Prime Minister Ehud Olmert Monday categorically rejected assertions by American Jewish leaders that Jerusalem is not an Israeli issue but “a Jewish one.”

Speaking at a news briefing Monday, Olmert said that the Jerusalem issue had “been determined long ago” and that “the government of Israel has a sovereign right to negotiate anything on behalf of Israel.”

He said that at this stage, the matter was a theoretical rather than practical one, as the subject of Jerusalem was not yet on the negotiating table.

Don’t you believe it.
 

I attended a lecture tonight by Jacques Gauthier, a Canadian Lawyer who just received his PhD after twenty years of research on the legal status of Jerusalem and the writing of a dissertation of some 1300 pages with 3000 footnotes. He is not a Jew and had to present his thesis to a panel of two of the leading international lawyers and one world famous Jewish historian. The reason for so many footnotes was to enable himself to defend his thesis from intense attack by one of the lawyers who happened to be a Jewish anti-Zionist and who had represented the PA on numerous occasions.

Here’s what he said in point form:

[1.] The Balfour Declaration of 1917 started the whole process but it didn’t create legal rights.

[2.] The San Remo Resolution adopted on 25 April 1920 incorporated the Balfour Declaration of 19171 and Article 22 of the Covenant of the League of Nations. It was the basic document upon which the Mandate for Palestine was constructed. And it constituted a treaty and was thus legally binding.

The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.

He pointed out that the Arabs weren’t even mentioned but that civil and religious rights only were accorded other inhabitants . This thereby excludes political rights for Arabs.

[3.] Article 22 of the Covenant of the League of Nations provides for the creation of mandates.

To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.

The legal significance here is that “the well-being and development of such peoples form a sacred trust of civilisation. The Mandatory Power was the trustee of that trust.

[4] The resolution of the League of Nations creating the Palestine Mandate, included the following significant recital

“Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country;

This had never happened before in history. No such recognition had ever been according to anyone, ever. Palestine was to be held for the Jewish people wherever they lived.

ART. 2. The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.

Thus the operative clause specifically referred to the preamble and reiterated that there were no political rights for other inhabitants.

ART. 5. The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power.

ART. 6. The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.

[5.] The United Nations took over from the failed League of Nations in 1945 and its Charter included

Article: 80 .. nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.

Thus the Palestinian Mandate continued without change.

[6.] In 1947, the General Assembly of the UN passed Res 181 which became known as the Partition Plan pursuant to which both Jews and Arabs could announce their state.

First it must be noted that the Charter of the UN specifically gave no power to the General Assembly because that would infringe on the sovereign power of individual members. So the GA could recommend only. Secondly, this recommendation was in violation of the terms of the Mandate.

This resolution also provided for a Special regime for Jerusalem which had the following defined boundaries,

A. SPECIAL REGIME The City of Jerusalem shall be established as a corpus separatum under a special international regime and shall be administered by the United Nations. The Trusteeship Council shall be designated to discharge the responsibilities of the Administering Authority on behalf of the United Nations.

B. BOUNDARIES OF THE CITY The City of Jerusalem shall include the present municipality of Jerusalem plus the surrounding villages and towns, the most eastern of which shall be Abu Dis; the most southern, Bethlehem; the most western, ‘Ein Karim (including also the built-up area of Motsa); and the most northern Shu’fat, as indicated on the attached sketch-map (annex B). cbh

But this regime was to be limited in time

The Statute elaborated by the Trusteeship Council the aforementioned principles shall come into force not later than 1 October 1948. It shall remain in force in the first instance for a period of ten years, unless the Trusteeship Council finds it necessary to undertake a re-examination of these provisions at an earlier date. After the expiration of this period the whole scheme shall be subject to examination by the Trusteeship Council in the light of experience acquired with its functioning. The residents the City shall be then free to express by means of a referendum their wishes as to possible modifications of regime of the City.

This provision for a referendum was of critical importance to the acceptance of Res 181 by Ben Gurion. He knew that the Jews were in a majority within these boundaries and would be in 10 years when the referendum was to be held. Thus he was confidant that Jerusalem would return to Jewish hands.

Keep in mind that the disposition of this area was to be determined not by Israel but by the residents of Jerusalem so defined. Currently the Jews have a 2:1 majority there.

Needless to say that after the Armistance Agreement of ‘49 the Jordanians who were in control of Jerusalem violated every provision of this resolution calling for among other things respect for holy places. The referendum never took place.

After the ‘67 war in which Israel regained the land to the Jordan including Jerusalem, Res 242 of the Security Council was passed authorizing Israel to remain in possession of all the land until they had “secure and recognized boundaries”. It did not require Israel to withdraw from all of the territories and it was silent on Jerusalem. Also it “Affirms further the necessity for achieving a just settlement of the refugee problem”. There was no reference to Res 181 nor was there a distinction made between Jewish and Arab refugees.

Not only should Israel be demanding that the referendum be held now, Jerusalem should be the first order of business. Olmert is sloughing us off by saying “Jerusalem is not on the table yet”.

He should demand that the referendum take place before the balance of the land is negotiated. If the Arabs won’t agree to the referendum there is nothing to talk about.

Obviously, Olmert isn’t going to ask for a referendum or insist that Jerusalem not be divided.

Ted Belman is a Canadian lawyer and editor of the IsraPundit.com website, an activist pro-Israel website. Contact him at tedbel@rogers.com This article appeared November 28, 2007 on the IsraPundit website.

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