27 Jul Sleight-of-Hand on Palestine at the League of Nations: How the alteration of a verb tense “legalized” Britain’s mandate
[John B. Quigley is Professor Emeritus at the Moritz College of Law of The Ohio State University in Columbus, Ohio USA]
On October 3, 1923, a telegram marked “urgent” was sent to the Secretary-General of the League of Nations, Eric Drummond, in Geneva. It read: “may h[is] m[ajesty’s] g[overnment] assume officially that mandate for Palestine entered into force as from September 29 stop request favour telegraphic reply as soon as possible – Curzon”
George Curzon was Britain’s Secretary of State for Foreign Affairs. He was asking what the League Council had done at a meeting held on September 29, the previous Saturday. At that meeting, the Council had mentioned Britain’s claim to a mandate over Palestine but had adopted no resolution.
Drummond did not tell Curzon he would have to check, in order to answer his question. Instead, he replied, in a one-sentence telegram dated October 4: “Mandates for Palestine and Syria entered officially into force as from September 29 Drummond.” The Curzon-Drummond exchange of telegrams, though available in the League archive, has apparently not previously been cited in the literature on Britain’s role in Palestine.
If Curzon wanted a neutral answer as to whether the Council had said that it deemed Britain to have gained a mandate for Palestine, Drummond was an odd choice as addressee on the telegram. Britain had its own representative on September 29, a seasoned diplomat named James Rennell Rodd. He should have known what the Council said. Or Drummond might have directed his telegram to Ishi Kikujiro, Japan’s representative, who held the rotating presidency of the Council on September 29.
Drummond, however, was a trusted ally. After serving two decades in Britain’s Foreign Service, he had become Secretary-General with British backing. And by September 1923, Britain was running out of arguments to rationalize remaining in Palestine. Was Curzon hoping for an interpretation by Drummond that would aid the British cause?
The term “officially” was an odd choice of words on Drummond’s part. Under the League Covenant (Article 22), the Council had no role in either designating or confirming a particular state as holding a mandate. Recognition of an immediate mandate, moreover, was not on the Council’s agenda on September 29. What had been put on the agenda the day before (26th Council session, 21st meeting, September 28) was a request by Britain for the Council to say that Britain would be deemed to hold a mandate once a peace treaty with Turkey entered into force. In that treaty, concluded on July 24, 1923, at Lausanne, Turkey renounced title over its Arab provinces (which included Palestine), but that treaty was yet to be ratified. Even that request was dubious, since, again, it was not up to the Council to say that a particular state held a particular mandate.
The need for territorial title
Britain in any event understood that it could not hold a mandate without title. A mandate could not substitute for title. The Covenant of the League of Nations, which the Entente Allies wrote into the Treaty of Versailles (the peace with Germany), gave the Allies the option of using what they called the mandate system to govern territory they planned to keep from Germany or Turkey. Covenant Article 22 provided an outline for mandate governance, with minimal oversight by the League Council. Before a state could undertake mandate governance, it needed title. For Germany’s overseas territories, title was conveyed to the Allies by Article 119 of the Treaty of Versailles. The need for title was noted by the League Council in a 1920 memorandum on the mandate system. Since by then the Allies already had title to Germany’s territories, the Council’s statement applied only to Turkey, with whom a peace treaty was yet to be finalized.
As of 1920, Britain was trying to gain title to Palestine. The Allies drafted a peace treaty at Sèvres with a clause (Article 132) whereby Turkey would convey to the Allies its title to its Arab provinces. In a notice posted in The Times (Status of Palestine: Mandate and Treaty, May 12, 1922, p. 9), the Government acknowledged that it could not hold a mandate for Palestine until that treaty was ratified. That treaty failed for non-ratification, however, whereupon Turkey and the Allies concluded a new peace treaty at Lausanne on July 24, 1923. Britain expected that this treaty would be ratified, hence its September 28 request to the Council for the Council to say that Britain would hold a mandate once ratification occurred.
In the Lausanne treaty, Turkey renounced, but not in favor of the Allies, or of Britain. Britain was relying on a clause (Article 16) in the Lausanne treaty that said that the future of the Arab provinces had been settled or would be settled by the interested parties. But Britain’s Principal Legal Advisor, Cecil Hurst, would soon debunk that rationale, saying, as he did (at p. 25) in a pleading in the Permanent Court of International Justice, that in the Lausanne treaty “there has been no succession between Turkey and Great Britain in regard to Palestine.”
What the League Council did – and did not — do
At the September 29 Council meeting, Britain’s request was not taken up. Instead, the Council focused on a separate matter relating to Britain’s claim for a mandate for Palestine. France had been holding up any consideration by the Council of the entry into force of the Palestine mandate on a consideration separate from that of title. France was refusing to allow the Council to deal with Britain’s claim until the Council would consider its claim to a mandate for Syria.
The Syria mandate, however, was being delayed because Italy, another Council member, objected to certain provisions of the document France had drafted to govern Syria. A year earlier, the Council had said that the two mandates could take effect simultaneously once France and Italy came to agreement on the Syria mandate document.
At the Council’s September 29 meeting (26th session, 23rd meeting), France and Italy announced that they had just that day finalized the wording of the Syria mandate. In response, the Council, without adopting any resolution on the matter, simply “noted,” as recorded in the French version of its minutes (p. 10), that the two mandates entreront (“will enter”) en vigeur automatiquement et en mểme temps.” In the English version of the minutes (p. 9) (minutes were recorded in both languages) the phrasing was that the two mandates “would now enter into force automatically and at the same time.” The Council thus anticipated simultaneous entry into force of the two mandates, but at a time in the future that it did not specify. The Council was simply saying that the Palestine mandate was no longer hostage to the Syria mandate. Britain and France still needed legal title, as was implicit in Britain’s request of the previous day.
Drummond’s letter to the League membership
Drummond did not limit himself to his telegraphic reply to Curzon. He composed a letter to every League member, making the same point. Going to such length was arguably in excess of his role as Secretary-General. Under Covenant Article 6, the Secretary-General attended Council meetings but was given no power to interpret actions of the Council. In his letter, denominated Circular Letter 101, Drummond spelled out why he thought that the Council had said that the two mandates came into force. He claimed that the Council, on the basis of the France-Italy agreement on the Syria mandate:
“took note of the fact that the mandates for Syria and Palestine had . . . automatically and simultaneously entered into force.”
The Council, however, said no such thing. It did not say that the two mandates had already entered into force or that they were entering into force by virtue of what it was saying that day. The Council spoke instead of a possible future simultaneous entry into force. Drummond changed the verb tense for “enter” from the future tense to the past tense. It is hard to avoid the conclusion that Drummond was doing a favor for Britain, rather than giving an objective interpretation.
Britain never referred publicly to Drummond’s Circular Letter as a basis for its claimed rights in Palestine. Drummond’s letter, however, became League dogma, reinforcing a specious claim of legality for Britain’s hold on Palestine.
Even had the Council said that the two mandates had entered into force on September 29, 1923, such a pronouncement would have had no legal force. Covenant Article 22 identifies certain powers for the Council in regard to mandates, but certifying the validity of a claim to a mandate was not one of them.
Explaining the unexplainable
Only in 1947 did Britain try to explain how the Council could have deemed it to gain a mandate prior to acquiring title. In that year, it sent the United Nations a memorandum in which it attempted to show that it had been in Palestine lawfully. In the third paragraph, the British Government wrote:
“It was not until the 29th September, 1923, after the Treaty of Lausanne had entered into force, that the Council of the League was able formally to give effect to the Palestine Mandate.”
As we have seen, of course, the Lausanne treaty had not entered into force by September 29, 1923. As shown in the League of Nations Treaty Series, the Lausanne treaty gained the needed ratifications to enter into force only on August 6, 1924.
By making the Lausanne treaty key to the legality of its tenure in Palestine, Britain was acknowledging one again that it needed territorial title. But it was still saying that it gained title on September 29, 1923. It could not find a way to claim that it had title by September 29 without falsifying the ratification date of the Lausanne treaty. If anyone at the UN noticed the discrepancy in the dates, they did not call Britain out. Far from challenging Britain, the UN made a finding that Britain’s “draft mandate” had (para. 68) “entered into force formally on 29 September 1923.” The UN even went on to recommend the partition of Palestine in a resolution that assumed the post-1917 migrant population to be entitled equally with the longer-standing population.
In 1948, the Jewish Agency, which Britain had enlisted in Article 4 of its mandate document:
“to secure the co-operation of all Jews who are willing to assist in the establishment of the Jewish national home,”
declared statehood in Palestine, claiming that the mandate document “gave international sanction” to “the right of the Jewish people to rebuild its National Home.” Without a valid mandate, however, the mandate document could not reflect any “international sanction.”
Consequences for states and for the scholarly community
The proposition that Britain gained a mandate on September 29, 1923 became a mantra in scholarly writings on Palestine. Jacob Stoyanovsky wrote (The Mandate for Palestine, 1928, p. 33) that:
“the mandates for Palestine and Syria came simultaneously into force on September 29, 1923.”
James Crawford wrote (The Creation of States in International Law, 2006, p. 429), “The Mandate came into force on 29 September 1923.” Malcolm Shaw wrote that the mandates as allocated by the Allies “came into force on 29 September 1923.” These authors do not explain their conclusion. They even fail to quote from the Council minutes.
The law of state responsibility prescribes consequences for internationally wrongful acts. Britain, lacking territorial status in Palestine, acted wrongfully by re-making the country in the way it projected in its mandate document. That wrongful act gives rise to an obligation to make amends. The Jewish Agency, as enabled by Articles 4 and 6 of the mandate document, collaborated in Britain’s conduct. Israel was formed by the Jewish Agency. States answer for acts of a movement (see Article 10) that establishes a state.
Attention is needed in the scholarly community into how reparation on the part of Britain and Israel can be effectuated. At both the scholarly level and the level of the international community, a fundamental re-think is in order to take account of the fact that Britain held no status in Palestine beyond that of belligerent occupant.
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