On the Legitimacy of the Settlements: A Legal and Historical Perspective by Lorenzo Kamel

On the Legitimacy of the Settlements: A Legal and Historical Perspective

by Lorenzo Kamel

[Dr Lorenzo Kamel is Senior Fellow at IAI and Research Fellow at Harvard’s CMES]

It would seem unnecessary in 2015 to refer to the League of Nations or the Mandate for Palestine when discussing the legal status of the Palestinian territories. Yet, in recent years several scholars are resorting to these issues to provide a legal justification for the construction/enlargement of outposts/settlements and the indirect denial of the right of the Arab-Palestinian people to self-determination. This article aims to deconstruct these approaches and to shed light on the selective use of history and international law that underpins them.

The 89 pages of the Levy Report, released on 9 July 2012 by a special committee appointed in late January 2012 by PM Netanyahu to investigate whether the Israeli presence in the West Bank is to be considered an occupation or not, clarified that “with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter”.

In a video entitled “the Legal Case for Israel,” international lawyer Eugene Kontorovich pointed out that “up to 1948 all this area [present-day Israel and the Palestinian territories] was Palestine reserved as a Jewish State by the League of Nations Mandate […] the legality of the Mandate jurisprudence cannot be changed.” More in general and according to an interpretation held by a growing number of scholars and by most of Israel’s right-wing parties, the preamble as well as Article 2 of the Mandate secured the establishment of the Jewish National Home on, in Howard Grief’s words, “the whole country of Palestine, not a mere part of it.” (H. Grief, The Legal Foundation and Borders of Israel under International Law (Jerusalem: Mazo, 2008), p. 106.) It would follow that, as argued by the late Eugene Rostow, “the Jewish right of settlement in the whole of western Palestine – the area west of the Jordan – survived the British withdrawal in 1948”.

But to resort to the League of Nations and the British Mandate for Palestine might be counterproductive for those committed to finding legal justifications for the construction of outposts, or the enlargement of settlements, in the Palestinian territories. The term “national home,” in fact, had no mutually agreed-upon meaning or scope and the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions” and contained safeguards for the rights and position of the non-Jewish communities.

True, in 1919 prominent British official Jan Christiaan Smuts, a leading figure in Lloyd George’s War Cabinet and an open supporter of racial segregation, envisaged the rise of “a great Jewish State.” Lloyd Gorge himself pointed out that “it was contemplated that when the time arrived for according representative institutions in 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”.

On the other hand, the first Attorney General of Palestine, “lifelong Zionist” Norman Bentwich, contended that “a national home, as distinguished from a state, is a country where a people are acknowledged as having a recognized legal position and the opportunity of developing their cultural, social and intellectual ideals without receiving political rights”.

This position was also consistent with the one expressed a few years earlier by the general secretary and future President of the Zionist Organization Nahum Sokolov. He represented the Zionist Organization at the 1919’s Paris Peace Conference, where made it clear that the

“object of Zionism is to establish for the Jewish people a home in Palestine secured by public law […] It has been said and is still being obstinately repeated by anti-Zionists again and again, that Zionism aims at the creation of an independent ‘Jewish State’. But this is wholly fallacious. The ‘Jewish State’ was never part of the Zionist program. The Jewish State was the title of Herzl’s first pamphlet, which had the supreme merit of forcing people to think. This pamphlet was followed by the first Zionist Congress, which accepted the Basle program – the only program in existence.”

Hubert Young, an important figure of the Foreign Office, wrote in November 1920 that the commitment made by London “in respect of Palestine is the Balfour Declaration constituting it a National Home for the Jewish People.” Lord Curzon corrected him: ‘No. “Establishing a National Home in Palestine for the Jewish people” – a very different proposition.” (The National Archives [TNA] FO 371/5124. Curzon, 29 Nov. 1920. See L. Kamel, Imperial Perceptions of Palestine: British Influence and Power in Late Ottoman Times (London: I.B. Tauris, 2015).)

Many other at times contradicting points of view might be quoted. Speaking in front of the Peel Commission in 1937, Winston Churchill made it clear for instance that there was nothing in the definition of the “National Home” that might have precluded “the establishment of a Jewish State.” (Palestine Royal Commission: Command Paper 5479 of 1937.)  As noted by Isaiah Friedman in his British Pan-Arab Policy, 1915-1922: “Whether [the first British High Commissioner for Palestine Herbert] Samuel had this ultimate aim in mind when conceiving his policy is dubious. But Churchill, as his response of the Peel Commission shows, did favour it. Throughout his career as Colonial Secretary, he adhered to his Zionist convictions.”

Whatever the opinion of anyone on the excerpts quoted up to this point, it must be stressed that they are nothing more than personal opinions coming mainly from pro-or-anti-Zionists, pro-or-anti-Arabs/Palestinians, anti-Semites, pro- imperial statesmen and so on. None of them has any legal value.

The first document that officially clarified the interpretation of the Mandate’s text (before its ratification) is the British White Paper of June 1922. It pointed out that the Balfour Declaration does “not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded ‘in Palestine’”. Furthermore, it stressed that the “Zionist congress” that took place in Carlsbad in September 1921 had officially accepted ‘the determination of the Jewish people to live with the Arab people on terms of unity and mutual respect, and together with them to make the common home into a flourishing community, the upbuilding of which may assure to each of its peoples an undisturbed national development.”

It is only in light of these clarifications that the preamble, and Article 2, of the Mandate can and should be understood. It is noteworthy that Zionist consent to the interpretation contained in the White Paper was requested and received before the Mandate was confirmed in July 1922. In Weizmann’s words: “It was made clear to us that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper [of 1922], and my colleagues and I therefore had to accept it, which we did, though not without some qualms.” (C. Weizmann, Trial and Error: The Autobiography of Chaim Weizmann (Westport: Greenwood, 1972), p. 208.)

The British Mandate for Palestine was approved on the basis of a clear understanding that sheds light on, and directly contradicts most of, the claims made at the beginning of this article.

Israel’s right to exist and to defend itself against terror and discrimination is something that any person interested in peace must support. Equally true is that the attempt to justify the construction of outposts or the enlargement of settlements in the Palestinian territories through a selective use of the League of Nations and its mandates system is a misleading and problematic approach that requires better public understanding.

To deconstruct these approaches is a precondition for any serious attempt to achieve a mutual understanding between Israelis and Palestinians.

1. Thanks for the post . The respectable author of the post , insist on : peaceful prospect for the region , and legal historical analysis . yet :

   In light of the principle of self determination, which doesn’t necessarily consist on historical perspective , then, the most important legal issues, rely on the following (and from then and on actually):

   1) The United Nations General Assembly Resolution 181 ( November 29, 1947 ) adopted the following resolution , consisting on partition of the land to two states , here I quote :

   ” Independent Arab and Jewish States and the Special International Regime for the City of Jerusalem, set forth in Part III of this Plan, shall come into existence in Palestine two months after the evacuation of the armed forces of the mandatory Power has been completed but in any case not later than 1 October 1948. The boundaries of the Arab State, the Jewish State, and the City of Jerusalem shall be as described in Parts II and III below. ”

   And so, on one hand, the Jewish state or habit-ants, complied fully with it, and moreover, insisted on mutual respect and sustainable peace with their Arab neighbors, here I quote from the independence declaration of the jewish state :

   ” WE APPEAL – in the very midst of the onslaught launched against us now for months – to the Arab inhabitants of the State of Israel to preserve peace and participate in the up-building of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.
   WE EXTEND our hand to all neighboring states and their peoples in an offer of peace and good neighborliness, and appeal to them to establish bonds of cooperation and mutual help with the sovereign Jewish people settled in its own land. The State of Israel is prepared to do its share in a common effort for the advancement of the entire Middle East.”

   2) And yet , as you know , the Arab states and the Palestinians , refused to comply with it , while extending a full war the hostilities (1948 Arab–Israeli War ) while :

   The UN resolution ( of partition ) clearly stated :

   ” The Security Council determine as a threat to the peace, breach of the peace or act of aggression, in accordance with Article 39 of the Charter, any attempt to alter by force the settlement envisaged by this resolution;”

   Since then: hostilities, against the Israeli state, occur over and over. And , settlements were part of security planning and perception , and everything , in light of such clear hostilities . Oslo agreement also granted the Palestinians an opportunity for co – existence , and yet :

   Another abrupt-ion of hostilities took place ( known as El Aksa intifada ) . So , what we are left here is :

   Burden of proof upon the Palestinians that they are real peace seekers , and :

   well , one may Wonder, why the Israeli side, hasn’t yet acted with full coherency in light of such occurrences ( on one hand ,seeking peace ,recognizing the Palestinians right for a state and self determination , on the other hand , keeping in construction of settlements ,and avoiding full annexation and implication of sovereignty on the west bank , while granting full citizenship to Palestinians residents ) .

   Well , we surly , can’t have it all here …..

   Thanks
   12.04.2015
   at 2:28 pm ESTel roam
2. In any event, much has happened since — there is and will and must remain a state of Israel, a member of the United Nations, and for the majority of members, there is a state of Palestine. Further, for the vast majority of states, the U.N. S.C., the U.N. G.A., the I.C.J., the ICRC, and so forth, Israeli annexation of occupied territory is a war crime and Article 49, etc. of the 1949 Geneva Civilian Convention as well as articles of HC IV (1907) and customary laws of war have been violated with the infusion of Israeli persons into occupied territory. See Ten Types of Israeli and Palestinian Violations of the Laws of War and the ICC, available at http://ssrn.com/abstract=2658784
   The two state paradigm is still the best hope for a new and lasting peace.
   12.04.2015
   at 3:21 pm ESTJordan
3. I’m not sure if I understand the point clearly. I mean, couldn’t the same point be used to question the legitimacy of the State of Israel itself rather than be limited to the settlements? Judging by the UNGA resolution 181, it seems like this is a bit counterproductive though taking into account how was the meaning of “Jewish National Home” understood is certainly useful.

   In any event, wasn’t the British Mandate legally terminated in 1948? Isn’t this reason enough for pointing out that Mr. Kontorovich’s point lacks relevance? It’s not like we are in 1945 and I don’t see why would the legal regime in place then have any relevance now.

   Perhaps the most convincing argument to provide for the legitimacy of Israeli settlements, if one were looking for reasons to find justifications for their existence, would be to point out that in many cases (such as in Hebron, Gush Etzion and East Jerusalem, most notably, but IIRC there were Jews living even in Gaza at some point of the British Mandate) there were Jews who lived and owned property there but who lost their property rights and were forced to leave as a result of communal tensions during the Mandate and the 1948 war, and so settlers could in some cases be argued to be returning to what is theirs by right (this was a particularly strong argument within Israel itself, which is why Gush Etzion was the very first settlement bloc built after the Six Day War: Proponents appealed explicitly to this fact and were quick to mention the Kfar Etzion massacre of 1948 in the public debate on the issue).

   But of course, it’s not like Israel agrees to a widespread application for this principle with regards to the Palestinians and if they don’t have a legal right to move to Israeli territory then Israelis don’t have a right to move to the West Bank, Jerusalem or Gaza either.
   12.05.2015
   at 5:16 am ESTAnon
4. @ANON:

   – This article is clear in claiming that the legitimacy of both Israel and Palestine is rooted in much more solid ground than anything that might be argued in relation to the League of Nations (LoN), or the Mandate. But, and this is the main issue here, if anyone prefers instead to use the LoN and/or the Mandate for fostering political claims (like the settlements’ legitimacy), this can be done only in a non-selective way.

   – The symbolic case of the Gush Etzion block, in many respects unique, appears as the best possible example in support of what you (Anon) claim. The population settled in the block, where a small community of Jews arrived in 1927, was indeed expelled in the course of the 1948 war. However, all the settlements within the block, apart from Hadar Betar and Kfar Etzion, have expanded by more than 100% in the last 20 years. The block includes today also eight unauthorized outposts that further contribute to hinder the ability of Palestinians to access their natural resources. To conflate this massive state-funded project with “the reestablishment of a Jewish presence in the West Bank” risks to simplify a complex issue.

   – Mr. Kontorovich’s point would, in theory, not lack relevance in as much as Article 80 of the UN Charter implicitly recognizes the Mandate for Palestine (UNGA’s resolutions are suggestions). This is why the LoN and the Mandate would in theory still be legally relevant. In Article 80’s words: “Except as may be agreed upon in individual trusteeship arrangements placing each territory under the trusteeship system, nothing in this chapter should be construed in and of itself to alter in any manner the rights of any state or any peoples in any territory”. Noteworthy: Jerusalem was a trusteeship and Israel’s admission to the United Nations (May 11, 1949) was not unconditional but bound to the full acceptance of the UN Charter and Resolutions (Israel’s original application for admission was, not by chance, rejected by the UNSC): “Negotiations”, Abba Eban clarified in front of the UNGA on May 5, 1949, “would not, however, affect the juridical status of Jerusalem, to be defined by international consent”.
   12.05.2015
   at 7:39 am ESTAnswering
5. To be concise:
   a) a claim of “The term “national home,” in fact, had no mutually agreed-upon meaning” is weak. For example, the US delegation to the 1919 Versailles Peace Conference understood the object as a “Jewish state” (http://myrightword.blogspot.co.il/2015/11/was-Jewish-state-agenda-item-from.html).
   b) all British statements weakening the view of a future Jewish state were made under pressure of Arab violence and therefore, the validity of such alterations in the original intent is questionable.
   c) the act of restricting Jewish settlement east of the Jordan in 1922 (for the benefit of a Saudi Arabian who had invaded the area) was itself an apparent recognition that all the remaining territory was to become a Jewish state.
   d) UN Article 80 grants the original Palestine Mandate a status.
   12.05.2015
   at 11:22 am ESTYisrael Medad
6. I’m quite flattered that a basic talk I gave to college students several years ago merits continued academic attention. (By the way, the video if I recall omits the Q & A, where some of this was asked and answered).

   I do have a scholarly response about the ongoing relevance of the Mandate, which relates to the uti possidetis doctrine and borders. The question of borders is of course entirely distinct from the “national home” question, but it is the question currently in political dispute. Prof. Avi Bell and I have a draft paper on this that should be up on SSRN in a few weeks, so hold your horses.

   I should add that the Egyptians and Jordanians do not share Dr. Kamel’s views, as their peace treaties with Israel specify the Mandatory border as an international frontier.
   12.05.2015
   at 11:42 am ESTe-kontorovich@law.northwestern.edu
7. I passed this along and received this response which I post here:

   “Obviously, there are reasonable arguments to be made on the question of whether the Palestine Mandate affects the rights of Jews to reside in the West Bank and “east” Jerusalem, and on the question of whether the Palestine Mandate affects the nature, scope and origin of a Palestinian right of self-determination.

   While I’m skeptical, I suppose that if one stretches, one might find a reason to relate these current arguments about the law to an 80-90 year old political debate about the meaning of the term “national home” in the Mandate. But Kamel has not made that stretch, or offered such a reason. He simply assumes the relationship, and then leaps to the conclusion, apropos of nothing, that the historical outcome of the “national home” debate is decisive to the modern legal questions.

   Whether anything lies behind Kamel’s unexplained assumption that the “national home” argument is important to understanding the current legal effects of the Mandate, I do not know. But I see no reason to accept the dubious conclusion that the meaning of “national home” is decisive on the questions of Jewish residence in the West Bank and “east” Jerusalem or the territorial scope of Palestinian self-determination, simply because Kamel asserts it. Perhaps next time Kamel will grace us with an actual reasoned argument.

   By the way, am I correct in understanding that Dr. Kamel has no legal training?”
   12.05.2015
   at 4:22 pm ESTYisrael Medad
8. Mr. Medad,

   A) The opinion that you mentioned was expressed in the very same days of the one uttered in Paris by Nahum Sokolov (see above in the article). Better to have more opinions rather then less. They are legally irrelevant, but it is interesting to add more contradicting points of view to the ones already mentioned in the article.

   B) I would consider also the other angle: all British statements and actions regarding Palestine and its local majority were shaped by political purposes and under increasing pressure. Their original “meaning” was often influenced and changed. Winston Churchill, for instance, changed his approach many times, although he remained consistent in his way of considering the “stronger race” and the local “dogs”. In his words: “I do not agree that the dog in a manger has the final right to the manger even though he may have lain there for a very long time. I do not admit that right. I do not admit for instance, that a great wrong has been done to the Red Indians of America or the black people of Australia. I do not admit that a wrong has been done to these people by the fact that a stronger race, a higher-grade race, a more worldly wise race to put it that way, has come in and taken their place”

   C) Again, personal interpretations are always welcomed. But there is little of apparent or obvious in what you claim.

   D) It is more complicated than this, but tendentiously I agree with you: the UN Article 80 granted the original agreed (not interpreted) Palestine Mandate a status. Art. 7 of the Mandate: “The Administration of Palestine shall be responsible for enacting a nationality law. There shall be included in this law provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine”.

   Both Israel and Palestine have the full right to exist. Let’s avoid any selective use of the League of Nations or the Mandate.
   12.05.2015
   at 4:32 pm ESTAnswerMedad
9. Medad, “Whether anything lies behind Kamel”…”legal training”…ect: this is old style.
   The person that wrote the post that you are pasting and copying missed the point. The historical outcome of the “national home” debate is not “decisive” to the modern legal and non-legal questions. If I understand correctly, the real issue here is not the debate on the “national home”. The issue is that different opinions were expressed, all valid and all irrelevant. The agreed, approved, Mandate is what it matters, and it clarified several aspects that contradict what you and others claim or imply (“up to 1948 all this area was Palestine reserved as a Jewish State by the League of Nations Mandate”). Your colleague makes confusion also regarding the fact that the issue here is related to “Jewish residence in the West Bank”, and not to a massive state-funded project.
   PS
   These are first and foremost historical facts with legal repercussions, not the other way round. Wrong understanding of historical facts brings wrong legal assumptions.
   12.05.2015
   at 5:17 pm ESTAnswerMedad
10. Mr Kamel:

    Firstly, I would like to thank you for your prompt response. I have 3 comments to make:

    1) I agree, the legality of Israel’s existence as an independent state rests on more than just the Mandatory Charter.

    2) While Gush Etzion is a special case, I would not go as far as to say it is unique – the same could be said about parts of the Jewish settlements in east Jerusalem and perhaps Hebron, at the very least.

    As you said, while the “return” angle risks to over simplify the issue, I also think that it would also be a simplification to disregard the possibility that some settlements may be legal while others may not.

    Of course, as I said and I hope we can both agree, Israel would never argue this before an international court because the widespread application of this argument would be clearly against its interests. That said, it does pose an interesting legal question in my view – at least with regards on the practical meaning of a “right to return”. And of course, it would also put the Palestinian position in a predicament, insofar the legality of all settlements is disputed.

    3) I would not be so sure. After all, Israel declared independence and Arab states invaded the former Mandate at least on part because the British declaration that it was terminating the Mandate on May 14, 1948. Likewise, it seems to me that the US’ proposal to turn the Mandate’s territory into an UN Trust may signal that it regards the British declaration as ending the applicability of the Mandate’s Charter: After all, how could such Charter be applied if the Mandatory Power refuses to take its functions under it?
    12.05.2015
    at 6:28 pm ESTAnon
11. To Answer Medad at 4:32 AM:

    sorry, but nothing is irrelevant in assessing the intentions of those powers who had the legal right to deal with the issue of former Ottoman Empire territory after said Empire declared war and lost. Back in 1917, three months after his declaration was issued, Lord Balfour confessed: “My personal hope is that the Jews will make good in Palestine and eventually found a Jewish state.” and that what was put into effect from Versailles to San Remo and on to Geneva. In addition to my note on the American thinking, I add that U.S. intelligence recommendations drafted for President Wilson at the 1919 Paris Peace Conference had the same impression: “It will be the policy of the League of Nations to recognize Palestine as a Jewish State as soon as it is a Jewish state in fact.”

    Furthermore, from San Remo to the League of Nations Mandate decision, it was clear that non-Jewish communities had no political rights whatsoever and the topic for deliberation, ,if any, was their personal and religious rights.

    as to your (c), you are unintelligible in that.

    as to your (d), let’s note another Article, 7, which reads “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…”. As the territory involved was all the area west of the Jordan River, Jews building homes today in Judea and Samaria, whether privately or sponsored by international organizations (okay, not the EU) or by institutions of the state of Israel should be permitted and legal.

    And 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.” Was the Partition Plan of 1947 legal and even if so, once rejected by the Arabs, is it anyway applicable?

    Palestine has a right to exist, but where? If Jordan was originally part of the Mandate area, why not there?
    12.06.2015
    at 2:53 am ESTYisrael Medad
12. The author ignores all evidence that the Jews did not want immediate statehood. Instead they wanted to place the collective political rights to self-determination in trust until a Jewish majority population would grow out of the Jewish efforts to improve the land. SSRN.com/abstract=2679399 , The Basic Equities of the Palestine Problem, Simon Rifkind, Jerome Frank, AbeFortas, Milton Handler.and four other distinguished jurists. If you read the resolution and the Palestine Mandate you will see they are placing the collective right to self-determination in trust. A trust lives on even though a trustee resigns until the trust res vests. This trust res vested in two parts, the first part in 1948, the remainder in 1967. On the night before the San Remo Resolution was agreed on, the French wanted to change the savings clause to save political rights for the non-Jewish communities. The others refused and it was not done. See also, A Jewish Palestine: the Jewish case for a British trusteeship by Harry Sacher.. The Principal Allied War Powers adopted Harry Sacher’s advice.
    12.06.2015
    at 5:32 pm ESTWallace Edward Brand
13. Eugene Kontorovich:

    We look forward to your scholarly response, but I may recall that you already discussed these two issues – uti possidetis/borders – claiming that ‘Israel [present-day Israel and the Palestinian territories] is the state created in Mandatory Palestine. Thus under uti possidetis iuris, it inherits the Mandatory borders.’ It seems to me that the first sentence is historically and legally un-correct, the second is highly questionable.

    Very briefly:

    – In early 1921, prior and during the Cairo Conference, the British authorities clarified once more that: ‘Distinction to be drawn between Palestine and Trans-Jordan under the Mandate. His Majesty’s Government are responsible under the terms of the Mandate for establishing in Palestine a national home for the Jewish people… Palestine and Trans-Jordan do not, therefore, stand upon quite the same footing.’
    The British White Paper of 1 year later, June 1922, clarified, among other issues, that the Balfour Declaration does ‘not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded “in Palestine”.’ No doubt regarding the geographical scope/limits of the White Paper (WP) of 1922, that served as the base of the agreed approved version of the Mandate: Jordan was outside of the scope of the ‘national home’ ‘IN Palestine’ mentioned in the WP and agreed, before its approval, in the Mandate.

    – The controversial notion of uti possidetis is usually prized by states and actors that emerged through the decolonization process. Assuming that it is possible to easily apply it, and the concept of terra nullius, to the area under discussion, and that the ICJ, the Security Council (1980 UNSC, res.476: ‘acquisition of territory by force is inadmissible […] reaffirms the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem’) et al. are all biased and/or wrong, this should be seen as a positive development. It would mean that the Israeli authorities take full responsibility for all the human beings in the Palestinian territories, giving to all of them also civil and political rights. Unless you suggest that the ending of the current decades-long limbo should be found in a selective use of the uti possidetis doctrine, that involves only the Jordan Valley and other cherry-picked areas considered as useful.
    12.07.2015
    at 12:01 pm ESTcarl m.
14. In addition to the many U.N. S.C. and G.A. resolutions and the I.C.J., one should note that in view of UN Charter, article 103, obligations under the U.N. Charter shall prevail over obligations under any other international agreement (even if we are talking about a pre-UN Charter agreement).
    12.07.2015
    at 12:35 pm ESTJordan
15. In response to carl m:

    We are not concerned here about Jewish rights in the whole British Mandate for Palestine, as it was eventually delineated in 1925. We are dealing here with Jewish rights in “western Palestine”, i.e. the part of the British Mandate west of the Jordan River.

    The Jewish National Home (JNH) “in Palestine” was unquestionably envisaged in all of western Palestine. The wording of the Mandate — in its 28 articles and its 15 instances of the phrase “in Palestine” — leaves no doubt as to the entirety of western Palestine being allocated to the JNH, once Transjordan was excluded from Jewish settlement.

    For this and other matters raised by Dr. Lorenzo Kamel, please read my comments here:
    http://www.israpundit.org/archives/63611332
    12.08.2015
    at 1:29 am ESTSalomon Benzimra
16. The author’s repeated use of the term “Palestinian territories” assumes that such territories belong to, have been awarded to, or are under the sovereignty of some existing Palestinian sovereign entity that maintains legal rights to that territory.
    But this is assumption is totally flawed and wrong and betrays a political bent by the author.
    There has never been any legally authoritative or binding determination that the territories are Palestinian.
    To the contrary – the Palestinian leadership itself, as well as the US, EU, UN Russia and others have acknowledge, and counter-signed the Oslo Accords in which the issue of the permanent status of the territories iis a negotiating issue.
    Hence, in determining in your paper, – probably through an element of wishful thinking – that the territories are Palestinian, the author and others of his ilk, are in effect attempting to prejudge an agreed-upon negotiating issue.
    As an historian, he might be advised to stick to dealing with history, rather than dabbling in law.
    12.08.2015
    at 3:57 am ESTAlan Baker
17. Ambassador Baker

    The United Nations, the EU, the International Committee of the Red Cross, the government of the UK ect. ect. all refer to the area as the “Occupied Palestinian Territories”.
    http://www.publications.parliament.uk/pa/cm200304/cmselect/cmintdev/230/230.pdf

    The International Court of Justice (ICJ) refers to the West Bank, including East Jerusalem, as “the Occupied Palestinian Territory”.

    The term “Palestinian Territory” had been used by the UN and other international organizations between 1998 to 2013 and was replaced in UN Secretariat communications by the term “State of Palestine” starting in 2012, when 138 world states recognized the “State of Palestine” (while no 1 State in the world recognizes Israel beyond the Green Line).

    There is only 1 country in the world that refers to them as “disputed territories”: Israel.

    As for Oslo, it was an interim accord for six years, and was violated since the very beginning, considering that at each round of negotiations it is required to take into account the new demographic reality, heavenly influenced by outposts/settlements/settlers. Plus, let me quote the late Professor of Public International Law Vera Gowlland-Debbas: “Not only is the legal status of the Oslo Accords far from clear in that, not having been registered with the UN, they cannot be invoked before any organ of the United Nations [Article 102(2) of the UN Charter], but also Article 103 of the UN Charter ensures that in case of conflict, the obligations of Israel under the Charter would prevail over any other agreement’ (at 523). “Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions.” (Article 31(6).

    Finally, if I may ask you a question: do you apply your logic to other issues as well? For instance, do you consider Jerusalem as the ‘complete and united capital of Israel’? I am asking you this because the “US, EU, UN Rusiia and others” strongly disagree with this unilateral standpoint and think that this issue must be an “agreed-upon negotiating issue”, even more so considering that, as it was mentioned in a comment mentioned above, Israel was admitted to the UN only after that Abba Eban assured at the UN that ‘Negotiations would not, however, affect the juridical status of Jerusalem, to be defined by international consent’.

    I think that the author is in line with almost the entire international community, while calling them “disputed territories” betrays a political or diplomatic bent.
    12.08.2015
    at 5:29 am ESTLisa Cardon
18. Ms Cardon,

    Whether the UN Secretariat, ICRC, or even the UK government, in all its majesty, “refer” to the area as “occupied Palestinian territories” – you surely cannot but admit that such references cannot and do not determine legal status, but rather political opinion.

    Even the ICJ reference was not a legal determination but an ob iter dictum based on Palestinian documentation presented to the court.

    The use by the UN secretariat and other bodies of the term OPT is nothing more than the political opinion of the majority that voted for the non-binding Gweneral Assembly resolutions concerned. They cannot be considered as legal authority.

    So your reliance on those sources cannot be considered serious or legally persuasive.

    Your attempt to prove that the Oslo accords are not a binding international agreement is curious to say the least. there are many among the Israeli right wing that would willingly take up your argumentation.

    The accords have never been seen by anyone as an international agreement because they are not an agreement between two sovereign states.

    But they have, and continue to have a sui-generis personality inasmuch as they have been countersigned and endorsed by the international group of leaders that still maintain the hope that they will lead to peace.

    Your reference to their being an interim accord for six years is simply incorrect.

    As for Jerusalem, while you would appear to try to put the clock back some sixty years to the days of Abba Eban, the issue of Jerusalem is, by agreement between the PLO and Israel, an issue to be negotiated between them. The agreed upon outcome of such negotiation, if it ever happens, and as declared by the US, UK, EU and other governments, will be accepted and welcomed by all.

    Permit me, with all due respect, to add that I am prepared to discuss these issues on the basis of legal argumentation, but not on emotional and biased political reasoning that attempts to ply a particular political viewpoint rather than to maintain a respectable legal discussion.
    12.08.2015
    at 8:30 am ESTAlan Baker
19. Ambassador Baker

    You are right that “the ICJ reference was not a legal determination”. Yet, AOs constitute an authoritative statement of international law. Judge Gros (ICJ): “When the Court gives an advisory opinion on a question of law it states the law’, and while ‘it is possible for the body which sought the opinion not to follow it in its action … that body is aware that no position adopted contrary to the Court’s pronouncement will have any effectiveness whatsoever in the legal sphere”. When the ICJ expressed itself “reaffirming the applicability of the Fourth Geneva Convention” to the “Palestinian Territory” was not simply expressing obiter dicta remarks, nor were simply repeating the Palestinian documentation.

    I am surprised to hear that the ICJ, EU, the UN, the EU, the ICRS, the government of the UK ect. ect. Ect. are all simply expressing political opinions. Both Israel and the “non-member State of Palestine” never agreed borders. You could apply your “political opinions'” logic to Israel as well.

    I doubt that “many among the Israeli right wing would willingly take up” my argumentation, considering your, in my opinion highly selective, use of the Oslo accords, that perfectly fits their needs and ideologies.

    You contend that the Oslo accords “continue to have a sui-generis personality inasmuch as they have been countersigned and endorsed by the international group of leaders”: why don’t you feel the necessity to apply the same reasoning also to other issues countersigned and endorsed by plenty of “international group of leaders”. An example is provided in one post published above: 1980 UN Security Council – res. 476: “acquisition of territory by force is inadmissible….reaffirms the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem”. This was a simple call for withdrawal, without reference to any condition. Has the UNSC a “sui-generis personality”?

    Oslo was an interim agreement (art. 1) in which the Gaza Strip and the West Bank were recognized by all parties involved (with the United States and Russia serving as witnesses) as comprising one “single territorial unit”. The continuing validity of the Oslo Accords is challenged by dozens of leading international law experts, I quoted Vera Gowlland-Debbas, but I could add a few dozens more if you wish so. Oslo is and was not a sine-die green light for implementing facts on the ground,but accords meant to be implemented during a “transitional” period of 5 years, ending in 1999 with the achievement of specific and agreed goals. True, Oslo was not signed by two states: but this should simply suggest you that there is an enormous disparity between the two sides. In this context, may I ask you to name for me 1 another case in the world in which a population is since decades both without a state and a citizenship? It is a genuine question and 1 example will be enough.

    If I understood correctly, you don’t consider Jerusalem as the capital of Israel and you strongly oppose this (as you oppose the “Palestinian territories”), because the issue, according (also) to Oslo, must negotiated between the parties: is it correct? I wish to add that Jerusalem is not simply a bilateral issue. Plus, I did not try to put the clock back some sixty years, but that assurances are still legally relevant because Israel was admitted to the UN under precise conditions (see Jerusalem).

    Finally, IMHO, your two posts contained both ad hominem judgments and were heavenly political (you used the term “biased”; I will avoid it as a form of respect). I am not an emotional person (woman=emotional?) and I would suggest to stick just to legal arguments. In any case, from now on I will answer, if needed, only to legal considerations ignoring any ad hominem judgement.
    12.08.2015
    at 2:19 pm ESTLisa Cardon
20. In response to Salomon Benzimra:

    Many thanks for your reply, you provide some interesting inputs, that are becoming more common in the last few years.

    “We are not concerned here about Jewish rights in the whole British Mandate for Palestine…as it was eventually delineated in 1925. We are dealing here with Jewish rights in “western Palestine”:

    — In early 1921, prior and during the Cairo Conference, the British authorities pointed out once more that: ‘Distinction to be drawn between Palestine AND Trans-Jordan”. There is no doubt that the British White Paper of 1 year later, June 1922, was referring to a Palestine between the river and the sea (White Paper of 1922: “the Jewish national home is not the imposition of a Jewish nationality upon the inhabitants of Palestine as a whole”).

    — That the White Paper was referring to a “national home” (whatever the meaning that different officials and countries gave to this expression) “IN Palestine” was clearly agreed with the Zionist leadership: as the article above confirms.

    — There was not 1 single Jewish community in present-day Jordan in 1920: so even rationally it would have made little sense to think otherwise.

    — The claim that “The Jewish National Home (JNH) ‘in Palestine’ was unquestionably envisaged in all of western Palestine” is not backed by 1 primary or secondary source: I would appreciate if you could provide one (please if possible not an interpretation but a clear statement). What instead we know for sure is that the British authorities clarified in several official occasions before the issuing of the White Paper of 1922 that Palestine and Trans-Jordan were two different things. In the first of the two, it was agreed to include a “national home” “IN Palestine”: the Mandate, the only one that in this discussion has a legal value, was approved with this clear and agreed understanding.

    — The expression “IN Palestine” was the results of months of negotiations in London and the preposition “IN” was added at a later stage precisely in order to avoid that once published/officialized it might have created the misunderstandings/interpretations to which you are referring to.

    — Thanks to the needed context provided also by the Cairo Conference & the White Paper of 1922 (the other White Papers are irrelevant because did not serve as the agreed base of Mandate) we know that the agreed wording of the Mandate leaves no doubt regarding the “national home” “in Palestine”. The Mandate was approved only after that this was agreed and clarified. It is noteworthy that also an historian not very sympathetic with the Palestinians, Daniel Pipes, confirmed that “… Churchill offered this territory to Faysal’s older brother, ‘Abdallah, who after some hesitation accepted. The Hashemite dynasty of ‘Abdallah, his son Tallal, and his grandson Husayn have ruled Transjordan (or Jordan, as it was renamed in 1949) ever since. After March 1921, the east bank was no longer Palestine. The sum of this complex tale is that Jordan was part of the Palestine Mandate for a mere eight months, from July 1920 to March 1921. Even that is vitiated by two facts: the League of Nations formally bestowed the mandatory responsibility on Great Britain only in July 1922, making the eight month period legally irrelevant..”

    — Please don’t take for granted that present-day Jordan was always considered of referred to as “Eastern-Palestine” by the Ottomans, the British or others. We have a huge amount of sources, many referring to Palestine within the land between the river and the sea (that is the land of the Nabi Musa Festival referred to in Ottoman correspondences as “Arz-i Filastin”), and many others referring to a land beyond the river. Nahum Sokolov himself wrote: “the land of Canaan, from the Mediterranean Sea to the Jordan, and from Sidon to Gaza in the south-west, and to the Dead Sea in the southeast”

    * Bottom line: I strongly believe that Israel has the full right to exist, prosper and defend itself against any attack: the world would be a poorer place without it. My moral principles and studies oblige me to apply the same standards to “the others” and to oppose anyone that sees only the rights of one of the two sides. These solipsistic approaches, from pro-Palestinians and pro-Israelis alike, are often based on wrong historical and legal interpretations, and I think that the author of the article above outlined just a very few of them.
    12.08.2015
    at 4:23 pm ESTcarl m.
21. In response to carl m.

    Thank you for your input and for your overall agreement that the evolution of the sequence [“East Bank” >> Transjordan >> present-day Jordan] is another matter not central to the issue at hand.

    I would just point out that this truncation (and, later, vast territorial expansion to the east) of what was designated as “Palestine” at the San Remo Conference of 1920 originated, as you rightly noted, in the Cairo Conference of 1921, thus leading to the White Paper of 1922. I am sure you will agree that this British decision was purely political, in the wake of the ousting of Faisal from Syria by the French and the threatening northbound march of Abdullah from the Hedjaz to avenge his brother. The British White Paper of 1922 is the result of their political man-oeuvres. Its legality is highly questionable. And this is what I tried to show about successive British White Papers – all politically driven — which culminated in the undeniably illegal White Paper of 1939.

    Back to “western Palestine,” i.e. from the Jordan River to the Mediterranean Sea: You ask me to “provide 1 primary or secondary source” in support of the Jewish National Home (JNH) being established in this whole territory. The source is clear: the Mandate for Palestine, as it was confirmed by the Council of the League in July 1922.

    There is not a single clause in the Mandate pointing to any “national” entity other than the JNH. Whether in the preamble or in its 28 articles (except Article 25 which deals with “eastern Palestine”) there are many references to the Balfour Declaration, the national character of the Jewish people, the Jewish agency, the Zionist organization, the facilitation and encouragement of Jewish Immigration, the acquisition of Palestinian citizenship by Jews, etc. In contrast, the non-Jewish populations are granted only individual “civil and religious rights” (as originally formulated in the Balfour Declaration) but nowhere collective “national” rights. One would have thought that if such national rights had been granted to the Arabs “IN Palestine,” they would be clearly stated and defined in the Mandate charter. But they are nowhere to be seen.

    Three years after the confirmation of the Mandate, the British High Commissioner for Palestine observed in 1925: “The Balfour Declaration was endorsed at the time by several of the Allies Governments. It was reaffirmed by the conference of the Principal Allied Powers at San Remo in 1920. It was subsequently endorsed by unanimous resolutions by both houses of 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’ … This policy was fixed and internationally guaranteed.”

    However, the iron-clad recognition listed above did not restrained the British from subsequently distorting the spirit and the letter of the Mandate when they issued the Passfield White Paper in 1930, which introduced the absurd notion of “dual obligation” to be applied equally to both Arabs and Jews, and the infamous MacDonald White Paper in 1939 – a blatant violation of British obligations.

    So, when you state “My moral principles and studies oblige me to apply the same standards to ‘the others’ and to oppose anyone that sees only the rights of one of the two sides,” I respect your opinion but you are adhering to Passfield’s notion of equal “dual obligation,” which has no legal basis in the Mandate.
    12.08.2015
    at 9:38 pm ESTSalomon Benzimra
22. I read all the comments and I found them very informative. My reply is for Yisrael Medad.

    I am not sure that you are actually . It seems to me that you are assessing the intentions of some people, while neglecting others.

    : we should have now understood that legally speaking this is not the case

    It is important that you mentioned Article 7, that ensured .

    :
    My guess is because Jordan was outside of the scope of the agreed and because in the opinion of what were the 9/10th of the total population in Palestine 100 years ago, the area in present-day Jordan have never had the same religious, historical, cultural and social importance as compared to the the land between the river and the sea.

    Expelling or forcing them out is not a solution, at least not mine. With all the due respect, if we are obliged to decide it would seem to me less immoral to ask to you, Mr. Medad, to leave the settlement in the West Bank in which you live in and to return to the US where you were born and educated, than to force a Palestinian to leave his/her home in order to move to Jordan.
    12.09.2015
    at 4:35 am ESTmartburton
23. I read all the comments and I found them very informative. My reply is for Yisrael Medad. I am not sure that you are actually ‘assessing the intentions of those powers’. It seems to me that you are assessing the intentions of some people, while neglecting others.

    ‘As the territory involved was all the area west of the Jordan River’: we should have now understood that legally speaking this is not the case.

    It is important that you mentioned Article 7, that ensured ‘that the rights and position of other sections of the population are not prejudiced’.

    ‘If Jordan was originally part of the Mandate area, why not there?’:
    My guess is because Jordan was outside of the scope of the agreed ‘national home’ ‘in Palestine’ and because in the opinion of what were the 9/10th of the total population in Palestine 100 years ago, the area in present-day Jordan have never had the same religious, historical, cultural and social importance as compared to the the land between the river and the sea.

    Expelling or forcing them out is not a solution, at least not mine. With all the due respect, if we are obliged to decide it would seem to me less immoral to ask to you, Mr. Medad, to leave the settlement in the West Bank in which you live in and to return to the US where you were born and educated, than to force a Palestinian to leave his/her home in order to move to Jordan.
    12.09.2015
    at 4:38 am ESTmartburton
24. To martburton:

    This – “we should have now understood that legally speaking this is not the case” – I do not think proven or justified. Try again with details.

    This – “My guess is because Jordan was outside of the scope of the agreed ‘national home’ ‘in Palestine’” – is a wrong guess. Until 1946, both Trans- and Cis-Jordan were administered by one and the same High Commissioner. In 1946, the United States accepted the legal reasoning that since Western Palestine had not been resolved one way of the other, Jordan could not be accepted into UN membership. See my review which has links to additional material: http://myrightword.blogspot.co.il/2014/03/more-on-jordan-really-was-palestine.html

    I am not desirous of anyone moving, Jew or Arab. What I wish is that Jordan assume rights of representation for the Arab residents of Judea and Samaria whether in the form of autonomy, confederation or whatever.
    12.09.2015
    at 8:38 am ESTYisrael Medad
25. Thanks, Mr Medad.

    A. “Now Trans-Jordan has a government entirely independent of Palestine – the laws of Palestine are not applicable in Trans-Jordan nor are their laws applicable here. Moreover, although the High Commissioner of Palestine is also High Commissioner for Trans-Jordan, Trans-Jordan has an entirely independent government under the rule of an Amir and apart from certain reserved matters the High Commissioner cannot interfere with the government of Trans-Jordan …. Trans-Jordan nationality is recognized … Palestinians and Trans-Jordanians are foreigners and therefore Trans-Jordan must be regarded as a foreign state in relation to Palestine”. British High Court (in Jawdat Badawi Sha’ban versus Commissioner for Migration and Statistics), 1945.

    B. If you ask “Palestine has a right to exist, but where?” and then propose in Jordan, you seem to imply that Palestinians should move there. Anyway, your Jordan federation would be perfect for Israel and its attempt to cherry-pick the areas that are useful and rich of water and natural resources, it would be less needed by the Palestinians. Some argue that Palestinians should instead start thinking to establish settlements within Israel, exploiting the fact that up to now both sides never agreed borders.
    12.09.2015
    at 9:14 am ESTmartburton
26. Many thanks, Mr. Benzimra

    — Actually in my eyes the issue of Transjordan is pretty much relevant in this discussion.

    — Any British decision was purely political, starting from the Balfour Declaration to arrive to the end of the Mandate. Their legality is highly questionable, what is not questionable is the agreed understanding that served as the base for the approval of the Mandate

    — Yes, but the Mandate for Palestine pointed out the opposite, or in any case something quite different, from what you claim, and as we read in the article above Weizmann and the Zionist leadership agreed to the interpretation contained in the White Paper. This is what legally speaking matters, than of course each of us can consider this bad or good (as a matter of law resolutions adopted at a conference are not legally binding).

    — In all and every references that you mentioned there is none in which is stated that all the land between the river and the sea was to supposed to become a ‘Jewish national home’. Please quote the precise language that conferred the power to “create one Jewish national home” (or a “state”) in all the land between the river and the sea: if such was the aim they would be clearly stated this.

    — Article 7 tells it was to be a Palestinian entity or state: “The Administration of Palestine shall be responsible for enacting a nationality law. There shall be included in this law provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine”. It did indeed enact a nationality law in 1925, issuing passports that said “Palestinian citizen under article seven of the Palestinian citizenship order 1925”. This was in line with the agreed version of the White Paper of 1922 that served for the approval of the Mandate itself: “the Jewish national home is not the imposition of a Jewish nationality upon the inhabitants of Palestine as a whole”.

    — What the British High Commissioner for Palestine observed in 1925 is correct, no one denies this, and, if I may, it is not clear to me why you have the impression that this would support your claims.

    * When I stated that “My moral principles and studies oblige me to apply the same standards to ‘the others’ and to oppose anyone that sees only the rights of one of the two sides,” I am not adhering, as you claimed, to Passfield’s notion of equal “dual obligation”, but to a principle of equality and justice that should be part of each and every of us.
    12.09.2015
    at 10:20 am ESTcarl m.
27. Re:General Smuts, a member of the Imperial War Cabinet when the declaration was published, said in 1919 that he could see “in generations to come, a great Jewish state rising there once more.”

    A bit of clarification is in order on that account. By 1947, Smuts was a very outspoken advocate of partitioning western Palestine. He never felt the Zionists had any historical claim to to key regions, like the coastal plains.

    He said: “To the Jews, partition may be a biter pill, but ancient Palestine itself was never a wholly Jewish state, as the Philistines always occupied the coastal plains which form the best part of it, AND THE PROMISE OF A NATIONAL HOME NEVER MEANT THE WHOLE OF PALESTINE” [emphasis added] See J.C. Smuts, “Jan Christian Smuts”, Cassell & Co. Ltd., 1952 page 468
    12.09.2015
    at 9:11 pm ESTHostage
28. Re: The 89 pages of the Levy Report, clarified that “with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter”.

    If that’s supposed to mean colonization of Arab Palestine or Transjordan after the mandate was terminated, then that’s completely untrue. Prof Kontorovich misquoted the section of the LoN resolution pertaining to Transjordan. It did not say the provisions regarding the Jewish National Home were temporarily “suspended” or part of the perpetual international regime of safeguards mentioned in Article 28. It actually says the mandatory could either “postpone OR WITHHOLD APPLICATION” [emphasis added] on the basis of what he considered inapplicable or suitable to local conditions. https://archive.org/stream/mandateforpalest00leaguoft#page/10/mode/1up

    Even the Israeli High Court of Justice has ruled that “rights under the mandate ended when it was terminated.” BTW, the High Court has heard all of these quirky fringe theories about the San Remo resolution, the continuing operation of the mandate from the very beginning. In HCJ 1661/05 The Gaza Coast Regional Council v. The Knesset et al. the Court rejected them again – just as it had in CApp 41/49 Simshon Palestine Portland Cement Factory LTD. v. Attorney-General (1950) and Sifri v. Attorney-General (1950).

    IIRC, Justice Levy was the lone dissenting opinion in the case involving the removal of the Gaza settlers. That case and the source of the IDF Commander’s authority under the 4th Geneva Convention were subsequently cited in HCJ 7957/04 Mara’abe v. The Prime Minister of Israel; and HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel.

    FYI, the terms of resolution 181(II) not only terminated the mandate, they also prohibited Jews from taking-up residence in the Arab state or an Arab taking up residence in the Jewish state during the transition period. Each state controlled its own immigration after independence. The representative of the provisional government of Israel supplied unilateral declarations during the hearings on Israel’s membership in the UN acknowledging Israel’s “acceptance” of the terms of the resolution and undertaking to abide by and implement them. The General Assembly’s expert panels have repeatedly reported that Israel has an on-going legal obligation based upon the terms of its own unqualified acceptance (Pacta sunt servanda – agreements must be kept).

    In 1946 the Palestine Post published an article in which the spokesman for the Jewish Agency claimed that “The mandate Is indivisible” and that the Jewish people still had a secured legal interest in the territory of Transjordan, because the provisions of the mandate with respect to the Jewish national home had only been “temporarily waived” and that the British plans for Transjordan’s independence violated Article 80 of the UN Charter. Please see Page 3 in The Palestine Post, Tuesday, April 09, 1946: http://www.jpress.nli.org.il/Olive/APA/NLI/?href=PLS%2F1946%2F04%2F09&page=2

    The final session of the Assembly of the League of Nations actually endorsed the UK plans for Transjordanian independence. Members of the General Assembly and Security Council cited GA Res 24 and rejected the claims of Silver and Shertok that the UN had “inherited the Palestine Mandate” or that Article 80 somehow made it “part of the Law of Charter”. Last minute requests from the Jewish Agency that the General Assembly allocate portions of Transjordan, including the Port of Aqaba, to the Jewish State were also rejected.
    12.10.2015
    at 1:36 am ESTHostage
29. Thank you, Carl, for your reply. I will briefly address the points you raised.

    You rightly say that “any British decision was purely political, starting from the Balfour Declaration.” I agree. And that is especially so for the successive British White Papers, as I mentioned in my earlier post. Purely political. That is why attributing any legal weight to the “interpretation” contained in the 1922 White Paper is unfounded.

    The same is true for the Balfour Declaration when it was issued in 1917, even though it was endorsed by several other governments. But in San Remo, in April 1920, when the Balfour Declaration was combined with Article 22 of the Covenant of the League of Nation (which was part of the 1919 Treaty of Versailles) to set up the Jewish National Home (JNH), the Balfour Declaration became an act of international law. That is the whole difference, and there is no equivalent document of international law granting similar privileges to the Arabs of Palestine.

    You also state that “as a matter of law, resolutions adopted at a conference are not legally binding.” I would disagree with you if you are referring to the San Remo Resolution. This resolution was adopted on April 25, 1920, by the Supreme Council of the Allied Powers (SCAP), who decided to place Palestine under British mandate for the sole purpose of establishing the JNH. The decision of the SCAP led to the Treaty of Sèvres a few months later, and the Mandate of Palestine in 1922 which is akin to a treaty. It should be noted that even though the Treaty of Sèvres was not ratified, the finally ratified Treaty of Lausanne in 1923 did not affect the provisions related to Palestine (please, see the specific differences between Palestine and the two other Mandates of Syria and Mesopotamia in Articles 94 and 95 of the Treaty of Sèvres, which remained unchanged, as determined in Article 16 of the Treaty of Lausanne).

    It is also important to remember that the SCAP had political and judicial power over the former Ottoman possessions. In the same way that the SCAP remodeled the map of Europe after WWI – by creating new countries through the treaties of Versailles, Trianon, Neuilly and Saint-Germain – it had the legal authority to reshape the Middle East and plant the seeds of future sovereign states through three Mandates – Palestine, the future Jewish State, being one of them. This is to say than the San Remo Peace Conference dealt with the Middle East in the same way as the Paris Peace Conference dealt with post-war Europe. The decisions made in those conferences and the treaties that ensued have equal legal validity.

    You ask me again to provide proof of the exclusive allocation of Palestine to the JNH. I thought I already addressed this issue in my previous post by pointing to the very wording of the Mandate. But, apparently, my argument did not satisfy you. And so, referring to the second paragraph above, I would ask you, if I may, to provide references to a putative, national Arab entity in Palestine approved by the SCAP and with equivalent legal weight as the San Remo Resolution, the Treaty of Sèvres and the Mandate.

    The only such pseudo-reference you mentioned is Article 7 of the Mandate and the following “nationality law of 1925” which was actually the Palestinian Citizenship Order, since Arabs who lived in Palestine denied (until very recently) they had a specific identity and an independent Palestinian nationality. This was confirmed by the Arab delegation sent to the Paris Peace Conference in 1919, who insisted that the Palestinian Arabs were part of Arab Syria. I am sure you are aware of all the contortions the British had to go through in enacting this piece of legislation through an Order-in-Council and not through the Administration of Palestine as required by Article 7. In so doing, the British acted more as a colonial power than as a trustee, which was their primary role. The trusteeship required the British to primarily “facilitate … and encourage” Jewish immigration (as per Article 6 of the Mandate) and they failed miserably to fulfill their obligations in that regard, thus almost derailing the Jewish majority in Palestine, as required to meet the ultimate goal of transforming the JNH into a Jewish State.

    Today, Israeli Arab citizens represent about 20% of the population. Israel, being the nation-state of the Jewish people, should maintain and preserve a substantial Jewish majority. This is the norm of all true nation-states in the world, such as Japan, Poland, Iceland and others, which are never accused of being undemocratic. Minorities in democratic nation-states enjoy the same rights as every other citizen, but no collective, national rights. The original intent of the Mandate for Palestine was precisely to ensure that the JNH would turn into a Jewish State at the appropriate time when Jews would have reached a majority. As long as we recognize the particular character of nation-states like Israel, I do not see any infringement to the “principle of equality and justice that should be part of each of each and every one of us” which we both agree on.

    Finally, you asked me why I quoted the statement made in 1925 by the British High Commissioner for Palestine. The High Commissioner listed the sequence of decisions made between 1917 and 1922 with regard to the JNH and concluded by saying that these decisions were “internationally guaranteed.” Three reasons why this statement is important:
    a) it shows that in spite of the international guarantees, the British did not hesitate to violate them in their successive White Papers, thus engaging in illegal political man-oeuvres;
    b) it shows that these decisions are not “mere opinions,” as Dr. Kamel inferred in his article, but are legal provisions solidly entrenched in international law;
    c) and it begs the question, again, as I wrote above: Is there any similar sequence of internationally guaranteed decisions that support Arab national rights in Palestine?
    12.10.2015
    at 1:56 am ESTSalomon Benzimra
30. * Thanks for these important points, Salomon Benzimra, I am very glad to have this exchange.

    — The White Paper of 1922 served as the base for the approval of the Mandate. As written in the article above: “It was made clear to us that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper of 1922, and my colleagues and I therefore had to accept it, which we did, though not without some qualms.” You are speaking about interpretations or about the fact that you don’t like the White Paper of 1922. I, on the other hand, contend that the Balfour Declaration and others were even more political. Bottom line: it’s irrelevant what you or I think. What matters is that the Mandate was approved ONLY after that its interpretation was clarified. Without it, it would not have been approved. Probably I was not clear about it and I apologize for this.

    — The Balfour Declaration became legally relevant when it was included in the Mandate. Before that, it was little more than a piece of paper. The Mandate was approved after that it was made it clear that a “national home” (whatever meaning different actors gave to this expression) was envisaged “IN Palestine”. You will not be able to provide 1 legal document in which it is written that Palestine had to become a “national home”: the sentence was changed (“IN Palestine”) precisely in order to avoid that people could misunderstood its content.

    — The coast between Ashdod and Ashkelon has not been “Israelite” for 1 single day in its history. In other words, never-ever in the history ancient Israelites succeeded to conquer the coast. Why Britain was supposed to image a “national home” there would be a wonder to me. Hostage quoted Smuts above: “To the Jews, partition may be a bitter pill, but ancient Palestine itself was never a wholly Jewish state, as the Philistines always occupied the coastal plains which form the best part of it, and the promise of a national home never meant the whole of Palestine”.

    — So when you write that “Article 22 of the Covenant of the League of Nation (which was part of the 1919 Treaty of Versailles) to set up the Jewish National Home (JNH), the Balfour Declaration became an act of international law” you are stating something correct. However the meaning that you are conferring to this is a personal opinion not backed by any article of the Mandate: nowhere you will find a sentence in which is written that “Palestine must become a Jewish State”, or similar s. You will read the expression “national home” and you will read “IN Palestine”.

    — The San Remo Resolution is not legally relevant, or better, it is legally relevant only in as much as it became part of the Mandate with an agreed and clarified meaning. In this agreed meaning there is no hints to a state nor to the fact that “Palestine must become a ‘National home'”.

    — “Palestine” did not “denied (until very recently) they had a specific identity and an independent Palestinian nationality”. Simply speaking, an quoting Meron Benvenisti: ‘The whole game of identity definition reflects the immigrant’s lack of connection. Natives don’t question their identity.” There is not 1 evidence that any Kurd's thought in terms of a Kurdish People until the late years of the 19th century: so what?

    — “This was confirmed by the Arab delegation sent to the Paris Peace Conference in 1919, who insisted that the Palestinian Arabs were part of Arab Syria”: again, and with all the due respect, without the proper context (like in the case of the WP1922/agreed approved Mandate) you get wrong impressions and provide problematic interpretations. During WWI, Arab nationalists cooperated with Sharif Hussein and his sons in order to have an Arab kingdom. The Arab-Palestinians, who were part of this ideology, thought at that time, tactically, that it would be in their interest to be part of the Faisal kingdom in the Bilad al-Sham. That’s why it is the only two years (1918–20) during which they speak about Palestine as Southern Syria or the kingdom of Faisal. After Faisal is kicked out of Damascus, the next conference doesn’t speak about being part of Syria or the kingdom of Feisal. In the summer of 1920 the episode is finished. You will not find anything similar before 1918 or after 1920.

    — “British acted more as a colonial power than as a trustee”, but this is true for all their decisions and starts much before than the approval of the Mandate, and was also confirmed in their ways of addressing and treating the 9/10th of the total local population in Palestine.

    — The trusteeship required the British to primarily “facilitate … and encourage” Jewish immigration (as per Article 6 of the Mandate): correct, “IN Palestine” and with the provision that “the rights and position of other sections of the population are not prejudiced”

    — “Israel, being the nation-state of the Jewish people, should maintain and preserve a substantial Jewish majority”: I would suggest to do that within Israel, and not in the Palestinian territories, the last piece of land remained in the hands of a people that already paid a huge price so that your dream could become a reality.

    — Yes, that decisions were “internationally guaranteed.”, but not the ones that you are interpreting, but the ones that were clarified before the approval of the mandate. To claim that all Palestine between the river and the sea should be a “Jewish State” is, among other things, a violation of the agreed and approved Mandate (I am assuming here that “national home” and “state” are the same thing). The principles agreed in the Mandate are legal provisions solidly entrenched in international law: I have the impression that interpretations, without context, create misunderstandings.

    — The non-member State of Palestine is recognized by about 140 countries in the world. Whitbeck made some relevant observations: “Interestingly, Israel does not qualify as a state under the Montevideo convention’s criteria, since it has consciously chosen never to define its territory and borders, knowing that doing so would necessarily place limits on them. … Since November 1988, when Palestinian statehood was formally proclaimed, the only state asserting sovereignty over those portions of mandatory Palestine that Israel conquered in 1967 (aside from expanded East Jerusalem, as to which Israel’s sovereignty claim is universally rejected) has been the State of Palestine. Its sovereignty claim is therefore both literally and legally uncontested, even if not yet universally recognized.”
    http://www.mepc.org/journal/middle-east-policy-archives/state-palestine-exists?print

    * I have a final request and a “bottom line” of this discussion. The request is to provide one sentence in which is written that “Palestine has to become a Jewish State (or even ‘national home’”) The bottom line is: anyone that asks to be respected has to be ready to respect the other. Without recognizing that also others have rights, the region will continue to experience hatred and violence. There are 2 peoples and two rights, not 1 people and 1 right.
    12.10.2015
    at 5:58 am ESTcarl m.
31. @Salomon Benzimra,

    Sir,

    I read your link about Dr. Kamel’s article and, more in general, about what you call “the newly-minted Arab-Palestinian people”.

    While respecting your opinion, I am not convinced by several of your arguments:

    You provide the impression that there is a sort of match/competition between Bentwitch on one side, and plenty of contemporary and modern scholars and historical figures on the other. There are dozens of other figures in addition to Curzon, Bentwitch, Sokolow, Samuel etc ect that expressed similar opinions. And the same can be argued about people closer to the opinions of Eugene Rostow & co. As many argued before me, it is irrelevant to give value to some and to downplay others. As others clarified before me, the issue, here, is that the Mandate is the only legal source.

    As far as I can read from the article here on OJ, you make confusion regarding Nahum Sokolov. Sokolov was speaking at the Paris Conference, in 1919. The sentence “It has been said and is still being obstinately repeated by anti-Zionists again and again, that Zionism aims at the creation of an independent ‘Jewish State’” was referring to something that he considered “wholly fallacious” in 1919. Then he made an hint to the Congress held in Basel in 1897 in order to further back his opinion dated 1919.

    The fact that Bentwich was under heavy pressure is irrelevant: each and every of these people were under heavy pressure for a reason or another. And, contrary to Balfour, that visited Palestine for the first time in 1925 for the opening of the Hebrew University, Bentwich was the official legal British representative IN Palestine.

    The issue of Class ‘A’ mandates seems to me much more complicated than what your words would seem to imply

    The context that you provide starts from 1920: it would have been more appropriate to start from 1907.

    I respect your opinion that “the 1922 White Paper violated the spirit…”, as I respect the opinion of many pro-Palestinians according to which the British in general violated any legal-historical-moral spirit regarding the 9/10th of the then population in Palestine. But the point is that what has been argued here is that the Mandate was approved on the base of the White Paper of 1922 (so first the White Paper, then, chronologically, the approval of the Mandate). Legally speaking, this is the issue.

    You ask why to stop in 1922 and the answer, as mentioned by others, appears clear: no Mandate was approved in 1930.

    True, British White Papers were politically driven documents, as virtually any British document of the time.

    You mentioned that was undeniably granted to the exclusively Arab Transjordan. As clarified by others, no Jewish community was present in Jordan at the time and the White Paper (and the approved Mandate), including the hint to Carlsbad, was clearly referring to the land within the river and the sea.

    Thank you.
    12.10.2015
    at 6:28 am ESTRoberto Maza
32. Another word on the Category A mandates – applying to the former Ottoman possessions of Syria, Lebanon, Iraq and Palestine – which did provisionally recognize their existence as independent nations and looked forward to ‘such time as they are able to stand alone’, something the 1937 Peel Commission significantly noted.

    If an independent nation existed in Palestine it wasn’t Arab as highlighted in the League of Nations decision on the Mandate for Palestine as so:

    Whereas the Principal Allied Powers have agreed, for the purpose of giving effect to the provisions of Article 22 of the Covenant of the League of Nations, to entrust to a Mandatory selected by the said Powers the administration of the territory of Palestine, which formerly belonged to the Turkish Empire, within such boundaries as may be fixed by them; and

    Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might 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; and

    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;

    …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…

    …An appropriate Jewish agency shall be recognized as a public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine…The Zionist organization, so long as its organization and constitution are in the opinion of the Mandatory appropriate, shall be recognized as such agency…

    …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.

    Note: “Arab” is not even mentioned. Communities and such could be anyone – and were intended to define everyone else except the Jews and not necessarily Arab but even Christian missionaries, Germans, Armenians, etc.

    Also note that even though eventually borders would be fixed, one way or another, the “territory of Palestine” was to become a Jewish state. The borders could alter, sometimes unfairly and even irrationally, but the essence remains: Palestine is the Jewish historical national home and today, those borders include Judea and Samaria as they did then between 1922 and 1947 (and when the Arabs rejected the Partition Proposal and when in 1967 then initiated hostile war actions, those regions of “Palestine” reverted to Jewish administration quite legally).
    12.11.2015
    at 2:09 am ESTYisrael Medad
33. To Carl m: I think we are getting to the end of this exchange which I have truly enjoyed too.

    Let me first settle, once more, a recurrent issue that seems to irritate you to no end: The “IN Palestine” phrase. If you persist in maintaining that the Jewish National Home (JNH) was only allocated in part of Palestine on the flimsy grounds of an “interpretation” issued by one of many highly politicized British White Papers, I believe – after the various arguments I presented previously – that the onus is on you to explain why there is not a single provision in the Mandate that would govern any such Arab “national” entity in the rest of Palestine. How could the drafters of the Mandate Charter have ignored such an essential matter?

    The rights of the Arabs in Palestine were addressed in the Mandate. Their rights and position were not “prejudiced” one bit. Arabs were granted civil and religious rights, presumably more firmly entrenched than those they enjoyed under Ottoman rule, but they never had any earlier “national” rights that could be “prejudiced.”

    You may adopt the “interpretation” provided by the 1922 White Paper as the only valid one, but you should also know that prominent British statesmen such as Lord Balfour and David Lloyd George, together with some of their French counterparts, were opposed to that interpretation (at least, privately) and clearly envisioned, in time, a Jewish State in Palestine, while, as I stated previously, the Arab Delegation in Paris never thought of a specific Palestinian national identity. You may call the latter “wrong impressions and problematic interpretations” once you let your subjectivity be the judge. I would rather stick to factual evidence.

    And the evidence of the forged identity of the “Palestinian people” is overwhelming — “after 1920” — based on countless statements made by prominent Arab leaders, among whom: Ahmed Shukairy (former head of the PLO), Hafez al-Assad (former president of Syria), Zuhair Mohsen (senior Fatah official), Azmi Bishara (former Israeli Arab member of the Knesset) and even the late King Hussein of Jordan. They all denied the existence of an Arab country called “Palestine”; they denied that a Palestinian “people” ever existed; and they candidly recognized that the sole purpose of creating a “Palestinian people” was to fight Zionism and destroy the Jewish character of Israel. And then, last year, one enlightened Jordanian sheikh, Ahmed Adwan, had the courage to unmask this whole subterfuge by urging the Palestinians to “stop lying” and quoting the Qur’an to the effect that “the land belongs to the children of Israel.”

    Many observers in the non-Arab world echoed the same view about the “Palestinians.” In a seminal essay written in 1989, Jeane J. Kirkpatrick, former U.S. Ambassador at the UN, blamed the “credulous Western viewing audiences whose sympathies [for the Arab-Palestinian cause] are quicker than their comprehension.” She also noted with dismay that the success of Palestinian propaganda is assured by the automatic approval of the then “154 members of the UN … who extended [to Arafat] an enthusiastic standing ovation.” Needless to say, the same automatic majority at the General Assembly approved recently the “non-member State” status of Palestine which you seem to welcome, as John Whitbeck does.

    But I think Whitbeck’s opinion on “Palestine” and Israel is flawed. Based on the Mandate, Israel has, at least in terms of relative validity, de jure sovereignty over Palestine west of the Jordan River (with the possible exclusion of the Gaza Strip) and it is not in conflict with Article 1 of the Montevideo Convention as Whitbeck pretends. The Palestinians, obviously, dispute Israeli sovereignty over the so-called “West Bank,” hence the Oslo process which has been going on for the past quarter-century or so. The fact that the Palestinian Authority is supposed to negotiate with Israel proves that any transfer of sovereignty (to eventually arrive at a future “Palestinian State”) can be granted only by the party which has title to the territory, i.e. Israel. On the other hand, Whitbeck – and, I suppose, you too – usually refers to the “West Bank” as “occupied Palestinian territory.” A couple of questions which Whitbeck ought to ponder: a) occupied from whom? and b) when and how did these territories become “Palestinian”?

    I would add here that your analogy between Palestinians and Kurds cannot stand scrutiny. The latter have been a recognized ethnic group since Babylonian times. They have their own specific history, language, customs and beliefs. Could you think of similar particularities that distinguish the Palestinians from their neighboring Arab brethren? Kurdistan was granted autonomy (Article 62 of the Treaty of Sèvres) but their aspirations – together with those of the Armenians — were quashed when the Treaty of Lausanne was ratified in 1923.

    You also ask me to explain why “Palestine must become a Jewish State.” Beyond the plain justification of establishing the sole nation-state of the Jewish people in their ancestral land, the reason is also contained in Article 22 of the Covenant, which anticipates the emergence of new independent states upon the end of the Mandatory period. And that is precisely what actually happened for practically all the 14 Mandates issued on behalf of the League of Nations, including the so-called “Class ‘C’” mandates for the least developed regions, like Namibia, Papua New Guinea and Samoa. So, the natural outcome of the JNH Mandate for Palestine was the proclamation of the State of Israel, at the end of the British Mandate in May 1948.

    To conclude this exchange, on the request you express in your last paragraph, I think I already addressed the question of the rights of the Arabs in Palestine, as granted by the Mandate. You also include this admonition: “Anyone that asks to be respected has to be ready to respect the other.” It goes without saying that this is a universally accepted principle in civilized society. But I wish you will have the opportunity to equally warn the Palestinians on this matter and to ask them about the Hamas Charter, the PLO Covenant and the Fatah Constitution, let alone their education curriculum and their weekly sermons in mosques. The blatant hatred and the denigration of the Jewish “other” that percolate from these documents are readily available online. Yet, western elites continue to observe a deafening silence.

    It was a pleasure exchanging views with you. Best wishes!
    12.11.2015
    at 2:31 am ESTSalomon Benzimra
34. Dear Roberto Maza:

    The only reason I mention Bentwich, Curzon, Sokolov and others is because these were the names listed in Dr. Kamel’s article.

    I agree with you that the Mandate is the only legal source. I would add that the rights spelled out in the Mandate are still valid to this day, regardless of the expiration of the Mandate in 1948. This is in line with Article 80 of the UN Charter and Article 70-1(b) of the Vienna Convention on the Law of Treaties.

    Sokolov’s quotation is a selective one. Indeed, he said what he said at the Paris Peace Conference not to antagonize the political scene, and especially the Arab Delegation in Paris. His statement, which he may have found helpful at the time, colored the “interpretation” of the “national home” in the 1922 White Paper. But in his book, “History of Zionism,” Sokolov refers to the “national home” as ultimately leading to a “modern Commonwealth” (i.e. a State). In correspondence exchanged between Balfour and Sokolov, both agreed that the notion of an eventual state should not be presented prematurely, because of Arab opposition. David Lloyd George shared the same view.

    This is to say that in matters of “interpretation,” the field is wide open! Several years later, the Peel Commission recognized that the adopted political strategy to avoid mentioning a Jewish State was intended to appease the Arab antagonism to Jewish immigration.

    You mention the pro-Palestinian opinion “according to which the British in general violated any legal-historical-moral spirit regarding the 9/10th of the then population of Palestine.” Please note that the self-determination of the Arab people was achieved in their lands of the Hedjaz, Syria-Lebanon and Mesopotamia which were mainly liberated by the British. Concurrently, the self-determination of the Jewish people should not be forgotten, even though it was a sui generis situation. In July 1920 Balfour declared: “None but those who are blinded by religious or racial bigotry would deny for one instant that the case of the Jews is absolutely exceptional and must be treated by exceptional methods.”

    As you rightly said, Bentwich “was the official legal British representative IN Palestine”. Precisely! In his capacity, he had to conform to British policy as enunciated in the official White Paper.

    The reason I provided context from 1920 onward, and not 1907 (when important event also did happen), is because prior to 1919-1920, the Mandates System was not formalized.

    I did mention other White Papers that followed the one of 1922. Surely, no Mandates were issued for the Middle East after the 1920's. But I did so only to show the (vicious?) pattern of British White Papers which, gradually and systematically, emptied the Mandate for Palestine of its original intent. And that started with the 1922 WP.

    Best regards
    12.11.2015
    at 3:35 am ESTSalomon Benzimra
35. Thank you very much for your reply Solomon Benzimra

    You didn't mention “Bentwich, Curzon, Sokolov and others”, you listed instead many persons supporting your thesis and then you briefly mentioned only Bentwich and Sokolov, claiming that for some reasons we should not take into considerations their very clear positions. You provided in this way a misleading impression, as if a huge amount of persons support(ed) your logic, and a very few strange persons oppose(d) it. This is not the case.

    Yes the rights spelled out in the Mandate, not the one interpreted. As noted by others, to mention words like “state” or “all Palestine” is closer to wishful thinking than legal provisions contained in the Mandate.

    You claim that we should ignore the official words expressed by Sokolov during the Conference of Paris in 1919 simply because you argue that he did not want to antagonize the political scene? Official speeches and documents matter. Following this logic no official declaration or document has any legal value: anyone can say and write whatever he likes for some reasons: no international lawyer would subscribe this logic. Paris Peace Conference: ‘ It has been said and is still being obstinately repeated by anti-Zionists again and again, that Zionism aims at the creation of an independent ‘Jewish State’. But this is wholly fallacious’. It would be important to stick to facts, no interpretations please.

    The Peel Commission? You mean Churchill speaking at the Peel Commission. And so? As written in the article above, Churchill made it clear for instance that there was nothing in the definition of the “National Home” that might have precluded “the establishment of a Jewish State.” As noted by Isaiah Friedman in his British Pan-Arab Policy, 1915-1922: “Whether [the first British High Commissioner for Palestine Herbert] Samuel had this ultimate aim in mind when conceiving his policy is dubious. But Churchill, as his response of the Peel Commission shows, did favor it. Throughout his career as Colonial Secretary, he adhered to his Zionist convictions.” Again, why to consider only what fir your claim or what you wish for? Hostage (above) quoted for instance Smuts: “To the Jews, partition may be a biter pill, but ancient Palestine itself was never a wholly Jewish state, as the Philistines always occupied the coastal plains which form the best part of it, AND THE PROMISE OF A NATIONAL HOME NEVER MEANT THE WHOLE OF PALESTINE”. Interpretations and selective use of quotations is problematic in my view.

    Now we also know that a very committed Zionist like Bentwich should not be considered reliable because “he had to conform to British policy as enunciated in the official White Paper”. I hope you consider how problematic your logic appears on this.

    “Please note that the self-determination of the Arab people was achieved in their lands of the Hedjaz, Syria-Lebanon and Mesopotamia which were mainly liberated by the British”: I am puzzled. Let’s assume that Jerusalem qadi Mujīr al-Dīn al-‘Ulaymī (1456–1522) would still be alive. What should he thinks about someone that writes as a person in Saudi Arabia is like a person in Iraq. Should he be happy because someone in Saudi Arabia got a state there? You should read the work of of Charles Clairmont Ganneau, the 19th century French archaeologist, who surveyed Palestine and its people and study the Survey of Western Palestine, carried out in Palestine in the 19th century, by Claude Conder et al. under the auspices of the Palestine Exploration Fund, and especially study the great map of Palestine triangulated in the 1870’s. It shows that Palestine was littered with small villages and towns, inhabited by a sedentary people engaged in agriculture: “Mussulman Arabs, who founded their empire on the ruins of the Byzantine and Persian Kingdoms, intentionally left untouched the civilization which they found already installed and in use ……. the fellaheen of Palestine, taken as a whole, are the modern representatives of those old tribes which the Israelites found settled in the country, such as the Canaanites, Hittites, Jebusites, Amorites, Philistines, Edomites etc”

    I no superficially them and their history so they don't or didn't exist: no one should adopt this approach. History is something else.

    Thank you.
    12.11.2015
    at 6:08 am ESTroberto
36. These are great points, Solomon.

    I am sorry that you had the impression that that issue irritate me to no end. That part was actually the most enjoyable and interesting to me and I am still confident that you will provide to us an offical document that refers to a “state” and “Palestine has to become…’.
    For now all that we know is that the sentence “in respect of Palestine is the Balfour Declaration constituting it a National Home for the Jewish People” was Changed with the formula “IN Palestine” in order to avoid your interpretation. Weizmann was very angry about it and wrote many letters complaining for this. I can image that for you too this is frustrating. Yet, this is how the document was officially released.

    You refer to the “many highly politicized British White Papers”. The Balfour Declaration was even more politicized and, again, it is hard to understand why you refer to other white papers. While we now know that you strongly dislike some “politicized British documents”, and that on the other hand you like very much other “politicized British documents”, the only relevant (legally speaking) reality is that the Mandate was approved based on a agreed understanding of one of the “politicized British documents” that you dislike: “It was made clear to us that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper of 1922, and my colleagues and I therefore had to accept it, which we did, though not without some qualms.”

    I already dealt with the issue of nationality above.

    You claim that Arabs were granted civil and religious rights… but they never had any earlier “national” rights: I was sure that Palestinians were and are living since decades under military rule, without a citizenship and without a state. I am not sure how your interpretation of the mandate (still legally valid thanks to your way of understanding art. 80 of the UN charter) can match with this reality. Noam Sheizaf noted that ‘There are no other nations stuck in this kind of limbo, without citizenship and without a state, like the Palestinians. And there are certainly no other nations that would tolerate it.’ But you claim that their rights are preserved. I may add that the fact that they did not have previous “national rights” is irrelevant, or relevant only from eurocentric perspective.

    As I mentioned, you are simply confirming that some British and French figures had an opinion, while many others were having opposite opinions.

    I already explained you the issue about the Arab Delegation in Paris. During WWI, Arab nationalists cooperated with Sharif Hussein and his sons in order to have an Arab kingdom. The Palestinians, who were part of this ideology, thought at that time, tactically, that it would be in their interest to be part of the Faisal kingdom in the Bilad al-Sham. That’s why it is the only two years (1918–20) during which they speak about Palestine as Southern Syria or the kingdom of Faisal. After Faisal is kicked out of Damascus, the next conference doesn’t speak about being part of Syria or the kingdom of Feisal. In the summer of 1920 the episode is finished. Again: You will not find anything similar before 1918 or after 1920. But feel free to back your claim 1 example.

    The evidence of the forged identity of the “Palestinian people” is overwhelming only to people that know little about it. To have some preliminary notion I suggest you to read Haim Gerber’s Remembering and Imagining Palestine. It is a great book for anyone who wants to know a bit more on this.

    ” They all denied the existence of an Arab country called “Palestine”: again, I suggest to study a bit more the topic. Daniel Pipes, hardly a pro-Palestinian, shed a little of light on your doubts: “For advocates of Jordan-is-Palestine, such claims suggest Arab agreement that Palestine and Jordan are identical. But this interpretation distorts the real character of these remarks, which are not disinterested analyses but propaganda ploys and declarations of hostile intent. Minimally, they establish diplomatic positions within inter-Arab arena. Maximally, they assert rights to expand and rule other regions; the PLO hopes to stake out a claim to territory it does not control; Amman seeks to protect territories it either controls or hopes one day to control again (the West Bank)…..”

    I would be very happy to discuss the Qur’an & “the land belongs to the children of Israel.”

    Whitbeck has compelling arguments, while your interpretation that ‘Based on the Mandate, Israel has, at least in terms of relative validity, de jure sovereignty over Palestine west of the Jordan River’ is not backed by any document and is, on the contrary, opposed by the agreed version of the Mandate.

    Occupied from whom? The Israeli High Court of Justice itself established that the application of the regulations depends on the effective military control exercised from outside the nation’s borders, and not from previous sovereignty over the territory of a specific state (HCJ 785/87).

    When and how did these territories become “Palestinian”? Through the centuries. Jurist Al Din Al Ramli, born in 1585 in Ramle, wrote ‘Filastin Biladuna’, Palestine our Land. Maxime Rodinson tried to explain your questions with a neat argument: ‘The Arab population of Palestine were native in all the usual senses of that word. Ignorance, sometimes backed up by hypocritical propaganda, has spread a number of misconceptions on this subject, unfortunately very widely held. It has been said that since the Arabs took the country by military conquest in the seventh century, they are occupiers like any other, like the Romans, the Crusaders and the Turks. Why therefore should they be regarded as any more native than the others, and in particular than the Jews, who were native to that country in ancient times, or at least occupiers of longer standing? To the historian the answer is obvious. A small contingent of Arabs from Arabia did indeed conquer the country in the seventh century. But as a result of factors which were briefly outlined in the first chapter of this book, the Palestinian population soon became Arabized under Arab domination, just as earlier it had been Hebraicized, Aramaicized, to some degree even Hellenized. It became Arab in a way that it was never to become Latinized or Ottomanized. The invaded melted with the invaders. It is ridiculous to call the English of today invaders and occupiers, on the grounds that England was conquered from Celtic peoples by the Angles, Saxons and Jutes in the fifth and sixth centuries. The population was “Anglicized” and nobody suggests that the peoples which have more or less preserved the Celtic tongues – the Irish, the Welsh or the Bretons – should be regarded as the true natives of Kent or Suffolk, with greater titles to these territories than the English who live in those counties’.

    As for the Kurd's, please provide 1 document in which Kurdish people referred to themselves as a people.

    ‘The sole nation-state of the Jewish people in their ancestral land’: It is also the sole nation-state of the Palestinian people and the never this ancestral land belong to 1 single people in its entire history and never the coast between Ashdod and Ashkelon was occupied by the ‘Israelite's’, not even for 1 day. So there is no reason why it should belong to 1 single people today.

    Your classification of class mandates is problematic. Permanent Mandates Commission, William Ormsby-Gore: “His Majesty’s Government conceived it as of the essence of such a mandate as the Palestine mandate, an A mandate, and of Article 22 of the Covenant, that Palestine should be developed, not as a British colony permanently under British rule, but as a self-governing state or states with the right of autonomous evolution.’

    The Likud party flatly rejects the idea of a Palestinian State and several current Israeli ministers have officially declared in the Knesset that ‘There is no room in our small but wonderful God-given tract for another state”. While I agree with you regarding Hamas, it is strange to focus only on one side, even more so considering that the PLO formally recognized Israel in 1993, although Israel still has yet to recognize Palestine or any Palestinian right on their last piece of land.

    But more important than this is the fact that I was not referring to Hamas, the Likud or somebody/someone else. I was referring to you and me. While i recognize 2 rights for 2 peoples, you recognize 1 right for 1 people, and assume to justify this with a number of personal opinions and interpretations that, although very interesting, are not backed by any official document

    It was a great pleasure and I thank you very much for this exchange, I learned a lot from you and I think that I know a bit more now on the ways in which people that support settlements and occupation tend to foster their interpretations.
    12.11.2015
    at 7:48 am ESTcarl m.
37. Thank you, Carl, for your concluding remarks.

    It appears that your main point of contention still lies in the phrase “IN Palestine” and your persistent request that I provide “a primary source” for the exclusive intent of the Mandate, which was to establish a Jewish National Home (JNH) in Palestine. I did precisely that several times. To wit:
    – The very text of the Mandate Charter – its preamble and 28 articles;
    – No “national” entity envisaged in the Mandate, other than the JNH;
    – The different approach for Palestine vs. the two other Mandates, as shown in the Treaty of Sèvres (Art. 94 and 95);
    – The principle of the Mandates system, clearly expressed in Article 22 of the Covenant, which envisaged independent states at the end of the Mandatory period, hence a Jewish State upon the termination of the Mandate for Palestine.
    Now, wouldn’t it be for YOU, rather to quote a legal “primary source” anywhere pointing to the “national” provisions granted to the Arabs in Palestine?

    You still wonder why I keep mentioning the other British White Papers. Here again, I think I already showed the underlying reason: the British were intent to gut the Jewish character of Palestine, as originally confirmed in the Mandate, for the sole purpose of appeasing the Arabs, and this policy culminated in the infamous MacDonald White Paper of 1939 which undeniably bears some responsibility for the tragic fate of the Jews during the Nazi period and immediately thereafter (see “Operation Embarrass” in 1946-48).

    Yes, the Balfour declaration was originally an essentially political document. But, as I already explained, it became an act of international law in San Remo and the British Mandatory, in its capacity as a Trustee, was called upon to “put it into force.”

    You also mentioned, again, Weizmann’s “acceptance…not without some qualms” of the “interpretation” of the Mandate presented in the 1922 White Paper. What could Weizmann otherwise do, other than accepting it under duress. Very much what the Zionists did in November 1947 when they accepted the recommendations of the UN General Assembly in the lopsided Partition Resolution 181. I leave it to legal scholars to debate the validity of agreements made under duress.

    After having heavily insisted on the primacy of legal agreements over mere opinions, in connection to the JNH, you now seem to dismiss, with regard to the “Palestinians,” the legal notion of “national rights” on the grounds that they are “relevant only from eurocentric perspective (sic).” Please provide another perspective which would be relevant in international law.

    Once more, you raise the connection of the Palestinians to southern Syria, and you ask me, again, to “back my claim with 1 example.” I hate repeating myself. Please read my previous post.

    The Palestinian Arabs had Jordanian citizenship until the 31st of July 1988, when King Hussein of Jordan abruptly suspended it. This issue is now part of the Oslo peace process and its resolution hinges on Israeli-Palestinian negotiations which are now at a stalemate.

    On Jewish sovereignty in Palestine: No lesser an authority in international law than Julius Stone would provide you, I hope, the backing for what I said (see “Israel and Palestine – Assault on the Law of Nations”).

    On my question as to “Occupied from whom?” again, please refer to Stone’s book mentioned above and to the relevant articles of The Hague Resolution of 1907 (Art. 42-43).

    On my question as to “When and how did these territories become Palestinian?” I was obviously referring to the widely spread (and never justified) current Palestinian terminology which sprung in the late 1960's, and not to narrations from the 16th century. But if you wish to delve into that time frame, please read the exhaustively researched “Palaestina” of Hadriani Relandi (1714).

    Your quoting Maxime Rodinson is quite à propos: In the past 2,000 years, Jews might have been “Europeanized,” “Americanized” or “Arabized” but they never forgot their ancestral Land of Israel and they returned to it, after the longest succession of foreign occupations in history. That is the essence of Zionism: the reconstitution of the national home of the Jewish people, not by conquest but through an internationally recognized process “secured by law,” as Herzl insisted at the First Zionist Congress of 1897.

    On my characterization of Israel as “the nation-state of the Jewish people,” the exclusivity of which you seem to oppose, please note that the “Palestinian people” to which you refer are “an integral part of the Arab nation” (PLO Covenant, Article 1), a nation that achieved its self-determination in no less than 22 sovereign Arab states covering 14 million square kilometers. And so I ask: why are you so staunchly opposed to a single sovereign Jewish State covering a mere 27,000 sq. km.?

    On the Kurd's: I am surprised you question Kurdish people-hood while you have no doubt whatsoever on the fictitious “Palestinian people.” As I mentioned before, you will find relevant information in Section III of the Treaty of Sèvres, notwithstanding its non-ratification.

    I don’t understand why you find the various Mandate classes “problematic.” They are all clearly defined in Article 22 of the Covenant of the League of Nations.

    You find it “strange [that I] focus only on one side.” What I do find outlandish is the not so subtle parallel you make between the Likud Party and terrorist Hamas. Please, just read the Hamas Charter and I hope you will understand. I also find it bizarre that you believe whatever the PLO said in English (as to the “formal recognition of Israel in 1993”) while you ignore what Arafat said in Arabic shortly after, and the content of their never amended 1968 PLO Covenant (q.v. Art. 2, 9, 10, 15, 19, 20, 22, 23). Or, perhaps, it’s not so bizarre in light of Jeane Kirkpatrick’s observation which I quoted in my last post.

    In any case, I am glad this exchange was helpful — for both sides.
    12.12.2015
    at 2:42 am ESTSalomon Benzimra
38. Dear Roberto,

    I am afraid you are mistaken: In my comments on Dr. Kamel’s article, I only mentioned (and bolded) those he himself referred to.

    Of course, “official speeches and documents matter.” But they must be considered in context. And what matters most are the final, officially approved legal agreements that derive from these speeches and documents. After all, wasn’t Dr. Kamel’s thrust to give pre-eminence to legal instruments over opinions? In terms of speeches, I do not understand why you would put more weight on what Sokolov said in Paris in 1919 than on what Churchill said at the Peel Commission in 1937.

    Thank you for the various surveys and maps you mentioned. The most updated one and contemporaneous to the WWI period is George Adam Smith’s “Atlas of the Historical Geography of the Holy Land,” published in London by Hodder and Stoughton in 1915.

    As to the various questions you raised again, related to the Jewish National Home in Palestine, I think I addressed them in some detail in my postings to ”carl m.”

    Regards,
    12.12.2015
    at 2:49 am ESTSalomon Benzimra
39. Thank you, Solomon, there are a few misunderstandings, I hope to address them clearly:

    — “Palaestina” of Hadriani Relandi (1714): Relandi never visited Palestine in his entire life. Suggest you to go a bit deeper on this.

    — I quoted Maxime Rodinson and you changed topic claiming that “That is the essence of Zionism: the reconstitution of the national home of the Jewish people”. Anyway, I would like to remind you than among the 2 of us, it is me that support 2 peoples for 2 rights, while you support 1 people for 1 right. Finally, your claim on Zionism that any Jew in the world should have ipso fact more rights on Palestine/Israel than a local inhabitant is very problematic.
    Israel Bartal, Avraham Harman Professor of Jewish History, clarified (in a very cogent piece in which he criticized Shlomo Sand) these aspects with the following words:
    “No ‘nationalist’ Jewish historian has ever tried to conceal the well-known fact that conversions to Judaism had a major impact on Jewish history in the ancient period and in the early Middle Ages. Although the myth of an exile from the Jewish homeland (Palestine) does exist in popular Israeli culture, it is negligible in serious Jewish historical discussions. Important groups in the Jewish national movement expressed reservations regarding this myth or denied it completely.”

    — I tried to explain you that “The very text of the Mandate Charter – its preamble and 28 articles” clarified almost the opposite of what you claim. That’s why I asked you to provide 1 quotation, and I am still confident. The “reconstitution of Palestine as the Jewish national home” BECAME “the establishment in Palestine of the Jewish national home”. This mirrors the Mandate treaty. The King-Crane report used these words to shed light on your interpretations: “For a national home for the Jewish people is not equivalent to making Palestine into a Jewish state”. When you are referring to “hence a Jewish State upon the termination of the Mandate for Palestine”, you are referring to what you would have liked more than what the documents show. As now should be clear, “the Jewish national home is not the imposition of a Jewish nationality upon the inhabitants of Palestine as a whole”. This was the agreed meaning: “It was made clear to us that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper, and my colleagues and I therefore had to accept it, which we did, though not without some qualms.”
    Palestine was to become the national home of the Jews while remaining the national home of the existing, mostly Arab, population: “a common home the up-building of which will assure to each of these peoples an undisturbed national development”

    — The onus of demonstrating that a “national home” is a state and that the change from “reconstitution of Palestine as the Jewish national home” to “the establishment in Palestine of the Jewish national home” was a mistake or is irrelevant is on you.

    — “the British were intent to gut the Jewish character of Palestine, as originally confirmed in the Mandate”: I am afraid that the agreed content of the Mandate clarifies something quite different than what you claim: the Balfour Declaration does “not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded ‘in Palestine’”

    — From the point of view f the 9/10 of the population in Palestine 1 centur ago, the “infamous MacDonald White Paper” of 1939 is nothing in comparison to the Balfour declaration. Anyway, both cases are irrelevant: only the agreed interpretation of the Mandate has legal value

    — True, the Balfour Declaration became an act of international law and its content was changed from “reconstitution of Palestine as the Jewish national home” to “the establishment in Palestine of the Jewish national home”. This was made in order to make it clear that your interpretation does not have any legal relevance, nor is backed by the actual wording of the declaration and the mandate.

    — “What could Weizmann otherwise do, other than accepting it under duress” is wholly irrelevant. The Mandate was approved on the base of an official acceptance. This is what legally speaking matters, the rest are opinions or interpretations.

    — “Very much what the Zionists did in November 1947 when they accepted the recommendations of the UN General Assembly”: URI Avnery provided a more nuanced version: “IT IS indeed a fact that the Zionist leadership accepted the partition plan – formally. Many Zionist leaders objected, but were persuaded by David Ben-Gurion to agree to the official acceptance. However, in several secret meetings Ben-Gurion made it clear that the partition borders were unacceptable and must be rectified at the first opportunity. The minutes of these meetings are there for all to read….No one asked the Arab Palestinians whether to accept or reject anything. If they had been asked, they would probably have rejected partition, since – in their view – it gave a large part of their historical homeland to foreigners. The more so, since the Jews, who at the time constituted a third of the population, were allotted 55% of the territory – and even there the Arabs constituted 40% of the population.”

    — “National rights” in Ottoman is irrelevant: both nationality and state are Western concepts with little value in the region until a relatively recent past

    — Please quote your “No lesser an authority in international law than Julius Stone”

    — I fully support Israel right to exist and to prosper; but I also strongly oppose anyone that thinks that only Israel has this right. Even more so considering the rice that Palestinian paid so that your goals could be fulfilled. The others exist too.

    — Yes, they “an integral part of the Arab nation”: so what? How this should affect their history and peculiarities? If you need a Eurocentric example: Like France is part of Europe without for this erasing its history and peculiarities, so Palestine (and Lebanon, and Syria and Iraq ect ect) are part of the Arab world without for this becoming an homogeneous and unique body.

    — I dont” a single sovereign Jewish State”, I oppose the occupation of the Palestinian territories, the last piece of land that still remains in their hands. Again, I support 2 peoples 2 rights, you 1 people 1 right.

    — I am surprised you question Kurdish people-hood”: I am afraid that you didn't understand. I don't question Kurdish people-hood. The opposite is the case. I claim that they, like the Arabs of Palestinians, simply didn't have any need to self-identify themselves in terms of a Kurdish People until the late years of the 19th century. This because ‘The whole game of identity definition reflects the immigrant’s lack of connection. Natives don’t question their identity.”

    — The fictitious “Palestinian people” are as such only in the eyes of people that have little academic or cultural tools to discuss this issue

    — I dont find the various Mandate classes “problematic”, I find problematic your way of interpreting Class A Mandate & Palestine. In William Ormsby-Gore’s words: “His Majesty’s Government conceived it as of the essence of such a mandate as the Palestine mandate, an A mandate, and of Article 22 of the Covenant, that Palestine should be developed, not as a British colony permanently under British rule, but as a self-governing state or states with the right of autonomous evolution.’

    — Focusing only on Hamas and neglecting the Likud Party Charter ( “The Jordan river will be the permanent eastern border of the State of Israel…Jerusalem is the eternal, united capital of the State of Israel and only of Israel” ect…) and many other similar documents and the declarations made by plenty of Israeli ministers is weird to me. I may remind you that Israel was never asked to formally recognize the Palestinians’ right to this land, nor has its government ever voted in favor of the two-state solution nor demanded that a settlement freeze last more than a brief moment. What is the difference between a religious extremist of Hamas and, say, Naftali Nbennett that in the Knesset declared: “There’s no place in our small and stunning piece of God’s country for another state”.

    Many thanks to you.
    12.12.2015
    at 3:16 pm ESTcarl m.
40. Dear Carl,

    A much as I have enjoyed this conversation, I think it is no longer constructive. Time and again, you keep rehashing the same questions, mainly about your cherished interpretation of the term “IN Palestine,” and asking me to provide legal proof that the Jewish National Home was intended to be in all of Palestine – i.e. all of western Palestine after 1922. And time and again I provided you with the letter and spirit of the Mandate, as it was confirmed in July 1922. But to no avail, it seems.

    So, one last try: Please read the third recital of the preamble of the Mandate, which is operative pursuant to Article 2: “…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.” Should your restrictive “interpretation” hold sway, that preamble would read “…in PART of that country.” That is why I urged you, more than once, to provide me with the proof that the 15 instances of the phrase “in Palestine” listed in the Mandate are in any way to be understood as “in part of Palestine”, while nowhere in the text the other “part” is defined. I am still waiting…

    But that is not the only thing I find “weird,” as you say. When you equate Naftali Bennett to “a religious extremist of Hamas” – the former for stating a self-evident truth, and the latter for incitement to genocide – that is more than “weird.” It is outrageous. And the genocidal intent to eradicate Israel and exterminate Jews is not limited to some “religious extremist”; it is openly expressed in the Charter of Hamas — a terrorist group that has received a majority of votes in the last Palestinian elections of 2006.

    Not only you seem unable to support your argumentation with solid facts and legal documents, but you even distort elementary facts in the most cavalier fashion. Your denial of the relevance of Relandi’s book on the grounds that he “never visited Palestine in his entire life” is a case in point. This Dutch scholar — fluent in Hebrew, Arabic and Greek, among other languages — DID indeed travel to Palestine in 1696 and he spent close to a year studying every community in the region. You can access his book online, free of charge, insofar as you have a cursory understanding of Latin, and you will be surprised by his findings.

    I will not dwell anymore on your repetitive issues but I will comment on the following:

    1. The King-Crane Commission toured the region in 1919. Two of its advisors dissented on the conclusions of their Report which did not reflect American policy and was only released after the Lodge-Fish resolution was passed in Congress. A more relevant basis for the American position was the work of the “Inquiry,” a group formed in 1917 by President Wilson to prepare for the upcoming conference in the aftermath of WWI.

    The proceedings of the “Inquiry,” completed in early 1919 under the name “Tentative Report and Recommendations Prepared by the Intelligence Section, in Accordance with Instructions, for the President and the Plenipotentiaries”, were reported by David Hunter Miller, an American advisor to the U.S. delegation at the Paris Peace Conference. With regard to Palestine, the official American position is summarized in the following sentence: “It is recommended [that the Jews]…being further assured that it will be the policy of the League of Nations to recognize Palestine as a Jewish state as soon as it is a Jewish state in fact,” which meant as soon as a Jewish majority is reached through immigration. No hint anywhere of an Arab state in Palestine.

    2. You asked me to quote Julius Stone’s book. For obvious reasons, I will just reproduce some excerpts of his work:

    a) From ”Israel and Palestine –Assault on the Law of Nations” (Johns Hopkins University Press, June 1981):
    “…the status of these residual territories [Judea & Samaria, aka the “West Bank,” and Gaza] is not merely, as is too often assumed, that of territories under belligerent occupation; it is rather that of continuing dedication to the objectives of the mandate. Central among these is ‘the establishment of the Jewish National Home’ in Palestine for the benefit of the Jews of Israel, and of any Jews elsewhere who wish to go there to live. This, in leading contemporary pronouncements, was ‘the very soul of the Mandate,’ its ‘primary purpose’ (74)… It would follow, in the meanwhile, that the right of Jews to enter and settle in these territories, subject only to the ‘civil and religious rights of the other inhabitants’ reserved by the terms of the mandate, must remain as a central element of its territorial status.” (P. 122).
    And Note 74 reads as follows:
    “In the League Permanent Mandates Commission (P.M.C.) the Balfour Declaration was stated to be ‘the very soul of the Mandate’ (P.M.C. Minutes of 27th session, 1935, p.138, Spanish Member Palacios). Cf. in terms of ‘the primary purpose of the Mandate,’ the Peel Royal Commission Report (Command Paper 5479, 1937, p.39). Even the so-called Churchill White Paper, June 3, 1922, Cmd. 1700, backtracking as it was, was concerned to insist that Jews are in Palestine ‘as of right and not on sufferance’ (3 Norton Moore 65, at 67). And see other citations in N. Feinberg, ‘Sovereignty over Palestine’, repr. in 1 Norton Moore 224, at 238.”

    b) From Julius Stone’s “Self-Determination and the Palestinian Arabs” (Bridge Publication, Sydney, Australia, December 1970):
    “The supposed claims of such a ‘[Palestinian] entity’, putatively associated with claims of ‘Palestinian peoplehood’, have now come, since the 1967 War, to be offered as a central factor to be reckoned with on the current Middle east conflict…The first is as to the genuineness of the supposed association of this evoked entity with a Palestinian ‘people’, much less with a Palestinian ‘nation’, in the sense of those symbols which today implies an entitlement to political independence. Even scholars rather sympathetic to Arab claims have pointed out that when the British White Paper of 1939 had apparently made an independent Arab State inevitable, ‘most of the country’s Arab leaders slipped into lethargy and paralysis of action which was to last nearly thirty years’.”

    Best wishes!
    12.13.2015
    at 3:17 am ESTSalomon Benzimra
41. Solomon, thank you very much.

    I am sorry if you are not enjoying this conversation anymore, I enjoy it a lot, but feel free of not replying anymore. I just try to show you that many certainties that you have are opinions not based on historical on legal evidences.

    “Your denial of the relevance of Relandi’s book … This Dutch scholar — fluent in Hebrew, Arabic and Greek, among other languages — DID indeed travel to Palestine in 1696”:

    1) Adriaan Reland did not personally visit the Holy land but collected reports from other visitors: “Even though he [Reland] did not leave his room, even though he was partly motivated by conservative Calvinist ideology, and even though most of his work was compilatory, Reland nevertheless made a long-lasting and significant contribution to research of the historical geography of the Bible.”
    http://lib.haifa.ac.il/departments/4del/nedirim/eng/hadriani.html

    2) Reland “maintained that it was necessary to study Islam in order to defit it … despite his attempt to ‘understand’ Islam, Reland was entirely dedicated to its destruction”. P. 50

    3) It seems that all pages on the internet referring to “Reland palestine 1695”. There seems to be no “Reland palestine 1695″ hits before late 2007 after Avi Goldreich” published his claim.

    Please check it better and most of all I suggest you to write about it again only after reading the original in Latin.

    Your Article 2 does not prove in any way your claim. It recognized the historical connection of the Jewish people with Palestine – and there is no reason to deny it – and and spoke about a “national home”, that as we have seen did not have any univocal meaning. The Mandate was approved after that the Zionist leadership officially accepted the interpretation contained in the White Paper of 1922. So the 15 instances of the phrase “in Palestine” were officially and legally bounded to the agreed understanding that the Balfour Declaration does “not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded ‘in Palestine’”. And this was agreed after the Cairo conference (in Transjordan-Palestine) of 1921. These are historical facts with legal effects, not interpretations or wishful thinking, and as quoted in the article above: “It was made clear to us that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper of 1922, and my colleagues and I therefore had to accept it, which we did, though not without some qualms”.

    No time to repeat things mentioned by Stone; dozens of scholars explained these issues and I, for my part, explained to you why these interpretations dont have any legal or historical base.

    You find weird to equate Naftali Bennett to “a religious extremist of Hamas” – the former for stating a self-evident truth, and the latter for incitement to genocide – that is more than “weird.” So feel free to equate him to, say, Ayelet Shaked that published on her official facebook page a paper with a call for genocide because it declares that “the entire Palestinian people is the enemy” and justifies its destruction, “including its elderly and its women, its cities and its villages, its property and its infrastructure.” She published it without rejecting its content and only later she tried to find a way out. Extremists are in both sides, but you seem to care just about the one of one side. And the fact that you feel confortable with Bennett’s words is quite revealing.

    Thanks again, I appreciate your time and I am very much interested in your interpretations.
    12.13.2015
    at 4:29 am ESTcarl m.
42. Re: a) a claim of “The term “national home,” in fact, had no mutually agreed-upon meaning” is weak.

    Nonsense. the week before the Balfour Declaration was released, Privy Council President Lord Curzon, War Cabinet Secretary Hankey, and Secretary of State for India Montagu wrote memorandums to the other cabinet officials explaining that the term “Jewish National Home” had no agreed upon meaning or scope to either the Jews or supporters of the Zionist movement. So the “declaration of sympathy with Jewish Zionist aspirations” in favor of “the establishment in Palestine of a national home for the Jewish people” had no definite legal meaning. See CAB 24/30, “The Future of Palestine” (Former Reference: GT 2406), 26 October 1917; CAB 24/4, “The Zionist Movement”(Former Reference: G 164), 17 October 1917; and CAB 24/28 (Former Reference: GT 2263) “Zionism, 9 October 1917. They are all available as free downloads from “The Cabinet Papers 1915 to 1984” section of the UK National Archives website.

    30 years latter the members of the UNSCOP Committee, including several Supreme Court or High Court Justices came to the same conclusion. They reported to the General Assembly in September of 1947 that the term had no agreed upon meaning or scope in international law. See A/364 of 3 September 1947 via the UN or UNISPAL websites.

    Re: b) all British statements weakening the view of a future Jewish state were made under pressure of Arab violence and therefore, the validity of such alterations in the original intent is questionable.

    There never was any such original intent. In 1919 when the Zionist Delegation presented their case to the Paris Peace Conference, U.S. Secretary of State Robert Lansing asked Dr. Weizmann to clear-up some misunderstandings regarding the meaning of the term “Jewish National Home”. He asked him point blank if it required the establishment of an autonomous Jewish government? Weizmann answered in the negative – and that is fatal to any claim that the Allied Powers were under any such legal obligation, that they granted Jews a legally secured right to a sovereign state in Palestine, or that Article 80 of the UN Charter preserved any definite right to establish one. See Papers relating to the foreign relations of the United States, The Paris Peace Conference, 1919, The Council of Ten: minutes of meetings February 15 to June 17, 1919, page 169. The FRUS is available online via the University of Wisconsin Digital Collection website.

    Re: c) the act of restricting Jewish settlement east of the Jordan in 1922 (for the benefit of a Saudi Arabian who had invaded the area) was itself an apparent recognition that all the remaining territory was to become a Jewish state.

    Even if the Palestine Mandate had employed the term “state” and “the ability to stand alone”, that would still have been completely ambiguous in 1920. There were a multitude of non-sovereign political units, like the Alawite State (État des Alaouites) in the Syrian Mandate that were not considered sovereign states and which had intrastate, rather than international boundaries. In fact, the US Government published a long list of states which were not considered independent or sovereign for use during the Paris Peace Conference. See The Inquiry series volume, “Types of Restricted Sovereignty and of Colonial Autonomy”, by Profs W. W. Willoughby, of Johns Hopkins University, and C.G. Fenwick, Bryn Mawr College, January 10, 1919, US Government Printing Office.

    d) UN Article 80 grants the original Palestine Mandate a status.

    I’ve explained in another comment here that the wording requested by the Jewish Agency was rejected. The official documentary record of the negotiations conducted by the US delegation to the San Francisco Conference on the UN Charter reveals that Article 80 was requested by the Arab States to preserve the status quo obtained under the terms of the 1939 White Paper and the 1940 Land Transfer Ordinance, while leaving the option open for a UN trusteeship. See the discussion under the heading “Palestine” on pages 859-60 in “The United Nations conference on international organization, San Francisco, California, April 25-June 26, 1945”, Foreign relations of the United States : diplomatic papers, 1945 via the University of Wisconsin Digital Collection.
    12.16.2015
    at 11:43 am ESTHostage
43. Re: I’m quite flattered that a basic talk I gave to college students several years ago merits continued academic attention.

    Don’t be flattered. Your talk was a pastiche of legal, logical, and historical fallacies. Modern historians, like Donald Quataert have explained that the term “Ottoman Empire” is something of a misnomer. By the 19th Century, it had long-since developed into a multinational Muslim empire and had ceased to be a strictly Turkish one through a long process of intermarriages that helped cement political alliances. The notion that Ottoman Asia was “non-Arab” as you suggested in the video is a completely mistaken view. In 1884 a member of the Sultan’s entourage in the Yildiz Palace, Ahmed Hamdi, complained that between Aqaba in the south and the northern towns of Nablus and Salt there was a stretch of 800 hours travel distance of an anarchic nature where no single government employee was ever seen or heard from and which was entirely left to the Bedouin shaykhs (‘urban mesayihine terk olan)”. Even the Sharif of Mecca was, after all, an Ottoman official before the Arab Revolt. See Johann Büssow, “Hamidian Palestine: Politics and Society in the District of Jerusalem 1872-1908”, pages 53-54.

    Likewise, the claim that the international community “had no problem” with the Ottoman Empire until the early 20th century is an absurd proposition. It is obviously meant to obscure the relevant historical facts, rather than clarify them. The western powers concluded a number of treaties called capitulations with the Empire that created a series of imperia in imperio. They were a source of grave trouble. The western powers constantly interfered and meddled in Ottoman state affairs throughout much of the 19th century.

    Disputes over protection of a Church in Bethlehem and of millions of Orthodox Christians in the Empire came to a head before the Crimean War. One of the terms of the settlement contained in the Treaty of Paris (1856) was the recognition of the Ottoman Empire and its formal entry into “the Public Law and System (Concert) of Europe. By the time the Treaty of Berlin (1878) was adopted, the Empire was forced to accept a clear relinquishment of some of its sovereign rights. For example, the US delegation to the same Carlsbad Zionist Congress mentioned in the article above by Dr. Kamel filed a written statement about the fact that Jewish and Zionists activists had been instrumental in making the protection of religious and minority communities an integral part of the creation of new states like Palestine or the enlargement of existing ones. They noted that the 1919 Paris Peace Conference had continued the practice begun under the Treaty of Berlin, which protected the rights of Jews and Muslims in the newly created states of Serbia, Montenegro, and Romania. The American Zionists reported that the rights of national minorities were no longer determined by autocrats who could claim that they were strictly a matter falling within their sovereign jurisdiction.

    Several commentators here seem to be blissfully unaware of the fact that Article 62 of the Treaty of Berlin was an existing multilateral treaty instrument that protected the members of the Jewish and non-Jewish communities from any form of discrimination in the exercise of their both their civil and political rights, including the right to hold political office. For example, the Concert of Europe demanded and received constitutional reforms that permitted the Muslim, Christian, and Jewish millets to be represented by deputies in the Ottoman Parliament. One of the Palestinian representatives from the District of Jerusalem, Yussef Diya’uddin Al-Khalidi, had even been the Speaker of the Ottoman Parliament. The Deputies debated and helped formulate state policies. For example, there was a discussion in the Ottoman Parliament in 1911 in which two deputies from Jerusalem, al Khalidi and al Husayni, argued with Jewish deputies that the district of Palestine had reached the limit of its capacity of Jewish immigrants, and that they should be settled elsewhere in the Ottoman Empire. See Yuval Ben-Bassat and Eyal Ginio, Late Ottoman Palestine: The Period of Young Turk Rule (Library of Ottoman Studies), 2011, starting at page 111 via Google Books.

    The UNSCOP report explained that it was clearly understood that neither the Balfour Declaration nor a resolution adopted by Italy, Great Britain, France, and Japan at San Remo should alter the “status quo”. In fact the participants included an additional safeguarding clause in the text of the resolution which stated that they had only accepted the terms of the mandate article of their resolution “on the understanding that there was inserted in the process-verbal an undertaking by the Mandatory Power that this would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine.” See the text of the San Remo Resolution via the website of the Council on Foreign Relations.

    The British representative was repeatedly taken to task by the members of the League of Nations Permanent Mandates Commission for serial failures to establish self-governing institutions in Palestine with Arab and Jewish representatives as required by Article 6 of the Mandate. The Arabs filed a formal complaint that their pre-existing right to Parliamentary representation had been violated. See “League Of Nations, Permanent Mandates Commission, Minutes Of The Ninth Session, Held At Geneva From June 8th To 25th, 1926”, dated 25 June 1926 via the UNISPAL website.
    12.16.2015
    at 1:43 pm ESTHostage
44. Re: Furthermore, from San Remo to the League of Nations Mandate decision, it was clear that non-Jewish communities had no political rights whatsoever and the topic for deliberation, ,if any, was their personal and religious rights.

    That’s false. Members of the various millets had constitutionally protected political rights. In addition, the handful of Allies gathered at San Remo actually took action to preserve the status quo. Article 62 of the Treaty of Berlin, which was part of the existing public international law of Europe, stipulated that:

    “In no part of the Ottoman Empire shall difference of religion be alleged against any person as a ground for exclusion or incapacity in matters relating to the enjoyment of civil or political rights, admission to public employments, functions, and honors, or the exercise of the various professions and industries, in any locality whatsoever.”

    The participants at San Remo stipulated in the text of the resolution itself that they only accepted the Article on Mandates with the understanding that the British government had accepted an additional legal undertaking that this would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine.”

    Re: The issue of Class ‘A’ mandates

    Is a complete non-issue. The Official Journal of the League of Nations, The Foreign Relations of the United States (published by the US State Department), and the ICJ Advisory Opinion all agree that the Council of the League of Nations approve a Class A Mandate Palestine. Only Zionists propagandists, who don’t read official records or archives, still think this is an issue.

    Here’s a note of caution for Zionists who imagine that they can see things when they read between the lines of the San Remo Resolution, the Treaty of Sevres, or the Mandate. During the debate in the House of Lords on the final draft of the Palestine Mandate, the Earl of Balfour stated emphatically that:

    I cannot imagine any political interests exercised under greater safeguards than the political interests of the Arab population of Palestine. Every act of the Government will be jealously watched. The Zionist organisation has no attribution of political powers. If it uses or usurps political powers it is an act of usurpation. See PALESTINE MANDATE. HL Deb 21 June 1922 vol 50 cc994-1033, section 1011 via the hansard dot millbanksystems dot com.
    12.16.2015
    at 2:21 pm ESTHostage
45. Re: I should add that the Egyptians and Jordanians do not share Dr. Kamel’s views, as their peace treaties with Israel specify the Mandatory border as an international frontier.

    You are obviously very confused. Article 3(2) of the Treaty of Peace between Israel and the Kingdom of Jordan explicitly stipulates that the international boundary is without prejudice to the status of any territories that came under Israeli military government control in 1967.
    The text of the Treaty is readily available online via the kinghussein dot gov dot jo or the Israeli MFA websites.

    In 2003 the governments of Egypt and Jordan both advised the ICJ that they were interested state parties and submitted written statements to the ICJ in the Wall case. Egypt described the presence of Israeli civilians and settlers in the occupied territories and the displacement of Palestinians by the construction of the wall as “war crimes.” Likewise Jordan described the settlements as illegal and cited the holdings of various international criminal tribunals and the Rome Statute in support of its position that the settlements were a flagrant violation of Article 49 of the 4th Geneva Convention. Those written statements are readily available online via the ICJ website.
    12.16.2015
    at 2:51 pm ESTHostage
46. Re:

    In 1919 when the Zionist Delegation presented their case to the Paris Peace Conference, U.S. Secretary of State Robert Lansing asked Dr. Weizmann to clear-up some misunderstandings regarding the meaning of the term “Jewish National Home”. He asked him point blank if it required the establishment of an autonomous Jewish government? Weizmann answered in the negative – and that is fatal to any claim that the Allied Powers ever granted Jews a legally secured right to a sovereign state in Palestine or that Article 80 of the UN Charter preserved the right to establish one. See Papers relating to the foreign relations of the United States, The Paris Peace Conference, 1919, The Council of Ten: minutes of meetings February 15 to June 17, 1919, page 169. http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1919Parisv04&isize=M&submit=Go+to+page&page=169

    Article 6 of the Palestine Mandate stated that Jewish immigration was subject to “suitable conditions”. It also excluded any “state lands or waste lands” “required for public use” from those that the mandatory administration could employ for Jewish settlement. So there was never any legal justification for the establishment of Jewish-only settlements on publicly owned land in occupied Palestine, even if Article 80 of the UN Charter worked the way Zionists claim.

    To sum up: Foreign Jews had no guaranteed legal right to immigrate to Palestine; they had no right to settle on state land or waste land required for public use once they got there; and they had no legal right to expropriate private property in violation of the Hague regulations.
    12.17.2015
    at 9:03 am ESTHostage
47. I’ll cross post this here:

    As a person of Jewish descent, I’m very sympathetic to the case for defending the fundamental human rights of the Jewish people of the former Palestine mandate and those who have been assimilated to them. Unfortunately, no one can offer an unblemished defense for some of the acts that they have perpetrated against the other inhabitants since 1948.

    See for example: “100-Year-Old General: We Razed Arab Villages, So What?: Brig. Gen. (res.) Yitzhak Pundak: If we hadn’t done it, there would be a million more Arabs and there would be no Israel. http://www.israelnationalnews.com/News/News.aspx/168912#.VYuDd7y37tR

    There’s a British proverb which explains “The past is a foreign country. They do things differently there.” The authors of the Levy report, including Dr Alan Baker, are simply trying to revive the age-old practice of private profit from the plunder of war through the use of trite arguments about “sovereignty” that no one has accepted since the 19th century.

    A new political unit called “Jordan” came into existence in January 1949 as a result of the formation of a federal union between Arab Palestine and Transjordan in accordance with the resolutions adopted by an Arab Palestinian Congress held in Jericho. When two-thirds of the members of the international community of states present and voting adopted a “decision” on Jordan’s membership and participation in the UN Organization, in accordance with Articles 2 and 18 of the UN Charter, they disposed of any debate about Jordan’s “sovereign equality” or the legality of the political union between Arab Palestine and Transjordan. Contrary to Zionist propaganda claims, the FRUS revealed that the US government extended de jure recognition to the union. It also revealed that when Israeli Prime Minister Eshkol suggested the joint Palestinian-Transjordanian government was somehow “occupying” the West Bank, President Johnson instructed Ambassador Goldberg to make the terms of the UN Security Council resolution perfectly clear by stipulating that it required the withdrawal of the armed forces of Israel.

    Once again the plenipotentiaries attending the Rome Conference chose words that were not at all surprising, in light of the fact that customary international law already recognized both direct and indirect modes of common-purpose criminal liability – and the fact that all of the Great Powers had employed their own private chartered colonial companies to indirectly facilitate the recruitment and transport of settlers and plundered resources during the heyday of colonialism.

    The notion that the laws of nations must protect humanity, rather than the rights of states, actually started when Edmund Burke complained about the plunder and deportation of the Jews of St. Eustatius: “Their abandoned state and their defenseless situation call most forcibly for the protection of civilized nations. If Dutchmen are injured and attacked the Dutch have a nation a government and armies to redress or avenge their cause. If Britons are injured Britons have armies and laws the laws of nations (or at least they once had the laws of nations) to fly to for protection and justice But the Jews have no such power and no such friend to depend on. Humanity then must become their protector and ally.”

    Zionist propaganda strangely insists that means that every one of the thousands of ethnic groups existing today needs to have it’s own “nation state”.

    But a change in sovereignty does not effect personal, heritable, or communal property rights under customary, conventional, or most domestic legal systems. For example, the U.S. Supreme Court recognized a long time ago that there was a fundamental principle of the law of nations: “[t]hat when a territory is acquired by treaty, cession, or even conquest, the rights of the inhabitants to property, are respected and sacred.” Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 749 (1838). In United States v. Percheman 32 U.S. 51 (1832) with regard to the continuing rights of the inhabitants to citizenship, inheritances, residency, and private property ownership the Court said: “The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged if private property should be generally confiscated and private rights annulled on a change in the sovereignty of the country. The people change their allegiance, their relation to their ancient sovereign is dissolved, but their relations to each other and their rights of property remain undisturbed.”

    The Nuremberg Principles, based upon the Hague conventions of 1899 and 1907, explicitly protected “towns,” “villages,” “places:, “any civilian population,” “family rights and honor,” and “private property” against the crimes of pillage, excessive expropriation, deportations, or displacements. Those crimes did not become in anyway obscure between 1945 and 1948 or 1967.

    Most of us have seen the video of Prime Minister Netanyahu bragging about the fact that he had secretly obtained special plenary powers from US Secretary of State Warren Christopher that enabled him to “kill the Oslo Accords”. So it seems to me that Dr. Baker’s the one using this website for propaganda purposes regarding the the legitimacy of the settlements based upon those abrogated agreements. The European Court of Human Rights recently decided that persons displaced by armed conflicts or their family members with heritable rights have an inalienable right under customary international law to return and access their properties. It held that states have a legal duty to facilitate the exercise of that right as soon as possible after the hostilities have ceased. The Court also ruled that “negotiations” cannot be used as an excuse to avoid those obligations.

    The ICJ clearly rejected the notion that the moribund Oslo agreements can be employed to renounce the civilian population’s on-going protections against permanent displacement contained in articles 6, 8, and 49 of the 4th Geneva Convention.