Debunking the consensus approach to law

By Wallace E Brand

What are Israel’s Rights in Judea and Samaria? Two Views

By Avi Bell and Weiler and Zilbershats

I am mostly in agreement with Avi Bell, but I disagree completely with the “consensus” approach to determine questions of law instead of using the Judicial Process. Wellman and Zilbershats prefer the consensus approach to deciding questions of law. Wasn’t it Moses who said the Jews are a government of laws and not men? We should not take a vote to decide questions of law. We should look at the Levy Report and see if it is a sound application of legal principles to the credible historical facts at hand that are a preponderance of the evidence.

Professor Berman of Brown university came up with the “consensus” approach also.

This is my reply:

Professor Berman of Brown University, in an article in the Times of Israel entitled

“San Remo in Shilo[sic], has derided the Levy Report that parallels my own views, published as a two part op ed at Part1:
http://www.israelnationalnews.com/Articles/Article.aspx/11408

Part 2: http://www.israelnationalnews.com/Articles/Article.aspx/11412

See also this simplifying video: Debunking the Palestine Lie

Professor Berman claims my view should be ignored because it is a minority view of International Lawyers, a very small minority.

International Law by consensus is no better than science by consensus. See: Michael Crighton, Aliens Cause Global Warming. Science is done by the scientific method, by individual scientists testing hypotheses. Before Semmelweis it was the consensus that obstetricians need not wash their hands before helping a woman deliver a baby and these doctors wore their blood soaked aprons from previous births as a badge of their expertise. Infant mortality was high from puerperal fever when this consensus did their work and they gave Semmelweis a very hard time for expressing his novel views, 180 died out of 1,000. The idea conflicted with both the existing medical concepts and more importantly, with the image that doctors had of themselves — that the doctors were helping, not killing their patients. That intransigence consigned large numbers of mothers to painful, lingering deaths. The scorn and ridicule of doctors was so extreme that Semmelweis moved from Vienna and was eventually committed to a mental asylum where he died. My dermatologist recently told me that at 82, I have a thinner skin, but even though thin skinned, I can take the derision of Berman. He and his consensus are killing Israel.

Berman seems to forget we are a government of law, not a government of men. We do law by the judicial process and not by voting.

The key to understanding what was intended by the Balfour Declaration and the agreement at San Remo and the cession of Palestine in Article 95 of the Treaty of Sevres (confirmed sub silentio by the Treaty of Lausanne) is a memo of the British Foreign Office on the cusp of its publication in 1917. That was a memo dated September 19th, 1917. It has apparently been overlooked by Berman. It was issued by the British Foreign Office to respond to critics of the proposed Balfour Declaration. The chief argument of these critics was that although the Jews had had a plurality of population in Jerusalem dating from 1845 and a majority since 1863, in all of Palestine (which was what was under consideration in the grant to the Jews), the Jews had only 60,000 population out of a total population of 600,000. They argued that sovereignty by a 10% minority would be antidemocratic. Woodrow Wilson was a chief proponent of this argument. That is not a bad argument. The French gave the Alawite minority in Syria sovereignty and look at the bloody mess now. The British Foreign Office also agreed with the argument in concept, but said that as applied to the proposed Balfour policy, the antidemocratic argument was :imaginary”. This was the memo written by Arnold Toynbee (later an anti-semite) and Lewis Namier. The reason they gave that it was “imaginary” was because the political or national rights WERE TO BE GRANTED TO THE JEWS IN TRUST, not to vest until the Jews had attained a population majority and were ready to exercise sovereignty just as any other modern European nation-state. England or the US were contemplated as possible trustees.

That this prediction by Toynbee and Namier actually occurred was confirmed by Winston Churchill to a visiting delegation of Arabs following WWI, and by David Lloyd-George at the Paris Peace Conference.

What is a “mandate”? It is a thing devised by Jan Smuts and defined in Article 22 of the League Covenant or charter. It was Part I of the Paris Peace Treaty. Look at it and you will find it is intended to be based on the British legal concepts of “trust” and “guardianship”. So to understand what was done, one must think not in terms of a hard bench law court, but in terms of the woolsack, of equity jurisprudence. It then becomes perfectly clear that the intention was to give the trustee or mandatory power the legal interest in the political or national rights to Palestine, and the beneficial interest to the World Jewry. Then, by not ceding any of these rights to a Foreign Power during the period needed to build a Jewish majority population, by engaging in close settlement on the land, and by facilitating Jewish immigration for the purpose of attaining a majority population ultimately, the interest of the Jews would change from a beneficial interest to a legal interest and they could commence the exercise of sovereignty.

This framing of the grant in terms of equity jurisprudence also leads to another conclusion. That is that by volunteering to be a trustee at the meeting of April 25, 1920 at San Remo, England undertook the obligations of a trustee. These are fiduciary obligations, the obligation to put the beneficiary’s or ward’s interest before those of your own. Perfidious Albion betrayed these obligations. The people in charge changed, their interests changed, and you can see it in the British White Papers of 1922, 1928 and 1939. First Churchill urged the League of Nations to suppress close settlement by the Jews in TransJordan temporarily citing “local conditions”, then he got them to cede all of Palestine East of the Jordan River to Abdullah, a foreign power. Then it blocked the immigration of the Jews into Palestine that it, as trustee, was required by the trust document to facilitate.

Why did it do this? In the case of the change for Transjordan, it was because of its secret agreement with the French, the Sykes-Picot agreement that placed Syria in the French sphere of influence. After the war, it placed Feisal, one of King Hussein’s sons on the throne of Syria. After the Battle of Maysalun, the French deposed him. Abdullah, a more warlike son of Hussein, marched his tribe to Eastern Palestine from the Hejaz in the Arabian Peninsula and made ready to attack the French at Damascus. To remedy these problems, Churchill decided to place Feisal on the throne of Iraq, and to give Transjordan to Abdullah and his Hashemite tribe. To soften the impact of this sudden reversal, the favoring of Abdullah was initially termed as a temporary situation in a new Article 25 of the mandate as presented by England to the League for confirmation in 1922. Later the grant became a permanent grant.

When England abandoned its trust in 1948, the Jewish population of all Palestine was still only one third. However the UN initially awarded Israel those parts of CisJordan (Palestine West of the Jordan) to the Jews that had the greatest Jewish population and likely had a majority of Jews. In any event by 1950 the Jews had a population majority. And it is only reasonable that when the trustee abandons his trust, the trust res devolves to the beneficiary, even thought the tacit condition of population majority had not been fulfilled.

Berman ignores this. He wants to have law by consensus, not by judicial process. He is wrong.

One reason that Berman can boast his is the majority view, is the difficulty of disseminating the above view to those who would be interested in the subject matter. I tried doing this at a recent conference at Harvard on March 3,4, 2012 and at another one at UCLA on May 15th. I was unsuccessful in getting an opportunity at either conference. The conference at Harvard was dominated by Arab intellectuals such as Sara Makdisi and Israeli post Zionism history revisionists such as Ilan Pappe’ . Professor Alan Dershowitz referred to it in an article in NewsMax as a anti-semitic and anti-Zionist Hatefest. At UCLA there was an alleged debate between Islamic extremists Reza Aslan and Hussein Ibish.