Mark B. Kaplan
In memory of Howard Grief z"l, the world's foremost authority on Jewish rights to the Land of Israel under international law, I will be uploading some of his letters I have been CCd on over the years. Howard, who died on June 1, always welcomed the publication of these letters, and I hope his son Elad, who plans on helping continue Howard's monumental work, will see to it that his letters are eventually compiled into a book for release.
This first letter is dated 14 Elul 5769 (Sept 3, 2009), and was addressed to Dr. Joel Fishman of the Jerusalem Center for Public Affairs. If some of the "legaleese" gets difficult, or if your Latin is a little rusty, Google is a handy tool to have on hand.
I open the replies to discussion about Howard's letters. If your reply is too long, please feel free to send me an e-mail.
14 Elul 5769
September 3, 2009
Dr. Joel Fishman
I read the article you sent me in French, written by Michel Gurfinkiel, entitled Proche-Orient Jérusalem N’est Pas Une Colonie.
I agree with the general tenor of the article that France or the Quay d’Orsay as Gurfinkiel calls the French Government and its Foreign Office is terribly biased against Israel in establishing what it says are “des colonies en zone occupée” including “East Jerusalem” (please note that there is no such official designation), as well as Judea and Samaria. French policy under a false cover of “support” is anti-Zionist and shameful that harks back to the very establishment of the Jewish National Home under international law in 1920, as I have documented in my own book The Legal Foundation and Borders of Israel under International Law.
However, for the sake of accuracy, I would like to point out one major error in Gurfinkiel’s article that affects me personally.
Gurfinkiel refers to Professors Eugene Rostow and Julius Stone as his sources for stating the fact that “Israël n’est pas un occupant, mais un souverain légitime” in regard to the “zones conquises”, i.e. Judea, Samaria and Gaza, which in the original Israeli terminology were called the “held territories” of Eretz-Israel both in 1948 and 1967. Neither Rostow nor Stone, great jurists though they may have been, ever in fact made this assertion as Gurfinkiel says. On the contrary, Rostow said the very opposite while Stone raised it only as a possibility (p.115 of his book: Israel and Palestine: Assault on the Law of Nations - 1981). Furthermore, he stated that “in the days of the League of Nations … no conclusion emerged, despite herculean labours, as to the location of territorial sovereignty in Mandated Palestine.” (p.122)
I have read a good many of the articles written by both jurists. Rostow referred to the “held territories” as the “unallocated territories” of the Mandate for Palestine based on information he received from my late departed friend, Dr. Paul Riebenfeld of New York who originated that term. I personally told Dr. Riebenfeld more than once that this phraseology was wrong since these territories had in fact been allocated to the Jewish People at the San Remo Peace Conference on April 24-25, 1920. Rostow even believed that those territories were “occupied territories” subject to the provisions of UN Security Council Resolution 242, a far cry from saying they were under Israeli sovereignty.
Julius Stone, who was a staunch advocate of Israel, also never claimed as already noted that the “held territories” were under Israeli sovereignty. Like Rostow, he deemed them to be "residual territories” of the Mandate whose status had never been officially determined. In his excellent book he even stated that had the Arab side accepted the UN Partition Resolution of November 29, 1947, the Resolution “would then have acquired [binding] force” (p. 62 and p.101).
However, in my opinion, the UN Partition Resolution was illegal or null and void ab-initio regardless of whether “the parties at variance accepted it” (Prof. Stone, p.101) because it violated the terms of the then existing Mandate, in particular Article 5 thereof, as well as Article 80 of the UN Charter. Under the terms of the Mandate only Jews had national and political rights to the Land of Israel/Palestine, while the local Arab inhabitants enjoyed “civil and religious rights” as stated in Article 2 of the Mandate. In contravention of the Mandate, the UN illegally awarded national and political rights to the Arab population over a substantial area of Western Palestine. It is evident that since Prof. Julius Stone believed that the partition plan would have been valid had all the parties concerned accepted it, then the Jews did not enjoy sovereignty over the entire land.
In Prof. Stone’s own words (p.62), “the effect of [an Arab acceptance of the Partition Resolution had it taken place] would have been to allocate sovereign titles inter alia to Israel, the proposed new Arab state, and the proposed corpus separatum” for Jerusalem. In making this statement, Prof. Stone based himself on the principle known as pacta sunt servanda – i.e. agreements or contracts must be observed or enforced. However, this principle only applies when the agreements or contracts are not contrary to existing law. In the case of the Partition Resolution, the existing law was indeed violated, which meant that this rule did not apply to the situation, as Prof. Stone thought.
To set the record straight, I originated and advanced the thesis as far back as the mid-1980’s that all of the Land of Israel including the so-called “unallocated territories” of Judea, Samaria and Gaza was reserved exclusively for the Jewish People upon whom sovereignty was devolved under the San Remo Resolution, even though this was not explicitly stated in this Resolution itself but can be logically inferred as a natural consequence of the adoption of the Balfour Declaration as the legal basis for creating and governing Mandated Palestine in conjunction with Article 22 of the Covenant of the League of Nations. Jewish sovereignty over Palestine in the de jure sense extended to all parts of the country, even those parts that later fell under the de facto rule of Arab states. During the Mandate period, the British Government exercised the attributes of sovereignty, but was not legally vested with sovereignty over Palestine. Such sovereignty was vested only in the Jewish People, even though it was not exercisable while the British governed the country. When the Mandate period ended at midnight May14-15, 1948, sovereignty over Palestine/the Land of Israel was then transferred to the State of Israel, the legal creation of the Jewish People.
Israel’s legal case is not advanced by spreading misinformation, or in Gurfinkiel’s case, by misattributing to noted jurists what they never wrote or said.
I would appreciate it very much if you could let me know your phone numbers at home and at work so that I may contact you from time to time.