04 Dec On the Legitimacy of the Settlements: A Legal and Historical Perspective
[Dr Lorenzo Kamel is Senior Fellow at IAI and Research Fellow at Harvard’s CMES]
It would seem unnecessary in 2015 to refer to the League of Nations or the Mandate for Palestine when discussing the legal status of the Palestinian territories. Yet, in recent years several scholars are resorting to these issues to provide a legal justification for the construction/enlargement of outposts/settlements and the indirect denial of the right of the Palestinian people to self-determination. This article aims to deconstruct these approaches and to shed light on the selective use of history and international law that underpins them.
The 89 pages of the Levy Report, released on 9 July 2012 by a special committee appointed in late January 2012 by PM Netanyahu to investigate whether the Israeli presence in the West Bank is to be considered an occupation or not, clarified that “with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter”.
In a video entitled “the Legal Case for Israel,” international lawyer Eugene Kontorovich pointed out that “up to 1948 all this area [present-day Israel and the Palestinian territories] was Palestine reserved as a Jewish State by the League of Nations Mandate […] the legality of the Mandate jurisprudence cannot be changed.” More in general and according to an interpretation held by a growing number of scholars and by most of Israel’s right-wing parties, the preamble as well as Article 2 of the Mandate secured the establishment of the Jewish National Home on, in Howard Grief’s words, “the whole country of Palestine, not a mere part of it.” (H. Grief, The Legal Foundation and Borders of Israel under International Law (Jerusalem: Mazo, 2008), p. 106.) It would follow that, as argued by the late Eugene Rostow, “the Jewish right of settlement in the whole of western Palestine – the area west of the Jordan – survived the British withdrawal in 1948”.
But to resort to the League of Nations and the British Mandate for Palestine might be counterproductive for those committed to finding legal justifications for the construction of outposts, or the enlargement of settlements, in the Palestinian territories. The term “national home,” in fact, had no mutually agreed-upon meaning or scope and the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions” and contained safeguards for the rights and position of the non-Jewish communities.
True, in 1919 prominent British official Jan Christiaan Smuts, a leading figure in Lloyd George’s War Cabinet and an open supporter of racial segregation, envisaged the rise of “a great Jewish State.” Lloyd Gorge himself pointed out that “it was contemplated that when the time arrived for according representative institutions in Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth”.
On the other hand, the first Attorney General of Palestine, “lifelong Zionist” Norman Bentwich, contended that “a national home, as distinguished from a state, is a country where a people are acknowledged as having a recognized legal position and the opportunity of developing their cultural, social and intellectual ideals without receiving political rights”.
This position was also consistent with the one expressed a few years earlier by the general secretary and future President of the Zionist Organization Nahum Sokolov. He represented the Zionist Organization at the 1919’s Paris Peace Conference, where made it clear that the
“object of Zionism is to establish for the Jewish people a home in Palestine secured by public law […] It has been said and is still being obstinately repeated by anti-Zionists again and again, that Zionism aims at the creation of an independent ‘Jewish State’. But this is wholly fallacious. The ‘Jewish State’ was never part of the Zionist programme. The Jewish State was the title of Herzl’s first pamphlet, which had the supreme merit of forcing people to think. This pamphlet was followed by the first Zionist Congress, which accepted the Basle programme – the only programme in existence.”
Hubert Young, an important figure of the Foreign Office, wrote in November 1920 that the commitment made by London “in respect of Palestine is the Balfour Declaration constituting it a National Home for the Jewish People.” Lord Curzon corrected him: ‘No. “Establishing a National Home in Palestine for the Jewish people” – a very different proposition.” (The National Archives [TNA] FO 371/5124. Curzon, 29 Nov. 1920. See L. Kamel, Imperial Perceptions of Palestine: British Influence and Power in Late Ottoman Times (London: I.B. Tauris, 2015).)
Many other at times contradicting points of view might be quoted. Speaking in front of the Peel Commission in 1937, Winston Churchill made it clear for instance that there was nothing in the definition of the “National Home” that might have precluded “the establishment of a Jewish State.” (Palestine Royal Commission: Command Paper 5479 of 1937.) As noted by Isaiah Friedman in his British Pan-Arab Policy, 1915-1922: “Whether [the first British High Commissioner for Palestine Herbert] Samuel had this ultimate aim in mind when conceiving his policy is dubious. But Churchill, as his response of the Peel Commission shows, did favour it. Throughout his career as Colonial Secretary, he adhered to his Zionist convictions.”
Whatever the opinion of anyone on the excerpts quoted up to this point, it must be stressed that they are nothing more than personal opinions coming mainly from pro-or-anti-Zionists, pro-or-anti-Arabs/Palestinians, anti-Semites, pro- imperial statesmen and so on. None of them has any legal value.
The first document that officially clarified the interpretation of the Mandate’s text (before its ratification) is the British White Paper of June 1922. It pointed out that the Balfour Declaration does “not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded ‘in Palestine’”. Furthermore, it stressed that the “Zionist congress” that took place in Carlsbad in September 1921 had officially accepted ‘the determination of the Jewish people to live with the Arab people on terms of unity and mutual respect, and together with them to make the common home into a flourishing community, the upbuilding of which may assure to each of its peoples an undisturbed national development.”
It is only in light of these clarifications that the preamble, and Article 2, of the Mandate can and should be understood. It is noteworthy that Zionist consent to the interpretation contained in the White Paper was requested and received before the Mandate was confirmed in July 1922. In Weizmann’s words: “It was made clear to us that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper [of 1922], and my colleagues and I therefore had to accept it, which we did, though not without some qualms.” (C. Weizmann, Trial and Error: The Autobiography of Chaim Weizmann (Westport: Greenwood, 1972), p. 208.)
The British Mandate for Palestine was approved on the basis of a clear understanding that sheds light on, and directly contradicts most of, the claims made at the beginning of this article.
Israel’s right to exist and to defend itself against terror and discrimination is something that any person interested in peace must support. Equally true is that the attempt to justify the construction of outposts or the enlargement of settlements in the Palestinian territories through a selective use of the League of Nations and its mandates system is a misleading and problematic approach that requires better public understanding.
To deconstruct these approaches is a precondition for any serious attempt to achieve a mutual understanding between Israelis and Palestinians.
Thanks for the post . The respectable author of the post , insist on : peaceful prospect for the region , and legal historical analysis . yet : In light of the principle of self determination, which doesn’t necessarily consist on historical perspective , then, the most important legal issues, rely on the following (and from then and on actually): 1) The United Nations General Assembly Resolution 181 ( November 29, 1947 ) adopted the following resolution , consisting on partition of the land to two states , here I quote : ” Independent Arab and Jewish States and the Special International Regime for the City of Jerusalem, set forth in Part III of this Plan, shall come into existence in Palestine two months after the evacuation of the armed forces of the mandatory Power has been completed but in any case not later than 1 October 1948. The boundaries of the Arab State, the Jewish State, and the City of Jerusalem shall be as described in Parts II and III below. ” And so, on one hand, the Jewish state or habitants, complied fully with it, and moreover, insisted on mutual respect and sustainable peace with their Arab neighbors,… Read more »
In any event, much has happened since — there is and will and must remain a state of Israel, a member of the United Nations, and for the majority of members, there is a state of Palestine. Further, for the vast majority of states, the U.N. S.C., the U.N. G.A., the I.C.J., the ICRC, and so forth, Israeli annexation of occupied territory is a war crime and Article 49, etc. of the 1949 Geneva Civilian Convention as well as articles of HC IV (1907) and customary laws of war have been violated with the infusion of Israeli persons into occupied territory. See Ten Types of Israeli and Palestinian Violations of the Laws of War and the ICC, available at http://ssrn.com/abstract=2658784
The two state paradigm is still the best hope for a new and lasting peace.
I’m not sure if I understand the point clearly. I mean, couldn’t the same point be used to question the legitimacy of the State of Israel itself rather than be limited to the settlements? Judging by the UNGA resolution 181, it seems like this is a bit counterproductive though taking into account how was the meaning of “Jewish National Home” understood is certainly useful. In any event, wasn’t the British Mandate legally terminated in 1948? Isn’t this reason enough for pointing out that Mr. Kontorovich’s point lacks relevance? It’s not like we are in 1945 and I don’t see why would the legal regime in place then have any relevance now. Perhaps the most convincing argument to provide for the legitimacy of Israeli settlements, if one were looking for reasons to find justifications for their existence, would be to point out that in many cases (such as in Hebron, Gush Etzion and East Jerusalem, most notably, but IIRC there were Jews living even in Gaza at some point of the British Mandate) there were Jews who lived and owned property there but who lost their property rights and were forced to leave as a result of communal tensions during the… Read more »
@ANON: – This article is clear in claiming that the legitimacy of both Israel and Palestine is rooted in much more solid ground than anything that might be argued in relation to the League of Nations (LoN), or the Mandate. But, and this is the main issue here, if anyone prefers instead to use the LoN and/or the Mandate for fostering political claims (like the settlements’ legitimacy), this can be done only in a non-selective way. – The symbolic case of the Gush Etzion block, in many respects unique, appears as the best possible example in support of what you (Anon) claim. The population settled in the block, where a small community of Jews arrived in 1927, was indeed expelled in the course of the 1948 war. However, all the settlements within the block, apart from Hadar Betar and Kfar Etzion, have expanded by more than 100% in the last 20 years. The block includes today also eight unauthorized outposts that further contribute to hinder the ability of Palestinians to access their natural resources. To conflate this massive state-funded project with “the reestablishment of a Jewish presence in the West Bank” risks to simplify a complex issue. – Mr. Kontorovich’s… Read more »
To be concise:
a) a claim of “The term “national home,” in fact, had no mutually agreed-upon meaning” is weak. For example, the US delegation to the 1919 Versailles Peace Conference understood the object as a “Jewish state” (http://myrightword.blogspot.co.il/2015/11/was-jewish-state-agenda-item-from.html).
b) all British statements weakening the view of a future Jewish state were made under pressure of Arab violence and therefore, the validity of such alterations in the original intent is questionable.
c) the act of restricting Jewish settlement east of the Jordan in 1922 (for the benefit of a Saudi Arabian who had invaded the area) was itself an apparent recognition that all the remaining territory was to become a Jewish state.
d) UN Article 80 grants the original Palestine Mandate a status.
I’m quite flattered that a basic talk I gave to college students several years ago merits continued academic attention. (By the way, the video if I recall omits the Q & A, where some of this was asked and answered).
I do have a scholarly response about the ongoing relevance of the Mandate, which relates to the uti possidetis doctrine and borders. The question of borders is of course entirely distinct from the “national home” question, but it is the question currently in political dispute. Prof. Avi Bell and I have a draft paper on this that should be up on SSRN in a few weeks, so hold your horses.
I should add that the Egyptians and Jordanians do not share Dr. Kamel’s views, as their peace treaties with Israel specify the Mandatory border as an international frontier.
I passed this along and received this response which I post here: “Obviously, there are reasonable arguments to be made on the question of whether the Palestine Mandate affects the rights of Jews to reside in the West Bank and “east” Jerusalem, and on the question of whether the Palestine Mandate affects the nature, scope and origin of a Palestinian right of self-determination. While I’m skeptical, I suppose that if one stretches, one might find a reason to relate these current arguments about the law to an 80-90 year old political debate about the meaning of the term “national home” in the Mandate. But Kamel has not made that stretch, or offered such a reason. He simply assumes the relationship, and then leaps to the conclusion, apropos of nothing, that the historical outcome of the “national home” debate is decisive to the modern legal questions. Whether anything lies behind Kamel’s unexplained assumption that the “national home” argument is important to understanding the current legal effects of the Mandate, I do not know. But I see no reason to accept the dubious conclusion that the meaning of “national home” is decisive on the questions of Jewish residence in the West Bank… Read more »
Mr. Medad, A) The opinion that you mentioned was expressed in the very same days of the one uttered in Paris by Nahum Sokolov (see above in the article). Better to have more opinions rather then less. They are legally irrelevant, but it is interesting to add more contradicting points of view to the ones already mentioned in the article. B) I would consider also the other angle: all British statements and actions regarding Palestine and its local majority were shaped by political purposes and under increasing pressure. Their original “meaning” was often influenced and changed. Winston Churchill, for instance, changed his approach many times, although he remained consistent in his way of considering the “stronger race” and the local “dogs”. In his words: “I do not agree that the dog in a manger has the final right to the manger even though he may have lain there for a very long time. I do not admit that right. I do not admit for instance, that a great wrong has been done to the Red Indians of America or the black people of Australia. I do not admit that a wrong has been done to these people by the fact… Read more »
Medad, “Whether anything lies behind Kamel”…”legal training”…ect: this is old style.
The person that wrote the post that you are pasting and copying missed the point. The historical outcome of the “national home” debate is not “decisive” to the modern legal and non-legal questions. If I understand correctly, the real issue here is not the debate on the “national home”. The issue is that different opinions were expressed, all valid and all irrelevant. The agreed, approved, Mandate is what it matters, and it clarified several aspects that contradict what you and others claim or imply (“up to 1948 all this area was Palestine reserved as a Jewish State by the League of Nations Mandate”). Your colleague makes confusion also regarding the fact that the issue here is related to “Jewish residence in the West Bank”, and not to a massive state-funded project.
PS
These are first and foremost historical facts with legal repercussions, not the other way round. Wrong understanding of historical facts brings wrong legal assumptions.
Mr Kamel: Firstly, I would like to thank you for your prompt response. I have 3 comments to make: 1) I agree, the legality of Israel’s existence as an independent state rests on more than just the Mandatory Charter. 2) While Gush Etzion is a special case, I would not go as far as to say it is unique – the same could be said about parts of the Jewish settlements in east Jerusalem and perhaps Hebron, at the very least. As you said, while the “return” angle risks to over simplify the issue, I also think that it would also be a simplification to disregard the possibility that some settlements may be legal while others may not. Of course, as I said and I hope we can both agree, Israel would never argue this before an international court because the widespread application of this argument would be clearly against its interests. That said, it does pose an interesting legal question in my view – at least with regards on the practical meaning of a “right to return”. And of course, it would also put the Palestinian position in a predicament, insofar the legality of all settlements is disputed. 3)… Read more »
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Opinio Juris » Blog Archive On the Legitimacy of the Settlements: A Legal and Historical Perspective – Opinio Juris
To AnswerMedad at 4:32 AM: sorry, but nothing is irrelevant in assessing the intentions of those powers who had the legal right to deal with the issue of former Ottoman Empire territory after said Empire declared war and lost. Back in 1917, three months after his declaration was issued, Lord Balfour confessed: “My personal hope is that the Jews will make good in Palestine and eventually found a Jewish state.” and that what was put into effect from Versailles to San Remo and on to Geneva. In addition to my note on the American thinking, I add that U.S. intelligence recommendations drafted for President Wilson at the 1919 Paris Peace Conference had the same impression: “It will be the policy of the League of Nations to recognize Palestine as a Jewish State as soon as it is a Jewish state in fact.” Furthermore, from San Remo to the League of Nations Mandate decision, it was clear that non-Jewish communities had no political rights whatsoever and the topic for deliberation, ,if any, was their personal and religious rights. as to your (c), you are unintelligible in that. as to your (d), let’s note another Article, 7, which reads “The Administration of… Read more »
The author ignores all evidence that the Jews did not want immediate statehood. Instead they wanted to place the collective political rights to self-determination in trust until a Jewish majority population would grow out of the Jewish efforts to improve the land. SSRN.com/abstract=2679399 , The Basic Equities of the Palestine Problem, Simon Rifkind, Jerome Frank, AbeFortas, Milton Handler.and four other distinguished jurists. If you read the resolution and the Palestine Mandate you will see they are placing the collective right to self-determination in trust. A trust lives on even though a trustee resigns until the trust res vests. This trust res vested in two parts, the first part in 1948, the remainder in 1967. On the night before the San Remo Resolution was agreed on, the French wanted to change the savings clause to save political rights for the non-Jewish communities. The others refused and it was not done. See also, A Jewish Palestine: the Jewish case for a British trusteeship by Harry Sacher.. The Principal Allied War Powers adopted Harry Sacher’s advice.
Eugene Kontorovich: We look forward to your scholarly response, but I may recall that you already discussed these two issues – uti possidetis/borders – claiming that ‘Israel [present-day Israel and the Palestinian territories] is the state created in Mandatory Palestine. Thus under uti possidetis iuris, it inherits the Mandatory borders.’ It seems to me that the first sentence is historically and legally uncorrect, the second is highly questionable. Very briefly: – In early 1921, prior and during the Cairo Conference, the British authorities clarified once more that: ‘Distinction to be drawn between Palestine and Trans-Jordan under the Mandate. His Majesty’s Government are responsible under the terms of the Mandate for establishing in Palestine a national home for the Jewish people… Palestine and Trans-Jordan do not, therefore, stand upon quite the same footing.’ The British White Paper of 1 year later, June 1922, clarified, among other issues, that the Balfour Declaration does ‘not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded “in Palestine”.’ No doubt regarding the geographical scope/limits of the White Paper (WP) of 1922, that served as the base of the agreed approved version of… Read more »
In addition to the many U.N. S.C. and G.A. resolutions and the I.C.J., one should note that in view of UN Charter, article 103, obligations under the U.N. Charter shall prevail over obligations under any other international agreement (even if we are talking about a pre-UN Charter agreement).
In response to carl m:
We are not concerned here about Jewish rights in the whole British Mandate for Palestine, as it was eventually delineated in 1925. We are dealing here with Jewish rights in “western Palestine”, i.e. the part of the Britih Mandate west of the Jordan River.
The Jewish National Home (JNH) “in Palestine” was unquestionably envisaged in all of western Palestine. The wording of the Mandate — in its 28 articles and its 15 instances of the phrase “in Palestine” — leaves no doubt as to the entirety of western Palestine being allocated to the JNH, once Transjordan was excluded from Jewish settlement.
For this and other matters raised by Dr. Lorenzo Kamel, please read my comments here:
http://www.israpundit.org/archives/63611332
The author’s repeated use of the term “Palestinian territories” assumes that such territories belong to, have been awarded to, or are under the sovereignty of some exiasting Palestinian sovereign entity that maintains legal rights to that territory.
But this is assumption is totally flawed and wrong and betrays a political bent by the author.
There has never been any legally authoritative or binding determination that the terrotiries are Palestinian.
To the contrary – the Palestinian leadership itself, as well as the US, EU, UN Rusiia and others have acknow,edged and counter-signed the Oslo Accords in which the issue of the permanent status of the territories iis a negotiating issue.
Hence, in determining in your paper, – probably through an element of wishful thinking – that the territories are Palestinian, the author and others of his ilk, are in effect attempting to prejudge an agreed-upon negotiating issue.
As an historian, he might be advised to stick to dealing with history, rather than dabbling in law.
Ambassador Baker The United Nations, the EU, the International Committee of the Red Cross, the government of the UK ect. ect. all refer to the area as the “Occupied Palestinian Territories”. http://www.publications.parliament.uk/pa/cm200304/cmselect/cmintdev/230/230.pdf The International Court of Justice (ICJ) refers to the West Bank, including East Jerusalem, as “the Occupied Palestinian Territory”. The term “Palestinian Territory” had been used by the UN and other international organizations between 1998 to 2013 and was replaced in UN Secretariat communications by the term “State of Palestine” starting in 2012, when 138 world states recognized the “State of Palestine” (while no 1 State in the world recognizes Israel beyond the Green Line). There is only 1 country in the world that refers to them as “disputed territories”: Israel. As for Oslo, it was an interim accord for six years, and was violeted since the very beginning, considering that at each round of negotiations it is required to take into account the new demographic reality, heavely influenced by outposts/settlements/settlers. Plus, let me quote the late Professor of Public International Law Vera Gowlland-Debbas: “Not only is the legal status of the Oslo Accords far from clear in that, not having been registered with the UN, they cannot… Read more »
Ms Cardon, Whether the UN Secretariat, ICRC, or even the UK government, in all its majesty, “refer” to the area as “occupied Palestinian territories” – you surely cannot but admit that such references cannot and do not determine legal status, but rather political opinion. Even the ICJ reference was not a legal determination but an ob iter dictum based on Palestinian documentation prsented to the court. The use by the UN secretariat and other bodies of the term OPT is nothing more than the political opinion of the majority that voted for the non-binding Gweneral Assembly resolutions concerned. They cannot be considered as legal authority. So your reliance on those sources cannot be considered serious or legally pursuasive. Your attempt to prove that the Oslo accords are not a binding international agreement is curious to say the least. there are many among the Israeli right wing that would willingly take up your argumentation. The accords have never been seen by anyone as an international agreement because they are not an agreement between two sovereign states. But they have, and continue to have a sui-generis personality inasmuch as they have been countersigned and endorsed by the international group of leaders that… Read more »
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Opinio Juris » Blog Archive On the Legitimacy of the Settlements: A Legal and Historical Perspective – Opinio Juris
Ambassador Baker You are right that “the ICJ reference was not a legal determination”. Yet, AOs constitute an authoritative statement of international law. Judge Gros (ICJ): “When the Court gives an advisory opinion on a question of law it states the law’, and while ‘it is possible for the body which sought the opinion not to follow it in its action … that body is aware that no position adopted contrary to the Court’s pronouncement will have any effectiveness whatsoever in the legal sphere”. When the ICJ expressed itself “riafferming the applicability of the Fourth Geneva Convention” to the “Palestinain Territory” was not simply expressing obiter dicta remarks, nor were simply repeating the Palestinian documentation. I am surprised to hear that the ICJ, EU, the UN, the EU, the ICRS, the government of the UK ect. ect. Ect. are all simply expressing political opinions. Both Israel and the “non-member State of Palestine” never agreed borders. You could apply your “political opinions'” logic to Israel as well. I doubt that “many among the Israeli right wing would willingly take up” my argumentation, considering your, in my opinion highly selective, use of the Oslo accords, that perfectly fits their needs and ideologies.… Read more »
In response to Salomon Benzimra: Many thanks for your reply, you provide some interesting inputs, that are becoming more common in the last few years. “We are not concerned here about Jewish rights in the whole British Mandate for Palestine…as it was eventually delineated in 1925. We are dealing here with Jewish rights in “western Palestine”: — In early 1921, prior and during the Cairo Conference, the British authorities pointed out once more that: ‘Distinction to be drawn between Palestine AND Trans-Jordan”. There is no doubt that the British White Paper of 1 year later, June 1922, was refferring to a Palestine between the river and the sea (White Paper of 1922: “the jewish national home is not the imposition of a jewish nationality upon the inhabitants of palestine as a whole”). — That the White Paper was referring to a “national home” (whatever the meaning that different officials and countries gave to this expression) “IN Palestine” was clearly agreed with the Zionist leadership: as the article above confirms. — There was not 1 single Jewish community in present-day Jordan in 1920: so even rationally it would have made little sense to think otherwise. — The claim that “The Jewish… Read more »
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Opinio Juris » Blog Archive On the Legitimacy of the Settlements: A Legal and Historical Perspective – Opinio Juris
In response to carl m. Thank you for your input and for your overall agreement that the evolution of the sequence [“East Bank” >> Transjordan >> present-day Jordan] is another matter not central to the issue at hand. I would just point out that this truncation (and, later, vast territorial expansion to the east) of what was designated as “Palestine” at the San Remo Conference of 1920 originated, as you rightly noted, in the Cairo Conference of 1921, thus leading to the White Paper of 1922. I am sure you will agree that this British decision was purely political, in the wake of the ousting of Faisal from Syria by the French and the threatening northbound march of Abdullah from the Hedjaz to avenge his brother. The British White Paper of 1922 is the result of their political manoeuvres. Its legality is highly questionable. And this is what I tried to show about successive British White Papers – all politically driven — which culminated in the undeniably illegal White Paper of 1939. Back to “western Palestine,” i.e. from the Jordan River to the Mediterranean Sea: You ask me to “provide 1 primary or secondary source” in support of the Jewish… Read more »
I read all the comments and I found them very informative. My reply is for Yisrael Medad. I am not sure that you are actually . It seems to me that you are assessing the intentions of some people, while neglecting others. : we should have now understood that legally speaking this is not the case It is important that you mentioned Article 7, that ensured . : My guess is because Jordan was outside of the scope of the agreed and because in the opinion of what were the 9/10th of the total population in Palestine 100 years ago, the area in present-day Jordan have never had the same religious, historical, cultural and social importance as compared to the the land between the river and the sea. Expelling or forcing them out is not a solution, at least not mine. With all the due respect, if we are obliged to decide it would seem to me less immoral to ask to you, Mr. Medad, to leave the settlement in the West Bank in which you live in and to return to the US where you were born and educated, than to force a Palestinian to leave his/her home in… Read more »
I read all the comments and I found them very informative. My reply is for Yisrael Medad. I am not sure that you are actually ‘assessing the intentions of those powers’. It seems to me that you are assessing the intentions of some people, while neglecting others. ‘As the territory involved was all the area west of the Jordan River’: we should have now understood that legally speaking this is not the case. It is important that you mentioned Article 7, that ensured ‘that the rights and position of other sections of the population are not prejudiced’. ‘If Jordan was originally part of the Mandate area, why not there?’: My guess is because Jordan was outside of the scope of the agreed ‘national home’ ‘in palestine’ and because in the opinion of what were the 9/10th of the total population in Palestine 100 years ago, the area in present-day Jordan have never had the same religious, historical, cultural and social importance as compared to the the land between the river and the sea. Expelling or forcing them out is not a solution, at least not mine. With all the due respect, if we are obliged to decide it would seem… Read more »
To martburton:
This – “we should have now understood that legally speaking this is not the case” – I do not think proven or justified. Try again with details.
This – “My guess is because Jordan was outside of the scope of the agreed ‘national home’ ‘in palestine’” – is a wrong guess. Until 1946, both Trans- and Cis-Jordan were administered by one and the same High Commissioner. In 1946, the United States accepted the legal reasoning that since Western Palestine had not been resolved one way of the other, Jordan could not be accepted into UN membership. See my review which has links to additional material: http://myrightword.blogspot.co.il/2014/03/more-on-jordan-really-was-palestine.html
I am not desirous of anyone moving, Jew or Arab. What I wish is that Jordan assume rights of representation for the Arab residents of Judea and Samaria whether in the form of autonomy, confederation or whatever.
Thanks, Mr Medad.
A. “Now Trans-Jordan has a government entirely independent of Palestine – the laws of Palestine are not applicable in Trans-Jordan nor are their laws applicable here. Moreover, although the High Commissioner of Palestine is also High Commissioner for Trans-Jordan, Trans-Jordan has an entirely independent government under the rule of an Amir and apart from certain reserved matters the High Commissioner cannot interfere with the government of Trans-Jordan …. Trans-Jordan nationality is recognised … Palestinians and Trans-Jordanians are foreigners and therefore Trans-Jordan must be regarded as a foreign state in relation to Palestine”. British High Court (in Jawdat Badawi Sha’ban versus Commissioner for Migration and Statistics), 1945.
B. If you ask “Palestine has a right to exist, but where?” and then propose in Jordan, you seem to imply that Palestinians should move there. Anyway, your Jordan federation would be perfect for Israel and its attempt to cherry-pick the areas that are useful and rich of water and natural resources, it would be less needed by the Palestinians. Some argue that Palestinians should instead start thinking to establish settlements within Israel, exploitinig the fact that up to now both sides never agreed borders.
Many thanks, Mr. Benzimra — Actually in my eyes the issue of Transjordan is pretty much relevant in this discussion. — Any British decision was purely political, starting from the Balfour Declaration to arrive to the end of the Mandate. Their legality is highly questionable, what is not questionable is the agreed understanding that served as the base for the approval of the Mandate — Yes, but the Mandate for Palestine pointed out the opposite, or in any case something quite different, from what you claim, and as we read in the article above Weizmann and the Zionist leadership agreed to the interpretation contained in the White Paper. This is what legally speaking matters, than of course each of us can consider this bad or good (as a matter of law resolutions adopted at a conference are not legally binding). — In all and every references that you mentioned there is none in which is stated that all the land between the river and the sea was to supposed to become a ‘jewish national home’. Please quote the precise language that conferred the power to “create one Jewish national home” (or a “state”) in all the land between the river… Read more »
Re:General Smuts, a member of the Imperial War Cabinet when the declaration was published, said in 1919 that he could see “in generations to come, a great Jewish state rising there once more.”
A bit of clarification is in order on that account. By 1947, Smuts was a very outspoken advocate of partitioning western Palestine. He never felt the Zionists had any historical claim to to key regions, like the coastal plains.
He said: “To the Jews, partition may be a biter pill, but ancient Palestine itself was never a wholly Jewish state, as the Philistines always occupied the coastal plains which form the best part of it, AND THE PROMISE OF A NATIONAL HOME NEVER MEANT THE WHOLE OF PALESTINE” [emphasis added] See J.C. Smuts, “Jan Christian Smuts”, Cassell & Co. Ltd., 1952 page 468
Re: The 89 pages of the Levy Report, clarified that “with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter”. If that’s supposed to mean colonization of Arab Palestine or Transjordan after the mandate was terminated, then that’s completely untrue. Prof Kontorovich misquoted the section of the LoN resolution pertaining to Transjordan. It did not say the provisions regarding the Jewish National Home were temporarily “suspended” or part of the perpetual international regime of safeguards mentioned in Article 28. It actually says the mandatory could either “postpone OR WITHHOLD APPLICATION” [emphasis added] on the basis of what he considered inapplicable or suitable to local conditions. https://archive.org/stream/mandateforpalest00leaguoft#page/10/mode/1up Even the Israeli High Court of Justice has ruled that “rights under the mandate ended when it was terminated.” BTW, the High Court has heard all of these quirky fringe theories about the San Remo resolution, the continuing operation of the mandate from the very beginning. In HCJ 1661/05 The Gaza Coast… Read more »
Thank you, Carl, for your reply. I will briefly address the points you raised. You rightly say that “any British decision was purely political, starting from the Balfour Declaration.” I agree. And that is especially so for the successive British White Papers, as I mentioned in my earlier post. Purely political. That is why attributing any legal weight to the “interpretation” contained in the 1922 White Paper is unfounded. The same is true for the Balfour Declaration when it was issued in 1917, even though it was endorsed by several other governments. But in San Remo, in April 1920, when the Balfour Declaration was combined with Article 22 of the Covenant of the League of Nation (which was part of the 1919 Treaty of Versailles) to set up the Jewish National Home (JNH), the Balfour Declaration became an act of international law. That is the whole difference, and there is no equivalent document of international law granting similar privileges to the Arabs of Palestine. You also state that “as a matter of law, resolutions adopted at a conference are not legally binding.” I would disagree with you if you are referring to the San Remo Resolution. This resolution was adopted… Read more »
* Thanks for these important points, Salomon Benzimra, I am very glad to have this exchange. — The White Paper of 1922 served as the base for the approval of the Mandate. As written in the article above: “It was made clear to us that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper of 1922, and my colleagues and I therefore had to accept it, which we did, though not without some qualms.” You are speaking about interpretations or about the fact that you don’t like the White Paper of 1922. I, on the other hand, contend that the Balfour Declaration and others were even more political. Bottom line: it’s irrelevant what you or I think. What matters is that the Mandate was approved ONLY after that its interpretation was clarified. Without it, it would not have been approved. Probably I was not clear about it and I apologize for this. — The Balfour Declaration became legally relevant when it was included in the Mandate. Before that, it was little more than a piece of paper. The Mandate was approved after that it was made it clear that a… Read more »
@Salomon Benzimra, Sir, I read your link about Dr. Kamel’s article and, more in general, about what you call “the newly-minted Palestinian people”. While respecting your opinion, I am not convinced by several of your arguments: You provide the impression that there is a sort of match/competition between Bentwitch on one side, and plenty of contemporary and modern scholars and historical figures on the other. There are dozens of other figures in addition to Curzon, Bentwitch, Sokolow, Samuel ect ect that expressed similar opinions. And the same can be argued about people closer to the opinions of Eugene Rostow&co. As many argued before me, it is irrelevant to give value to some and to downplay others. As others clarified before me, the issue, here, is that the Mandate is the only legal source. As far as I can read from the article here on OJ, you make confusion regarding Nahum Sokolov. Sokolov was speaking at the Paris Conference, in 1919. The sentence “It has been said and is still being obstinately repeated by anti-Zionists again and again, that Zionism aims at the creation of an independent ‘Jewish State’” was referring to something that he considered “wholly fallacious” in 1919. Then… Read more »
Another word on the Category A mandates – applying to the former Ottoman possessions of Syria, Lebanon, Iraq and Palestine – which did provisionally recognize their existence as independent nations and looked forward to ‘such time as they are able to stand alone’, something the 1937 Peel Commission significantly noted. If an independent nation existed in Palestine it wasn’t Arab as highlighted in the League of Nations decision on the Mandate for Palestine as so: Whereas the Principal Allied Powers have agreed, for the purpose of giving effect to the provisions of Article 22 of the Covenant of the League of Nations, to entrust to a Mandatory selected by the said Powers the administration of the territory of Palestine, which formerly belonged to the Turkish Empire, within such boundaries as may be fixed by them; and Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which… Read more »
To Carl m: I think we are getting to the end of this exchange which I have truly enjoyed too. Let me first settle, once more, a recurrent issue that seems to irritate you to no end: The “IN Palestine” phrase. If you persist in maintaining that the Jewish National Home (JNH) was only allocated in part of Palestine on the flimsy grounds of an “interpretation” issued by one of many highly politicized British White Papers, I believe – after the various arguments I presented previously – that the onus is on you to explain why there is not a single provision in the Mandate that would govern any such Arab “national” entity in the rest of Palestine. How could the drafters of the Mandate Charter have ignored such an essential matter? The rights of the Arabs in Palestine were addressed in the Mandate. Their rights and position were not “prejudiced” one bit. Arabs were granted civil and religious rights, presumably more firmly entrenched than those they enjoyed under Ottoman rule, but they never had any earlier “national” rights that could be “prejudiced.” You may adopt the “interpretation” provided by the 1922 White Paper as the only valid one, but… Read more »
Dear Roberto Maza: The only reason I mention Bentwich, Curzon, Sokolov and others is because these were the names listed in Dr. Kamel’s article. I agree with you that the Mandate is the only legal source. I would add that the rights spelled out in the Mandate are still valid to this day, regardless of the expiration of the Mandate in 1948. This is in line with Article 80 of the UN Charter and Article 70-1(b) of the Vienna Convention on the Law of Treaties. Sokolov’s quotation is a selective one. Indeed, he said what he said at the Paris Peace Conference not to antagonize the political scene, and especially the Arab Delegation in Paris. His statement, which he may have found helpful at the time, colored the “interpretation” of the “national home” in the 1922 White Paper. But in his book, “History of Zionism,” Sokolov refers to the “national home” as ultimately leading to a “modern Commonwealth” (i.e. a State). In correspondence exchanged between Balfour and Sokolov, both agreed that the notion of an eventual state should not be presented prematurely, because of Arab opposition. David Lloyd George shared the same view. This is to say that in matters… Read more »
Thank you very much for your reply Solomon Benzimra You didnt mention “Bentwich, Curzon, Sokolov and others”, you listed instead many persons supporting your thesis and then you briefly mentioned only Bentwich and Sokolov, claiming that for some reasons we should not take into considerations their very clear positions. You provided in this way a misleading impression, as if a huge amount of persons support(ed) your logic, and a very few strange persons oppose(d) it. This is not the case. Yes the rights spelled out in the Mandate, not the one interpreted. As noted by others, to mention words like “state” or “all Palestine” is closer to wishful thinking than legal provisions contained in the Mandate. You claim that we should ignore the official words expresse by Sokolov during the Conference of Paris in 1919 simply because you argue that he did not want to antagonize the political scene? Official speeches and documents matter. Following this logic no official declaration or document has any legal value: anyone can say and write whatever he likes for some reasons: no international lawyer would subscribe this logic. Paris Peace Conference: ‘ It has been said and is still being obstinately repeated by anti-Zionists… Read more »
These are great points, Solomon. I am sorry that you had the impression that that issue irritate me to no end. That part was actually the most enjoyable and interesting to me and I am still confident that you will provide to us an offical document that refers to a “state” and “Palestine has to become…’. For now all that we know is that the sentence “in respect of Palestine is the Balfour Declaration constituting it a National Home for the Jewish People” was Changed with the formula “IN Palestine” in order to avoid your interpreation. Weizmann was very angry about it and wrote many letters complaining for this. I can image that for you too this is frustrating. Yet, this is how the document was officially released. You refer to the “many highly politicized British White Papers”. The Balfour Declaration was even more politicized and, again, it is hard to understand why you refer to other white papers. While we now know that you strongly dislike some “politicized British documents”, and that on the other hand you like very much other “politicized British documents”, the only relevant (legally speaking) reality is that the Mandate was approved based on a… Read more »
Thank you, Carl, for your concluding remarks. It appears that your main point of contention still lies in the phrase “IN Palestine” and your persistent request that I provide “a primary source” for the exclusive intent of the Mandate, which was to establish a Jewish National Home (JNH) in Palestine. I did precisely that several times. To wit: – The very text of the Mandate Charter – its preamble and 28 articles; – No “national” entity envisaged in the Mandate, other than the JNH; – The different approach for Palestine vs. the two other Mandates, as shown in the Treaty of Sèvres (Art. 94 and 95); – The principle of the Mandates system, clearly expressed in Article 22 of the Covenant, which envisaged independent states at the end of the Mandatory period, hence a Jewish State upon the termination of the Mandate for Palestine. Now, wouldn’t it be for YOU, rather to quote a legal “primary source” anywhere pointing to the “national” provisions granted to the Arabs in Palestine? You still wonder why I keep mentioning the other British White Papers. Here again, I think I already showed the underlying reason: the British were intent to gut the Jewish character… Read more »
Dear Roberto,
I am afraid you are mistaken: In my comments on Dr. Kamel’s article, I only mentioned (and bolded) those he himself referred to.
Of course, “official speeches and documents matter.” But they must be considered in context. And what matters most are the final, officially approved legal agreements that derive from these speeches and documents. After all, wasn’t Dr. Kamel’s thrust to give pre-eminence to legal instruments over opinions? In terms of speeches, I do not understand why you would put more weight on what Sokolov said in Paris in 1919 than on what Churchill said at the Peel Commission in 1937.
Thank you for the various surveys and maps you mentioned. The most updated one and contemporaneous to the WWI period is George Adam Smith’s “Atlas of the Historical Geography of the Holy Land,” published in London by Hodder and Stoughton in 1915.
As to the various questions you raised again, related to the Jewish National Home in Palestine, I think I addressed them in some detail in my postings to ”carl m.”
Regards,
Thank you, Solomon, there are a few misunderstandings, I hope to address them clearly: — “Palaestina” of Hadriani Relandi (1714): Relandi never visited Palestine in his entire life. Suggest you to go a bit deeper on this. — I quoted Maxime Rodinson and you changed topic claiming that “That is the essence of Zionism: the reconstitution of the national home of the Jewish people”. Anyway, I would like to remind you than among the 2 of us, it is me that support 2 peoples for 2 rights, while you support 1 people for 1 right. Finally, your claim on Zionism that any Jew in the world should have ipso fact more rights on Palestine/Israel than a local inhabitant is very problematic. Israel Bartal, Avraham Harman Professor of Jewish History, clarified (in a very cogent piece in which he criticized Shlomo Sand) these aspects with the following words: “No ‘nationalist’ Jewish historian has ever tried to conceal the well-known fact that conversions to Judaism had a major impact on Jewish history in the ancient period and in the early Middle Ages. Although the myth of an exile from the Jewish homeland (Palestine) does exist in popular Israeli culture, it is negligible… Read more »
Dear Carl, A much as I have enjoyed this conversation, I think it is no longer constructive. Time and again, you keep rehashing the same questions, mainly about your cherished interpretation of the term “IN Palestine,” and asking me to provide legal proof that the Jewish National Home was intended to be in all of Palestine – i.e. all of western Palestine after 1922. And time and again I provided you with the letter and spirit of the Mandate, as it was confirmed in July 1922. But to no avail, it seems. So, one last try: Please read the third recital of the preamble of the Mandate, which is operative pursuant to Article 2: “…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.” Should your restrictive “interpretation” hold sway, that preamble would read “…in PART of that country.” That is why I urged you, more than once, to provide me with the proof that the 15 instances of the phrase “in Palestine” listed in the Mandate are in any way to be understood as “in part of Palestine”, while nowhere in the… Read more »
Solomon, thank you very much. I am sorry if you are not enjoying this conversation anymore, I enjoy it a lot, but feel free of not replying anymore. I just try to show you that many certainties that you have are opinions not based on historical on legal evidences. “Your denial of the relevance of Relandi’s book … This Dutch scholar — fluent in Hebrew, Arabic and Greek, among other languages — DID indeed travel to Palestine in 1696”: 1) Adriaan Reland did not personally visit the Holy land but collected reports from other visitors: “Even though he [Reland] did not leave his room, even though he was partly motivated by conservative Calvinist ideology, and even though most of his work was compilatory, Reland nevertheless made a long-lasting and significant contribution to research of the historical geography of the Bible.” http://lib.haifa.ac.il/departments/4del/nedirim/eng/hadriani.html 2) Reland “maintained that it was necessary to study Islam in order to defit it … despite his attempt to ‘understand’ Islam, Reland was entirely dedicated to its destruction”. P. 50 3) It seems that all pages on the internet referring to “Reland palestine 1695”. There seems to be no “Reland palestine 1695″ hits before late 2007 after Avi… Read more »
Re: a) a claim of “The term “national home,” in fact, had no mutually agreed-upon meaning” is weak. Nonsense. the week before the Balfour Declaration was released, Privy Council President Lord Curzon, War Cabinet Secretary Hankey, and Secretary of State for India Montagu wrote memorandums to the other cabinet officials explaining that the term “Jewish National Home” had no agreed upon meaning or scope to either the Jews or supporters of the Zionist movement. So the “declaration of sympathy with Jewish Zionist aspirations” in favor of “the establishment in Palestine of a national home for the Jewish people” had no definite legal meaning. See CAB 24/30, “The Future of Palestine” (Former Reference: GT 2406), 26 October 1917; CAB 24/4, “The Zionist Movement”(Former Reference: G 164), 17 October 1917; and CAB 24/28 (Former Reference: GT 2263) “Zionism, 9 October 1917. They are all available as free downloads from “The Cabinet Papers 1915 to 1984” section of the UK National Archives website. 30 years latter the members of the UNSCOP Committee, including several Supreme Court or High Court Justices came to the same conclusion. They reported to the General Assembly in September of 1947 that the term had no agreed upon meaning… Read more »
Re: I’m quite flattered that a basic talk I gave to college students several years ago merits continued academic attention. Don’t be flattered. Your talk was a pastiche of legal, logical, and historical fallacies. Modern historians, like Donald Quataert have explained that the term “Ottoman Empire” is something of a misnomer. By the 19th Century, it had long-since developed into a multinational Muslim empire and had ceased to be a strictly Turkish one through a long process of intermarriages that helped cement political alliances. The notion that Ottoman Asia was “non-Arab” as you suggested in the video is a completely mistaken view. In 1884 a member of the Sultan’s entourage in the Yildiz Palace, Ahmed Hamdi, complained that between Aqaba in the south and the northern towns of Nablus and Salt there was a stretch of 800 hours travel distance of an anarchic nature where no single government employee was ever seen or heard from and which was entirely left to the Bedouin shaykhs (‘urban mesayihine terk olan)”. Even the Sharif of Mecca was, after all, an Ottoman official before the Arab Revolt. See Johann Büssow, “Hamidian Palestine: Politics and Society in the District of Jerusalem 1872-1908”, pages 53-54. Likewise,… Read more »
Re: Furthermore, from San Remo to the League of Nations Mandate decision, it was clear that non-Jewish communities had no political rights whatsoever and the topic for deliberation, ,if any, was their personal and religious rights. That’s false. Members of the various millets had constitutionally protected political rights. In addition, the handful of Allies gathered at San Remo actually took action to preserve the status quo. Article 62 of the Treaty of Berlin, which was part of the existing public international law of Europe, stipulated that: “In no part of the Ottoman Empire shall difference of religion be alleged against any person as a ground for exclusion or incapacity in matters relating to the enjoyment of civil or political rights, admission to public employments, functions, and honors, or the exercise of the various professions and industries, in any locality whatsoever.” The participants at San Remo stipulated in the text of the resolution itself that they only accepted the Article on Mandates with the understanding that the British government had accepted an additional legal undertaking that this would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine.” Re: The issue of Class ‘A’ mandates Is… Read more »
Re: I should add that the Egyptians and Jordanians do not share Dr. Kamel’s views, as their peace treaties with Israel specify the Mandatory border as an international frontier.
You are obviously very confused. Article 3(2) of the Treaty of Peace between Israel and the Kingdom of Jordan explicitly stipulates that the international boundary is without prejudice to the status of any territories that came under Israeli military government control in 1967.
The text of the Treaty is readily available online via the kinghussein dot gov dot jo or the Israeli MFA websites.
In 2003 the governments of Egypt and Jordan both advised the ICJ that they were interested state parties and submitted written statements to the ICJ in the Wall case. Egypt described the presence of Israeli civilians and settlers in the occupied territories and the displacement of Palestinians by the construction of the wall as “war crimes.” Likewise Jordan described the settlements as illegal and cited the holdings of various international criminal tribunals and the Rome Statute in support of its position that the settlements were a flagrant violation of Article 49 of the 4th Geneva Convention. Those written statements are readily available online via the ICJ website.
Re: In 1919 when the Zionist Delegation presented their case to the Paris Peace Conference, U.S. Secretary of State Robert Lansing asked Dr. Weizmann to clear-up some misunderstandings regarding the meaning of the term “Jewish National Home”. He asked him point blank if it required the establishment of an autonomous Jewish government? Weizmann answered in the negative – and that is fatal to any claim that the Allied Powers ever granted Jews a legally secured right to a sovereign state in Palestine or that Article 80 of the UN Charter preserved the right to establish one. See Papers relating to the foreign relations of the United States, The Paris Peace Conference, 1919, The Council of Ten: minutes of meetings February 15 to June 17, 1919, page 169. http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1919Parisv04&isize=M&submit=Go+to+page&page=169 Article 6 of the Palestine Mandate stated that Jewish immigration was subject to “suitable conditions”. It also excluded any “state lands or waste lands” “required for public use” from those that the mandatory administration could employ for Jewish settlement. So there was never any legal justification for the establishment of Jewish-only settlements on publicly owned land in occupied Palestine, even if Article 80 of the UN Charter worked the way Zionists claim.… Read more »
I’ll cross post this here: As a person of Jewish descent, I’m very sympathetic to the case for defending the fundamental human rights of the Jewish people of the former Palestine mandate and those who have been assimilated to them. Unfortunately, no one can offer an unblemished defense for some of the acts that they have perpetrated against the other inhabitants since 1948. See for example: “100-Year-Old General: We Razed Arab Villages, So What?: Brig. Gen. (res.) Yitzhak Pundak: If we hadn’t done it, there would be a million more Arabs and there would be no Israel. http://www.israelnationalnews.com/News/News.aspx/168912#.VYuDd7y37tR There’s a British proverb which explains “The past is a foreign country. They do things differently there.” The authors of the Levy report, including Dr Alan Baker, are simply trying to revive the age-old practice of private profit from the plunder of war through the use of trite arguments about “sovereignty” that no one has accepted since the 19th century. A new political unit called “Jordan” came into existence in January 1949 as a result of the formation of a federal union between Arab Palestine and Transjordan in accordance with the resolutions adopted by an Arab Palestinian Congress held in Jericho. When… Read more »