A Response to Alonso Gurmendi: The ICJ Must Consider Israel’s Legal Rights to the West Bank, Gaza and East Jerusalem

[Avraham Russell Shalev is a lawyer and researcher at Kohelet Policy Forum in Israel]

Editors’ Note: This article is a response to a post by Alonso Gurmendi, available here. To read Alonso’s rejoinder, please see here.

In a recent article, Alonso Gurmendi responded to a legal opinion released by the International Association of Jewish Lawyers and Jurists in the context of the ICJ’s Advisory Opinion on the “legal consequences on practices in the Occupied Palestinian Territory”. The authors of the Opinion critique the assumption inherent in the request for the advisory opinion, according to which Israel has no valid legal claims under international law to the West Bank, Gaza and East Jerusalem. According to Gurmendi, Israel indeed has no such claims, and arguments to the contrary reflect “legal discourse more proper to best-forgotten eras, when sovereignty was premised on racial hierarchies and colonial policies, not on national self-determination and human rights.”

In my opinion, it is essential to address Gurmendi’s claims as they express a troubling trend whereby the State of Israel’s history is rewritten as an illegitimate colonial and racist entity, rather than as the fulfillment of international promises towards a dispossessed and persecuted nation.

Gurmendi’s thesis is that Israel has no claim to the West Bank, Gaza and East Jerusalem as this violates the pre-existing rights of a Palestinian state. While Gurmendi purports to avoid the question of the Palestine Mandate’s legality, he does just that, arguing that its very raison d’étre, the creation of a Jewish national homeland, was invalid. Gurmendi revives old polemics against the Palestine Mandate’s goal, which he labels as “contentious”. Quoting Balfour, Gurmendi argues that “the establishment in Palestine of a national home for the Jewish people” contradicted Article 22 of the Covenant of the League of Nations by harming the “’well-being and development’ of its inhabitants”. In this ahistorical retelling, Palestine’s Class A Mandate means that it was recognized as a non-independent state. Therefore, Israel’s 1948 Declaration of Independence is best seen as the unilateral secession from Arab Palestine. According to Gurmendi, this secession was unjustified: “Israeli independence was therefore a matter of fact, not law.”

Gurmendi begins his historical retelling with the 1923 Treaty of Lausanne and insists that Ottoman title was transferred not to the Allied Powers, but to the League of Nations’ Mandate System. However, Lausanne was the successor to the Treaty of Sèvres, signed in August 1920. The Treaty of Sèvres stipulated that Syria and Mesopotamia would be the subject to Mandates as per Article 22 of Covenant (Article 94), that Palestine would also be subject to a mandate as per Article 22 for the purpose of the creation of a Jewish national home (Article 95), and that Turkey, as the successor state to the Ottoman empire, renounces all rights and titles of territory outside Europe in favour of the Allied Powers (Article 132).

The humiliating conditions of the Sèvres Treaty prompted a nationalistic backlash and the new government of Mustafa Kemal Ataturk refused to ratify it. A new treaty – the Treaty of Lausanne – was drafted, and was signed by Turkey in July 1923, coming into force in August 1924. Notably, the Treaty of Lausanne did not contain clear provisions on Palestine, Syria and Mesopotamia or the transfer of rights from the Ottoman Empire to the Allied Powers. In place of Article 132, the Treaty of Lausanne stated in Article 16 that: “Turkey hereby renounces all rights and title whatsoever [to territories outside of Turkey] … the future of these territories and islands being settled or to be settled by the parties concerned.” It is clear from context that the “parties concerned” refers to the Allied Powers and associates, and that in the case of Palestine, the future had been in 1922 settled by the Mandate for Palestine, whose primary object was the reconstitution of the Jewish national home in that territory.

The Lausanne Treaty did not include provisions on Palestine, Syria and Mesopotamia as these articles had become moot in the interim. France had been selected as Mandatory for Syria and Lebanon, and Great Britain the Mandatory for Mesopotamia, with the Mandates coming into force in September 1923. The draft Mandate for Palestine was submitted for League of Nation’s approval in December 1920, approved in July 1922, and came into force in September 1923. The Allies based their authority on the Treaty of Sèvres, which was repeated in several statements by Churchill and Devonshire as Colonial Secretaries, as well as the Peel Commission in 1937.

Gurmendi labels as “contentious” the assertion that “the object of the Mandate was to ‘put into effect’ the 1917 Balfour Declaration ‘in favour of the establishment in Palestine of a national home for the Jewish people’”. To be frank, Gurmendi’s claim is ahistorical. The Mandate for Palestine was unanimously approved by the Council of the League of Nations on 24 July 1922. According to its Preamble, the Allies “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 favour of the establishment in Palestine of a national home for the Jewish people”. Contrary to Gurmendi’s claims of “racial hierarchies and colonial policies”, the Mandate explicitly evokes the Jewish people’s ‘historic connection’ to ‘Palestine’. As the Preamble states: “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”.

An objective examination of the terms of the Palestine Mandate leaves no doubt as to its purpose of establishing a future Jewish state: Britain was responsible for “placing the country under such… conditions as will secure the establishment of the Jewish national home (Article 2); the facilitation of Jewish immigration and “close settlement by Jews on the land” (Article 6), the facilitation of Jewish acquisition of citizenship (Article 7). The Mandate Instrument was a binding treaty between the League of Nations and the Mandatory, as noted in Permanent Court of International Justice Mavrommatis Palestine Concessions (Jurisdiction) Case (p. 35). The Mandate was also recognized by a bilateral treaty between the United States and Great Britain, as well as the 51 member states of the League of Nations. The Palestine Mandate’s sui generis nature cannot at all detract from its validity. Even if the terms of the Mandate were to conflict with the general principles of the Covenant, the Mandate supersedes it both as lex posterior and lex specialis. The rights enshrined in the Mandate have clearly been preserved by Article 80(1) of the UN Charter.

Having established that the Palestine Mandate’s justification was the creation of a Jewish homeland, it is profoundly anachronistic to claim that Palestine in 1923   “was recognised, per Article 22 of the Covenant, as a state; just not as an independent state”. This of course, contradicts recent statements of the Palestinian leadership whereby Palestinian statehood is an aspiration and not currently in existence. (See Judge Péter Kovács’ Partly Dissenting Opinion of 5 February 2021, Annex I to the Decision of ICC Pre-Trial Chamber I on the Court’s territorial jurisdiction in Palestine). In fact, “Palestine” as an administrative and political entity was first created after the British occupation in 1918 and formally approved in 1922 by the Council of the League of Nations. Under Ottoman rule, there has been no administrative entity known as “Palestine”. Rather, the territory had been divided between the three sanjaks (districts) of Jerusalem, Nablus and Acre. As Shaw demonstrates, relying on Crawford, no mandated territory was regarded as sovereign prior to the termination of the mandate over the relevant territory. Neither do any of the states which emerged from the Mandate system trace their independence from the beginning of the mandate, not least the Palestinians themselves (see the 1988 Palestinian Declaration of Independence). As such, the thesis whereby Israel unilaterally seceded from a Palestinian Arab state is a non-starter.

As Avi Bell and Eugene Kontorovich persuasively demonstrate, uti possidetis juris is the appropriate legal framework for determining the extent of Israel’s territorial claims. According to this rule, emerging states adopt the administrative boundaries at the time of independence as international borders. Uti possidetis juris is the universal default rule to avoid territorial disputes for states emerging from colonial rule and from the former Soviet Union, as well as Palestine’s fellow Class A Mandates of Mesopotamia, Lebanon and Syria. For example, sovereignty over Mosul was a point of contention in the 1920s between Turkey and Britain, the Mandatory power over Iraq. In a 1924 Report by the League Council, termed definitive by the Permanent International Court of Justice, Mosul was awarded to Iraq based on the 1920 Mandatory Borders. Competing Kurdish claims for self-determination did not affect the borders. The disagreement was determined as settled upon Iraqi independence in 1932. Similarly, Lebanon and Syria inherited their borders from the French Mandate, despite Arab nationalist claims that Lebanon was part of Greater Syria and its separate status a colonial invention.

In 1948, Israel was the only state that emerged from Mandatory Palestine, and it fulfilled the requirements of the Mandate for the establishment of a Jewish homeland. As such, according to the doctrine of uti possidetis juris, Israel’s territorial claims match those of the Palestine Mandate in 1948. Gurmendi bases his claim of Israeli secession on Israeli independence not occurring “in compliance with UN resolutions, but rather from an internal revolt leading to secession from Palestine.” However, as Bell and Kontorovich demonstrate, such messiness was the norm in other Class A Mandates. The French mandate for Syria and Lebanon ended following World War II. In 1943, during the war, the French were effectively ousted from power in Lebanon due to pressure from the Lebanese independence movement. In Syria, the French were expelled in 1946 after a series of diplomatic and military confrontations. The League of Nations did not have a direct role in the termination of the mandate. Furthermore, violent struggle is also typical for emerging states and as such does not detract from Israel’s rights according to uti possidetis juris.

Finally, Gurmendi argues that  “Israel cannot have any sovereign claim over territory it did not control in 1949” as this would “deny both Palestine’s right to independence under the “sacred trust of civilisation” and its right to self-determination under the UN Charter”. However, Palestinian self-determination cannot negate Israel’s territorial claims or the principle of territorial integrity; at most they imply the existence of competing claims which must be addressed in a final resolution. Of course, the existence of self-determination rights does not dictate the precise territorial scope in which they can be exercised [nor does it mandate a separate state; see Reference re Secession of Quebec]. A conflicting Palestinian right would not necessarily detract from Israeli territorial rights. The Mesopotamian Mandate similarly determined the borders of Iraq despite the denial of self-determination and independence to Kurds. In the Burkina Faso case, the ICJ explicitly stated that uti possidetis juris takes precedence over self-determination. Neither did the existence of competing claims undermine the application of the rule in Yugoslavia and the post-Soviet states, despite some of the new states eventually being driven apart by opposing claims of self-determination.

In conclusion, Israel has valid claims under international law to the West Bank, Gaza and East Jerusalem which deserve to be seriously examined. Most recently, ICC Judge Péter Kovács, in his partly dissenting opinion criticized the majority’s assumption that the West Bank, Gaza and East Jerusalem were indeed wholly Palestinian. At the First Zionist Congress in Basel in 1897, the Zionist movement affirmed as its goal “the establishment in Eretz Yisrael of a home for the Jewish people secured under public law.” Menahem Begin, Israel’s former Prime Minister, famously said that the Jewish people returned to its homeland not by the right of force, but by the force of right. These international legal rights deserved serious consideration by the ICJ.