"If Russia and Poland, with their spacious countries, were unable to
tolerate them, how could Europe expect Palestine to welcome
them...[W]ill the Jew, on coming to Palestine, change his skin and
lose all those qualities which have hitherto made him an object of
dislike to the nations?"

The memorandum invoked the forged Protocols of the Elders of Zion as
evidence of Jewish "pernicious motives." Finally, it denied that Palestine
is a distinct national homelandand insisted on independence for a single
national entity for the Arabs:

"[T]he Arabs are convinced that this unnatural partitioning of their
lands must one daydisappear....Palestine should not be separated
from her sister States."

Notwithstanding the pleas of his various correspondents, Churchill met
with Abdullah in Jerusalem and, without the participation of the
Zionists, the two men struck a deal by which Eastern Palestine was, at
least temporarily, closed to Jewish settlement, excluded from the
Mandate's Jewish national home provisions, and put under an
administration to be headed by Abdullah, subject to supervision by the
British High Commissioner for Palestine. Churchill took pains to
clarify that his government was "constituting Trans-Jordania an Arab
province of Palestine." In return, Abdullah pledged to keep his hands
off French Syria and to support the Mandate, which meant suppressing
anti-Zionist activity: another land-for-peace deal that failed to
produce peace.

The agreement with Abdullah raised legal problems because Trans-Jordan
is in Palestine. The Mandate required, in Palestine, the encouragement
of "close settlement by Jews" and the establishment of a Jewish
national home. Churchill recognized that Trans-Jordan could not
legally be transformed into an Arab emirate closed to the Jews unless
the Mandate were amended. His staff urged him to finesse the problem
by asserting that the necessary authority inhered in the famous
Balfour Declaration proviso about protecting the "civil and religious
rights" of the non-Jewish communities. But Churchill rejected the ploy
and insisted on a formal amendment. Thus, in the Spring of 1921, came
into being Article 25 of the Palestine Mandate, which declares:

"In the territories lying between the Jordan [River] and the eastern
boundary of Palestine...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 ...."

Article 25 emphasizes that the Palestine Mandate extends both west and
east of the Jordan River: "in the territories lying between the Jordan
and the eastern boundary of Palestine." Its purpose was to allow
Britain to "postpone or withhold" the Mandate's Jewish national home
provisions with respect to Eastern Palestine. In his autobiography,
Sir Alec Kirkbride, a British military officer and diplomat who played
a central role in the history of Trans-Jordan, reported sardonically
on the creation of Article 25: "In due course the remarkable discovery
was made that the clauses of the mandate relating to the establishment
of a National Home for the Jews had never been intended to apply to
mandated territory east of the river."

In the aftermath of the Great War, in Europe, Asia, Africa, and the
Middle East, borders were being drawn or redrawn, states created or
dismantled and territories transferred from one state to another--all,
naturally, to the advantage of the victorious Allies and their friends
and the disadvantage of the defeated powers and theirs. From the
victors' viewpoint, the Arab people were set to benefit from the
Allied triumph far beyond their contribution to it. As for the Arabs
of Palestine in particular, their complaints lacked weight relative to
the claims of the Zionists. They rang hollow also in absolute terms,
given that the Palestinian Arab community (as opposed to the Hashemite
forces) fought against Britain. In his Memoirs of the Peace
Conference, Lloyd George commented:

"No race has done better out of the fidelity with which the Allies
redeemed their promises to the oppressed races than the Arabs. Owing
to the tremendous sacrifices of the Allied Nations, and more
particularly of Britain and her Empire, the Arabs have already won
independence in Iraq, Arabia, Syria, and Trans-Jordania, although most
of the Arab races fought [for Turkey]....The Palestinian Arabs fought
for Turkish rule."

When, in 1922, the final amended draft of the Palestine Mandate came
before the League Council, Balfour said very much the same thing,
concluding: "[T]hat we should be charged...with having taken a mean
advantage of the course of international negotiations [with the
Arabs], seems to me not only unjust to the policy of this country, but
almost fantastic in its extravagance." Even before Britain had decided
to shrink the Jewish national home, Balfour, speaking of the entire
Mandate territory on both sides of the Jordan, expressed the hope that
the Arabs "will not grudge that small notch...in what are now Arab
territories being given to the [Jewish] people who for all these
hundreds of years have been separated from it." Though nearly 80
percent of that "small notch" was soon made off limits to the Jews,
the Arab powers continued to "grudge" a Jewish state in Palestine.

The League Council confirmed the Mandate in July 1922. It then
approved a British resolution that listed all the mandate provisions
mentioning Jews and the Jewish national home and declared them "not
applicable to the territory known as Trans-Jordan." The resolution
stated that the administration of Trans-Jordan would be under the
general supervision of the Palestine Mandatory. From this point
forward, British officials sharpened the distinction between their
separate administrations in Western Palestine and Trans-Jordan (both
under the Palestine Mandate) by referring to the latter only as
Trans-Jordan, not as Eastern Palestine. It became the practice to
refer to Western Palestine simply as Palestine. Trans-Jordan remained
under the Palestine Mandate until 1946, when, as noted, it achieved
independence. As a matter of geographical fact, it has never ceased to
be Eastern Palestine. In 1949, after Trans-Jordan conquered the
territory it dubbed "the West Bank," the country changed its name to
Jordan. It is now governed by King Hussein, grandson of the Emir
(later King) Abdullah.

Law, History, and Current Diplomacy

American policymakers show a powerful disinclination to enter into the
kind of legal and historical issues raised here. They dismiss them as
academic--disconnected from the practical realities of war and
diplomacy. Yet these same policymakers attribute enormous value to
negotiations and peace agreements. The inconsistency can be dangerous.

One can say that international law is cant, lacking real world
significance. History does offer some support for that proposition.
But one can hardly then contend that peace agreements are important.
They are, after all, but a sub-species of international law. To
devalue international law--to treat it non-rigorously or not at all,
to reject the relevance of old laws, mandates, agreements, and the
like--is to foreshadow the lack of respect that will be shown to the
treaties now under negotiation, if they materialize at all.

The fact is that international law, including arms control agreements
and peace treaties, has often proven impotent. Violators have often
escaped not only sanctions, but even criticism. Solemn pledges to
guarantee treaty compliance have been shirked on numerous occasions.
Political leaders around the world show much greater interest in the
conclusion of new treaties than in compliance with those already on
the books. Perhaps this reflects the immutable nature of international
affairs. In that case, however, it cannot be assumed, for example,
that an effort by Syria's President Assad to recover militarily
valuable territory from Israel in return for a peace treaty
necessarily has anything to do with true peace.

International law, of which the Mandate is a part, specifically
validates Jewish claims in Palestine and recognizes those claims as
arising from "the historical connection of the Jewish people with
Palestine." Arab opponents of Zionism have, from the beginning,
opposed this view.

The legal case against Israel's legitimacy is built on two major
arguments. The first is that Arab "natural rights," rooted in the
Arabs' majority status in the land in recent centuries, superseded any
Jewish historical rights and precluded Britain, the League of Nations,
or anyone else from lawfully establishing a Jewish state (or "national
home") on this "Arab" land. This natural rights concept is promoted
nowadays at the United Nations by means of resolutions that refer
pointedly to the West Bank and Gaza Strip as "occupied Arab
territories" instead of simply "occupied territories."

The issue of whether history or nature provides the Jews or the Arabs
the better case for controlling Palestine raises fascinating
metaphysical questions. As a matter of law, however, it was mooted by
the fact that the international community, acting through the League,
legislated in the Mandate in favor of a Jewish national home in
Palestine. The international community, furthermore, has, in a series
of UN Security Council resolutions over decades, consistently
reaffirmed Israel's rights as a sovereign state and the general
obligation to respect those rights and live with the Jewish State
peaceably and without threats. The Arab natural rights argument says
that the Palestine Mandate was unfair, impolitic, and impractical. It
asserts, in effect, that the Allies legislated unwisely on Palestine.
But even if that were true, it would not mean that the Allies had no
legal right to legislate as they did.

It bears reiterating that traditional international law would have
supported Palestine's annexation by the powers that conquered it from
the Ottomans. The Great War Allies, however, chose to eschew rights of
subjugation and annexation. One can contend that the Allies or the
League made a bad decision in creating the Palestine Mandate. And one
can regret that traditional international law gave victors rights over
conquered territories. But one cannot accurately say that the Allies
and the League violated international law by acting to dispose of
Palestine (in Balfour's words) "in the interests of what they
conceived to be the general welfare of mankind."

Unlike the natural rights argument, the second major Arab argument
against Israel's legal validity is made from within the established
framework of international law. It posits that the Mandate violated
the League of Nations Covenant because the Jewish national home policy
was inconsistent with Article 22 of the Covenant and especially with
the principle of self-determination as enunciated in that article.
Article 22 states, however, that each mandate "must differ" according
to the circumstances of the beneficiary people and that the terms of
certain mandates may be defined on a case-by-case basis. The
promulgators of Article 22 applied these provisions to Palestine by
effectively designating the Jewish people as a whole as a principal
beneficiary of the trust and focusing that mandate on the
establishment of a Jewish national home. The same powers that drew up
Article 22 drew up the Palestine Mandate, the general outlines of
which were developed before Article 22. The Balfour Declaration, after
all, antedated the League Covenant. Given the sequence of events, it
is not credible to argue that the Mandate's drafters unlawfully
transgressed the concepts, plans, and flexible authority that these
very same parties built into Article 22 a few months before.

The United Nations Special Committee on Palestine (UNSCOP), created in
1947 to propose a solution to the Palestine problem, addressed the
Arabs' self-determination argument. It highlighted that
self-determination, though a principle of international law, is not
necessarily a right:

"With regard to the principle of self-determination, although
international recognition was extended to this principle at the end of
the First World War and it was adhered to with regard to the other
Arab territories [i.e., Syria and Mesopotamia], at the time of the
creation of the [Middle Eastern] Mandates, it was not applied to
Palestine, obviously because of the intention to make possible the
creation of the Jewish National Home there...

There would seem to be no grounds for questioning the validity of the
Mandate for the reason advanced by the Arab States. The terms of the
Mandate for Palestine, formulated by the Supreme Council of the
Principal Allied Powers as a part of the settlement of the First World
War, were subsequently approved and confirmed by the Council of the
League of Nations."

The Mandate secured Jewish rights to a homeland and to "close
settlement" in Palestine. In doing so, it distinguished between
Eastern and Western Palestine, but it did not distinguish between the
region of Judea and Samaria and the rest of Western Palestine. No
event and no armistice or other international agreement has terminated
the Mandate-recognized rights of the Jewish people, including
settlement rights, in those portions of the Mandate territory that
have not yet come under the sovereignty of any state.

Those rights did not expire upon the demise of the League of Nations,
the creation of the United Nations, or the UN General Assembly's
adoption of the 1947 UNSCOP partition plan for Western Palestine.
Article 80 of the UN Charter expressly preserves such "rights of
peoples" as existed under League mandates. UN General Assembly
Resolution 181 of November 1947, which endorsed the UNSCOP plan, never
won the Security Council endorsement necessary to render it a legally
binding action. Nor was the plan ever implemented. The position of the
U.S. State Department on the legal status of Resolution 181 appears in
a Near East Bureau memorandum dated January 27, 1948: "The growing
tendency to refer to the recommendation of the General Assembly as a
decision which must be carried out must not be allowed to divert our
attention from the fact that the action of the General Assembly was
only a recommendation"[emphasis in original]. Never having achieved
the status of law or even a reality on the ground, Resolution 181
cannot be deemed to have invalidated legal rights expressly recognized
in the Palestine Mandate.

The acquisition of duly recognized sovereignty over Judea and Samaria
by Jordan or Israel could perhaps have superseded any prior collective
rights, including the right of the Jewish people to "close settlement"
there. Since May 1948, however, neither the United States nor the
international community has recognized any state as sovereign in Judea
and Samaria. Each of the armistice agreements Israel signed with its
neighbors in 1949 provided (at the insistence of the Arab parties)
that neither party renounces any rights it may have regarding
territories on the other side of the armistice lines. The agreement
between Israel and Jordan, for example, states that the armistice
lines "are agreed upon by the Parties without prejudice to future
territorial settlements or boundary lines or to claims of either Party
relating thereto." Furthermore, in 1988, the Kingdom of Jordan
officially severed its legal and administrative ties to Judea and
Samaria.

Eugene V. Rostow, who as undersecretary of state during the Johnson
administration helped draft UN Security Council Resolution 242, has
written that Judea, Samaria and the Gaza Strip constitute portions of
the Palestine Mandate trust territory that have not yet been allocated
to a sovereign. Rostow, a former dean of Yale Law School, concludes
that the Mandate remains in force for those regions, just as the
corpus of an ordinary trust remains trust property until it is
lawfully disbursed or allocated, notwithstanding the trustee's death,
resignation or removal. It is not necessary, however, to decide
whether the Mandate and all its institutions remain in full effect for
these territories in order to conclude that, since Britain's
resignation as Mandatory, no event has legally terminated or
superseded the right of Jews to settle there, as derived from the
"historical connection of the Jewish people with Palestine" recognized
in the Mandate.

Contrary to the refrain of various United Nations resolutions, the
1949 Fourth Geneva Convention does not render Jewish settlement in
these territories unlawful. First of all, the Convention, by its own
terms, may not apply at all to Judea, Samaria, and the Gaza Strip, for
that land is not (and since 1949 has never been) "the territory of a
High Contracting Party" within the meaning of Article 2, which
delimits the Convention's applicability. Egypt administered the Gaza
Strip as occupied territory, under a military governor, from 1948
forward and never annexed or incorporated it into the Egyptian state.
And, as noted, Jordan's purported annexation of Judea and Samaria,
effectively renounced by Jordan itself in 1988, did not win
international recognition. It can also be argued that Article 49 of
the Convention, which provides that an occupying power "shall not
deport or transfer parts of its own civilian population into the
territory it occupies," is not applicable to the case at hand. The
Convention's official Commentary makes clear that Article 49 was
drafted with reference to the massive, forcible population transfers
effected by Nazi Germany during World War II. Some legal authorities
have concluded that it does not apply to Israeli settlement activity
in the territories, which is voluntary and has entailed no substantial
displacement of the local Arab population.

Even if one assumes Article 49's applicability to Israel's authority
as military occupant, however, the Jewish people do not thereby lose
their Mandate-recognized rights in Judea, Samaria, and the Gaza Strip.
If the Fourth Geneva Convention applies, Israel is constrained solely
in its capacity as an occupying power. The Convention does not address
or affect the rights or authority of the Jewish people in their
capacity as beneficiaries of the Mandate. In other words, Jewish
rights there do not derive from Israel's capture of the territories in
1967. So any limitations imposed by the laws of war on Israel with
respect to the military occupation of the territories cannot negate
those independent, pre-existing rights.

Five months after the Arab-Israeli "six day war" of June 1967, the UN
Security Council adopted Resolution 242, which states general
principles on which "a just and lasting peace in the Middle East"
should be established. Though frequently misread as requiring Israel's
relinquishment of all the land lost by Arab states in the 1967 war, it
in fact leaves the issue of territorial rights open for resolution by
agreement among the parties. It does not call for anyone's
relinquishment of any territorial rights before the conclusion of
peace. Moreover, by stressing the importance of security, highlighting
the right of all states to live "within secure and recognized
boundaries" and refraining from calling for withdrawal from all the
newly acquired territories, Resolution 242 envisions that peace talks
will produce borders different from the 1949 armistice lines. If the
Security Council had intended that Israel withdraw its forces to a
definite line, it could have said so. Thus, pending the peace
contemplated in Resolution 242, the Jewish people retain whatever
rights of "close settlement" or territorial claims belonged to them
before the Resolution. And after any such peace, the rights of all
parties will be as set forth in the negotiated legal instruments.

It must be emphasized that the issue of Jewish rights of "close
settlement" throughout Western Palestine is a completely different
matter from whether Israel should trade those rights for something
else, such as a peace treaty. The point here is simply that the
argument that the Jews have no legal right to settle in Samaria and
Judea tends inevitably, even if unintentionally, to undermine the
Jewish people's right to sovereignty in pre-1967 Israel, for all such
rights flow from the same source--the Palestine Mandate recognizing
the Jewish people's historical connection with Palestine.

The Real Issue

Recognition of Jewish claims does not require denial that the Arabs
have claims there too. Even the more militant Zionist leaders, like
Vladimir Jabotinsky, acknowledged that the Arabs have claims that must
be balanced against those of the Jews. In 1937, as the Nazi campaign
against the Jews intensified, Jabotinsky told the Palestine Royal
Commission:

"[W]hen we hear the Arab claim confronted with the Jewish claim; I
fully understand that any minority would prefer to be a majority, it
is quite understandable that the Arabs of Palestine would also prefer
Palestine to be the Arab State No. 4, No. 5, or No. 6--that I quite
understand; but when the Arab claim is confronted with our Jewish
demand to be saved, it is like the claims of appetite versus the
claims of starvation. No tribunal has ever had the luck of trying a
case where all the justice was on the side of one Party and the other
Party had no case whatsoever."

Arab opponents of Zionism have opposed any such balancing of claims.
They have rejected Zionism, the Balfour Declaration, the Palestine
Mandate, and the State of Israel as a matter of principle, not because
they thought the Jews should get a little less land and the Arabs a
little more.

Western statesmen have failed to do justice to the intensity and
ideological steadfastness of the anti-Zionist cause when they thought
they could buy the Arabs off with territorial concessions that leave a
Jewish state in the picture. Recall that Britain's original
land-for-peace concept was that the Arab people would get Syria,
Lebanon, Iraq and Arabia and the Jews would get Palestine. Then, under
the Churchill plan, Arabs received almost 80 percent of Palestine in
return for consenting to a Jewish national home in the 20 percent west
of the Jordan River. During the 1930s and 1940s, Arab leaders were
offered a series of plans for the partition of Western Palestine. They
unanimously rejected all of them, even those leaving only a few
slivers of land under Jewish control. The Arabs insisted that
Palestine belongs to them, Zionism is illegitimate and the issue is
one of principle. Western policymakers persisted in assuming that such
hostile statements were insincere, a device for obtaining a better
deal.

Having for years disbelieved the pledges of eternal hostility to
Zionism, many of our policymakers were quick to accept at face value
the post-Gulf-War decision of various Arab leaders to negotiate peace.
Under the circumstances, a student of history must at least raise the
question whether this decision to negotiate represents an actual
change of heart or merely a means of retrieving land and gaining
advantage for future assaults. History, after all, knows of cases
where parties talked peace without intending peace.

Underlying the current negotiations is the notion that the essence of
the Arab-Israeli conflict is the amount of territory controlled by the
Jewish state. There are better grounds for believing, however, that
the conflict's essence, as Arab spokesmen have asserted since World
War I, is the issue of legitimacy: Do the Jewish people have a right
to a state anywhere in Palestine? If the parties to the current
negotiations are divided on this issue, their diplomacy is likely to
prove as fruitless as most of the Palestine-related diplomacy
throughout history. If the Arab parties have truly abandoned the
conviction that the Arabs alone have national rights in Palestine, as
Anwar Sadat certified for Egypt, then diplomacy may accomplish
something constructive.

It came to be conventional wisdom in recent years that the key to
resolving the Palestine conflict is satisfaction of the Palestinian
Arabs' unfulfilled national aspirations. But there are problems with
this view. First of all, the conflict antedates the claim that the
Palestinian Arabs are a national group as such. As we saw, the
Palestinian Arab leadership expressly disclaimed that status, and did
so until quite recently. Secondly, there exists a sovereign Arab state
already in Eastern Palestine. Even if one credits the idea that the
Arabs of Palestine are a distinct people entitled to
self-determination as such, it is a stretch to conclude that the Arabs
of Western Palestine are an ethnically, religiously, culturally, or
linguistically distinct people entitled, on the principle of
self-determination, to their own state.

Perhaps more important, however, are the practical objections to
focussing on the purported statelessness of the Palestinian Arabs.
Western Palestine is small. The distance from the Sea to the Jordan
River is around 45 to 50 miles; from Lebanon to Eilat is less than 300
miles. The practical difficulties of satisfying within this tiny strip
of land both the national aspirations of all the Arabs there and
Israel's need to safeguard its physical security and national rights
have long proven insurmountable. This may be because they are
insurmountable.

It is obvious why an antagonist of Israel would want to assert that
the Arabs of Palestine are stateless. The effect is to put Israel on
the moral defensive and damage its standing. But if one aims to
promote peace, it is constructive, perhaps indispensable, to
acknowledge that there are already two states in Mandate Palestine,
one Arab (Jordan) and one Jewish (Israel). Though there does not seem
to be enough land in Western Palestine to satisfy the requirements of
both the Jews and the Arabs, there should be enough if all of Mandate
Palestine is taken into account and if the relevant Arab powers are
willing to live with Israel in peace.

True peace will not result automatically from peace treaties. New
treaties, if complied with long enough, may help stimulate the
rethinking in the Arab world necessary to lay to rest the issue of
Israel's legitimacy. That is the essential condition of true peace,
the kind that exists without reference to any military balance. In the
meantime, however, with or without new treaties, the region's peace
will continue to depend on Israel's ability to defeat any military
opponents. The value of a new treaty will depend on whether it
effectively fosters acceptance of Israel's sovereign rights--helps
bring about a pacific change of heart among the traditional opponents
of Zionism--and whether it preserves for Israel the military assets
that will deter war pending this hoped-for change of heart. If it
does, it will deserve the title "peace treaty." If not, it will join
the long list of international agreements that have done more harm
than good.