By Ted Belman
On Dec 3/15, the Foreign Ministry announced it was going to publish a legal document verifying that settlements were legal and that Israel was not an occupier pursuant to the Fourth Geneva Convention.
Shortly thereafter Lorejnzo Kamel, a Middle East historian at Bologna University and a research fellow (2013-16) at Harvard’s CMES published the immediately following blockquoted article, in which he undermined Israel’s claim to Judea and Samaria (West Bank) by arguing that Jews were only promised a “homeland” “in Palestine” rather that a state in all of Palestine or all of Palestine as a state..
My friend Salomon Benzimra, the author of The Jewish Peoples Rights to the Land of Israel, wrote a very strong rebuttal of Kamel’s argument. It appears below just under Kamel’s argument.
No doubt that this dispute will loom large in the wake of the FM publishing its report.
by Lorenzo Kamel, OPINIO JURIS
It would seem unnecessary in 2015 to refer to the League of Nations or the Mandate for Palestine when discussing the legal status of the Palestinian territories. Yet, in recent years several scholars are resorting to these issues to provide a legal justification for the construction/enlargement of outposts/settlements and the indirect denial of the right of the Palestinian people to self-determination. This article aims to deconstruct these approaches and to shed light on the selective use of history and international law that underpins them.
The 89 pages of the Levy Report, released on 9 July 2012 by a special committee appointed in late January 2012 by PM Netanyahu to investigate whether the Israeli presence in the West Bank is to be considered an occupation or not, clarified that “with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter”.
In a video entitled “the Legal Case for Israel,” international lawyer Eugene Kontorovich pointed out that “up to 1948 all this area [present-day Israel and the Palestinian territories] was Palestine reserved as a Jewish State by the League of Nations Mandate […] the legality of the Mandate jurisprudence cannot be changed.” More in general and according to an interpretation held by a growing number of scholars and by most of Israel’s right-wing parties, the preamble as well as Article 2 of the Mandate secured the establishment of the Jewish National Home on, in Howard Grief’s words, “the whole country of Palestine, not a mere part of it.” (H. Grief, The Legal Foundation and Borders of Israel under International Law (Jerusalem: Mazo, 2008), p. 106.) It would follow that, as argued by the late Eugene Rostow, “the Jewish right of settlement in the whole of western Palestine – the area west of the Jordan – survived the British withdrawal in 1948”.
But to resort to the League of Nations and the British Mandate for Palestine might be counterproductive for those committed to finding legal justifications for the construction of outposts, or the enlargement of settlements, in the Palestinian territories. The term “national home,” in fact, had no mutually agreed-upon meaning or scope and the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions” and contained safeguards for the rights and position of the non-Jewish communities.
True, in 1919 prominent British official Jan Christiaan Smuts, a leading figure in Lloyd George’s War Cabinet and an open supporter of racial segregation, envisaged the rise of “a great Jewish State.” Lloyd Gorge himself pointed out that “it was contemplated that when the time arrived for according representative institutions in Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth”.
On the other hand, the first Attorney General of Palestine, “lifelong Zionist” Norman Bentwich, contended that “a national home, as distinguished from a state, is a country where a people are acknowledged as having a recognized legal position and the opportunity of developing their cultural, social and intellectual ideals without receiving political rights”.
This position was also consistent with the one expressed a few years earlier by the general secretary and future President of the Zionist Organization Nahum Sokolov. He represented the Zionist Organization at the 1919’s Paris Peace Conference, where made it clear that the
“object of Zionism is to establish for the Jewish people a home in Palestine secured by public law […] It has been said and is still being obstinately repeated by anti-Zionists again and again, that Zionism aims at the creation of an independent ‘Jewish State’. But this is wholly fallacious. The ‘Jewish State’ was never part of the Zionist programme. The Jewish State was the title of Herzl’s first pamphlet, which had the supreme merit of forcing people to think. This pamphlet was followed by the first Zionist Congress, which accepted the Basle programme – the only programme in existence.”
Hubert Young, an important figure of the Foreign Office, wrote in November 1920 that the commitment made by London “in respect of Palestine is the Balfour Declaration constituting it a National Home for the Jewish People.” Lord Curzon corrected him: ‘No. “Establishing a National Home in Palestine for the Jewish people” – a very different proposition.” (The National Archives [TNA] FO 371/5124. Curzon, 29 Nov. 1920. See L. Kamel, Imperial Perceptions of Palestine: British Influence and Power in Late Ottoman Times (London: I.B. Tauris, 2015).)
Many other at times contradicting points of view might be quoted. Speaking in front of the Peel Commission in 1937, Winston Churchill made it clear for instance that there was nothing in the definition of the “National Home” that might have precluded “the establishment of a Jewish State.” (Palestine Royal Commission: Command Paper 5479 of 1937.) As noted by Isaiah Friedman in his British Pan-Arab Policy, 1915-1922: “Whether [the first British High Commissioner for Palestine Herbert] Samuel had this ultimate aim in mind when conceiving his policy is dubious. But Churchill, as his response of the Peel Commission shows, did favour it. Throughout his career as Colonial Secretary, he adhered to his Zionist convictions.”
Whatever the opinion of anyone on the excerpts quoted up to this point, it must be stressed that they are nothing more than personal opinions coming mainly from pro-or-anti-Zionists, pro-or-anti-Arabs/
Palestinians, anti-Semites, pro- imperial statesmen and so on. None of them has any legal value. The first document that officially clarified the interpretation of the Mandate’s text (before its ratification) is the British White Paper of June 1922. It pointed out that the Balfour Declaration does “not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded ‘in Palestine’”. Furthermore, it stressed that the “Zionist congress” that took place in Carlsbad in September 1921 had officially accepted ‘the determination of the Jewish people to live with the Arab people on terms of unity and mutual respect, and together with them to make the common home into a flourishing community, the upbuilding of which may assure to each of its peoples an undisturbed national development.”
It is only in light of these clarifications that the preamble, and Article 2, of the Mandate can and should be understood. It is noteworthy that Zionist consent to the interpretation contained in the White Paper was requested and received before the Mandate was confirmed in July 1922. In Weizmann’s words: “It was made clear to us that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper [of 1922], and my colleagues and I therefore had to accept it, which we did, though not without some qualms.” (C. Weizmann, Trial and Error: The Autobiography of Chaim Weizmann (Westport: Greenwood, 1972), p. 208.)
The British Mandate for Palestine was approved on the basis of a clear understanding that sheds light on, and directly contradicts most of, the claims made at the beginning of this article.
Israel’s right to exist and to defend itself against terror and discrimination is something that any person interested in peace must support. Equally true is that the attempt to justify the construction of outposts or the enlargement of settlements in the Palestinian territories through a selective use of the League of Nations and its mandates system is a misleading and problematic approach that requires better public understanding.
To deconstruct these approaches is a precondition for any serious attempt to achieve a mutual understanding between Israelis and Palestinians.
[Dr Lorenzo Kamel is a Middle East historian at Bologna University and a research fellow (2013-16) at Harvard’s CMES]
Comments on Dr. Lorenzo Kamel’s article posted on December 4, 2015
by Salomon Benzimra, P.Eng., December 5, 2015
Dr. Kamel opines that the “selective” use of the provisions of the League of Nations and its Mandates system may be “misleading and problematic” in evaluating the legality of “settlements in the Palestinian territories.” He also laments that such provisions may indirectly “deny the right of the Palestinian people to self-determination.” But nowhere in his article does Dr. Kamel question the legality of such newly-minted “Palestinian people” and their purported legal right to self-determination in the land of another nation. That is what strikes me as truly “problematic.”
The first part of his article is devoted to what he calls “personal opinions” with no “legal value.” Among these “opinions” we find:
- a) The authors of the Levy Report, who stressed the validity of Israel’s rights, as preserved in Article 80 of the UN Charter;
- b) Eugene Kontorovich, who highlightyed the perennial character of the legality of a Jewish State in Palestine;
- c) Howard Grief, who maintained that the provisions of the Mandate clearly allocated the Jewish National Home (JNH) in all of Palestine. This was also the opinion of Hubert Young at the Foreign Office, in spite of Lord Curzon’s interpretation. It is interesting to note that when the Mandate for Palestine was finally confirmed in July 1922, its wording left no doubt as to the JNH being in the entirety of Palestine, west of the Jordan River (see Page 6 of this presentation)
- d) Eugene Rostow, who extended the Jewish right of settlement in the whole of western Palestine beyond the termination date of the Mandate;
- e) Jan Christiaan Smuts, who indeed was the main architect of the Mandates System (later officially approved as Article 22 of the Covenant of the League of Nations and incorporated in Part I of the Treaty of Versailles) and envisaged the rise of “a great Jewish State”;
- f) David Lloyd George, who contemplated the emergence of a “Jewish Commonwealth” (i.e. a Jewish State), when the Jews had attained a “definite majority,” a requirement acknowledged by the Foreign Office since the Balfour Declaration;
- g) Winston Churchill, who never saw a contradiction between “National Home” and a future “Jewish State.”
All the positions taken by the aforementioned individuals – who had a deep knowledge and understanding of all the legal matters pertaining to the Mandate and to international law – are surprisingly characterized as mere “personal opinions” by Dr. Kamel who, in turn, does not hesitate to advance his own opinions – largely unfounded as explained below:
- a) He denies that the term “national home” had any agreed meaning. When a specific land is assigned to a people (the Jewish people) and this people acquires the status of a nation to be reconstituted on that land on the grounds of its historical connection, it is disingenuous to claim that the “national home” is somewhat meaningless and that the formation of a state is not the natural outcome of this process. Kamel seems to selectively ignore the natural sequence of [people & land à nation à state] when it comes to the Jewish people, while he does not question the “right of the Palestinian people to self-determination,” thus implicitly accepting a Palestinian state as self-evident without any backup in law or history.
- b) Dr. Kamel then maintains that “the British government was under no definite obligation” to abide by the provisions of the Mandate in terms of Jewish immigration. In fact, Article 2 of the Mandate made Britain responsible for the establishment of the Jewish National Home (JNH) “as laid down in the preamble,” and said preamble enjoined Britain “to put into effect” (and no longer simply “view with favour”) the Balfour Declaration. The JNH could not be brought about without massive Jewish immigration. Therefore, the main thrust of Article 6 is to “facilitate … and encourage … close settlement by Jews … in cooperation with the Jewish agency” for the very purpose of making the JNH a reality. But Dr. Kamel only focuses on the phrase “under suitable conditions” and the “rights and position of the non-Jewish communities.” These rights have been clearly acknowledged and spelled out in both the Balfour Declaration and in the second recital of the Mandate. What Dr. Kamel omits to indicate is that those rights are limited to individual “civil and religious” rights and in no way collective, national rights.
Then, Dr. Kamel refers to statements made by various personalities, with the undisguised intent to cast doubt on the legal underpinnings of the Jewish State:
- a) He quotes Norman Bentwich who deprived the “national home” from having any “political rights.” It should be noted that Bentwich was under heavy pressure throughout the 1920s from the British Colonial Office which disapproved of his Zionist views, at a time when the British were dedicated to appease the Arabs. I do not know the exact date of Bentwich’s statement but his stated position cannot stand scrutiny. The Jewish national home was established pursuant to Article 22 of the Covenant which defined the Mandates system. A cursory reading of Article 22 shows that territories placed under mandates (especially Class ‘A’ mandates) were intended to become sovereign, independent states upon termination of the Mandatory period. This is actually what happened with almost all of the 14 mandates issued on behalf of the League of Nations (see Page 7 of this presentation). It is therefore incomprehensible that the Mandate for Palestine – which was synonymous with the Jewish national home at the time it was conceived – would be the exception to the rule by removing political rights from the Jewish National Home.
- b) He quotes Nahum Sokolov who stated that the Zionist objective was not to establish a state, as per the proceedings of the First Zionist Congress held in Basel in 1897. At the time, Palestine was under Ottoman rule and the Turks were not yet at war with the Allies. It would have been politically awkward, to say the least, for Theodore Herzl to advance the notion of a Jewish state to be carved out of the Ottoman Empire. It would have been equally awkward for the Arabs to openly voice their national aspirations in the Middle East. But the situation evolved substantially between 1897 and the San Remo Conference of 1920, where mandates were issued for the future Arab states of Iraq and Syria-Lebanon, together with the Jewish National Home in Palestine.
After listing all these so-called “mere opinions” which, in Dr. Kamel’s own opinion have no “legal value,” we are led to believe that the only valid interpretation of the Mandate for Palestine is the one formulated in the British White Paper of 1922. To understand this White Paper we must consider the events that took place in the two preceding years:
- a) Arab riots against the Jews, instigated by the Mufti, started in the spring of 1920;
- b) The Haycraft Commission of Inquiry (Oct. 1921) recognized that Arabs were the aggressors and noted the Arab hostility against the Jews and their immigration to Palestine;
- c) In the meantime, the British decided to appease the Arabs and to let the Hashemite Abdullah settle in Amman (March 1921) while promising him a separate Arab administration in the “East Bank” of Palestine, thus leading to the inclusion of Article 25 of the Mandate;
The White Paper of June 1922 incorporated the above provisions. On the one hand, the White Paper stood by the Balfour Declaration, the San Remo Resolution and the Treaty of Sèvres (still legally relevant in 1922) and, on the other hand, it inconsistently denied the possibility of a Jewish state in Palestine. In so doing, the 1922 White Paper violated the spirit of the yet to be confirmed Mandate, as renowned jurist Louis Brandeis aptly noted. And it set the agenda for future limitations on Jewish immigration by subjecting it to the “economic absorptive capacity” of the country – a notion that was never clearly defined.
But if Dr. Kamel believes that the British White Paper of 1922 provides the sole valid interpretation of the Mandate provisions, why stop in 1922? Two other, equally “authoritative” British White Papers were issued in 1930 (Passfield) and 1939 (MacDonald) and ended up in virtually curtailing all Jewish immigration and making a mockery of the British obligations, to the extent that the latter White Paper was labelled by David Lloyd George himself as “an act of national perfidy which will bring dishonour to the British name,” and was also sternly condemned by President Roosevelt. British White Papers were politically driven documents, often divorced from legal requirements.
As to the Zionists’ declarations at the Carlsbad Congress of September 1921, extolling the virtues of “mutual respect” with the Arabs and the assurance of their “undisturbed national development,” one may ponder, with retrospect, the present level of Arab respect for Jewish Israel, while realizing that the undisturbed national development was undeniably granted to the exclusively Arab Transjordan, which was part of the Mandate for Palestine and was greatly expanded to the east in 1925.
Dr. Kamel also errs in the belief that the White Paper of 1922 conditions the application of the terms of the Mandate. Following the confirmation of the Mandate in July 1922, the British issued a Memorandum to the Council of the League in order to remove all the Jewish related articles — Preambles 2 and 3, Articles 2 (in part), 4, 6, 7 (in part), 11 (in part), 13, 14, 22 and 23 – from the administration of “Transjordan.” But they explicitly kept all the Mandate articles as applicable to the rest of Palestine, west of the Jordan River. This clearly shows that Jewish Palestine extends to all the land west of the River, and there is obviously no mention whatsoever of any “Palestinian [Arab] territories” therein.
It seems that Dr. Kamel’s effort to “deconstruct” the provisions of the Mandate is another glaring attempt to support the failed “Palestinian narrative” which has been on life support for quite a while and which is bound to receive the coup de grâce when the Israeli Government finally informs the world of the unassailable legal rights of the Jewish people in the Land of Israel.
Salomon Benzimra, P.Eng. December 5, 2015
Canadians for Israel’s Legal Rights – CILR
www.cilr.org
sbenzi@sympatico.ca
@ bernard ross: Precisely why I suggested a second Jewish nation in The Shomron and Judea, which would be independent of Israel’s screwed up system of governance. Either protect the Jews or enable them to defend themselves by providing all of the necessary infrastructure.
Ted Belman Said:
It is moot to base a claim on the state of Israel when Israel not only refuses annexation but shows no sign of even seeking to annex it…. duh, Israel does not want YS so the only avenue must be based on the rights of world jewry to settle in YS regardless of Israel… which is who the rights were conferred upon anyway.
Bear Klein Said:
That is interesting as I have heard many arguments disputing the legality, legitimacy, sovereignty and rights of the state of Israel in YS but I have never heard ONE single argument put forth by anyone regarding the legality or legitimacy of JEWISH settlement in YS… not a single one. Perhaps it is because there is no legal basis for such an argument whereas we hear lots of legal bases against Israeli settlements based on the GC. The only argument for the legality of Israeli settlement is based on the notion that it is the successor and agent of the “Jewish people”…. and yet it squanders the ONLY interest of the Jewish people in YS and refuses to annex it and claim sovereignty.
My approach has the added advantage of legally settling Jews without making the pals citizens. The main basis for the claims of illegality are based on supreme court decisions which are based on Israels non annexation. Therefore, Jewish settlement waits for Israel to decide if it wants YS and yet it does not belong to Israel.
I received this email.
@ woolymammoth:
Trial trips certainly are good. A life in new country certainly is hard! Nope it does not always work for everyone.
Saying I do not care is judgmental especially when you do not know me. Feel free to judge however if it makes you feel good.
@ Bear Klein:
Bernard, I know you will probably not appreciate my experience, candor and genuine concern, I care about people:Aliyah is good for some just ok for many and for others a total unmitigated disaster. Go visit, spend a few months, get accustomed to the weather in summer and the biting flies. Don’t burn your bridges, enjoy your life, don’t be a victim. Only the strong survive here. The bear does not care. When Jews are protected in Israel, I will endorse Aliyah.
@ bernard ross:
I understood you argument and even though the concept is an interesting to discussion to some, it is just esoteric and not high on my list to debate.
I am passionate about Jews emigrating to Israel and encourage people to move to Israel. Actually if you or another Jew wanted to move to Israel and Y/S you would be assisted in-spite of you misgivings to the contrary.
Bear Klein Said:
are you r referring to those waving hello or those waving goocbye??? 😛
Bear Klein Said:
So, who are you calling “elderly” and have you been speaking to my girlfriend wrt to the other 2 characteristics??
Bear Klein Said:
but they collaborate to keep YS JEW FREE… and we are discussing YS and Jewish settlement in YS.
I think you do not understand the legal argument that I am submitting, which recognizes the legal difference between the state of Israel and the Jewish people and how that legal difference has been exploited to obstruct and obfuscate Jewish settlement rights. I also pointed out that the rights of the Jewish people to settle in YS are not dependent upon nor predicated upon the state of Israel.
Did you have any comment on my legal argument?
Bernard you are invited to find a Jewish Town in Judah and Samaria to move into. I assume you qualify under the Law of the Return. Your passion in moving at an elderly age will be greatly appreciated by many!
Nefesh B’Nefesh in cooperation with the Israeli government and The Jewish Agency for Israel, is dedicated to revitalizing Aliyah from the USA, Canada and the UK by removing or minimizing the financial, professional, logistical and social obstacles of Aliyah and the move to Israel.
http://www.nbn.org.il/
Their site is great and they conduct webinars and personal meeting depending which city you are in. See here for a list of appropriate cities all over Israel including Judah and Samaria http://www.nbn.org.il/aliyahpedia/community-housing/community-profiles/
Bear Klein Said:
the problem is that it is the state of Israel which does not want to extend its sovereignty over YS and therefore the JEWISH settlement rights in YS have been confused with the desires and rights of the state of Israel. this is why I state that Israel need not annex if it does not want to but it can and should, legally still settle “world Jewry”. In order to remove confusion of the GC regarding transfer of Israeli citizens it would be a smart move to settle diaspora Jews only in YS thus enabling Israel to fulfill its legal responsibility as administrator without commiting itself to annexation. It is not the state of israel which is protected in the LON or UN charter but rather the derived and aquired rights of the Jews of the diaspora. Therefore, continued reference to the state has only suceeded in obfuscating Jewish rights and freezing settlement.
Settling Jews in the vacant state lands of YS should be the priority and should not be confused with arguments of Israels annexation or sovereignty over the area. What we have is a situation where arguments of the sovereignty of the state of Israel is obstructing the settlement of Jews. Much of Israel does not even want soveriegnty over YS but their lack of desire for annexation or sovereignty should have no bearing on the legally enshrined rights of world Jewry to settle on the vacant lands of the mandate.
The document referred to by BB will probably continue to confuse the rights of the state of israel with the rights of world Jewry to settle. By talking about Israeli annexation or sovereignty the actual settlement of Jews never takes place. The state of Israel rights are irrelevant to settling Jews. Settling Jews was a right in existence before the modern state of Israel. Its a mistake to pursue the same failing process of arguing annexation and sovereignty.
Settling Jews, not annexation, should be the goal and the argument.
what I find astounding, and the elephant in the room, is that neither the pro nor anti arguments in the article deal with “JEWISH SETTLEMENT”. Whether the Jewish settlements morph into some form of Jewish state or Jewish homeland is IRRELEVANT to the legality of immigrating and settling Jews in the mandate territory. The rights of world Jewry must not be confused with the rights of the state of Israel. Whatever sovereign rights the state has or seeks does not, and cannot, reduce any rights of world Jewry to settle in any area of the mandate territory and especially the vacant state lands which belonged to the Ottoman empire…. which were mandated to be set aside for the settlement. Therefore, the vacant lands of Judea Samaria are reserved for Jewish settlement, who do not have to be Israeli Jews. The LON is clear that Jews of the diaspora are to be “encouraged and facilitated” to immigrate and be settled.
Neither the pro side nor the anti have considered the right of Jewish settlement…. they do instead discuss the rights of Jewish settlers to a state or a homeland, after settling.
My view is that whoever administrates the west bank has a legal obligation to encourage the immigration of diaspora Jews and facilitate their settlement on vacant lands. This was true of the UK, Jordan and the GOI in spite of the obstruction of that legal obligation by all 3…. a legal obligation which deprived and reduced defacto the legal rights of world Jews as a class and as individuals. The GOI is as guilty as Jordan and the UK.
My solution to these arguments is to remove the confusion of the state of Israel with “world Jewry”. If Israel were to fulfill its legal obligation while administrating the west bank it would be facilitating the immigration and settlement of diaspora Jews in YS on vacant state lands. If Israel only settles diaspora Jews it removes all legal arguments brought up by anti zionists to date. Furthermore, in order to mitigate the damage caused by the obstruction of the 3 last administrators Israel should adopt an affirmative action program to settle jews as quickly and massively as possible to make up for the decades of the loss of Jewish rights. I suggest a homestead act which invites diaspora Jews to immigrate and settle YS with the incentive of state land grants. They need not be given Israeli citizenship in order to debunk any Geneva convention arguments wrt the state transferring its citizens to the lands of others, which is the canard relied upon by anti semites.
I have posted these suggestions for a few years and have never seen to date an argument posted against them which has a legal basis.
Salomon Benzimra makes a good point as regards Lorejnzo Kamel’s premise that Palestinians have exclusive sovereign right to the land and self determination. Salomon correctly points out that Kamel, provides not a tittle of analysis and proofs to back up that assertion that he makes as if it is a self evident truth.
The same can be said of international opinion that also accept as a self evident truth that Palestinians have sole exclusive sovereign right to J & S and to self determination as an identifiable and unique people with inherent legal rights.
If Netanyahu’s Foreign Ministry follows through with the pledge to publish a legal document verifying that settlements were legal and that Israel was not an occupier pursuant to the Fourth Geneva Convention, you can bet that will anger Obama and his mouthpieces, the EU and pretty much the entire world community of nations.
You can also bet a flurry of so called legal experts, all from the left who will set out to offer their own legal analysis where the conclusion being to denounce Israel will already be baked into that cake. Lorejnzo Kamel is just the first.
Israel knows this and further knows it very likely that Israel will have to weather a storm of outrage and perhaps worse in the form of sanctions from Obama in particular.
Given that Israel knows that will likely be the reaction to publishing that document on the legality of settlements and that there is no occupation at international law, could it be any worse if Israel supplemented that document with a further document that asserts without equivocation that only Israel has the sole exclusive right to Judea and Samaria.
Why therefore does Israel not go all in and submit a legal opinion that Israel has the sole and exclusive sovereign right to Judea and Samaria?
I doubt doing that would anger the world any more than it will be once the Israeli FM publishes the report on the legality of the settlements and that there is no Israeli occupation at international law.