David Singer On The Palestine Mandate As Israel's Entitlement To Claim West Bank Sovereignty

Here's Sydney lawyer and international affairs analyst David Singer's latest article via the antipodean J-Wire service.  It's entitled "Palestine – Jews and Arabs, the Mandate and the Law".

Writes David Singer:

'The Levy Commission’s resurrection of the Mandate for Palestine as the legal title deed establishing Israel’s entitlement to claim sovereignty in the West Bank has come 48 years after the Palestine Liberation Organization (PLO) first tried to bury it.

A member of the Levy Commission – Alan Baker – stated this week that the three Commissioners were:

"legal experts examining a legal situation and making legally oriented recommendations".

Two short statements made by the PLO in 1964 and 1968 had attempted to negate the unanimous decision of the League of Nations in 1922 to grant the Mandate for Palestine to Great Britain to enable the Jewish People to reconstitute the Jewish National Home in any part of former Palestine.

Those statements also became the opening shots in an ongoing and concerted Arab campaign of misinformation and disinformation to denigrate and vilify  the Jewish People’s entitlement to its own state in its ancient and biblical homeland.  They provide potent evidence to explain why the conflict between Arabs and Jews still remains unresolved in 2012.

The first statement – in 1964 – appeared in Article 18 of the Palestinian National Covenant:

"The Balfour  Declaration, the Mandate system  and all that have been based upon them are considered fraud"

The second – in 1968 – followed the loss of the West Bank by Jordan to Israel in the 1967 Six Day War.

Article 18  was replaced by Article 20 in a revamped document – the Palestinian National Charter – to declare:

"The Balfour Declaration, the Mandate for Palestine and everything that has been based on them are deemed null and void."

The change – from  the "Mandate system" being "fraud" – to the "Mandate for Palestine" being "null and void" – was deliberate.

The "Mandate system" – in the form of the Mandates for Syria and Lebanon and Mesopotamia (Iraq)  – had delivered self-determination for the Arabs and the creation of three sovereign Arab states. To continue to declare the Mandate system a "fraud"  would undermine the sovereign integrity of those Arab states.

The Mandate for Palestine was solely targeted. It was no longer a "fraud" – it was "null and void".

In one fell swoop the Arabs had dismissed as "null and void" not only the Balfour Declaration and the Mandate for Palestine – but also the resolutions of the San Remo Conference and the Treaty of Sevres in 1920, article 80 of the United Nations Charter in 1945 and Security Council resolution 242 in 1967. [Emphasis added]

Such double standards and hypocrisy seem to have escaped the international community or to have been deliberately overlooked by it. [Emphasis added]

The Arabs were perfectly entitled to ignore this body of international law if they wished  – but they should have been forced to pay a high price for doing so in the form of suspension from membership of the United Nations and its other organs – until they acknowledged and agreed to accept the rule of law in the conduct of international relations between member states of the UN.

Instead, the international community pandered to the whim of these serial law-deniers for a variety of  reasons – mainly oil, terrorism and geopolitical jockeying for influence in the Arab world.

Ignoring Israel’s legal rights under the Mandate at the United Nations has proved disastrous for the cause of peace in the Middle East, has led to the deaths of hundreds of thousands of Jews and Arabs, and has wreaked untold suffering and trauma on millions of others. [Emphasis added]

The International Court of Justice (ICJ), in its 2004 decision on the legality of Israel‘s security barrier, gave an air of legal respectability to the irrelevance of the Mandate – referring to it only once in the following statement.

"Palestine was part of the Ottoman Empire. At the end of the First World War, a class A. Mandate for Palestine was entrusted to Great Britain by the League of Nations,pursuant to paragraph 4 of Article 22 of the Covenant, which provided that:

 'Certain communities, formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.'"

That this statement was demonstrably wrong was made clear by the following statement in the Palestine Royal Commission Report of 1937 – following its exhaustive consideration of the Mandate for Palestine: 

"The Mandate is of a different type from the Mandate for Syria and the Lebanon and the draft Mandate for ‘Iraq. These latter, which were called for convenience “A” Mandates, accorded with the fourth paragraph of Article 22. Thus the Syrian Mandate provided that the government should be based on an organic law which should take into account the rights,interests and wishes of all the inhabitants,and that measures should be enacted "to facilitate the progressive development of Syria and the Lebanon as independent States".

 The corresponding sentences of the draft Mandate for ‘Iraq’ were the same. In compliance with them National Legislatures were established in due course on an elective basis.

Article I of the Palestine Mandate, on the other hand, vests "full powers of legislation and of administration", within the limits of the Mandate, in the Mandatory.'

The Commission further asserted:

"Jews were admitted to be in Palestine by right. The little Jewish minority was to be helped to grow by immigration. To facilitate the establishment of the Jewish National Home was a binding international obligation on the Mandatory."

It also made clear:

"The Mandate also imposed specific obligations towards the Arabs.Their civil and religious rights and their position as affected by immigration and land-settlement were not to be prejudiced."

Notably absent in the Mandate was any mention of the Arabs in Palestine having any political rights. For the ICJ to summarily dismiss the Mandate and make the fundamental error it did in just one sentence shows how successful the campaign begun by the Arabs 40 years earlier had become.The ICJ decision has since been used as a whipping post at the United Nations to deny that Israel has any rights in international law to be and remain in the West Bank.

The Levy Committee has reversed that downward spiral and identified the Mandate for Palestine as the legal basis for any decisions taken by Israel aimed at resolving the allocation of sovereignty in the West Bank between Jews and Arabs.

Hopefully the nations of the world will now sit up and take notice.'


Crossposted from here

David Singer On The Legal Status Of Jewish Settlements In The West Bank

"Palestine – United Nations' Perfidy Exposed,"  is the latest article, via the antipodean J-Wire service, by Sydney lawyer and international affairs analyst David Singer

Writes David Singer:

'The canard – supported by countless United Nations General Assembly Resolutions – that Jewish settlements in the West Bank are illegal in international law – has been dealt a crushing blow with the the recent release of the Levy Committee Report in Israel rebutting that claim.

The Committee comprised a retired Supreme Court Judge (Edmund Levy), a  Tel Aviv District Court Judge (Tchia Shapira),  and a former Foreign Ministry  legal adviser (Alan Baker). They were appointed by Israeli Prime Minister Benjamin Netanyahu in January 2012 to consider among other matters the legality of Jewish settlements established in the West Bank.

The San Remo Conference held in Italy in April 1920 was the Committee’s starting point.

That Conference had laid the grounds for the eventual creation of the Mandate for Palestine as part of a Mandate system involving the disposition of vast tracts of territory held by the Ottoman Empire for 400 years – but lost by it following its defeat in World War I.

Whilst Arab self-determination was to occur in 99.99 per cent of the captured territory – the right of the Jewish people to reconstitute the Jewish National Home was limited to the remaining 0.01 per cent of that territory.

The Levy Report elaborates:

"In August 1922 the League of Nations approved the Mandate which was given to Britain, and thus the Jewish people’s right to settle in the Land of Israel, their historic homeland, and to establish their state there, was recognized in international law.

To complete the picture, we’ll add 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"

The International Court of Justice had failed to consider the Mandate and Article 80  when it delivered its non-binding advisory opinion on 9 July 2004 that  Israel had no legal right to erect part of Israel’s security barrier in the West Bank.

That decision has since been used by the United Nations and detractors of Israel to repeatedly discredit and delegitimise Israel’s right to maintain its claim to sovereignty in any part of the West Bank and for Jews to live there.

Surprisingly it was Egyptian appointee to the International Court – Judge El-Araby – who in fact had cautioned the other 14 Justices against ignoring an examination of the legal effect of the Mandate:

"The international legal status of the Palestinian Territory (paras. 70-71 of the Advisory Opinion), in my view, merits more comprehensive treatment. A historical survey is relevant to the question posed by the General Assembly, for it serves as the background to understanding the legal status of the Palestinian Territory on the one hand and underlines the special and continuing responsibility of the General Assembly on the other. This may appear as academic, without relevance to the present events. The present is however determined by the     accumulation of past events and no reasonable and fair concern for the future can possibly disregard a firm grasp of past events. In particular, when on more than one occasion, the rule of law was consistently side-stepped. The point of departure, or one can say in legal jargon, the critical date, is the League of Nations Mandate which was entrusted to Great Britain."

Regrettably Judge El-Araby’s sage advice was ignored – as the Levy Report now makes very clear.

In one respect the International Court could be excused for failing to consider the Mandate and Article 80 – since the then Secretary General of the United Nations, Kofi Annan, had failed to include these vital documents in the dossier of 88 documents he was required to submit to the Court that were “likely to throw light upon the question” – as he was legally required to do under Article 65 of the Court‘s statute.

The International Court’s decision was fatally flawed  as a result.

If you only submit half the relevant documents – you are sure to get only half an answer.

Those persons who prepared the dossier of documents and Mr Annan himself now need explain how documents – deemed so relevant by the Levy Committee – were omitted from the dossier submitted to the International Court.

The Levy Committee – after having considered the Mandate and Article 80 – concluded:

"... we have no doubt that from the perspective of international law, the establishment of Jewish settlements in Judea and Samaria is legal"

The Levy Committee dismissed the opinion of the International Court that the legal status of this tiny sliver of land between Jordan and Israel – the size of Delaware – was solely governed by the provisions of the Fourth Geneva Convention 1949 – when stating:.

"We do not believe that one can draw an analogy between this legal provision and those who sought to settle in Judea and Samaria not as a result of them being “deported” or “transferred” but because of their world view – to settle the Land of Israel.

We did not ignore the view of those who think that one should interpret the Fourth Geneva Convention as also prohibiting the occupying state to encourage or support the transfer of parts of its population to the occupied territory, even if it did not initiate it

But even if this interpretation is correct, we would not change our conclusion that no analogy should be drawn between Article 49 of the Fourth Geneva Convention and Jewish settlement in Judea and Samaria, in light of the status of the territory under international law"

It would surely be the height of folly for the United Nations and Israel’s denigrators to continue to categorically spruik that Israel’s presence in the West Bank is illegal following the release of the Levy Report.

The United Nations needs to come clean and investigate why highly relevant documents to support the legal claim of Jews to settle in the West Bank were withheld from the International Court.

Will the egg splattered all over the United Nations following the release of the reasoned and considered Levy Report deter it from conducting such an investigation?

The continuing use of  the International Court decision and the Fourth Geneva Convention to assert that Israel has no legal right to remain in even one square meter of the West Bank must now be seriously questioned.

Ironically Judge El-Araby is now the Secretary General of the Arab League and meets with Mr Annan frequently in Mr Annan’s new job with the United Nations trying to stop the slaughter in Syria.

Maybe Mr Annan can explain the cover up to Judge El-Araby over a cup of Turkish coffee.

Don’t hold your breath waiting.'

Crossposted from here