"The Legal Foundation and Borders of Israel under International Law"
By William Mehlman
With The Legal Foundation and Borders of Israel under International Law (Mazo Publishers, Jerusalem) Canadian-born Israeli constitutional scholar and lawyer Howard Grief has given us a book that shatters every myth, lie, misrepresentation and distortion employed over the 61 years of Israel's existence to negate the sovereign rights of the Jewish People to their national home.
It is a lengthy treatise - 660 pages plus a 50-page appendix - but the Jewish people's long and tortuous struggle to retrieve their stolen patrimony deserves nothing less than full disclosure. Anyone who has ever been at a loss to counter the slanders and calumnies that are the stock in trade of the Israel-bashers and anti-Semites on both the Left and Right will treasure every one of its 20 illuminating chapters.
Rooted in the premise that the best antidote to a myriad of small and medium sized fabrications is the exposure of the whole cloth from which they've been woven, The Legal Foundation lays bare two dominant myths that have shaped popular perspectives on Israel. The first is the fallacy that Jewish sovereignty over the land of Israel was the joint product of the 1947 United Nations Partition and the May 15th, 1948 termination of the British Mandate for Palestine.
In fact, as Grief points out, Jewish sovereignty in Palestine had been validated under international law 28 years earlier.
"The legal title of the Jewish People to the mandated territory of Palestine in all of its historical parts," he informs us, was first recognized on April 24, 1920 when the post-World War I Allied Supreme Council (Britain, France, Italy and Japan), meeting in San Remo, Italy, "converted the 1917 'Balfour Declaration' into a binding legal document."
How "binding" may be construed from the fact that its wording gave effect to the provisions of Article 22 of the Covenant of the League of Nations and became incorporated into the Mandate for Palestine.
Indeed, the "San Remo Resolution," within which the Allied Supreme Council's decision is contained, constitutes what the author terms "the foundation document of the State of Israel, the legal existence of which is directly traceable from that document."
That the Jewish People were unable to exercise their sovereignty in Palestine for 28 years - it being assigned to the British Mandatory power as their de facto agent - did in no way detract from their 'de jure' rights to the land under international law during that interregnum.
In this thesis, Grief is ironically supported by both a passionate Zionist, U.S. Supreme Court Justice Louis D. Brandeis and one of Zionism's most implacable opponents, post World War I British Foreign Secretary Lord George Nathaniel Curzon.
Brandeis believed that with the passage of the San Remo Resolution, the debate over who owned Palestine was effectively over. Curzon called the Resolution the "Magna Carta" of the Jewish People.
From the initial mis-attribution of Jewish sovereignty in Palestine to the 1947 Partition Plan rather than the 1920 San Remo Resolution, it was just a hop and a skip to a second major mis-representation of Israel's international legal status - the erroneous assumption that the Partition Plan and the May 1948 termination of the British Mandate somehow erased the Jewish People's rights to Palestine in all its historical parts and dimensions enunciated at San Remo, and implemented under the terms of the League of Nations Covenant.
Those "parts and dimensions" were defined inter alia, as including the
northwestern portions of the Golan and most of present day Jordan by the "Franco-British Boundary Convention" in Paris.
The presumptive cancellation of those rights, Grief submits, is thoroughly discredited by "the principle of acquired rights," codified in the 1969 Vienna Convention on the "Law of Treaties," and the "doctrine of estoppel."
The first, he asserts, insures that "the fundamental rights of the Jewish people did not lapse with the international process which brought them into existence. The second further guarantees that these rights cannot simply be abrogated or denied by those states which previously recognized their existence."
Taken together, they provide what the author terms a "definitive answer anyone who claims that Jewish legal rights and title of sovereignty over all of Palestine and the land of Israel did not continue after the end of the Mandate for Palestine…except in the allotted boundaries of the UN Partition Plan…"
Noteworthy among the states that wholeheartedly endorsed Jewish sovereignty over Palestine in all its "historical parts and dimensions" was the United States of America - the same U.S.A that today regards Israel's presence in Judea and Samaria as an illegal "occupation" of lands upon which it favors the creation of a Palestinian State.
The Obama administration and the Bush administration that preceded it are either unaware or have chosen to be unaware of the fact that the 1924 Anglo-American Convention on Palestine made the U.S. a "contracting party" to the Mandate, further reinforcing a unanimously passed Joint Resolution of the 67th Congress two years earlier, signed by President Warren G. Harding, recognizing a future Jewish State in "the whole of Palestine."
It needs to be borne in mind, Grief notes, that the Mandate for Palestine that was ceremoniously incorporated into U.S. law in 1924 "was a constitution for the projected Jewish state that made no provision for an Arab state and which especially prohibited the partition of the country."
Thus, he concludes, the fierce exception the U.S. has taken to Jewish communities in Judea and Samaria and its unremitting pressure for creation of a "Palestinian State" amount to a repudiation of its signature to the Anglo-American Convention on Palestine. It is in violation of American law and America's obligations under international law.
The Legal Foundation and Borders of Israel under International Law is the product of 25 years of independent research by Grief, a former adviser on international law to the late Professor Yuval Ne'eman, Minister of Energy and Infrastructure in the Shamir government and the father of Israel's nuclear energy program. It is the kind of seminal work that seems destined to become both an indispensable source for defenders of Israel's rights under international law and a mirror on the events and personalities that transformed a November 2, 1917 letter from British Foreign Secretary Lord Arthur James Balfour to Lord Lionel Walter Rothschild into the trumpet call that awakened Jewish nationhood from a 1,900-year coma.
The author's unsparing portrayal of France's opposition to the creation of a Jewish state at San Remo and, when thwarted, its efforts at the Franco-British Boundary Convention to confine it to the narrowest geographical limits, should dismiss any notion that French anti-Zionism began with De Gaulle.
By the same token, the Zionist sympathies attributed to Winston Churchill by Martin Gilbert and other historians withers in the face of the 1922 "White Paper" attached to his name as then Colonial Secretary. Grief offers irrefutable evidence of its having not only "negated" the Jewish state in Palestine that the Mandate "required" of Britain, but of having elevated "Arab pretensions and aspirations to such an extent that everything thereafter became muddled…subject to continuous disputes as to what was really intended in the Mandate for Palestine."
For the actual authorship of that document and the wreckage it made of the original plan for the establishment of a Jewish state in all its "historic parts and dimensions" under British tutelage, we have Herbert Samuel to thank the same Herbert Samuel who worked closely with Chaim Weizmann in the Zionist Organization and was later to pack it in for a "Lordship" and an appointment as British High Commissioner to Palestine.
In ironic contrast, Lord Curzon, Balfour's successor as Foreign Secretary, who "detested" the idea of a Jewish state, put loyalty above personal feelings at San Remo and Paris in arguing manfully for the realization of Prime Minister David Lloyd George's vision of a Jewish state comprised of all its ancient Biblical territories.
On the Jewish side, nobody comes off better in this saga than Brandeis, who Grief portrays as "the only Zionist leader…who properly understood the natural consequences of the legal recognition of the Balfour Declaration embodied in the San Remo Resolution."
Had Brandeis headed the Zionist Organization, the author believes, "there is little doubt that he would have successfully halted Britain's gross violation of its obligation …to rebuild the Jewish state."
At the end of the day, it was Menachem Begin who provided the most heartbreaking counterpoint to Lloyd George's vision of a Jewish state reconstituted in most, if not all of its Biblical parts, Grief submits. Begin, national Zionism's anointed champion, bearer of the torch lit by Herzl and passed to Jabotinsky, not only failed to make Israel constitutionally whole by annexing Judea, Samaria and Gaza (as he was expected to do), but in what the author describes as an act of "unimaginable folly," brought to the Knesset in 1977 a plan to establish Arab "self-rule" over those critical portions of the Jewish estate. In so doing, he opened the portals wide for their identification as "unalloted," "disputed" and finally "occupied" territories.
Nine months later, in September 1978, Begin crowned his "achievement" by injecting the "self-rule" proposal into the negotiations with Egypt at Camp David, offering to leave the final determination of sovereignty over Judea, Samaria and Gaza to their inhabitants and "local representatives."
Thirty one years later, Israel remains bedeviled by that fateful decision.
William Mehlman is Americans for a Safe Israel (AFSI)'s representative in Israel. Howard Grief's book is sold on Amazon and Barnes & Noble. This article appeared in the October 2009 issue of Mideast Outpost (http://mideastoutpost.com/archives/000590.html).
Contributed by Ted Belman
And here is another article by Ted Belman which also delineates Jewish rights in Palestine ( Judea and Samaria):
By Ted Belman
I attended a lecture two years ago 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 had to present his thesis to a panel of two leading international lawyers and one world famous Jewish historian. The reason for so many footnotes was to enable him to defend his thesis from intense attack by one of the lawyers who happened to be Jewish anti-Zionist and who had represented the PA on numerous occasions. Gauthier is not Jewish.
Here’s what he said in point form,
1. The Balfour Declaration of 1917 started the whole process but it didn’t create international legal rights.
2. The San Remo decision made 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 decision upon which the Mandate for Palestine was constructed. While the decision made at San Remo created the Palestine Mandate de-facto, the mandate document signed by Great Britain as the Mandatory and the League of Nations made it de-jure. It thus became a binding treaty in international law.
- 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.
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.
4 The Palestine Mandate of the League of Nations, 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;
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, 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 Palestine Mandate continued under the United Nations 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. See Art 5 above.
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).
- 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.
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 Armistice 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 194 nor was there a distinction made between Jewish and Arab refugees.
I would like to stress one more thing.
By virtue of this preamble
- “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;
Thus the UN has recognized Jerusalem as the home of the Jewish people.
His lecture did not cover the following salient events which need recalling.
Prior to the signing of the Mandate, However, in 1921, the British took off the “East Bank” from Jewish Palestine, enlarged the territory eastward up to the borders of Mesopotamia (Iraq), and gave the whole thing to Abdullah. Unfortunately, the final signing of the Mandate happened only in July, 1922, and the British included in it a provision to prevent Jews from settling anywhere east of the Jordan River (Article 25). This provision was supposed to be temporary, but it lasted to this day.
The east bank represented 77% of Palestine so the Jews only got 23%. In addition the British also gave the southern Golan which was promised to the Jews, to the Syrian Mandate.
In doing so Britain, the Mandatory Power violated Articles 5 and 27 of the Mandate.
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. 27: The Mandatory had no right to amend the Mandate terms without the full consent of the League of Nations or its Mandates Commission.
What follows next are comments by Eli Hertz in his pamphlet “The Legal Aspects of Jewish Rights”. It is titled, This Land is My Land and can be purchased from Israpundit for $20.00. Simply write to email@example.com for instructions.
Jerusalem in “Mandate” Time
Two distinct issues exist: the issue of Jerusalem and the issue of the Holy Places.
Cambridge Professor Sir Elihu Lauterpacht, Judge ad hoc of the International Court of Justice and a renowned editor of one of the ‘bibles’ of international law, International Law Reports has said:
- “Not only are the two problems separate; they are also quite distinct in nature from one another. So far as the Holy Places are concerned, the question is for the most part one of assuring respect for the existing interests of the three religions and of providing the necessary guarantees of freedom of access, worship, and religious administration [E.H., as14 mandated in Article 13 and 14 of the “Mandate for Palestine”] … As far as the City of Jerusalem itself is concerned, the question is one of establishing an effective administration of the City which can protect the rights of the various elements of its permanent population— Christian, Arab and Jewish—and ensure the governmental stability and physical security which are essential requirements for the city of the Holy Places.”27
Jerusalem the spiritual, political, and historical capital of the Jewish people has served, and still serves, as the political capital of only one nation—the one belonging to the Jewish people.
Jerusalem, a city in Palestine, was and is an undisputed part of the Jewish National Home.
Jewish Rights to Palestine Were Internationally Guaranteed
In the first Report of the High Commissioner on the Administration of Palestine (1920-1925) presented to the British Secretary of State for the Colonies, published in April 1925, the most senior official of the Mandate, the High Commissioner for Palestine, underscored how international guarantees for the existence of a Jewish National Home in Palestine were achieved:
- “The Declaration was endorsed at the time by several of the Allied Governments; it was reaffirmed by the Conference of the Principal Allied Powers at San Remo in 1920; it was subsequently endorsed by unanimous resolutions of both Houses of the Congress of the United States; it was embodied in the Mandate for Palestine approved by the League of Nations in 1922; it was declared, in a formal statement of policy issued by the Colonial Secretary in the same year, ‘not to be susceptible of change.’ ”29
Despite not being a member of the League, the U.S. Government
claimed on November 20, 1920 that the participation of the United States in WWI entitled it to be consulted as to the terms of the Mandate. The British Government agreed, and the outcome was an agreement calling to safeguard the American interests in Palestine. It concluded with a convention between the United Kingdom and the United States of America, signed on December 3, 1924.
It is imperative to note that the convention incorporated the complete text of the “Mandate for Palestine,” including the preamble!30 President Wilson was the first American president to support modern Zionism and Britain’s efforts for the creation of a National Home for Jews in Palestine (the text of the Balfour Declaration had been submitted to President Wilson and had been approved by him before its publication).
President Wilson expressed his deep belief in the eventuality of the creation of a Jewish State:
- “I am persuaded,” said President Wilson on March 3rd, 1919, “that the Allied nations, with the fullest concurrence of our own Government and people, are agreed that in Palestine shall be laid the foundation of a Jewish Commonwealth.”31
- “Favoring the establishment in Palestine of a national home for the Jewish people. “Resolved by the Senate and House of Representatives of the United States of America in Congress assembled. That the United States of America favors the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which should prejudice the civil and religious rights of Christian and all other non-Jewish communities in Palestine, and that the holy places and religious buildings and sites in Palestine shall be adequately protected.”32
The Mandate survived the demise of the League of Nations. Article 80 of the UN Charter implicitly recognizes the “Mandate for Palestine” of the League of Nations.
This Mandate granted Jews the irrevocable right to settle anywhere in Palestine, the area between the Jordan River and the Mediterranean Sea, a right unaltered in international law and valid to this day.
Jewish settlements in Judea and Samaria (i.e. the West Bank), Gaza and the whole of Jerusalem are legal.
I will leave it to another article to set out why the passing of Res 181 or Res 242 or the signing of the Oslo Accords did not diminish or derogate from the rights of the Jews to the land,
I would also like to point out that Howard Grief did independent research for his book “The Legal Foundation and Borders of Israel under International Law” in which he came to similar conclusions.
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