Legal Rights and Title of
Sovereignty of the Jewish People to the Land of Israel and Palestine under
International Law
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:
