Aboriginal Rights of the Jewish People

Reconciling subsequent rights of the Palestinian People with prior rights of the Jewish People.

Allen Z. Hertz was senior adviser in the Privy Council Office serving Canada’s Prime Minister and the federal cabinet, including with respect to aboriginal issues. He formerly worked in Canada’s Foreign Affairs Department and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He studied European history and languages at McGill University (B.A.) and then East European and Ottoman history at Columbia University (M.A., Ph.D.). He also has international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.).


“The Jewish people have forged a successful state in their historic homeland,” said USA President Barack Obama in his speech to the General Assembly of the United Nations on September 21, 2011. This theme of “People” and “historic homeland” has for centuries resonated with Jews around the world. But, the President’s words were the more welcome, because our own time sees an increasingly bitter controversy over the Jewish People’s right to self-determination in a part of its larger aboriginal homeland.

That fierce debate inevitably revolves around the political and legal doctrine of the self-determination of Peoples. There is also the companion doctrine of aboriginal rights. The Jewish People is a small indigenous minority in the Arab Mideast, which in turn is an important part of the greater Muslim world that also includes key countries like Turkey, Iran, Pakistan and Indonesia. The Organization of Islamic Cooperation has fifty-seven member States.

What are aboriginal rights?

To speak of aboriginal rights suggests that there is significant moral, political and legal weight to the circumstance that then self-identified “Jews” — though periodically persecuted and perennially victims of discrimination — nonetheless for around 26 centuries always kept some real demographic and cultural ties to their ancestral homeland.

In this aboriginal vein, the 1948 Declaration of the Establishment of the State of Israel referred to a “natural and historic right” to “the birthplace of the Jewish People,” where “Jews strove in every successive generation to reestablish themselves.”

There is also added legal weight from specifically relevant treaties which are the highest source of public international law. During and after the First World War (1914-1918 CE), a series of declarations, resolutions and treaties explicitly recognized the Jewish People’s historic connection to its aboriginal homeland. Thus, the Israel Cabinet on December 2, 2012, affirmed: “The Jewish People has a natural, historical and legal right to its homeland.”

The concept of aboriginal rights has been well understood by other Peoples, e.g., by the Greek People in the 19th century CE, when it fought for independence from the Ottoman Empire. Now speaking articulately about their aboriginal and treaty rights, the Indian tribes of Canada astutely perceive that law is akin to an ongoing discussion about rights, in which it is essential to offer meaningful arguments.

And, that legal discussion is also a place where a small People tells its own story, which can be a compelling narrative that engages the conscience of others more powerful. Exactly such a reflection of gentile conscience was the April 1799 proclamation which Napoleon Bonaparte addressed “to the Jewish People.” Therein, Napoleon described the Jews as “lawful heirs” to their “ancestral land.”

Palestinians “a People” but Jews not?

Denying or minimizing Jewish rights is an integral part of the ongoing war against the Jewish People and Israel. For example, both Palestinian leader Mahmoud Abbas and former Iranian President Mahmoud Ahmadinejad deny that the Jews are a People, within the context of the modern political and legal doctrines of aboriginal rights and the self-determination of Peoples.

This rejection of Jewish peoplehood is astonishing! The early modern European Peoples probably derived their understanding of what it means to be a People in history, principally from the example of the Jewish People, as set out in the Hebrew Bible which, in its various translations, was one of the foundation stones of European civilization.

Such long-standing Jewish peoplehood is consistent with an enormous body of archaeological and other historical evidence demonstrating that — like the Greek, Armenian or Han Chinese Peoples — the Jewish People is among the oldest of the world’s Peoples. Now, a quarter-century of genome research has produced a totally new kind of evidence suggesting that most of today’s Jews are, to an appreciable extent, genetically interrelated and significantly descended from the Jews of the ancient world.

What is a People?

Linguists theorize about a proto-Semitic language which perhaps suggests some kinship among prehistoric Semitic-speakers, long before the emergence of the Hebrew language (Biblical Hebrew: “yahudit” ) and the religion of Judaism. But “peoplehood” is about much more than just genetics. It is also a complex sociological phenomenon and, as such, an abstraction and mostly a cultural invention. Nonetheless, peoplehood is one of the principal motors of world history.

Opting to self-identify consistently as a specific People, a human population takes a particular name (e.g., יהודים‎ Yehudim = Jews) and shares a variable range of relatively distinct civilizational features, for example — ancestors, history, homeland, territory, language, literature, religion, culture, economy and institutions. And in addition to such subjective identity, a People normally attracts objective identity in the eyes of its friends and enemies, who from each succeeding century provide us with valuable historical evidence about its existence and characteristics.

Critical is this reference to subjective and objective evidence from each successive period. For example, a People cannot today claim to be aboriginal, solely by virtue of some recently alleged genetic descent from a culturally remote or unrelated ancient People with a different name. Today turning to antiquity to make an aboriginal claim in its own name, a modern People needs to show not its genetic roots, but rather a continuing socio-cultural identity that reaches back across each century to the relevant historical time.

Logically, a current People cannot now make an aboriginal claim in its own name with respect to historical periods before its own ethnogenesis, i.e. when it did not yet self-identify as that particular People. By the same reasoning, a distinct People’s right to national self-determination cannot be claimed in its own name so as to retroactively apply in an historical period prior to its own ethnogenesis.

And to be sure, human populations sometimes rebrand with new self-identifications that are normally politically meaningful. Thus, a new People emerges from time to time; while an older People may significantly subdivide or disappear — in most cases, with genes and cultural characteristics partly persisting in populations of one or more other Peoples.

Which is “the” aboriginal People?

Among the distinct, self-identified Peoples now living in a country or region, the one with the best claim to be aboriginal is the People which was there first in timeWithout reference to numbers, this now existing aboriginal People is distinguished from the other current local Peoples which subsequently either were formed in the land (indigenous) or came there via conquest, migration and settlement.

For example, the Indian tribes in Canada are commonly called “the First Nations.” They are still the aboriginal Peoples there, even though some of these tribes now number only a few hundred individuals. Their status as “first in time” is not lost because they are now just a fraction of Canada’s population.

Like the First Nations, the Jewish People for more than two millennia has always had the strongest claim to be the aboriginal People in its ancestral homeland — though for most of those centuries, Jews there were but a small percentage of the inhabitants. Nor is this persistent Jewish claim to be the aboriginal People there weakened because the majority of Jews have at various times lived elsewhere.

Aboriginal versus majority rights

Aboriginal rights are not invariably minority rights. However, in a minority context, aboriginal rights significantly contrast with majority rights, and limit the right of the current majority to decide all matters without regard to the aboriginal minority. This reminds us that “majority rules” is not a universal moral, political or legal principle that invariably applies to all subject matter, under all circumstances, and at all times.

Consistent with the minimum content of aboriginal rights, Jews have always claimed, inter alia, the right to visit or dwell in their ancestral homeland. And, they have regularly done so for more than two thousand years. Across the centuries, some then self-identified “Jews” always lived in their homeland; and some other Jews, whether from the Mideast or abroad, persistently perceived a duty and desire to join them there. For close to two millennia, first Christianity and then also Islam — as kindred Abrahamic faiths — generally understood the broader context in which the Jewish People had a special connection to the land of its birth. Thus, minority status there did not in itself cancel these key aboriginal rights of the Jewish People.

“Majority rules” in judgments about history

Abundant polemical references to historical demography suggest that imagining a hypothetical majority vote in earlier periods is often an unspoken premise underlying current judgments about the moral weight of history. If so, it needs to be appreciated that “majority rules” is significantly more procedural than substantive. We can therefore suppose that since antiquity there was never a time when a moral or natural-law right to bar Jews from their aboriginal homeland could then have been derived simply from a hypothetical majority vote. In every conceivable instance, there would also have to have been then alleged some further compelling reason (e.g., self-defense) as a moral or natural-law justification for then overriding such long-standing Jewish rights.

And, the moral or natural-law cogency of any such additional reason for then barring Jews would, with reference to each historical case, have to be carefully weighed within the specific equities of that particular time and space, for which that justification is invoked. This requirement of contemporary and contextual fairness points to some strikingly different historical situations, i.e. unique circumstances then touching — e.g., the whole Ottoman or British Empires; Mandate Palestine both east and west of the Jordan River; or just all or part of the territory from the Jordan River to the Mediterranean Sea. Nor logically can such a retrospective moral or natural-law justification for then barring Jews anachronistically refer to the interests of a distinct Palestinian People for periods before 1967 CE, when local Arabs did not yet generally self-identify as “the Palestinian People.”

Moreover, more than a grain of salt is needed for now making judgments about the moral weight of history based on the fiction of such hypothetical majority votes in earlier historical periods. The stark reality is that the majority principle is merely a democratic “decision rule” that now selects among present alternatives. The dead cannot rise from the grave to vote today nor can we now issue the writs for holding a referendum in the past. Thus, “majority rules” is a principle that applies right now in the present, but not retroactively to an earlier historical period.

For this reason, the majority principle alone cannot now confer rights on a current minority, solely because it had once been the majority. Thus, the fact that a century ago, Muslims or Arabs were the majority between the Mediterranean Sea and the Jordan River does not by itself now create any political, moral or legal right as against the Jewish People, whose presence there was always aboriginal and non-colonial.

Names/extent of the aboriginal home

Generally and locally, most Muslims and Arabs stubbornly reject the legitimacy and permanence of Israel as “the” Jewish State, i.e. as the political expression of the self-determination of the Jewish People in a part of its larger aboriginal territory. That big ancestral homeland stretched from the Mediterranean Sea to lands east of the Jordan River. For example, the Hebrew Bible tells us that the Twelve Tribes straddled the Jordan River. Also extending eastward across the Jordan River was the northern kingdom of ancient Israel and then later Hasmonean Judea. Since antiquity, this country was known to Jews as “the land of Israel” — in Hebrew, Eretz Israel (ארץ ישראל).

Christianity adopts elements from Judaism; and Islam similarly draws from the two older monotheistic religions. For this reason, “the Holy Land” as later understood by Christians (Latin: terra sancta) and by Muslims (Ottoman-Turkish: arz-i mukaddes) was geographically identical to the earlier Jewish concept of Eretz Israel. 

What was “historic” Palestine?

For Christians, including those speaking Arabic, the Holy Land was also “Palestine.” This toponym was for centuries nothing more than an historical reference, i.e. a fond memory of the early 7th century CE, when Palestine was still a province of the Roman-Byzantine Empire, where Christianity was then the official faith. Thus, a visit to the Holy Land prompted Mark Twain to observe (1869 CE): “Palestine is no more of this work-day world. It is sacred to poetry and tradition — it is dream-land.”

This non-existent Palestine was for centuries imagined on European and American maps as invariably including lands east of the Jordan River. From the late 4th century CE until 1946 CE, the geographical notion of “Palestine” has always included part or all of the territory that is now the Hashemite Kingdom of Jordan. Thus, the 1911 edition of the Encyclopaedia Britannica accurately expressed the contemporary geographical understanding that “Western Palestine” was separated by the Jordan River from “Eastern Palestine” which extended as far as the beginning of the Arabian desert.

Always Jews in the Holy Land?

Though Classical demography is a guessing game, Jews may have numbered several million in the early Roman Empire. For more than a century before the 70 CE destruction of the Second Temple, most Jews preferred living in various places around the Mediterranean and beyond, rather than in their aboriginal homeland. Jews nonetheless remained the majority in the Holy Land, perhaps into the 6th century CE. Though some Jews always preferred to stay in their homeland, others were continually moving in and out — a migratory pattern that has endured to this day.

The Hebrew Bible, the Christian Gospels and the Muslim Koran all refer to the Jewish People and its connection to the Holy Land. Since antiquity, there has never been a time when Jews were absent from the Holy Land. Even when Jewish numbers dropped to a low point, the Holy Land was still home to Rabbis famous throughout the Jewish world. With around 2,600 years of continuous history, the then self-identified “Jewish” People kept a subjective/objective identity that always included significant demographic and cultural links to its native land.

In the first four centuries CE, the Jews of the Holy Land played a key role in Jewish civilization, including completion of the Jerusalem Talmud. Documents from the Cairo Geniza reveal much about Jewish life in the Holy Land from the Muslim conquest in the fourth decade of the 7th century CE to the Crusader victory in 1099 CE.

During the Crusader period, Acre was an important center for Jews, about whom we learn from a variety of sources, including accounts by the 12th-century Jewish travelers Benjamin of Tudela and Rabbi Petachia of Ratisbon. Acre was then for a brief time the home of Moses Maimonides and later of Moses Nachmanides — two famous Rabbis who encouraged Jews to live in Eretz Israel.

During the Mamluk period (1250-1516 CE), Jerusalem was the seat for a deputy to the Egypt-based nagid who headed all the Jewish communities of the sultanate. Fifteenth-century Holy Land Jews also feature in the letters of Rabbi Obadiah ben Abraham Bertinoro and the travelogues of Christian pilgrims like Arnold van Harff, Martin Kabatnik and Felix Fabri. There were also always Jewish pilgrims, about whom a local Jewish guide (early 1480’s CE) told Felix Fabri:

The Jews pile up these stones to occupy a place beforehand, for they hope that erelong they will again inhabit the Holy Land; and therefore their pilgrims, who come from far countries, take places beforehand, in which places they hope that they shall dwell after the return.

Richer are sources from the four Ottoman centuries ending in 1917 CE. For example, 16th-century Ottoman registers (defter-i mufassal) record the names of Jewish tax-payers. Evidence also comes from documents like some late 18th-century account books of the Jerusalem Jewish community. With the 19th century CE, travel books and consular reports join a flood of other sources about local Jews who also told their own stories. Though the number of Jews grew absolutely, they remained just a small fraction of the total population which — including Muslims, Christians and Jews — remained astonishingly low; in fact, very much lower than in the early Roman Empire.

Aboriginal rights of the Greek People

The modern Jewish People is aboriginal to its ancestral homeland in the same way that the Greek People is aboriginal to Greece. In the early 19th century CE, some prominent personalities like the English poet Lord Byron enthusiastically championed the aboriginal rights of the Greek People. Partly for this reason, some of the European Powers intervened to help the Greeks win their independence from the Ottoman Empire. In 1821 CE, when the Greeks began their revolt against the sultan, they were probably a minority of the population in the territory that is now modern Greece. In the 19th and 20th centuries CE, Greek history has been partly about the hundreds of thousands of Diaspora Greeks, who gradually returned to their core ancestral homeland. For example, many returned to Greece after the First World War, when British Prime Minister David Lloyd George unsuccessfully backed the aboriginal rights of the Greek People to the Anatolian littoral. There, large Greek communities had persisted from antiquity until 1922 CE, when they were finally destroyed by the Turks.

Aboriginal rights of the First Nations

Conceptually, the Jewish People is aboriginal to its ancestral homeland in the same way that the First Nations or Indian tribes are aboriginal to their ancestral lands in the Americas. The modern Jewish People claims both aboriginal and treaty rights to parts of its ancestral homeland. Aboriginal and treaty rights are also claimed by the Aboriginal Peoples of Canada, including the First Nations. They strongly believe that their sovereign rights to their tribal lands extend back to the beginning of time, i.e. long before the origins of European, international, and Canadian law. In the same way, the Jewish People’s claim to its ancestral homeland reaches back to antiquity and thus antedates the post-Classical birth of both Europe and the Islamic civilization.

Common Law courts began recognizing aboriginal rights in the 19th century CE. From 1982 CE, the rights of the Aboriginal Peoples of Canada have explicitly featured in Canada’s Constitution Act. The Supreme Court of Canada has decided that, where a First Nation maintains demographic and cultural connections with the land, aboriginal title (including self-government rights) can survive both sovereignty changes and the influx of a new majority population, resulting from foreign conquest. Dealing with claims of right on all sides, the Court seeks to reconcile the subsequent rights of newcomers with the aboriginal rights of a First Nation. The concept of aboriginal rights is also an important legal topic in Australia, New Zealand and the United States, and is now receiving more attention internationally.

Spot on is the comparison between the aboriginal rights of the Jewish People and those of the First Nations of the Americas. On either bank of the Jordan River, “the Jewish People” was the aboriginal tribe and “the Arab People” the interloping settler population, including newer waves of Arab immigration in the 19th and 20th centuries CE.

A thousand years ago or today, then self-identified “Jews,” returning to join other Jews in the Holy Land, are not like the 17th-century Pilgrim Fathers who built English “settlements” in America, where they had neither ancestors nor native kin. Nor is the Jewish People in its own aboriginal homeland to be compared with the Dutch Boers in South Africa or the French colons in Algeria.

Aboriginal rights of the Jewish People

Like the Greek People or the First Nations, the self-identified “Jewish” People, under that same name, has for more than two millennia continuously affirmed its historical connection to its ancestral homeland. Thus, Eretz Israel has for around 26 centuries been a central element in the religion of Judaism. Moreover, Jewish law (Hebrew: “halacha” ) has always recognized the Jewish People’s legal rights to its aboriginal homeland.

How should we approach this phenomenon? One of the options is to look at the role assigned to history and civilization in the aboriginal case law of the Supreme Court of Canada. There, in a secular context, Judaism’s persistent emphasis on God’s gift of Eretz Israel to Abraham and his descendants (Genesis, Chapter 15) would likely be seen as anthropological evidence of the continuing importance of that particular land in the distinct culture of that specific tribe, i.e. the Jewish People.

Of all extant Peoples, the Jewish People has the strongest claim to be aboriginal to the Holy Land. There, the Hebrew language (Biblical Hebrew: “yahudit” ) and the religion of Judaism gradually emerged, leading to the birth of a then self-identified “Jewish” People, perhaps around 2,600 years ago. Before then, the Holy Land was home, inter alia, to the immediate ancestors of the Jewish People, including personalities like Kings David and Solomon, famous from the Hebrew Bible.

Still earlier or at the same time, the Holy Land was also home to other Peoples — like the Phoenicians, Ammonites, Moabites, Edomites, Philistines and Samaritans. But with the sole exception of the few surviving Samaritans, all of those other Peoples have long since vanished from the world. Nobody today is entitled to make new claims on their behalf, including by reason of a supposed genetic descent that is only recently alleged and without sound basis in history and genome science.

What then of that dramatis persona of world history known as “the Arab People”? As such, the great Arab People is aboriginal to Arabia, not the Holy Land. The religion of Judaism, the Hebrew language (Biblical Hebrew: “yahudit” ), and a then self-identified “Jewish” People had already been established in the Holy Land for about a thousand years before the 6th-7th century CE ethnogenesis in Arabia of the great Arab People — the birth of which was approximately coeval with the emergence of Islam and Classical Arabic.

From the initial Muslim conquest of the Holy Land in the fourth decade of the 7th century CE, Jews there suffered persistent discrimination and periodic persecution. However, neither the Arab People nor subsequent invaders succeeded in eradicating the local Jewish population or bringing an end to the links between the Jewish People and its aboriginal homeland.

Jews are today no longer a minority between the Mediterranean Sea and the Jordan River. This means that the Jewish People can now draw some greater benefit from the key doctrine of the self-determination of Peoples, which normally allocates territory by the national character of the current local population. At the same time, the Jewish People also continues to affirm aboriginal rights to parts of its ancestral homeland. And, it will be seen that these Jewish aboriginal rights still have some political and legal significance in the ongoing dispute over the refusal of most Muslims and Arabs to recognize the legitimacy and permanence of Israel as the Jewish State.

The Jewish State

Most Jews round the world see Israel as “the” Jewish State, i.e. as the political expression of the self-determination of the Jewish People in a part of its larger ancestral homeland. Like other Peoples, the Jewish People has a right to self-determination. Though the self-determination of the great Arab People is expressed via twenty-one Arab countries, Israel is the sole expression of the self-determination of the great Jewish People. Some Western thinkers are now uncomfortable with the idea of a nation-State as the homeland of a particular People. If so, there is no special reason to target Israel, because other jurisdictions are also nation-States — for example, the Canadian Province of Quebec, Japan, Greece, and the countries of the Arab League.

In theory and practice, the nation-State model does not have to conflict with fundamental civil and human rights for aliens or for citizens who do not ethnically self-identify as members of the majority People. Moreover, the nation-State can also accommodate collective rights for one or more minority Peoples. And, with regard to such individual and collective rights, Israel domestic law is comparable to what is provided by other legal systems, and superior to what is offered in other countries of the Mideast.

Israel born of the Ottoman Empire

Until the end of the First World War, the Holy Land was part of the Ottoman Empire. Thus, Israel and two dozen other modern countries are successor States of the Ottoman Caliphate, which for four hundred years (1516-1920 CE) was the principal Power in the Mideast. Apart from the ruling Turks, the Ottoman Empire was home to other Peoples including Albanians, Greeks, Slavs, Copts, Armenians, Maronites, Alawis, Druze, Kurds, Arabs and Jews. For centuries, these Jews lived in a variety of Ottoman venues including Constantinople, Salonika, Cairo, Alexandria, Damascus, Aleppo, Mosul, Baghdad, Basra, Tiberias, Hebron, Safed, Jaffa, Gaza and Jerusalem.

In October 1914 CE, the Ottoman Empire opted to enter the First World War to fight against the UK and its Allies. As the fortunes of war began to favor the British Army, the UK government addressed the question of what to do with the multi-national Ottoman lands both in the light of current British interests and the 19th-century liberal doctrine of the self-determination of Peoples. In this regard, the father of modern political Zionism, Theodor Herzl, in his 1896 manifesto The Jewish State, had already proclaimed that Jews, though living in many different places around the globe, constitute one People for the purpose of self-determination.

Why the Balfour Declaration?

In October 1917 CE, the British Cabinet decided to favor plans to create “a national home for the Jewish People.” The venue was said to be “Palestine,” a then non-existent country of uncertain extent, that was ultimately described by the League of Nations in 1922 CE as “the Palestine Mandate,” that also included Transjordan (Eastern Palestine), where a Hashemite Emirate had been instituted in 1921 CE.

The UK government’s promise of “best endeavours” to create “a national home for the Jewish People” was motivated by a desire: (i) to help realize the Jewish People’s long-standing claim to self-determination in its ancestral homeland; (ii) to shore up support for the Allied war effort among Jews in revolutionary Russia and the United States; and (iii) to help cover the eastern flank of the Suez Canal, which was then the crucial gateway to British India. The intention to create this “national home for the Jewish People” was announced in the November 1917 Balfour Declaration.

A Palestinian People in 1919 CE?

As Great Britain worked to defeat the Ottoman Turks, the world also began to learn about the national claims of the great Arab People. Here recall the wartime exploits of Lawrence of Arabia and the Hashemite Prince Feisal ibn Hussein, both of whom were present at the 1919 Paris Peace Conference. There, a powerful searchlight was trained on the doctrine of the self-determination of Peoples, including the claims of the great Arab People. But, nobody in Paris knew about a distinct Palestinian People. Had there then been such a Palestinian People, its existence would have been known to Prince Feisal, USA President Woodrow Wilson, France’s Prime Minister Georges Clemenceau, British Prime Minister David Lloyd George and to the other leaders who came to work on the peace treaties.

This assessment is confirmed by extensive local testimony and petitions collected in 1919 CE, by the USA King-Crane Commission. Its report to President Wilson indicated that, in the Holy Land, both the Muslim Arabs and the Arabic-speaking Christians vigorously rejected the plan to create a new country called “Palestine,” which they perceived to be part of the detested Zionist project.

Ever a Muslim State called Palestine?

In 1919-1920 CE, most local Muslim Arabs and Arabic-speaking Christians backed then current plans to create a new Arab State of Greater Syria which they expected would cover what is today Syria, Lebanon, Jordan, the West Bank, Gaza and Israel. For Muslims in the Holy Land, this broader geographic focus of political self-identification was natural, because a large province of Damascus (Ottoman-Turkish: “Şam” ) had at various times featured prominently in Muslim and Ottoman history. By contrast, the Ottoman Empire never had a province or sub-provincial unit called, or co-extensive with “Palestine,” no matter how conceived. Nor had Muslim history ever known a State or a province called “Palestine.”

After the Muslim conquest in the fourth decade of the 7th century CE, the Caliphate for a time kept the old Roman and Byzantine toponym Palaestina, arabicized as Filastin  (فلسطين),  for one district or jund (جند) of the province of Damascus. Straddling the Jordan River, this Jund Filastin covered terrain that was just a part of the larger Palestine that was: previously a province of the Roman-Byzantine Empire; then for centuries remembered by Christians everywhere; and finally realized again in 1922 CE, as “the Palestine Mandate.” The latter was an entirely new jurisdiction that included both Transjordan (Eastern Palestine) and “a national home for the Jewish People” (Western Palestine).

Global self-determination exercise 

The Paris Peace Conference was concerned with the task of accommodating the political interests of the victorious Allied and Associated Powers with the claims to self-determination of well-known Peoples with long histories of self-affirmation and bitter suffering under foreign oppression.

Thus, considered were difficult and entangled issues touching the self-determination of such famous Peoples as the Chinese, the French, the Germans, the Poles, the Finns, the Letts, the Estonians, the Lithuanians, the Czechs, the Slovaks, the Slovenes, the Croats, the Serbs, the Italians, the Hungarians, the Romanians, the Bulgarians, the Greeks, the Turks, the Kurds, the Armenians, the Arabs, and the Jews.

In this larger context, just one decision among many was creation of “a national home for the Jewish People.” And, it is noteworthy that “national home for the Jewish People” was the exact phrase reiterated from 1917 to 1922 CE, in a series of consistent declarations, resolutions and treaties that were ex post facto blessed by the 1923 Lausanne Treaty with the Turkish Republic, as successor to the Ottoman Empire.

Why a national home for the Jewish People?

The decision to realize the self-determination of the Jewish People in a part of its larger aboriginal territory was the rationale for the 1922 creation of “a national home for the Jewish People,” from the Mediterranean Sea to the Jordan River. With legal status akin to a treaty, the Palestine Mandate of the League of Nations (July 24, 1922 CE) recognized a new British jurisdiction that included both Transjordan (Eastern Palestine) and the national home for the Jewish People (Western Palestine).

In April 1946 CE, the last Assembly of the League of Nations blessed the March 1946 treaty severing Transjordan from the Palestine Mandate to become the independent Arab State then dubbed “the Hashemite Kingdom of Transjordan.” In May 1948 CE, the “national home for the Jewish People” became the independent Jewish country called “the State of Israel.”

Decision-makers at the Paris Peace Conference knew the Holy Land to be significantly under-developed and under-populated. They also understood that the new national home for the Jewish People would initially lack a Jewish majority population. However, there was a conscious choice to refer — not just to circa 85,000 Jews then living locally — but also to the past, present and future of the great Jewish People. In this context, the national home for the Jewish People was understood to also pertain to the 14 million Jews worldwide, including the one million then living in the Mideast.

The international decision to create a national home for the Jewish People was made not so much on the basis of local demographics, but explicitly due to “the historical connection of the Jewish People with Palestine.” This was clear recognition of the Jewish People’s long-affirmed and continuing links to its aboriginal homeland. The Palestine Mandate of the League of Nations also contained detailed stipulations requiring the development of the national home for the Jewish People. For example, specific provisions called for “close settlement by Jews on the land,” from the Mediterranean Sea to the Jordan River (Western Palestine).

Did Arabs deserve all the Mideast?

Failure to create a national home for the Jewish People would have meant giving the great Arab People almost the whole of the Ottoman inheritance; and denying the great Jewish People a share in the partition of the multi-national Ottoman Empire, where Jews had lived for centuries, including in the Holy Land. That result would have been unacceptable to David Lloyd George, Woodrow Wilson and their peers. Significantly, they then understood the claim to self-determination of the great Jewish People to be as compelling as that of the great Arab People.

The Paris decision-makers strongly insisted that they had also done justice to the claims of the great Arab People which they believed they had freed from 400 years of Turkish rule and helped on the road to independence via creation or recognition of several new Arab States on lands that had formerly been subject to the Ottoman sultan. For example, 77% of the territory of the Palestine Mandate was Transjordan (Eastern Palestine) which became an independent Arab State in 1946 CE.

What caused the refugee problem?

The international decision to create “a national home for the Jewish People” from the Mediterranean Sea to the Jordan River did not cause the displacement of local Arabs. To the contrary, from 1922 until 1948 CE, the Arab population of Western Palestine almost tripled, while the Jewish population there multiplied eight times. However, in May 1948, local Arabs allied with several Arab States to launch a war to destroy the newly independent Israel. Then, their declared intention was to exterminate the Jews there — just as the Turks in 1922 CE had spectacularly succeeded in liquidating the aboriginal Greek communities of the Anatolian littoral. Thus, emerging mostly after May 1948 was the problem of the Mideast refugees, specifically:

  • about 850,000 Jews from the various Muslim and Arab countries, as well as from those parts of the “national home for the Jewish People” that were conquered by the Arab armies; and
  • about 600,000 Arabs constituting most, but not all, of the Arab population that had been living in those parts of the “national home for the Jewish People” that from 1948 CE came under the Israel government.

Who was “Palestinian” before 1960 CE?

The Jewish People kept the same name and subjective/objective identity consistently from antiquity. By contrast, the dawn of the 20th century CE found the perhaps half million Muslim Arabs of the Holy Land without much attachment to the mostly Christian idea of “Palestine,” which was then a non-existent country that seldom featured in their imagination.

Nor were Muslim Arabs there generally seen as “Palestinian” by their neighbors or by the increasing number of foreigners who visited the Holy Land. For example, 19th-century European and American travelers sometimes spoke about “a land without a People.” This remark was an informed assessment that the few hundred thousand inhabitants of the Holy Land then lacked a distinct national identity, but rather had ethno-religious self-identifications similar or identical to those of the adjacent populations, also under Ottoman rule.

Around 1900 CE, local Muslim Arabs significantly had quite a full set of compelling self-identifications that commonly included — family and clan ties; hometown and neighborhood patriotism; an attachment to Greater Syria; a feeling for Ottoman citizenship; a sense of belonging to the ecumenical Muslim community; and pride in both the Arabic language and the Islamic civilization of the great Arab People.

Focus on the historically Christian term “Palestine” naturally came more readily to the Arabic-speaking Christian minorities of the Holy Land, who by 1900 CE were perhaps no greater in number than the Jews. Thus, Arabic-speaking Christians founded the anti-Zionist newspapers Al-Karmil (Haifa, 1908 CE) and Filastin (Jaffa, 1911 CE) that laid foundations for the eventual emergence of a specifically “Palestinian” nationalism.

By contrast, local Muslims then generally saw “Palestine” as a purely geographical reference that started to become an expedient, and thus attractive, focus for their national self-identification only in the second half of the 20th century CE, about twenty years after three preconditions had been satisfied:

  • 1917-1922 CE, the political rebirth of the name “Palestine”;
  • 1946 CE, the excision of Transjordan from the Palestine Mandate; and
  • 1948 CE, the Jews opt to call their new country “Israel.”


1st precondition for a Palestinian People: “Palestine” reborn 

A People can lend its name to a country. For example, the appellation “England” derives from the Angles, one of the Germanic tribes that settled there during the 5th and 6th centuries CE. A new People can also form by taking its name from a country. Thus, about a century after the 1867 creation of the Canadian Province of Quebec, the French-speaking inhabitants there found it expedient to generally self-identify as québécois. With significant political implications, the newborn québécois People is a subset of the earlier French-Canadian People that still has some important populations in other places like the Canadian Provinces of New Brunswick, Ontario and Manitoba; and also in the New England States of the USA.

This québécois comparison helps explain why local Muslim Arabs did not generally self-identify as “Palestinian” until some time after the birth of a new jurisdiction called “Palestine.” Before the First World War, both Ottoman Turks and Muslim Arabs were familiar with the geographical expression “Palestine.” However, they then generally perceived it to be an indication that was historically Christian, and in usage principally European or Western. More to the point — legally, administratively and politically, there was then no State, province or sub-provincial unit called or coextensive with “Palestine.” Nor had any such jurisdiction existed for many centuries.

Thus, the first precondition for the eventual emergence of a distinct Palestinian People was the stunning political resurrection of the appellation “Palestine.” This historical toponym was politically reborn no earlier than the November 1917 Balfour Declaration, which was soon implemented by the 1922 Palestine Mandate of the League of Nations, covering both Transjordan (Eastern Palestine) and the “national home for the Jewish People” (Western Palestine).

2nd precondition for a Palestinian People: Transjordan leaves Palestine

As previously indicated, a 1946 treaty cut from the Mandate’s territory all of Eastern Palestine which then became an independent Arab State called the Hashemite Kingdom of Transjordan. Now local Arabs began to focus more readily on the toponym “Palestine” exactly because, for the first time, it unambiguously referred to territory that was coincident with the “national home for the Jewish People” (Western Palestine). This smaller Palestine Mandate from the Mediterranean Sea to the Jordan River literally existed for only two years, i.e. between the births respectively in 1946 CE of the Kingdom of Transjordan and in 1948 CE of the State of Israel.

Before 1946 CE, longstanding self-identifications as “Muslim” and “Arab” were generally preferred due to their deep cultural content. By contrast, still relatively unattractive to local Muslims as a focus for their national self-identification remained the mere toponym “Palestine.” From 1922 to 1946 CE, the concept of greater Palestine offered nothing to help local Arabs fight their war against the Jews; while the smaller Palestine from the Mediterranean Sea to the Jordan River (Western Palestine) was then politically and legally still too ambiguous to invite a human population to generally call itself “Palestinian.” For example, nothing then prevented Arab migrants from crossing the Jordan River in either direction; and from 1922 CE, Transjordan (Eastern Palestine) was still explicitly included or excluded in the various interwar treaties which the UK made on behalf of “Palestine.”

Extending well to the east of the Jordan River, greater Palestine clearly had enough room for both Arabs and Jews. Before 1946 CE, local Muslim Arabs did not generally self-identify as “Palestinian” partly because to have done so then would have signaled not so much strong desire to destroy the “national home for the Jewish People” as the logical possibility of peacefully distributing the whole of greater Palestine according to the principle of the self-determination of Peoples.

And, precisely this reasonable expedient was proposed by the UK Peel Commission in 1937 CE. Then recommended was a new “Arab State” to consist of both Transjordan (Eastern Palestine) and the Arab-inhabited parts of the “national home for the Jewish People” (Western Palestine). This proposal was then reluctantly accepted by Jews, but specifically rejected by Arabs both locally and generally.

3rd precondition for a Palestinian People: the name “Israel”

Until May 14, 1948 CE, nobody in Washington knew the name of the new Jewish State. Thus, the name “Israel” had to be added at the last moment as a handwritten correction to the typed text of President Truman’s statement recognizing the government of the new country.

For centuries “Palestine” had been a largely Christian term which Jews sometimes used in a mostly secular context. However, during the Mandate period (1922-1948 CE), local Jews were internationally regarded as “Palestinian” and the adjective was frequently used as synonym for “Jewish.” For example, The Palestine Post was a prominent English-language newspaper that was the voice of the “national home for the Jewish People” and the Palestine Symphony Orchestra had only Jewish musicians. Thus, the name “Palestine” and many other specific features of the Mandate regime were still too closely associated with Jews and Zionism to have then been an attractive focus for the national self-identification of most local Muslims. Thus, they did not generally self-identify using the geographic indication “Palestinian” until approximately twenty years after May 1948 CE, when the Jews had abruptly abandoned the “Palestine” trademark.

The Palestinian People to the 1960’s

Arab leaders had themselves been slow to recognize the existence of a distinct Palestinian People with its own right to self-determination. For example, as principal Arab leader at the Paris Peace Conference, Prince Feisal persisted in his earlier acceptance of the plan to create “a national home for the Jewish People” in Palestine.

Nor was a sovereign Palestine for a distinct Palestinian People the preference of the most famous Arab leader from the 1920’s until the late 1940’s. Grand Mufti of Jerusalem, Haj Amin al-Husseini had been an early fan of Adolf Hitler. Confident of Axis victory in the Second World War (1939-1945 CE), the Mufti in October 1941 promised close cooperation with Germany and Italy in return for their support of his plan to create a united, fascist Arab State to cover all the territory that was then Iraq; Syria; and Palestine, both east and west of the Jordan River.

After the Second World War, the governments of Egypt and Jordan showed how little regard they had for the right to self-determination of a Palestinian People:

  • First, they rejected the 1947 United Nations General Assembly resolution recommending the partition of the area from the Jordan River to the Mediterranean Sea into two new countries — explicitly “the Jewish State” and “the Arab State.”
  • Second, no independent Palestinian State was created between 1948 and 1967 CE, when Egypt held the Gaza Strip and Jordan had East Jerusalem and the West Bank.

The loss of those lands by Egypt and Jordan in the Six-Day War (1967 CE) strongly encouraged the tendency of local Arabs to see themselves as distinct from the Arabs of Egypt and Jordan. Now more clearly spearheading their own irredentist struggle, local Arabs had fresh incentive to also self-identify as “Palestinian.” And all the more so, since the additional self-identification effectively expressed their stubborn determination to eventually master all the territory that in 1922 CE had been internationally recognized as “national home for the Jewish People.”

Nor was this recent Palestinian ethnogenesis the first historical instance of a brand-new national identity forged in the fire of ethno-religious hatred and territorial dispute. For example, consider the significance of the 1930’s invention of the name and idea of “Pakistan” for the 1947 CE emergence of that new country, so solidly based on Muslim identity.

Peaceful rights reconciliation

This analysis neither denies the current existence of a distinct Palestinian People nor suggests that this newborn People is today without rights, including claims to self-determination, independence and territory. Rather, there are now “claims of right” on all sides. Urgently required is a peaceful process that genuinely respects the dignity of both Peoples and effects a reconciliation of the subsequent rights of the newly-emerged Palestinian People with the prior rights of the Jewish People — including Jewish aboriginal, treaty and self-determination rights..

The process must be peaceful, inter alia, because the Jewish People’s aboriginal rights include “the right to life.” Namely, Jews have a right to live safely in their native land — and even more so, in that part of their aboriginal homeland, that was recognized as “national home for the Jewish People” by a series of declarations, resolutions and treaties from 1917 to 1923 CE. This significantly means that the Palestinian People lacks the right to wage a “war of national liberation” against the Jewish People, which is legitimately sited between the Mediterranean Sea and the Jordan River. There, the Jewish People lives “as of right and not on sufferance,” as said by Winston Churchill in 1922 CE.

Sketching a principled peace

One People lacks a right to rule over another People. Therefore, a peaceful process for the reconciliation of rights would likely respect the doctrine of the self-determination of Peoples which is one of the fundamental principles of public international law. For example, a full-and-final peace treaty agreed today would probably have to waive most Jewish aboriginal and treaty rights with respect to land now mostly inhabited by Palestinians, wishing to live in a new Palestinian State. By the same principle, such a treaty would probably have to include within Israel land now mostly inhabited by Jews.

If so, there would probably be no legal requirement to compensate a new Palestinian State for Israel’s retention of some territory beyond the 1949 armistice demarcation lines (ADL). Firstly, the 1949 armistice agreements with Egypt and Jordan explicitly say that the ADL are without prejudice to a final political settlement. Secondly, no Arab government has ever recognized the ADL as the legitimate and permanent borders of the Jewish State. Thirdly, the peace treaties with Egypt (1979 CE) and Jordan (1994 CE) indicate as Israel’s international borders, not the ADL, but rather to the west the old Sinai boundary with Egypt, and to the east the Jordan River. Fourthly, the Jewish People’s aboriginal, treaty and self-determination rights are so fundamental that they probably outweigh anything that might be said on behalf of the current legal status of the ADL.

A full-and-final peace treaty could also draw on Jewish aboriginal and treaty rights to include one or more specific paragraphs ensuring that Jews have free and secure access to certain religious sites, sacred to Judaism for more than two millennia. This might have some impact in Jerusalem and in one or more other places west of the Jordan River.

Finally, the Jewish People’s aboriginal, treaty and self-determination rights combine to argue for significant safeguards to ensure that a new Palestinian State could never be a stepping stone to the destruction of Israel. Because the Jewish People remains a vulnerable aboriginal minority in the Muslim and Arab Mideast, a full-and-final peace treaty would probably need to have a number of truly effective stipulations for Jewish security. And, such safety measures should probably embrace both major military provisions and an article unequivocally recognizing the legitimacy and permanence of Israel as the Jewish State, i.e. as the political expression of the self-determination of the Jewish People in a part of its aboriginal homeland.

About the Author
Allen Z. Hertz was senior adviser in the Privy Council Office serving Canada's Prime Minister and the federal cabinet. He formerly worked in Canada's Foreign Affairs Department and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He studied history at McGill University (B.A.) and Columbia University (M.A., Ph.D.). He also has international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.).