The Forgotten Legitimacy of Israel - By Barry Shaw

The Forgotten Legitimacy of Israel.

By Barry Shaw
The View from Israel
February 22, 2011

In an era in which the main battlefield against Israel is the campaign to delegitimize the very existence of the Jewish state it is of vital importance to challenge the false narratives that are being thrown into the public discourse and gradually being accepted, not by governments, but by a wider audience.

The narrative tells of a dispossessed Palestine whose rights have been usurped by colonial invaders who have conquered their land through the Zionist enterprise. They are, in is claimed, made to suffer by the imposition of a European Holocaust which has left them paying the price. Driven out of their land by Jewish interlopers the remnants have been occupied and oppressed by a brutal "˜Nazi'-like regime.

That, in a nutshell, is the Palestinian case that has resounded around the world. Magnified by its repetitive telling, it has gained ground in mainstream thinking. The Israeli response has been prevarication, ranging from reminders of biblical heritage to the opinion that Jewish Israel does not need to stake any claim for possessing its own land. The time has come to address and pronounce the legitimacy of Israel.
No country has a greater legitimacy, under international law, to exist than Israel. If Israel does not possess that legal right to sovereignty then no nation on earth can claim greater legitimacy than Israel. To fully understand this, one needs to fully understand the unfolding of modern history and the international resolutions that give Israel its full and exclusive right to sovereignty.

Current perceptions have been formed partially to defray a troublesome region of the Middle East that has seen nothing but war, terrorism, and upheavals for decades. Statements have been made and accepted, resolutions have been passed, without taking into consideration legal rulings that give clear status to disputed territories.

Central to the Israel-Palestinian issue is the matter of Jerusalem. Khaled Mashal, the Hamas representative in Damascus, said that "Jerusalem's fate will be settled by holy war." Mahmoud Abbas, the head of the Palestinian Authority, said in Bethlehem in 2009 that East Jerusalem is the capital of the state of Palestine and that this is a red line that no Arab may cross. President Obama has declared that East Jerusalem must become the capital of Palestine and Jewish settlements there are illegitimate. The Arab League has said that all the territory up to the 1967 border must go a new Palestinian state. The United Nations has stated that all the territory is not Arab but Palestinian territory. Iran says that all of Palestine must be liberated. Hizbollah's Nasrallah has declared that Palestine is part of the Islamic nation and jihad is the only way to redeem it. All these statements are false in legal terms.

To say that the West Bank is occupied is correct. It was occupied by the British as part of their obligation as a Mandated power. It is today occupied by Israel as part of the Jewish territory legally bestowed upon it by international law. To fully understand the legal implications that have been swept under the rug by interested parties let me take you back in history and show you the unfolding of events.

If you go back to the maps of Jerusalem from Roman times, when the might of Rome defeated the Jewish kingdom, you will see the outline of the Old City of Jerusalem not dissimilar to today's contours. Examining maps and lithographs throughout the ages show a remarkably similar pattern. There was virtually no construction outside the ancient walls of Jerusalem for centuries. True Jerusalem is the Old City of Jerusalem.
For those that say that there was never a Jewish Temple in Jerusalem (and this is an essential part of the Palestinian and Islamic narrative) not only defies Judeo-Christian history and heritage, it also defies concrete evidence to the contrary. One need not believe the findings of centuries of archeologists and historians to justify the claim of Jewish Jerusalem dating back to Roman times. Simply go to Rome and visit the triumphant Arch of Titus. There, carved into the stones, are scenes depicting the removal of the Jewish menorah, stolen from the Jewish Temple, being brought by Jewish slaves, defeated and exiled from their homeland, to Rome.

The prayer to return to Zion has resounded throughout many centuries, captured in liturgies and recited in prayers. "Next Year in Jerusalem" repeated year by year as a cornerstone of the Passover service in Jewish homes. The breaking of the glass at Jewish wedding ceremonies reminds the celebrating participants of the destruction of the Jewish Temple in Jerusalem. All this longing to be delivered back to an ancient homeland proves and unbreakable bond, but it does not give legal legitimacy. This came later.

Modern Zionism began in the Nineteenth Century. Moshe Hess in 1862 insisted that Jews had to keep alive the hope of the rebirth of the Jewish people and the restoration of the Jewish state. The suffering of the Jewish people in Europe throughout the years highlighted their statelessness and lack of belonging in any of the European nations. Anti-Semitism attacked them even in places that should have appreciated their contribution to society. Things were little different in Arab cultures where Jews were kept in dhimmi status when they were not being victimized and persecuted. Such anti-Semitic attacks generated the secular Theodor Herzl to understand that Jews would not find an expression of self determination and freedom except in their own country. He wrote Der Judenstaat (The Jewish State) and became the first international public diplomat for the Jewish cause that became Zionism.

Herzl died and Chaim Weitzman took over the mantle of the Zionist cause. His work led to the famous Balfour Declaration which declared;

Foreign Office, November 2nd, 1917.

Dear Lord Rothschild,

I have much pleasure in conveying to you, on behalf of His Majesty's Government, the following declaration of sympathy with Jewish Zionist aspirations which has been submitted to, and approved by, the Cabinet.

"His Majesty's Government view 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 the 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".

I should be grateful if you would bring this declaration to the knowledge of the Zionist Federation.
Yours sincerely,

(Signed) Arthur James Balfour

This was a pledge from the British Government to support the creation of a Jewish National Home in Palestine, given in 1917 at the time of the fall of the Ottoman Empire. Those that say that the British did not have the right to give what was not theirs to give would be correct. The Balfour Declaration was not a legally binding document.
Everything turned around from a legal standpoint in 1919. The Paris Peace Conference at the Quai d'Orsay was the setting where all the claimants to territories held by the Ottomans could state their case before the principle Allied Powers. For six months different parties put their claims for parts of the post Ottoman territories. Concentrating on the Arab and Jewish claims, the Arabs were led by the Hashemite family, father and three sons. The Jewish claim was put by the Zionists led by Chaim Weitzman. Feisal met with Weitzman in Paris and they entered into an agreement. They agreed that the Jewish and Arab claims were national and not imperialist. The Arabs wanted a large contiguous Arab state. The division of land to be agreed was that the Jews would receive Palestine from the Mediterranean Sea and including what is today Jordan, and the Arabs would receive the Arab Peninsular and what is today Syria, Lebanon, and Iraq (Mesopotamia at that time).They wanted this large tract of territory so much that they were willing to support the Jewish claim in respect of Palestine. Feisal went so far as to write in a letter to Felix Frankfurter, President of the Zionist Organisation of America, on March 3, 1919,
"The Arabs, especially the educated among us, look with the deepest sympathy on the Zionist movement. Our deputation here in Paris is fully acquainted with the proposals submitted yesterday by the Zionist Organization to the Peace Conference, and we regard them as moderate and proper."
Both Feisal and Weitzman determined to work jointly for the mutual development of both the Arab and the Jewish states;
Agreement Between Emir Feisal and Dr. Weizmann 3 January, 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 realizing that the surest means of working out the consummation of their natural 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:

* Article I

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.

* Article II

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.

* Article III

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

* Article IV

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 the Arab peasant and tenant farmers shall be protected in their rights and shall be assisted in forwarding their economic development.

* Article V

No regulation or 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, shall forever be allowed. No religious test shall ever be required for the exercise of civil or political rights.

* Article VI

The Mohammedan Holy Places shall be under Mohammedan control.

* Article VII

The Zionist Organization proposes to send to Palestine a Commission of experts to make a survey of the economic possibilities of the country, and to report upon the best means for its development. The Zionist Organization will place the aforementioned Commission at the disposal of the Arab State for the purpose of a survey of the economic possibilities of the Arab State and to report upon the best means for its development. The Zionist Organization will use its best efforts to assist the Arab State in providing the means for developing the natural resources and economic possibilities thereof.

* Article VIII

The parties hereto agree to act in complete accord and harmony on all matters embraced herein before the Peace Congress.

* Article IX

Any matters of dispute which may arise between the contracting parties hall be referred to the British Government for arbitration.
Given under our hand at London, England, the third day of January, one thousand nine hundred and nineteen
Chaim Weizmann and Feisal Ibn-Hussein.

Feisal did make one reservation that his agreement was pending on the Arab independecne in other territories being honoured by the British Secretary of Foreign Affairs. More of this later.
The Allied Powers, representing the United States of America, Great Britain, France, Italy, and Japan, met to listen to all the claims to territory. It is important at this stage to point out that there was no Palestinian delegation. There was no Arab claim to Palestine. It was clear to the Jewish representatives that, given the hope that they would be awarded Palestine on which to re-establish the Jewish National Home, they did not have the funds, the infrastructure in place, the immediate manpower, to fully and immediately create a nation. They were aware that this venture needed to be nurtured and developed over time. Palestine had to be given the political, administrative, economic conditions to ensure the modern establishment of the Jewish National Home and ultimately render possible the creation of an "autonomous Commonwealth."
There was no decision taken in Paris. They decided to reconvene in San Remo, Italy, not to accept any new claimants but to decide on the applications received in Paris.
According to the minutes taken at the San Remo Conference at the Villa Devachan on April 25, 1920, it was agreed that;
The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, 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 wording of this resolution reflect accurately the text of the Balfour Declaration on 1917. This, in effect, converted the Balfour Declaration into a binding legal document. It was no longer the whim of a British Government with no rights but now incorporated into international law by the Supreme Council of the Principal Allied Powers. There is no veracity to the notion that such a body has no right to initiate internationally binding laws. One only has to look at many other binding decrees by other Principle Allied Powers in other stages of recent history to see that such an instrument is, indeed, legally binding.
The Balfour Declaration was adopted at San Remo for the Mandated administration of Palestine. Borders were not fixed at San Remo but an order was given that historical cartographer, George Adam Smith, should delineate the boundaries according to the ancient biblical outlines. They were later used by General Allenby and David Lloyd George to define the territory of Palestine.
The Mandated areas of Syria and Mesopotamia were also approved at San Remo. It is also most significant to stress that Israel does not draw its legal existence solely out of the United Nations Partition Plan Resolution on 1947 but from the San Remo Resolution which led to the Treaty of Sevres and then confirmed and legally stamped at the League of Nations in 1922.

The clauses of the San Remo Declaration were inserted into the Treaty of Sevres four months later on August 20, 1920 which legally vested the administration of the various territories into Mandatory powers. It is important to note that no specific people or nation were defined with regard to the administration of the Mandated Syrian and Mesopotamian regions. Those areas only referred to "people of the area." It was only the Mandate of Palestine, in Article 2, that specifically noted that the territory was to be for the Establishment of the National Home of the Jewish People "as laid down in the preamble", and the development of self-governing institutions. This is highly significant. The preamble becomes a key component of international law;
"Whereas recognition has thereby been given to the historic connection of the Jewish people within Palestine and to the grounds for re-constituting their national home in that country."

Were the legally granted territorial rights of the Jewish People honoured by the Prinicipal Allied Powers? No. Winston Churchill placated the Hashemites by carving a huge chunk out of the Mandated Palestine designated to become the new Jewish state and appended it to Emir Feisal to become Trans-Jordan.
Weitzman explained in 1947, "A postscript was also included in this treaty. This postscript relates to a reservation by King Feisal that he would carry out all the promises in this treaty if and when he would obtain his demands, namely, independence for the Arab countries. I submit that these requirements of King Feisal have at present been realized. The Arab countries are all independent, and therefore the condition on which depended the fulfillment of this treaty, has come into effect. Therefore, this treaty, to all intents and purposes, should today be a valid document."

The San Remo Declaration and the Treaty of Sevres were confirmed unanimously by the fifty one states at the League of Nations on July 24,1922. The unanimous declaration repeated the text of the Balfour Declaration, the San Remo Resolution and the Treaty of Sevres, namely;
"Whereas recognition has 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 Mandate for Palestine became international law. The right of legal ownership of Palestine, the right of sovereignty, was legally and invested in the Jewish people.
Article 2 of the League of Nations Palestine Mandate states;
"The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion."
Article 4 states;
"An appropriate Jewish agency shall be recognized as a public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population of Palestine and, subject always to the control of the Administration to assist and take part in the development of the country."
An abbreviated addition to Article 4 states;
"The Zionist Organisation shall be recognized as such agency. It shall take steps to secure the co-operation of all Jews who are willing to assist in the establishment of the Jewish national home."
Articles 5 and 6 are particularly important in the current circumstances. They clearly state;
"The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign power."
"The Administration of Palestine...shall encourage, in co-operation with the Jewish agency...close settlement by Jews on the land, including State lands and waste lands not required for public purposes."

When the Mandatory administration passed into the hands of the State of Israel, the restriction of not allowing any ceding or leasing of any territory to any foreign power could be defined as including a Palestinian Authority that had no existence at the time of the enacting of this international law and, therefore, could be construed as being a new foreign power.
The second clause clearly gives legal rights for the Jews of Israel to establish settlements of all lands defined as Palestine, the national home of the Jewish people. It certainly contradicts all claims that Jewish settlement is illegal.
This, in itself, gives sufficient grounds to prove that Israel possesses exclusive sovereignty rights to the territory under international law, a law that has not been rescinded since. But there is more, much more, that strengthens Jewish legitimacy to all the territory that was known as Palestine.

With the violent objection of the Arabs to the Jewish progress towards statehood and self determination in Palestine and what was to become the Jewish State of Israel, The United Nations decided to impose a partition plan on the parties, thereby reducing the land legally granted under international law to the Jewish people. On November 29, 1947 the General Assembly of The United Nations passed Resolution 181 that would divide the territory of what was left of Palestine into Jewish and Arab states. Reluctantly Israel agreed to the unfavourable decision. The Arabs rejected the proposal. However, war broke out and the partition plan was never implemented by the Security Council. On March 5, 1948, the United Nations Security Council reached an impasse when it refused to pass a resolution which would have accepted the partition plan as a basis for Security Council action.
It is worth pointing out that for any United Nations Resolution to be enacted into law it must pass into the Security Council and be voted on. Resolution 181 reached an empasse when it reached the Security Council on March 5, 1948. They refused to vote on the Resolution effectively making the partition proposal null and void. UN Resolution 181 therefore, has no relevance in international law despite all claims to the contrary. All statements denouncing Israel's "illegal" construction is incorrect. Similarly, all statements claiming that Palestinians have legal or sovereign rights to any of the territory are legally incorrect.
The rejection of UN Resolution 181, and its failure to progress in the Security Council, leaves the League of Nations 1922 law in effect to this day.

The Jewish people have never renounced their rights to Jerusalem. They have never formally abandoned their rights to title and sovereignty. The Jewish people have the legal right to live and remain in every part of the territory which was part of the Mandated territory of Palestine, now Israel. They have the right to give up what is legally theirs, but they cannot be forced out. Any other claim to legal title is fraudulent and has no standing in international law that can replace the existing Jewish claim. Nations may refuse to accept Israel's legitimate rights because of other political or vested interests but these defy Jewish justice and legitimacy. Neither is it possible to retroactively apply legal principles that remove prior standing in international law. The nations have reneged on the obligation they embraced at the 1922 League of Nations. Under the law of nations, under international law, Israel has a solid, valid, claim which ought to be honoured by the nations of the world today.

It is quite appalling that successive Israeli governments have failed to impose Israel's clear legal rights and sovereignty. Nor have they demanded that these rights be fully recognised as a precondition for any negotiations with regard to territory. It is only by international acknowledgement, including by Palestinian Arab representatives, can any pragmatic progress be made in future peace talks.