The Balfour Circus is Coming to Town – or why the Abbas legal initiative will fail

November 2nd 2017 will mark the 100th anniversary of the Balfour Declaration. 2017 is also slated to be the year when the PA President, Mahmoud Abbas intends to litigate against Britain and sue her for creating the State of Israel; an action he deems a “crime” against a “people”.

Abbas’ intended action is futile and a waste of time and resources, because threatening legal action over what will be a 100-year-old document is a stretch, attracting more ridicule than serious analysis. In any event, the Declaration has in any case long been superseded by other decisions including UN resolutions.

For example, the Palestinian claim that they have a right to establish a sovereign state in the territories of Judea, Samaria, and Gaza rests on two legs:

(1) UN Assembly Resolution 181, concerning the partition of the western Land of Israel and the establishment of an Arab state alongside a Jewish state; and

(2) Resolution 242, concerning Israel’s withdrawal to the 1967 borders.

Every single historical legal narrative will show that this claim can be dismissed outright, without considering it in detail, on the grounds that the “Palestinians” themselves rejected these resolutions at the time, and did all they could to foil them by force.

Not only that, but the Palestinian right to a state in addition to the one across the Jordan (which received indepen­dence in 1946), as recognized in UN Resolution 181, was controversial in itself, since it was bestowed on the Palestinians in contradiction to Article 5 of the original Mandate of 1922 (The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power), which the UN had undertaken to fulfill in Article 80 of its Charter.

That is to say, from the moment that the “Palestinians” rejected Resolution 181 and chose to attack Israel, aided by Arab states, with the intent to destroy it, they lost this right — on the basis of the general principle of “Right cannot grow from injustice.”

Furthermore, Abbas’ intended initiative has ignored the fact that in 1921, Mandatory Palestine was already partitioned in two, and in its eastern part, what was called “the Emirate of Transjordan” was set up.

This was designed not only to fulfill the commit­ments Britain had made to Emir Abdullah during the First World War but also to allocate land for the Palestine Arabs across the Jordan River.

Likewise, the Palestinians tend to forget the fact that in 1949 Transjordan annexed the territories of Judea and Samaria, and even changed its name to “the Hashemite Kingdom of Jordan” so as to emphasize that both banks of the Jordan were now included in its territory.

This gung-ho move proved to have long lasting legal implications which Israel has exploited to its fullest legal extent.

But, because I want to delineate some of the myriad reasons why Abbas’ efforts are a waste of time, I will look at discrete sections of the Mandate for Palestine, the 1939 White Paper, Abbas’ allegations of “illegality” and how, at every twist and turn, Abbas and the Palestinian Authority are in disrespect of international law, its organisations and the very core of the UN Charter; the right to peace.

Sir Vincent Fean, former British consul-general in Jerusalem [glibly] argued that “…there is a moral responsibility on our government to complete the work that it started when Britain was the world power,” and that “It should work to deliver an outcome which respects the rights both of Israelis and Palestinians. That is two states – and on the basis of the 1967 borders.

Everything Fean says is contra-indicated by Palestinian behavior from 1948 in flagrant contravention of the UN Charter. And this is not to point out to Fean’s unconcern that the 1967 borders would mean retreat from East Jerusalem, and would take away Jewish sovereignty in the very parts of Israel’s capital and Judea and Samaria that most define the re-constituted Jewish state.

One of the things central to the UN Charter is the right to peace, a right which is conferred by the fact of membership in the UN, and which is absolute and inviolate.

With the crimina­lization of war/violence between groups in international law, and in the UN Charter, and the criminalization of denial of right to peace, Abbas and the Palestinians are in flagrant disregard of the rules of the very international organisations they now want to intercede on their behalf in their favour.

This blatant disregard and delegitimisation of Jewish right to a homeland is witnessed in an embarrassment of quotes. I will table but three of them.

The PLO Charter for its part still states that “claims of historical or religious ties of Jews with Palestine are incompatible with the facts of history and the true conception of what constitutes statehood. Judaism, being a religion, is not an independent nationality. Nor do Jews constitute a single nation with an identity of its own; they are citizens of the states to which they belong.”

Mr. Abbas, the Palestinian Authority president, said the following on Palestinian television on Sept. 16: “We welcome every drop of blood spilled in Jerusalem. This is pure blood, clean blood, blood on its way to Allah.

In November 2014 Abbas stated in an emergency session of the Arab League with foreign ministers from around the Arab world in Cairo that “We will never recognize the Jewishness of the state of Israel,”

Abbas has also famously said in Ramallah, “We have frankly said, and always will say: If there is an independent Palestinian state with Jerusalem as its capital, we won’t agree to the presence of one Israeli in it.”

Thus, Abbas’ rather bizarre July 2016 statement of intent to sue Britain for the Balfour Declaration itself demonstrates yet again, not only disregard of the very UN Charter he now wants to grant him statehood, but verification of the continuing refusal of the Palestinian side to recognize the legitimate and indigenous connection of the Jewish people to their ancient homeland, alongside the recognition the Palestinians seek for their own rights.

Not only that, but Mr Abbas’ Palestinian Authority is even seeking international recognition for the “right” to kill Israelis. Itamar Marcus, founder and director of Palestinian Media Watch, reports that the PA asserts “it has the right to kill Israeli civilians, and they quote UN resolution 3236 of 1974 which ‘recognizes the right of the Palestinian people to regain its rights by all means.’ The PA interprets ‘all means’ as including violence and killing of civilians.”

Marcus points out the PA deliberately ignores the rest of the resolution that declares “the use of ‘all means’ should be ‘in accordance with the purposes and principles of the Charter of the United Nations…’ The UN Charter forbids targeting civilians, even in war.

Elon Yarden explains this Muslim Arab phenomenon best. He says that  Islamic law is monistic rather than pluralistic in essence, and only recognizes the legitimacy of a single all­-embracing state — the caliphate — that is based on a single, all-embracing religion — Islam.

International relations, according to this conception, are not relations of equality, but of subjugation between the caliphate and all other entities, to which a certain degree of autonomy is permitted, but not sovereignty.

Because of the lack of legitimacy in Islam for political pluralism and the between pluralism and monism, and the disparity between pluralism and monism, even today, after more than fifty years of political independence, the Arabs have trouble defining themselves in terms of bounded territorial nationalism, and prefer to think of themselves as part of the “great Arab nation” and even as part of the still greater Islamic nation.

Thus, Yarden continues, the crimina­lization of war in international law, by the UN Charter, is foreign to Arab understanding because it contradicts basic conceptions of Islamic law, first and foremost the institution of jihad. The Charter put an end to the older international law, in which war was legal so long as its purpose was “just”.

In the legal regime that the Charter has established, there is no longer any validity to the traditional distinction between a “just” war and an “unjust” war — instead, only a distinction between an “aggressive war”, which is prohibited by law, and a “defensive war”, which is permitted by it per the right to self-defense (Article 51) and in the authorization to enforce collective security.

Yarden posits that the Muslim Arab world has not succeeded in internalizing the revolution that the UN Charter has wrought, just as it has difficulty internalizing constitutional law and other Western norms.

Hence, despite the fact that the Arab states owe their independence to international law, it is difficult for them to adopt its principles, especially the more powerful states among them. That explains why the Arab states fail to recognize not only Israel’s legitimacy but even that of other Arab states; why the strong states among them seek to conquer the weak ones, with the goal of reestablishing the vanished caliphate.

The lack of peace between Israel and the Arab states does not stem, therefore, from the existence of conflicts between the sides, but from the Arab states’ refusal to recognize the legal regime that international law has established, since it runs counter to Muslim law. Hence their war against Israel is also perceived as normative, even if it contradicts their obligations according to the UN Charter. That is also why they ascribe no importance to the series of agreements they have signed with Israel since its establishment.

In legal terms, because, according to international law, the State of Israel is the legal sovereign over the entire territory of Mandatory Palestine west of the Jordan River, the Palestinians have no right except to autonomy, with the extent of its authority to be determined in negotia­tions between the State of Israel and the Palestinian Authority.

Abbas cannot even retreat into the Oslo accords in pursuit of his lawsuit. In light of the sweeping prohibi­tion of the use of force or even the threat of it in international law, the traditional peace arrangements for bringing an end to war, including peace treaties, are no longer valid because they result from the prior use of force.

This would make the Oslo agreements which tried to remediate what the Arabs vetoed in 1948, invalid because they were obtained as a result of the ongoing use of terrorism over many years, in Israel and outside of it, as well as the resort to “intifada when things didn’t go their way.

Any additional Abbas appeal to Oslo is also invalid because, according to the language of the Palestinian Covenant and other basic documents, the Palestinians have not relinquished the use of armed force as a means of destroying the State of Israel even subsequent to the signing of the Oslo agreements.

I have mentioned above that according to the UN Charter the right to peace, conferral of peace on a member state of the UN cannot be made dependent on any additional conditions.

Thus, after having vetoed Resolution 181, Resolu­tion 242, which makes Israel’s right to peace conditional on the handing over of territories to the Arabs, has no legal validity per the cornerstone of modern international law, whose constitution is the UN Charter.

This absolute right to peace poses the following conundrum for Abbas and the PLO: if the Arabs wish to belong to the international community that the Charter has established, they must clearly declare that they repudiate war unconditionally and unequivocally. They must declare that they recognize Israel’s right to exist in secure and recognized borders, without making this conditional on the handing over of any territories. And if Abbas refuses to do so, then he has clearly removed those he represents from the fold of the international community, and thus no longer entitled to any assistance that that community is authorized to provide.

Writing in HuffPo in 2013, Avi Ben Hur stated that in 1939 the British understood that they would not be able to resolve the conflict between the sides. On the eve of WWII, the British issued a “White Paper” – a declaration of policy — in which they claimed to have fulfilled their commitments undertaken in the Balfour Declaration.

This Paper put in writing the failure of Great Britain to further dance between the raindrops, having twice promised parts of the Mandate to Hussein of Mecca AND the Jews. To that end, tucked away in the middle of its three sections it stated its interpretation that

“His Majesty’s Government believe that the framers of the Mandate  in which the Balfour Declaration was embodied could not have intended that Palestine should be converted into a Jewish State against the will of the Arab population of the country.

And so, having done the colonial thing and secured Iraq’s oilfields for Britain after the carve-up of the Ottoman Empire, It was now leaving the mess it created to be sorted out between essentially westernized Jews who believed in a pluralistic international law with a body of Muslims who believed in monistic Islamic law. So, while the Levantine Arabs may in fact harbor some grievances about a nationalism, indigeneity, culture or history they had no concerns about till 1967, the illegality of Israel and the “criminal” nature of the 1917 Declaration has absolutely no legal bearing on legal creation of the State of Israel.

And it is not as if those who penned the 1939 White Paper were unaware of the impact of the words they were committing to paper.

Section III of that Paper (Land) puts it all front and centre [emphasis mine]:

The vagueness of the phrases employed in some instances to describe these obligations has led to controversy and has made the task of interpretation difficult. His Majesty’s Government cannot hope to satisfy the partisans of one party or the other in such controversy as the Mandate has aroused. Their purpose is to be just as between the two people in Palestine whose destinies in that country have been affected by the great events of recent years, and who, since they live side by side, must learn to practice mutual tolerance, goodwill and co-operation. In looking to the future, His Majesty’s Government are not blind to the fact that some events of the past make the task of creating these relations difficult; but they are encouraged by the knowledge that as many times and in many places in Palestine during recent years the Arab and Jewish inhabitants have lived in friendship together.

Now go sort it out…………….

In 2016, the existence of the modern State of Israel is a fact and the Balfour Declaration was one of the important milestones in enabling the Zionist movement to realize its dream of Jewish national independence in the Land of Israel.

As Avi Ben Hur puts it: “Despite all of the arguments surrounding the Balfour Declaration, Israel’s legitimacy does not rest on it or even on the 1947 UN Resolution 181 to partition the country to two states: one Jewish and the other Arab. It rests (legally) on the fact of its existence, the continuity of its existence, its assertion of independence by its people, its vindication of it independence by force of arms, its having an organized government within territory under its control and its recognition by the generality of nations.”

Seventy seven years ago, the 1939 White Paper recognized that groups of people need to “…live side by side…[and] practice mutual tolerance, goodwill and co-operation…”

Further, it stipulated that was essential to be known that Jews were entitled to be in Palestine “…as of right and not on sufferance. That is the reason why it is necessary that the existence of a Jewish National Home in Palestine should be internationally guaranteed, and that it should be formally recognised to rest upon ancient historic connection.”

Abbas will be wasting everybody’s time in 2017 with a frivolous lawsuit.

Indeed, the essence of the Palestinian-Israeli conflict (nee Arab-Israeli conflict) until today has been the systematic and total rejection by the Palestinian leadership of the Jewish people’s legitimate national rights in the Land of Israel.

Abbas’ attempt to undermine the Balfour Declaration is part and parcel of his “moderate” campaign to undermine the basic rights of Jewish peoplehood and the legitimacy of the State of Israel. As I have stated above, rejecting the Balfour Declaration is tantamount to rejecting the internationally-recognized natural rights of the Jewish people to a national home in the Land of Israel and runs counter to the very core of the UN Charter.

Abbas’ attempt proves yet again that he is less interested in establishing his own state alongside Israel than he is in forging it instead of Israel. And nowhere is this more apparent than in the recent historical denial of internationally-recognized Jewish rights by the Palestinian leadership, reflected in the recent attempts in UNESCO to erase the Jewish and Christian heritage of Jerusalem.

Amongst other firsts, Israel is the world’s first modern indigenous state: the creation and declaration of the sovereign nation of Israel marks the first time in history that an indigenous people has managed to legally regain control of its ancestral lands and re-constitute a nation state.

The importance of both the Balfour Declaration and the League of Nations decision lays in the legal international recognition of preexisting natural, historical, and legal rights of the Jewish people to their homeland, in which there had been a continuous Jewish presence throughout the centuries.

This is further emphasized by the language used in the League’s Mandate decision. The Palestine/Land of Israel Mandate specifically calls to “reconstitute” the national home of the Jewish people, not to constitute anything new.

This was done. Israel exists.

 

 

 

 

 

 

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