To Danny Danon: A reasonable interpretation of the Palestine Mandate

This is a factual must read which imparts a clear grasp of the legal rights of the Jews to a renewed Jewish state - and where it was to be.

Wallace Edward Brand, JD,

OpEds

Forward:  Danny Danon’s new job may possibly present an opportunity to correct the bogus opinion of WT Mallison, a close friend of Henry Cattan who had been a member of the Arab Higher Committee and had represented the Arabs at the UNSCOP hearings in the late 40s.  Mallison wrote an approving foreword when Cattan wrote a book containing his version of the problems causing an Arab-Jewish conflict in Palestine and the effect of the Partition Resolution, and followed with his own book virtually copying the views of Cattan.  Prior to that book he had not been author of any book or article except for one on Naval Warfare in which he was second author.

Mallison was hired by a subdivision of the UN now entitled The Division of Palestinian rights.  He wrote an opinion claiming that Jewish Settlements outside the Green Line were illegal under international law.  This was sponsored, published, and widely distributed by what is now called the the UN Division of Palestinian Rights.  This was based on the proposition that Jewish sovereignty was based solely on the UN General Assembly Partition Resolution even though the UN General Assembly has no authority to bind the parties.

Later opinions of those supporting  Arab sovereignty also purported to be based on international law.  These included alleged conflicting regulation, conflicting with Jewish national rights, under the 4th Hague Convention and alleged prohibition of Jewish settlements under the 4th Geneva Convention.  The prohibition of a right expressly provided for and given a priority in the earlier Palestine Mandate, approved by 52 States, is hard to accept.  It seems to me the UN should be presented the Jewish People’s view of their rights under international law.

The  Zionism movement, the return of the Jewish People to their home, called Palestine after the Roman choice of name for it, was well underway prior to WWI. The war had ended in 1917.  Palestine had been under the sovereignty of the Ottoman Empire for the last 400 years.

The Jewish People were Palestine’s surviving indigenous people. It was inhabited by Jews and Arabs with Arabs in the majority.  The Jewish People initially had a monarchy there some 3500 years ago that lasted for centuries.  They  were a vassal or tributary state under several suzerains after their monarchy ended; more recently it was conquered by the Ottoman Empire after the 7th century birth of Islam.  In those last 400 years Palestine’s Arab population had no sovereignty – they had never ruled Palestine from a capital within it -- and were not even a vassal or tributary state but lived only as a majority population in one of the Ottoman Empire’s provinces. 

The Jews had continuously inhabited Palestine since the tenth century BCE. In 1917 they had a majority population of 2/3rds in the Jerusalem area but Jewish emigration over many years had left only a 1/6th Jewish minority population in all of Palestine, including part of what is now Jordan.  Prior to the Ottomans joining the Central Powers, the Ottoman Sultan refused even to meet with a representative of the Zionists. When they did meet, the Sultan was entirely negative to any form of Zionism, even if it were to be under Ottoman rule.

In November, 1914 the Ottoman Empire entered the ongoing WWI on the side of the Central Powers by attacking Russian ships.  The major Central Powers that had been Germany, the Austro-Hungarian Empire, and Bulgaria now also included the Ottoman Empire. This prompted a belief by Herbert Samuels, a British Zionist that if the Allies won WWI, there might be an opportunity for a Jewish People’s State.  He had considerable British political influence.

A barrier to immediate statehood was that the Jews, although two thirds the population in the Jerusalem area, were only about one sixth the total population of Palestine.  The remainder were largely Christian and Muslim Arabs.  Immediate statehood would have resulted in an antidemocratic government, and the relatively small number of Jews would make it difficult to command obedience of the Arabs under their rule and to defend its citizens from external aggression of the surrounding Arab states. 

Samuels proposed that until the Jewish population of Palestine became a majority, it should be annexed by Britain. 

Nothing came of Samuels’ idea until 1917 when the British War Cabinet decided it would be advantageous to Britain to win the goodwill of Russian and American Jews.  Russia had overthrown the Czar and the Bolsheviks, many of them Jewish, were in control of the government.  It was anticipated that they might pull out of WWI, making it possible to Germany to remove many of its troops from the Russian front and transfer them to the Western Front where the Allies were bogged down in trench warfare.  Also, the United States had been invited to join the Allies but so far had declined.  The British War Cabinet thought it would be useful to obtain the goodwill of American Jews that might advance their objective in getting the US to join the Allies.  The US did join the Allies — but it was likely that it was the discovery of the Zimmerman telegram, a German government telegram proposing a military alliance between Mexico and Germany, that brought them in.

Chaim Weizmann, a professor of organic chemistry at a university located in Manchester, and high in the Zionist movement, had been introduced both to David Lloyd-George, soon to become prime minister, and to Lord Balfour, soon to become British Foreign Secretary.  Weizmann had given the British the right, without payment of a royalty, to use his patent on an inexpensive way to produce acetone, an ingredient of guncotton, a major explosive in WWI.   

When the British decided to declare their policy of approval of Zionism, they asked Chaim Weizmann to supply a draft declaration that would satisfy the Zionists.  He turned to a local Manchester Zionist, Harry Sacher, for that draft.  Sacher was a lawyer but he was then employed by the Manchester Guardian as a political analyst.  A draft was ultimately approved by the British and the Zionists and published in a letter from Lord Balfour to Lord Rothschild on November 2, 1917.  The British Foreign Office published an explanation of the “Balfour Declaration” in the following month on December 19, 1917.  US President Wilson had been shown and had approved the Declaration before it was published

Sacher, just as Samuels, believed that immediate Jewish statehood would not be practical because it would be an antidemocratic government and would not be stable since the Jewish populations would be insufficient to command obedience of the Arab majority and to protect all its citizens from external  aggression .  However he was also concerned that there was a risk that the British might have a change in policy that would prevent an ultimate Jewish State so that the Jews would not obtain the collective rights to political self-determination, i.e. the national rights.  In the British Foreign Office official explanation, BFO Memo of 12/19/1917, written by Arnold Toynbee and Lewis Namier, they explained that they anticipated these collective rights to political self-determination would be placed in trust until the Jewish People had a population majority and the capability of exercising sovereignty.  Later, in 1919, Sacher published a book entitled A Jewish Palestine: the Jewish case for a British trusteeship.

In 1920 at San Remo, the Allies Principal War Powers entered into an agreement to adopt the British policy on Zionism in the treaty of peace with the Ottomans.  Lord Curzon was then the British Foreign Minister.  He was no friend of the Zionists but was fair.  He said that the decision at San Remo implicitly rejected the Arab People’s claim made at the Paris Peace Talks.

The trust that had been recommended by Sacher was incorporated in a legal instrument that was a trust agreement.  It provided that the British be entrusted with the administration of the government of the mandated territory.  A trustee such as the British, would have legal domain over the trust res, the thing placed under trust.  When the trust res is tangible personal property, legal domain would give him possession.  Where the trust res was the collective rights over political self-determination to some territory, legal domain would empower him to set up a government and administer it. 

In this case the British military had already set up a government so all the British required was the power to administer that government over the long term anticipated for the Jews to grow into a majority population.  Entrusting the British with the right of administering the government was the first provision of the Palestine Mandate, the writing that incorporated the trust and limited the discretion of the trustee. 

Its principal provision was to promote Jewish immigration to make possible an ultimate Jewish State.  (Simon Rifkind, et al, The Basic Equities in the Palestine Problem). The right to settlement in the mandated territory west of the Jordan was expressly permitted immediately but settlement east of the Jordan River was deferred.  

The Palestine Mandate  was silent within its four corners on the question of when the trust was expected to end.  This was explained by evidence of the intent of the settlors that is the lodestar to the interpretation if judicially admissible.  This evidence, displayed in an official British Foreign Office Memorandum of December 19th, 1917 explaining the Balfour Declaration published in the preceding month, showed that it was the intent to have the trust res vest in the Jewish People when it met conditions which would allow a stable democratic government, i.e. a majority Jewish population. 

Why was the draft Mandate for Palestine redrafted to expressly avoid discussing that its second step was to recognize the Jewish People Statehood?  Because the British had published the Declaration at a time when the war was ongoing.  Calling troops away from the main fight with the Central Powers, to keep order in Palestine if the Arabs were stirred up, was at all costs to be avoided.  Communications showing that the British knew it was providing for ultimate statehood for Palestine are collected in Doreen Ingrams, Palestine Papers 1917 — 1922:Seeds of Conflict.  Others have attributed the British not explaining  the significance of a trust to the Arabs to less patriotic motives.  Anthony Nutting, Balfour and Palestine: A Legacy of Deceit.  Nutting, however, was likely influenced by political bias.   Anthony Nutting resigned  from Anthony Eden’s cabinet when he found Eden was going into Suez.

The existing non-Jewish communities were to retain their individual political rights, the right to vote, etc. which are included in their civil rights.  This intent was also displayed in the Proposal for a Treaty with the Ottoman Empire, now reduced to Turkey, in an excerpt from the American Proposal of January 21, 1919 at the Paris Peace Talks.  Finally it was displayed by a news agency that was biased against the Zionists, as a summary of what the Zionists had proposed at the Peace Talks.

Overall, when the Mandates to the three territories relinquished by Turkey in the Treaty of Sevres are considered, the Arab People had been ceded Syria (then including what is now Lebanon) and Mesopotamia (now Iraq). In the Treaty of Sevres, the Mandatory was ceded Ottoman sovereignty.  That treaty was never ratified.  The cession was overtaken by events but in the succeeding Treaty of Lausanne it was ratified.  In that Treaty, Ottoman relinquishment of the territory was confirmed.  The Jewish People had been named as cestui que trust of the collective political rights to self determination in Palestine,, i.e. “the national rights”.  They did not obtain legal domain over any of the territory west of the Jordan River until 1948 when they obtained unified control over the population of the territory within the Green Line, that they had successfully defended against the aggression of the armies of the surrounding Arab States.  In 1967 they obtained unified control over the remainder of the beneficial interest, Palestine west of the Jordan.

The British thought the Arabs would be satisfied with the 99% + of Ottoman territory in the Middle East they got at San Remo.  The Arabs got even more just after San Remo but before the British  presented the Mandate trust instrument to the League of Nations. In 1921 they removed from the allocation to the Jewish People the portion of Palestine east of the Jordan.  It was only about 40% in 1921 but ended up as a whopping 78%. 

That left the Jewish People with only about 22% of the less than 1% that became Palestine.  Fifty one States, members of the League of Nations,  approved and confirmed the Mandate.  So did the United States that had not become a member of the League.  It confirmed the Mandate in a Joint Congressional Resolution signed by President Harding and a 1924 Treaty signed by President Coolidge.  The US Court of Appeals and the Supreme Court in the recent Jerusalem Passport case did not look back far enough to find that the confirmation constituted a tacit recognition of statehood of a state to be formed by the Jewish People.  (See 1933 Montevideo Convention on the Rights and Obligations of States, Article 7).  The trust was a self executing legal instrument so that it became effective without further action by the Palestine Permanent Mandates Committee once its conditions had been met.

Try as they may, the Arabs and Soviet Union have never made a showing that the Mandate trust was terminated before 1967.   They usually rely on “international law” in support of their bogus claims but the relevant facts just aren’t there.  Additionally they rely on threats of violence and actual violence.   The issue of whether Arabs or Jews have the national rights to Palestine is res judicata.




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