Has a conflict evolved into peace when fighting between the opposing
armies has ceased? In one sense, yes; but a cease-fire, or even a
formal armistice, falls short of true peace. Should the description
"true peace" be reserved until the antagonists have signed treaties
requiring exchanges of ambassadors and other visible signs of
"normal" relations? Perhaps, but again the essence of peace is not
paper. Neither is it embassies, business deals or tourism. Vicious
wars--including World Wars I and II--have erupted between countries
actively engaged with each other in diplomacy, trade and cultural
exchanges.

True peace, as opposed to a mere cease-fire or a balance of power, is
bound up with concepts of justice--that is, law and morality. It
describes, for example, relations now between the United States and
Canada, but not relations during the Cold War between the United
States and the Soviet Union. It has to do with attitudes of
mind--with a mutual belief that each state has sovereign rights and a
shared conviction that no party should take what belongs to another.
The ultimate success of the current Arab-Israeli negotiations,
therefore, will hinge on how they deal with the legal and moral
essence of the conflict: the longstanding Arab legal and moral
arguments used to oppose Zionism and Israel.

The negotiations known as the Madrid Process have been under way
fitfully since October 1991. There are high expectations for new
peace agreements, thought to be attainable as a result of recent
global traumas, principally the demise of communist regimes in Europe
and the Soviet Union and the Desert Shield/Storm coalition action
against Iraq. Though not the first negotiations between the parties,
the current talks are the first that have been open (that is, not
conducted secretly) and direct, and that purport to seek a final
settlement. U.S. officials attribute much importance to these new
elements. They are said to signify that the Arab parties want peace
with Israel, are willing to conclude peace treaties, and intend to
abide by them.

It is devoutly to be wished that this reading is correct. But, while
negotiations have on occasion ended conflicts, they have also
sometimes served as the continuation of war by other means. Has the
Arab-Israeli conflict truly changed from an existential quarrel not
susceptible to diplomatic resolution into a simpler,
non-philosophical dispute over subjects like boundary lines, water
rights and security arrangements--or not? Have the relevant Arab
powers transcended their ideological objections to Zionism and
permanently resigned themselves to deal with Israel as a legitimate
state? Or is there a calculation at work that negotiating, at a time
when other good options are lacking, is the only realistic means of
getting from Israel territorial concessions that may be exploitable
in the future?

Statesmen and states beg such questions at their peril. The American
"full partner" in the Madrid Process needs the capability to gauge
the parties' actual intentions and evaluate the legitimacy of their
claims, requests and actions. This requires, if the job is taken
seriously, a plunge into the conflict's political and legal history.

Late in 1917, Allied forces under British General Edmund Allenby
fought hard in their advance on Jerusalem through the hilly region of
central Palestine designated on their maps as "Judea." On December 9,
they reached the goal. The city's surrender ended a period of Turkish
dominion of precisely 400 years, one which had begun with the Ottoman
Empire's conquest of Palestine from the Mamluks in the year 1517.
Immediately after the war, British officers at the headquarters of
the Egyptian Expeditionary Force published an account of the
Ottomans' retreat from Jerusalem:

"On this same day 2,082 years before, another race of
conquerors...were looking their last on the city which they could not
hold, and inasmuch as the liberation of Jerusalem in 1917 will
probably ameliorate the lot of the Jews more than that of any other
community in Palestine, it was fitting that [it] should have
coincided with the national festival of the Hanukah, which
commemorates the recapture of the Temple from the heathen Seleucids
by Judas Maccabaeus in 165 B.C."

The Bible-reading British were conscious of Palestine's ancient
history. David Lloyd George, Britain's wartime prime minister, said
that as a result of his childhood religious instruction he was more
familiar with the place names figuring in Allenby's reports from
Palestine than those in the military dispatches from Europe. The
British associated Palestine with the Bible and with the Jews. These
associations inspired the Balfour Declaration, which led to the
Palestine Mandate, which created the legal framework within which
(and against which) Jews and Arabs have conducted diplomacy and war
from 1920 to the present day. Though one can listen for years without
hearing a U.S. official even mention the Mandate, the fact remains
that nothing rigorous can be said about the rights or duties of the
parties to the Palestine conflict without reference to that
fundamental document.

Towards the Balfour Declaration

The government that sent Allenby into Palestine was well briefed on
Jewish settlement activities there. These had burgeoned with the
influx of Jews who fled Russia following the pogroms of the early
1880s. The founding of new Jewish agricultural settlements in
Palestine, however, began even earlier, in the 1870s. Diplomacy to
facilitate the restoration of Jews to Zion had been attempted by
Jewish leaders and British officials as far back as the 1830s. Even
before that, the yearning of Jews for their homeland evoked sympathy
and fired imaginations among British statesmen and people of letters.
Lord Byron's "Hebrew Melodies," published in 1815, lamented:

"Tribes of the wandering foot and weary breast
How shall ye flee away and be at rest!
The wild-dove hath her nest, the fox his cave,
Mankind their country--Israel but the grave!"

Byron's era saw a blossoming of hope in Europe that enlightenment,
political liberalism and social assimilation would provide a happy
answer to the so-called Jewish Question. A century later, however, in
the early 1900s, antisemitism was intensifying, not disappearing,
throughout Europe. Eminent academic, ecclesiastical, cultural, and
social figures wrote books and gave speeches justifying not only
hostility toward the Jews, but legal disabilities and even violence.
And their words were heeded. Mobs attacked Jews, often fatally, and
Jewish property was destroyed. Especially disillusioning was that
these outrages occurred not only in the politically primitive empire
of Czarist Russia, but in advanced societies such as France and
Germany. Hundreds of thousands of Jewish refugees fled from the more
antisemitic countries to relatively hospitable lands, especially the
United States and Britain. Some became Zionist pioneers in Palestine.

The Zionist movement, formally organ-ized by Theodor Herzl in 1897,
argued that the Jewish problem necessitated a state for the Jews in
their ancient homeland, the Land of Israel being the one place where
a Jew could deal with the nations of the world as a host and not a
perpetual and often unwelcome guest. Zionist theorists reasoned that
such a state would provide the Jewish people with a refuge and a
dignified existence. The gentile powers should welcome it for taking
unwanted Jews off their hands. Also, to the extent that it would
normalize the status and raise the moral stature of all Jews, even
those remaining in the Diaspora, every country with a Jewish
population would gain from its existence. Finally, the Zionists
envisioned that a Jewish state in Palestine would benefit the Arabs,
there and in the surrounding territory, because it would bring to
these technologically undeveloped, politically repressed and
economically poor people the benefits of Western science, the
opportunity to share in the fruits of Jewish commerce and capital,
and an example--and perhaps a model--of national liberation and
self-determination.

For nearly a hundred years before World War I, Palestine received
innumerable visitors from abroad, especially from Britain. Nearly
all, it seems, wrote books, and these testified in unison to the
land's desolation, sparse population, and poverty. When the Zionist
settlers arrived, they farmed and developed Palestine far more
productively than the Arabs had, exceeding common expectations of
what was possible. But, it was widely believed that Palestine's
neglect over the centuries had ruined the land permanently,
precluding substantial population increases. This led some important
men in Britain to dismiss Zionism as an unrealistic cause.

Nonetheless, certain British political leaders, including Arthur
Balfour, David Lloyd George, and Winston Churchill, developed
enthusiasm for Zionism. All three of those men became acquainted with
political Zionism during the movement's infancy. In 1902, Balfour,
then prime minister, grappled with the consequences of Russian
pogroms and Jewish statelessness as Parliament debated immigration
legislation, a debate Herzl entered personally through his testimony
before a Royal Commission. While in Britain, Herzl initiated talks
with His Majesty's Government on what became a series of proposals
for a Jewish refuge within the British Empire--respectively, in
Cyprus, the Sinai, and Uganda. In those discussions, Lloyd George
served as the Zionists' lawyer. Responding to a question on these
talks, Churchill, as under-secretary for the Colonial Office in 1906,
endorsed Jewish aspirations: "I recognise the supreme attraction to a
scattered & persecuted people of a safe & settled home under the flag
of tolerance & freedom." In the view of such men, the Jewish
nationalist cause combined morality, justice, economic
practicability, and strategic advantage for Britain. This conviction
gained intensity after the Great War put Britain and the Ottoman
Empire on opposite sides, and especially after Lloyd George became
prime minister late in 1916.

During the Great War, British officials were impressed by the
contributions of leading Zionists to the Allied war effort,
contributions that included Chaim Weizmann's scientific breakthrough
in aid of British munitions production; the efforts of Joseph
Trumpledor and Vladimir Jabotinsky to organize Jewish military units;
and the Aaronsohn family's valuable espionage work in Palestine. As
intelligence developed by the Zionists was molding Allenby's strategy
for an inland thrust through Beersheba to Jerusalem, the Arabs of
Palestine were fighting for the enemy and evincing no support for
Britain's vision of an Arab nationalist revolt against the Turks. The
British War Cabinet appreciated that support for the Zionists could
serve its interests against the Ottoman Empire in the war, and
against French imperial ambitions after the war. Moreover, the
British government in 1917 believed the Allies urgently required the
political support of the reputedly influential Jewish communities in
the United States and in Russia. The Americans had entered the
conflict only in April of that year, and with considerable
misgivings. Meanwhile the Russians, stunned by the overthrow of the
Czar in the February revolution, appeared about to drop out. All of
this gave impetus to the Zionists' proposal that Britain formally
declare support for their cause, an idea rendered pressing by
Britain's fear that Germany might issue a pro-Zionist declaration
first.

Thus, what the British foreign minister described as "sympathy with
Jewish Zionist aspirations" combined with pragmatic, strategic
considerations to bring about the Balfour Declaration of November 2,
1917:

"His Majesty's Government view with favour the establishment in
Palestine of a national home for the Jewish people, and will use
their best endeavours to facilitate the achievement of this object,
it being clearly understood that nothing shall be done which may
prejudice the civil and religious rights of non-Jewish communities in
Palestine or the rights and political status enjoyed by Jews in any
other country."

The vision underlying the Declaration was that Palestine would be the
land in which the Jewish people could exercise self-determination,
while the Arab people, who had at the time no independent states of
their own, would be given generous opportunities to exercise
self-determination in the vast territories that Britain and her
Allies were liberating from the Ottoman Empire in Syria, Lebanon,
Mesopotamia, and Arabia. This explains the distinction, reflected in
the Declaration, between civil and religious rights on the one hand
and political rights on the other. While protecting everyone's civil
and religious rights, the Declaration made no reference to any
collective political rights for Palestine's non-Jewish communities.

The term "national home" as opposed to "state" or "commonwealth"
appeared in the original (July 1917) Zionist Organization draft of
the Declaration. It echoed the venerated First Zionist Congress
(1897), convened by Herzl: "The aim of Zionism is to create for the
Jewish people a home in Palestine secured by public law." Though
Herzl's intention to create a Jewish state was a matter of record, a
resolution in favor of a "home" was deemed less likely to antagonize
the Ottoman rulers of Palestine. Similarly, the Zionists during World
War I knew that a flexible neologism like "national home" would be
more palatable to the British government than a precise term like
"state."

British officials did not want to commit themselves to a state if the
Zionists proved unable to attract enough Jews to Palestine to govern
by majority rule. The promulgators of the Balfour Declaration made it
clear, however, that they intended the Zionists to establish a Jewish
state or commonwealth in Palestine if Jewish immigration there were
ample and economically successful. According to the minutes of the
War Cabinet meeting that considered the Declaration:

"As to the meaning of the words 'national home,' to which the
Zionists attach so much importance, [Balfour] understood it to mean
some form of British, American, or other protectorate, under which
full facilities would be given to the Jews to work out their own
salvation and to build up, by means of education, agriculture, and
industry, a real centre of national culture and focus of national
life. It did not necessarily involve the early establishment of an
independent Jewish State, which was a matter for gradual development
in accordance with the ordinary laws of political evolution [emphasis
added]."

In testimony before the 1937 Palestine Royal Commission, Lloyd George stated:

"There could be no doubt as to what the cabinet then had in their
minds. It was not their idea that a Jewish State should be set up
immediately by the peace treaty...On the other hand, it was
contemplated that, when the time arrived for according representative
institutions to Palestine, if the Jews had meanwhile responded to the
opportunity afforded them...and had become a definite majority of the
inhabitants, then Palestine would thus become a Jewish commonwealth.

The notion that Jewish immigration would have to be artificially
restricted in order to ensure that the Jews should be a permanent
minority never entered into the head of anyone engaged in framing the
policy. That would have been regarded as unjust and as a fraud on the
people to whom we were appealing."

When the Balfour Declaration spoke of "Palestine," to what territory
was it referring? This question has no simple answer because
Palestine had never been the name of any country. It was a region
within the Ottoman Empire, but was not an administrative unit. The
1911 edition of the Encyclopedia Britannica, in its entry on
"Palestine," said that "the limit of this territory cannot be laid
down on the map as a definite line." It added: "The River Jordan, it
is true, marks a line of delimitation between Western and Eastern
Palestine; but it is practically impossible to say where [Eastern
Palestine] ends and the Arabian desert begins." It was standard in
the geographical literature of the period to employ the terms
"Western Palestine" and "Eastern Palestine," the latter referring to
what was later called Trans-Jordan and is now the Kingdom of Jordan.

Of what relevance is the Balfour Declaration today? It is not, after
all, a legal instrument. When issued, it was merely a statement of
British government policy. But it achieved the status of
international law through the Palestine Mandate.

The Palestine Mandate

The mandate system was a legal innovation of the Versailles Peace
Conference. Its proponents, led by President Wilson, intended to do
away with the ancient practice of victors asserting ownership over
conquered foreign lands. The victorious Allies of World War I agreed,
at Wilson's insistence, to limit their own authority with respect to
such lands. This limitation was embodied in Article 22 of the League
of Nations Covenant, which says that territorial conquests should be
administered by states acting not as owners, but as trustees under
mandates, supervised by the League, which would form "sacred trust[s]
of civilization."

On this foundation, the Allies created the Palestine Mandate.

When World War I ended, the Arab world (a term that then referred
only to lands east of Egypt) was mostly under British control. This
included Palestine, on both sides of the Jordan River, Mesopotamia
(that is, present-day Iraq) and much of the Arabian peninsula. France
controlled Syria and Lebanon. Sovereignty remained with the Ottoman
Empire, however, pending conclusion of a peace treaty.

The Allies met in San Remo, Italy in April 1920 to draft the peace
treaty they wished to impose on Turkey. There they agreed that France
would receive the mandate to administer Syria (including Lebanon),
while Britain would receive two mandates, one for Mesopotamia and one
for Palestine.

The preamble of the Palestine Mandate begins as follows:

"[T]he Principal Allied Powers have agreed, for the purpose of giving
effect to the provisions of Article 22 of the Covenant of the League
of Nations, to entrust to a Mandatory selected by the said Powers the
administration of the territory of Palestine, which formerly belonged
to the Turkish Empire...."

Note that the creator of the trust--the settlor or grantor, in legal
parlance--is not the League of Nations, but the Principal Allied
Powers. And it is those Powers, and not the League, which selected
Britain to serve as Mandatory (i.e., trustee).

The second clause of the preamble reads:

"[T]he Principal Allied Powers have also agreed that the Mandatory
should be responsible for putting into effect the declaration
originally made on November 2nd, 1917, by the Government of His
Britannic Majesty, and adopted by the said Powers, in favour of the
establishment in Palestine of a national home for the Jewish people,
it being clearly understood that nothing should be done which might
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...."

Hence, the Mandate explicitly adopted the Balfour Declaration and
quoted its essence in full. In other words, what the Mandate mandated
was implementation of Britain's pro-Zionist wartime pledge. When
presenting the Mandate to the League of Nations, the British
representative, Balfour, declared:

"Remember that a mandate is a self-imposed limitation by the
conquerors on the sovereignty which they obtained over conquered
territories. It is imposed by the Allied and Associated Powers on
themselves in the interests of what they conceived to be the general
welfare of mankind....[T]he League of Nations is not the author of
the policy, but its instrument....

Now, it is clear from this statement, that both those who hope and
those who fear that what, I believe, has been called the Balfour
Declaration is going to suffer substantial modifications, are in
error. The fears are not justified; the hopes are not
justified....The general lines of policy stand and must stand. "

The third clause of the preamble is especially significant:

"[R]ecognition has thereby been given to the historical connection of
the Jewish people with Palestine and the grounds for reconstituting
their national home in that country..."

Here the drafters highlight, as the grounds or source of the Jewish
people's rights in Palestine, "the historical connection of the
Jewish people with Palestine." The Mandate contains no granting
clause by which the Allies or the League say they are giving the Jews
a right to a state or homeland in Palestine. Instead the Mandate
recognizes pre-existing Jewish rights, rights that flow from Jewish
history. The drafters pointedly used the word "reconstituting" to
describe the building of the Jewish national home in Palestine. As we
have seen, the British government stressed that the Allies obtained
certain rights based on conquest, but it did not assert that the
Jewish people's rights in Palestine derived from those of the Allies.

Traditional international law would have supported the Allies' right,
as victors, to dispose of Palestine as they saw fit. It is
noteworthy, however, that Britain and the League took pains to ensure
that their "legislative" decision in favor of the Jewish national
home was associated harmoniously with the Jews' claims of historical
ties to the Land of Israel. They wanted to make clear that the new
positive law on Palestine had a definite moral and historical
foundation. In this era of Wilsonian idealism, there were those who
believed that Zionism legitimated the British administration of
Palestine more than the other way around. As Elizabeth Monroe, a
British historian with little sympathy for Zionism, put it: "the
British climbed on the the shoulders of the Zionists in order to get
a British Palestine." Moreover, British officials believed that the
practical success of the Jewish national home policy hinged on the
Jews' confidence that their rights in Palestine were not a gift from
anyone. The British government's 1922 White Paper on Palestine made
this point:

"[I]n order that [Palestine's Jewish] community should have the best
prospect of free development and provide a full opportunity for the
Jewish people to display its capacities, it is essential that it
should know that it is 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."

The first articles of the Mandate state that Britain is to use its
full administrative powers in Palestine to "plac[e] the country under
such...conditions as will secure the establishment of a Jewish
national home," to encourage "local autonomy" and to recognize the
Zionist Organization as the Jewish agency to serve as interlocutor
with the Mandatory Administration on matters "as may affect the
establishment of the Jewish national home and the interests of the
Jewish population in Palestine." There is no provision for the
creation of an Arab agency for Palestine, which reflects the original
conception that the Arabs would set up their state or states
elsewhere, making Arab administrative bodies in Palestine unnecessary.

Article 6 says:

"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."

Facilitating Jewish immigration and encouraging "close settlement by
Jews on the land" are set forth as the administration's express
duties, thereby recognizing the corresponding rights of the Jews in
their national home. "Under suitable conditions," the phrase
qualifying the former duty, was originally understood as a reference
to the land's so-called economic absorptive capacity.

The Mandate does not use the words "Arab" or "Arabs," though Article
22, as a means of protecting the civic rights of all the communities,
does state that English, Arabic, and Hebrew shall be official
languages in the territory.

Which brings us to Article 25--the focus of a great controversy. But
before parsing it, we must return to our chronology.

Churchill's Intervention

In the months following the April 1920 San Remo Conference, at which
the Middle Eastern mandates were drafted, Britain faced difficult
problems in the region. First among these was: How to cut the cost
of its postwar military deployments there? Second was: How to protect
its various, delicate diplomatic and legal arrangements with
France--strained as a result of Anglo-French differences in Europe as
well as the Middle East--from further damage at the hands of
Britain's Arab clients, the Hashemite family, who were asserting
claims to French mandate territory in Syria.

The Hashemites, descendants of the Prophet Mohammed and the guardians
of the Moslem Holy Cities, Mecca and Medina, had declared their
region of western Arabia, known as the Hedjaz, an independent kingdom
in 1916. Britain granted recognition. The king's sons, Feisal and
Abdullah, led the small Arab force that fought the Turks in World War
I alongside the brilliant, if bizarre, British Colonel T.E. Lawrence
("of Arabia"). On the basis of some exquisitely indefinite British
wartime promises, the Hashemites believed themselves entitled to a
new kingdom comprising most of the Middle East. To win his own state,
the Hashemite Emir Feisal was willing to welcome the creation of a
Jewish state in Palestine.

In January 1919, Feisal, acting on behalf of the Arab Kingdom of the
Hedjaz, entered into a formal written agreement with Chaim Weizmann,
leader of the Zionist Organization. The Arab side pledged to support
all necessary measures for implementing the Balfour Declaration and
"to encourage and stimulate immigration of Jews into Palestine on a
large scale, and as quickly as possible to settle Jewish immigrants
upon the land through closer settlement and intensive cultivation of
the soil." In return, the Jewish side pledged to support "the closest
possible collaboration in the development of the Arab State," in
harmony with the aspirations of the Arab national movement, and to
provide Zionist "experts" to help the Arab state develop its economy.
Feisal conditioned the agreement on the prompt establishment of an
independent Arab state reaching from Turkey to the Indian Ocean.

Alas, this early land-for-peace deal with the Arab leader came to
naught. The notables from around the Arab world who gathered in
Damascus after the war were willing to accept Feisal's leadership,
but not an accommodation with the Zionists. Furthermore, in the
summer of 1920, French forces expelled Feisal from Syria, thus
aborting the Kingdom of Syria and negating Feisal's agreement with
the Zionists. The French held Britain responsible for keeping its
Arab friends out of French hair in the future. The opportunity to
rule a vast Arab kingdom from Damascus had induced Feisal to pledge
peace with a Jewish Palestinian state. But the pledge proved anathema
to his constituents, the moment passed, and the offer, once off the
table, disappeared beyond retrieval.

It became the job of Winston Churchill, recently appointed colonial
secretary, to find a way out of Britain's Middle Eastern dilemmas.
Early in 1921, Churchill developed a plan. The key was to transfer to
Arab powers the responsibility for maintaining order in the vast,
undeveloped and generally inhospitable territories of Mesopotamia and
Eastern Palestine. He aimed to satisfy the Hashemites by having
Feisal elected king in Mesopotamia and allowing Feisal's brother, the
less well-regarded Abdullah, to try his hand as ruling Emir of
Eastern Palestine. Thus came into being both the Hashemite Kingdom of
Iraq, which lasted until the revolution of 1958, and the Hashemite
Emirate of Trans-Jordan, which in 1946 gained independence as the
Kingdom of Trans-Jordan.

Churchill's inclination to put Eastern Palestine under Arab
administration--to lop off around 80 percent of the territory
originally available for the Jewish national home--caused
consternation among the Jews. It moved Chaim Weizmann to write
Churchill that a Jewish national home confined to Western Palestine
was altogether inadequate:

"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.... 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."

Meanwhile, representatives of the leading Arab families of Palestine
sent Churchill a memorandum of their own. Though they rejected the
notion that the Arabs of Palestine are a nationality different from
that of the Arab people in general, they organized themselves
politically to fit within the "imperialist" boundaries they hoped to
erase. Hence, it was in the name of the Palestinian Arab Congress
that they wrote to Churchill declaring the Balfour Declaration
invalid, stating that "Palestine belongs legally to the Arabs" and
contending not only that the Jews have no rights in the land, but
that they have no rights at all as a national group: "[T]hey have no
separate political or lingual existence." The Arab leaders creatively
used the phenomenon of antisemitism as an argument against Zionism:

"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.