Much wisdom and comprehension can be gained by reviewing past events in relation to today's proceedings. Such is the stuff of history and it serves as a basis for analyzing Jewish Rights verses political distortion and plain dishonesty.

Maurice Samuel penned Harvest in the Desert[1] in 1945, i.e., three years prior to the founding of modern day Israel. This work has stood the test of time in that it serves as a reminder that Jewish claims to the Land of Israel have never been revoked to this day. Samuel reviews the various legal documents concerning the subject matter in a most succinct way, commencing with the Balfour Declaration.

The Balfour doctrine laid the groundwork for a future Jewish State, resulting as it did from the efforts of Lord Balfour[2]. Maurice Samuel understood this to mean that the Jewish claim to Palestine rested on a threefold basis, the present Jewish need at the time, acknowledged Jewish historical claims and general world concurrence. He therefore poses a rhetorical question, "Given a world policy which calls for a Jewish Commonwealth in Palestine, has the Arab world outside of Palestine a valid counter-claim to that piece of territory, to the exclusion of a Jewish commonwealth?"

Of course, since Samuel's book, there have been new compelling claims, i.e., Israel's numerous victories in defensive wars with the Arabs, in which land destined for the Jewish state was recovered.

Samuel also points to the statement assuring "the civil and religious rights of existing non-Jewish communities in Palestine" and questions whether it included the right to vote away the Balfour Declaration! Had this been the case then the declaration according to Lloyd George would have been "a fraud on the people to whom we were appealing", i.e. the Jewish people. [3]

In other words, the granting of political rights to the Arabs in Palestine was never intended. To be more precise, the language of the document makes clear that all the parties concerned would have religious and civil rights, but only the Jews were given political rights. It was the extraordinary choice of the Ben Gurion government to grant political rights to the Arabs, despite the government's decision to disallow the same Arabs from serving in the army! Permitting the Arabs to serve in the Knesset has undoubtedly been one of the most ill-founded events in Israel's history.

Questioning the expression, "a National Home for the Jewish People" from the Mandate for Palestine, Samuel expresses the thought that the statesmen who used them surely were not conveying the idea of a miniature enclave of a small number of Jews surrounded by an eternal majority of Arabs. This he feels is further established by the language, "Whereas recognition has been given to the historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home in that country..."

There have been arguments that "national home in Palestine" did not mean all of Palestine. By the same argument, "civil rights for all in Palestine" would imply that only the Arabs in some limited parts of Palestine would have civil rights, and the rest would not have any rights.

Confirmation of the intent that Palestine would become a Jewish Commonwealth is backed by quotations from President Woodrow Wilson and Lloyd George. In 1918 President Wilson said: "I am persuaded that the Allied Nations, with the fullest concurrence of our government and our people, are agreed that in Palestine shall be laid the foundations of a Jewish Commonwealth."[4] And Lloyd George, in his memoirs, wrote: "...that when the time arrived for according representative institutions to Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth."[5] Indeed, there was a sentiment expressed during that period that Judea was for the Jews while Arabia was for the Arabs. For Lord Robert Cecil, former acting British foreign secretary, it was more than a sentiment. It was right to use the name "Judea" for the whole land; c.f., his famous remark: "Our wish is that Arabian countries shall be for the Arabs, Armenia for the Armenians, and Judea for the Jews."[6]

Finally, Samuels notes that the fervor of the Chalutzim of 1919-1924 could never have prevailed, had not the prospect of a Jewish Homeland, as opposed to a truncated entity, been offered. He also makes mention of the fact that the Arab revolt against Jewish sovereignty was confined to an unrepresentative but stubborn and ruthless minority. These were essentially landowners, moneylenders, priests and professionals. This was not so in the case of the fellaheen, the handworkers and sharecroppers who gained much through the boost to the economy resulting from Jewish immigration. However, they had no expression in Arab policy.

The summer of 1929 was one of unrest in Palestine. Jewish-Arab tensions were spurred on by the agitation of Haj Al-Husseini, the mufti of Jerusalem.[7] Just one day prior to the start of the Hebron massacre, three Jews and three Arabs were killed in Jerusalem when fighting broke out after a Muslim prayer service on the Temple Mount. Arabs spread false rumors throughout their communities, saying that Jews were carrying out "wholesale killings of Arabs." Meanwhile, Jewish immigrants were arriving in Palestine in increasing numbers, further exacerbating the Jewish-Arab conflict [8]

The momentum for Jewish entitlement was severely minimized through British betrayal in 1922 with the severance of Trans-Jordan and in 1930 by seriously restricting Jewish immigration to Palestine. The reasons for this change of heart were related to political developments that had taken place in the region between 1920 and 1922. The result was that Abdullah, an Arab from the Hejaz [now Saudi Arabia], was abruptly installed as the Emir of Transjordan by the British. In a British memorandum presented to the League of Nations on 16 September 1922, it was declared that the provisions of the Mandate document calling for the establishment of a Jewish national home were not applicable to the territory known as Transjordan [subsequently renamed Jordan], thereby severing almost 80% of Mandate land from any possible Jewish Homeland. Needless to say, the Jews facilitated this event by offering negligible resistance.

However, Jewish national rights were not "postponed or withheld" in all of Western Palestine. The League of Nations Mandate for Palestine imposed a special urgency and allowed no delay in creating a Jewish state in this region. Not only was Jewish settlement enthusiastically encouraged, but transfer of land to any foreign non-Jewish government was prohibited. This subject is fully documented in Professor Julius Stone's "Israel and Palestine".[9]

As a consequence of World War 1, all Asiatic possessions had ceased to be under the sovereignty of the Ottoman Turkish Empire, which formerly governed them. At the San Remo Conference[10], it was decided that all three countries, Palestine, Syria and Mesopotamia, 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.[11] The League of Nations came into being at the same time, its purpose being to supervise the observance of individual mandates.

It was decided that the Arabs would be granted most of the designated land under Turkey, amounting to twice the area of the USA. 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 formally recognized in the Franco-British Convention of December 23, 1920, although no specific words were used to that effect but was well understood by the Allied parties from the reference to the Mandate for Palestine contained in the Convention itself. This is further confirmed by Eugene Rostow, former Dean of the Yale Law School.[12]. 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 the following:

1. The historical connection of the Jewish People with Palestine in its entirety

2. 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.

3. 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. 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" so as not to offend Turkish sensibilities on the projected loss of Palestine. It was coined by Max Nordau, whose return to his Jewish roots, as with so many other Europeans, was driven by anti-semitism. During this period, much harm to the cause was done by two Jews suffering from the well established phenomenon of Jewish guilt and insecurity: Ahad Ha'Am [Asher Ginsberg] and Nahum Sokolov. Asher Ginsberg, better known by his penname Ahad Ha'am rejected what he regarded as the over-emphasis of political Zionism on statehood, at the expense of the revival of Hebrew culture. He recognized that the effort to achieve independence in Palestine would bring Jews into conflict with the native population, as well as with the Ottomans and European colonial powers, then eying the country. Instead he proposed that the emphasis of the Zionist movement shift to efforts to revive the Hebrew language and create a new culture, free from Diaspora influences, that would unite Jews and serve as a common denominator between diverse Jewish communities once independence was achieved. Nachum Sokolov, who was responsible for adding the word "national" to the word "home" was to give clarity to the ultimate goal of the Zionist organization subsequently. Strangely, he wrote in the introduction to his 2 volume monumental work, History of Zionism [1919], that the word "home" as used in the Basel Program of 1897 did not mean the creation of an independent Jewish State! However, the meaning to President Wilson, Balfour and Lloyd George prevailed.

As a result of Sokolow's and Ginsberg's misrepresentations it 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.

Nevertheless, the Mandate for Palestine became the primary cited source for Jewish legal rights to the re-constituted Jewish National Home. It 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. The name "Palestine" originated from Peleshet, a name tha appears frequently in the Bible and has come into English as "Philistine". The name began to be used in the 13th century BCE, for a wave of migrant "Sea Peoples" who came from the area of the Aegean sea and Greek islands. The Greeks and Romans called it "Palastina" and the Philistines were most definitely not Arabs. In order to wipe out the identity of Israel-Judah-Judea, the Romans used the name "Plastina" [Palestine].

Howard Grief, a former international law advisor to the Israeli Minister of Energy, has fully documented the chronology of events on the historical rights of the Jewish people to the Land of Israel in terms of international law. He has demonstrated that despite gross infringements by both the British and American governments, the rights determined from the San Remo Peace Conference [April 25, 1920], the Franco-British (boundary) Convention [December 23, 1920], and [the Mandate for Palestine [July 24, 1922] are still applicable today [13]. Of course, where Israel governments have foolishly turned over territory to the Arabs, recovering land through international law would be difficult given the anti-Jewish sentiments of the International Court. Dr. Yoram Shiftan has pointed out that Jewish land in trust for the Jewish people can NOT be ceded away. "The trust of the League of Nations for the 'Jewish people', which is the 'beneficiary' of the 'trust', operates on the same principle as a trust for an individual beneficiary... These rights of the individual are invariant to the passage of time, the changing composition of the board of trustees, and the location of the trust... The Jewish people is the sole owner of the rights bestowed on him in perpetuity by the League of Nations' mandate, whatever these rights are."[14]

The San Remo resolution, consisting of the Balfour Declaration and Article 22 of the Covenant of the League of Nations, is the basic document upon which the Mandate for Palestine was constructed. The San Remo Resolution concerning Palestine and the Jewish National Home was adopted at the San Remo Peace Conference on April 25, 1920 by the four Principal Allied Powers of World War I who were represented by the Prime Ministers of Britain (David Lloyd George), France (Alexandre Millerand) and Italy (Francesco Nitti) and by the Ambassador of Japan (K. Matsui). The Resolution was a binding agreement between these Powers to reconstitute the ancient Jewish State within its historic borders "from Dan to Beersheba", an agreement that was incorporated into the Treaty of Sevres and the Mandate for Palestine.

The Franco-British [Boundary] Convention which delineated the boundaries between Palestine and Syria-Lebanon was signed on December 23, 1920. The term "Transjordan" does not appear in the Convention since it did not exist as a separate territorial entity at the time the Convention was made. What was later to become Transjordan (today called the Hashemite Kingdom of Jordan) was, at that time, an integral part of the Land of Israel intended for inclusion in the Jewish National Home in accordance with the terms of the Draft Mandate submitted by the British Government to the Council of the League of Nations on December 6, 1920 for its confirmation. The Mandate for Palestine, while specifying actions in support of Jewish immigation and political status, maintained that in the territory to the east of the Jordan River, Britain could "postpone or withhold" those articles of the Mandate concerning "a Jewish National Home". 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.

The Mandate for Palestine was granted to Britain by the Principle Allied Powers of World War I. It constituted an elaboration of what the San Remo Resolution intended to be done concerning the newly-created mandated state of Palestine. It consisted of 28 articles, all of which applied to the Jewish National Home, not merely those articles which had an obvious Zionist character. The essential point was the responsibility placed upon Britain not only to use its "best endeavors" to establish a Jewish State (euphemistically called the Jewish National Home), but also to actually "secure" its achievement. The Mandate was confirmed by the Council of the League of Nations on July 24, 1922 and accepted in all by 52 nations, including the United States. These obligations were transferred to the U.N., which is still obliged to help the Jews settle all of Palestine.

Despite the betrayal of Jewish rights by the British and the American complicity or benign neglect in preventing it, Howard Grief [15] contends that these rights remain valid. The basis for this assertion follows:

• 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 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 doctrine of estoppel 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 US 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.

Dr. Yoram Shifftan, who writes extensively on the international legal status of Mandated Palestine writing in Think-Israel comments, "It is very worrying that the current Israeli legal system and government ignores fundamental historical-legal facts."[16]. At least from the time following the Six Day War, most of the Israeli leaders would frame their arguments in terms of peace and security whereas the Arabs have always been extremely vocal as regards claims concerning rights to the Land, notwithstanding the fact that they were rather groundless. The Arabs were sufficiently astute to follow Goebels proclamation that if a lie was repeated sufficiently often, it would be believed.
 

WHICH BRINGS US TO CONTEMPORARY TIMES -- indeed, the words mistakenly uttered by Ehud Olmert, "We are tired of fighting, we are tired of being courageous, we are tired of winning, we are tired of defeating our enemies" are hardly the language that would encourage the Muslim world to a reconciliation! Is he not aware of history? If he is unable to stake Jewish claims on biblical grounds, can he not at least resort to arguments based on international law? Can he not recall Ben Gurion displaying a prayer book when appearing before the Peel Commission and being asked what is the Jewish claim to the Land of Israel? Has he suffered from some myopic dream over the years and more particularly so since Oslo? Is he not cognizant of the fact that for every act of appeasement by the Israeli government, the Arabs have reacted with extreme violence? Is he unaware of the fact that more Jews have died and been maimed by Arab terrorism in Israel than in the rest of the world since Oslo?

Olmert's mentor and hero, Arik Sharon, acquired notoriety by challenging his life long beliefs and unfortunately reversing his election platform by enacting the policies of his electoral opponent. Thus far this policy, rather than realizing success, has resulted in Hamas emerging in a leadership role, while the PLO has been given new energy in its "armed struggle". Imagine, now, Olmert seeking knowledge from the world-renowned and intellectually stimulating Professor Julius Stone by reading his erudite book, Israel and Palestine. From this, he would learn from one of the greatest experts in international law.[17]

• According to Article 6 of the Mandate, Jewish rights were not only asserted in this document, but included was the provision forbidding transfer of the area out of Jewish control.

• The Mandate emphasized that while all inhabitants of Palestine were given "civil and religious rights", only the Jews were given political rights in Palestine.

In the subchapter of Stone's book, the section entitled, Continuing Obligations of the Mandate[18], Stone describes the famous case argued before the International Court of Justice in 1950. Here, the case upheld the principle whereby the dissolution of the League of Nations did not invalidate the substantial obligations of the Mandate over territory allocations. Other notable legal figures, Professors Eugene Rostow and Steven Schwebel, also agreed that the court's ruling was further confirmation that Jewish National Rights remained intact to the present time.[19]

A major central goal of the Professor's work explained why the stream of UN resolutions about Palestine did not cancel fundamental Jewish rights according to the Palestine "sacred trust of civilization".

There are two types of UN resolutions, of which one is binding, the other makes pious wishes. All UN resolutions with respect to the Israel-Arab conflict are based on Chapter 6 of the Charter of the UN. Unlike Chapter 7 resolutions, Chapter 6 resolutions are only recommendations, and therefore do not supersede international law.

For too long now, Jews have suffered from inadequate leadership. Olmert has the opportunity to perpetuate this tragic trend or to bring about a reversal that would both restore Israel's self-respect as well as conform to binding international legal obligations.

References:

1. Harvest in the Desert by Maurice Samuel, Greenwood Press Reprint, April 12, 1982.

2. "The Loss of East Palestine" by Lewis Lipkin,
Part I: www.Think-Israel.org/balfour1.html, February 14, 2003.
Part II: www.Think-Israel.org/balfour2.html, March 10, 2003.

3. "Memoirs of the Peace Conference" by David Lloyd George, VolumeII, New Haven: Yale University Press, 1939, Ch XXIII, p. 736-737.

4. Cited in http://www.yahoodi.com/peace/zionism.html

5. Lloyd George, ibid, p. 736.

6. Public Meeting, December 2, 1917.

7. "Hitler's Mufti: the Dark Legacy of Haj Amin al-Husseini" by Ronald J. Rychlak, Crisis Magazine, December 5, 2005,
(http://www.crisismagazine.com/december2005/rychlak.htm)

8. "The Hebron Massacre of 1929" by Shira Schoenberg, Jewish Virtual Library
(http://www.jewishvirtuallibrary.org).

9. International Law and the Arab-Israel Conflict, Extracts from Israel and Palestine: Assaults on the Law of Nations by Professor Julius Stone, second edition, Page 17, edited by Ian Lacey, 1981.

10. The Israel-Arab Reader Bantam Books, 1976, Pages 34-42, edited by Walter Laqueur.

11. "Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law" by Howard Grief, NATIV Vol. 2/2004.

12. Eugene V. Rostow, articles in New Republic,
http://www.think-israel.org/rostowNR.html. See also Eugene V. Rostow, "The Future of Palestine," National Defense University, McNair Paper 24, November 1993

http://72.14.203.104/search?q=cache:tCyg9RSEHv8J:www.ndu.edu/
inss/McNair/mcnair24/mcnair24.pdf+%22eugene+v.+rostow%22+ mandate+of+jewish+state&hl=en&gl=us&ct=clnk&cd=5)

13. Howard Grief. ibid

14. "Who is entitled to Gift away Jewish National Rights?" by Yoram Shifftan, Think-Israel,
http://www.think-israel.org/shifftan.gifting.html

15. Howard Grief. ibid

16. "The Jewish Right to Live in Western Palestine; The Irrelevency of 'Belligerent Occupation' and the 4th Geneva Convention" by Yoram Shifftan, Think-Israel, May-June 2005. http://www.think-israel.org/shifftan.belligerentoccupation.html

17. Professor Julius Stone. ibid

18. Professor Julius Stone. ibid

19. Eugene V. Rostow was Sterling Professor Emeritus of Law, a former dean of Yale's Law School who served as advisor to both Democratic and republican US Presidents while Judge Steven Schwebel served on the International Court and was a former State department Legal Advisor.

 
Alex Rose is an engineering consultant. He was formerly on the Executive of Americans for a Safe Israel and a founding member of CAMERA New York. He made Aliyah in 2003 and now resides in Ramat bet Shemesh. Contact him at alexrene@netvision.net.il or 02-999-4441

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