Arutz Sheva comes to the aid of free speech. A succinct exposition of facts and law in support of Israel's lawful exercise of sovereignty over East Jerusalem, Judea and Samaria that Harvard and UCLA don't want to hear.
Wallace Edward Brand, JD
Background (part of letter written by the author, a Harvard and UCLA alumnus, to UCLA):
On March 3,4 there was a conference held at Harvard on a one state solution to the Arab-Israeli conflict. In effect it was a "one Arab majority state" solution. The panel consisted of Arab academics and Israel post modern revisionist who are apologists for terrorism. The other side or sides were completely missing. Harvard would not accept our request to be part of a panel or make a presentation.
A similar conference was held or is soon to be held at UCLA. A second conference is likely at Harvard sponsored by Professor Alan Dershowitz of the Harvard Law School on a "two state solution" to the Arab Israeli conflict. There are in fact three sides. That last would be "a one lawful state West of the Jordan River" solution. These three sides are akin to a three legged stool. When only one or two sides is presented it makes for a strong presentation but not a very balanced one.
I have been trying to find out how this third side could be presented at UCLA and I have been told by all my contacts at UCLA that it is impossible. They tell me that UCLA is just too politically correct. So I am making a last effort. I have published information on the three sides in an on-line blog entitled "Middle East and Terrorism" and a conservative Israeli newspaper called "Arutz Sheva", and I hope, at the very least, that you will make the links available to students at UCLA so they have access to a balanced presentation to a solution for the Arab Israeli conflict.
At least three nation-states, the UK, the US and Canada allow evidence of legislative purpose to be admitted to show the meaning of a statute that is ambiguous.
What follows is a necessary minimum of that evidence to show the purpose of the Balfour Declaration that was adopted by the WWI Allies at San Remo that established the International Law provided by that Agreement and the British Mandate for Palestine.
It is widely accepted, but not correct, that the West Bank belongs to the local Arabs in Palestine who in 1964, at the suggestion of the Soviet dezinformatsia, decided to call themselves "Palestinians.” [1]
These "invented people" [2] also pretend they had long had a passion for self government. [3] The full extent of Israel’s claim of sovereignty has not recently been stated. At most, it is said by the Israeli government that no one has sovereignty over the West Bank, but that Israel has the better claim. [4]
A better view is that the Jews obtained a beneficial interest in sovereignty over all of Palestine in the 1922 enactment of the British Mandate for Palestine, that entrusted exclusive political or national rights in Palestine to Britain in trust for the benefit of the Jews that later matured into a legal interest on the abandonment of the trusteeship by Britain and the attainment of the Jews of a majority population.
The trusts or guardianships were to be called "mandates”.
It was in 1919 that Jan Smuts submitted a memorandum to the League, which later became Article 22. The Council of Ten drafted for the League of Nations as Part I of the Treaty of Versailles [5], an Article 22 providing for trusts and guardianships for the areas in The Middle East and North Africa captured by the WWI Allies from the Ottoman Empire. This concept was later applied to other areas. Article 22's first two paragraphs provided a reasonably clear showing that a mandate was based on the longstanding British legal concepts of trusts and guardianships.
In 1917, in advance of the end of WWI, the British had drafted and published a policy for the disposition of the captured Ottoman lands in Palestine. [6] Britain and France were at that time following the “secret’ Sykes-Picot Agreement in their disposition of Ottoman Lands. But in recognition of the historic association of the Jews with Palestine, the Balfour Declaration, a British Policy approved it its Cabinet, provided for exclusive political or national rights in Palestine to be granted to the Jews.
The 1920 agreement of the WWI Allies at San Remo, on the terms of the Mandate turned what had been only a British Policy approved by the Cabinet, into International Law. Under Article 22 of the League of Nations Covenant, the rights were to be provided in trust, [7].
We know this because the Balfour policy had been attacked as antidemocratic, as giving sovereignty to the Jewish people who constituted only 60,000 of the total population of 600,000 in Palestine as of 1917.
In Jerusalem, the Jews had had a plurality of the population since 1845 and a majority since 1863, but in all of Palestine, in 1917 they constituted only 10% of the population. Even US President Woodrow Wilson was advancing that argument that award of sovereignty to a minority population was inconsistent with his 14 points that provided, among other things, for majority control.
To counter this argument, which they conceded was a good one, Arnold Toynbee and James Namier in the British Foreign Office, in a memorandum of September 19, 1917 [8] said the problem of control by a minority was "imaginary" because they predicted that the grant would be placed in trust and would not vest sovereignty in the Jews until the Jews fit to govern it on modern European state.
In my view these included attainment of a majority population, defined boundaries, unified control over all within the boundaries, etc.. Providing a National Home for Jews in Palestine with the British running the government until the Jews could attain a majority status based on favored immigration from the Jews in the Diaspora would be a temporary measure and not antidemocratic. [9]
The statement of the purpose of the British Mandate for Palestine in its Preamble and Article 2 is entirely consistent with this view although not express. [10]
What was the National Home, a reconstituted state? No, it was a place for the Jewish people to feel at home while the immigration was going on that would ultimately give the Jews a majority of the population and a reconstituted state. So that the staff of the British Mandatory Power, will know how to do that: Article 4 provides for the Zionist Organization to advise the mandate government staff. Part of Article 6 requires the staff of the Mandatory Power for The Administration of Palestine, to facilitate immigration of Jews. The Mandate does NOT provide that immigration of any other peoples is to be facilitated. (emphasis added) Article 5 provides that none of the land is to be ceded to a foreign power.
Who were the beneficiaries of the trust? Only the Jews, both those already in Palestine and many more scattered worldwide in the Diaspora since the time of the Roman Empire conquest of Palestine.
Howard Grief, who has provided the seminal work on the legal foundations of Israel under International Law, says one can conclude this because they are the only people mentioned to be dealt with specially. [11]The non-Jews are referred to only to ensure their civil and religious rights are to be protected.
Because Article 22 of the League Covenant defined the relationship of Britain and the Jews as trustee and guardian with Jews in effect being beneficiaries and ward the Mandate essentially provided for a Jewish National Home that would be supervised by the British until its ward was capable of exercising sovereignty, including helping it attain a majority of population it needed to do that. It was charged with facilitating such immigration.
All this purpose was not expressed very clearly in the Mandate, likely to avoid stirring up the Arabs in time of war that might bleed off troops to maintain stability in Palestine. But the Arabs did understand that this was the case.
After the war, the Arabs were told by Winston Churchill that the request for self government by the inhabitants of Palestine would be denied until such time as the Jews had attained a majority of the population. They made that understanding clear in their arguments against Partition in the UNSCOP hearings in 1947. [12]
The Arabs argued in 1947 "It was clear from the beginning that if Palestine were to be turned into a Jewish national home, this would involve the indefinite denial of self-government until such time as the Jews were strong enough to take over the government; that pending such time, Palestine would have to be subjected to a foreign administration [of England] which had no basis in the consent of the population and of which the policy would be determined, not by consideration of the welfare of the population, but by the desire to assist in the settlement of an alien group; and that to make such a settlement possible the country would have to be cut off from the surrounding Arab lands by artificial frontiers, would be given a separate system of law, administration, finance, tariffs, and education and would thus inevitably lose some if not all of the Arab character."
But that is what the grantors had in mind and the Arabs knew it when they argued against Partition in 1947. [13] They had learned after WWI from Winston Churchill this was their intention.
"As the first Arab delegation to England stated in the course of its correspondence with Mr. Churchill, then Secretary of State for the Colonies, 'we are to understand ...that self-government will be granted as soon as the Jewish people in Palestine are sufficiently able through numbers and powers to benefit to the full by it, and not before.' "[14]
Prior to the publishing of the British Mandate the French attached a "proce’s verbal" in French shown only in the French Version. [15] This was their agreement only on their stated understanding that the Mandate would not eliminate any existing rights of the non-Jews in Palestine. The League had no objection to the process verbal.
The Mandate expressly preserved existing civil and religious rights of the non-Jews. It could not preserve their political rights because they had never had any. The preservation of their civil rights only protected their individual political rights, ie. their electoral rights. It did not protect their collective political rights or national rights, the right of sovereignty and political self-determination.
The Arabs in Palestine had always been ruled from afar. So the Mandate carried out the “process verbal”
Why, in 1917, did Britain establish a policy that gave a preference to the Jews? There were several reasons.
1. Britain's Prime Minister at the time of the Balfour Declaration was David Lloyd-George. Later, in 1923, he was the author of an article "The Jews and Palestine" [16] In it he revealed his view that the Arabs under Ottoman Rule had turned Palestine, the Biblical land of milk and honey into a malarial wasteland. He believed it could be remedied under a reconstituted Jewish State.
2. There was considerable sympathy among many Christian Evangelicals in England who thought the Jews should be restored to Palestine to flee from the pogroms of Russia and Poland. This sympathy did not extend to receiving them in England. British workmen had complained that Jews were flooding in to England and taking their jobs and working for less. This led to the Aliens Act of 1909 restricting Jewish immigration into England.
But the British recognized that the oppression of the Jews in Russia and Poland was very bad and they needed some place to go. [17]
3. Chaim Weismann, an ardent Zionist and also a good chemist, had helped Britain in the war by developing an inexpensive method of manufacturing acetone used in cordite for munitions and had given it to the British. It was a great help to the British war effort. [18]
4. And England, according to Winston Churchill, also desired to win over the Jews in Russia, many of them in the Bolshevik government, so that they might influence the new Marxist government to remain in battle with the Germans and Ottomans in WWI on the side of the Allies. He thought that the Balfour Declaration could sway them in British favor. [19]
There came a time after WWII that the British decided their effort to be trustee was simply costing it too much. They tried to obtain some funding from the United States, but the United States declined to do so. Britain finally decided to abandon its trusteeship and guardianship in 1948.
On the abandonment of its trusteeship by Britain in 1948, political rights that were the "trust res" (the thing put in trust) devolved to the Jews as beneficiaries or wards of the trust and vested in them the political rights permitting them to exercise sovereignty. These rights had survived the demise of the League of Nations by virtue of Article 80 of the UN Charter. [20] It should be expressly noted that the Jews did not receive these rights from the Partition Resolution.
By that time the Jewish population had increased significantly. In 1947 the UN General Assembly had recommended that the Jews give up some of its rights in an attempt to avoid violence that had been threatened by the Arabs if the Jews were to reconstitute their state in Palestine. The Jews agreed to give up some of the land over which they were to have political rights, but the Arabs rejected the recommendation and commenced a war.
It was by the Arabs starting a war that led to a Jewish population majority. Some 600,000 to 700,000 Arabs fled the country before even seeing an Israeli soldier. The wealthy left first, at the first foreshadowing of war. According to an article in the Wall Street Journal, Mahmoud Abbas wrote this in the official organ of the PLO, “Filanstin”, most of the rest left at the request of the Arab Higher Committee that wanted to get them out of the way of the Arab armies in the surrounding states. [21]
Many left because of a false report that the Irgun had committed a massacre of Arabs at Deir Yassin, that the Haganah, their political enemies did not dispute. A BBC program based on an interview of an Arab radio commentator at the time revealed he had been pushed into designating a hard fought battle as a massacre so as to provide an excuse for the invasion of surrounding armies. [22]
Many Arabs local to Palestine left; some remained.
But those that left could not go back because the Arab Armies did not prevail.
In 1948 Israel declared Independence and vindicated its claim by force of arms against the assault of other Arab states surrounding it. It established an orderly unified stable control of its territory except for Judea, Samaria, and East Jerusalem which had been invaded and occupied by the Arab Legion in the East. This British supplied and led organization became the Army of Jordan. [23] In the South, the Egyptian Army was able to maintain its occupation of the Gaza Strip.
In 1920 the Ottoman Empire in Article 95 of the Treaty of Sevres,had ceded its sovereignty in Palestine, which had been undisputed for 400 years, to a Mandatory Power in trust for a National Homeland for the Jews. [24] The Sevres Treaty was never ratified by the Turks who were concerned over Turkey’s boundaries in Europe and in adjacent areas in Asia, not in the Middle East and North. But these issues were finally settled in 1923 in the Treaty of Lausanne that left the agreements in the Middle East unchanged.
The trustee selected by the League of Nations at San Remo was Great Britain; the US had been another possibiility. Sovereignty, i.e. political rights, over the other 99% of the lands captured from the Ottomans in the Middle East was allocated to Arab and Muslim majorities in some 20 areas such as Lebanon, Syria, and Iraq but as in the case of Palestine, in mandates of guardianship as the inhabitants had had no prior experience in self rule.
While it was expected in 1920 that the Jewish Homeland would eventually become a state when immigration gave the Jews a majority of the population, at the time the Jews were incapable of exercising sovereignty although the "Jewish Agency" was exercising administrative authority of wide scope.
End Notes
1. Brand, Soviet Russia, The Creators of the PLO and the Palestinian People, http://www.think-israel.org/brand.russiatheenemy.html
2. Newt Gingrich, Campaign speech, 2012 Republican Primary
3. Brand, Was there a Palestine Arab National Movement at the End of the Ottoman Period? http://www.think-israel.org/brand.palnationalism.html
[4] Danny Ayalon, Israel's current Deputy Foreign Minister, The Truth About the West Bank /News/News.aspx/145836
[5] See the original documents in the Avalon Project at Yale University. http://avalon.law.yale.edu/subject_menus/versailles_menu.asp
[6]The Balfour Declaration Text http://unispal.un.org/UNISPAL.NSF/0/E210CA73E38D9E1D052565FA00705C61
[7] See the first two paragraphs of Article 22
[8] Mueller, Editor, Churchill as a Peacemaker, Feith, p. 224 n. 36 citing Sir Martin Gilbert, Exile and Return, p. 111-12
[9] Charles Hill, Trial of a Thousand Years, World Order and Islamism
[10] San Remo Convention Text of the Mandate
http://wwi.lib.byu.edu/index.php/San_Remo_Convention
[11] Howard Grief, The Legal Foundation and Borders of Israel under International Law, p. 36
[12] The Future of Palestine" by Musa Alami with a foreword by Mr. Alami. Hermon Press, Beirut, London (1970)
[13] Id
[14] Id
[15] Salomon Benzsimra, Jewish People’s Rights to the Land of Israel, n. 68 See below
[16] David Lloyd George, The Jews and Palestine, http://einshalom.com/archives/210
[17] Ronald Sanders, The High Walls of Jerusalem, A history of the Balfour Declaration and the Birth of the British Mandate for Palestine. Holt, Rinehart and Winston, New York (1983) p. 90-94
[18] High Walls at 189
[19] Sir Martin Gilbert, Churchill and the Jews,Gilbert reveals the beliefs that moved the British government to issue the Declaration: “The War Cabinet hoped that, inspired by the promise of a national home in Palestine, Russian Jews would encourage Russia—then in the throes of revolution—to stay in the war,. . . http://www.inconvenienthistory.com/archive/2011/volume_3/number_1/churchill_international_jews_and_the_holocaust.php
[20]http://www.yale.edu/lawweb/avalon/un/unchart.htm#art80
[21] Abu Mazen Charges that the Arab States Are the Cause of the Palestinian Refugee Problem (Wall Street Journal; June 5, 2003)
[22]http://www.palestinefacts.org/pf_independence_war_diryassin.php
[23] http://en.wikipedia.org/wiki/Arab_Legion
[24] http://athena.hri.org/docs/sevres/part3.html
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