EXECUTIVE SUMMARY
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PART I: FOUNDATIONS OF THE INTERNATIONAL LEGAL
RIGHTS OF THE JEWISH PEOPLE AND THE STATE OF ISRAEL
In international law,
as in all law, there are always two sides to a question. If this were not the
case, there would be little need for legal solutions. Moreover, both parties in
any conflict believe the right is on their side, or at least that they have means to
prove this to be so. Accordingly, no law is ever created in a vacuum; a law is
created when a serious enough need arises.
In 1917, owing to the events of World War
I, a serious need was identified and a voice was raised. The
need was that of the Jewish people, dispersed across the earth for some two
thousand years, to have a
national home. The voice was that of Lord
Balfour, speaking on behalf of the British War Cabinet in
defense of the Jewish people worldwide. This compelling need found
official expression in the Balfour
Declaration of 1917.
The Balfour Declaration was a political statement with no
legal authority; moreover, it was not international. Nonetheless it was a major turning
point in the history of the dispersed Jewish people, giving them a future
hope of eventually fulfilling their never dying longing for their ancient Holy Land. What it accomplished
was to raise the profile, internationally, of the need of a stateless people to
have a “national home” to which they could return. Of monumental significance
was the official recognition of the all-important historic, religious and cultural links of the Jews to
the land of their forefathers, the land that had come to be known under the Greeks
and Romans as “Palestine”.
Because the cause was
just and the concept justified, there needed to be a way to elevate the content
of this
Declaration to the level of international law. Accordingly, the matter was
taken up by the Supreme Council
of the
Principal Allied and Associated Powers (Britain, France, Italy, Japan and the United States) at the
Paris Peace Conference in
1919. The issue became more complex as submissions for territorial claims
were presented by both Arab and Jewish
delegations, as the old Ottoman Empire was being apportioned
out to the victorious Powers; thus the matter was not able to be settled within
the time frame of the Paris
Conference.
What did happen at
the Paris Conference that factored into the progression of events we are
considering here was the establishment of the League of Nations which, in Article 22
of its Covenant, provided for the setting up of a mandate system as a trust for
the Old Ottoman territories.
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 an ‘extension’ of the
Paris Peace Conference of 1919 for the purpose of dealing with some of these outstanding issues. The aim of the four
(out of five) members of the Supreme Council of the Principal Allied and
Associated Powers that met in San Remo (the United States being present as
observer only, owing to the new noninterventionist policy of President Woodrow
Wilson), was to consider the earlier submissions
of the claimants, to deliberate and to make decisions on the legal recognition
of each claim. The outcome, relying
on Article 22 of the Covenant of the League of Nations, was the setting up
of three mandates,
one over Syria and Lebanon (later separated
into two mandates), one over Mesopotamia (Iraq), and one over Palestine. The Mandate for Palestine was entrusted
to Great Britain, as a “sacred trust of civilization” in respect of “the establishment in
Palestine of a National Home
for the Jewish people”. This was a binding resolution with all the force of
international law.
In two out of the
original three Mandates, it was recognized that the indigenous people had the
capacity to
govern themselves, with the Mandatory Power merely assisting in the
establishment of the institutions of
government, where necessary. This was not
true of Palestine, as Palestine was, under the Mandate, to
become a homeland (“national home”) for the
Jewish people. Although the Jewish people were part of the
indigenous population of Palestine, the majority of them at that time were
not living in the Land. The
Mandate for Palestine was thus quite
different from the others and set out how the Land was to be settled
by Jews in preparation for
their forming a viable nation in 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 (unique, one of a
kind) character to the Mandate for Palestine.
The boundaries of
the “Palestine” referred to in the
claimants’ submissions included territories west and east of the Jordan River. The submissions of
the Jewish claimants specified that the ultimate purpose of the mandate would
be the “creation of an autonomous commonwealth”, provided “that nothing must be
done that
might prejudice the civil and religious rights of the non-Jewish communities at
present established
in Palestine”. The resulting
Mandate for Palestine, approved by the
Council of the League of Nations in July 1922, was an
international treaty and, as such, was legally binding.
The decision made in San Remo was a watershed moment in the history of
the Jewish people who had been a people
without a home for some two thousand years. From the perspective of Chaim
Weizmann, president of the newly
formed Zionist Organization and later to become the first President of the
State of Israel, “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.” To the Zionist Organization of America, the San Remo
Resolution “crowns the British [Balfour] declaration by enacting it as part of
the law of nations of the world.”
The policy to be
given effect in the Mandate for Palestine was consistent with the Balfour
Declaration, in
significantly recognizing the
historic, cultural and religious ties
of the Jewish people to the Holy Land,
and even stronger than the Declaration through the insertion of the fundamental
principle that Palestine
should be reconstituted as the 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”.
The primary objective
of the Mandate was to provide a
national home for the Jewish people—including
Jewish people dispersed worldwide—in their ancestral home. The Arab people, who already
exercised
sovereignty in a number of States, were
guaranteed protection of their civil and religious rights under the
Mandate as long as they wished to
remain, even after the State of Israel was ultimately formed in 1948.
Moreover, Trans-Jordan was meanwhile added as a territory under Arab
sovereignty, carved out of the
very mandated territory at issue, by the British, prior to the actual signing of the Mandate in
1922 (see
below).
When the Council of
the League of Nations approved the Mandate for Palestine in July 1922, it
became binding on all 51 Members of the League. This act of the League enabled
the ultimate realization of the long cherished dream of the restoration of the Jewish people
to their
ancient land and validated
the existence
of historical facts and events linking the Jewish people to Palestine. For the Supreme
Council of the Principal Allied Powers, and for the Council of the League of Nations, these historical facts were considered to be accepted and established. In the words of
Neville Barbour, “In
1922, international sanction
was given to the Balfour Declaration by the issue of the Palestine Mandate”.
The rights granted to
the Jewish people in the Mandate for Palestine were to be given
effect in all
of
Palestine. It thus follows that the legal rights of the claimants to
sovereignty over the Old
City of
Jerusalem
similarly
derive from the decisions of the Supreme Council of the Principal Allied Powers
in
San Remo and from the terms of the Mandate for Palestine approved by the Council of the League of
Nations.
In March 1921, in Cairo, Great Britain decided to partition
the mandated territory of Palestine, for
international
political reasons of its own. Article 25 of the Mandate gave the Mandatory Power
permission
to postpone or
withhold most of the terms of the Mandate in the area of land east of the Jordan River (“Trans-Jordan”). Great Britain, as Mandatory Power,
exercised that right.
For former UN
Ambassador, Professor Yehuda Zvi Blum, the rights vested in the Arab people of Palestine with respect to the
principle of self-determination were fulfilled as a result of this initial
partition of Palestine approved by the
Council of the League of Nations in 1922. According
to Professor Blum: “The Palestinian Arabs have long enjoyed self-determination
in their own state - the Palestinian Arab State of Jordan”. (Worth mentioning
here, in a letter apparently written on 17 January 1921 to Churchill’s Private Secretary, Col. T.E.
Lawrence (“of Arabia”) had reported that, in return for Arab sovereignty in
Iraq, Trans-Jordan
and Syria, King Hussein’s eldest son, Emir Feisal—a man said by Lawrence to be
known for keeping his word—had “agreed to abandon all claims of his father to
Palestine”.)
After this partition,
Churchill—British Colonial Secretary at the time—immediately reaffirmed the commitment of Great Britain to give effect to
the policies of the Balfour Declaration in all the other parts of the territory covered by the
Mandate for Palestine west of the Jordan River. This pledge
included the area
of Jerusalem and its Old City. In Churchill’s own
words: “It is manifestly right that the Jews who are scattered all over
the world should have a national centre and a national home where some of them
may be reunited.
And where else could that be but in the land of Palestine, with which for more
than three thousand years they have been intimately and profoundly associated?”
Thus, in a word, the primary foundations in international
law for the “legal” claim based on “historic rights”
or “historic title” of the Jewish people in respect of Palestine are the San
Remo decisions of April 1920, the Mandate
for Palestine of July 1922, approved by the Council of the League of
Nations and bearing the signatures of those same Principal Allied Powers but
rendering it an international treaty binding on all Member States, and the Covenant of
the League of Nations itself (Art. 22).
PART
II: THE
QUESTION OF A UNILATERAL DECLARATION OF A STATE OF PALESTINE
Many years passed
from the adoption of the Mandate in 1922 to the creation of the State of Israel
in 1948. An event that
precipitated Israeli statehood was the vote by the UN General Assembly in 1947
for the partition of Palestine (Resolution
181 (II)), recommending the setting up of a Jewish and an Arab State in that
territory. While UNGA resolutions are no more than recommendatory, with no
legally binding force, the Jews
accepted the partition plan, whereas the Arabs rejected it. The UK terminated its role
as Mandatory
Power and pulled out of the territory on 14
May 1948. On that date, to take effect at midnight, the Jews declared the State of Israel.
The following day,
the armies of five surrounding Arab nations attacked the new Jewish State
(Israeli War
of
Independence). The Arabs unexpectedly met defeat, though Jordan illegally annexed Judea and
Samaria. Israel regained control
over its mandated territory in a war of self-defense, the Six-Day War, in
1967.
Despite these intervening events that have since influenced its ongoing
relevance, not least of which
being
the fulfillment of its primary purpose, the creation of a Jewish State, certain
fundamental aspects of
the
Mandate remain valid and legally binding and are highly relevant for the
determination of the “core
issues”
to be negotiated between the two parties on the “permanent status” (or “final
status”) of Jerusalem
and the
“West Bank”.
In order to get the proper perspective in
considering the international legal framework surrounding the
question of a unilaterally declared Palestinian State with the eastern part of Jerusalem as its capital, we
may need to go beyond the law, per se, to consider the
impact of public opinion on the formulation of both
customary and codified international law. Accordingly, attention should be
drawn to the degree to which
equitable resolutions to the “core issues” of today’s Israeli / Arab
Palestinian conflict can be exacerbated
by linguistic hyperbole, factual distortion or pure political maneuvering and
calculated rhetoric. Some of
this
rhetoric has a critical need to be subjected to the light of legal terminology
and precision. Otherwise it
can
easily lead to gross distortions of truth, which can even result in ill-advised
international legal
responses.
Take for example, the “Palestinian”
identity.
At the time of the San Remo decision and the resulting
Mandate for Palestine, the territory then known as “Palestine” was designated
expressly for the
“reconstitution”
of the “national home” of the Jewish people only. While care
was taken to protect the
rights of Arab inhabitants, the Jews alone
were a people without a country. Indeed, this was the very
purpose of the Mandate for Palestine and its predecessor
the Balfour Declaration. At the time of the
Mandate,
it would have been more accurate to refer to “Palestinian Jews” and
“Palestinian Arabs” (along
with
various other non-Jewish inhabitants). But because of the creation of the State
of Israel, the
Palestinian
Jews retained their ancient name of “Israelis” while the non-Jews (mainly but
not all Arabs)
appropriated the name “Palestinians”, with the result that they are often
erroneously viewed as being the
rightful inhabitants of the Land. In actual fact, the Land called “Palestine” covers territory
that the Jews
have
called the “Holy Land” well before the name “Palestine” was first used by
the Greeks and Romans.
The truth
is that the territory known as “Palestine” has never—either
since this name was applied or
before—been
an Arab nation or been designated to be an Arab nation. But this nomenclature
carries great
psychological impact with the inference that it is the former Arab inhabitants
of Palestine that are the true
“Palestinians”
and that they alone
belong
in “Palestine”.
As regards the refugee question, the legal definition
of “refugee” is “a person who flees or is expelled from
a country, esp[ecially] because of persecution, and seeks haven in another
country” (Black’s Law
Dictionary). The present plight
of all those living in refugee camps is truly pitiable and rightfully arouses
the compassion of the world;
but most Palestinians identified as “refugees” are well over a generation
away from the events that caused the
foregoing generation to flee. Vast Arab lands were accorded
statehood generations ago and could
easily accommodate all these most unfortunate “refugees” who have
been made a spectacle of for six decades instead of being integrated as
productive members of society
among their own people. In addition to the other San Remo mandated territories that gained
statehood
before Israel, and could well
have absorbed their Arab brothers, Trans-Jordan was partitioned off specially
for the
Palestinian Arabs in the territory originally designated for the Jewish
national home. This
already
furnished a legitimate ‘new State’ for the Arabs within the territory of “Palestine”. International law has
never
had to grapple with the question of the ‘inheritance’ of refugee status, such a
situation being unique
in human history.
Concerning the “1967 lines”, as a point of
reference for a potential new Palestinian State, there is constant
mention
of withdrawal to the “1967 borders”. Firstly, this terminology is legally
incorrect. The word
“borders” is generally used
in international law to mean “national boundaries”, which the 1967 “lines”
most decidedly are not. The definition of a
“border” under international law is “a boundary between one
nation (or a political subdivision
[of that nation]) and another” (Black’s Law Dictionary). No such national
boundaries have ever been established for the reborn State of Israel. The 1967
“lines” are purely military
no-cross lines (“armistice
demarcation lines”), from Israel’s 1948 War of Independence. These “lines”
have been expressly repeated in numerous 1949
Israeli-Palestinian armistice agreements to neither
represent national
borders nor prejudice the future bilateral negotiation of same. These 1949
armistice lines
remained valid until the outbreak of the 1967 Six-Day War. Linking them with
the 1967 war - where lost
territory
was recovered by the Israel Defense Forces, under attack - by calling them
“1967 borders”
instead
of 1949 armistice lines, fosters the erroneous notion that these are ill-gotten
“borders”, thus highly
prejudicing
the issue and its outcome. Eugene Rostow, U.S. Undersecretary of State for
Political Affairs in
1967 and
one of the drafters of the 1967 UN Security Council Resolution 242 on “safe and secure”
borders,
stated in 1990 that it and subsequent Security Council Resolution 338 “ . . .
rest on two principles,
Israel may administer the
territory until its Arab neighbors make peace; and when peace is made, Israel
should withdraw to ‘secure and recognized
borders,’ which need not be the same as the Armistice
Demarcation Lines of 1949”. In a
word, the 1967 lines are not “borders” at all, and this word should not be
used to create and perpetuate
the impression that Israel has illegally transgressed the borders of
another
state, when this is clearly not the case.
Similarly, with regard to the disputed territories, the widespread use of the words
“occupied territory”
rather than “disputed territory” (which in
fact it is) has a major psychological impact that can result in real
and even legal ramifications.
Furthermore, this language and what it tends to connote (“belligerent
occupation”) totally ignores the international treaty language of “reconstituted”, as contained in the
Mandate for Palestine. Reconstituted territory precludes “belligerent occupation”, even if
permanent
national borders have
yet to be negotiated. A state cannot, by definition, be a “belligerent
occupying
power” in a territory that is being “reconstituted” in its name, according to
the provisions of a legally
binding
instrument of international law. “[O]ccupation occurs when a belligerent state
invades the territory
of
another state with the intention of holding the territory at least temporarily”
(West’s Encyclopedia of
American Law). The territory that Israel reclaimed in 1967
was never rightfully “the territory of another
state”,
nor did Israel obtain it by war of
aggression. Indeed, it was territory that had been specifically
designated for a Jewish
national
home, under the legally binding Mandate for Palestine in 1922.
A close corollary is
the question of settlements. The sensitivities
surrounding this question are exacerbated
by the
very fact that the legality/illegality of such settlements is based on factors
that may not follow
prescribed
international law norms but rather are complicated by the unique nature of the
Israeli case. For
example,
while it is often claimed that such settlements violate Article 49 of the
Geneva Convention (IV),
the inclusion
of this article in the Convention had a different purpose altogether than to
govern
circumstances
such as those existing in present-day Israel. The drafters’ intent was that of protecting
vulnerable civilians
in times of armed conflict by
creating an international legal instrument that would
declare as unlawful all coerced deportation such as that suffered
by over forty million Germans, Soviets,
Poles,
Ukrainians, Hungarians, and others, immediately after the Second World War. In
the case of Israel,
under
international law as embodied in the Mandate for Palestine, Jews were permitted and even
encouraged
to settle
in every
part of Palestine; they were not deported or forcibly
transferred.
Accordingly, calling the “East Jerusalem”, Judea and Samaria Israeli settlements “illegal”
is not an apt
application of the Fourth Geneva
Convention.
The question of Jerusalem may be the most
volatile of all. Owing to the sacredness of this city to so many,
it has
become evident that the positions of Israel and the Palestinians
regarding the Old City are virtually
irreconcilable.
Evidence of this is the fact that it was not named in the Framework for Peace
in the Middle
East, agreed in the 1978 Camp David Accords between Israel and Egypt. In the latter case,
Jerusalem was
indeed on the agenda, but was
left out of the actual Accords, owing to the inability of the two parties to
resolve their fundamental differences on the
highly loaded issue. The failure of the Camp David Summit of
July 2000 again underlined the significance of the question of Jerusalem and its Old City.
Coming to the role of the United
Nations in
the current debate, it must be recalled that, according to the UN Charter, the UN
General Assembly does not have the power to create legally binding decisions. General Assembly
Resolutions have only the power to recommend, with no legally binding force. Therefore, were there
to be a Resolution “recognizing” the “Arab Palestinians” as a political/state
entity, this would not, in and of itself, constitute the creation of a State of
Palestine under international law, any more than the 1947 Resolution 181 (II)
(the UN Partition Plan) created the State of Israel.
Moreover there have
been commitments on both sides to “permanent status” negotiations. The PLO
leadership
pledged in 1993 to commit virtually all the important issues of “permanent status”
to resolution
by negotiations only. Under the 1995
Interim Agreement (Oslo II), the parties undertook not to act
unilaterally
to alter
the status of the territories prior to the results of permanent status
negotiations. It was
clearly
stipulated and agreed that: “… neither side shall initiate or take any step that will change the status
of the
West Bank and the Gaza strip pending the outcome of the permanent status
negotiations” (emphasis
added).
A unilaterally declared Palestinian State would therefore be in breach of
commitments embodied in an
international legal instrument as well in
publicly declared and published official statements and
documents.
In sum, the conflict
is not a traditional conflict over borders—that is not even really the issue, as
demonstrated by the fact that
national boundaries have gone so long undetermined. It is a conflict over
historic rights and the internationally
recognized need of a unified ‘people’ to have a place (and territorial
space) to come ‘home’ to after some
two thousand years of ‘statelessness’ and separation from the Land of
their fathers—the only
place
that they call “holy” and the only Land they have ever called “home”.
FOUNDATIONS OF THE INTERNATIONAL LEGAL RIGHTS OF THE JEWISH PEOPLE AND
THE STATE OF ISRAEL 5
Executive Summary
