Jewish Legal Rights and Title to the Jewish Legal Rights and Title to the Land of Israel and Palestine Howard Grief

Jewish Legal Rights and Title to the Jewish Legal Rights and Title to the Land of Israel and Palestine

Howard Grief

The legal title of the Jewish People to the mandated territory of Palestine in all of its historic parts and dimensions was first recognized under international law on April 25, 1920 by a Decision taken at the San Remo Peace Conference by the Supreme Council of the Principal Allied Powers to entrust Palestine to Great Britain under the Mandates System for the purpose of establishing a national home for the exclusive benefit of the Jewish People, in accordance with the terms of the Balfour Declaration of November 2, 1917.

The Supreme Council of the Allies was made up of the top political leaders and officials of Great Britain, France, Italy and Japan, and it was they in their meeting in the Italian resort city who decided the future fate of all the Asiatic possessions which, as a consequence of World War I, had ceased to be under the sovereignty of the Ottoman Turkish Empire which formerly governed them.

These possessions included all the area then called the Fertile Crescent, which originally comprised Palestine, Syria and Mesopotamia (whose name later became Iraq) as separate territorial units, before any substantive changes were made to their boundaries. At the San Remo Conference, it was decided that all three countries, whose exact borders had not yet been delineated, would be administered by Mandatories under the newly-created Mandates System, established by the Treaty of Versailles of 1919. The Mandates System did not come into being until the ratification of this Treaty on January 10, 1920. It was established simultaneously with the League of Nations whose duty it was to supervise the observance of individual mandates through a body called the Permanent Mandates Commission. The actual terms of those mandates and the powers exercised by the Mandatory were in each case explicitly defined and confirmed by the Council of the League unless previously agreed upon by the Members of the League.

British determination and influence in the wartime group of nations officially called the Principal Allied Powers in relation to Turkey excluded other areas under former Ottoman rule in Asia from being part of the new system of mandatory government, particularly the Hedjaz and the whole Arabian Peninsula.

This was the global settlement that was made after World War I, that conferred enormous benefits to the Arabic-speaking world. The “Arabs” received the lion’s share of the territories that formerly belonged to Turkey. As a result of this munificence they hold today lands equal to twice the area of the USA.

Other peoples who were originally included in this global settlement fared badly. Kurds and Armenians were supposed to get their own autonomous homelands or states, and the Assyro-Chaldeans, who were a Christian community centered in Mosul, were also promised protection and safeguards for their rights. However, in the final outcome, none of the promises made to them were fulfilled, because their claims and aspirations, although explicitly recognized by the Allies in the abortive Treaty of Sevres, were subsequently discarded by both the British and French who turned over their designated areas to the complete control of both Arabs and Turks who then cruelly deprived them of their vested national rights and status within those areas.

When the settlement and division of land was devised at the San Remo Conference, it was clear to all concerned parties, Arab and Jew alike and to all European, American and Japanese statesmen, that Palestine, within its historic frontiers according to the biblical formula, from Dan to Beersheba, but which still needed to be marked out in a separate agreement, was exclusively reserved for the benefit of the Jewish people all over the world, of which only a fraction then actually lived in the ancient Jewish country. What this obviously meant to one and all was an independent Jewish State in all of the historic territory of Palestine.

Jewish legal rights and title to all of historic Palestine, including Transjordan and Golan, whose association with the Jewish People goes back to the earliest days of Jewish history, was indeed then formally recognized in the Franco-British Convention of December 23, 1920, even though no specific words were used to that effect but was well understood by the parties, both from the negotiations that were conducted prior to the conclusion of the Convention in consultation with Zionist leaders who pressed the British to obtain the best possible frontiers for the Jewish National Home, and from the reference to the Mandate for Palestine contained in the Convention itself. Some parts of historic Palestine were not included in the final boundaries assigned to Palestine, especially in the northern and north-eastern sections of the new lines.

Jewish legal rights and title to the country of Palestine were founded on three basic pillars which comprised the following sources of support:

The historical connection of the Jewish People with Palestine in its entirety. Without this acknowledgment of the country’s storied Jewish past, there would have been no Mandate and no Jewish National Home. The historical connection dated back to the Israelite period as described in the Jewish Bible, to the Hasmonean restoration and to the Herodian era and also, in general, to the unbroken chain of links which Jews of every generation had always maintained with the Land of Israel from the very first days of the Patriarchs, Abraham, Isaac and Jacob, right up to the present day, embracing a continuous history of approximately 3800 years.

1.        The right enshrined in Article 22 of the Treaty of Versailles of 1919 which provided for national independence or self-determination for those peoples, inhabitants and communities living in the colonies and territories formerly under Turkish and German sovereignty. This principle of self-determination was also adopted for the benefit of the Jewish People by the Principal Allied Powers when they created the Mandates System even though the vast majority of Jews did not live in any of the territories described in Article 22 of the Treaty of Versailles that were destined for eventual independence. That was the most unique element of the Mandate for Palestine, different from all other Mandates that were conferred, where the local inhabitants were designated the beneficiary of the Mandate. Article 22 was placed in the First Part of the Treaty of Versailles, dealing with the Covenant of the League of Nations, which emphasized its special importance. The same was done in all the other Peace Treaties that were concluded after World War I, including the unratified Treaty of Sevres with the Sublime Porte that was signed on August 10, 1920.

2.       The right of the Jewish People to reconstitute their State of old in accordance with the Balfour Declaration of November 2, 1917, as adopted by the Principal Allied Powers on April 25, 1920 at the San Remo Conference. The Balfour Declaration was a declaration of sympathy with Jewish Zionist aspirations as stated in the brief letter sent to Lord Lionel Walter Rothschild which contained the text of the famous Declaration. It viewed with favor “the establishment in Palestine of a national home for the Jewish People” and the British Government of Prime Minister David Lloyd George pledged itself “to use their best endeavors to facilitate the achievement of this object”. This pledge was subsequently transformed into a binding obligation under Article 2 of the Mandate for Palestine and also by the wording used in the Preamble. The British Government was thereafter responsible for putting into effect the Balfour Declaration under international law and for establishing the Jewish National Home in Palestine.

The “home” referred to in the Declaration was a euphemistic term for “state” already used 20 years earlier by the Jewish leaders attending the World Zionist Congress convoked by Theodor Herzl and held at Basel, Switzerland, in August 1897, so as not to offend Turkish sensibilities on the projected loss of Palestine from their recognized sovereign domains under international law. The word “national” was later appended to the word “home” by Nahum Sokolow, the long-time Zionist leader at the time he participated in the drafting of the Balfour Declaration with British officials. The addition of this word was to make it even clearer what the ultimate goal of the Zionist Organization was, on behalf of the scattered Jewish people. Strangely, what was evident by the words “national home” then became muddled by the originator of the term, Sokolow himself, who, in a display of inane and unnecessary deception, wrote in the introduction to his two-volume monumental work, History of Zionism, published in 1919, that the word “home” as used in the Basel Program of 1897, did not mean the creation of an independent “Jewish State”, which was an interpretation he attributed to anti-Zionists who were opposed to the revival of the Jewish People as an independent nation in its ancestral homeland. This denial of the term’s true meaning was contrary to what both Balfour and Lloyd-George themselves stated, both at the time the Balfour Declaration was approved by the War Cabinet and in the years afterwards. It was also contrary to President Wilson’s own pronouncement on the subject, influenced by the great American Supreme Court Justice, Louis Dembetz Brandeis, both of whom had a major role in the approval of the Balfour Declaration. The matter became further confused by Ahad Ha’Am, the pompous pseudonym used by Asher Ginsberg, who stated erroneously in a deliberate trouble-provoking exegesis that the words “in Palestine” did not mean that the whole country of Palestine would become the Jewish National Home. Furthermore, he declared that Palestine was also the national home of the Arabs who deserved the same rights as the Jews were obtaining in ruling the country they both shared.

As a result of Sokolow’s and Ginsberg’s unconscionable and unforgivable misrepresentations which created heavy roadblocks on the way to Jewish independence, it thereafter became easy for succeeding British Governments to exploit their false interpretation of the Balfour Declaration and to change the policy embedded in the Declaration to the great detriment of the Jewish National Home.

Despite British backtracking, the Balfour Declaration did become in any case an act of international law of supreme importance to the cause of Zionism, when it was officially adopted by the Principal Allied Powers at the San Remo Conference. It is without doubt the lynchpin or essential foundation of all Jewish legal rights to Palestine under international law, upon which everything else depended. It was the exclusive basis for the implementation of the Mandate for Palestine. It may be said without exaggeration that almost every article of the Mandate for Palestine was only an extension or elaboration of what the Balfour Declaration was meant to be in actual practice, including those provisions not ostensibly thought to be dealing with the establishment of the Jewish National Home.

The foregoing three components of the Jewish legal title to Palestine were then rolled into one comprehensive international instrument, the Mandate for Palestine, which thereafter became the primary cited source for Jewish legal rights to the re-constituted Jewish National Home that was called Palestine in English, a name originally chosen by the Zionist leaders in the Basel Program of 1897, and translated into Hebrew as the Land of Israel.

These rights were included specifically in the first three recitals of the Preamble of the Mandate Agreement, each one of the recitals being of great importance by itself. Recital One refers to Article 22 of the Covenant of the League of Nations, which leads back to Part I of both the Treaty of Versailles and the Treaty of Sevres. Recital Two refers to the Balfour Declaration that was adopted by the Decision of the Principal Allied Powers at the San Remo Conference which, four months later, was transformed into Article 95 of the Treaty of Sevres. Recital Three then mentions the historical connection of the Jewish People with Palestine and it also organically links together all three components of the Jewish legal title when it further states that “recognition has thereby been given… to the groundsfor reconstituting their national home in that country”. The word thereby, together with the plural rendition of the word grounds, provide the connecting thread for all three recitals. Furthermore, the word reconstituting, as used here, is a direct reference to the State of Judea, since the only country with which there was an historical connection by the Jewish People was Judea before its name was changed to Palestine by the Roman Emperor Hadrian. The word Judea in Greek and Latin actually connotes “the Jewish country”, further evidence of the Jewish historical connection.

The instrument containing the Mandate for Palestine is thus the final locus or resting place of Jewish legal rights to all of Palestine. However, it should be remembered, that although the Mandate for Palestine is also of the greatest importance for asserting these rights, it is not the starting-point of Jewish sovereignty over all of Palestine. That occurred on April 25, 1920, the exact date when Great Britain was appointed the Mandatory and entrusted with a Mandate to implement the Balfour Declaration for the benefit of the Jewish People, who were defined as World Jewry, rather than the Jews of Palestine. It was then that Article 22 of the League of Nations Covenant became intertwined and integrated with the Balfour Declaration which together devolved sovereignty over Palestine to the Jewish People to reconstruct the Jewish National Home.

This constituted official recognition under international law of Jewish legal rights and title to all of Palestine, which has never since been altered by any other binding act or instrument of international law that has also met the test of legality.

In this regard, it is worthwhile to assess the claim that Jewish legal rights and title to the whole country including Judea, Samaria and Gaza, ceased to have effect with the end of the Mandate for Palestine. This claim is wrong not only for the reason that the U.N. Partition Resolution of November 29, 1947 failed to be accepted at the relevant time by the concerned Arab parties, including the local Arab inhabitants, and was in any case only a recommendation that was not self-executing. There is a more fundamental reason why Jewish legal rights and title over all of Palestine continued after the end of Mandate which relates to the doctrine of estoppel, which applies both in international law as well as in the municipal or internal laws of nations. This doctrine affects three distinct groups or parties. First, all the members of the League of Nations, over fifty in number are debarred by virtue of this doctrine from denying what they had previously assented to, at the time the Mandate for Palestine was confirmed by the League, i.e., that the country in its entirety including Judea, Samaria and Gaza was exclusively reserved for the Jewish People for the purpose of setting up its national home or state.

Second, the doctrine of estoppel also applies with even greater force to the United States, which had specifically accepted all the terms of the Mandate for Palestine in a treaty it signed with Great Britain on December 3, 1924. The ratification of this treaty by the U.S. Senate had the additional legal effect of making the Mandate for Palestine and the Balfour Declaration which was its breath and essence, part of the domestic law of the country. This is a fact of enormous importance, which has been conveniently forgotten today by the American Government that wrongly calls legally established Jewish settlements in Judea, Samaria and Gaza, "obstacles to peace”, and whose expansion it considers “inflammatory and provocative”. By its previous approval of the treaty, the U.S. is estopped from denouncing or taking any action against Jewish settlement activity in the Land of Israel.

Finally, the doctrine of estoppel applies with equal validity to all Arab states whose own creation under international law derived from the very same global settlement made by the Principal Allied Powers at San Remo and Sevres which led to the establishment of the Jewish State. The Arabs cannot gleefully accept national rights accorded them under this settlement while at the same time denying them to the Jewish People. By doing this, they are engaging in blind and willful disobedience of international law, which is also plainly irrational.

One additional note related to this matter is that it is unnecessary to base the continuation of Jewish legal rights and title to all of former Palestine on Article 80 of the U.N. Charter. This provision was designed as a stopgap measure until the new trusteeship system set up by the Charter could replace the Mandates System and take full effect. However, once the Jewish State came into existence, Article 80 ceased to apply to Palestine, since the country could no longer be placed under the trusteeship system by means of a trusteeship agreement.

Unfortunately what was clearly established in regard to Jewish legal rights and title to all of Palestine under international law both by the San Remo Decision on Palestine and the Mandate for Palestine became almost immediately obscured and undermined by new events and developments. This process began with the overthrow of the Turkish Sultanate by revolutionary armed forces led by Mustafa Kemal, later called Kemal Ataturk.

After taking complete control of the Turkish Government, Ataturk refused to accede to the loss of any Turkish territories in Anatolia, as provided in the Treaty of Sevres. These territories included Greek-speaking Smyrna and its surroundings, Cilicia or Little Armenia and the Kurdish-inhabited parts of South-Eastern Anatolia. His sweeping military triumphs forced the scrapping of the Treaty of Sevres which was replaced by the Treaty of Lausanne on July 24, 1923, ratified a year later on August 6, 1924. This development did not directly affect the San Remo Decision on Palestine nor the status of the newly emergent countries detached from the Ottoman Empire that became Arab states. The damage done was of another order.

The various provisions of the Treaty of Sevres which had clearly set out the new legal structure for Palestine and that of Syria and Mesopotamia in an unambiguous way were not repeated in the Treaty of Lausanne, but simply omitted altogether, replaced by a vague clause (Article 16), which referred to the future of territories “being settled or to be settled by the parties concerned” among which was Palestine, over which Turkey again renounced all rights and title, as it had done previously when the Sultan’s representatives signed the Treaty of Sevres.

The change in regime in Turkey clouded the legal picture for Palestine in particular since the clear-cut provisions in the Treaty of Sevres which applied to it and left no doubt about Jewish legal rights and title to Palestine and the all-important date of their inception under international law stemming from the San Remo Decision were no longer there.

As a result, many renowned jurists have wrongly maintained that Turkey only lost its sovereignty over Palestine and the rest of the Fertile Crescent when it agreed to the Treaty of Lausanne of 1923, though the Treaty of Versailles of 1919, also recognized by Kemal’s Turkey, expressly rebuts that incorrect contention, as does the first recital in the Preamble of the Mandate for Palestine as well as Turkey’s earlier acceptance of Wilson’s Fourteen Points, delivered in an address to the U.S. Congress on Jan. 8, 1918, one point of which dealt specifically with Turkey limiting its control to its own peoples. In any event, the provisions of the Treaty of Sevres still have great evidentiary value despite its non-ratification, to show what the Principal Allied Powers actually intended to do or had in mind when they adopted the Balfour Declaration as the only basis of the Mandate for Palestine.

The changes produced by Ataturk’s rise to power were also accompanied by a sudden American intervention in the involved process then underway to confirm all the new mandates that were allotted to Mandatories under the Mandates System. The United States unexpectedly insisted on receiving for itself as well as for its nationals the same rights and benefits that were being given to all members of the League of Nations and their nationals, which would have been granted to them in any event. This new demand unduly held up the pending confirmation of the Mandate for Palestine that had already been submitted by Balfour on behalf of the British Government to the Council of the League of Nations on December 7, 1920, and was on the verge of being acted upon.

The American maneuver produced very deleterious effects for Jewish legal rights and title to all of Palestine. Not only did it prevent the immediate confirmation of the Mandate for Palestine by the Council of the League of Nations, but, more importantly, the irritating delay gave more time to the British Government to play around with the provisions of the Mandate for Palestine that had already gone through numerous drafts under the guiding hand of the British Foreign Minister. The American Government never acknowledged the damage their unnecessary demands caused the Jewish National Home, even if done unwittingly.

The damage done soon became evident enough. Thanks to the unwelcome American intrusion, the British deviously sneaked in a new provision into the Mandate, that of Article 25, using as a lame excuse Abdullah’s threatened advance into Syria to protest his brother’s eviction by the French, which had no chance of succeeding but amounted to mere bluster and feigned action. This additional provision to the Mandate for Palestine provided for a different administration of Transjordan from the rest of Palestine west of the Jordan River that led over the course of time, by various illegal steps additionally taken by the British to the complete loss of Transjordan from the Jewish National Home. The loss of that territory, once considered absolutely essential even by Hayim Weizmann and Nahum Sokolow for Palestine’s future economic prosperity, deprived Palestine of a great reserve of land that was  intended for Jewish settlement and development, as in the olden days when Jewish life flourished there.

The British engaged in other shady maneuvers and artifices whose combined effect was to distort the true legal meaning of the Mandate for Palestine and put in doubt Jewish legal rights and title to the whole country.

In a research paper presented by the writer to the Minister of Energy and Infrastructure in the Shamir Government (1990-92), he detailed some of the methods or devices employed by Britain to falsify the explicit provisions of the Mandate for Palestine that were meant to secure the establishment of the Jewish National Home and hence the Jewish State.

However, these methods or devices were so skillfully contrived and artfully executed, they fooled most people at the time. And because they were also based on Zionist antecedents provided by the likes of Nahum Sokolow and Asher Ginsberg and supported to a certain extent by the statements of Hayim Weizmann himself, the British were able to get away with their brazen undermining of the Jewish National Home until it became obvious what they had done. By that time, it was already too late to do anything to reform the situation and execute the Mandate according to its original true meaning.  The British methods or devices included the following acts of sabotage of the Jewish National Home:

Changing the meaning of the words “the establishment in Palestine of a national home for the Jewish People” to connote not the establishment of an independent Jewish State, but rather a cultural or spiritual center, as earlier advocated by both Ahad Ha’Am and Nahum Sokolow.

Misrepresenting the Mandatory’s solemn obligations under the Mandate to include not only obligations in favour of the Jewish People, but also undertakings of equal weight designed to satisfy Arab aspirations for self-government in Palestine. In truth, there were no British obligations towards “Arabs”, in a national or collective sense, which were contained in the Mandate for Palestine, since their claims for nationhood had already been amply satisfied in the neighboring countries. It is true that the Mandate contained a specific provision making Arabic an official language, but since that was also done for English, it can in no way be deduced that Arab national rights were recognized under that provision alone.

Introducing the illegal principle of partition into the Mandate Agreement, which was expressly forbidden by Article 5 of the text of the Mandate. Here the British showed great ingenuity, using all their brilliant grammatical skills to find a mother lode of new meaning from the simple phrase “in Palestine”. They turned what was an innocuous expression originally used by the Zionists in the Basel Program of 1897 into a weapon to cut down the size of the Jewish National Home, which was always meant to cover the entire territory comprising historical Palestine.

Administering Palestine in such a way as to bring about the establishment of an independent Arab Government for Palestine, which was, of course, the complete opposite of what was required to be done under the Mandate’s provisions. This British policy of converting a Jewish Palestine into an Arab Palestine reached its outrageous apex in the infamous White Paper of May 17, 1939, presented by Colonial Secretary Malcolm Macdonald on behalf of the British Government led by Prime Minister Neville Chamberlain. That constituted an unrivaled act of diabolical treachery that will be remembered for all time because it prevented the rescue of millions of Jews trapped in the Holocaust who could have found refuge in Palestine, had the British truly implemented the Mandate as they were legally required to do.

Those British figures who were chiefly responsible for tearing asunder the definitive peace settlement reached at San Remo and Sevres and concomitantly with obfuscating Jewish legal rights and title to all of Mandated Palestine are among the most revered personages in British and Zionist history, specifically George Nathaniel Curzon, Herbert Samuel and Winston Churchill.

Curzon was a leading member in Prime Minister Lloyd George’s War Cabinet, who became Foreign Secretary upon the retirement of Arthur James Balfour. He was placed in charge of Palestine’s affairs during the critical formative years of the Mandate when it was in the midst of being drafted. He displayed a very negative attitude to the task he was assigned. He detested (and this is not too strong a word) the whole idea of creating a Jewish State and did his utmost to weaken its legal basis and to slow it down. He was ably aided by his officials who were much less hostile to Jewish aspirations, notable among whom were Eric Forbes Adam, Robert Vansittart and Hubert Young. What Curzon managed to do was to detrimentally change many of the original clear-cut provisions of the Mandate for Palestine designed to secure its establishment as a Jewish State, which had already been approved earlier by Balfour when he was in charge of overseeing the actual drafting of the Mandate for Palestine.

Despite Curzon’s best attempts to prevent a Jewish state from being seen as the real and most important objective of the Mandate for Palestine, he did not fully succeed. That job was left to two others, Herbert Samuel and Winston Churchill, who were put in charge of Palestine’s affairs, when jurisdiction over colonies and mandated territories was taken away from the Foreign Office and transferred to the Colonial Office early in 1921.

The nefarious work begun by Curzon was ironically taken over and completed by the erstwhile Zionist, Herbert Samuel, who just before his appointment as British High Commissioner in Palestine worked closely with Hayim Weizmann in the Zionist Organization and helped to prepare the Zionist proposals submitted to the Paris Peace Conference of 1919. Samuel’s subsequent undermining of what was the true intent of the Mandate for Palestine was recorded in the anti-Zionist “Churchill White Paper” of June 3, 1922, which he wrote with the blessing and connivance of Winston Churchill, then the Secretary of State for the Colonies, and which was accepted under ominous circumstances by the official Zionist leadership just prior to its release.

It was this White Paper of June 3, 1922 which was a turning point which caused all the future difficulties in Palestine and wrecked the original plan for establishing an independent Jewish State under British tutelage. The reason is simple enough. After publication of this White Paper, all British Governments which followed over the years implemented not the actual terms of the Mandate for Palestine but the interpretation or policy contained in the White Paper as to what the British responsibility and role was to be under the Mandate. The latter required a Jewish State, while the Churchill White Paper negated it, despite Churchill’s false claim that such a state was not precluded, made fourteen years later in his testimony before the Peel Royal Commission. His White Paper also elevated Arab pretensions and aspirations to such an extent that everything thereafter became muddled and unclear, subject to continuous disputes as to what was really intended by the Mandate for Palestine.

The British circumvention of the Mandate for Palestine continued apace during the entire period of Mandatory rule, which lasted from July 1, 1920 to May 14, 1948.

The question now arises in light of what occurred in the past just what Israel can do today to rectify the British legacy of betrayal and the consequent widespread ignorance surrounding Jewish legal rights and title to all of former Palestine. The answer is to first learn what the rights granted to the Jewish People under international law were (i.e., under the San Remo Decision adopting the Balfour Declaration on April 25, 1920 and its projected implementation in the Mandate for Palestine), and then behold how true international law was perverted and sabotaged by the British. This is extremely important because everyone today cites “international law” in favour of a fictitious nation called the “Palestinians” whose land is being “occupied” by the Jewish nation of Israel which is highly ironic and even laughable in view of the fact that this land that is called “occupied” was always meant under Article 6 of the Mandate for Palestine to be “closely settled” not by Gentile Arabs, but by the Jews of the world who would become Palestinian and then Israeli Jews in the course of time. What true international law is on the subject is neither discussed nor exposed nor really known by hardly anyone.

Next, Israel must act according to what that law truly presupposes, namely a Jewish State in the whole Land of Israel, including both sides of the Jordan. Present circumstances, of course, do not allow for the fulfillment of all Jewish rights to our country, particularly as regards those parts of Transjordan which comprise the Land of Israel such as Gilead and Bashan, but we should never renounce those rights, which, lamentably, is exactly what has been done, illegally of course, by all Governments of Israel since 1993.