Friday, August 28, 2015



Translations available in French, German and Italian.
Only this original English text is authoritative.


In international law, as in all law, there are always two sides to a question. If this were not the case, there would be little need for legal solutions. Moreover, both parties in any conflict believe the right is on their side, or at least that they have means to prove this to be so. Accordingly, no law is ever created in a vacuum; a law is created when a serious enough need arises.

In 1917, owing to the events of World War I, a serious need was identified and a voice was raised. The
need was that of the Jewish people, dispersed across the earth for some two thousand years, to have a
national home. The voice was that of Lord Balfour, speaking on behalf of the British War Cabinet in
defense of the Jewish people worldwide. This compelling need found official expression in the Balfour
Declaration of 1917.
The Balfour Declaration was a political statement with no legal authority; moreover, it was not international. Nonetheless it was a major turning point in the history of the dispersed Jewish people, giving them a future hope of eventually fulfilling their never dying longing for their ancient Holy Land. What it accomplished was to raise the profile, internationally, of the need of a stateless people to have a “national home” to which they could return. Of monumental significance was the official recognition of the all-important historic, religious and cultural links of the Jews to the land of their forefathers, the land that had come to be known under the Greeks and Romans as “Palestine”.

Because the cause was just and the concept justified, there needed to be a way to elevate the content of this
Declaration to the level of international law. Accordingly, the matter was taken up by the Supreme Council
of the Principal Allied and Associated Powers (Britain, France, Italy, Japan and the United States) at the
Paris Peace Conference in 1919. The issue became more complex as submissions for territorial claims
were presented by both Arab and Jewish delegations, as the old Ottoman Empire was being apportioned
out to the victorious Powers; thus the matter was not able to be settled within the time frame of the Paris
What did happen at the Paris Conference that factored into the progression of events we are considering here was the establishment of the League of Nations which, in Article 22 of its Covenant, provided for the setting up of a mandate system as a trust for the Old Ottoman territories.

The next important milestone on the road to international legal status and a Jewish national home was the San Remo Conference, held at Villa Devachan in San Remo, Italy, from 18 to 26 April 1920. This was an ‘extension’ of the Paris Peace Conference of 1919 for the purpose of dealing with some of these outstanding issues. The aim of the four (out of five) members of the Supreme Council of the Principal Allied and Associated Powers that met in San Remo (the United States being present as observer only, owing to the new noninterventionist policy of President Woodrow Wilson), was to consider the earlier submissions of the claimants, to deliberate and to make decisions on the legal recognition of each claim. The outcome, relying on Article 22 of the Covenant of the League of Nations, was the setting up of three mandates, one over Syria and Lebanon (later separated into two mandates), one over Mesopotamia (Iraq), and one over Palestine. The Mandate for Palestine was entrusted to Great Britain, as a “sacred trust of civilization” in respect of “the establishment in Palestine of a National Home for the Jewish people”. This was a binding resolution with all the force of international law.

In two out of the original three Mandates, it was recognized that the indigenous people had the capacity to
govern themselves, with the Mandatory Power merely assisting in the establishment of the institutions of

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government, where necessary. This was not true of Palestine, as Palestine was, under the Mandate, to
become a homeland (“national home”) for the Jewish people. Although the Jewish people were part of the
indigenous population of
Palestine, the majority of them at that time were not living in the Land. The
Mandate for
Palestine was thus quite different from the others and set out how the Land was to be settled
by Jews in preparation for their forming a viable nation in the territory then known as “Palestine”. The
unique obligations of the Mandatory to the Jewish people in respect of the establishment of their national
home in
Palestine thus gave a sui generis (unique, one of a kind) character to the Mandate for Palestine.
The boundaries of the “Palestine” referred to in the claimants’ submissions included territories west and east of the Jordan River. The submissions of the Jewish claimants specified that the ultimate purpose of the mandate would be the “creation of an autonomous commonwealth”, provided “that nothing must be done that might prejudice the civil and religious rights of the non-Jewish communities at present established in Palestine”. The resulting Mandate for Palestine, approved by the Council of the League of Nations in July 1922, was an international treaty and, as such, was legally binding.
The decision made in San Remo was a watershed moment in the history of the Jewish people who had been a people without a home for some two thousand years. From the perspective of Chaim Weizmann, president of the newly formed Zionist Organization and later to become the first President of the State of Israel, “recognition of our rights in Palestine is embodied in the treaty with Turkey, and has become part of international law. This is the most momentous political event in the whole history of our movement, and it is, perhaps, no exaggeration to say in the whole history of our people since the Exile.” To the Zionist Organization of America, the San Remo Resolution “crowns the British [Balfour] declaration by enacting it as part of the law of nations of the world.”
The policy to be given effect in the Mandate for Palestine was consistent with the Balfour Declaration, in
significantly recognizing the historic, cultural and religious ties of the Jewish people to the Holy Land,
and even stronger than the Declaration through the insertion of the fundamental principle that Palestine
should be
reconstituted as the national home of the Jewish people. It is particularly relevant to underline
the inclusion in the terms of the Mandate (through Article 2) of the fundamental principle set out in the
Preamble of this international agreement 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”.
The primary objective of the Mandate was to provide a national home for the Jewish people—including
Jewish people dispersed worldwide—in their ancestral home. The Arab people, who already exercised
sovereignty in a number of States, were guaranteed protection of their civil and religious rights under the
Mandate as long as they wished to remain, even after the State of Israel was ultimately formed in 1948.
Moreover, Trans-Jordan was meanwhile added as a territory under Arab sovereignty,
carved out of the
very mandated territory at issue
, by the British, prior to the actual signing of the Mandate in 1922 (see
When the Council of the League of Nations approved the Mandate for Palestine in July 1922, it became binding on all 51 Members of the League. This act of the League enabled the ultimate realization of the long cherished dream of the restoration of the Jewish people to their ancient land and validated the existence of historical facts and events linking the Jewish people to Palestine. For the Supreme Council of the Principal Allied Powers, and for the Council of the League of Nations, these historical facts were considered to be accepted and established. In the words of Neville Barbour, “In 1922, international sanction was given to the Balfour Declaration by the issue of the Palestine Mandate”.
The rights granted to the Jewish people in the Mandate for Palestine were to be given effect in all of
Palestine. It thus follows that the legal rights of the claimants to sovereignty over the Old City of
Jerusalem similarly derive from the decisions of the Supreme Council of the Principal Allied Powers in
San Remo and from the terms of the Mandate for Palestine approved by the Council of the League of
In March 1921, in Cairo, Great Britain decided to partition the mandated territory of Palestine, for
international political reasons of its own. Article 25 of the Mandate gave the Mandatory Power permission

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to postpone or withhold most of the terms of the Mandate in the area of land east of the Jordan River (“Trans-Jordan”). Great Britain, as Mandatory Power, exercised that right.
For former UN Ambassador, Professor Yehuda Zvi Blum, the rights vested in the Arab people of Palestine with respect to the principle of self-determination were fulfilled as a result of this initial partition of Palestine approved by the Council of the League of Nations in 1922. According to Professor Blum: “The Palestinian Arabs have long enjoyed self-determination in their own state - the Palestinian Arab State of Jordan”. (Worth mentioning here, in a letter apparently written on 17 January 1921 to Churchill’s Private Secretary, Col. T.E. Lawrence (“of Arabia”) had reported that, in return for Arab sovereignty in Iraq, Trans-Jordan and Syria, King Hussein’s eldest son, Emir Feisal—a man said by Lawrence to be known for keeping his word—had “agreed to abandon all claims of his father to Palestine”.)
After this partition, Churchill—British Colonial Secretary at the time—immediately reaffirmed the commitment of Great Britain to give effect to the policies of the Balfour Declaration in all the other parts of the territory covered by the Mandate for Palestine west of the Jordan River. This pledge included the area of Jerusalem and its Old City. In Churchill’s own words: “It is manifestly right that the Jews who are scattered all over the world should have a national centre and a national home where some of them may be reunited. And where else could that be but in the land of Palestine, with which for more than three thousand years they have been intimately and profoundly associated?”

Thus, in a word, the primary foundations in international law for the “legal” claim based on “historic rights” or “historic title” of the Jewish people in respect of Palestine are the San Remo decisions of April 1920, the Mandate for Palestine of July 1922, approved by the Council of the League of Nations and bearing the signatures of those same Principal Allied Powers but rendering it an international treaty binding on all Member States, and the Covenant of the League of Nations itself (Art. 22).


Many years passed from the adoption of the Mandate in 1922 to the creation of the State of Israel in 1948. An event that precipitated Israeli statehood was the vote by the UN General Assembly in 1947 for the partition of Palestine (Resolution 181 (II)), recommending the setting up of a Jewish and an Arab State in that territory. While UNGA resolutions are no more than recommendatory, with no legally binding force, the Jews accepted the partition plan, whereas the Arabs rejected it. The UK terminated its role as Mandatory Power and pulled out of the territory on 14 May 1948. On that date, to take effect at midnight, the Jews declared the State of Israel.
The following day, the armies of five surrounding Arab nations attacked the new Jewish State (Israeli War
of Independence). The Arabs unexpectedly met defeat, though Jordan illegally annexed Judea and
Samaria. Israel regained control over its mandated territory in a war of self-defense, the Six-Day War, in
1967. Despite these intervening events that have since influenced its ongoing relevance, not least of which
being the fulfillment of its primary purpose, the creation of a Jewish State, certain fundamental aspects of
the Mandate remain valid and legally binding and are highly relevant for the determination of the “core
issues” to be negotiated between the two parties on the “permanent status” (or “final status”) of Jerusalem
and the “West Bank”.
In order to get the proper perspective in considering the international legal framework surrounding the
question of a unilaterally declared
Palestinian State with the eastern part of Jerusalem as its capital, we
may need to go beyond the law,
per se, to consider the impact of public opinion on the formulation of both
customary and codified international law. Accordingly, attention should be drawn to the degree to which
equitable resolutions to the “core issues” of today’s Israeli / Arab Palestinian conflict can be exacerbated
by linguistic hyperbole, factual distortion or pure political maneuvering and calculated rhetoric. Some of
this rhetoric has a critical need to be subjected to the light of legal terminology and precision. Otherwise it
can easily lead to gross distortions of truth, which can even result in ill-advised international legal

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Take for example, the “Palestinian” identity. At the time of the San Remo decision and the resulting
Mandate for Palestine, the territory then known as “Palestine” was designated expressly for the
reconstitution” of the “national home” of the Jewish people only. While care was taken to protect the
rights of Arab inhabitants, the Jews alone were a people without a country. Indeed, this was the very
purpose of the Mandate for
Palestine and its predecessor the Balfour Declaration. At the time of the
Mandate, it would have been more accurate to refer to “Palestinian Jews” and “Palestinian Arabs” (along
with various other non-Jewish inhabitants). But because of the creation of the State of Israel, the
Palestinian Jews retained their ancient name of “Israelis” while the non-Jews (mainly but not all Arabs)
appropriated the name “Palestinians”, with the result that they are often erroneously viewed as being the
rightful inhabitants of the Land. In actual fact, the Land called “
Palestine” covers territory that the Jews
have called the “Holy Land” well before the name “Palestine” was first used by the Greeks and Romans.
The truth is that the territory known as “Palestine” has never—either since this name was applied or
before—been an Arab nation or been designated to be an Arab nation. But this nomenclature carries great
psychological impact with the inference that it is the former Arab inhabitants of
Palestine that are the true
“Palestinians” and that they alone belong in “Palestine”.
As regards the refugee question, the legal definition of “refugee” is “a person who flees or is expelled from
a country, esp[ecially] because of persecution, and seeks haven in another country”
(Black’s Law
Dictionary). The present plight of all those living in refugee camps is truly pitiable and rightfully arouses
the compassion of the world; but most Palestinians identified as “refugees” are well over a generation
away from the events that caused the foregoing generation to flee. Vast Arab lands were accorded
statehood generations ago and could easily accommodate all these most unfortunate “refugees” who have
been made a spectacle of for six decades instead of being integrated as productive members of society
among their own people.
In addition to the other San Remo mandated territories that gained statehood
Israel, and could well have absorbed their Arab brothers, Trans-Jordan was partitioned off specially
for the Palestinian Arabs in the territory originally designated for the Jewish national home. This already
furnished a legitimate ‘new State’ for the Arabs within the territory of “
Palestine”. International law has
never had to grapple with the question of the ‘inheritance’ of refugee status, such a situation being unique
in human history.
Concerning the “1967 lines”, as a point of reference for a potential new Palestinian State, there is constant
mention of withdrawal to the “1967 borders”. Firstly, this terminology is legally incorrect. The word
“borders” is generally used in international law to mean “national boundaries”, which the 1967 “lines”
most decidedly are not. The definition of a “border” under international law is “a boundary between one
nation (or a political subdivision [of that nation]) and another” (
Black’s Law Dictionary). No such national
boundaries have ever been established for the reborn State of Israel. The 1967 “lines” are purely
no-cross lines (“armistice demarcation lines”), from Israel’s 1948 War of Independence. These “lines”
have been
expressly repeated in numerous 1949 Israeli-Palestinian armistice agreements to neither
represent national borders nor prejudice the future bilateral negotiation of same. These 1949 armistice lines
remained valid until the outbreak of the 1967 Six-Day War. Linking them with the 1967 war - where lost
territory was recovered by the Israel Defense Forces, under attack - by calling them “1967 borders”
instead of 1949 armistice lines, fosters the erroneous notion that these are ill-gotten “borders”, thus highly
prejudicing the issue and its outcome. Eugene Rostow, U.S. Undersecretary of State for Political Affairs in
1967 and one of the drafters of the 1967 UN Security Council Resolution 242 on “safe and secure”
borders, stated in 1990 that it and subsequent Security Council Resolution 338 “ . . . rest on two principles,
Israel may administer the territory until its Arab neighbors make peace; and when peace is made, Israel
should withdraw to ‘secure and recognized borders,’ which need not be the same as the Armistice
Demarcation Lines of 1949”. In a word, the 1967 lines are
not “borders” at all, and this word should not be
used to create and perpetuate the impression that Israel has illegally transgressed the borders of another
state, when this is clearly not the case.
Similarly, with regard to the disputed territories, the widespread use of the words “occupied territory”
rather than “disputed territory” (which in fact it is) has a major psychological impact that can result in real
and even legal ramifications. Furthermore, this language and what it tends to connote (“belligerent
occupation”) totally ignores the international treaty language of “
reconstituted”, as contained in the

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Mandate for Palestine. Reconstituted territory precludes       “belligerent occupation”, even if permanent
national borders have yet to be negotiated. A state cannot, by definition, be a “belligerent occupying
power” in a territory that is being “reconstituted” in its name, according to the provisions of a legally
binding instrument of international law. “[O]ccupation occurs when a belligerent state invades the territory
of another state with the intention of holding the territory at least temporarily” (West’s Encyclopedia of
American Law). The territory that
Israel reclaimed in 1967 was never rightfully “the territory of another
state”, nor did Israel obtain it by war of aggression. Indeed, it was territory that had been specifically
designated for a
Jewish national home, under the legally binding Mandate for Palestine in 1922.
A close corollary is the question of settlements. The sensitivities surrounding this question are exacerbated
by the very fact that the legality/illegality of such settlements is based on factors that may not follow
prescribed international law norms but rather are complicated by the unique nature of the Israeli case. For
example, while it is often claimed that such settlements violate Article 49 of the Geneva Convention (IV),
the inclusion of this article in the Convention had a different purpose altogether than to govern
circumstances such as those existing in present-day Israel. The drafters’ intent was that of protecting
vulnerable civilians in times of armed conflict by creating an international legal instrument that would
declare as unlawful all
coerced deportation such as that suffered by over forty million Germans, Soviets,
Poles, Ukrainians, Hungarians, and others, immediately after the Second World War. In the case of Israel,
under international law as embodied in the Mandate for Palestine, Jews were permitted and even
encouraged to settle in every part of Palestine; they were not deported or forcibly transferred.
Accordingly, calling the “East Jerusalem”, Judea and Samaria Israeli settlements “illegal” is not an apt
application of the Fourth Geneva Convention.
The question of Jerusalem may be the most volatile of all. Owing to the sacredness of this city to so many,
it has become evident that the positions of Israel and the Palestinians regarding the Old City are virtually
irreconcilable. Evidence of this is the fact that it was not named in the Framework for Peace in the Middle
, agreed in the 1978 Camp David Accords between Israel and Egypt. In the latter case, Jerusalem was
indeed on the agenda, but was left out of the actual Accords, owing to the inability of the two parties to
resolve their fundamental differences on the highly loaded issue. The failure of the Camp David Summit of
July 2000 again underlined the significance of the question of
Jerusalem and its Old City.
Coming to the role of the United Nations in the current debate, it must be recalled that, according to the UN Charter, the UN General Assembly does not have the power to create legally binding decisions. General Assembly Resolutions have only the power to recommend, with no legally binding force. Therefore, were there to be a Resolution “recognizing” the “Arab Palestinians” as a political/state entity, this would not, in and of itself, constitute the creation of a State of Palestine under international law, any more than the 1947 Resolution 181 (II) (the UN Partition Plan) created the State of Israel.
Moreover there have been commitments on both sides to “permanent status” negotiations. The PLO
leadership pledged in 1993 to commit virtually all the important issues of “permanent status” to resolution
by negotiations only. Under the 1995 Interim Agreement (Oslo II), the parties undertook not to act
unilaterally to alter the status of the territories prior to the results of permanent status negotiations. It was
clearly stipulated and agreed that: “… neither side shall initiate or take any step that will change the status
of the West Bank and the Gaza strip pending the outcome of the permanent status negotiations” (emphasis
A unilaterally declared Palestinian State would therefore be in breach of commitments embodied in an
international legal instrument as well in publicly declared and published official statements and
In sum, the conflict is not a traditional conflict over borders—that is not even really the issue, as
demonstrated by the fact that national boundaries have gone so long undetermined. It is a conflict over
historic rights and the internationally recognized need of a unified ‘people’ to have a place (and territorial
space) to come ‘home’ to after some two thousand years of ‘statelessness’ and separation from the Land of
their fathers—the
only place that they call “holy” and the only Land they have ever called “home”.

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    Faisal-Weizmann Agreement Between Arabs and Jews About Palestine| 3 Jan1919

    Faisal-Weizmann Agreement Saudi Jews Agreement

    Signed on January 3rd, 1919, the Faisal-Weizmann Agreement was an agreement between Jews and Arabs who both wished to set up their own nations in the Middle East.


    During the peace conference following World War I, the Emir Feisal, son of Hussein, Sherif of Mecca, signed an agreement with Dr Chaim Weizmann (who became later the first president of Israel) supporting the rights of the Jews in Palestine. However, in a handwritten note, the agreement was made contingent by Feisal upon fulfillment by the British of their promises to Feisal. Namely, the "Arab State" that would be formed, would include Syria. The British however, were bound by the promises they had made to France in the 1916: Sykes-Picot Agreement. Syria became a French mandate and Feisal was made king of Iraq instead. Subsequently, a spokesman for Feisal announced that "His majesty does not remember having written anything of that kind with his knowledge.

    Subsequently, Weizmann averred that the Arab demands having been met, the agreement should be valid. He stated as much to the UNSCOP panel in Jerusalem:Testimony of Chaim Weizmann at UNSCOP. UNSCOP did not accept his view.

    Agreement Between Emir Feisal ibn Hussein and Dr. Weizmann | 3 Jan 1919

    His Royal Highness the Emir FEISAL, representing and acting on behalf of the Arab Kingdom of Hedjaz, and Dr. CHAIM WEIZMANN, representing and acting on behalf of the Zionist Organization. mindful of the racial kinship and ancient bonds existing between the Arabs and the Jewish people, and realising that the surest means of working out the consummation of their national aspirations is through the closest possible collaboration in the development of the Arab State and Palestine, and being desirous further of confirming the good understanding which exists between them, have agreed upon the following Articles:

    The Arab State and Palestine in all their relations and undertakings shall be controlled by the most cordial goodwill and understanding and to this end Arab and Jewish duly accredited agents shall be established and maintained in the respective territories.

    Immediately following the completion of the deliberations of the Peace Conference, the definite boundaries between the Arab State and Palestine shall be determined by a Commission to be agreed upon by the parties hereto.

    In the establishment of the Constitution and Administration of Palestine all such measures shall be adopted as will afford the fullest guarantee for carrying into effect the British Government's Declaration of the 2nd of November, 1917.

    All necessary measures shall be taken to encourage and stimulate immigration of Jews into Palestine on a large scale, and as quickly as possible to settle Jewish immigrants upon the land through closer settlement and intensive cultivation of the soil. In taking such measures measures the Arab peasant and tenant farms shall be protected in their rights and shall be assisted in forwarding their economic development.

    No regulation nor law shall be made prohibiting or interfering in any way with the free exercise of religion; and further the free exercise and enjoyment of religious profession and worship without discrimination or preference shell forever be allowed. No religious test shall ever be required for the exercise of civil or political rights.

    The Mohammedan Holy Places shall be under Mohammedan control.

  2. Jews in the Land of Israel are: indigenous - aboriginal - native - home-grown

    The legitimacy of the Zionist enterprise of returning Jews to Eretz Yisrael is based on Jewish descent from the ancient Israelites. The Jewish people has inherited their right to the land, religiously, legally, and historically, the Jewish people are the indigenous people of the Land of Israel. Jews have always looked and prayed toward Zion (Jerusalem), never relinquished their relationship to the land, and have always maintained a presence since ancient times, despite expulsions. Jews were treated as foreigners and persecuted wherever they were during their long Exile.
    Zionism was an authentic response to the persecution of Jews over millennia around the world. Jews did not come as colonizers, but rather as pioneers and redeemers of the land, and did not intend to disrupt the lives of the current inhabitants of the Land of Israel. All land for Jewish settlement was legally bought and paid for, often at inflated prices. The Arabs in Palestine-Israel are occupiers of Jewish territory just like the previous occupiers since the Jewish Second Temple Destruction by the Romans in 70 AD who named Israel - Palestine and Jerusalem - Aelia Capitolina.
    The Arabs also expelled over a million Jewish families and confiscated all their assets
    The Arabs of Palestine were not a national group and never had been. They were largely undifferentiated from the inhabitants of much of Syria, Lebanon and Jordan. They had no authentic tie to the Land of Israel. Many only came for economic opportunity after the Zionist movement began to make the land fruitful and the economy thrive. In all the years of Arab and Muslim control from the 7th century, Palestine was never a separate state and Jerusalem was never a capital.
    Zionist diplomacy legitimately sought a Great Power patron since Herzl, and found one in Great Britain. True, Britain had its own imperial agenda, but this does not detract from the righteousness of the Zionist cause. The Balfour Declaration was ratified by the San Remo treaty of 1920, confirmed by the 1920 Treaty of Sevres and Lausanne and adopted by the League of Nations, constituting a statement of international law approving a Jewish homeland in all of Palestine.
    The riots of 1920, 1929 and 1936 were instigated by unscrupulous Arab leaders for their own nefarious purposes, particularly the Mufti of Jerusalem, Hajj Amin Al Husseini. The “Palestinian” population had increased rapidly through hundreds of thousands in illegal immigration of Arabs who were attracted by Zionist economic successes, and the Arab population’s living standards rose rapidly during this period. The British frequently stood aside when Arabs murdered Jews.
    YJ Draiman