08.10.98 17:08

From: HMAVERIK@aol.com

Now, back to our summary of the Mandate's articles. (Article 1) says simply the Mandatory shall have full powers of legislation and of administration.

Article 2 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,... .

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 in Palestine, . .

And it designates the Zionist Organization to be recognized as such an agency, stating further that:

.. . . It shall take steps in consultation with his Britannic Majesty's Government to secure the co-operation of all Jews who are willing to assist in the establishment of the Jewish national home.

Article 6 states:

The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and 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. (Emphasis added)

Article 7 states:

The Administration of Palestine shall be responsible for enacting a nationality law. There shall be included in these law provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine.

Articles 8 through 24 deal with subjects such as the rights of foreigners in Palestine, establishment of a judicial system, respect for religious freedom, conduct of foreign relations, preservation of order, customs, tariffs, health matters, antiquities, and legal holidays.

Article 22 provides that English, Arabic and Hebrew shall be the official languages of Palestine.

Before we discuss the famous Article 25 of the Mandate, we must return to our historical chronology.

The peace treaty with Turkey that had been drafted at San Remo in April of 1920 was signed in Sevres outside of Paris in August of that year.* The treaty provided, among other things, that Turkey renounce all of its rights and titles to Palestine and it expressly acknowledged that the Allies intended to secure the establishment in Palestine of a Jewish national home. That part of the Treaty of S6vres was not especially objectionable to the Turks. But there were other parts which the Turkish nationalist movement headed by the World War I military hero, Mustafa Kemal, later known as Ataturk, considered unacceptable, especially the territorial concessions in favor of Greeks and regarding portions of the Turkish heartland in western Anatolia. Before the Ottoman government could ratify the Treaty of Sevres, Kemal overthrew it. He abolished the Ottoman Sultanate and founded the secular Republic of Turkey that exists today. The Treaty of Sevres became a dead letter. The transfer of Turkey's legal title to Palestine was delayed, resulting in delays in bringing the Palestine Mandate before the Council of the League of Nations for confirmation.

Meanwhile, in the months following the April 1920 San Remo Conference, Britain was grappling with the problem of how to reduce the burdensome expenditures for its post-war military deployments throughout the Middle East. It was also working on protecting its important relations with France from further damage at the hands of Britain's Arab clients, the Hashemite family. The Hashemite, descendants of the Prophet Mohammed and guardians for generations of the holy cities of Mecca and Medina, had been asserting claims to French mandate territory in Syria. Having led the Arab forces that fought against the Turks in World War I under the colorful leadership of British Colonel TE. Lawrence-Lawrence of Arabia-the Hashemite Feisal considered himself entitled to rule from Damascus as king over an expansive unified Arab state comprising Syria, Palestine and much of Arabia. The French expelled Feisal by force and held the British responsible for keeping their Arab pup at bay in the future.

In the spring of 1921, Winston Churchill, recently appointed Colonial Secretary, supervised the formulation of plans to address all of these problems. Churchill calculated that he could greatly reduce the requirement for British military forces in the Middle East by immediately transferring to Arab powers the responsibilities for administration and for maintenance of public order in the vast undeveloped and generally inhospitable territories of Mesopotamia and eastern Palestine. The latter, being situated across the Jordan River, was referred to in these plans as Trans-Jordan. Churchill's plans called for the Hashemite Feisal to be elected king of Iraq - that is, Mesopotamia - and for Feisal's brother - the older but less well regarded Abdullah - Hashemite Kingdom of Iraq, which lasted until the revolution of 1958.

Churchill's plans for Trans-Jordan raised legal problems given the existence of the Palestine Mandate, the Mandate's applicability to all of Palestine, including Trans-Jordan, and the obligation of the Mandatory to encourage in Palestine, "close settlement by Jews on the land," and to secure the establishment of a Jewish national home there. As a legal matter, Trans - Jordan could not become an Arab emirate, as Churchill desired, within the Provisions of the Mandate that were current at the beginning of 192 1. So, in March of that year, British government lawyers drafted a new article for incorporation into the Palestine Mandate - Article 25 - which reads in part:

In the territories lying between the Jordan and the eastern boundary of Palestine as ultimately determined, the Mandatory shall be entitled, with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of this mandate as he may consider inapplicable to the existing local conditions, and to make such provision for the administration of the territories as he may consider suitable to those conditions, . . . provided that the basic civil rights of individuals are to be respected.

Article 25 makes it explicit that the Mandate for Palestine extends both west and east of the Jordan River, to "the territories lying between the Jordan and the eastern boundary of Palestine." The purpose of the article was to allow Britain to restrict the Jewish national home provisions of the Mandate to western Palestine only. The decision to give Trans-Jordan to Abdullah was protested by Zionist leaders including that model of moderation, Chaim Weizmann, who had prepared a lengthy memorandum for Churchill making the case that Trans-Jordan should be kept under the Jewish national home provisions of the Palestine Mandate.

(This is part (3) on the subject matter)

Weizmann had written:

The climate of Trans-jordania is invigorating; the soil is rich; irrigation would be easy; and the hills are covered with forests. There, Jewish settlement could proceed on a large scale without friction with the local population. The economic progress of Cis-Jordania [that is western Palestine] itself is dependent upon the development of these Trans-Jordanian plains, for they form the natural granary of all Palestine and without them Palestine can never become a self-sustaining economic unit and a real National Home. The evidence of competent and impartial authorities collected in the attached memorandum gives abundant proof of this. The linking of Trans-Jordan with the Hedjaz Kingdom [that is, the Kingdom of Mecca and Medina] would prove disastrous to the future of Eastern Palestine as well as Western Palestine and would, in the end, be of little or no value to the Hedjaz.

It is fully realized that His Majesty's Government must consider their pledges to the Arab people and the means of satisfying their legitimate aspirations. But the taking from Palestine of a few thousand square miles, scarcely inhabited and long derelict, would be scant satisfaction to Arab nationalism while it would go far to frustrate the entire policy of His Majesty's Government regarding the Jewish National Home.

Weizmann, the moderate, believed that all of western Palestine was insufficient as the Jewish National Home.

In July 1922, the Council of the League of Nations finally got around to confirming the Mandate for Palestine including the new Article 25. Within two months, the British had obtained the Council's approval of a resolution that cited Article 25, declared that "The following provisions of the mandate for Palestine are not applicable to the territory known as Trans-Jordan," and then enumerated all the Mandate provisions dealing with Jews and the Jewish National Home. That resolution noted that Trans-Jordan would be governed by an administration separate from the administration governing the remainder of Palestine, though it is stated that the administration of Trans-Jordan would be "under the general supervision of the Mandatory." Sharpening the distinction between their separate administrations respectively in western Palestine and Trans-Jordan (though both administrations remained under the Palestine Mandate), British officials took to referring to the latter only as Trans-Jordan, not as eastern Palestine, and to western Palestine simply as Palestine. This terminology got its first major, formal endorsement in the 1928 agreement between Britain and Trans-Jordan. Nevertheless, Trans-Jordan remained under the Palestine Mandate until 1946 when it achieved independence. It has never ceased to be eastern Palestine. The current King Hussein is the grandson of the Emir (later King) Abdullah. By the way, Kemal Ataturk, after establishing the Republic of Turkey in 1923, negotiated a new peace treaty with the Allies which was signed at Lausanne in July, 1923; it effected the transfer of title to Palestine that brought the Mandate fully into force as a matter of law.

After listening to all this, one can fairly ask, so what? Of what current relevance is any of this?

First of all, claims to the land based on history over millennia are not only legally valid, they are the strongest claims and, one might argue the only valid claims the Jews have to exercise sovereignty in any part of Palestine. The Mandate did not distinguish between Jewish rights to a homeland and rights of close settlement in Judea and Samaria and Jewish rights elsewhere in western Palestine. If the Jews now have no legally cognizable rights to claim Judea and Samaria as part of their state, then they have no such rights anywhere in Palestine, for all such rights derive from the same source-the Jewish people's historical connection with Palestine, as recognized in the Mandate. It bears emphasis that the issue of Jewish rights throughout western Palestine is a completely different matter from whether Israel should, as a matter of policy, renounce or trade those rights for something else. We shall not here deal with that policy question. I just want to make the point that the argument that the Jews have no legal rights to Samaria and Judea can be fatal to whatever rights the Jews have to sovereignty in pre - 1967 Israel.

Next, whatever rights the Jews had to settle in and possess land in Samaria and Judea during Mandate times, they still have. The important observation that the Mandate survived the demise of the League of Nations and survives as a "sacred trust" in international law to this day with respect to Samaria and Judea is a point that Prof. Paul Riebenfeld and Assist. Sec. Of State Gene Rostow have been keeping alive for decades now. This point is central to any proper legal understanding of the Arab-Israeli conflict. The status that the Kingdom of Jordan had in the 19 years in which it occupied Judea and Samaria-and that Egypt had in Gaza in that period… was the status of an aggressor, a belligerent occupier. There is nothing in that status that terminated whatever rights the Jews had under the Palestine Mandate.

Lastly, I would like to comment on the "fair division" problem that is the crux of most moral discussions regarding the Arab-Israeli conflict. It is common for people to ask why the Jews of Palestine, having established their state, are unwilling to allow the Arabs of Palestine to establish theirs. One cannot overstate the importance of this simple, albeit erroneous, argument in swaying many well-intentioned people against Israel. It can be answered properly only through the recognition that there are already two states in Palestine, one Arab and one Jewish. Indeed, the Arabs possess around 77 percent of Mandate Palestine (Jordan today). The fair division problem has a different ring if one says: Israel would be happy to divide Palestine into a Jewish state and an Arab state, which could live in peace on the basis of territorial compromise. But why are the Palestinian Arabs entitled to more than the 77% of Palestine that lies east of the Jordan River which they control… and call today Jordan?.

(This is part (4) and the last one on the subject matter)

Bibliography: -

Douglas J. Feith, served as Deputy Assistant Secretary of Defense and as Middle East Specialist on the National Security Council Staff during the Reagan Administration.