Leonard Grunstein
Leonard GrunsteinINN:BG

On July 4, 2023, the Board of Ben and Jerry’s (B&J) ice cream made headlines by declaring: “The US Was Founded on Stolen Indigenous Land-This July 4th, Let’s Commit to Returning It”.

It was a not so veiled attack on the legitimacy of the US and mockery of the national holiday celebrating the adoption of the Declaration of Independence by the Continental Congress on July, 4, 1776. The Board called for the return to the Lakota of Mount Rushmore, a US National Monument featuring the busts of Presidents George Washington, Thomas Jefferson, Abraham Lincoln and Teddy Roosevelt carved into the mountain. To add to the sanctimonious nature of the appeal, a distorted summary history was provided and pious pronouncements like ‘sacred’ were repeatedly expressed.

Left out of the presentation were a number of salient facts and a most cogent detail about B&J. It seems that its company headquarters in South Burlington, Vermont, is located on what appears to be stolen Abenaki land. Applying the same principle so cavalierly invoked by B&J when referring to Mount Rushmore, the B&J headquarters should also be returned.

It is an understatement to suggest that B&J’s attempt at virtue signaling about the return of indigenous land is hypocritical. The Talmud notes anyone who flagrantly points out the flaws in others should themselves be examined for the same flaws. The modern aphorism, expressing a similar sentiment, is that when point a recriminating finger at someone, three fingers are pointed back at the accuser.

It should also be noted that the Lakota were reportedly not the original inhabitants of the area of Mount Rushmore. They were relative newcomers, pushed westward as a result of intertribal warfare. Thus, in B&J parlance, they are also colonizers of the area.

B&J is no stranger to controversies involving matters of indigeneity. Who can forget its misbegotten effort to participate in the antisemitic BDS movement? The Israeli franchisee had to sue Unilever, including reportedly for claims that the B&J untoward actions violated the US Anti-Boycott Law. The matter was settled by directly granting the Israeli company the right to continue to sell and label its ice cream as Ben and Jerry’s in Israel, including in Judea and Samaria.

Astonishingly, B&J later sought to enjoin the settlement deal. However, it was rebuffed by the Federal Court. In essence, its perception of irreparable reputational harm because the Israeli company would sell ice cream labeled in Hebrew and Arabic as Ben and Jerry’s, in Judea and Samaria, was rejected by the Court, for good reasons.

The B&J Board was apparently not concerned about the underlying illegitimacy of their position, factually and legally, about Judea and Samaria, as detailed below, or the harm it might inflict on others. Some franchisees were reportedly negatively affected by the B&J boycott involving Israel and it appears there has also been uproar about the July 4th announcement. Unilever was also negatively affected by these machinations, as reflected in the precipitous drop in its stock price. However, like so many ideologically driven agendas, divorced from reality, this did not seem to be a determining factor in B&J’s decision-making process.

The head of B&J’s Board is Anuradha Mittal. Bloomberg news visited her office in December and reported that she has a ‘Free Palestine’ placard perched on top of a bookshelf and a framed poster hung on the wall of two so-called Palestinian men embracing by what appears to be a barbed wire fence. It says, “Support the Intifada” in Arabic. ‘Free Palestine’ means Mittal supports the elimination of the State of Israel, home to approximately seven million Jewish inhabitants.

On July 19, 2021, Mittal oversaw the issuance of a B&J statement that read: “We believe it is inconsistent with our values for Ben & Jerry’s ice cream to be sold in the Occupied Palestinian Territory”. In a tweet about Israeli Independence Day in 2018, she wrote: “The catastrophe [of the establishment of the State of Israel] continues #Nakba70 years later #palestine bleeds Boycott Divest Sanctions #israel.”

It would appear that neither B&J’s misguided use of the term “Occupied Palestinian Territory” nor its indigenous campaign is grounded in historical fact or law. It is also blatantly disingenuous to promote the concept of respecting indigenous rights in the US while baselessly and categorically rejecting the indigenous rights of the Jewish people to Israel, including Judea and Samaria.

Consider, the Jewish people are the indigenous population of the Land of Israel, including Judea and Samaria, with Jews living in the Land continuously for over 3,000 years. Islamic Arabs began colonizing the Land in the 7th century. It is fatuous to assert Jews are the occupiers, when even the Muslim Waqf, it its 1925 ‘A Brief Guide to Al-Haram Al-Sharif’, admits that Caliph Omar first occupied Jerusalem in 637 C.E. and the presence of Solomon’s Temple on the Temple Mount is undeniable.

The Bible is the oldest extant written record of title. It records, in no uncertain terms, that title to the Land of Israel is vested in the Jewish people. It even contains a survey description of the Land and Abraham did a walkthrough. It is bracing to appreciate how timeless these survey and boundary considerations are in delineating the title description. Interestingly, the Bible makes use of the term Chevel (measuring rope) in connection with the recording of Jacob’s inheritance of the Land. This unusual reference is cogent, because the Chevel was used to measure out a metes and bounds description of a parcel of land.

Title to the Land of Israel was reconfirmed again to Moses and the Jewish people, including in a more detailed description in the Book of Numbers. Indeed, as a part of Moses’ penultimate testament in the Bible, he called upon the Heavens and the Earth to bear witness to among other things that the Land of Israel was the inheritance of the Jewish people. This was to the exclusion of any other progeny of their forbearers Abraham or Isaac.

The Bible is, thus, an ancient and incomparable written record of title that shows from the beginning of the world, through Israel’s miraculous retaking of the land from the illegal occupiers, the Canaanites and since, the Jewish people’s legal title to the Land of Israel, as a fully vested inheritance, is just and right. There is no comparable source of record legal title to the Land of Israel.

In terms of International Law, the Supreme Council of Allied Powers met in San Remo, Italy, in 1920, in order to resolve claims to self-determination by various parties. The context is important. The Central Powers ceded control of portions of their Empires to the Allied Powers, under the Peace Treaties signed with them. This included the area referred to as Palestine (Israel), as well as, the areas that would become Turkey, Armenia, Iraq, Syria, Lebanon and Saudi Arabia.

Under International Law, the Supreme Council had the power to dispose of these various territories that were formerly a part of the Ottoman Empire. It was in this capacity that the Supreme Council dealt with the right of the Jewish people to the Land of Israel, based on their historic title to the Land, and to reconstitute their national home in Palestine, as an autonomous commonwealth. The Arab people also presented their claims.

The Minutes of the Meeting of the Supreme Council on the matter of Palestine (Israel) are most illuminating. They reflect that representatives of the United States, British Empire, France, Italy and Japan were present and heard presentations from Jewish as well as Arab representatives. This included a Syrian Delegation, which argued it should be a part of Syria.

The Supreme Council considered the claims of the various parties, deliberated and decided title to Palestine was vested in the Jewish people. In 1922, the Council of the League of Nations unanimously adopted the San Remo Resolution on Palestine. It thereby became an international agreement, binding on all of the member countries, which, in effect, confirmed title to Palestine (Israel) in the people of Israel, under International Law. It recited that recognition had been given to “the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country”.

There are a number of very important legal concepts embodied in this provision of the Council resolution. It effectively confirmed the Jewish people as the recognized indigenous people of Palestine for over three thousand years and, as noted above, rejected the claims of others. This absolutely demolishes the fallacious claim that Jews are just modern-day colonialists.

The Council resolution also did not purport to grant the Jewish people a newly minted right to Palestine; it recorded that recognition had been given to the “grounds for” reconstituting their national home in that country. Thus, it was a pre-existing legal right that was recognized and acknowledged. Consistent with this principle, it called for “reconstituting” the Jewish people’s national home in their homeland of Palestine, not building a new national home there, which had no prior existence.

The use of the term ‘country’ in the Council resolution is also cogent. It was no longer referred to as a geographical territory in the former Ottoman Empire; rather, Palestine was now referred to as a country. The sovereignty and legal title to the country of Palestine was vested in the Jewish people from the Jordan River to the Mediterranean. The resolution also provided a nationality law to be enacted by the Mandatory authority to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine. No similar provision was made for anyone else.

Lest there be any doubt, Article 5 of the Council’s resolution provided that “no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power”. In essence, the title to the country of Palestine granted to the Jewish people could not be revoked or granted to another. This legally includes the UN, as the successor to the League. Palestine belonged to the Jewish people. The San Remo Resolution was also a part of the Treaty of Sevres with the Ottoman Empire.

The Resolution was also endorsed in the 1924 Anglo-American Treaty on Palestine, which, as a Senate approved treaty, under the US Constitution, made it the law of the land in the US. It actually incorporated the text of the resolution of the Council of the League of Nations, referred to above and the area delineated for the reconstituted Jewish country of Palestine (Israel) was from the Jordan River to the Mediterranean Sea. Thus, under International Law and US Law, Jews have a legal right to live in Judea and Samaria.

As a matter of fact and law, there is no existing indigenous people with a superior claim to the Land of Israel than the Jewish people and it is indisputable that title to the Land of Israel is vested in the Jewish people.