The Legal Aspects of Jewish Rights to a National Home in Palestine : Part Two / Eli Hertz

Political Rights in Palestine Were Granted to Jews Only

The “Mandate for Palestine” clearly differentiates between political rights—
referring to Jewish self-determination as an emerging polity—and civil and
religious rights, referring to guarantees of equal personal freedoms to non-
Jewish residents as individuals and within select communities. Not once are
Arabs as a people mentioned in the “Mandate for Palestine.” At no point in the
entire document is there any granting of political rights to non-Jewish entities
(i.e., Arabs). Article 2 of the “Mandate for Palestine” explicitly states that the
Mandatory should:
“... be responsible for placing the country under such political,
administrative and economic conditions as will secure the establishment
of the Jewish National Home, as laid down in the preamble, and the
development of self-governing institutions, and also for safeguarding the
civil and religious rights of all the inhabitants of Palestine, irrespective
of race and religion.”
Political rights to self-determination as a polity for Arabs were guaranteed by
the League of Nations in four other mandates – in Lebanon, Syria, Iraq, and later
Trans-Jordan [today Jordan].
13

International law expert Professor Eugene V. Rostow, examining the claim for
Arab Palestinian self-determination on the basis of law, concluded:
“… the mandate implicitly denies Arab claims to national political rights
in the area in favor of the Jews; the mandated territory was in effect
reserved to the Jewish people for their self-determination and political
development, in acknowledgment of the historic connection of the
Jewish people to the land. Lord Curzon, who was then the British
Foreign Minister, made this reading of the mandate explicit. There
remains simply the theory that the Arab inhabitants of the West Bank
and the Gaza Strip have an inherent ‘natural law’ claim to the area.
Neither customary international law nor the United Nations Charter
acknowledges that every group of people claiming to be a nation has the
right to a state of its own.”26 [italics by author]
Jewish Peoplehood in Palestine
It is remarkable to note the April 22, 1925 Report of the first High Commissioner
on the Administration of Palestine, Sir Herbert Louis Samuel, to the Right
Honourable L. S. Amery, M.P., Secretary of State for the Colonies’ Government
Offices, describing Jewish Peoplehood:
“During the last two or three generations the Jews have recreated in
Palestine a community, now numbering 80,000, of whom about onefourth
are farmers or workers upon the land. This community has its
own political organs, an elected assembly for the direction of its
domestic concerns, elected councils in the towns, and an organisation
for the control of its schools. It has its elected Chief Rabbinate and
Rabbinical Council for the direction of its religious affairs. Its business is
conducted in Hebrew as a vernacular language, and a Hebrew press
serves its needs. It has its distinctive intellectual life and displays
considerable economic activity. This community, then, with its town and
country population, its political, religious and social organisations, its
own language, its own customs, its own life, has in fact national
characteristics.” [italics by author]
Jerusalem in “Mandate” Time
Two distinct issues exist: the issue of Jerusalem and the issue of the Holy Places.
Cambridge Professor Sir Elihu Lauterpacht, Judge ad hoc of the International
Court of Justice and a renowned editor of one of the ‘bibles’ of international law,
International Law Reports has said:
“Not only are the two problems separate; they are also quite distinct in
nature from one another. So far as the Holy Places are concerned, the
question is for the most part one of assuring respect for the existing
interests of the three religions and of providing the necessary guarantees
of freedom of access, worship, and religious administration [E.H., as
14

mandated in Article 13 and 14 of the “Mandate for Palestine”] … As far
as the City of Jerusalem itself is concerned, the question is one of
establishing an effective administration of the City which can protect
the rights of the various elements of its permanent population—
Christian, Arab and Jewish—and ensure the governmental stability and
physical security which are essential requirements for the city of the
Holy Places.”27
The notion of internationalizing Jerusalem was never part of the “Mandate”:
“Nothing was said in the Mandate about the internationalization of
Jerusalem. Indeed Jerusalem as such is not mentioned—though the Holy
Places are. And this in itself is a fact of relevance now. For it shows that
in 1922 there was no inclination to identify the question of the Holy
Places with that of the internationalization of Jerusalem.”28
Jerusalem the spiritual, political, and historical capital of the Jewish people has
served, and still serves, as the political capital of only one nation—the one
belonging to the Jewish people.
Jerusalem, a city in Palestine, was and is an undisputed part of the Jewish
National Home.
Jewish Rights to Palestine Were Internationally Guaranteed
In the first Report of the High Commissioner on the Administration of Palestine
(1920-1925) presented to the British Secretary of State for the Colonies,
published in April 1925, the most senior official of the Mandate, the High
Commissioner for Palestine, underscored how international guarantees for the
existence of a Jewish National Home in Palestine were achieved:
“The [Balfour] Declaration was endorsed at the time by several of the
Allied Governments; it was reaffirmed by the Conference of the Principal
Allied Powers at San Remo in 1920; it was subsequently endorsed by
unanimous resolutions of both Houses of the 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.’ ”29
Far from the whim of this or that politician or party, eleven successive British
governments, Labor and Conservative, from David Lloyd George (1916-1922)
through Clement Attlee (1945-1952) viewed themselves as duty-bound to fulfill
the “Mandate for Palestine” placed in the hands of Great Britain by the League
of Nations.
15

United States Government and the “Mandate” Policy

United States President Woodrow Wilson (the twenty-eighth President, 1913-
1921) was the founder of the League of Nations for which he was awarded the
Nobel Peace Prize in 1919.
Wilson's efforts to join the Unites States as a member of the League of Nations
were unsuccessful due to oppositions in the U.S. Senate. Despite not being a
member of the League, the U.S. Government
claimed on November 20, 1920
that the participation of the United States in WWI entitled it to be consulted as
to the terms of the Mandate. The British Government agreed, and the outcome
was an agreement calling to safeguard the American interests in Palestine. It
concluded with a convention between the United Kingdom and the United
States of America, signed on December 3, 1924. It is imperative to note that the
convention incorporated the complete text of the “Mandate for Palestine,”
including the preamble!30
President Wilson was the first American president to support modern Zionism
and Britain’s efforts for the creation of a National Home for Jews in Palestine
(the text of the Balfour Declaration had been submitted to President Wilson and
had been approved by him before its publication).
President Wilson expressed his deep belief in the eventuality of the creation of a
Jewish State:
“I am persuaded,” said President Wilson on March 3rd, 1919, “that the
Allied nations, with the fullest concurrence of our own Government and
people, are agreed that in Palestine shall be laid the foundation of a
Jewish Commonwealth.”31
On June 30, 1922, a joint resolution of both Houses of Congress of the United
States unanimously endorsed the “Mandate for Palestine,” confirming the
irrevocable right of Jews to settle in the area of Palestine—anywhere between
the Jordan River and the Mediterranean Sea:
“Favoring the establishment in Palestine of a national home for the Jewish
people.
“Resolved by the Senate and House of Representatives of the United States
of America in Congress assembled. That the United States of America
favors the establishment in Palestine of a national home for the Jewish
people, it being clearly understood that nothing shall be done which
should prejudice the civil and religious rights of Christian and all other
non-Jewish
communities in Palestine, and that the holy places and
religious buildings and sites in Palestine shall be adequately protected.”32
[italics in the original]
On September 21, 1922, President Warren G. Harding (the twenty-ninth
President, 1921-1923) signed the joint resolution of approval to establish a
Jewish National Home in Palestine.
16

The “Mandate for Palestine” is Valid to This Day

The Mandate survived the demise of the League of Nations. Article 80 of the UN
Charter implicitly recognizes the “Mandate for Palestine” of the League of
Nations.
This Mandate granted Jews the irrevocable right to settle anywhere in Palestine,
the area between the Jordan River and the Mediterranean Sea, a right unaltered
in international law and valid to this day. Jewish settlements in Judea and
Samaria (i.e. the West Bank), Gaza and the whole of Jerusalem are legal.
The International Court of Justice reaffirmed the meaning and validity of Article
80 in three separate cases:
• ICJ Advisory Opinion of July 11, 1950: in the “question concerning the
International States of South West Africa.”33
• ICJ Advisory Opinion of June 21, 1971: “When the League of Nations was
dissolved, the raison d’etre [French: “reason for being”] and original object of
these obligations remained. Since their fulfillment did not depend on the
existence of the League, they could not be brought to an end merely because
the supervisory organ had ceased to exist. ... The International Court of
Justice has consistently recognized that the Mandate survived the demise of
the League [of Nations].”34
• ICJ Advisory Opinion of July 9, 2004: regarding the “legal consequences of the
construction of a wall in the occupied Palestinian territory.”35
In other words, neither the ICJ nor the UN General Assembly can arbitrarily
change the status of Jewish settlement as set forth in the “Mandate for Palestine,”
an international accord that has never been amended.
All of western Palestine, from the Jordan River to the Mediterranean Sea,
including the West Bank and Gaza, remains open to Jewish settlement under
international law.
Professor Eugene Rostow concurred with the ICJ’s opinion as to the “sacredness”
of trusts such as the “Mandate for Palestine”:
“‘A trust’—as in Article 80 of the UN Charter—does not end because the
trustee dies ... the Jewish right of settlement in the whole of western
Palestine—the area west of the Jordan—survived the British withdrawal
in 1948. ... They are parts of the mandate territory, now legally occupied
by Israel with the consent of the Security Council.”36
The British Mandate left intact the Jewish right to settle in Judea, Samaria and
the Gaza Strip. Explains Professor Rostow:
“This right is protected by Article 80 of the United Nations Charter,
which provides that unless a trusteeship agreement is agreed upon
(which was not done for the Palestine Mandate), nothing in the chapter
shall be construed in and of itself to alter in any manner the rights
whatsoever of any states or any peoples or the terms of existing
international instruments to which members of the United Nations may
respectively be parties.
17

“The Mandates of the League of Nations have a special status in
international law. They are considered to be trusts, indeed ‘sacred trusts.’
“Under international law, neither Jordan nor the Palestinian Arab ‘people’
of the West Bank and the Gaza Strip have a substantial claim to the
sovereign possession of the occupied territories.”
It is interesting to learn how Article 80 made its way into the UN Charter.
Professor Rostow recalls:
“I am indebted to my learned friend Dr. Paul Riebenfeld, who has for
many years been my mentor on the history of Zionism, for reminding
me of some of the circumstances which led to the adoption of Article 80
of the Charter. Strong Jewish delegations representing differing political
tendencies within Jewry attended the San Francisco Conference in 1945.
Rabbi Stephen S. Wise, Peter Bergson, Eliahu Elath, Professors Ben-Zion
Netanayu and A. S. Yehuda, and Harry Selden were among the Jewish
representatives. Their mission was to protect the Jewish right of
settlement in Palestine under the mandate against erosion in a world of
ambitious states. Article 80 was the result of their efforts.”37
18
“The Mandates of the League of Nations have a special status in
international law. They are considered to be trusts, indeed ‘sacred trusts.’
“Under international law, neither Jordan nor the Palestinian Arab ‘people’
of the West Bank and the Gaza Strip have a substantial claim to the
sovereign possession of the occupied territories.”
It is interesting to learn how Article 80 made its way into the UN Charter.
Professor Rostow recalls:
“I am indebted to my learned friend Dr. Paul Riebenfeld, who has for
many years been my mentor on the history of Zionism, for reminding
me of some of the circumstances which led to the adoption of Article 80
of the Charter. Strong Jewish delegations representing differing political
tendencies within Jewry attended the San Francisco Conference in 1945.
Rabbi Stephen S. Wise, Peter Bergson, Eliahu Elath, Professors Ben-Zion
Netanayu and A. S. Yehuda, and Harry Selden were among the Jewish
representatives. Their mission was to protect the Jewish right of
settlement in Palestine under the mandate against erosion in a world of
ambitious states. Article 80 was the result of their efforts.”37
18
This Land is My Land
Futile Efforts to Challenge the
“Mandate for Palestine”
Myth: The “Mandate for Palestine” is a Class “A” Mandate
There is much to be gained by attributing Class “A” status to the “Mandate for
Palestine.” If the inhabitants of Palestine were ready for independence under a
Class “A” mandate, then the Palestinian Arabs that made up the majority of the
inhabitants of Palestine in 192238 (589,177 Arabs vs. 83,790 Jews) could logically
claim that they were the intended beneficiaries of the “Mandate for Palestine”
provided one never reads the actual wording of the document:
1. The “Mandate for Palestine” document never mentions Class “A” status at any
time for Palestinian Arabs.
2. Article 2 of the document clearly speaks of the Mandatory as being:
“... responsible for placing the country under such political, administrative
and economic conditions as will secure the establishment of the Jewish
national home.”
The “Mandate” calls for steps to encourage Jewish immigration and settlement
throughout Palestine except east of the Jordan River. Historically, therefore,
Palestine was an anomaly within the Mandate system, in a class of its own –
initially referred to by the British as a “special regime.”39
Many assume that the “Mandate for Palestine” is a Class “A” Mandate, a common
but inaccurate assertion that can be found in many dictionaries and
encyclopedias, and is frequently used by the pro-Palestinian media and lately by
the ICJ. In the Court Advisory Opinion of July 9, 2004, in the matter of the
construction of a wall in the “Occupied Palestinian Territory,” the Bench
erroneously stated:
“Palestine was part of the Ottoman Empire. At the end of the First World
War, a class [type] ‘A’ Mandate for Palestine was entrusted to Great
Britain by the League of Nations, pursuant to paragraph 4 of Article 22
of the Covenant. ...”40
Indeed, Class “A” status was granted to a number of Arab peoples who were
ready for independence in the former Ottoman Empire, and only to Arab
entities.41 Palestinian Arabs were not one of these Arab peoples. The Palestine
Royal Report clarifies this point:
“(2) The Mandate [for Palestine] is of a different type from the Mandate
for Syria and the Lebanon and the draft Mandate for Iraq. These latter,
which were called for convenience “A” Mandates, accorded with the
fourth paragraph of Article 22. Thus the Syrian Mandate provided that
the government should be based on an organic law which should take
into account the rights, interests and wishes of all the inhabitants, and
that measures should be enacted ‘to facilitate the progressive


Post new comment

  • Web page addresses and e-mail addresses turn into links automatically.
  • Allowed HTML tags: <a> <em> <strong> <cite> <code> <ul> <ol> <li> <dl> <dt> <dd>
  • Lines and paragraphs break automatically.

More information about formatting options

CAPTCHA
prevent automated spam submissions.
Image CAPTCHA
Enter the characters (without spaces) shown in the image.