The Mandate is the foundation of Israel’s right to the land west of the Jordan River

26 Comments / 26 Comments

1. @ Nathaniel Berman:

   Part 3: Thank you for proving Jews can’t trust the world’s promises!

   (also published here w/immages:https://medium.com/@MarkVandermaas/part-3-thank-you-for-proving-jews-cant-trust-the-world-s-promises-5c1b61f7480c)

   Dear Mr. Berman:

   Thank you for advising us of your extensive experience in taking an “active part in the detailed negotiation of a large number of international agreements, treaties and conventions.” I was unaware, but am profoundly grateful for the knowledge.

   1. THE ‘RIPENING OF SELF-DETERMINATION…’

   You state:

   “There have been changes both legally and factually. The creation of the State of Israel is one of those changes; the ripening of self-determination into a general right of international law is another.”

   You are, in effect, arguing that because the Arabs chose to disrespect the international law of the Mandate For Palestine by using incessant terror and war against Jews, and because the world refused to honour and enforce it’s provisions, you believe the Arabs’ egregious lawlessness creates ‘rights’ over time that should be interpreted against the black and white law codifying the rights of their Jewish victims.

   This is outrageous, and it is immoral however ‘legal’ you and your colleagues think it may be. It again proves my point as to Jews not being able to trust the world’s promises.

   2. ‘INTERNATIONAL LAW’ VS. THE ‘RULE OF LAW’ VS. JUSTICE
   You accuse those of us who rely on the Mandate as proof of Israel’s ownership of Judea/Samaria of having ‘no respect for international law’ and of doing a ‘grave dis-service to the State of Israel.’

   In reality, it is you who have little respect for the law. You, apparently, spend your time negotiating international agreements, treaties and conventions knowing full well they can be abrogated and violated at will through the mere use of time, propaganda, violence and the refusal/inability to enforce. There is an enormous difference between ‘law’ and the ‘rule of law.’ The former cannot exist without the latter, and it is the latter for which I advocate.

   As a supporter recently wrote me: “If intervening events can simply cancel solemnly signed international treaties, e.g. San Remo-League of Nations-United Nations, then what would be the point of having them? And if simply disregarding them as passe is OK, then why should Israel be called an “occupier” for Yehudah and Shomron even if she had not had sovereign rights there to begin with?”

   Indeed, your accusation of Ted Belman and I of not believing in international law because we draw attention to the fact that the world made promises to Jews under international law that it didn’t keep is a bizarre circular argument that I turn back to you: if you believe in international law so much, why don’t you illuminate your audiences about the fact that the world didn’t keep its promises under international law which is the real reason for the alleged loss of Jewish rights under international law?

   In other words, why don’t you use your experience and knowledge to help Israel overcome the filthy accusation that she has no lawful claim to Judea and Samaria? You know full well that the Mandate, coupled with the 1967 liberation of those areas, ended the longest occupation in human history, that of land belonging to the Jewish people from time immemorial. Why not talk about the bright lights of Balfour, San Remo and the Mandate that ended this occupation, and how promises to Jews were undermined at every turn in order to cheat them out of their land?

   ‘LEGALIZING’ POLITICAL VIOLENCE: I am not a lawyer; I am a reluctant rule of law activist who quit my job to work full time to restore the law to the town of Caledonia in Ontario, Canada. Two books were written about the crisis and the successes of those of us who fought back against a police force and government refusing to protect innocent people and their property from violent militants. Militants who illegally seized a subdivision of homes under construction under the cover of bogus land claim, then terrorized innocents while the police watched and targeted the victims and their advocates (this should sound familiar!).

   We were invited to meet government lawyers where we expressed our belief that their role in the crisis was?—?for political purposes?—?to justify injustice by giving cover for refusal by police to uphold the law and our civil rights under the Charter of Rights and the Police Services Act. So, I know intimately how lawyers can allow themselves to be used to ‘legalize’ political violence.

   DR. KING ON LAW VS. JUSTICE: In his seminal Letter From Birmingham Jail, written while he was jailed for ‘parading without a permit’ in 1963, Dr. Martin Luther King wrote:

   ‘Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First Amendment privilege of peaceful assembly and protest.”

   Similarly, I would say to you: there is nothing wrong with having a body of ‘international law,’ but when it is used to try to justify the propaganda and violence of Jew-hating terrorists. and a world community’s refusal to honour an instrument that sets out critical Jewish rights, including ownership of all land west of the Jordan River, it is unjust, immoral and rotten to the core no matter what perfume of ‘legality’ one sprays on it to try to hide the stink.

   YES, PEOPLE CAN JUDGE US: Dr. King again: “We should never forget that everything Adolf Hitler did in Germany was “legal”…It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers.”

   Your position, of course, gives aid and comfort to those who would see Israel divided yet again in order to appease terrorists. That’s the difference between us. Ted and I prefer to side with truth, justice, morality and the rule of law, not the illusion of law.

   Ted and I defend the honour and dignity of the Jewish people who have been falsely accused of stealing land. As a Christian and as a human being, I seek to give aid and comfort to my Jewish brothers and sisters by helping them win the counter-propaganda war that Israel is badly losing, a war I seek to win on moral grounds.

   People can indeed judge which of us is doing Israel ‘a grave dis-service.’

   IN SUMMARY: I must point out that not one of your arguments refutes the stark black and white truth that in 1922 the world restored Jews to their ancient homeland and then refused to honour its obligations.

   There is only one question that really matters insofar as the future of Israel is concerned: Can Jews trust the world’s promises? You have, over and over again, proven my point: Jews could not trust the world’s promises in the 1922 ORIGINAL two-state solution found in the Mandate For Palestine and Note re Trans-Jordan, and they would be fools to trust promises in any new ‘solution.’

   The only realistic option, therefore, is to insist that the world acknowledge the truth of the ORIGINAL solution and institute a moratorium on all ‘peace plans’ until it does.

   It has been a pleasure debating you.

   Respectfully,
   Mark Vandermaas, Israel Truth Week

   REFERENCES:
   1. Mandate For Palestine training booklet & video
   https://medium.com/r/?url=http%3A%2F%2Fwww.israeltruthweek.org%2F%23deed

   2. Times Of Israel, Mark Vandermaas: Why Israel Is Losing The Propaganda War…And How To Win It.)
   https://medium.com/r/?url=http%3A%2F%2Fblogs.timesofisrael.com%2Fwhy-israel-is-losing-the-propaganda-war-and-how-to-win-it%2F

   3. Mark Vandermaas: Tell Bibi…GIVE THIS SPEECH! ‘Truth Before Solutions: A New Path To Peace’
   https://medium.com/r/?url=http%3A%2F%2Fwww.israeltruthweek.org%2Fblog%2Ftell-bibi-give-this-speech

2. The Mandate is not the foundation of Israel’s right. It’s the acknowledgment of that right.

   “The Palestine Mandate

   The Council of the League of Nations:

   Whereas the Principal Allied Powers have agreed, for the purpose of giving effect to the provisions of Article 22 of the Covenant of the League of Nations, to entrust to a Mandatory selected by the said Powers the administration of the territory of Palestine, which formerly belonged to the Turkish Empire, within such boundaries as may be fixed by them; and

   Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might 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; and

   Whereas 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; and…

   http://avalon.law.yale.edu/20th_century/palmanda.asp

   “…”Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.”

   From Article 22 of the League of Nations Covenant

   http://avalon.law.yale.edu/20th_century/leagcov.asp#art22

3. @ Melvyn Lipitch:
   Perhaps you missed this article.
   The 100 year betrayal of Israel by the West

4. @ Ted Belman:
   What seems missing from this discussion and is pertinent to misunderstanding of Jews rights to re-constitute their nation in the territory known as Palestine is Britain’s change of policy in performance of the Mandate. Having received the “trusteeship” of the mandate they did everything to liquidate it in clear violation of their mandatory duties. They also published 3 White Papers all of which which contradicted the terms of the mandate and which Howard Grief argues, were illegal, even the Mandate Commission complained about Britain’s conduct in performing their mandatory duties.

5. @ Nathaniel Berman:

   I guess that was sort of a compliment.

6. Many nations and people are questioning Israel’s control of its liberated territory. No one is mentioning that the Arab countries had terrorized and expelled over a million Jewish families and their children from their countries (who lived there since the time of King Solomon), The Arabs/Muslims confiscated all their assets, personal property, businesses, homes and Jewish owned Real estate for over 2,500 years. About 750,000 of the expelled Jewish families and their children of these expelled Jewish families were resettled in The Land of Israel. The Land the Arab countries confiscated from the Jewish people is over 120,000 sq. km. or 46,332 sq. miles, which is over 6 times the size of Israel, and its value today is the trillions of dollars and those expelled Jewish families and their descendants comprise over half the population of Israel.

   P.S.
   There was never an Arab-Palestinian State in The Land of Israel and there will never be – face it., once and for all
   The Ottoman land records of Palestine confirm that the Arabs did not own land, they were sharecroppers. Over 90% of the land was owned by the government the balance was owned by absentee wealthy Arabs from Lebanon who sold it to the Jews at premium prices.
   It is time to implement population transfer for all the Arabs, especially for those who create violence, riot and attack Jews and anyone else. They could be relocated to the homes and the 120,000 sq. km. of Real Estate and land owned by the million Jewish families, expelled from Arab countries or Jordan.
   YJ Draiman.

   Tell the White House official to return occupied Texas and other states to Mexico and the rest of the United States to the Indians.
   The Jews have a history with Israel going over 4,000 years. The Americans have only a few hundred years of occupation and deliberate destruction of the Indians. This applied to the European countries and Canada plus others.
   YJ Draiman.

7. @ Per:

   There is nothing radical about the legal arguments I gave in this article. Zero. It’s all well-established legal authority. If you read the article, you will see that. It simply restates the opinion of authoritative legal institutions and authorities. Moreover, this article cites little academic authority for my position, but rather, legal authorities such as the ICJ, the ICRC, etc. I could have cited a huge amount of academic authority, but this article happens not to do so. In fact, bereft of authoritative support from legal institutions, it is the pro-settler advocates who tend to cite academic writers for their position. So, your attempt to use “anti-academic” sentiment against me is completely misplaced. Did you actually read my article? I’m getting the feeling that, with the exception of Yisrael Medad, the pro-settler advocates who are attacking my article have not read a word of it.

8. @ Mark Vandermaas:

   Thanks, Mark, for these questions:

   1) the issue is not the age of the Mandate. It is the fact that there have been fundamental changes of circumstances, rendering its provisions inoperative under the Vienna Convention on the Law of Treaties and customary international law. There have been changes both legally and factually. The creation of the State of Israel is one of those changes; the ripening of self-determination into a general right of international law is another. And there are many others as well.
   2) the “national home” provisions were fulfilled, indeed fulfilled beyond their letter by the establishment of the State of Israel. I don’t know why you pro-settler advocates seem determined to under-value that momentous change in law, in history, and in the place of the Jewish people in the world. You are doing a grave dis-service to the State of Israel, as I explain in my response to Yisrael Medad on this page.
   The second half of your comment seems to be an attack on international law generally. That’s fine, if that’s your view. But then it’s simply not honest to frame your claims within the terms of an international law which you don’t respect. If you think international law is a valid discourse, you must respect its rules and institutions. It didn’t stop developing in 1922, anymore than US law did, or the law of any country. If you don’t think international law is a valid discourse, then stop advancing your claims within its terms.

9. @ Nathaniel Berman:
   But academic and political opinion about International Law should not be mistaken for International Law. Unlike you, I have over more than half a century taken active part in the detailed negotiation of a large number of international agreements, treaties and conventions. I am very familiar with radical academic interpretations of these instruments, but they very seldom add power to their rulings or validity and are sometimes a source of unnecessary international discord. I admire your argumentative creativity though. I guess it really stirs up your academic audience.

10. @ Yisrael Medad:

    Sruli! Thank you for these questions. I’ve tried to answer them as best I can for this format. By the way, since we are, by now, old friends, please feel free to use my first name, or, if you prefer, my Hebrew name, Nisan Avraham. Here are the answers, with my paragraphs numbered to correspond to yours:
    1) my reference to “current global developments” is in a paragraph that is not concerned with legal analysis as such, but rather to the place of legal argument in general international debate. If you re-read it, you will see that.
    2) It doesn’t matter where you “start,” when it comes to the Mandate. The Mandate was a binding international treaty. None of the previous texts you mention were. They are unnecessary to anyone’s legal argument, pro or con.
    3) Again, my reference to the effect of Oslo on international debate is in the intro to the article, which does not primarily concern legal analysis but are observations on the place of legal analysis in general international discussions. This is not the place for an in-depth analysis of the Olso agreements, which would take at least another whole article. Suffice it to say that nothing in the Oslo agreements should be interpreted as standing in contravention of binding general rules of international law.
    4) Please re-read the section of the article on self-determination, as well as the section on the nature of the development of norms of customary international law. You might also want to consult any standard international law treatise on the sources of international law, particularly customary international law. Customary norms go through a process known to international law as “ripening,” through practice and opinio juris (I explain this in the paper). In the case of self-determination, this was a long process, which was jump-started during World War I by a number of factors, including support by Woodrow Wilson (whom I quote in the article). Much of the postwar redrawing of the European map was guided by this principle. It became a firmly established general right of international law as a result of the sea-change in international law brought about by the growing rejection of colonialism in the ‘50s, culminating in Resolution 1514 (1960) – you can easily access that resolution on-line. There is an excellent history of the ripening of self-determination in a monograph written by Aureliu Cristescu, as well as in a number of ICJ opinions. In any case, the fact that law changes does not mean it is simply “fluid,” if by that you mean “meaningless” or “anything goes.” For example, prior to Brown v. Board of Education, the US Constitution was not interpreted as outlawing school segregation; after Brown v. Board, it is so interpreted. There is nothing unusual about changes in law, even when they are very dramatic. In the 19th century, colonialism was not only legal under international law, but much of international law was dedicated to facilitating it. It is now clearly illegal and much international law has been dedicated to undoing its effects. (Compare the status of slavery in the US). We even have a story in our tradition about the complex nature of such changes in interpreting basic documents – the famous story of Moshe Rabbeinu visiting Rabbi Akiva’s yeshiva, which I’m sure you know.
    5) You must review the sections of my article (and any standard international law treatise) on the interpretation of treaties. Under the Vienna Convention on the Law of Treaties, subsequent practice and agreement can modify the interpretation of treaty provisions, as does rebus sic stantibus.
    6) I dealt with San Remo’s legal status in the article. It wasn’t a treaty. Anyway, it’s unclear to me why you want to harp on it. There’s nothing in it that helps anyone’s argument, pro or con, that the Mandate doesn’t do. I’m baffled by the importance you seem to give it. “Zeh lo mosif ve-lo gore’a”!
    7) “Uti posseditis” is a presumption about territorial units that emerge from colonialism. It doesn’t say who will control those units – the principle of self-determination does. I really don’t think you want to foreground “uti posseditis.” If applied to the territory of the Palestine Mandate, it would harm the cause of Israel very seriously. It would mean that Palestine should have become independent as one state – and the principle of democracy and self-determination would have meant that that State in 1947 would not have been a Jewish State. There are reasons why “uti posseditis” can be said not to apply in the case of the Palestine Mandate – and the arguments in favor of it applying are extremely harmful to Israel and Zionism more generally.
    What many pro-settler advocates do not seem to realize, in this connection as in others, is that their arguments actually work to de-legitimate Israeli sovereignty, by ignoring the legal changes brought about the establishment of the State of Israel and its recognition as a Member State of the UN. By insistently going back to the pre-State period, you are actually undermining the sovereignty of the State of Israel and harming its international legitimacy. This is “anti-mamlakhtiyut” in a particularly dangerous form. It’s practically anti-Zionist, in my opinion, though I know that is not your intention.

    Your last paragraph seems to say that you don’t think Israel should be held to international legal standards. That’s fine, Sruli. But then you, and other pro-settler advocates, should stop making international legal claims. As the prophet says, “Dabru emet ish et re’ehu”

    With best wishes in advance for a Gut Yontiff,
    Nathaniel

11. @ Nathaniel Berman:
    You made a very strong case refuting what we argue is the law. I take no issue with the case you make so to that extent you won the argument. Instead I went on the offense to discredit international law. You didn’t like that you wanted the battlefield to deal with your arguments.

    Essentially, I am saying if you are right, I want nothing to do with international law. Sure we make the case for What our rights are though we are not supported by the consensus. I say, so what? International law will not win the day except to vilify Israel. International law for us is an academic discussion. It will not determine our fate. Why give you the satisfaction of wining the argument. So I went on to point out the inadequacies of international law as a way to undermine your case. What’s wrong with that?

12. @ Ted Belman:

    Thank you for proving Jews can’t trust the world’s promises, Part 2

    Hi Nathaniel,

    Thanks so very much for the response.

    1. TO YOUR FIRST POINT: While you most definitely did not use the phrase ‘too old,’ you made, in fact, a number of references that suggest the Mandate is too old to be relevant:

    a. “The Mandate and its precursor texts were written in a radically different time, before a vast array of radical factual and legal changes in the international and regional situation.”

    b. “Above all, these texts were adopted before the establishment of the internationally recognized State of Israel.”

    c. “One of the most surprising features of recent pro-settler legal argumentation is its preoccupation with three, nearly century-old, texts culminating in the establishment of the League of Nations Mandate for Palestine: the Balfour Declaration (1917), the San Remo Resolution (1920), and the Mandate for Palestine (1922).”

    2. ‘NATIONAL HOME’ PROVISIONS:

    a. Whether the ‘national home’ provisions are still valid or not is irrelevant; the Mandate is clear evidence as to the world’s intent and obligations vis a vis the Jewish people, obligations that were never honoured, a shameful betrayal that led to the murder of countless Jews.

    b. I can point out the clauses in the Mandate that make clear political rights were given only to the Jews while civil rights were given to all, and that the Zionist organization was appointed to be in charge. I could point out that the land granted to the Jewish people for the ‘reconstituting’ of their ‘national home’ corresponds nearly exactly with the ancient boundaries of Israel and included Judea & Samaria. I could point out that San Remo was not just 4 countries dividing up the Middle East on a whim with no legal basis as you seem to imply (without saying it), but the lawful results of a World War I victory over the Axis Powers, including the Ottoman Empire. (Funny how the Allies were able to redraw the borders of Europe and Arab countries surrounding Israel in the Middle East, but somehow—again—only the Jewish borders are not valid.)

    Yes, we could parse out all the legalities and history, both modern and Biblical, but there’s no need to do that. Why? Because the world already did that. The Mandate was issued by the world via the League of Nations. All the evidence and competing claims were debated and the decision was to restore the Jewish people to their homeland. I don’t have to go beyond the ‘four corners’ of the instrument. It exists and at the very least it provides documented proof that Jews did not steal anyone’s land; it was acquired lawfully with international assent and encouragement.

    c. I could again ask you to provide the document predating the Mandate issued by the world that raised the Arab claim over Judea/Samaria as superior to that of the Jews. There is none, of course, yet, you want to scrutinize the Jewish document from the world by parsing the meaning of whether a ‘national home’ means a state or not?

    d. If the Mandate’s authors meant to create a state divided into Arab and Jewish areas governed by an international commission, you should be able to show me the Article(s) in the Mandate that supports that. There are none. Show me any Article in the Mandate that supports any other conclusion, but that the world recognized the ancient Jewish state and intended to reconstitute it and that Jews should rebuild in all areas of Palestine/Israel. There are, of course…none.

    HOWEVER…AND WITH GREAT RESPECT…I think you missed the main points of my response:

    1) The more people write about legal technicalities that can be used to deny the world’s obligations to the Jewish people in the Mandate, the more proof they provide that Jews can’t trust the world’s promises. If we let today’s lawyers deny the world’s clear promises of the ORIGINAL 2-state solution in order to strip the ancient heartland of Judea/Samaria from Israel today, we can be quite sure tomorrow’s lawyers will parse the words of a NEW solution to strip out what is left of the Jewish homeland.

    2) Israel doesn’t have to win a legal war; she has to win the counter-propaganda war. In 1922 the world (not the British, not the Japanese, not the U.S., not Great Britain) restored their homeland to the Jewish people, and now it’s trying to take it away by doing what it has always done: dishonour its obligations in what was the ORIGINAL 2 state solution. It’s immoral and it’s unjust. Again, you can couch that injustice in all in the fine legal terms you wish, but the promises were made and they were not kept, and Jews died because of it. There is no reason to believe that the promises of a new ‘solution’ will be kept either, so isn’t it better that we demand the world recognize the ORIGINAL solution found in the Mandate For Palestine and Note re Trans-Jordan?

    3) We must learn from our enemies. Their success is not because of their prowess in courts of law; it is their brilliance in the battlefield of propaganda. That success comes about as a result of fabricating ‘rights’ out of thin air (with Soviet help) built on a fake ‘occupation’ narrative. ‘Rights’ that have no legal instrument similar to the Mandate For Palestine to support them. The fight for Israel’s honour, therefore, will not be won in the courts by lawyers, but in the battlefield of ideas. When the time–G-d willing–comes for the PM of Israel to declare a moratorium on solutions until the history of Israel’s land title deed from the world can be taught to Jews and declared to the world, I doubt there will be a shortage of lawyers ready to back him/her up.

    Best regards,
    Mark Vandermaas

13. Ted – why would you want to read an article about international law when you have no respect for international law? My article was directed at those who take international law seriously and wish to know the state of the law on settlements. It is not directed at those who have contempt for international law. That would be a completely different article.

14. @ Nathaniel Berman:
    Dear the Rahel Varnhagen Professor of International Affairs, Law, and Modern Culture at the Cogut Center for the Humanities at Brown University,

    Sruli here. Caveat: I hold no law degree. But I do have some training in logical thinking, political science and history so I respond to your comment. I will do that rather in shorthand.

    1. If you include a reference to “current global developments”, am I to understand that international law is a fluid concept, influenced by the vagaries of events rather than a rigorous establishing of rules? Is that what your view of int’l law is?

    2) You prefer to “start with the 1922 Mandate for Palestine” and only later return to the San Remo Conference (see below). But you still avoid or gloss over January 1919 when the understanding of the Arabs via Feisal/Weizmann was that there would be one very large Arab “State” (encompassing many of today’s “Arab countries”) and a “Palestine” which any reading of the agreement’s text is to be a Jewish state. Interestingly, the future language of San Remo and the Mandate is already there (and actually “Arab” crops up): “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…”. And you do not mention that the San Remo conference confirmed the mandate allocations of a previous First Conference of London in February 1920 and the Council of Four in March 1919. In other words, I am pointing to a long legal process of over seven years from 1915 when the subject came up in the British cabinet until the League of Nations mandate decision. That gestation period would seem to count for something in international law and should.

    3) You assert that “the 1993 Oslo agreements and their aftermath…largely encouraged”. I view that as very imprecise, fuzzy and legally non-binding language. There were agreements. What do they say? What do they not say?

    4) You assert “The Palestinians, for their part, have been recognized as a “people” with the right to “self-determination” by the U.N., most States, and the International Court of Justice [the “ICJ”, a.k.a, the “World Court”]. Under General Assembly Resolution 2625 (1970)…”, etc. So, prior to 1970, what was their legal standing? Was it comparable to the that of the Jews? What are the implications of a post-1967 “recognition”?

    5) You also point to “a growing international recognition, at least de facto, of the Green Line as the border of the State of Israel”. But that goes against the precise language of an international legally recognized document: the 1949 Rhodes Armistice Agreements, no? Is “growing” to be a legal argument that would invalidate in itself by its “nature” signed agreements?

    6) when you do get around to San Remo, you observe that “the Resolution was a statement of policy by four States, but had no independent legal significance.” It appears that you seem to think that since they were but four states involved, something is wrong. But they were the liberators of the territories of the Ottoman Empire. They were the “THE SUPREME COUNCIL OF THE
    ALLIED POWERS” as the minutes read. Int’l law, I would think, grants them rights, privileges and responsibilities.

    7) And last, to your “rebus sic stantibus” fundamental change angle. As someone else touched on the matter, the principle of Uti Possidetis Juris you do not mention, accept, debate or reject? I doubt that is because your Latin is no better than mine. Why?

    To my mind, the constant rejection by Arabs on the one hand and the active violent actions taken on the other as regards a Jewish National Home since 1920, including partition plans, compromises, treaties, arrangements, et al. would all convince me a la rebus sic stantibus that the Arabs want nothing to do with international law and therefore, Israel, too, should not be held to developing and growing standards that alter its 3000 year old character, essence, history and its rights.

15. Nice theoretical legal discussion. Why is there even a discussion?

    The Arabs (now called Palestinians) want to drive the Jews out of the Land of Israel. When the Mandate went only 2/3rds their way and they received TransJordan and not the land west of the Jordan River they tried to drive the Jews out repeatedly in terror attacks and wars.

    Israel and the Jews prevailed. So now some of the Palestinians and their friends are trying other means such as law-fare to prevail over Israel. In the international arena even if Israel were to lose a court case (which is highly uncertain) who would evict Israel from the land it controls? The answer is no-one.

    So Israel needs to apply Israeli law over Judea/Samaria starting with all Jewish Towns and the entire Jordan Valley. Many will scream but just like the world is getting used to Israeli sovereignty on the Golan Heights eventually the established facts on the ground will prevail.

    Squashing the hope of any Palestinian State and removing all the terrorists will eventually reduce the friction. Eventually
    the “Palestinian” issue will be like the Basque issue in Spain a very minor occasional irritant.

16. @ Nathaniel Berman:
    Correct. I chose not to deal with your refutation of our position. But I did recognize that you made a very strong case.

    I chose instead to find out how international law would deal with our entitlement to redress. I think that we can’t count on international law taking our issues into account and thus its failure to do so discredits it further.

    I hope you might write an article on our grievances and international law. It would make for fascinating reading.

17. Thanks for your comments, Per. However, I would urge you to study the international legal doctrines about the formation of international law and the interpretation of treaties. These are easily accessible in any standard international law treatise and in the Restatement of the Foreign Relations Law of the US, published by the American Law Institute. My article was grounded in the most well-established canons of legal analysis. Please study the doctrines about sources and treaties and then we can have an informed debate.

18. @ Nathaniel Berman:
    From reading your original article, I get an impression that some of your arguments are based on a few fashionable mistakes about the nature of International Law.
    First of all, one should not replace one’s understanding of International Law with international politics, in particular not as played out in the UN, including the ICJ. International Law is not quite as volatile, and does not easily change over time with changing political fashion. What the Jewish people gained in 1922 was an international recognition of it’s historical title to the land west of the Jordan river. Neither the League of Nations nor the UN had any authority under International Law to promise or to establish a Jewish state. The Jewish claim to this land has not since been weakened by changing political opinion in the international community. The problem has been, since 1967, that the Israeli Government has declined to take the full consequence of it’s victory over Jordan and annexed Judea and Samaria the same way, and for the same reasons, that the USSR annexed East Prussia.

19. Ted – again, if you have contempt for international law, then there’s no point in discussing its details. The question of whether international law is “really law” is an old one and has received many answers from various theorists. My article was not addressed to those questions. I wrote it, as I say in the introduction, because of the resurgence of debates about the legality of the settlements, particularly assertions by pro-settler advocates that international law is on their side. But your contempt for international law as a whole should be addressed to them no less than to me. If international law is contemptible and “mob rule,” then how can one either defend or criticize settlements in its name? Defending international law as such was not the theme of my article in any way. But if someone presents international legal arguments, then it is fair to hold them to the standards of international legal argumentation. That is what I did in my article. You raise issues about international law as a whole which have nothing to do with my article and would require a very long and separate discussion, which I can’t do in a “talkback.”

20. @ Nathaniel Berman:
    You read me wrong. I read it carefully and came to the conclusion that I am out of my depth to discuss its findings. As I understand it it relies on consensus to a large extent. I loosely called this mob rule.

    I also reject the consensus regarding whether climate change is man made and the consensus among the western elite who support globalization and the consensus of the major powers who are demanding a two state solution. To my mind they are all part of the same package.

    That is not to say that Treaties should not be observed. They should. I remember the quid from law school that international law is not international and is not law. It seems to me as a victim of international law that it denies me my independence and sovereignty.

    Both the UN and its agencies have proven themselves biased. Oil money and 1.5 billion Muslims tip the scales against Israel all the time. Israel is standing up to the Muslims who want to destroy it whereas Europe and America are caving into them. So we reject what they all demand of us.

    Rather than contend with you what international law has to say, I preferred to ask you what international law has to say about our grievances. Unfortunately you choose not to answer. A pity. I was hoping to gain some insight into what we can expect of international law on these matters, if anything.

    I await your response.

21. Sruli! Thank you for engaging with my work yet again! It is unclear to me, though, from your comment as to whether you have read my article carefully. If you had, you would see the centrality of the venerable international legal doctrine of “rebus sic stantibus” in the question of the continued validity of the Mandate provisions. If anything, your comment reinforces my arguments. Please re-read the article, especially the discussion of “rebus sic stantibus.” I await your response.

22. Ted – thank you for your response! I hope you have read my article – you do not specifically mention any of my arguments in the article, so I am unclear whether you have read it. In any case, let me point out something: you begin your comment by saying that “international law is nothing more than mob rule.” If that is your view, you should end your comment there. My article was an inquiry into the current state of international law on settlements. If you reject international law as a whole, then there really is no point in discussing its details. One way or the other: if you reject international law as a whole, there’s no point in discussing its details; if you accept it, you have to take seriously its procedures for determining its rules. Since you seem to have chosen the former view, there’s no point in entering a debate with you about the details…

23. I think that one element need be addressed. Throughout that early period of 1915-1922 and as reflected in all the documents and decisions, only the Jewish People were mentioned as the specific national grouping to merit whatever the Great Powers wished. The Balfour Declaration, Cabinet discussions, Versailles, Weizmann-Feisal Agreement, San Remo, League of Nations Mandate all referred to “Jews” and “non-Jews”, never Arabs. Were they all blind, biased, ignorant or what to have purposefully and consistently recognize Jews and not recognize Arabs?

    By the way, the “Palestinians” are even missing from UNSC 242.

24. Thank you, Nathaniel Berman, for responding to Mark on Israpundit.

    I am a lawyer by training and so can follow your dissection of the legal arguments put forward by advocates of the settlement enterprise. But I don’t have near the experience or knowledge that would enable me to stand toe to toe with you in a debate.

    In truth of fact the legal arguments are not what will determine the outcome. First of all there is no court of competent jurisdiction that could be trusted to render an unbiased verdict.

    International law is nothing more than mob rule. Israel does not want to be ruled by international consensus. No where in your article do you factor in what international law has to say about whether someone who wants to kill you, should be awarded full rights and freedom. If I held a tiger by the tail, which prevented him from attacking me, I would never let him go or allow him self determination.

    The Jews were given certain legal rights in the Mandate. As beneficiaries of that trust, they cannot be taken away from us. Many wrongs were done to us in violation of those rights the most important of which were the restrictions imposed on Jewish immigration during the mandatory period and the encouragement of Arab immigration. But for these violations of our rights the situation in 1947 would have been dramatically different. What does international law have to say about that?

    Israel was attacked my many Arab states in 1948, in 1956 and in 1967, i.e subjected to causes belli. Does international law not give us the right to keep the land conquered in such wars, the preamble to Res 242 notwithstanding.

    Jordan, after the ceasefire in 1949, destroyed Jewish communities in Jerusalem and elsewhere and drove the Jews out. This was reminiscent of the Arabs massacring Jews in Hebron and elsewhere during the Mandatory period. What does international law have to say about that? Are we not entitled to right those wrongs?

    Since the Arabs rejected Res 181, which was a recommendation only, are not the provisions of the Mandate still applicable to Judea and Samaria? Can we not view international law as a tool used by our enemies to undermine our Mandatory rights.

    What rights do the Arabs have to compete with our rights. We argue that they do not have any rights to sovereignty including the right of self determination that conflicts with our legal rights to the land.

    You argue that the right of self determination has wide support. But name me one country that gave up its sovereign territory to honour someone’s alleged right of self determination. It may be that such a right is applicable to a colonial situation but we are not colonialists. We are reconstituting what was. We have every right to do so.

    Even though most countries in the world now recognize the Palestinians as a people, they do so without regard to the the long standing international consensus on the criteria of peoplehood. The same goes for the requirements of the Montevideo Convention for statehood.

25. Salomon Benzimra published The Jewish People’s right to the land of Israel and it was reviewed on by Vic Rosenthal. He challenged Benzimra on the Issue of “national home” and BenZimra replied:

    “2. On the connection between “national home” and “state”: It was the intention of Balfour to specifically mention “state” in his Declaration, but Nahum Sokolov and other members of the Zionist Organization believed it was not prudent to talk of a “state” in 1917, while WWI was still raging and the Ottomans were not yet defeated.

    As you correctly mentioned, the Mandate for Mesopotamia clearly refers to a “state” but this document was drafted in 1920. The question then arises as to why the word “state” was not included in the Mandate for Palestine, as it was confirmed by the Council of the League in 1922.

    From the private correspondence of Balfour, it appears that as early as 1921 (and probably even earlier) Balfour interpreted the Declaration as meaning eventually the creation of a Jewish state, in opposition to Churchill’s interpretation (as reported by Sir Martin Gilbert in Winston S. Churchill: Companion Volume, Vol. 4, Part 3, April 1921-November 1922, p. 1559). U.S. President Wilson, while at the Paris Peace Conference in 1919, was also aware of the prevailing position of the League of Nations: “It will be the policy of the League of Nations to recognize Palestine as Jewish State as soon as it is a Jewish state in fact” (reported by J.C. Hurewitz in The Middle East and North Africa in World Politics: a Documentary Record, Vol. 2).

    This is precisely the point: the Jewish National Home could only turn into a democratic Jewish State when the Jewish population became large enough, which was not the case yet in the early 1920s. A decade later, even the Peel Report recognized this fact (as mentioned in my book, in the section on the Peel Commission).

    Finally, another aspect often ignored by many opponents to the Jewish State is to be found in the spirit and the letter of the fourth paragraph of Article 22 of the Covenant of the League of Nations which set up the Mandates System, specifically what is commonly known as “Class A” Mandates. The text clearly shows that for those communities which already reached a certain “stage of development”, the natural outcome of the Mandate was to set up “independent nations [once] they are able to stand alone [after the Mandatory period].” Even “Class B” Mandates (applied to less developed populations of Africa) turned ultimately into independent states. This is to say that the very institution of a Mandate for Palestine explicitly anticipated the creation of a state in due time.”

26. Dear Mark,
    Thank you for reading my article! I encourage your readers read it for themselves and form their own judgments.
    But I have to make one small correction in your presentation here. You write that I contend the Mandate is no longer in effect because it is “too old.” I did not write that, nor did I write anything equivalent. It is not a question of age.
    Rather, I described the effect of the venerable international legal doctrine of “rebus sic stantibus” [known in English as the “fundamental change of circumstances” doctrine] on the Mandate, specifically on its “Jewish national home provisions.” By the operation of that doctrine — a firmly established rule of international law in relation to the interpretation of treaties — it is quite clear that the “national home” provisions are no longer in effect. I argue this in some detail in section III of the article and I hope you re-read that section. I also caution you that harping on the “national home” provisions is actually extremely detrimental to the cause of the State of Israel – since that phrase was chosen precisely to avoid promising statehood to the Jewish people. The legal status of Israel as an internationally recognized State, a Member State of the UN, would actually be degraded by dragging it down to “national home” status.
    In any case, thank you for publicizing my work and I encourage you to re-read the relevant sections and for your readers to engage with it on their own.
    Happy Lag Ba’Omer!
    Nathaniel Berman