Thursday, January 06, 2011

Video: Dr. Jacques Gauthier: Whose Jerusalem Is It?

Ted Belman of Israpundit describes Jacques Gauthier:
...a Canadian Lawyer who just received his PhD after twenty years of research on the legal status of Jerusalem and the writing of a dissertation of some 1300 pages with 3000 footnotes. He had to present his thesis to a panel of two leading international lawyers and one world famous Jewish historian. The reason for so many footnotes was to enable him to defend his thesis from intense attack by one of the lawyers who happened to be Jewish anti-Zionist and who had represented the PA on numerous occasions. Gauthier is not Jewish.
Here is a video of lecture Dr. Gauthier gave last year--followed by notes to a similar lecture he gave the year before.

Dr. Jacques Gauthier,
"Whose Jerusalem Is It?"

Here are notes on Dr. Jacques Gauthier's lecture on "Whose Jerusalem Is It?"

Dr. Jacques Gauthier: Sovereignty over Jerusalem and Its Old City

The central point of the lecture was to distinguish between political rights and legal rights. Legal rights are binding, and Gauthier's thesis claims that the Jewish people were given legal rights to Jerusalem through the formalization of the Balfour Declaration of the San Remo Conference by the Supreme Council of Nations, which was the precursor to the League of Nations, and the United Nations. Gauthier invoked the legal principle of "la chose jugée" (judged issue) in his discussion of how all legal rights and claims recognized by the Supreme Council became irreversible, binding forever in a "sacred trust", and could not be changed with further legislation by the creation of the League of Nations that followed, and the UN after that.
  • A solution to the issue of sovereignty over Jerusalem must be made in order for peace to be achieved
  • Israel has claimed sovereignty over all of Jerusalem; the Palestinian Authority has claimed sovereignty over East Jerusalem (including the Old City)
  • The Green Line is from a 1949 Armistice Agreement between Israel and Jordan
  • Based on the Green Line, if Israel were divided today, the western part of Jerusalem would go to Israel, and East Jerusalem and the Old City would go to Palestine
  • Maps from the 1st Century CE and onward show that the borders of Jerusalem have remained almost identical up to today
  • It is important to distinguish between legal and non-legal claims
  • Herzl, 1896

    • Published his thesis, The Jewish State
    • In 1897, organized the first Zionist Conference in Basil

  • Balfour Declaration, 1917

    • Turning point of legal rights of Jews over Palestine
    • Approved by the British War Cabinet during World War I
    • Britain was reaching out for Jewish support and made a binding commitment to help establish a Jewish state in Palestine

  • Paris Peace Conference, 1919

    • Five nations formed the Supreme Council of Allied Powers – United States, Britain, Italy, France, Japan
    • Listened to different country claims over the defeated nations
    • Zionist organization presented their statement of claim (political document), stating what they wanted recognized by the Supreme Council

      • The Jews wanted a state, a home, and independence in due course
      • Wanted Britain as their trustee, to help them until they were in a position to declare independence
      • Weizman presented at the conference an request for recognition of the Jewish title to Palestine and the right of the Jews to reconstitute their national home in Palestine

    • Arab delegation

      • Represented by the Hashemite family (controlled Mecca)

    • The Arab and Jewish delegations met before the conference. The Arabs agreed to support the Jewish claim to Palestine if the Jews helped the Arabs achieve independence

  • Article 22 of the League of Nations

    • Refers to territories that are not ready to govern themselves
    • Victors of the war set up mandates (trusts) over these territories

  • Every treaty signed at the Paris conference dealt with rights and titles; the defeated nations had to renounce their rights and title to the victors

    • This was binding by international law

  • San Remo, Italy, 1920

    • The Supreme Council did not have time at the Paris conference to make a decision regarding the Ottoman territories
    • Came to San Remo to make this decision
    • April 25, 1920: Decided to give recognition to the title of the Jewish claim over Palestine and to the Arab claim over Mesopotamia (Iraq)
    • Mandate for Palestine – political rights given to the Jewish people, and civil rights were given to the current inhabitants

      • Preamble recognises the Jewish connection to Palestine and the grounds for the Jews to reconstitute their national homeland in Palestine

        • This turns the political claim of the Balfour Declaration into a legal claim
        • 14 million Jews were deemed to have rights in Palestine if they chose to immigrate

  • 1921: The Hashemites became angered by the French. To appease them, the British give the Hashemites the throne over Iraq and the throne of Trans-Jordan.

    • The land that had been granted to the Jews was divided up, the western portion became Trans-Jordan
    • Britain pledges support in establishing a Jewish state with the remaining land

  • Partition Resolution, 1947, by the General Assembly of the UN

    • Not binding
    • The Jews accept the Partition Resolution (West Palestine would become an Arab state, Jerusalem would be an international city)

      • As part of the Resolution, a referendum would occur after 10 years to modify the rights to Jerusalem

  • The Jewish people are not occupiers of Jerusalem because they were given the right to establish themselves there
  • Conclusion: From the perspective of international law, there are binding decisions from the League of Nations that have been reneged and forgotten

See also: The Executive Summary of: Foundations of the International Legal Rights of the Jewish People & the State of Israel: Implications for the Current Debate

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YMedad said...

odd. the notes seem to indicate that he didn't mention the Mandate decision of 1922 (and 1923). I am not going to listen to 50+ minutes of a lecture.

YMedad said...

I guess the chronology is wrong in that he has the Mandate before 1921

AEB said...

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.

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.

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.

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.

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.

Daled Amos said...

I posted a full rebuttal of you comments here.

Trollstein said...

Also, from AEB's comments:
"1917 - Balfour used the term national home and not sovereign state."
The word "nation" is embedded in the word "national". To further illustrate the weakness of his (rather popular) argument, can one imagine the Balfour language to have read:
" . . . . the establishment in Palestine of a national [nation as] home for the Jewish people . . " ?? The British would never be caught using such awkward and improper English composition.
Lastly, AEB wrote:
"Just because something is legal does not justify it morally."
This entirely depends on the exact circumstances. Under Adolf Hitler, a LOT of things were legal but not moral. But here we are discussing sovereign title under international law. Even if one were to argue that the earlier legal instruments were not fair, which I do not concede but for discussion--arguendo, this still constitutes title-and-deed. Morality is highly subjective. Once a credible legal dispute is established, the only way to resolve it is through a judicial proceeding. At this time, Israel is in physical possession of the disputed territories. They have no obligation to seek mediation or judicial arbitration. It is the responsibility of the party challenging this possession as unlawful, to engage whatever legal processes are available--to reallocate the possession, essentially legally negating Israel's claim of title. The United Nations General Assembly has no authority to do this by popular vote. The Security Council's authority is limited by UN charter to mitigating "threats to world peace". Even then, their legal authority is not unlimited. But it is hard to make a credible argument that this Israel/Palestine dispute fits that criteria, since it has been ongoing (without UNSC Chapter-7 action) for (minimally) 44 years.