Jerusalem IS a Jewish issue
By Ted Belman
Prime Minister Ehud Olmert Monday categorically rejected assertions by American Jewish leaders that Jerusalem is not an Israeli issue but “a Jewish one.”
Speaking at a news briefing Monday, Olmert said that the Jerusalem issue had “been determined long ago” and that “the government of Israel has a sovereign right to negotiate anything on behalf of Israel.”
He said that at this stage, the matter was a theoretical rather than practical one, as the subject of Jerusalem was not yet on the negotiating table.
Don’t you believe it.
I attended a lecture tonight by 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’s what he said in point form,
1. The Balfour Declaration of 1917 started the whole process but it didn’t create international legal rights.
2. The San Remo decision made on 25 April 1920, incorporated the Balfour Declaration of 1917[2] and Article 22 of the Covenant of the League of Nations. It was the basic decision upon which the Mandate for Palestine was constructed. While the decision made at San Remo created the Palestine Mandate de-facto, the mandate document signed by Great Britain as the Mandatory and the League of Nations made it de-jure. It thus became a binding treaty in international law.
The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.
He pointed out that the Arabs weren’t even mentioned but that civil and religious rights only were accorded other inhabitants . This thereby excludes political rights.
3. Article 22 of the Covenant of the League of Nations provides for the creation of mandates.
To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.
The legal significance here is that “the well-being and development of such peoples form a sacred trust of civilisation”. The Mandatory Power was the trustee of that trust.
4 The Palestine Mandate of the League of Nations, included the following significant recital,
“Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country;
This had never happened before in history. Palestine was to be held for the Jewish people wherever they lived. No such recognition had ever been according to anyone else, anywhere, ever.
ART. 2. 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, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.
Thus the operative clause specifically referred to the preamble and reiterated that there were no political rights for other inhabitants.
ART. 5. 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.
ART. 6. 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 referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.
5. The United Nations took over from the failed League of Nations in 1945 and its Charter included
Article: 80 .. nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.
Thus the Palestine Mandate continued without change.
6. In 1947, the General Assembly of the UN passed Res 181 which became known as the Partition Plan pursuant to which both Jews and Arabs could announce their state.
First it must be noted that the Charter of the UN specifically gave no power to the General Assembly because that would infringe on the sovereign power of individual members. So the GA could recommend only. Secondly, this recommendation was in violation of the terms of the Mandate. See Art 5 above.
This resolution also provided for a Special Regime for Jerusalem which had the following defined boundaries,
A. SPECIAL REGIME The City of Jerusalem shall be established as a corpus separatum under a special international regime and shall be administered by the United Nations. The Trusteeship Council shall be designated to discharge the responsibilities of the Administering Authority on behalf of the United Nations.
B. BOUNDARIES OF THE CITY The City of Jerusalem shall include the present municipality of Jerusalem plus the surrounding villages and towns, the most eastern of which shall be Abu Dis; the most southern, Bethlehem; the most western, ‘Ein Karim (including also the built-up area of Motsa); and the most northern Shu’fat, as indicated on the attached sketch-map (annex B).
But this regime was to be limited in time. It was not to be an “international city ” for all time as we have been lead to believe.
The Statute elaborated by the Trusteeship Council the aforementioned principles shall come into force not later than 1 October 1948. It shall remain in force in the first instance for a period of ten years, unless the Trusteeship Council finds it necessary to undertake a re-examination of these provisions at an earlier date. After the expiration of this period the whole scheme shall be subject to examination by the Trusteeship Council in the light of experience acquired with its functioning. The residents the City shall be then free to express by means of a referendum their wishes as to possible modifications of regime of the City.
This provision for a referendum was of critical importance to the acceptance of Res 181 by Ben Gurion. He knew that the Jews were in a majority within these boundaries and would be in 10 years when the referendum was to be held. Thus he was confidant that Jerusalem would return to Jewish hands.
Keep in mind that the disposition of this area was to be determined not by Israel but by the residents of Jerusalem so defined. Currently the Jews have a 2:1 majority there.
Needless to say that after the Armistice Agreement of ’49 the Jordanians who were in control of Jerusalem violated every provision of this resolution calling for among other things respect for holy places. The referendum never took place.
After the ’67 war in which Israel regained the land to the Jordan including Jerusalem, Res 242 of the Security Council was passed authorizing Israel to remain in possession of all the land until they had “secure and recognized boundaries”. It did not require Israel to withdraw from all of the territories and it was silent on Jerusalem.
Also it “Affirms further the necessity for achieving a just settlement of the refugee problem”. There was no reference to Res 181 nor was there a distinction made between Jewish and Arab refugees.
Based on this, I suggest that,
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Not only should Israel be demanding that the referendum be held now, Jerusalem should be the first order of business. Olmert is sloughing us off by saying “Jerusalem is not on the table yet”.
He should demand that the referendum take place before the balance of the land is negotiated. If the Arabs won’t agree to the referendum there is nothing to talk about.
Obviously, Olmert isn’t going to ask for a referendum or insist that Jerusalem not be divided.
In closing I would like to stress one more thing.
By virtue of this preamble
“Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country;
in the mandate, the United Nations, the League’s successor, has recognized the Jewish historical rights to reconstitute their national home in Palestine. That’s Zionism. “Zion” is Jerusalem.
Thus the UN has recognized Jerusalem as the home of the Jewish people.
Very interesting piece of research. The Arabs and others who wish to see the Jewish state destroyed (liked Tony Judt) call for a single bi-national state where all Arabs living in the refugee camps can migrate, overwhelm the Jews, and install an Islamic government with sharia law — democratically. Of course, they would never support the same democratic process for Jerusalem where Jews are in the majority and would vote to remain an undivided and permanent part of Israel. Yet the statute is there and should be utilized to that end. Why not launch an international campaign, headed by distinguished legal scholars and lawyers like perhaps, Irwin Cotler, and funded by the many united Jerusalem groups?
There can be no doubt about the overall Muslim/Arab strategy here, and I’m bitterly disappointed in the Bush Administrations INSISTENCE upon a two-state solution in the Middle East before Hamas/the PA have stopped their aggressions against Israel and have released the three solders, Goldwasser, Shalit and Regev have been freed.
Jerusalem cannot be partitioned–until Islam has pacified itself and sues for peace, there should so much as exist a negotiation. Unfortunately for the world, Islam, at this time, only understands victory or defeat. They must be brought the point of submission to superior force; their Quran clearly directs them to dishonesty with non-believers.
Islam must come to a point where it is tired of shedding blood over its many hatreds and xenophobia. Until tha point, Israel, stand firm!
And, isn’t it time you had a suitable PM?
It matters not if Guathier and other experts can prove incontrovertibly that all Jews have a right to have a say about Jerusalem. A right not asserted is no right at all. Until diaspora Jews first recognize, understand and unite to assert their right regarding Jerusalem, that right is of no force or effect.
Ted:
This is priceless, and worth its worth in Gold! Thank you. You’ve done a Herculean job!
-Moss
Just out of curiosity, can’t the residents of Jerusalem get a referendum going without Olmert? Is there a provision in the Israel constitution for the populace to get items placed on the ballot?
Excellent summary, BTW. Too many people don’t understand the legality of Israel…especially in that the Mandate provided for a Jewish National Home that included Judea & Samaria & Gaza.
You can’t illegally occupy a territory that was yours to begin with, nor one that did not officially belong to another state.
Regards,
~ GdB
What are we going to do Ted?
How can we stop this?
What do you think Oldmert/Bush/Rich have been doing in the dark,behind Israel’s back all this time with Rice visits!The deal was sealed before he left for the failed conference!
If is was not failed,why have the Hitler leaders,terrorists already said they still seek Israel’s Destruction!Oldmert only has left to sign on the line,he’s sealed Israel’s fate,he did it before he came to the US this time!
He’s led Israelis to the slaughter,and all Israelis will feel it with more bombings!He’s such a hypocrite!Calling for the soldiers releases,he knows good and well they are not coming back! He made sure of it, when he gave it all away, before, during and after the war,concessions! He waited until the Crazed Iranian Hitler came up with the approval papers before he signed the failed resolution! Get ready for the Bull Dozers, he already told you it was a painful decision, and he again, spoke for ALL Israel!
Shalom
glenna hill
great great article and thanks for sharing it
Dan Jacobs
Alan Smith wrote
Whether you quote, the Balfour Declaration(did you know Balfour was an anti-semite who wanted all the Jews cleared out of Europe?), the San Remo Resolution, the League of Nations, the UN or the Palestine Mandate its all about stolen land. The Jordanians did not start the ’67 war; the Israeli’s did. It’s all about stolen land…
Yoram Shifftan writes,
Shalom Ted
Your communications in the emails are very good. Often I would like to post them in the
internal forum of psi (professors for strong Israel) or elsewhere but if I copy them they
lose the special format (like bold etc.). I wonder if you can send see a link (URL) of
the excellent communication you sent today (about Jerusalem), perhaps more generally this
is possible in addition to the text itself.
Yoram Shifftan
NB In my articles in Hebrew in the Israeli press, there are often people (in the
talkback) who say things like that “the reference is only to Jewish National Home and not
to a state”, and that I choose to ignore the other UN decisions such as 242, and the
whole things is passe, in particular it seems that the main mistake is that they say
(including from my experience people in Israel’s ministry of justice) that mandate has
finished in 1948, and so its obligations. This is why the things emphasised in your
communication today, which is also corresponding to the title of the sub-chapter in p. 121
“Continuing Obligations of the Mandate” in Julius Stone’s book is perhaps the most
important things to stress again and again.
It looks like Jacques Gauthies developed an encyclopedic thesis.
Inadvertently, perhaps, he omitted a good governing footnote.
On 1 Oct 1949, Chairman Mao declared the People’s Republic of China. Mao’s thesis for his chairmanship was “Politics comes out of a gun barrel”.
The UN Special Regime For Jerusalem (Count Folke Bernadotte was emissary)guaranteed the death of the new Israel.
………………………………….
Count Bernadotte had the support of certain elements of the Provisional Israel Government.
………………………………….
The UN Special Regime restricted new Jewish immigration to Jerusalem.
Without a national Jewish PAC to confront the barbarians and Yevsektzia in the court of public opinion and political chambers, Count Bernadotte realistically will be born again.
Kol tuv,
Ted Belman told us to post our following comment which he said “raise[d] good points.”
Ted Belman also told us, “The referendum issue had escaped my attention til now.” We refer him to what Eli E. Hertz wrote in the hyperlinked chapter on pages 8 to 10 in the PDF viewer.
I amended the article at 4:00 PM EST
Shalom Alan Smith,
From: US Army Area Handbook For Jordan, pg 35:
[Hussein]“on May 30, 1967, unhesitatingly signed a military alliance with the UAR…”.
If you reply to this, I’ll post the Lib Congress ref data.
Gotta run…I’m going to a slide show on Dawson Field…………
Kol tuv, all the best
By my calculation there are at least a half million Jews that will fight to keep the Land of Israel in Jewish Hands even if the legitimate Government decides to give it away.All you Lawyers can never equal the power of a half million men and women willing to fight and die for a belief. Besides who cares what legal rights we have ? This will never go to any court and if it did they will find a way to rule against the Jews. Do any of you think that legalisms are going to protect Jewish rights anywhere? Most of the commenter’s including Ted are still linked into fallacious concept that peace is a possibility under certain conditions and that Israel owes its existence to the goodwill of the Gentile world. You are turning over every rock looking for hidden and forgotten legal and historical facts to justifie our existence as a people and a political entity in the Land of Israel. Most of you give every reason why the policies of the past were wrong and unfair and even antisemetic but then you are all willing to give something up for some ethereal concept called Peace.
We have peace with Syria quietest border we have Why? Because we are stronger than they are and from the Golan are 40 KM from Damascus which by the way is within Artillery range.We had a pretty quiet Border in Lebanon until Perez and Barak screwed it up, now we have Hizbola with 20k rockets. The Israelis have allowed the Egyptians to Arm sufficiently where I consider them a greater existential threat than Iran. Does anyone believe that peace with the Palis will diminish the Iranian or Egyptian and Syrian future threats? Nobody cared about the Pali Arabs before and they certainly don’t today!
Most readers and commenter’s here skirt around reality and that is :that the conflict with the Arabs is insoluble at least as far into the future as one can see. Peace processes are the bullshit most of you have bought into.They are all a tool for the ultimate destruction of Israel. Every Leader here traps himself with promises to the people that he will bring peace then is forced to try to live up to the unattainable. This becomes our CATCH 22 and each round weakens us internally as well as our image abroad.
I think the most realistic approach is just to say it: (the and of Israel from the Sea to the Jordan is ours and we will not share it with anyone else. I want the Arabs out of my country so I or my children will not have to kill them later. It will come to that sooner or later and these PEACE (PIECE) Processes only bring that day closer.
The area internationalized in UN resolution 181 includes Bethlehem. Within that area, it is by no means certain that there is a Jewish majority.
With regard to those ready to fight for Jerusalem, it should be pointed out that Jerusalem has the second lowest rate of enlistment in IDF among Jews -44% – the only major city that is lower in Bnai Brak – where it is 15%.
And suppose that the residents voted for annexation? We would also be annexing a large number of Arabs.
A.I.
Isseroff you can’t break free of your Leftist Galut dogmatic and Bolshevik Prism with which all of Your opinions are Based.Of course Bethlehem belongs to us even more than Tel Aviv. Just as the Muslim Arabs have forced most of the Christian Arabs to Leave so We can do likewise to the Muslims. What the Hell do we owe the Muslims? We get no recognition from the Nations of the World that you so much respect and fear for the 7-8 hundred thousand Jews they expelled ,with for most only the clothes on their backs. The Arabs Living in the encompass of the Land of Israel are the real occupiers, usurpers or the beneficiaries of those who were.You are locked in with non Jewish outlook of the world and disdain your own Jewish roots, traditions, and beliefs which based on most of your scribbling indicate that you are an ignoramus with regard to Judaism .What is the difference between you Hebrew speaking assimilationist’s and say non Hebrew Jewish assimilationist’s in America or Canada?
While I have many many criticisms of the Ultra Orthodox and even Just plain National Rel. Zionism I know that for 99% of their children and grand children and great grandchildren will still remain Jewish . You and most like you can not say that even your children will remain Jewish.
You throw at us concepts like democracy? demographics? implied humanism? Fear of the Goyim! fear of Isolation? fear of the nations of the World? Fear fear and more Fear? what you offer us is a small indefensible Ghetto, devoid of Judaism it traditions customs and denial of its core principles. Why would any Jew with a choice choose your Israel with no purpose other than min. existence?
What is the Hebrew world for Democracy? Humanism? all foreign concepts in Judaism! Democracy and Judaism is an oxymoron the two cannot exist under the same roof. Democracy is not a deity that you leftists have elevated it too. If it is unworkable it must be changed to another tool that does work. Where is your Holy Communists today? Your Socialist today? Your Stupid Kibbutz movement? (I lived in and married into Beit Hashita and endured 4 years of Bullshit). So I do know a little about from where you come and why you think as you do! 44% is not much lower than the present Kibbutz Numbers! Most of the Kibbutz young have left the Kibbutz, will leave the Kibbutz in the future and a large number of those leave the country for good. so don’t thow numbers at us as you are standing in a glass house.
Thank you, Ted, for providing us with this information in a concise format.
As for Alan Smith (comment #9), you are an antisemite and an ignoramous as well. Learn your history and then crawl into the hole whence you came.
Kudos to Bill Narvey regarding his comment, “It matters not if Guathier and other experts can prove incontrovertibly that all Jews have a right to have a say about Jerusalem. A right not asserted is no right at all. Until diaspora Jews first recognize, understand and unite to assert their right regarding Jerusalem, that right is of no force or effect.
Major Kudos to Yamit regarding comment # 15.
As I have been saying and writing, refer to Ecclesiastes 3:8.
It is, indeed, a time for war.
Israel must deal with the Palestinians (of all stripes) and appreciate them and view them as a true existential threat.
The Palestinian Nazis must be thoroughly and completely vanquished.
Israel needs to be sovereign from the Jordan River to the Mediterranean Sea!
Jeff (sanderzack@yahoo.com)
I understand the feelings that you have Yamitz, and many of who are not Israeli or Jewish are sick at heart when we hear this as a Palestinian issue. This is an Israeli issue, a Jewish issue and can be an issue to anyone who cares about righteousness. I spend the majority of my day reading and spreading web materials around the country of America to inform others of Israels plight and why it is that everyone should care. If we do not affirm Israels right to exist and keep its fences around its own yard we may fall into the same scenario. What if Mexico starts asking for California, Texas, and Arizona back? Everyone in the South would arm themselves and get ready for a major war. Watch out America, because what goes around comes around.
It should also be noted that Res 181 provided
The Mandate for Palestine shall terminate as soon as possible but in any case not later than 1 August 1948.
Now as noted above this resolution itself was in contravention of the Mandate and thus illegal. The question is, did Israel by accepting it, acquiesce. Also, did the Jewish Agency and then the state of Israel have the right to speak on behalf of the Jewish people who were the beneficiaries of the trust.
Or can it be said that the Jewish leadership were acting under duress.
Donor nations just pledged over 7 billion Dollars to the Pali Kleptomanics for use in their Kleptocracy! what do you think would happen if that same amt or double were to be offered to any Palis that wishes to leave with between 1-3 hundred thousand Dollars or Euros in his pockets per person! Large familys clean up . and a visa to who ever will take him? I think most Jews here would jump ship if offered same.
In answer to Ted’s question in No. 20: I don’t believe it MATTERS whether Israel “accepted” 181, because a General Assembly resolution could not have been legally obligatory unless it was effectively rendered so via CONTRACT.
That is to say, 181 COULD have become legally binding, if — and only if — BOTH parties had signed onto it. As it happened, only ONE party signed on, and the other not only refused its assent, but also went out of its way to nullify any possiblity of implementation by resort to arms.
By resorting to arms, the [subsequently self-styled] “Palestinians” and their sovereign Arab allies implicitly accepted the verdict of arms.
They lost — and these compulsive and recurrent attempts by the world community (and a lotta Jews amongst them) to overlook that attempt at extermination and give them statehood after all only reinforces the notion that for them (and, by extension, anybody else who pulls a stunt like they did), there need be no accountability for the consequences of their deeds.
War and violence for the Palestinians has been allowed to be regarded as strictly a “limited liability” proposition. This is a colossal mistake.
181 was INDEED a contravention of the Mandate.
181 is, in any event, dead in the water, dead as Marley’s ghost: and has BEEN dead ever since the Palestinians — and the broader Arab world — killed it.
Let it STAY dead.
Michael Zebulon 1-9-08