England's responsibility for the violence in the Middle East - Draiman

England's responsibility for the violence in the Middle East

The parlous condition of the Jewish people over a large part of the known world, and particularly in such countries as Germany, Poland and Rumania, has called increasing attention to the workings of the Mandate for Palestine now administered by Great Britain under the authority of the League of Nations. The Mandate, when it was written, as well as the antecedent Balfour Declaration, clearly contemplated that the "home" to be established in Palestine was intended for the whole Jewish people who were to be established there by international sanction in the future. The intention was to provide a sane and reasonable solution to the age-old Jewish Diaspora problem, and it anticipated those circumstances which have rendered so large a portion of the Jewish race homeless.

If this was indeed the purpose of the Mandate it has proved a miserable failure, since it has solved nothing and has only succeeded in adding a new and formidable problem to a world already sinking under the weight of problems. Many reasons are adduced for this failure. Much is made of the irreconcilable differences between Arabs and Jews, instigated by the British, which the mandatory now claims render the Mandate unworkable.

The circumstances under which the Balfour Declaration and Mandate were issued. Napolean Bonaparte in 1799 offered The Jews in Palestine to reestablish the Jewish Home in Palestine. The false assertion that the Declaration was extorted from an unwilling Britain by Jewish financiers during the War can be obviously disposed of as a pure invention of the anti-Semitic mind. Another and more reasonable claim made to justify Britain's position in this matter is that she was totally ignorant of the real conditions in Palestine and the actual problems she was letting herself

in for when she made her bargain with the Jews; Britain renaged abd violated the terms of the Mandate; furtheremore, behind the scenes Britain encouraged Arab riots and violence against the Jews in Palestine and turned a blind eye while hundreds of thousands of Arabs entered Palestine from other Arab Lands. Under examination this contention loses much of its plausibility. For a hundred years Zionism, as we shall see, had been almost as much an English movement as it was a purely Jewish one. As for local conditions in Palestine, it is undoubted that British officialdom knew more about Arab social and economic problems than the Jews aspiring to settle there. From the time the American scholar Robinson attempted to explore archaeological remains in the Holy Landin 1837, London has, through the Palestine Exploration Fund, concentrated on the study of every minute detail that related to Palestine. "Theirs," state De Haas and Wise, "were the surveys, the compilation of flora and fauna, theirs too the enumeration and localization of the Bedouin tribes; theirs the studies in local conditions, the compilation of customs and excise, estimates of population, speculation as to the origins of peoples, observations on everything that relates to the area between the River of Egypt and the cedars of Lebanon." 1 Reaching far back into the 1840's, Lord Palmerston had compiled for his Government thorough material on Palestine, considering the possibility of exercising a British protectorate over that region in the Jewish interests. Since that time the accumulation has been so vast that it is only fair to say that the British archives contain a better survey of Arab social, economic, agricultural and other problems than the Arabs have of themselves.

As for the Balfour Declaration itself, it may be assumed that Lord Balfour, its author is an infallible witness to its intended purpose.

He wrote: "The national and international status of the Jews to that of other races . . . would be promoted by giving them that which all other nations possess: a local habitation and a national home . . . [where] they would bear corporate responsibilities and enjoy corporate duties of a kind which, from the nature of the case, they can never possess as citizens of any non-Jewish state." 2 It will be evident from the records that neither the Declaration nor the Mandate confers upon non-Jews any rights which would allow them to interfere with the growth and operation of the National Home. It is obvious that if these documents were to be interpreted so as to include National Home rights to legally present non-Jews, both the National Home grant to the Jews and the rights of non-Jews would be repealed by implication. The document would then repeal itself, which on the face of it would be a reduction ad absurdum.

As will also be seen from these pages, British trusteeship of the Holy Land was the result of Jewish demand itself, Wedgwood admitting rather shamefacedly in this respect that the Jews were "almost the only non-Anglo-Saxon people who seem to believe that on the whole England does try to behave decently towards other people." Although history has proven otherwise. The French offered to take over the Mandate for Palestine, which might have produced a better result. 3

The records prove beyond any doubt; that, the British Mandatory for Palestine has followed a deliberate violation of the Mandate terms and defaulting British policy in respect to its obligations there, and has itself largely created the conditions which it now so thoroughly decries. A large share of its biased policies have been motivated entirely by British power politics in the Mediterranean, in which the British Mandate was used for the purpose of surrounding British Imperial strategy in the Middle East with the aura of sanctity. A factor of even greater importance, however, is the gross anti-Semitism of a handful of civil servants in the bureaus of Whitehall and Westminster, which exists to these days 2016. It is to the phobia of these men against Jews that most of the troubles agitating the

Holy Land can be traced. Its wantonness is not flaunted; it is true, like the excesses of the German Nazis or the Polish Endeks.

It lies icily beneath the shining hardness of bureaucratic logic.

It is overlaid with the softness of English colonial skill - but, as we shall discover, it is in no sense less intense, and fully as implacable, as the open anti-Semitism of the Nazis on the Continent.

This, briefly, will be found to be the underlying condition which hides beneath the maze of pretension by which London has consistently and falsely justified its bad faith to the Jews and to the world. It is this factor which has caused the declared policy of the British Mandate to fail so ignominiously and which has allowed the Holy Land in these past years to be given over to Arab hooligans and desperadoes who have murdered its citizens, burned its crops and houses and demoralized its commerce.

The records are voluminous. The Arabs received over five million square miles of territory after WWI, which established 22 Arab states. It is interesting to note that the Arab Land have terrorized and expelled over a million Jewish families from the Arab countries; they confiscated all their assets; businesses, homes and over 70,000 square miles of Jewish owned land. The Jews have lived in the Arab lands for over 2500 years. Most of the expelled Jews have been resettled in Israel and today comprise over half the population.

The Old Testament indicates that historic Palestine included land on both sides of the Jordan River, east bank as well as west bank, including the territory now known as Jordan

Palestinians are by law guaranteed the RIGHT OF RETURN to Jordan, where they are entitled to citizenship, "unless they are Jews."

Jordan is very much afraid that it will be declared THE PALESTINIAN STATE, Jordan has NEVER allowed publication of the percentage of Palestinians in its population. Jordan is also afraid that someone might suggest to take a portion of its territory for a Palestinian state.  MORE THAN TWICE the number of Palestinians live on the EAST BANK of the Jordan River in Jordanian territory, than live on the WEST BANK.
 
 

1. The Old Testament indicates that historic Palestine included land on both sides of the Jordan River, east bank as well as west bank, including the territory now known as Jordan. The portion of historic Palestine east of the Jordan River equaled or exceeded in area the portion west of Palestine. In biblical times the tribe of Manasseh occupied more territory to the east of the Jordan River than to the west, the entire tribe of Reuben dwelled east of the Jordan, and the land called Gad was east of the Jordan. Mount Gilead and Ramoudh Gilead all were east of the Jordan, as were other biblical places and people. (See map, page 12, Literary and Historical Atlas of Asia, prepared by J. G. Bartholomew for the Everyman Library.) Even in the time of the New Testament (as shown by the map in Appendix 1). the land included territory on the east side of the Jordan River as well as the west. The New Testament city of Philadelphia was well east of the Jordan River, as was the city of Golan, which was part of Palestine, according to the Old Testament as well as the New. For an additional example, see Rand McNally Atlas of World History, ed. R.R. Palmer, Chicago, 1957, p. 25.

2. For map of Palestine, east, see 0. R. Conder, The Survey of Eastern Palestine, Committee of the Palestine Exploration Fund, London, 1889; also see J. Stoyanovsky, The Mandate for Palestine (London, New York, Toronto, 1928), pp. 66, 204---210. Arthur Balfour's memorandum of August 11, 1919, stated: "Palestine should extend into the lands lying east of the Jordan." Balfour, who led the British delegation to the Paris Peace conference (in 1919) "determined the frontiers" Of Palestine in a memorandum to Prime Minister Lloyd George, June 26, 1919: "In determining the Palestinian frontiers, the main thing to keep in mind is to make a Zionist policy possible by giving the fullest scope to economic development in Palestine. Thus, the Northern frontier should give to Palestine a full command of the water power which geographically belongs to Palestine and not to Syria; while the Eastern frontier should be so drawn as to give the widest scope to agricultural development on the left bank of the Jordan, consistent with leaving the Hedjaz Railway completely in Arab possession."

3. December 2, 1918-Toynbee minute: Foreign Office Papers; 371/3398-Amold Toynbee agreed with the Mandate: "It might be equitable [to include in Palestine] that part ... which lies east of the Jordan stream ... at present desolate, but capable of supporting a large population if irrigated and cultivated scientifically ... The Zionists have as much right to this no-man's land as the Arabs, or more," cited in Martin Gilbert, Exile and Return, p. 115. See also David Lloyd George, The Truth About the Peace Treaties (vol. 1), pp. 1144-1145.

4. United States recommendation at the Paris Peace Conference, January 21, 1919. See also U.S. Congressional Resolution, June 30, 1922, in Survey of Palestine, p. 21.

5. In Arabia itself, largely equivalent to present Saudi Arabia, Jews had been present and had developed towns such as Medina and Khaibar, where they thrived from Roman days and before, until the conquest by Muhammad and subsequent directions from Omar. Then the Jews were slaughtered or their land expropriated and Jews were forced to flee for their lives if they did not convert to Islam. Many of those Jews in the seventh century fled as refugees back to "Palestine," where Jewish inhabitants could even then be found in most towns referred to today as purely Arab areas.
Into the twentieth century, between 3,000 and 5,000 Jews lived in "purely Arab towns," such as Jenin, Tyre, Sidon, and Nablus during the Turkish domination; roughly 1,500 held on under the British Mandate; and in 1944-1947, zero. Those towns had been rendered judenrein by Arab pogroms; see Chapter 9.

6. Lord Balfour speech, July 12, 1920, cited in Palestine Royal Commission Reporl, para. 27, p. 27, 1937; see maps in this chapter and Appendix 1. See n. 15 here.

7.High Commissioner Harold MacMichael to the Secretary of State for the Colonies, regarding Transjordan, cipher telegram, private, personal and most secret, 1941, PRO C0733/27137.

8. David Lloyd George, The Truth About the Peace Treaties, pp. 1119, 1140. Also see Esco, Palestine, vol. 1, pp. 641

9. Gilbert, Exile, p. 132; see T.E. Lawrence, Revolt in the Desert, about Abdullah, particularly pp. 1-7. Feisal's role is woven throughout Lawrence's account. Also see King Abdullah of Jordan, My Memoirs Completed (Washington, D.C., 1954).

10. August 1, 1921, Secret dispatch #2301/pol., C0733/41683, Enclosure "A," Report No. 6.

11. PRO FO 371/6342, March 23, 1921.

12. July 4, 1921, telegram to Secretary of State for the Colonies, C0733/35186; response to "Very Confidential" memo "from the Civil Secretary after his recent tour in Trans-Jordania," Churchill to Samuel, July 2, 1921, C0733/36252.

13.Churchill Papers 17/14, January 17,1921; cited in Gilbert, Exile and Return, p. 132; the British chose Feisal to be King in March 192 1, at the Cairo Conference. See Esco, Palestine, pp. 121-126.

14.MacMichael hoped in 1941 to offer Abdullah a "consolation prize" of "Trans Jordan" when the country gained independence of the Mandate, and after Abdullah "has realized that his hopes ... for Syria ... are vain. We simply cannot have recrimination of these pledges to the Arabs until we are absolutely clear how and when they are to be converted into practice. The smaller the time gap between any promise and its implementation, the better. . . . " MacMichael to the Secretary of State for the Colonies, PRO C0733/27137.

15.According to the 1937 Palestine Royal Commission Report, "Trans-Jordan was cut away from that field [in which the Jewish National Home was understood to be established at the time of the Balfour Declaration.... the whole of historic Palestine]." The reason given was the later claim of the Arabs that a letter, called the McMahon pledge, from Sir Henry McMahon on October 24, 1915, had included Palestine in the territory that Britain promised to the Arabs. A formal Arab protest, called "The Holyland. The Muslim-Christian Case Against Zionist Aggression," was not declared until November 1921, six years after the date of the McMahon letter and four years after the Balfour Declaration. The fact that McMahon had excluded Palestine from his promise-as had the Emir Feisal excluded it from his request at the Paris Peace Conference in 1919, ignoring the McMahon letter-was conspicuously absent. The British government's failure to publish the complete correspondence gave credence to what otherwise would have been a quickly squelched, rather obvious ploy, until 1939, when a committee of British and Arab delegates scrutinized the correspondence; the British then determined that, in the words of one delegate, the Lord High Chancellor, Lord Maugham, "The correspondence as a whole, and particularly ... Sir Henry McMahon's letter of the 24th October, 1915, not only did exclude Palestine but should have been understood to do so. . . ." Similar testimony came from many eminent British government officials. Most notably, from Sir Henry McMahon himself. in The Times of London, July 23,1937, McMahon wrote, "I feel it my duty to state, and I do so definitely and emphatically, that it was not intended by me in giving this pledge to King Hussein to include Palestine in the area in which Arab independence was promised. I also had every reason to believe at the time that the fact that Palestine was not included in my pledge was well understood by King Hussein." The British case supporting McMahon was strengthened even further by the fact that Feisal waited until January 29, 1921-nearly six years later-to bring up the subject, and then he was quoted by Winston Churchill as being "prepared to accept" the exclusion of Palestine. The logical deduction to be made from the plethora of evidence seems clear: Palestine was indeed excluded-and in any case, the Balfour Declaration was incorporated by the Council of the League of Nations and was thus binding upon its trustee, England as Mandatory power, while no British letter of pledge could have been binding even if one had been given. Nevertheless, Arabs and their supporters have continued to attempt to cast doubt, as though the written documents didn't exist. Significantly, however, the 1937 Palestine Royal Commission Report, which was issued the same year that McMahon published his Times rejoinder, made the recommendation that "Transjordan should be opened to Jewish immigration." It never was. Palestine Royal Commission Report, pp. 22-38; for texts of several British witnesses and full McMahon text: Esco, Palestine, vol. 1, p. 1811 Great Britain, Correspondence, Cmd. #5957; Churchill White Paper, June 3, 1922, Statement of British policy in Palestine, Cmd. # 1700, p. 20; Lloyd George, The Truth About the Peace Treaties, vol. 11, pp. 1042, 1140-1155; D.H. Miller, Diary, vol. XIV, pp. 227-234 and 414, vol. 11, pp. 188-189, vol. XVII, p. 456; H.F. Frischwasser-Ra'anan, The Frontiers of a Nation (London: Batchworth Press, 1955), pp. 104-107. Frischwasser-Ra'anan writes of the statement by British Foreign Office expert on the Near East, Lord Robert Cecil: " 'Our wish is that the Arab country shall be for the Arabs, Armenia for the Armenians and Judea for the Jews,"' pp. 104-105; Antonius, Arab Awakening, pp. 390-392; The Letters of TE. Lawrence, David Garnett, ed. (Doubleday, Doran, 1939), pp. 281-282; for international legal interpretation, see J. Stoyanovsky, The Mandate for Palestine (London, New York, Toronto: Longmans, Green & Co., 1928), pp. 66, 205-223; Parliamentary Debates, Commons, vol. 113, col.115-116, May 23,1939, for the views of the Archbishop of Canterbury; for examples of discussion of the McMahon-Hussein matter that omit available evidence described or referred to above, and suggest support of the Arab protestations, see William B. Quandt, Fuad Jabber, Ann Mosely Lesch, The Politics of Palestinian Nationalism (Berkeley, Los Angeles, London: University of California Press, 1973), pp. 8-11; John S. Badeau, East and West of Suez (New York: The Foreign Policy Association, 1943), p. 45.

16.In the Anglo-American Committee's "Historical Summary of Principal Political Events in Palestine Since the British Occupation in 1917," a chronological summary beginning in 1917, no mention at all is made of the gift of Transjordan to the Arabs by the British-neither in the 1922 summary nor in 1928, when an "organic Law" was enforced, nor in 1929 when the ratification of the "Agreement" took place. See Summary in Survey of Palestine, vol. 1, pp. 15-25. Yet that act, which severed roughly seventy-five percent of the Mandate of Palestine, is ignored as a "principal political event"-the de facto creation of an Arab state on seventy-five percent of what had been deemed the "Jewish National Home," and which had been specifically set aside by the British and Arabs alike as an area "not purely Arab," as compared to Iraq and Syria. In the chapter preceding the "Summary," the Arabs' acquisition of an Arab-Palestinian state-a Palestinian state surely no less than Israel became-is presented as a fait accompli. "Prior to the 12th August, 1927, the High Commissioners for Palestine included within their jurisdiction the entire Mandatory area without separate mention of Transjordan. Since that date, however, the High Commissioners have received separate commissions for Palestine and Trans-Jordan respectively. " See Survey of Palestine, p. 14. (Emphasis added.) In the Summary, however, exhaustive attention is drawn to the Balfour Declaration and its ramifications upon the Arab community in Palestine; on the rioting- "The hostility shown towards the Jews [which was] ... shared by Arabs of all classes; Moslem and Christian Arabs, whose relations had hitherto been uneasy, were for once united. Intense excitement was aroused by the wild anti-Jewish rumors which were spread during the course of the riots." See Haycraft Inquiry, October 192 1, in Survey of Palestine, pp. 18, 19.

17.The only proposal Britain as Mandatory power submitted to the League of Nations "during the lifetime of the League. . ." was a 1922 memorandum citing Article 25 of the Mandate; Article 25 allowed the Mandatory power "with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of the mandate as he may consider suitable to those conditions, provided that no action ... is inconsistent with ... Article 15, 16 and 18." The article referred to "the territories lying between the Jordan and the Eastern boundary of Palestine ...... the eastern boundary being the Hejaz (Saudi Arabia). In Dr. Paul S. Riebenfeld, "Israel, Jordan and Palestine," (unpublished manuscript), pp. 10-18ff, exhaustive study of documentation concerning TransJordan and the Mandate. In fact it appears that, to humor Emir Abdullah, the British gave the appearance of a severance, with the real consequences of a severance from Palestine upon the Jewish National Home, and the de facto creation of the Palestinian Arab state, while the British never attempted to legalize their actions, only to record them; "the only legal action ever taken by the British Government" was taken under Article 25: the Resolution of September 16, 1922. League of Nations Official Journal, November 1922, pp. 1390-1391; Riebenfeld, ibid., p. 18. For an absorbing account of "what exactly happened on September 16, 1922" see Dr. Riebenfeld's "Integrity of Palestine," Midstream, August/September, 1975, p. 12ff; also see Ernest Frankenstein, Justice for My People.

18. Alec Kirkbride, A Crackle of Thorns (1956), pp. 19-20. Kirkbride goes on to say, however, that "There was no intention" in 1920 "of forming the territory east of the river Jordan into an independent Arab state." Also see Palestine Royal Commission Report, suggesting that Transjordan-Eastem Palestine-"if fully developed could hold a much larger population than it does at present," p. 308.

19.When Britain -entered into an agreement to transfer the exercise of administration on February 20, 1928, the League of Nations Permanent Mandates Commission challenged the agreement as a "conflict with the Mandate for Palestine." Quincy Wright, Mandates Under the League of Nations (Chicago: University of Chicago Press, 1930), p. 458. The statement of the Commission (in part) was: "Since the Commission is charged with the duty of seeing that the mandate is fully and literally carried out, it considers it necessary to point out in particular, Article 2 of the Agreement, which reads as follows: "'The powers of legislation and administration entrusted to His Britannic Majesty as mandatory for Palestine shall be exercised in that part of the area under Mandate known as Transjordan by His Highness the Amir . . .' does not seem compatible with the stipulation of the Mandate of which Article I provides that: 'The mandatory shall have full powers of legislation and of administration, save as they may be limited by the terms of this mandate."' League of Nations, Official Journal, Oct. 1928, p. 1574; also see pp. 1451-1453; also in Riebenfeld, Israel, Jordan and Palestine, pp. 24-25; ... At that point Britain's Council member "explained that Great Britain still regarded itself as responsible for the ... mandate in TransJordan and the Council was satisfied." Quincy Wright, Mandates Under the League of Nations (Chicago: University of Chicago Press, 1930), p. 458; as another example, in 1937 the Permanent Mandates Commission, at the 32nd Session, insisted that no obstacle should "prevent that Jewish National Home being established." Minutes of the 32nd Session, p. 90.

20. May 1946. See Chapter 17.

21. April 12, 1948, Arab League Resolution: No partition would be acceptable, and a Palestine must be liberated from the Zionists; on April 16, 1948, Abdullah abolished the Jordan Senate and appointed 20 new Senators: 7 Senators were Palestinian Arabs; on April 24, 1948, Jordan's House of Delegates and House of Notables, in joint session of Parliament, adopted a resolution: ". . . basing itself on the right of self-determination and on the existing de facto position between Jordan and Palestine and their national, natural and geographic unity and their common interests and living space. . . ." The parliament supported the "unity between the two sides of the Jordan Cited in
"Jordan Annexes Arab Palestine," by Benjamin Schwadran, Middle Eastern Affairs; vol. 1, no. 4, April 1950.

22. April 12, 1948, cited in Paul Riebenfeld, "The Integrity of Palestine", in Midstream, August-September 1975, p. 22.

23. Ibid.

24. Jordanian Nationality Law, Official Gazette, No. 1171, Article 3 (3) of Law No. 6, 1954, February 16, 1954, p. 105.

25. Ahmed Shukeiry to the Council of the Arab League, November 1966, cited in Riebenfeld, "The Integrity," Midstream, p. 23.

26.Mohamed Heikal, Road to Ramadan (New York: Ballantine Books, 1975), p. 96. See Heikal's account of a meeting between Arab heads of state, including King Faisal, Ghadaffl, and President Nasser; according to Heikal, King Hussein's war ended September 27, 1970, with the signed agreement between Hussein and Yasser Arafat, and the "withdrawal of all ... forces from every city in the country" (p. 99). According to another source, the ceasefire took place September 25, but fighting continued well into 1971. Political Terrorism, edited by Lester Sobel (New York: Facts on File, Inc., 1975), cited in Hashemite Kingdom of Jordan and the West Bank edited by Anne Sinai and Allen Pollack (New York: American Academic Association for Peace in the Middle East, 1977), p. 60.

27. June 2, 1971: Hussein's orders to Jordanian Premier Wasfi Tel, cited in Hashemite Kingdom, p. 61.

IS ISRAEL OCCUPYING THE WEST BANK?* by Howard Grief - Draiman

Howard Grief was born in Montreal, Canada, educated in law at McGill University and made aliyah in 1989. He served as international law advisor to Professor Yuval Ne'eman, the then Minister of Energy and Infrastructure on matters pertaining to the Land of Israel and Jewish rights thereto. He is a Jerusalem-based attorney and notary, as well as a specialist in Israeli constitutional law. In October 1993, he wrote the first of several articles denouncing the illegal agreements Israel made with the PLO; these appeared in the pages of Nativ and elsewhere. He is the founder and director of the Office for Israeli Constitutional Law.

He formulated the original thesis that sovereignty over the entire Land of Israel and Palestine was devolved upon the Jewish People at the San Remo Peace Conference in April 1920 as part of the global settlement that dismembered the Ottoman Turkish Empire and created the Middle Eastern states of today; as a consequence, the British White Papers published during the Mandate period, as well as the UN General Assembly Partition Plan of 1947, were illegal. He is the author of two forthcoming books on The Legal Foundation and Borders of Israel under International Law, which deal with his thesis in an orderly and comprehensive fashion

The "Howard Grief Eretz-Israel Letters to Meir Shamgar, 2005-2007 -- on Eretz-Israel and Israeli Constitutional Law" edited by Yoel Lerner was published by the Office For Israeli Constitutional Law (Registered Amuta), Iyar 5767 -- May 2007. It was submitted to Think-Israel by Yoel Lerner, editor of The Grief Letters on September 2, 2007.

[Editor's note: You can read Howard Grief, "The Origin of the Occupation Myth," by clicking here. And his article on "Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law" can be read here.]

IS ISRAEL OCCUPYING THE WEST BANK?^*

by Howard Grief

   

PART 1.   A LEGAL DISCOURSE ON OCCUPATION

It was a nerve-racking experience to attend an international conference of distinguished jurists on "Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context", held on June 5-7, 2007 in Jerusalem and Tel-Aviv. This event was sponsored by three organizations promoting international humanitarian law, human rights and Israeli-Arab co-existence: The Minerva Center for Human Rights, based at the Hebrew University of Jerusalem, the International Committee of the Red Cross and the Konrad Adenauer Foundation. All the speakers and panelists referred repeatedly to Israel's "occupation" of "Palestinian territory", and alleged that the "West Bank" and Gaza are "occupied territories" under international law and that Israel's legal status in those territories is that of an "Occupying Power". No dissenting voices were heard, though one jurist, Prof. Yaffa Zilbershatz of Bar-Ilan University did say that the "occupation" was legally established within the framework of international law. I came to the conference as an observer to witness in person the folly and self-flagellation of Israel's legal elite who give vent to the most anti-Zionist and pro-Arab contentions in scholarly fashion. It was disgraceful to hear speaker after speaker holding the same unshakable assumption, that Israel is in serious breach of the laws of belligerent occupation, as laid down in the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949, particularly as regards the establishment of "illegal" settlements in the "occupied territories" and its unmet obligations as an "Occupying Power" towards the Arabs.

The only conclusion that can be drawn from this Conference is that the Law Faculties of Israeli Universities are filled with professors and legal scholars who advocate the Arab case concerning the "occupation", and who have indoctrinated their impressionable students with the same injurious views. By railing against the "occupation", the legal scholars who populate the law faculties libel and berate their own country and encourage foreign scholars to join in the castigation of Israel for perpetuating the "occupation". Not least of all, they give aid and comfort to Israel's enemies.

It is becoming more and more difficult to refute the falsehood of "occupation", because this unfounded accusation has been given credence by no less an august institution than the Supreme Court of Israel. Beginning principally with the 1979 Eilon Moreh case and extending to recent cases involving the erection of the security fence and the Disengagement Implementation Law, the Court has affirmed that Israel is indeed an Occupying Power in Judea, Samaria and Gaza and governs these territories by virtue of the rules of belligerent occupation, exactly as Arab leaders have maintained. To overturn this libelous falsehood, it would require a special law to be passed by the Knesset, a law affirming Jewish legal rights to all parts of the Land of Israel, especially the so-called areas under "occupation". Such a law must state specifically that Israel does not occupy -- in the legal sense -- any area of the Land of Israel. 
 

THE IDEA THAT Judea, Samaria and Gaza are under Israel's "occupation" was born on June 6-7, 1967, when the Israel Defense Forces overran and repossessed these territories in the Six-Day War and the National Unity Government headed by Levi Eshkol instantly applied Article 43 of the Hague Regulations to keep the existing laws in force. The invoking of this article of international law by the Government was based on the legal advice of then Military Advocate General and future Supreme Court President Meir Shamgar, as well as several others who concurred in that decision. However, this step was in direct contradiction to the existing Israeli constitutional law embodied in the law known as the Area of Jurisdiction and Powers Ordinance enacted by the Provisional State Council on September 16, 1948, and two proclamations that were issued by Prime Minister and Defense Minister David Ben-Gurion just prior to the enactment of this law. These two proclamations -- the Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation of September 2, 1948 -- required the application of the law of the State to areas of the Land of Israel re-conquered by the IDF outside of the recommended UN partition borders of November 29, 1947. Both the law and the two Proclamations were made retroactive to May 15, 1948, thus creating one legal aggregate upon which to base future annexations of re-conquered territory that was part of the Land of Israel.

In contrast to the practice followed by Ben-Gurion's Government in 1948, the Eshkol government in 1967 applied not only the Hague Regulations relating to "occupied territories", but also the provisions of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. This gave birth to the assumption in the eyes of the world and in Israel itself that the liberated territories of the Land of Israel and the Jewish National Home were indeed "occupied territories". Israel chose to apply the Fourth Geneva Convention voluntarily and not to annex the liberated territories (except for eastern Jerusalem and the Golan Heights) out of demographic concerns and to keep alive the hope of signing peace treaties with the neighboring Arab states. But this provided no justification for the violation of the existing constitutional law or for failing to apply the law of the State to the liberated territories as Ben-Gurion did in 1948.

The term "occupation" is defined in article 42 of the Hague Regulations, where it states that "territory is considered occupied when it is actually placed under the authority of the hostile army and the occupation extends only to the territory where such authority has been established and can be exercised". The premise of Article 42 is that the territory in question belongs to the Occupied Hostile State which lost this territory in a war with the Occupying State. Since Jordan was never the legitimate sovereign of Judea and Samaria -- its occupation of this territory during the 1948-1949 Israeli War of Liberation has always been unacceptable under international law -- there never was any "occupation" of Jordanian territory. For the same reason, under neither the Hague Rules nor the Fourth Geneva Convention was there any "occupation" of the Gaza Strip, since Egypt was never the sovereign of that territory and, in fact, never claimed to be. Furthermore, the term "occupied Palestinian territory" is a non sequitur, since with the termination of the Mandate for Palestine there is no state called "Palestine" from which any land was taken in war, and the laws of belligerent occupation apply only to independent states and not to non-state entities such as the "Palestinian Authority" and the so-called "Palestinian People". In truth, the areas of Mandated Palestine that are said to be under Israel's occupation are actually integral parts of the Jewish National Home and belong to the Jewish People under both Israeli constitutional law and international law as decided in the post-World War One global settlement and the carving-up of the Ottoman Turkish Empire.

The Jewish National Home is not merely a meaningless phrase or slogan. It was and still is a concept of international law that was accepted by the 52 member states of the League of Nations which confirmed the Mandate for Palestine on July 24, 1922. In addition, the United States approved the boundaries of the Jewish National Home, including Judea, Samaria and Gaza, when it signed a treaty with Great Britain respecting the Mandate on December 3, 1924; this treaty was then proclaimed by President Calvin Coolidge on December 5, 1925 as part of the law of the United States. The boundaries of Mandated Palestine were those previously set down in the Franco-British Boundary Convention of December 23, 1920 and embraced all the so-called "occupied territories" of today.

The first and most important speaker at the Conference was Prof. Yoram Dinstein of Tel-Aviv University. In his opinion, as stated personally to the present writer, the Arabs of Palestine inherited the rights of the ousted sovereign Jordan, which transferred those rights to the "Palestinians" as a result of King Hussein's Declaration of July 31, 1988 dissolving Jordan's legal and administrative links with the West Bank. Dinstein's opinion is untenable since, as already noted, Jordan was never the recognized or legitimate holder of sovereignty over what it called its "West Bank". It acquired this territory in May 1948 through an unprovoked act of aggression against the nascent Jewish State; it had no right to this territory and then illegally annexed it two years later. Only two countries recognized this illegal annexation, Pakistan and Great Britain, though the latter did not recognize the Jordanian appropriation of the eastern part of Jerusalem. Not even the Arab League of states recognized the Jordanian annexation of the conquered areas of Mandated Palestine.

There remains only one way to end the myth of Israeli "occupation" of lands that belong by law to the Jewish People. A future Government of Israel must abolish the military regime adopted in June 1967 for Judea, Samaria and Gaza, and replace the existing military laws and regulations with the law of the State of Israel. 
 

PART 2.   THE OCCUPATION OF YESHA: A LEGAL ASSESSMENT

Many Israeli and foreign jurists assume that Israel has violated the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949, when it allowed Jewish communities to be built in Yehuda (Judea), Shomron (Samaria) and Gaza -- collectively, YESHA. Even Israel's Supreme Court has affirmed that Israel is an Occupying Power in these areas, having the right of governing them only by virtue of those Conventions. But is that true?

Since 1967, when the Israel Defense Forces conquered YESHA (as well as the Golan Heights and Sinai), successive Israeli governments applied Article 43 of the Hague Regulations, thereby retaining the existing laws of its former rulers. Invoking this article of international law was based on the legal advice of Meir Shamgar, Military Advocate-General in 1967 and later Supreme Court President, and others. This decision, however, directly contradicted existing Israeli constitutional law, the Area of Jurisdiction and Powers Ordinance enacted by the Provisional State Council on September 16, 1948, and two earlier proclamations issued by Prime Minister and Defense Minister, David Ben-Gurion.

The Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation of September 2, 1948 required the application of Israeli law to all areas of the Land of Israel re-possessed by the IDF beyond the UN partition borders of November 29, 1947. Both the law and the Proclamations were made retroactive to May 15, 1948, thus creating one legal aggregate upon which to base future annexations of re-conquered territory that was part of the Land of Israel and the internationally recognized Jewish National Home.

In contrast to the practice followed by Ben-Gurion's Government in 1948, the Eshkol National Unity Government in 1967 applied not only the Hague Regulations relating to "occupied territories", but also the provisions of the Fourth Geneva Convention. This gave birth to the assumption that the liberated territories of the Land of Israel and the Jewish National Home were indeed "occupied territories".

Israel chose to apply the Fourth Geneva Convention voluntarily and did not annex the liberated territories (except for eastern Jerusalem and the Golan Heights) out of demographic concerns and to keep alive the hope that neighboring Arab states would make peace. But this provided no justification for the violation of existing constitutional law, or for failing to apply the law of the State to the liberated territories, as Ben-Gurion did in 1948. 
 

THE TERM "OCCUPATION", DEFINED IN ARTICLE 42 of the Hague Regulations, refers to territory that is "actually placed under the authority of the hostile army and the occupation extends only to the territory where such authority has been established and can be exercised."

The premise of Article 42 is that territory which belonged to an Occupied State and was lost in war with the Occupying State cannot be claimed or annexed by the latter. Since Jordan was never the legitimate sovereign of Judea and Samaria -- its occupation of this territory during the 1948-1949 Israeli War of Liberation has always been unacceptable under international law -- there never was any "occupation" of Jordanian territory. For the same reason, neither under the Hague Rules nor the Fourth Geneva Convention was there any "occupation" of the Gaza Strip, since Egypt was never the sovereign of that territory and, in fact, never claimed to be.

Furthermore, the term "occupied Palestinian territory" is a non sequitur, since with the termination of the British Mandate for Palestine there is no state called "Palestine" from which any land was taken in war, and the laws of belligerent occupation apply only to independent states -- not to non-state entities such as the "Palestinian Authority" or the so-called "Palestinian People".

Areas of Palestine which were under the British Mandate that are said to be under "Israeli occupation" are actually integral parts of the Jewish National Home and belong to the Jewish People under both Israeli constitutional law and several international agreements concluded immediately after World War One, which constitute the real international law that is today conveniently forgotten by those alleging Israeli occupation of YESHA.

The belief that Palestinian Arabs inherited national and political rights from Jordan, which King Hussein then transferred to the "Palestinians" on July 31, 1988 when he dissolved Jordan's legal and administrative links with the West Bank has no legal basis. Since it acquired this territory through an unprovoked act of aggression, Jordan had no right to this territory. Not even the Arab League recognized the Jordanian annexation of the conquered areas of Mandated Palestine.

To repeat the conclusion from Part 1: to end the myth of Israeli "occupation", the Israeli government must abolish the military regime adopted in June 1967 for Judea, Samaria and Gaza, and replace the existing military laws and regulations with the law of the State of Israel.

[*] The proper names for the West Bank are Samaria and Judea -- Samaria is the land north of Jerusalem; Judea is the land south of Jerusalem. These names were used in Biblical times and throughout the centuries, until (Trans)Jordan invaded the territory in 1948, renaming the area the "West Bank".

Howard Grief was born in Montreal, Canada and made aliyah in 1989. He served as a legal advisor to Professor Yuval Ne'eman at the Ministry of Energy and Infrastructure in matters of international law pertaining to the Land of Israel and Jewish rights thereto. He is a Jerusalem-based attorney and notary, as well as a specialist in Israeli constitutional law. In October 1993, he wrote the first of several articles denouncing the illegal agreements Israel made with the PLO that appeared in the pages of Nativ and elsewhere. He is the founder and director of the Office for Israeli Constitutional Law.

Part one was submitted June 10, 2007; part 2 June 20, 2007.

[Editor's note: You can read Howard Grief, "The Origin of the Occupation Myth," by clicking here. And his article on "Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law" can be read here.]

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 anersatz 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.

Howard Grief was born in Montreal, Canada and made aliyah in 1989. He served as a legal advisor to Professor Yuval Ne'eman at the Ministry of Energy and Infrastructure in matters of international law pertaining to the Land of Israel and Jewish rights thereto. He is a Jerusalem-based attorney and notary, as well as a specialist in Israeli constitutional law. In October 1993, he wrote the first of several articles denouncing the illegal agreements Israel made with the PLO that appeared in the pages of Nativ and elsewhere. He is the founder and director of the Office for Israeli Constitutional Law.

This article was published in "Nativ Online", February 2004 #2.
(http://www.acpr.org.il/ENGLISH-NATIV/02-issue/grief-2.htm) It is Ariel Center for Policy Research (ACPR) Policy Paper #147.