A Rebuttal To A Commenter's Argument That Jews Have No Legal Right To Israel

In response to an older post, Video: Dr. Jacques Gauthier: Whose Jerusalem Is It?, someone left a comment left a comment disputing what Dr. Gauthier says in the video.

Here is what he wrote.

Added in italics are the comments of an expert in international law to whom I emailed these comments for his response:

This is pathetic. Just because something is legal does not justify it morally. Even if your legal claim was correct, it's morally wrong to decide the fate of Arab majority land without giving the Arabs any political rights.

However, I have a few things to point out, from a legal point of view.


1915 - The British promised Arabs independence, INCLUDING Palestine. The British told the French in 1920 that this was a legally binding treaty.

The British “promise” of Arab independence (a) was not legally binding; and (b) did not include Palestine, as affirmed by McMahon, the author of the British “promise.” The Arab recipients of the “promise” (the Hashemites) also had no problem with Palestine becoming a Jewish state, as can be seen by their agreement with the Zionist movement in 1919 in which they not only promised peace between the Arab state and Jewish Palestine, but agreed to assist “large scale” Jewish immigration to Palestine.

1917 - Balfour used the term national home and not sovereign state. Legally speaking, this ambiguity can be abused, and there is no legal or political obligation to claim that the home be spiritual, or autonomous within a parent state. Additionally, it was made about territory not owned by the British.

So let’s understand this. According to this fellow, when the British promised territory to the Arabs in 1915 which they did not possess and to which they did not hold title, that was legally binding. When they promised what he claims is exactly the same territory to the Jews in 1917 – by which time, incidentally, they acquired possessed of a large part of the territory – it wasn’t legally binding? The Balfour declaration was as legally binding as the 1915 Anglo-Arab correspondence, which is to say, not at all. However, the Balfour declaration became legally binding by virtue of being inserted into legally binding mandatory documents. And, by the way, the Balfour Declaration did cover Palestine, which the McMahon-Hussein correspondence of 1915 did not.

1919 - The Arabs conditioned their acceptance of the agreement to cooperate with Zionists to full independence. Since this was not fulfilled, this agreement can't be held to hold any value as it was never implemented by the British or French side.

The Arabs cannot be held to the 1919 agreement because the agreement had an out clause relating to Syria. But the terms of the agreement, and the (Hashemite) Arab signing of it, indicate that it is absolutely false that the Arabs perceived the creation of the Jewish state in Palestine as incompatible with the British fulfillment of pledges to help create an Arab (Hashemite) state. This also makes hay of his argument that the Arabs were not consulted. They were consulted, and as the 1919 agreement shows, the Arabs' objection to the mandates that emerged was not Palestine, but the fact that France was made the Mandatory in Syria

1920 - The mandates were illegal as the Covenant of the League of Nations required consenting with the will of the people before any decisions concerning the self-determination of the people are made. The King-Crane Commission found overwhelming Arab support for independence. Additionally, the Covenant effectively made the Balfour Declaration illegal internationally as the Covenant stressed on self-determination. The French invaded their mandate military, and the British took the rest of the territory as their mandate, both acts of illegal aggression and land grabbing as the people's will was not consented with. The Jewish immigration, the selling of land to Jews by individual wealthy Arabs that affected the jobs of poorer Arab peasants, the disconnection of Arabs in Lebanon, Syria, and Transjordan from land which they owned in Palestine by the illegal division and imposed borders forcing them to sell the land which they couldn't reach, were all illegal as they violated the League of Nations' self-determination principles.

The Palestine mandate provided for the self-determination of the Jewish people in their historic homeland and the selection of Britain as the Mandatory; its terms were approved by the League of Nations in 1922. The lawfulness of the mandate was repeatedly recognized by other parties including the Permanent Court of International Justice in a 1924 case. The opinion of the affected communities that Britain should be selected as the Mandatory was a “consideration,” as required by the League of Nations charter, and after considering all the factors, including the communities’ opinion, the allied powers, and then the League of Nations lawfully determined to grant the mandate to Britain for the reconstitution of the Jewish homeland. The League of Nations approved the mandate despite this fellow’s belief it should have done otherwise. Can he actually expect anyone to take seriously his argument that the mandate which was lawfully approved by every legal authority in the 1920’s is retroactively illegal because he doesn’t like the terms? Does he not understand that the “consideration” clause refers to the selection of the Mandatory and not the terms of the Mandate? Does he not understand that there is no clause in the League of Nations covenant or anywhere else that gave objecting Arabs the right to deprive the Jewish people of their lawful right to self-determination?

The use of British and French force was lawful under the law of war of the time, and even if it weren’t that would be irrelevant, as the League of Nations covenant specifically provided for the creation of mandates from the territories conquered by Britain, France and the allies during the war. There is no legal source upholding this fellow’s peculiar interpretation of “self-determination,” or, indeed, any source showing that self-determination was a binding legal principle at the time, other than its expression in the mandate system.

1947 - Again the partition was illegal as the Charter of the United Nations clearly calls for self-determination. It's non-binding, and can't be accepted unilaterally.

Article 22 of the Covenant of the League of Nations:

"...Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognised subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory..."

"The wishes of these communities must be a principal consideration in the selection of the Mandatory." Unfortunately, this little statement destroys the entire argument that Mr. Gauthier has built over 20 years. The only conclusion is that he has an agenda he's trying to push, and it definitely isn't the truth. Even a kid could tell you something is wrong after reading this statement.

The partition resolution was a lawful suggestion for the fulfillment of Jewish self-determination in partial fulfillment of the Jewish people’s rights under the Palestine mandate. However, since it did not become legally binding, it is irrelevant. The resolution is not necessary for the establishment of Jewish rights in the land.

In addition, the same legal expert wrote:

When you clear away everything, here's his argument:

The Palestine Mandate, which was approved by the League of Nations in 1922, and treated as lawful and binding by the Permanent Court of International Justice (1924, Mavrommatis Palestine Concessions), the United States (1924, Anglo-American Convention) and the international community, was nevertheless "illegal as the Covenant of the League of Nations required consenting with the will of the people before any decisions concerning the self-determination of the people are made."

But the actual language of the Covenant is, as he quotes, in regard to "certain communities formerly belonging to the Turkish Empire," where "the wishes of these communities must be a principal consideration in the selection of the Mandatory." This language does not mean that the mandate was illegal.

First, there is nothing in the Covenant which states that the Mandate, once approved by the League, is invalid, just because communities were not consulted.

Second, there is no indication that the communities were not consulted; in fact, there is every indication that they were consulted. The Covenant requires consultation; it does not grant a veto.

Third, the consultation mentioned in the Covenant is as to selection of Mandatory, not terms of Mandate. As he notes, the people of Syria, including southern Syria/Palestine, preferred Britain as a mandatory over France (the only two choices offered, since the US was uninterested in being a Mandatory). In other words, the Palestine Mandate reflected the preference of both the Jewish and Arab communities in Palestine for Britain as a Mandatory.

Fourth, it's not clear who the relevant communities are that need to be consulted. However, it is clear that notwithstanding his repeated (and offensive denials), the League did consider the Jewish people to be a people entitled to self-determination, and the Palestine Mandate was awarded on that basis. The Jewish community was certainly consulted. Curiously, as the King-Crane Commission report which he cites indicates, the Arab population of Palestine did not consider itself an independent "community" and its leadership insisted that it was an indivisible part of the Syrian Arab community. The leadership of the Syrian Arab community that was most popular according to King-Crane — King Feisal — was also consulted.

Fifth, it is not clear that the paragraph requires that every mandate of former Ottoman territory conform to its suggestions or model.

All these are extremely old issues. If he wants to educate himself about the legal status of mandates, he can read Quincy Wright, Mandates Under the League of Nations.

It is very clear that the League of Nations had wide-ranging authority to establish mandates. Article 22 of the Covenant states, "The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances. ... The degree of authority, control, or administration to be exercised by the Mandatory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council."

The League believed the Mandate was lawful. So did the Permanent Court of International Justice (1924, Mavrommatis Palestine Concessions), the United States (1924, Anglo-American Convention) and the international community.

Can he really expect anyone to take seriously the argument that the Palestine Mandate was unlawful?

On a side note, in reference to the claim that the British made a dual promise to the Arabs--there is a refutation of this by the historian Alex Grobman in his book The Palestinian Right to Israel. In the second chapter, Palestine: A Twice Promised Land?--Dr. Grobman notes that from a historical (as opposed to a legal) perspective even according

He notes that Foreign Secretary Edward Grey gave specific instructions to Sir Arthur Henry McMahon, British High Commissioner in Egypt, who negotiated with Hussein ibn Ali of the Hashemite family and Sharif of Mecca:

Foreign Secretary Edward Grey directed McMahon not to obligate the British government to any territorial demands outside of the Arabian Peninsula to secure Hussein's assistance, unless it was essential.["Permanent Mandates Commission Minutes of the Seventeenth (Extraordinary) Session, (June 21, 1930)"] p.49

A number of quotes from the principals involved show that then-Palestine was not included in discussions the British had with the Arabs.

Though at a meeting in London in March, 1921, Faisal, Hussein's third son disputed the British understanding of McMahon's assurances, he indicated:

"he was quite prepared to accept...that it had been the original intention of His Majesty's Government to exclude Palestine." [quoting Naomi Cohen, The Year After The Riots, p. 23] p53

McMahon himself wrote to Sir John Shuckburgh of the Middle East Division in the Colonial office on March 12, 1922:

"It was my intention to exclude Palestine from independent Arabia, and I hoped that I had so worded the letter as to make this sufficiently clear for all practical purposes" [Report on the Palestine Disturbances of August, 1929, p. 53-55; Permanent Mandates Commission Minutes of the Seventeenth (Extraordinary) Session, (June 21, 1930) p.54

As far as moral claims are concerned, let's close with Colonel Richard Meinertzhagen, first General Allenby's Chief Politcial officer, who was later involved in the creation of the British Mandate:

"Meinertzhagen added that by the end of the Second World War, all of Asia and Europe including Britain, had sacrificed considerably, while the Arabs had not. During both World Wars, the Arabs had "gained everything and contributed nothing..." "Why," he asked, "should not the Arabs give up something to suffering humanity? Palestine is but a small part of the Arab countries. On the other hand the Jews have contributed a great deal during both wars and have suffered more than any other nation. It is gross injustice that they should be refused a home which once was theirs.[Anita Shapira, Land and Power, p230] p. 69

Clearly, Technorati Tag: Israel and International Law.