Monday, September 15, 2014

Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine Under International Law

From ACPR Policy Paper No. 147, 2003, by Howard Grief (and now expanded to a 700-page book available on Amazon):

The objective of this paper is to set down in a brief, yet clear and precise manner the legal rights and title of sovereignty of the Jewish people to the Land of Israel and Palestine under international law. These rights originated in the global political and legal settlement, conceived during World War I and carried into execution in the post-war years between 1919 and 1923. Insofar as the Ottoman Turkish Empire was concerned, the settlement embraced the claims of the Zionist Organization, the Arab National movement, the Kurds, the Assyrians and the Armenians. 

As part of the settlement in which the Arabs received most of the lands formerly under Turkish sovereignty in the Middle East, the whole of Palestine, on both sides of the Jordan, was reserved exclusively for the Jewish people as their national home and future independent state. 

Under the terms of the settlement that were made by the Principal Allied Powers consisting of Britain, France, Italy and Japan, there would be no annexation of the conquered Turkish territories by any of the Powers, as had been planned in the secret Sykes-Picot Agreement of May 9 and 16, 1916. Instead, these territories, including the peoples for whom they were designated, would be placed under the Mandates System and administered by an advanced nation until they were ready to stand by themselves. The Mandates System was established and governed by Article 22 of the Covenant of the League of Nations, contained in the Treaty of Versailles and all the other peace treaties made with the Central Powers – Germany, Austria-Hungary, Bulgaria and Turkey.

The Covenant was the idea of US President Woodrow Wilson and contained in it his program of Fourteen Points of January 8, 1918, while Article 22 which established the Mandates System, was largely the work of Jan Christiaan Smuts who formulated the details in a memorandum that became known as the Smuts Resolution, officially endorsed by the Council of Ten on January 30, 1919, in which Palestine as envisaged in the Balfour Declaration was named as one of the mandated states to be created.

The official creation of the country took place at the San Remo Peace Conference where the Balfour Declaration was adopted by the Supreme Council of the Principal Allied Powers as the basis for the future administration of Palestine which would henceforth be recognized as the Jewish National Home.

The moment of birth of Jewish legal rights and title of sovereignty thus took place at the same time Palestine was created a mandated state, since it was created for no other reason than to reconstitute the ancient Jewish state of Judea in fulfillment of the Balfour Declaration and the general provisions of Article 22 of the League Covenant. 

This meant that Palestine from the start was legally a Jewish state in theory, which was to be guided towards independence by a Mandatory or Trustee, also acting as Tutor, who would take the necessary political, administrative and economic measures to establish the Jewish National Home. The chief means for accomplishing this was by encouraging large-scale Jewish immigration to Palestine, which would eventually result in making Palestine an independent Jewish state, not only legally but also in the demographic and cultural senses. 

The details for the planned independent Jewish state were set forth in three basic documents, which may be termed the founding documents of mandated Palestine and the modern Jewish state of Israel that arose from it. These were 

  • the San Remo Resolution of April 25, 1920, 
  • the Mandate for Palestine conferred on Britain by the Principal Allied Powers and confirmed by the League of Nations on July 24, 1922, and 
  • the Franco-British Boundary Convention of December 23, 1920
These founding documents were supplemented by the Anglo-American Convention of December 3, 1924 respecting the Mandate for Palestine.

It is of supreme importance to remember always that these documents were the source or well-spring of Jewish legal rights and title of sovereignty over Palestine and the Land of Israel under international law, because of the near-universal but completely false belief that it was the United Nations General Assembly Partition Resolution of November 29, 1947 that brought the State of Israel into existence.

In fact, the UN resolution [of November 29, 1947] was an illegal abrogation of Jewish legal rights and title of sovereignty to the whole of Palestine and the Land of Israel, rather than an affirmation of such rights or progenitor of them.

...The San Remo Resolution on Palestine became Article 95 of the Treaty of Sevres which was
intended to end the war with Turkey, but though this treaty was never ratified by the Turkish National Government of Kemal Ataturk, the Resolution retained its validity as an independent act of international law when it was inserted into the Preamble of the Mandate for Palestine and confirmed by 52 states. The San Remo Resolution is the base document upon which the Mandate was constructed and to which it had to conform. It is therefore the pre-eminent foundation document of the State of Israel and the crowning achievement of pre-state Zionism. It has been accurately described as the Magna Carta of the Jewish people. It is the best proof that the whole country of Palestine and the Land of Israel belong exclusively to the Jewish people under international law.

...It was originally intended that the Mandate Charter would delineate the boundaries of Palestine, but that proved to be a lengthy process involving negotiations with France over the northern and northeastern borders of Palestine with Syria. It was therefore decided to fix these boundaries in a separate treaty, which was done in the Franco-British Boundary Convention of December 23, 1920. The borders were based on a formula first put forth by the British Prime Minister David Lloyd George when he met his French counterpart, Georges Clemenceau in London on December 1, 1918 and defined Palestine as extending from the ancient towns of Dan to Beersheba.

This definition was immediately accepted by Clemenceau, which meant that Palestine would have the borders that included all areas of the country settled by the Twelve Tribes of Israel during the First Temple Period, embracing historic Palestine both east and west of the Jordan River. 

The very words “from Dan to Beersheba” implied that the whole of Jewish Palestine would be reconstituted as a Jewish state. Though the San Remo Resolution did not specifically delineate the borders of Palestine, it was understood by the Principal Allied Powers that this formula would be the criterion to be used in delineating them. 

However, when the actual boundary negotiations began after the San Remo Peace Conference, the French illegally and stubbornly insisted on following the defunct Sykes-Picot line for the northern border of Palestine, accompanied by Gallic outbursts of anti-Semitic and anti-Zionist sentiments, though they agreed to extend this border to include the Galilee but not any of the water sources from the Litani valley and the land adjoining it. As a result, some parts of historic Palestine in the north and north-east were illegally excluded from the Jewish National Home.

The 1920 Boundary Convention was amended by another British-French Agreement respecting the boundary line between Syria and Palestine dated February 3, 1922, which took effect on March 10, 1923. It illegally removed the portion of the Golan that had previously been included in Palestine in the 1920 Convention, in exchange for placing the Kinneret (Sea of Galilee) wholly within the bounds of the Jewish National Home, and made other small territorial adjustments. The British and French negotiators had no legal right to remove or exclude any “Palestine territory” from the limits of Palestine, but could only ensure that all such territory was included. The exchange of “Palestine territory” for other “Palestine territory” between Britain and France was therefore prohibited as a violation of the Lloyd George formula accepted at the San Remo Peace Conference.

The decisive moment of change came on May 14, 1948 when the representatives of the Jewish people in Palestine and of the Zionist Organization proclaimed the independence of a Jewish state whose military forces held only a small portion of the territory originally allocated for the Jewish National Home. 

The rest of the country was in the illegal possession of neighboring Arab states who had no sovereign rights over the areas they illegally occupied, that were historically a part of Palestine and the Land of Israel and were not meant for Arab independence or the creation of another Arab state.

It is for this reason that Israel, which inherited the sovereign rights of the Jewish people over Palestine, has the legal right to keep all the lands it liberated in the Six Day War, that were either included in the Jewish National Home during the time of the Mandate or formed integral parts of the Land of Israel that were illegally detached from the Jewish National Home when the boundaries of Palestine were fixed in 1920 and 1923. For the same reason, Israel cannot be accused by anyone of “occupying” lands under international law that were clearly part of the Jewish National Home or the Land of Israel. Thus the whole debate today that centers on the question of whether Israel must return “occupied territories” to their alleged Arab owners in order to obtain peace is one of the greatest falsehoods of international law and diplomacy.

The most amazing development concerning the question of sovereignty over Palestine is that the State of Israel, when it finally had an opportunity to exercise its sovereignty over all of the country west of the Jordan, after being victorious in the Six Day War of June 5-10, 1967, did not do so – except in the case of Jerusalem. The Knesset did, however, pass an amendment to the Law and Administration Ordinance of 1948, adding Section 11B, which allowed for that possibility and was premised on the idea that Israel possessed such sovereignty. Israel did not even enforce the existing law on sovereignty passed by the Ben Gurion Government in September 1948, known as the Area of Jurisdiction and Powers Ordinance, which required it to incorporate immediately any area of the Land of Israel which the Minister of Defense had defined by proclamation as being held by the Defense Army of Israel. 

Israel’s legal rights and title of sovereignty over all of the Land of Israel – specifically in regard to Judea, Samaria and Gaza – suffered a severe setback when the Government of Prime Minister Menahem Begin approved the Camp David Framework Agreement for Peace in the Middle East, under which it was proposed that negotiations would take place to determine the “final status” of those territories. The phrase “final status” was a synonym for the word “sovereignty”. 

It was inexcusable that neither Begin nor his legal advisers, including Aharon Barak, the future President of the Israel Supreme Court, knew that sovereignty had already been vested in the Jewish people and hence the State of Israel many years before, at the San Remo Peace Conference. The situation became much worse, reaching the level of treason when the Government of Prime Minister Yitzhak Rabin signed the Declaration of Principles (DOP) with the Palestine Liberation Organization (PLO) and agreed to give it about 90% or more of Judea and Samaria and most of Gaza over a five-year transitional period in order to “achieve a just, lasting and comprehensive peaceful settlement and historic reconciliation through the agreed political process” with the Arabs of Palestine. 

The illegal surrender of territory to the “Palestinian Authority” originally called the “Council” in Article IV of the DOP was hidden by the use of the word “jurisdiction” instead of “sovereignty” in that article. 

Further dissimulation was shown by the sanitized reference to “redeployment of Israeli military forces in Judea, Samaria and the Gaza Strip” to disguise the illegal act of transferring parts of the Jewish National Home to the PLO. A spade was not called a spade. 

To understand why even the State of Israel does not believe in its own title of sovereignty 
over what are wrongfully termed “occupied territories” even by leading politicians and jurists 
in Israel, it is necessary to locate the causes in the Mandate period....

...The end result of British sabotage, misinterpretation, distortion and outright denial of what the Mandate stood for was that Jewish legal rights and title of sovereignty over the whole of Palestine as originally envisaged in the San Remo Resolution and the Mandate became so blurred, obfuscated and confused by the time the Mandate ended, it was no longer understood or held to be true. Not even the legal experts of the Jewish Agency for Palestine and the Zionist Organization asserted Jewish sovereignty over the whole country in any official paper or memorandum submitted to the British Government or to the League of Nations. 

The mutilation of the Mandate Charter was continued by the United Nations when this new world organization considered the question of Palestine. 

On August 31, 1947, the United Nations Special Committee on Palestine (UNSCOP) proposed an illegal partition plan which recognized Arab national rights in western Palestine, specifically in the areas of western Galilee, Judea, Samaria, the southern coastal plain from Ashdod to the Egyptian frontier and a portion of the western Negev including Beersheba and what became Eilat. It apparently did not occur to the members of the Committee representing eleven states headed by Swedish Chief Justice Emil Sandstrom, that the UN did not have the legal authority to partition the country in favor of the Arabs of Palestine who were not the national beneficiary of the Mandate entitled to self-determination. 

The trampling of the legal rights of the Jewish people to the whole of Palestine by the United Nations was in clear violation of the Mandate which forbade partition and also Article 80 of the UN Charter which, in effect, prevented the alteration of Jewish rights granted under the Mandate whether or not a trusteeship was set up to replace it, which could only be done by a prior agreement made by the states directly concerned. 

The illegal partition plan, with some territorial modifications made in the original majority plan presented by UNSCOP, was then approved by the General Assembly on November 29, 1947 as Resolution 181 (II). 

The Jewish Agency for Palestine, recoiling from the loss of six million Jews in the Holocaust and trying to salvage something from British misrule of Palestine, accepted this illegal Resolution. By doing so, it lent credence to the false idea that Palestine belonged to both Arabs and Jews, which was an idea foreign to the San Remo Resolution, the Mandate and the Franco-British Boundary Convention of December 23, 1920. 

The Jewish Agency should have relied on these three documents exclusively in declaring the Jewish state over all of Palestine, even if it was unable to control all areas of the country, following the example of what was done in Syria and Lebanon during World War II. 

...The gravest threat to Jewish legal rights and title of sovereignty over the Land of Israel still comes from the same source that has always fought the return of the Jews to their homeland, namely, the medley of Arabic-speaking Gentiles who inhabit the land alongside the Jews. They no longer call themselves Arabs or Syrians, but “Palestinians”. This has resulted in a switch of national identity. The Palestinians used to be the Jews during the Mandate Period, but the Arabs adopted the name after the Jews of Palestine established the State of Israel and began to be called Israelis. 

The use of the name “Palestinians” for Arabs did not take general hold until 1969 when the United Nations recognized the existence of this supposed new nation, and began passing resolutions thereafter affirming its legitimate and inalienable rights to Palestine. The whole idea that such a nation exists is the greatest hoax of the 20th century and continues unabated into the 21st century. This hoax is easily exposed by the fact that the “Palestinians” possess no distinctive history, language or culture, and are not essentially different in the ethnological sense from the Arabs living in the neighboring countries of Syria, Jordan, Lebanon and Iraq. The very name of the supposed nation is non-Arabic in origin and derives from Hebrew root letters. The Arabs of Palestine have no connection or relationship to the ancient Philistines from whom they have taken their new name. 

It is a matter of the greatest irony and astonishment that the so-called Palestinian nation has received its greatest boost from Israel itself when it allowed a “Palestinian” administration to be set up in the areas of Judea, Samaria and Gaza under the leadership of Yasser Arafat. 

The situation in which the Arabs of Palestine and the Land of Israel claim the same legal rights as the Jewish people violates the authentic international law that was created by the San Remo Resolution, the Mandate and the 1920 Franco-British Convention. 

It is part of the worldwide folly that has occurred since 1969 when the “Palestinian people” were first accorded international recognition, that authentic international law has been replaced by an ersatz international law composed of illegal UN Resolutions. The Fourth Geneva Convention of 1949 and the Hague Regulations of 1907 are acts of genuine international law, but they have no direct application or relevance to the legal status of Judea, Samaria and Gaza which are integral territories of the Jewish National Home and the Land of Israel under the sovereignty of the State of Israel. These acts would apply only to the Arab occupation of Jewish territories, as occurred between 1948 and 1967 and not to the case of Israeli rule over the Jewish homeland. The hoax of the Palestinian people and their alleged rights to the Land of Israel as well as the farce that results from citing pseudo-international law to support their fabricated case must be exposed and brought to an end. 

The Arabs of the Land of Israel have ignited a terrorist war against Israel to recover what they consider to be their occupied homeland. Their aim is a fantasy based on a gross myth and lie that can never be satisfied, since that would mean the conversion of the Land of Israel into an Arab country. It is up to the Government of Israel to take the necessary steps to remedy what has become an intolerable situation, which threatens the Jewish people with the loss of their immutable rights to their one and only homeland. 

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