Occupied Territory? Try to Prove It!
Mark B. KaplanMark is the director of the Office for Israeli Constitutional Law (OFICL),...
British Foreign Secretary William Hague continues the British policy of defaming Israel by labeling construction in Jerusalem and the surrounding areas "illegal." His accusation was in response to Israel's plans to build 2,000 housing units in Jerusalem, Gush Etzion, and Maalei Adumim.
Let's see if Hague can defend himself against someone actually knows International Law and is not afraid to demand the world honor Jewish legal rights to our National Home.
(Note: Just after uploading this video, I received a letter that was forwarded to me from attorney Howard Grief, author of The Legal Foundation and Borders of Israel under International Law. It is a response to a reply someone in the UK received from the same Foreign Commonwealth Office Near East Group. Howard is always very thorough in answering letters, so this is a little long, but excellently written.)
4 Marheshvan 5772
November 1, 2011
Thanks for forwarding me the letter you received from Mr. Barry Griffiths of the “Near East Group”, who responded to your earlier letter to the British Foreign Secretary William Hague about the latter’s idiotic remark that Israel is “illegally occupying Arab lands”, upon which false assumption Mr. Griffiths bases his entire letter to you. The Griffiths letter is replete with misleading statements and nonsensical interpretations of the actual meaning of UN resolutions on the Question of Palestine and the Land of Israel. I can only deal here with some of the points he raised in his letter that, however, unfortunately represents official long-standing British thinking.
Griffiths asserts that the Mandate for Palestine, which he incorrectly terms the “Palestinian Mandate”, was awarded by the League of Nations to Britain. This statement reveals that Griffiths never read the minutes of the San Remo Peace Conference for April 24 and April 25, 1920, nor the final text of the San Remo Resolution of April 25, 1920, that resulted from that Conference, otherwise he would know that the League of Nations did not do what he says it did. It was the Supreme Council of the Principal Allied Powers that conferred or entrusted the Mandate for Palestine to Great Britain in order to create the political, administrative and economic conditions in the country to secure the establishment of the Jewish National Home and future independent Jewish State, as set out in Article 2 of the Mandate. The League, which had just come into existence only three months earlier upon the ratification of the Treaty of Versailles on January 10, 1920 and had barely begun to operate, had no role whatsoever in either conferring the Mandate upon Britain or in selecting Britain as the Mandatory Power. Before he attributes unfounded powers to that body, Mr. Griffiths can verify this important point by simply reading the Preamble to the Mandate for Palestine, particularly Recitals One and Four. He would also do well to read Lord Balfour’s statement on the subject of Mandates and the exact role played by the League in regard to them:
The Mandates are neither made by the League nor can they in substance be altered by the League… a Mandate… is imposed by the Allied and Associated Powers themselves in the interests of what they conceived to be the general welfare of mankind; and they have asked the League of Nations to assist them in seeing that this policy should be carried into effect. But the League of Nations is not the author of the policy but its instrument… (Charles H. Levermore, Third Book of the League of Nations, p. 137; cited on p. 47 of the book British Rule in Palestine by Bernard Joseph, published by Public Affairs Press, Washington DC, 1948).
Griffiths makes the astounding statement that “…the Balfour Declaration ceased to have legal effect when the UK discharged its Mandate”. Britain never executed the Mandate for Palestine in accordance with the original purpose noted above. In truth, the Balfour Declaration, as a British policy statement in 1917 that Prime Minister David Lloyd George described as a “bargain” or contract between World Jewry and Britain, was converted into a document of binding and irreversible international law by the adoption of the San Remo Resolution by the Supreme Council of the Principal Allied Powers on April 25, 1920, that subsequently became Articles 94 to 97 inclusively plus Article 132 of the Treaty of Sèvres. This Resolution, insofar as Palestine was concerned, was then incorporated into the first three recitals of the Preamble of the Mandate for Palestine, subsequently approved by all 52 members of the League in 1922 and separately by the United States. The San Remo Resolution is the founding document not only for the State of Israel under international law, but also for that of Iraq and Syria. As stated in my previous letter to you, it continues in legal force today, mutatis mutandis, contrary to what Griffiths asserts, and no action taken by the United Nations today or by Britain itself can nullify this binding act of international law upon which the State of Israel draws its legal existence. If it were otherwise, the states of Israel, Syria and Iraq would have no legal right to exist under international law, and the Ottoman Empire would not have been disbanded. For Mr. Griffiths’ information, the San Remo Resolution means that all of Palestine is Jewish land, not Arab land, and that any partition of this land is perforce illegal and null and void. For his further edification, I would advise him to read Chapter One of my book, The Legal Foundation and Borders of Israel under International Law, that discusses in detail the juridical significance and import of the San Remo Peace Conference and the San Remo Resolution on Palestine, as well as Chapter Four on the Meaning of the Balfour Declaration. He may then learn to his dismay about the existence of Jewish legal rights to all of Palestine and furthermore that such information and knowledge is stored and found in the British diplomatic archives to which he presumably has access. As a Foreign Office staffer, he certainly has a duty to be cognizant of what the British archives reveal on the Question of Palestine as it emerged in the early period before Britain adopted a different direction beginning with the ascension of Winston Churchill to the Colonial Office on February 14, 1921 and the convening of the Cairo Conference in mid-March 1921.
Griffiths then cites UN Security Council Resolution 242 regarding “the inadmissibility of the acquisition of territory by war”, a sound principle of law which, however, does not apply at all to Israel’s liberation or repossession in June, 1967 of territory that constitutes the Jewish National Home. What Griffiths fails to understand is that Israel never acquired title to Judea, Samaria and Gaza by war, and it is therefore under no obligation to withdraw from those regions that the Allied Powers accorded to or recognized as belonging to the Jewish People. As the devolee or assignee of the Jewish People, the State of Israel has inherited all the legal rights derived from the San Remo Resolution and the Mandate for Palestine that were vested in the Jewish People by the unanimous decision of the Supreme Council of the Principal Allied Powers. As a direct result of this decision, Palestine, to use Griffiths’ term, was “awarded” to World Jewry represented by the Zionist Organization to establish their National Home there with the full agreement of Britain, while the great bulk of former Ottoman territory in the Middle East (over 90%) was set aside for the Arabs for their own national self-determination. In the Six-Day War of June 1967, Israel was only recovering territories that were originally designated or intended for the Jewish State by the Principal Allied Powers. The same situation obtained when France recovered Alsace-Lorraine in 1918 from Germany that had annexed the French territory in 1871 as a result of the Franco-Prussian War in which France was soundly defeated. Would Griffiths have called Alsace-Lorraine “French-occupied Germany”, as he does for Israel’s recovery of Jewish land in the Six-Day War, and would he say that it was “inadmissible” for France to re-acquire its former territory by war?
Griffiths stands on very shaky ground when he claims that Judea and Samaria (misspelled by him as “Sumaria”) are held by Israel in “belligerent occupation”, to which the Fourth Geneva Convention applies. It is only because Griffiths and the British Foreign Office he represents are so completely ignorant of the significance of the San Remo Resolution and the provisions of the Mandate for Palestine that he can with a straight face say that the territories liberated or repossessed by Israel in 1967 are under belligerent occupation. If Griffiths were right, that would mean that such territories, i.e., Judea, Samaria and Gaza, had never been part of Mandated Palestine and the Jewish National Home.
He is also misleading regarding the position of the Israeli Supreme Court in this matter, which is more complex than what he thinks. The Court has never decided on the merits or accepted as a proven argument that Judea and Samaria are “occupied territories” under international law, but merely adopted the position of the Government of Israel, that it adjudicate all cases before it as if Judea and Samaria were governed by the laws of war embodied in the Hague Regulations and Fourth Geneva Convention, without ruling on the actual legal status of these territories. In adopting this egregious policy based on the erroneous legal advice of then Military Advocate-General Meir Shamgar, the Government of Israel violated its own constitutional law and caused foreign states to believe that this indeed was the legal status of those regions, even though, ironically enough, Shamgar himself, later President of the Supreme Court, issued a disclaimer stating that he did not consider these military administered territories to be necessarily “occupied territories”. Despite his disclaimer, he did refer to them in that incorrect sense in an article he wrote and then published in a book he himself edited (see Military Government in the Territories Administered by Israel 1967-1980: The Legal Aspects, Hemed Press [Jerusalem], Reprint Edition, 1988, pp. 13; 28; 31).
To call Judea, Samaria and Gaza the “Occupied Palestinian Territories” is not only an oxymoron but also an abuse of the English language in the service of the imperialistic Arab cause, as well as an outright denial or attempted erasure of the legal, political and diplomatic history of the Palestine Question. For Griffiths, this history only begins in 1967, which is why he and Foreign Secretary William Hague can duplicitously proclaim that Judea, Samaria and Gaza are or have been under belligerent occupation ever since that year. There is no doubt that all of the State of Israel constitutes “Palestinian territory” and that no part of former Mandated Palestine including Judea, Samaria and Gaza, whether included or not in the borders of the State of Israel can be considered Israeli “occupied territories”. If that were truly the case, such an appellation would make a mockery of the San Remo Resolution and Mandate for Palestine since, as already noted, all of Palestine was meant to be included in the Jewish State. The claim made by the British Foreign Office, especially in the wake of the illegal and now-lapsed “Oslo Accords”, that Judea, Samaria and Gaza belong to a fictitious “Palestinian Nation” that was invented circa 1969 by the Arab League with the assistance of the United Nations – is a complete falsification of international law. If Mr. Griffiths and his superiors were more honest or did more of their “homework”, both he and they would come to the same conclusion I have reached – that Judea, Samaria and Gaza are not and have never been Israeli “occupied territories”.
Britain, as the country most responsible for the adoption of the San Remo Resolution as a result of which it received the Mandate for Palestine to create the Jewish State has slipped into amnesia in regard to what it was committed to do but never did. Any facetious argument that an independent Jewish State was not the intended goal of these basic documents is belied by the evidence in the British archives and the statements made by the British and French leaders at the time of their formulation. When Foreign Secretary George Nathaniel Curzon called the San Remo Resolution the Magna Carta of the Zionists in a letter addressed to Prime Minister Lloyd George dated October 29, 1920, he spoke the absolute truth. In that letter, Curzon was certainly referring to all of the land of Palestine, including undoubtedly Judea, Samaria and Gaza.
The British Foreign Office has a duty to review its own diplomatic archives and records during the Balfour-Curzon period, to learn how Palestine came into being as the thorough Jewish National Home before it acts on the pro-Arab, anti-Zionist conception that Judea, Samaria and Gaza should become the 22nd Arab state in the world. Moreover, it should bow its head in contrition for assenting to the artificial claims of the so-called “Palestinians” to appropriate internationally recognized Jewish land for that nefarious purpose and for turning its back on the noble cause of Zionism that it once so eagerly supported when doing so suited the goals of the British Empire. No less a great British statesman as David Lloyd George accused his own country, upon hearing of the 1939 White Paper, of committing “an act of national perfidy” vis-a-vis the Jewish People for not keeping its “plighted word” to the Jews, who, he said, had honourably kept their part of the bargain to help the Allied cause in World War I (see my book, The Legal Foundation and Borders of Israel under International Law, pp. 406-408). Mr. Griffiths should reflect on Lloyd George’s condemnation of this British perfidy which continues unabated even today.
David, you have my permission to send a copy of this letter to Mr. Griffiths and to Foreign Secretary Hague, as well as the letter I wrote on the San Remo Resolution to the Prime Minister of Canada, Mr. Stephen Harper, and my letter to Ilkka Uusitalo, as you see fit. Let us hope that they will not only read these letters, but appreciate their significance.