Legal and Historical Rights of the Jewish People and the State of Israel

Legal and Historical Rights of the Jewish People and the State of Israel

Before examining the all-important international legal decisions by the Supreme Allied Powers, made at San Remo in 1920, and confirmed by the Treaty of Sevres and Lausanne which incorporated the 1917 Balfour Declaration, including the Faisal Weizmann Agreement, it is useful to trace back a few years to get a sense of the legal and political environment that followed in the wake of the dissolution of the Ottoman Empire in 1918, leading up to these significant legal and diplomatic events that both emerged from historical roots and went on to shape Jewish contemporary history.

The 1917 Balfour Declaration

 The history of the international legal turning point for the Jewish people begins in 1917. World War I was exposing a growing need of Jews dispersed all over the world to have a "national home".  Thus, in 1917 Prime Minister David Lloyd George expressed to the British War Cabinet that he "was convinced that a Jewish National Home was an historic necessity and that every opportunity should be granted to reconstitute the Jewish State". This ultimately led to Great Britain issuing, on 2 November 1917, a political declaration known as the "Balfour Declaration".  This Declaration stated that:

"His Majesty’s Government view with favor the establishment in Palestine of a national home for the Jewish people, and will use their best endeavors to facilitate the achievement of this object, it being clearly understood that nothing should be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country".

As confirmed by Lord Balfour to Prime Minister Lloyd George:

“Our justification for our policy is that we regard Palestine as being absolutely exceptional; that we consider the question of the Jews outside Palestine as one of world importance and that we conceive the Jews to have an historic claim to a home in their ancient land; provided that a home can be given them without either dispossessing or oppressing the present inhabitants”.

 This position was shared by the other Principal Allied and Associated Powers who, in the words of Lord Balfour, "had committed themselves to the Zionist program which inevitably excluded numerical self-determination". Still, a declaration is not law, and a British declaration is not international. So while it is arguable that certain obligations of the Balfour Declaration were attributable to the British Government, it was neither applicable to other States nor a binding instrument under international law.

U.S. President Wilson’s “Fourteen Points” and the League of Nations

At the time of the Balfour Declaration, the territory known as "Palestine" was still part of the Turkish Ottoman Empire, with which Britain and her allies were at war. Although the British forces entered Jerusalem in December 1917, the war with Turkey in Palestine continued into 1918.  

Once Britain liberated Palestine from Turkish rule in 1918, it was in a position to implement its policy.

Meanwhile, on 8 January 1918, U.S. President Woodrow Wilson delivered a speech to a joint session of the United States Congress that was to become known as his "Fourteen Points". Included in these points was the statement that the "Turkish portion of the present Ottoman Empire should be assured a secure sovereignty, but the other nationalities which are now under Turkish rule should be assured an undoubted security of life and an absolutely unmolested opportunity of autonomous development".  These Fourteen Points were accepted by some of the key Allied Powers and "informed" (influenced and were incorporated in part into) certain principles embodied in the Covenant of the League of Nations.

Thus, the League of Nations was a direct result of the First World War, its Covenant or Articles of Organization being incorporated in the Treaty of Versailles, which entered into effect in January 1920. I might state that President Wilson was confident that some of the other members of the Principal Allied Powers had ulterior motives for not incorporating all 14 points (history has proven him to be right).

 1920 San Remo Sessions of the Paris Peace Conference

 The following sections on the San Remo Conference and its legacy borrow heavily upon—in some places recording verbatim or virtually verbatim (with the full agreement of the author)—Dr. Jacques Paul Gauthier’s monumental work, Sovereignty Over the Old City of Jerusalem: A Study of the Historical, Religious, Political and Legal Aspects of the Question of the Old City, Thesis no. 725, University of Geneva, 2007.  Part I of the present work draws liberally on Dr.  Gauthier’s thorough historical account. While some references to Gauthier’s work are precisely cited, others are so interwoven, interchanged, interspersed and integrated with the author’s own further research and formulations that it is virtually impossible to do proper justice to Dr. Gauthier in every instance. His indulgence is gratefully acknowledged.

The next important milestone on the road to international legal status and a Jewish national home was the San Remo Conference, held at Villa Devachan in San Remo, Italy, from 18 to 26 April 1920. This was a post World War I international reconvening of the Supreme Council of the Principal Allied Powers that had met together in Paris in 1919.  Said Supreme Council had the powers of disposition over the territories which, as a consequence of World War I, had ceased to be under the sovereignty of the Ottoman Turkish Empire. The Ottoman Empire had signed formal document relinquishing their rights title and interest to the territories now controlled by The Principal Allied Powers.

The Principal Allied Powers of World War I present at San Remo in 1920 were Great Britain, France, Italy and Japan. The United States had entered the war as an "Associated Power", rather than as a formal ally of France and Great Britain, in order to pursue its new policy of avoiding "foreign entanglements".  Thus, while the United States was a member of the "Supreme Council of the Principal Allied and Associated Powers" of the Paris Peace Conference, and was known as one of the five "Great Powers", it is not to be associated with the term "Principal Allied Powers", of which there were four. These four Powers were represented in San Remo by the Prime Ministers of Britain (David Lloyd George), France (Alexandre Millerand), Italy (Francesco Nitti), and by Japan’s Ambassador Keishiro Matsui. The United States was present as an "observer", represented by Robert Johnson, the U.S. Ambassador to Italy.

The 1920 San Remo Conference acted as an "extension" of the Paris Peace Conference, for the purpose of dealing with some outstanding issues that had not managed to be resolved in 1919.  Some of the “outstanding issues” included certain claims and legal submissions made by key claimants in Paris, among which were Zionist and Arab delegations.

In San Remo, the aim of the Principal Allied Powers was to consider the claims, deliberate and hand down decisions on the legal recognition of each claim. The fundamental objective of the San Remo Conference, then, was effectively to decide the future of the Middle East following the collapse of the Ottoman Empire. In accordance with President Wilson’s "Fourteen Points", it was not the intent of the victorious allies to acquire new colonies in the area, but rather to establish in the area new sovereign States over the course of time.

 The Principal Allied Powers in San Remo were charged, inter alia, with responding to the claims that the Zionist Organization had submitted in February 1919 at the Peace Conference in Paris, while taking into consideration the submissions of the Arab delegation. (The Arab and Zionist delegations had pledged to support each other’s claims.) The claims of the Zionist Organization included a demand for the recognition of "the historic title of the Jewish people to Palestine and the rights of the Jews to reconstitute their National Home in Palestine".

The boundaries of the "Palestine" referred to in these submissions included territories west and east of the Jordan River. The Zionist Organization had requested the appointment of Great Britain as Mandatory (or Trustee) of the League in respect of the Mandate over Palestine. The submissions specified that the ultimate purpose of the Mandate would be the "creation of an autonomous ‘Commonwealth’", with the clear understanding "that nothing must be done that might prejudice the civil and religious rights of the non-Jewish communities at present established in Palestine; nor the rights and political status enjoyed by the Jews in all other countries".

 The policy to be given effect in the Mandate for Palestine was to be consistent with the 1917 Balfour Declaration in recognizing the historic, cultural and religious ties of the Jewish people to the Holy Land, and the fundamental principle that Palestine should be the location of the reestablished national home of the Jewish people. It is particularly relevant to underline the inclusion in the terms of the Mandate (through Article 2) of the fundamental principle set out in the Preamble of this international agreement that:

“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”.

 Similarly consistent with the 1917 Balfour Declaration, as reiterated in the submissions to the Paris Peace Conference, the Mandate’s Preamble retained the condition that: "nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country". This conferred no new rights on either the non-Jewish inhabitants of Palestine or the Jewish populations in other countries; it merely preserved existing rights in both cases (see also Articles 2, 6, 9, and 13). The Mandate for Palestine, aka Greater Israel, can nonetheless be regarded as affecting the Jewish people worldwide to the extent that it provided a national home for all Jews everywhere to return to, encouraging settlement in Palestine and therefore immigration (Article 6), and facilitating the acquisition of citizenship (Article 7).  It was anticipated that non-Jews would live as a protected population within the Jewish national home.

 The Decision of the Principal Allied Powers Relating to the Mandate for Palestine - 1920 San Remo

The Allied Powers, assembled in San Remo in April 1920 to deliberate this and other submissions, recognized that not all areas of the Middle East were yet ready for full independence. So they agreed to set up Mandates for each territory, with one of the Allied Powers to be in charge of implementing each Mandate, respectively, "until such time as [the territories] are able to stand alone".

Initially three Mandates were assigned—one over both Syria and Lebanon, one over Mesopotamia (Iraq) and one over Palestine. In the first two Mandates, the native inhabitants were recognized as having the capacity to govern themselves, with the Mandatory Power merely serving to advise and facilitate the establishment of the necessary institutions of government. Accordingly, Article 1 of the Mandate for Mesopotamia states:

 “The Mandatory will frame within the shortest possible time, not exceeding three years from the date of the coming into force of this Mandate, an Organic Law for Mesopotamia. This Organic Law shall be framed in consultation with the native authorities, and shall take account of the rights, interests and wishes of all the populations inhabiting the mandated territory.”

 The language notably differed in the case of the Mandate for Palestine aka Israel, in which it was specifically stipulated in Article 4 that:

“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, and, subject always to the control of the Administration, to assist and take part in ‘the development of the country’. The Zionist organization, so long as its organization and constitution are in the opinion of the Mandatory appropriate, shall be recognized as such agency.”  (See: San Remo Resolution, Appendix C, para. (c).)

Thus, an appropriate Jewish agency would be recognized as a public body for the purpose of advising and co-operating with the Administration of Palestine.  As such, said Jewish Agency would assist and take part in “the development of the country” in economic, social and other matters as may affect the establishment of the Jewish national home, and the interests of the Jewish population in Palestine even though subject to the control of the Administration.  It was deemed the Zionist organization, so long as its organization and constitution are in the opinion of the Mandatory appropriate, shall be recognized as such “Jewish Agency”.

So while the Preamble states that it is "clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine", the political authority was explicitly vested in the Jewish people, with the ultimate objective of the establishment of the Jewish national home. The language of the Mandate persistently refers specifically to the reconstituted "national home" for the Jewish people.

Although the Jewish people were the only remaining indigenous population of Palestine for over 3700 years, the majority of them at that time were not living in the Land. At the same time, while the civil and religious rights of the Arab and other inhabitants were safeguarded, including voting rights, no sovereign political rights were assigned to them. (It is of significance that the Mandate did not distinguish these non-Jewish inhabitants similarly as "a people", or as lacking a "national home".)

Thus the Mandate for Palestine differed significantly from those established for the other former Ottoman Asiatic territories. The Mandate set out how the Land was to be settled by the Jewish people in preparation for their forming a viable nation within all the territory then known as "Palestine". The unique obligations of the Mandatory to the Jewish people in respect of the establishment of their national home in Palestine thus gave a sui generis (one of a kind, unique) character to the Mandate for Palestine aka Greater Israel.

 It is also important to note that, pursuant to Article 5 of the Mandate:

“No Palestine territory shall be ceded or leased to, or in any way placed under the control of the non-Jewish government of any people or foreign Power.”

So having considered the claims, the parties to the 1920 San Remo Conference deliberated and reached a decision which produced binding resolutions relating to the recognition of claims to the Ottoman territories presented in Paris by the Jews and the Arabs. These members of the Supreme Council thus reached an agreement that had the force of a legally binding decision of the Powers with the right to dispose of the territories in question which included Arab territories in Syria and Lebanon, also Mesopotamia aka Iraq.

Accordingly, the Principal Allied Powers decisions, in conformity with the provisions of Article 22 of the Covenant of the League of Nations, decided to entrust to Great Britain the Mandate for Palestine, aka Greater Israel, which involved a "sacred trust of civilization" in respect of "the establishment in Palestine of a national home for the Jewish people". Thus, said “Mandate” confirmed the decision made a few months earlier by these same Powers at a conference in London in February of that year.

The decision made in San Remo was a watershed moment in the history of the Jewish people who had been a people without a permanent home for some two thousand years. From the perspective of Dr. Chaim Weizmann, president of the newly formed Zionist Organization and later to become the first President of the State of Israel, the decision made relating to the destiny of Palestine at the San Remo sessions of the Paris Peace Conference was a turning point in the history of the Jewish people. In Weizmann’s own words:

“Recognition of our rights in Palestine is embodied in the treaty with Turkey, and has become part of international law. This is the most momentous political event in the whole history of our movement, and it is, perhaps, no exaggeration to say in the whole history of our people since the Exile after the second Temple was destroyed. For this great declaration of deliverance and providing the Jews in Diaspora to return to their homeland, we have to thank the Allied and Associated Powers.”

To the Zionist Organization of America, the decision of the Supreme Council of the Principal Allied Powers "crowned the British declaration by enacting it as part of the law of nations of the world".

There are a number of points that should be noted concerning the 1920 San Remo decision.

 1.  For the first time in modern history, the region known as Palestine became a legal entity. Hitherto; for many centuries it had been just a geographical area.

2.  All relevant agreements prior to the 1920 San Remo Conference were superseded. (Although not all specifically named at the Conference, this would include the Sykes-Picot agreement; and acknowledges the Feisal-Weizmann agreement.)

3.  The Balfour Declaration, which had been given recognition by many Powers prior to 1920 San Remo, achieved international legal status by being incorporated into the agreement.

4.  “Jewish people" were designated as the exclusive beneficiaries of a sacred trust in the Mandate for Palestine, the first step on the road leading to national sovereignty of the Jewish people, even though a substantial number of the Jews had not yet returned to their Land.

5.  Hence forward, transfer of the title on Palestine could not be revoked or modified, either by the League of Nations or the United Nations as its successor, unless the Jewish people should choose to give up their title only by mutual valid agreement.

6.  The San Remo decisions were incorporated into the Treaty of Sèvres, signed on 10 August 1920 by, inter alia, the four Principal Powers and Turkey. [Note: Although the treaty was never ratified by Turkey, it obligated Turkey to abide by those terms as it related to Palestine. Furthermore, the same parties (including Turkey) did sign and ratify the superseding Treaty of Lausanne in 1923.]

7.  The Arabs gained even greater rights in Lebanon, Syria and Mesopotamia, as they were considered ready, or near ready, for autonomy.

8. The San Remo decision of April 1920 marks the end of the longest colonized period in history, lasting around 1,800 years in Palestine.

    With reference to the historic connection of the Jews with Palestine, as recognized in the Mandate, Churchill wrote in his White Paper of 1922, after reneging on the complete territory of Palestine for the Jewish people and allocating over three quarters of the Jewish territory to set-up an Arab State of Trans-Jordan, shortly before the Mandate’s adoption by the League of Nations:

   “ …it is essential that [the Jewish community in Palestine] should know that it is in Palestine as of right and not on sufferance. That is the reason why it is necessary that the existence of a Jewish National Home in all of Palestine should be internationally guaranteed, and that it should be formally recognized to rest upon ancient historic connection.”