, the lavatory layout in a private Jewish household outside of Jerusalem would hardly be a matter of international diplomatic concern. With the war on terror in its early stages and America gearing up for battle against Saddam Hussein, one would assume that the U.S. foreign policy establishment has more important things to worry about than how many flush options will be available to my friend and his family.

That assumption, however, has proven to be wrong. In a series of recent statements, Powell has repeatedly insisted that Israel should halt all construction in Jewish settlements throughout the West Bank and Gaza. Speaking on NBC's ''Meet the Press'' on May 5, Powell said, ''Something has to be done about the problem of the settlements, the settlements continue to grow and continue to expand.''

To which I cannot help but respond: What is wrong with that?

Down the road from my friend's community lies an Arab village, where building proceeds apace, unrestricted and unhindered. No one has gone on the Sunday talk shows to denounce such activity, for the simple reason that it isn't anyone's business what a person decides to do in his own home. Why, then, does construction become an international issue simply because the person involved is a Jew?

Indeed, there is something very troubling about the fact that a U.S. secretary of state would object to the erection of a house based on the religious or ethnic identity of its owner. In the olden days, we had a word for such views: racism. And segregation.

To deny people the right to live in a certain area because they are Jews is no different from denying African Americans or Hispanics or any other ethnic group the right to live where they please. And to suggest that the exercise of that right is somehow an ''obstacle to peace'' and must be halted is to capitulate to the haters and allow them to dictate who may live where. We cannot allow that to happen.

The fact is that Jews choosing to live in the West Bank and Gaza are pioneers. They are returning to live in the heartland of Israel, the place that served as the cradle of Western civilization and religion.

These areas--which we in Israel refer to by their original names of Judea, Samaria and Gaza--were the scene of much of the drama described in the Bible. It is the place where King David walked and where the prophets of Israel gave the world a vision of peace and brotherhood.

Ancient synagogues and archeological sites attest to the long-standing Jewish presence in the region, a presence that is once again flourishing despite Arab opposition. Moreover, Israel did not ''occupy'' these territories, as the Palestinians and others would have you believe. In the 1967 Six Day War, Arab armies massed on Israel's narrow borders, vowing to destroy the Jewish state.

In a war of self-defense, Israel succeeded in overcoming its enemies, in the process taking control over Judea, Samaria and Gaza. Under international law, territories are considered ''occupied'' only when they are taken in an act of aggression--which clearly does not apply to Israel's case.

It was 35 years ago this month that Israel prevailed in the 1967 war, returning to places such as Hebron and Shilo. For 2,000 uninterrupted years, Jews had lived in the ancient Jewish quarter of Hebron, near the
Tomb of the Patriarchs where Abraham, Isaac and Jacob are buried. Only in 1929, when local Arabs massacred them, was the Jewish community forced to flee the city. What could be more historically just than to rebuild the Jewish presence there?

Jews have a moral, legal, historical and Biblical right to settle the territories. And despite the threat posed by Palestinian terrorism, that is precisely what they continue to do. The number of Jews living in Judea, Samaria and Gaza has more than doubled in the past decade, with more than 200,000 people now living in some 150 communities. They work and play and hope and dream just like the rest of us.

Israel's settlements matter, then, because they are at the forefront of righting a historical wrong, one in which Jews were previously barred from living in their ancestral homeland due to Arab rejectionism and hatred. But as the American people so bravely demonstrated in the aftermath of Sept. 11, the best response to one's mortal foes is to go right on living. And building. And that is what the Jews of Israel will undoubtedly continue to do as well.

(Michael Freund is an editorial writer and syndicated columnist for the Jerusalem Post.)

Source: www.suntimes.com/output/otherviews/cst-edt-ref15.html

Even the Qur'an says that God gave the Land of Israel to the Jews !

It [the Qur'an] "is a guide for the righteous, who have faith in the unseen and are steadfast in prayer"

 [Qur'an: Sura 2, "The Cow", verse 2]


 It [the Qur'an] is "a confirmation of previous scriptures" (i.e., the Bible)

 [Qur'an: Sura 12, "Joseph", verse 112]


 "We [Muslims] believe in that which was revealed to us [the Qur'an] and that which was revealed to you [the Torah]. Our God and your God is one. To Him we surrender ourselves".

 [Qur'an: Sura 29, "The Spider", verse 47]

 "Enter, My People, the Holy Land which Allah has assigned for you. Do not turn back, or you shall be ruined".

 [Qur'an: Sura 5, "The Table, verse 21]

 "We [Allah] settled the Israelites in a blessed land and provided them with good things".

 [Qur'an: Sura 10, "Jonah", verse 93]


 "Pharoah sought to scare them [the Jews] out of the land [of Israel]: but We [Allah] drowned him, together with all who were with him. Then We said to the Israelites: 'Dwell in this land. When the promise of the hereafter comes to be fulfilled, We shall assemble you all together [in the Land of Israel in the End of Days]".

 [Qur'an: Sura 17, "The Night Journey", verse 103]

 "it was Our [Allah's] will to favour those who were oppressed [the Jews] and to make them leaders of mankind, to bestow on them a noble heritage and to give them power in the land [of Israel]: and to inflict on Pharoah, Haman, and their army, the very scourge dreaded by their victims".

 [Qur'an: Sura 28, "The Story", verses 5-6]

 "We [Allah] gave the persecuted people [the Jews] dominion over the eastern and western lands which We had blessed [the east and west banks of the Jordan River]. Thus your Lord's gracious word was fulfilled for the Israelites,because they had endured with fortitude; and We destroyed the edifices and towers of Pharoah and his people".

 [Qur'an: Sura 7, "The Heights", verse 137]

 "To Moses We gave the Scriptures, a perfect code for the righteous, with precepts about all things, and a guide and a blessing, so that his people might believe in the ultimate meeting with their Lord".

 [Qur'an: Sura 6, "Cattle", verse 155]

 "tell of Our servants Abraham, Isaac and Jacob: men of might and vision whom We made pure with the thought of the hereafter. They shall dwell with Us among the righteous whom We have chosen".

 [Qur'an: Sura 38, "Sad", verse 46]

 "Glory be to Him [Allah] who made His servants [Muhammed and El Burak] go by night from the Sacred Temple [of Mecca] to the farther Temple [of Jerusalem], whose surroundings We have blessed, that We might show him some of Our signs. He [Allah] alone hears all and observes all. We [Allah] gave Moses the Scriptures and made them a guide for the Israelites, saying, 'Take no other guardian than Myself. You are the descendants of those whom We carried in the Ark with Noah. He was a truly thankful servant'".

 [Qur'an: Sura 17, "The Night Journey", verses 1-3]


 "We gave the Scriptures to the Israelites and bestowed on them wisdom and prophethood. We provided them with good things and exalted them above the nations".

 [Qur'an: Sura 45, "Kneeling", verses 16-17]
 "There is guidance, and there is light, in the Torah which We [Allah] have revealed. By it the prophets who surrendered themselves to Allah judged the Jews, and so did the rabbis and the divines; they gave judgement according to Allah's scriptures which had been committed to their keeping and to which they were witnesses".

 [Qur'an: Sura 5, "The Table", verses 44-45]

Historical Approach to the Issue of Legality of Jewish Settlement Activity  by the Late Eugene W. Rostow  US Undersecretary of State for Political Affairs between 1966 and 1969. This article appeared in The New Republic on April 23, 1990

The Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of Israel was created. The Mandate for Palestine differs in one important respect from the other League of Nations mandates, which were trusts for the benefit of the indigenous population. The Palestine Mandate, recognizing "the historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home in that country," is dedicated to "the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing nonjewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country." The Mandate qualifies the Jewish right of settlement and political development in Palestine in only one respect. Article 25 gave Great Britain and the League Council discretion to "postpone" or "withhold" the Jewish people's right of settlement in the TransJordanian province of Palestine-now the Kingdom of Jordan-if they decided that local conditions made such action desirable. With the divided support of the council, the British took that step in 1922. The Mandate does not, however, permit even a temporary suspension of the Jewish right of settlement in the parts of the Mandate west of the Jordan River. The Armistice Lines of 1949, which are part of the West Bank boundary, represent nothing but the position of the contending armies when the final cease-fire was achieved in the War of Independence. And the Armistice Agreements specifically provide, except in the case of Lebanon, that the demarcation lines can be changed by agreement when the parties move from armistice to peace. Resolution 242 is based on that provision of the Armistice Agreements and states certain criteria that would justify changes in the demarcation lines when the parties make peace. Many believe that the Palestine Mandate was somehow terminated in 1947, when the British government resigned as the mandatory power. This is incorrect. A trust never terminates when a trustee dies, resigns, embezzles the trust property, or is dismissed. The authority responsible for the trust appoints a new trustee, or otherwise arranges for the fulfillment of its purpose. Thus in the case of the Mandate for German South West Africa, the International Court of justice found the South African government to be derelict in its duties as the mandatory power, and it was deemed to have resigned. Decades of struggle and diplomacy then resulted in the creation of the new state of Namibia, which has just come into being. In Palestine the British Mandate ceased to be operative as to the territories of Israel and Jordan when those states were created and recognized by the international community. But its rules apply still to the West Bank and the Gaza Strip, which have not yet been allocated either to Israel or to Jordan or become an independent state. Jordan attempted to annex the West Bank in 1951, but that annexation was never generally recognized, even by the Arab states, and now Jordan has abandoned all its claims to the territory. The State Department has never denied that under the Mandate "the Jewish people" have the right to settle in the area. Instead, it said that Jewish settlements in the West Bank violate Article 49 of the Fourth Geneva Convention of 1949, which deals with the protection of civilians in wartime. Where the territory of one contracting party is occupied by another contracting party, the Convention prohibits many of the inhumane practices of the Nazis and the Soviets before and during the Second World War-the mass transfer of people into or out of occupied territories for purposes of extermination, slave labor, or colonization, for example. Article 49 provides that the occupying power "shall not deport or transfer part of its own civilian population into the territory it occupies." But the Jewish settlers in the West Bank are volunteers. They have not been "deported" or "transferred" by the government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population the Geneva Convention was designed to prevent. Furthermore, the Convention applies only to acts by one signatory "carried out on the territory of another." The West Bank is not the territory of a signatory power, but an unallocated part of the British Mandate. It is hard, therefore, to see how even the most literal-minded reading of the Convention could make it apply to Jewish settlement in territories of the British Mandate west of the Jordan River. Even if the Convention could be construed to prevent settlements during the period of occupation, however, it could do no more than suspend, not terminate, the rights conferred by the Mandate. Those rights can be ended only by the establishment and recognition of a new state or the incorporation of the territories into an old one. As claimants to the territory, the Israelis have denied that they are required to comply with the Geneva Convention but announced that they will do so as a matter of grace. The Israeli courts apply the Convention routinely, sometimes deciding against the Israeli government. Assuming for the moment the general applicability of the Convention, it could well be considered a violation if the Israelis deported convicts to the area or encouraged the settlement of people who had no right to live there (Americans, for example). But how can the Convention be deemed to apply to Jews who have a right to settle in the territories under international law: a legal right assured by treaty and specifically protected by Article 80 of the U.N. Charter, which provides that nothing in the Charter shall be construed "to alter in any manner" rights conferred by existing international instruments" like the Mandate? The Jewish right of settlement in the area is equivalent in every way to the right of the existing Palestinian population to live there. Another principle of international law may affect the problem of the Jewish settlements. Under international law, an occupying power is supposed to apply the prevailing law of the occupied territory at the municipal level unless it interferes with the necessities of security or administration or is "repugnant to elementary conceptions of justice." From 1949 to 1967, when Jordan was the military occupant of the West Bank, it applied its own laws to prevent any Jews from living in the territory. To suggest that Israel as occupant is required to enforce such Jordanian laws-a necessary implication of applying the Convention-is simply absurd. When the Allies occupied Germany after the Second World War, the abrogation of the Nuremberg Laws was among their first acts. The general expectation of international law is that military occupations last a short time, and are succeeded by a state of peace established by treaty or otherwise. In the case of the West Bank, the territory was occupied by Jordan between 1949 and 1967, and has been occupied by Israel since 1967. Security Council Resolutions 242 and 338 rule that the Arab states and Israel must make peace, and that when "a just and lasting peace" is reached in the Middle East, Israel should withdraw from some but not all of the territory it occupied in the course of the 1967 war. The Resolutions leave it to the parties to agree on the terms of peace. The controversy about Jewish settlements in the West Bank is not, therefore, about legal rights but about the political will to override legal rights. Is the United States prepared to use all its influence in Israel to award the whole of the West Bank to Jordan or to a new Arab state, and force Israel back to its 1967 borders? Throughout Israel's occupation, the Arab countries, helped by the United States, have pushed to keep Jews out of the territories, so that at a convenient moment, or in a peace negotiation, the claim that the West Bank is "Arab" territory could be made more plausible. Some in Israel favor the settlements for the obverse reason: to reinforce Israel's claim for the fulfillment of the Mandate and of Resolution 242 in a peace treaty that would at least divide the territory. For the international community, the issue is much deeper and more difficult: whether the purposes of the Mandate can be considered satisfied if the Jews finally receive only the parts of Palestine behind the Armistice Lines-less than 17.5 percent of the land promised them after the First World War. The extraordinary recent changes in the international environment have brought with them new diplomatic opportunities for the United States and its allies, not least in the Middle East. Soviet military aid apparently is no longer available to the Arabs for the purpose of making another war against Israel. The intifada has failed, and the Arabs' bargaining position is weakening. It now may be possible to take long steps toward peace. But to do so, the participants in the Middle East negotiations- the United States, Israel, Egypt, and the PLO- will have to look beyond the territories.

Legal Rights and Title of Sovereignty of the Jewish People
to the Land of Israel and Palestine under International Law

by Howard Grief

The objective of this paper is to set down in a brief, yet clear and precise manner the legal rights and title of sovereignty of the Jewish people to the Land of Israel and Palestine under international law. These rights originated in the global political and legal settlement, conceived during World War I and carried into execution in the post-war years between 1919 and 1923. Insofar as the Ottoman Turkish Empire was concerned, the settlement embraced the claims of the Zionist Organization, the Arab National movement, the Kurds, the Assyrians and the Armenians.

As part of the settlement in which the Arabs received most of the lands formerly under Turkish sovereignty in the Middle East, the whole of Palestine, on both sides of the Jordan, was reserved exclusively for the Jewish people as their national home and future independent state.

Under the terms of the settlement that were made by the Principal Allied Powers consisting of Britain, France, Italy and Japan, there would be no annexation of the conquered Turkish territories by any of the Powers, as had been planned in the secret Sykes-Picot Agreement of May 9 and 16, 1916. Instead, these territories, including the peoples for whom they were designated, would be placed under the Mandates System and administered by an advanced nation until they were ready to stand by themselves. The Mandates System was established and governed by Article 22 of the Covenant of the League of Nations, contained in the Treaty of Versailles and all the other peace treaties made with the Central Powers – Germany, Austria-Hungary, Bulgaria and Turkey. The Covenant was the idea of US President Woodrow Wilson and contained in it his program of Fourteen Points of January 8, 1918, while Article 22 which established the Mandates System, was largely the work of Jan Christiaan Smuts who formulated the details in a memorandum that became known as the Smuts Resolution, officially endorsed by the Council of Ten on January 30, 1919, in which Palestine as envisaged in the Balfour Declaration was named as one of the mandated states to be created. The official creation of the country took place at the San Remo Peace Conference where the Balfour Declaration was adopted by the Supreme Council of the Principal Allied Powers as the basis for the future administration of Palestine which would henceforth be recognized as the Jewish National Home.

The moment of birth of Jewish legal rights and title of sovereignty thus took place at the same time Palestine was created a mandated state, since it was created for no other reason than to reconstitute the ancient Jewish state of Judea in fulfillment of the Balfour Declaration and the general provisions of Article 22 of the League Covenant. This meant that Palestine from the start was legally a Jewish state in theory that was to be guided towards independence by a Mandatory or Trustee, also acting as Tutor, and who would take the necessary political, administrative and economic measures to establish the Jewish National Home. The chief means for accomplishing this was by encouraging large-scale Jewish immigration to Palestine, which would eventually result in making Palestine an independent Jewish state, not only legally but also in the demographic and cultural senses.

The details for the planned independent Jewish state were set forth in three basic documents, which may be termed the founding documents of mandated Palestine and the modern Jewish state of Israel that arose from it. These were the San Remo Resolution of April 25, 1920, the Mandate for Palestine conferred on Britain by the Principal Allied Powers and confirmed by the League of Nations on July 24, 1922, and the Franco-British Boundary Convention of December 23, 1920. These founding documents were supplemented by the Anglo-American Convention of December 3, 1924 respecting the Mandate for Palestine. It is of supreme importance to remember always that these documents were the source or well-spring of Jewish legal rights and title of sovereignty over Palestine and the Land of Israel under international law, because of the near-universal but completely false belief that it was the United Nations General Assembly Partition Resolution of November 29, 1947 that brought the State of Israel into existence. In fact, the UN resolution was an illegal abrogation of Jewish legal rights and title of sovereignty to the whole of Palestine and the Land of Israel, rather than an affirmation of such rights or progenitor of them.

The San Remo Resolution converted the Balfour Declaration of November 2, 1917 from a mere statement of British policy expressing sympathy with the goal of the Zionist movement to create a Jewish state into a binding act of international law that required specific fulfillment by Britain of this object in active cooperation with the Jewish people. Under the Balfour Declaration as originally issued by the British government, the latter only promised to use their best endeavors to facilitate the establishment in Palestine of a national home for the Jewish people. But under the San Remo Resolution of April 24-25, 1920, the Principal Allied Powers as a cohesive group charged the British government with the responsibility or legal obligation of putting into effect the Balfour Declaration. A legal onus was thus placed on Britain to ensure that the Jewish National Home would be duly established. This onus the British Government willingly accepted because at the time the Balfour Declaration was issued and adopted at the San Remo Peace Conference, Palestine was considered a valuable strategic asset and communications center, and so a vital necessity for protecting far-flung British imperial interests extending from Egypt to India. Britain was fearful of having any major country or power other than itself, especially France or Germany, positioned alongside the Suez Canal.

The term “Jewish National Home” was defined to mean a state by the British government at the Cabinet session which approved the Balfour Declaration on October 31, 1917. That was also the meaning originally given to this phrase by the program committee which drafted the Basel Program at the first Zionist Congress in August 1897 and by Theodor Herzl, the founder of the Zionist Organization. The word “home” as used in the Balfour Declaration and subsequently in the San Remo Resolution was simply the euphemism for a state originally adopted by the Zionist Organization when the territory of Palestine was subject to the rule of the Ottoman Empire, so as not to arouse the sharp opposition of the Sultan and his government to the Zionist aim, which involved a potential loss of this territory by the Empire. There was no doubt in the minds of the authors of the Basel Program and the Balfour Declaration regarding the true meaning of this word, a meaning reinforced by the addition of the adjective “national” to “home”. However, as a result of not using the word “state” directly and proclaiming that meaning openly or even attempting to hide its true meaning when it was first used to denote the aim of Zionism, ammunition was provided to those who sought to prevent the emergence of a Jewish state or who saw the Home only in cultural terms.

The phrase “in Palestine”, another expression found in the Balfour Declaration that generated much controversy, referred to the whole country, including both Cisjordan and Transjordan. It was absurd to imagine that this phrase could be used to indicate that only a part of Palestine was reserved for the future Jewish National Home, since both were created simultaneously and used interchangeably, with the term “Palestine” pointing out the geographical location of the future independent Jewish state. Had “Palestine” meant a partitioned country with certain areas of it set aside for Jews and others for Arabs, that intention would have been stated explicitly at the time the Balfour Declaration was drafted and approved and later adopted by the Principal Allied Powers. No such allusion was ever made in the prolonged discussions that took place in fashioning the Declaration and ensuring it international approval.

There is therefore no juridical or factual basis for asserting that the phrase “in Palestine” limited the establishment of the Jewish National Home to only a part of the country. On the contrary, Palestine and the Jewish National Home were synonymous terms, as is evidenced by the use of the same phrase in the second half of the Balfour Declaration which refers to the existing non-Jewish communities “in Palestine”, clearly indicating the whole country. Similar evidence exists in the preamble and terms of the Mandate Charter.

The San Remo Resolution on Palestine combined the Balfour Declaration with Article 22 of the League Covenant. This meant that the general provisions of Article 22 applied to the Jewish people exclusively, who would set up their home and state in Palestine. There was no intention to apply Article 22 to the Arabs of the country, as was mistakenly concluded by the Palestine Royal Commission which relied on that article of the Covenant as the legal basis to justify the partition of Palestine, apart from the other reasons it gave. The proof of the applicability of Article 22 to the Jewish people, including not only those in Palestine at the time, but those who were expected to arrive in large numbers in the future, is found in the Smuts Resolution, which became Article 22 of the Covenant. It specifically names Palestine as one of the countries to which this article would apply. There was no doubt that when Palestine was named in the context of Article 22, it was linked exclusively to the Jewish National Home, as set down in the Balfour Declaration, a fact everyone was aware of at the time, including the representatives of the Arab national movement, as evidenced by the agreement between Emir Feisal and Dr. Chaim Weizmann dated January 3, 1919 as well as an important letter sent by the Emir to future US Supreme Court Justice Felix Frankfurter dated March 3, 1919. In that letter, Feisal characterized as “moderate and proper” the Zionist proposals presented by Nahum Sokolow and Weizmann to the Council of Ten at the Paris Peace Conference on February 27, 1919, which called for the development of Palestine into a Jewish commonwealth with extensive boundaries. The argument later made by Arab leaders that the Balfour Declaration and the Mandate for Palestine were incompatible with Article 22 of the Covenant is totally undermined by the fact that the Smuts Resolution – the precursor of Article 22 – specifically included Palestine within its legal framework.

The San Remo Resolution on Palestine became Article 95 of the Treaty of Sevres which was intended to end the war with Turkey, but though this treaty was never ratified by the Turkish National Government of Kemal Ataturk, the Resolution retained its validity as an independent act of international law when it was inserted into the Preamble of the Mandate for Palestine and confirmed by 52 states. The San Remo Resolution is the base document upon which the Mandate was constructed and to which it had to conform. It is therefore the pre-eminent foundation document of the State of Israel and the crowning achievement of pre-state Zionism. It has been accurately described as the Magna Carta of the Jewish people. It is the best proof that the whole country of Palestine and the Land of Israel belong exclusively to the Jewish people under international law.

The Mandate for Palestine implemented both the Balfour Declaration and Article 22 of the League Covenant, i.e. the San Remo Resolution. All four of these acts were building blocks in the legal structure that was created for the purpose of bringing about the establishment of an independent Jewish state. The Balfour Declaration in essence stated the principle or object of a Jewish state. The San Remo Resolution gave it the stamp of international law. The Mandate furnished all the details and means for the realization of the Jewish state. As noted, Britain’s chief obligation as Mandatory, Trustee and Tutor was the creation of the appropriate political, administrative and economic conditions to secure the Jewish state. All 28 articles of the Mandate were directed to this objective, including those articles that did not specifically mention the Jewish National Home. The Mandate created a right of return for the Jewish people to Palestine and the right to establish settlements on the land throughout the country in order to create the envisaged Jewish state.

In conferring the Mandate for Palestine on Britain, a contractual bond was created between the Principal Allied Powers and Britain, the former as Mandator and the latter as Mandatory. The Principal Allied Powers designated the Council of the League of Nations as the supervisor of the Mandatory to ensure that all the terms of the Mandate Charter would be strictly observed. The Mandate was drawn up in the form of a Decision of the League Council confirming the Mandate rather than making it part of a treaty with Turkey signed by the High Contracting Parties, as originally contemplated. To ensure compliance with the Mandate, the Mandatory had to submit an annual report to the League Council reporting on all its activities and the measures taken during the preceding year to realize the purpose of the Mandate and for the fulfillment of its obligations. This also created a contractual relationship between the League of Nations and Britain.

The first drafts of the Mandate for Palestine were formulated by the Zionist Organization and were presented to the British delegation at the Paris Peace Conference in 1919. The content, style and mold of the Mandate was thus determined by the Zionist Organization. The British Peace Delegation at the Conference produced a draft of their own and the two then cooperated in formulating a joint draft. This cooperation which took place while Arthur James Balfour was Foreign Minister came to an end only after Lord Curzon, the Foreign Secretary who replaced Balfour on October 24, 1919, took personal charge of the Mandate drafting process in March 1920. He shut out the Zionist Organization from further direct participation in the actual drafting, but the Zionist leader, Chaim Weizmann, was kept informed of new changes made in the Draft Mandate and allowed to comment on them. The changes engineered by Curzon watered down the obvious Jewish character of the Mandate, but did not succeed in suppressing its aim – the creation of a Jewish state. The participation of the Zionist Organization in the Mandate drafting process confirmed the fact that the Jewish people were the exclusive beneficiary of the national rights enshrined in the Mandate. No Arab party was ever consulted regarding its views on the terms of the Mandate prior to the submission of this instrument to the League Council for confirmation, on December 6, 1920. By contrast, the civil and religious rights of all existing religious communities in Palestine, whether Moslem or Christian, were safeguarded, as well as the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion. The rights of Arabs, whether as individuals or as members of religious communities, but not as a nation, were therefore legally assured. In addition, no prejudice was to be caused to their financial and economic position by the expected growth of the Jewish population.

It was originally intended that the Mandate Charter would delineate the boundaries of Palestine, but that proved to be a lengthy process involving negotiations with France over the northern and northeastern borders of Palestine with Syria. It was therefore decided to fix these boundaries in a separate treaty, which was done in the Franco-British Boundary Convention of December 23, 1920. The borders were based on a formula first put forth by the British Prime Minister David Lloyd George when he met his French counterpart, Georges Clemenceau, in London on December 1, 1918 and defined Palestine as extending from the ancient towns of Dan to Beersheba. This definition was immediately accepted by Clemenceau, which meant that Palestine would have the borders that included all areas of the country settled by the Twelve Tribes of Israel during the First Temple Period, embracing historic Palestine both east and west of the Jordan River. The very words “from Dan to Beersheba” implied that the whole of Jewish Palestine would be reconstituted as a Jewish state. Though the San Remo Resolution did not specifically delineate the borders of Palestine, it was understood by the Principal Allied Powers that this formula would be the criterion to be used in delineating them. However, when the actual boundary negotiations began after the San Remo Peace Conference, the French illegally and stubbornly insisted on following the defunct Sykes-Picot line for the northern border of Palestine, accompanied by Gallic outbursts of anti-Semitic and anti-Zionist sentiments, though they agreed to extend this border to include the Galilee but not any of the water sources from the Litani valley and the land adjoining it. As a result, some parts of historic Palestine in the north and northeast were illegally excluded from the Jewish National Home. The 1920 Boundary Convention was amended by another British-French Agreement respecting the boundary line between Syria and Palestine dated February 3, 1922, which took effect on March 10, 1923. It illegally removed the portion of the Golan that had previously been included in Palestine in the 1920 Convention, in exchange for placing the Kinneret (Sea of Galilee) wholly within the bounds of the Jewish National Home, and made other small territorial adjustments. The British and French negotiators had no legal right to remove or exclude any “Palestine territory” from the limits of Palestine, but could only ensure that all such territory was included. The exchange of “Palestine territory” for other “Palestine territory” between Britain and France was therefore prohibited as a violation of the Lloyd George formula accepted at the San Remo Peace Conference.

The 1920 Convention also included Transjordan in the area of the Jewish National Home, but a surprise last-minute intervention by the US government unnecessarily delayed the confirmation of the pending Mandate. This gave an unexpected opportunity to Winston Churchill, the new Colonial Secretary placed in charge of the affairs of Palestine, to change the character of the Mandate: first, by having a new article inserted (Article 25) which allowed for the provisional administrative separation of Transjordan from Cisjordan; second, by redefining the Jewish National Home to mean not an eventual independent Jewish state but limited to a cultural or spiritual center for the Jewish people. These radical changes were officially introduced in the Churchill White Paper of June 3, 1922 and led directly to the sabotage of the Mandate. Thereafter, the British never departed from the false interpretation they gave to the Jewish National Home which ended all hope of achieving the envisaged Jewish state under their auspices.

The question of which state, nation or entity held sovereignty over a mandated territory sparked great debate throughout the Mandate period, and no definitive answer was ever given. That is extremely surprising because the Treaty of Versailles, signed on June 28, 1919 and ratified on January 10, 1920, stated flatly in Article 22 that the states which formerly governed those territories which were subsequently administered by a Mandatory had lost their sovereignty as a consequence of World War I. That meant that Germany no longer had sovereignty over its former colonies in Africa and the Pacific, while Turkey no longer had sovereignty over its possessions in the Middle East, prior to the signing of the Treaty of Versailles. The date when the change of sovereignty occurred could only have been on January 30, 1919, the date when it was irrevocably decided by the Council of Ten in adopting the Smuts Resolution, that none of the ex-German and ex-Turkish territories would be returned to their former owners. These territories were then placed in the collective hands of the Principal Allied and Associated Powers for their disposition. In the case of Palestine, that decision was made in favor of the Jewish people at the session of the San Remo Peace Conference that took place on April 24, 1920 when the Balfour Declaration was adopted as the reason for creating and administering the new country of Palestine that, until then, had had no official existence. Inasmuch as the Balfour Declaration was made in favor of the Jewish people, it was the latter upon whom de jure sovereignty was devolved over all of Palestine. However, during the Mandate period, the British government and not the Jewish people exercised the attributes of sovereignty, while sovereignty in the purely theoretical or nominal sense (i.e. de jure sovereignty) remained vested in the Jewish people. This state of affairs was reflected in the Mandate Charter where the components of the title of sovereignty of the Jewish people over Palestine are specifically mentioned in the first three recitals of the Preamble, namely, Article 22, the Balfour Declaration and the historical connection of the Jewish people with Palestine. These three components of the title of sovereignty were the grounds for reconstituting the Jewish National Home in Palestine as specifically stated in the third recital of the Preamble. On the other hand, since the Jewish people were under the tutelage of Great Britain during the Mandate Period, it was the latter which exercised the attributes of Jewish sovereignty over Palestine, as confirmed by Article 1 of the Mandate, which placed full powers of legislation and of administration in the hands of the Mandatory, save as they may be limited by the terms of the Mandate.

This situation continued so long as the Mandate was in force and the Jewish people living in Palestine were not able to stand alone and hence not able to exercise the sovereignty awarded them by the Principal Allied Powers under international law.

The decisive moment of change came on May 14, 1948 when the representatives of the Jewish people in Palestine and of the Zionist Organization proclaimed the independence of a Jewish state whose military forces held only a small portion of the territory originally allocated for the Jewish National Home. The rest of the country was in the illegal possession of neighboring Arab states who had no sovereign rights over the areas they illegally occupied, that were historically a part of Palestine and the Land of Israel and were not meant for Arab independence or the creation of another Arab state. It is for this reason that Israel, which inherited the sovereign rights of the Jewish people over Palestine, has the legal right to keep all the lands it liberated in the Six Day War that were either included in the Jewish National Home during the time of the Mandate or formed integral parts of the Land of Israel that were illegally detached from the Jewish National Home when the boundaries of Palestine were fixed in 1920 and 1923. For the same reason, Israel cannot be accused by anyone of “occupying” lands under international law that were clearly part of the Jewish National Home or the Land of Israel. Thus the whole debate today that centers on the question of whether Israel must return “occupied territories” to their alleged Arab owners in order to obtain peace is one of the greatest falsehoods of international law and diplomacy.

The most amazing development concerning the question of sovereignty over Palestine is that the State of Israel, when it finally had an opportunity to exercise its sovereignty over all of the country west of the Jordan, after being victorious in the Six Day War of June 5-10, 1967, did not do so – except in the case of Jerusalem. The Knesset did, however, pass an amendment to the Law and Administration Ordinance of 1948, adding Section 11B, which allowed for that possibility and was premised on the idea that Israel possessed such sovereignty. Israel did not even enforce the existing law on sovereignty passed by the Ben Gurion government in September 1948, known as the Area of Jurisdiction and Powers Ordinance, which required it to incorporate immediately any area of the Land of Israel which the Minister of Defense had defined by proclamation as being held by the Defense Army of Israel.

Israel’s legal rights and title of sovereignty over all of the Land of Israel – specifically in regard to Judea, Samaria and Gaza – suffered a severe setback when the Government of Prime Minister Menahem Begin approved the Camp David Framework Agreement for Peace in the Middle East, under which it was proposed that negotiations would take place to determine the “final status” of those territories. The phrase “final status” was a synonym for the word “sovereignty”. It was inexcusable that neither Begin nor his legal advisers, including Aharon Barak, the future President of the Israel Supreme Court, knew that sovereignty had already been vested in the Jewish people and hence the State of Israel many years before, at the San Remo Peace Conference. The situation became much worse, reaching the level of treason when the Government of Prime Minister Yitzhak Rabin signed the Declaration of Principles (DOP) with the Palestine Liberation Organization (PLO) and agreed to give it about 90% or more of Judea and Samaria and most of Gaza over a five-year transitional period in order to “achieve a just, lasting and comprehensive peaceful settlement and historic reconciliation through the agreed political process” with the Arabs of Palestine. The illegal surrender of territory to the “Palestinian Authority” originally called the “Council” in Article IV of the DOP was hidden by the use of the word “jurisdiction” instead of “sovereignty” in that article. Further dissimulation was shown by the sanitized reference to “redeployment of Israeli military forces in Judea, Samaria and the Gaza Strip” to disguise the illegal act of transferring parts of the Jewish National Home to the PLO. A spade was not called a spade.

To understand why even the State of Israel does not believe in its own title of sovereignty over what are wrongfully termed “occupied territories” even by leading politicians and jurists in Israel, it is necessary to locate the causes in the Mandate period:

1. The non-ratification of the Treaty of Sevres of August 10, 1920 with Turkey which contained the San Remo Resolution on Palestine and the non-inclusion of this Resolution in the Treaty of Lausanne of July 24, 1923. This gave the wrong impression that the legal status of Palestine as a whole was never settled definitively as being the Jewish National Home under international law and that Turkey did not lose its sovereignty until the signing of this latter treaty.


2. The non-enforcement of most of the terms of the Mandate within Palestine itself, according to their true intent and meaning, by both the British government and the British-administered judiciary which servilely served the former to the point of misfeasance.


3. The deliberate misinterpretation of the meaning of the Mandate by the British government to include obligations of equal weight which it supposedly had undertaken in favor of the Arabs of Palestine, when in actual fact no such obligations ever existed, particularly the obligation to develop self-governing institutions for their benefit, which – on the contrary – were meant for the Jewish National Home.


4. The issuance of several White Papers beginning with the Churchill White Paper of June 3, 1922 and culminating with the Malcolm MacDonald White Paper of May 17, 1939, whose effect was to nullify the fundamental terms of the Mandate and prevent a Jewish state covering the whole of Palestine from ever coming into being during the British administration of the country. What the British essentially did in governing Palestine was to implement their false interpretations of the Mandate rather than its plain language and meaning. This turned the Mandate Charter upside down and made its aim of a Jewish state unrealizable.


5. The illegal introduction of Article 25 into the Mandate Charter that after its application on September 16, 1922 led to the dislocation of Transjordan from the Jewish National Home and also had a deleterious influence on the administration of Cisjordan by encouraging the false idea that Arab national rights existed not only in the severed part of the Jewish National Home across the Jordan, but in the remaining part as well.

The end result of British sabotage, misinterpretation, distortion and outright denial of what the Mandate stood for was that Jewish legal rights and title of sovereignty over the whole of Palestine as originally envisaged in the San Remo Resolution and the Mandate became so blurred, obfuscated and confused by the time the Mandate ended that it was no longer understood or held to be true. Not even the legal experts of the Jewish Agency for Palestine and the Zionist Organization asserted Jewish sovereignty over the whole country in any official paper or memorandum submitted to the British government or to the League of Nations.

The mutilation of the Mandate Charter was continued by the United Nations when this new world organization considered the question of Palestine. On August 31, 1947, the United Nations Special Committee on Palestine (UNSCOP) proposed an illegal partition plan which recognized Arab national rights in western Palestine, specifically in the areas of western Galilee, Judea, Samaria, the southern coastal plain from Ashdod to the Egyptian frontier and a portion of the western Negev including Beersheba and what became Eilat. It apparently did not occur to the members of the Committee representing 11 states headed by Swedish Chief Justice Emil Sandstrom, that the UN did not have the legal authority to partition the country in favor of the Arabs of Palestine who were not the national beneficiary of the Mandate entitled to self-determination. The trampling of the legal rights of the Jewish people to the whole of Palestine by the United Nations was in clear violation of the Mandate which forbade partition and also Article 80 of the UN Charter which, in effect, prevented the alteration of Jewish rights granted under the Mandate whether or not a trusteeship was set up to replace it, which could only be done by a prior agreement made by the states directly concerned. The illegal partition plan, with some territorial modifications made in the original majority plan presented by UNSCOP, was then approved by the General Assembly on November 29, 1947 as Resolution 181 (II). The Jewish Agency for Palestine, recoiling from the loss of six million Jews in the Holocaust and trying to salvage something from British misrule of Palestine, accepted this illegal Resolution. By doing so, it lent credence to the false idea that Palestine belonged to both Arabs and Jews, which was an idea foreign to the San Remo Resolution, the Mandate and the Franco-British Boundary Convention of December 23, 1920. The Jewish Agency should have relied on these three documents exclusively in declaring the Jewish state over all of Palestine, even if it was unable to control all areas of the country, following the example of what was done in Syria and Lebanon during World War II.

Another facet of the story that concerned the illegal denial of Jewish legal rights and title of sovereignty over Palestine was the attitude adopted by the United States government towards the infamous British White Paper of May 17, 1939. The United States agreed to the British administration of Palestine pursuant to the Mandate when it signed and ratified the Anglo-American Convention of December 3, 1924. This imposed a solemn obligation on the US government to protest any British violation of this treaty, which had repeated every word, jot and tittle of the Mandate Charter in the preamble of the Convention, regardless of whether the violation affected American rights or those of the Jewish people. Yet when the White Paper was issued in the year of 1939, the US government did not lift a finger to point out the blaring illegalities contained in the new statement of British policy that smashed to smithereens the Balfour Declaration and the Mandate, and brought immense joy to the Arab side. It accepted the incredible British contention that changes in the terms of the Mandate effected by the White Paper did not require American consent because no US rights or those of its nationals were impaired, an argument that was demonstrably false. This US passivity in the face of British perfidy, which was strongly denounced by the venerable David Lloyd George and even by Winston Churchill who had himself contributed to the betrayal of the Jewish people and their rights to Palestine, allowed the British government to get away with the highest violation of international law at the very moment when the Jewish people were about to suffer the greatest catastrophe in their history. There can be no doubt that the Holocaust could have largely been prevented or its effects greatly mitigated had the terms of the Mandate been duly implemented to allow for a massive influx of Jews to their national home.

American inaction against the British government was particularly unforgivable in view of the fact that the articles of the Mandate were a part of American domestic law and the US was the only state which could have forced the British to repudiate the malevolent White Paper and restore the right of the Jews of Europe to gain refuge in their homeland.

Both the Mandate and the Anglo-American Convention have ceased to exist. However, all the rights of the Jewish people that derive from the Mandate remain in full force. This is the consequence of the principle of acquired legal rights which, as applied to the Jewish people, means that the rights they acquired or were recognized as belonging to them when Palestine was legally created as the Jewish National Home are not affected by the termination of the treaty or the acts of international law which were the source of those rights. This principle already existed when the Anglo-American Convention came to an end simultaneously with the termination of the Mandate for Palestine on May 14-15, 1948. It has since been codified in Article 70(1)(b) of the 1969 Vienna Convention on the Law of Treaties. This principle of international law would apply even if one of the parties to the treaty failed to perform the obligations imposed on it, as was the case with the British government in regard to the Mandate for Palestine.

The reverse side of the principle of acquired legal rights is the doctrine of estoppel which is also of great importance in preserving Jewish national rights. This doctrine prohibits any state from denying what it previously admitted or recognized in a treaty or other international agreement. In the Convention of 1924, the United States recognized all the rights granted to the Jewish people under the Mandate, in particular the right of Jewish settlement anywhere in Palestine or the Land of Israel. Therefore the US government is legally estopped today from denying the right of Jews in Israel to establish settlements in Judea, Samaria and Gaza, which have been approved by the government of Israel. In addition, the United States is also debarred from protesting the establishment of these settlements because they are based on a right which became embedded in US domestic law after the 1924 Convention was ratified by the US Senate and proclaimed by President Calvin Coolidge on December 5, 1925. This convention has terminated, but not the rights granted under it to the Jewish people. The American policy opposing Jewish settlements in Judea, Samaria and Gaza is a fit subject for judicial review in US courts because it violates Jewish legal rights formerly recognized by the United States and which still remain part of its domestic law. A legal action to overturn this policy if it was to be adjudicated might also put an end to the American initiative to promote a so-called “Palestinian” state which would abrogate the existing right of Jewish settlement in all areas of the Land of Israel that fall under its illegal rule.

The gravest threat to Jewish legal rights and title of sovereignty over the Land of Israel still comes from the same source that has always fought the return of the Jews to their homeland, namely, the medley of Arabic-speaking Gentiles who inhabit the land alongside the Jews. They no longer call themselves Arabs or Syrians, but “Palestinians”. This has resulted in a switch of national identity. The Palestinians used to be the Jews during the Mandate Period, but the Arabs adopted the name after the Jews of Palestine established the State of Israel and began to be called Israelis. The use of the name “Palestinians” for Arabs did not take general hold until 1969 when the United Nations recognized the existence of this supposed new nation, and began passing resolutions thereafter affirming its legitimate and inalienable rights to Palestine. The whole idea that such a nation exists is the greatest hoax of the 20th century and continues unabated into the 21st century. This hoax is easily exposed by the fact that the “Palestinians” possess no distinctive history, language or culture, and are not essentially different in the ethnological sense from the Arabs living in the neighboring countries of Syria, Jordan, Lebanon and Iraq. The very name of the supposed nation is non-Arabic in origin and derives from Hebrew root letters. The Arabs of Palestine have no connection or relationship to the ancient Philistines from whom they have taken their new name.

It is a matter of the greatest irony and astonishment that the so-called Palestinian nation has received its greatest boost from Israel itself when it allowed a “Palestinian” administration to be set up in the areas of Judea, Samaria and Gaza under the leadership of Yasser Arafat.

The situation in which the Arabs of Palestine and the Land of Israel claim the same legal rights as the Jewish people violates the authentic international law that was created by the San Remo Resolution, the Mandate and the 1920 Franco-British Convention. It is part of the worldwide folly that has occurred since 1969 when the “Palestinian people” were first accorded international recognition, that authentic international law has been replaced by an ersatz international law composed of illegal UN Resolutions. The Fourth Geneva Convention of 1949 and the Hague Regulations of 1907 are acts of genuine international law, but they have no direct application or relevance to the legal status of Judea, Samaria and Gaza which are integral territories of the Jewish National Home and the Land of Israel under the sovereignty of the State of Israel. These acts would apply only to the Arab occupation of Jewish territories, as occurred between 1948 and 1967, and not to the case of Israeli rule over the Jewish homeland. The hoax of the Palestinian people and their alleged rights to the Land of Israel as well as the farce that results from citing pseudo-international law to support their fabricated case must be exposed and brought to an end.

The Arabs of the Land of Israel have ignited a terrorist war against Israel to recover what they consider to be their occupied homeland. Their aim is a fantasy based on a gross myth and lie that can never be satisfied, since that would mean the conversion of the Land of Israel into an Arab country. It is up to the government of Israel to take the necessary steps to remedy what has become an intolerable situation that threatens the Jewish people with the loss of their immutable rights to their one and only homeland.