By Andrew Tucker
Ninety-nine years ago, on 2nd November 1917, the British Foreign Secretary Arthur James Balfour wrote a letter to Baron Rothschild, a leader of the British Jewish community, conveying the content of the decision of the British War Cabinet three days earlier. The decision was as follows:
“His Majesty’s Government views with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.”
The Balfour declaration set off a chain of events that allowed the Jewish people in the diaspora to settle in Palestine and reconstitute their own national home. On the basis of those instruments, thousands of Jewish people emigrated to Israel in the 1920’s and 1930’s (it could and should have been many more if Britain had honored its Mandate obligations), and in May 1948 the Jewish State of Israel was created.
Today, almost 100 years later, the right of the Jewish people to determine their own future is under attack. The Palestinian Authority has announced it intends to sue the British government for issuing the Balfour declaration. That is of course absurd and has no chance of success. But attacking the validity of a Jewish homeland in Palestine has significant mainstream legal support. In 2004, the most prestigious judicial body in the world, the International Court of Justice, issued its advisory opinion in the “Wall” case in which it concluded that “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.” Basically, what the court was saying was that Jews have no right to live in the old city of Jerusalem, Judea or Samaria. In fact, Jews who do so are somehow “illegal” – outside the pale of accepted norms.
This is supported by the UN General Assembly. Hundreds of Arab-sponsored resolutions have been issued by the UN General Assembly in recent decades condemning Israel’s occupation and claiming the Palestinian right to statehood in Jerusalem, Judea and Samaria.
So far the Security Council has refrained from interfering on the issue of Palestinian statehood. This may change. There is a real chance that President Obama will allow the Security Council to pass a resolution in the coming weeks effectively requiring the creation of a Jew-free State of Palestine in East Jerusalem and the West Bank.
To put this in perspective: the area that would become the state of Palestine covers the old city of Jerusalem, Judea and Samaria – precisely those parts of Palestine with which the Jewish people have the deepest and longest historical and religious connection. And together with Jordan, Jews would be excluded from living in over 75% of the territory of Palestine, that was intended by Balfour to become a Jewish homeland.
These are not abstract legal issues. For the Jewish people, their right to a safe homeland is a question of life and death. If, as the Palestinian leaders claim, and many states support them, a Palestinian state is imposed on the basis of the pre-1967 lines without adequate security measures in place, that will be the death knell for the Jewish state. This is no exaggeration. I invite you to read the Palestinian National Charter – the constitution of the body with whom Israel is to negotiate – which advocates jihad to liberate all of Palestine from the Zionists. The Hamas Charter goes even further in justifying violence to destroy the Jewish state. If Hamas, H’zbollah or – heaven forbid – Islamic State gain power in the state of Palestine, we can be sure they will attack West Jerusalem and all other Jewish centers. The result will be full-blown conflict.
The legal basis of Israel was laid in Europe
The Balfour declaration was itself just a political declaration, but it opened the way to the creation of legal rights and obligations in the subsequent years. The San Remo resolution of 25th April 1920, the Charter of the League of Nations (in particular article 22), and the Mandate for Palestine, together conveyed legal rights on the Jewish people to reconstitute their homeland in Palestine. Arguably, these instruments still give the Jewish state of Israel a valid claim to sovereignty over the whole of the West Bank – including East Jerusalem.
The Principle Allied Powers (France, Britain, Italy and Japan, together with the US) met in San Remo, Italy in April 1920 as an ‘extension’ of the Paris Peace Conference of 1919. Their aim was to consider the submissions that had been made by the Zionist and Arab leaders in Paris, to deliberate and to make decisions on the legal recognition of each claim. On 25th April, relying on Article 22 of the Covenant of the League of Nations, they decided to set up three mandates: one over Syria and Lebanon (later separated into two mandates), one over Mesopotamia (which later became Iraq), and one over Palestine.
The Mandate system was nothing short of revolutionary. Under influence of US President Woodrow Wilson, the Mandate system rejected colonialism and acknowledged the right of the indigenous peoples to govern themselves. Article 22 of the Charter states that “the well-being and development of these peoples forms a sacred trust of civilization”.
By creating the Mandate for Palestine, the Jewish people were recognized by the international community as one of those “peoples” whose well-being and development was a sacred trust of civilization.
It is arguable that the Principal Allied Powers in San Remo (Britain, France, Italy and Japan) conferred territorial sovereignty on the Jewish people over all of Palestine. They had the legal power to do so as victors in WWI.
The decision in San Remo was implemented in the Mandate for Palestine which stated that “recognition has thereby 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 three important parts of this:
a. the historical connection of the Jewish people with Palestine. The history of the Jewish people in the land, as described in the Hebrew and Christian Bible, is accurate. The League of Nations acknowledged that the Jews did live as a nation in Judea and Samaria, there was a Temple in Jerusalem.
b. the right of the Jewish people to re-constitute their national home. The Jewish national home was not something new. It was the re-establishment of their home after 2000 years of forced exile.
c. the “ground” (or right) for recognizing Jewish self-determination was the growing antisemitism in Europe. After 2000 years of Christian antisemitism and persecutions, it was finally time to allow the Jews to live in safety in the land where their nation was born.
The Mandate for Palestine was therefore different from the Mandates for Mesopotamia (Iraq) and Syria, which created rights for a population already living in the mandate territory. In contrast to those Mandates, the Jews were at the time the Mandate for Palestine was created still a minority in Palestine (about 10%), and most of the beneficiaries of the Mandate for Palestine—the Jewish people—were living outside the Mandate area. The Jewish homeland could only be effectuated by making it possible for Jews to return to and settle in the land of their forefathers. This is reflected in Article 6:
“The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.”
It is very important that the Mandate expressly protected the civil rights of non-Jews in Palestine. Article 2 stated that he Mandatory shall be responsible for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.
Continued relevance of the Mandate after 1948
The rights and obligations under the Mandate continued to have relevance after 1948:
1. It is strongly arguable that the borders of the State of Israel upon its establishment in May 1948 were determined by the international legal principle known as ‘uti possidetis juris’. Uti possidetis juris is one of the main principles of customary international law intended to ensure stability, certainty and continuity in the demarcation of boundaries. It ‘clarifies and determines the territorial boundaries of newly emerging states by providing that states emerging from decolonization shall presumptively inherit the colonial administrative borders that they held at the time of independence.’ In effect, the principle of uti possidetis juris transforms the colonial and administrative lines that existed at the moment of the birth of the new State into international boundaries.
2. Article 80 of the UN Charter (the “Palestine clause”) explicitly provided that all rights conferred on peoples prior to the UN Charter coming into effect (1945) continued to have force under the new UN regime (that replaced the League of Nations).
Arab-sponsored “lawfare” after 1967
Since the late 1960’s, the Arab nations, with support of various blocks of nations at different times, have used the UN institutions to completely undermine the effect of San Remo and the Mandate for Palestine. And they have used international law to do so. Another word for that is “lawfare”.
International law is an elusive subject. Just when you think you have grasped it, it slips through your fingers. It is not always possible to distinguish between international law and politics. But it is remarkable that in the discussion in the media and diplomatic debates about Israel and Palestine international law on this subject is apparently crystal clear: all Israeli settlements – which is just a euphemism for Jews – in the occupied territories are illegal. Every one of them.
Very rarely do you hear why this is so. When pressed, two arguments are normally made. One, Israel has “transferred” its own population into the territories which it occupied during the Six Day war in 1967. That is in breach of article 49(6) of the Fourth Geneva Convention. Second, it is argued, the “settlements” are preventing the creation of a Palestinian state.
Granted, international law has changed hugely in the last 100 years. The law of belligerent occupation has become more developed. And the right of peoples to self-determination has become more concrete. But the argument that all settlements are illegal is groundless:
• the international law of belligerent occupation probably does not apply to the West Bank as a matter of law. But even if it does, it does not make occupation illegal. It simply regulates the conduct of the “occupier”, and protects the rights of those living in the occupied territory. It does not prohibit Jews from living in the West Bank.
• The Palestinians do not have an automatic “right to statehood”.
• The mere fact of Jews living in Jerusalem or Ariel can hardly prevent the creation of a Palestinian state – any more than Arabs living in Jaffa prevents the existence of the state of Israel.
Europe’s obligations to defend the Jewish people
Modern liberal democracies are based on the rule of law. Two aspects of the rule of law are particularly important. One of those is the notion of the sovereign equality of states. The other is the notion of integrity, or faithfulness to promises. The UN Charter – the main international legal instrument today – reflects both of these principles:
• The doctrine of equality of states is expressed in the notions of state sovereignty, territorial integrity and political inviolability of states. Israel is a sovereign state, and it has just as much right to determine its existence, character, and borders as any other state. The UN and other UN member states have no right to interfere in these matters.
• The notion of integrity is expressed in the concept of the rule of law, and the legal doctrine of “pacta sunt servanda” (promises must be kept). Together, they are at the basis of the rule of law.
Europe’s abandonment of Israel and the incessant attacking of Israel in the UN in recent decades is an attack on both of the basic principles.
The Arab states, supported by many European nations, have basically hijacked the international legal order to force through a decision that not only distorted history, it threatens to undermine the very legal principles upon which the UN and all Western democracies are based. The 2004 Opinion was the ultimate expression of this abuse of international law.
The European Union is today forcing through the two-state solution as if it were a legal requirement. But the creation of a Palestinian state is no more a legal requirement than the creation of for example a state for the Kurdish people. Peoples have rights to self-determination, but they don’t have automatic rights to statehood under international law. And the United Nations and its members do not have the power to create states. Especially if to do so would infringe the security and integrity of existing States.
Similarly one-sided use of the law of belligerent occupation is a misuse of that very important body of law.
By acquiescing in the attack on the Jewish state of Israel in the name of international law, the states of Europe are not only breaching their own commitments towards the Jewish people, they are attacking the basic foundations of their own existence. It is like a kind of international legal suicide. The abuse of legal systems in the name of law ultimately leads to destruction of the rule of law and freedoms we cherish. We saw a similar thing happen in Germany on a national scale at the beginning of the 20th century. We cannot allow history to repeat itself.
Italy, Britain and France – as the Principal Allied Powers at San Remo – bear a special responsibility towards the Jewish people. Together with the other nations of Europe, they carry the “sacred trust of civilization” to ensure that the Jewish people can exist as a nation free from threats of force or terror. Maybe there is a very short window of opportunity for the nations of Europe to resist the Palestinian diplomatic tsunami, and honor the commitments they made 100 years ago to the Jewish people.
Andrew Tucker LLB (Melb) BCL (Oxford) is Executive Director of Christians for Israel International, Legal Counsel of the European Coalition for Israel and Founder of The Hague Institute for International Law Studies on Israel and the Middle East
This article is based on a presentation made at the conference “Israel – the frontier of Europe” organized by Il Foglio in Rome on 17th November 2016.