Settlement Rights of the Jewish People

Foreword

The following essay is no exhaustive survey of the claims of modern Israel as a sovereign country within the international States’ system. Rather, emphasis here is on the companion aspect of the settlement rights of the Jewish People, as among its millennial aboriginal rights in its ancestral homeland. In this regard, public international law is supplemented by references to anthropology, morality, natural law, English Common law, Jewish law, Islamic law, and Canadian law. No apology is offered for this legal pluralism which is an urgently needed antidote to the overblown pretensions of contemporary public international law.

Introduction

On December 23, 2016 the United Nations Security Council passed Resolution 2334 (2016) which inter alia claimed:

the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law…

Apart from other important political motives, this was a transparent attempt to cynically use public international law to smear the Jewish People in its aboriginal homeland.

Nineteenth-century Prussian military theorist Carl von Clausewitz famously opined that “war is the continuation of politics by other means.” But in the mid-20th century, China’s Premier Zhou En Lai cleverly reversed Clausewitz’s dictum by saying: “All diplomacy is a continuation of war by other means.”

With Chou En Lai in mind, let us acknowledge that at its best public international law is akin to an ongoing discussion about rights, in which every government and NGO has its lawyers, and every law professor and layman an opinion. In this vein, statistical analyses of all the opinions of the judges of the International Court of Justice since 1946 show that they commonly find for their own country, for their own civilization. Specifically, birds of a feather stick together. Moreover, those judges are statistically unlikely to decide in a way that conflicts with the foreign policy of their home State.

This is the framework in which we observe that for a long time, there has been bitter controversy over the Jewish People’s right to settlement and self-determination in its 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.

Make no mistake — the age-old Jewish People remains 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, each of which has some close friends or allies.

What are aboriginal rights?

Legal systems frequently see long continued use, habit or custom as a source of law. For example, the English Common Law holds that the consistent practice of mooring a boat in a particular place can become a customary right after twelve to twenty years. Similarly, both anthropology and many of the world’s legal systems recognize as group or tribal customary right, a rich variety of consistent collective practices dating back just a few decades, or maybe a century or two. So, what of the minimum twenty-six centuries during which the great Jewish People of world history always kept some real demographic and cultural ties in and with its ancestral homeland? There, some then self-identified “Jews” have always lived, despite close to two millennia of perennial discrimination and periodic persecution.

There is also added legal weight from directly relevant treaties which are the highest source of public international law. To the point, declarations, resolutions and treaties from the First World War (1914-1918) and the subsequent peace settlement explicitly recognize the Jewish People’s historic connection to its aboriginal homeland. And, half those treaties specifically call for facilitated Jewish immigration and “close settlement by Jews on the land,” everywhere west of the Jordan River.

In this same 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.” On December 2, 2012, the Israel Cabinet reaffirmed: “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 it is essential to offer meaningful arguments.

That ongoing 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 wartime proclamation (April 1799) which, perhaps from his encampment near Acre (עַכּוֹ Akko, Israel), 29-year-old General Napoleon Bonaparte addressed to the Jewish People. Then still harboring hopes that his French Army would soon conquer the whole Ottoman Mideast, Napoleon therein described the “Israelites” as “lawful heirs” to their “ancestral land” and encouraged them to hasten home to reclaim their “patrimony.”

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.

Such rejection of Jewish peoplehood is astonishing because an enormous body of archaeological and other historical evidence demonstrates that — like the Greeks and the Armenians — 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 Jews of the ancient world.

A variety of early sources establish that Mideast man understood the idea of peoplehood. For example, then self-identified “Jews” regarded peoplehood as one of the principal motors of world history, as shown in the biblical Book of Genesis, from perhaps around 600 BCE. Referring to a particular popular name and also to shared ancestry, territory, language and achievement, Genesis (in the story of the “tower of Babel” and elsewhere) describes sociologically what it means to be a distinct People alongside other named Peoples.

Thus, the early modern European Peoples were much later able to derive their understanding of what it means to be a People in history, principally from the story of the Jewish People, as powerfully portrayed in the Hebrew Bible which, in its various translations, was one of the foundation stones of European civilization.

What is a People?

Linguists theorize about whether historically there was ever a proto-Semitic language. If so, this might perhaps suggest some early kinship among the alleged prehistoric Semitic-speakers, long before the birth of Hebrew (Biblical Hebrew: יהודית yehudit) and of Arabic more than a millennium later. But, peoplehood is always about much more than just genetics. It is simultaneously a complex sociological phenomenon. Thus, peoplehood is also a conceptual artifact or symbol, partly a cultural invention.

Significantly analogous to the trademark of modern intellectual-property law is the particular name which a specific population commonly uses to consistently self-identify as a distinct People, as distinguished from other Peoples. For example, consider (in chronological order of ethnogenesis) the ethnonyms — יהודים‎ Yehudim = Jews; 汉人 Hanren = Han People (i.e. the Chinese); українці Ukraïntsï = Ukrainians; and Québécois = Quebeckers. General self-identification under such a definite name is the key expression of group self-consciousness that simultaneously signals and enables collective political ambition.

Beyond its chosen popular name, the pertinent group must also share some relatively distinct social and cultural features drawn from a wide-open menu, potentially including — ancestors, language, history, homeland, territory, rites, rituals, religion, mores, etiquette, laws, citizenship, institutions, mythology, folklore, writing system, literature, drama, painting, plastic arts, dress, diet, cuisine, dance, music, games, sports, agriculture, and economy.

In addition to its subjective identity, such a specifically named People normally attracts a companion objective identity in the eyes of its friends and enemies, who from each succeeding century provide valuable historical evidence about its existence and characteristics. Critical is this reference to subjective and objective evidence from each successive period.

Aboriginal by genetics alone?

Nazis, racists and racialists may dissent, but there is currently no authoritative political or legal doctrine of the aboriginal rights of genes or of the self-determination of genes. Rather, aboriginal and self-determination rights pertain to a culturally complex, sociological “People” born via general self-identification under a specific name.
This explains why the modern political and legal idea of peoplehood is flexible enough to embrace the specifically “American” People, which is famously of mixed ancestry; and also the virtually homogeneous, self-identified “Japanese” People. Thus, peoplehood is available to the population of a nation-State like Croatia, with a very high percentage of common ancestry; but also to the population of Canada, a country for the most part recently settled by ethnically diverse migrants. There, common ancestry can be less salient, with the distinct “Canadian” People now more importantly self-defined by shared institutions, laws, citizenship and territory.

For profound practical reasons, historic or remixed populations sometimes opt to rebrand with new self-identifications that are always politically meaningful. Thus, a new named People emerges from time to time; while an older distinct People may significantly subdivide or disappear — in most cases, with genes and cultural characteristics partly persisting in populations of one or more other Peoples.

For example (as discussed below), it was only in the period after the June 1967 Six-Day War that the great Arab People subdivided to give birth to a distinct “Palestinian” People. This specifically “Palestinian” People was born when a particular Arab population — exactly as it was post 1967 — for the first time generally self-identified by referring to the toponym “Palestine.” Such rebranding powerfully signaled politically; hardly a surprise in connection with ethnogenesis which is mostly a sociological phenomenon.

An existing People can today claim to be aboriginal either in its own name or perhaps by virtue of direct succession from an immediate parent People that had itself already claimed to be “the” aboriginal People there. But, a specific People cannot now suddenly 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 distinct modern People needs to show not only some credible genetic roots, but also a continuing socio-cultural identity that, without a break, reaches back across each century to the relevant historical time.
Logically and juridically, 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 the pertinent population did not yet generally self-identify as that particular People. Nor can a distinct, modern People’s right to national self-determination now be claimed in its own name so as to retroactively apply in an historical period before its own ethnogenesis.

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 specifically named People that was there first in time. Without 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, 1860s British North America witnessed creation of a new country called “Canada.” In this connection, the Fathers of Confederation intentionally crafted a new “political nationality” to unite several mostly settler populations with contrasting self-identifications, largely based on differences of language, religion and ancestry. But across the 20th century, Canada completed its own trajectory “from colony to nation.” According to the Supreme Court of Canada, a new specifically Canadian People gradually emerged via a process of general self-identification. Because this ethnogenesis occurred at home, this nascent “Canadian People” as such is certainly indigenous to Canada.

Nonetheless, the North American Indian tribes there significantly remain the “First Nations.” They are still among the aboriginal Peoples of Canada, though some Indian bands now number only a few hundred individuals. Nor can their special status as “first in time” be erased, because the subsequently born “Canadian” People is also indigenous or because the First Nations 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 local inhabitants. Nor is this persistent Jewish claim to be the aboriginal People there now in any way weakened because:

  • the majority of Jews have at various times lived elsewhere;
  • Jews are now once again the local majority; and
  • local Arabs after 1967 CE generally opted to rebrand with a new self-identification as the distinct “Palestinian” People — which as such is indigenous, as so recently born mostly between the Jordan River and the Mediterranean Sea.

Entry, sojourn and settlement

Aboriginal rights characteristically feature access to and use of tribal lands, including sacred sites and holy places. In this vein, Jews have always claimed (inter alia) rights to visit and/or dwell in their ancestral homeland. And significantly, they have stubbornly done so for more than two thousand years. Across the centuries, some then self-identified “Jews” always lived in their aboriginal homeland; and some other Jews, whether from the Mideast or abroad, persistently perceived a duty and desire to join them there.

During the Roman period when Jews were the local majority, several million Jews worldwide felt strong religious obligation to famously make steady, annual payments for the upkeep and ceremonies of the Second Temple in Jerusalem. Roman emperors repeatedly reaffirmed this then controversial right of Jews throughout the Empire to contribute to the Temple’s expenses. The Second Temple was also the focus for widespread Jewish pilgrimage from the Mediterranean lands and beyond.

Jews were still the local majority for several centuries after the 70 CE destruction of the Second Temple. During this late Roman period, Jews from near and far continued pilgrimage, but now with more focus on some other sacred sites like the Tomb of the Patriarchs in Hebron. Far-flung Jewish communities of the Roman Empire joined synagogues elsewhere in offering yearly payments in pure gold (aurum coronarium) to support their religious leaders in Palestine, until the Jewish Patriarchate there was abolished in the early fifth century CE. Roman emperors also explicitly confirmed the sometimes contested right of the Jews to collect the aurum coronarium and send it to Palestine. This ancient practice and its imperial confirmation were key expression and recognition of “organized Jewry in the Roman Empire.”

For around fifteen hundred years after the abolition of the Palestinian Patriarchate, Jewish communities around the world regularly contributed to the halukka (Hebrew: חלוקה‎‎), a fund to help pious and/or indigent Jews living in “the land of Israel” (Hebrew: Eretz Israel ארץ ישראל). With respect to obligations of charity, Jewish law (Hebrew: halacha האלאכהא) exceptionally prioritized helping the poor Jews of Eretz Israel over indigent Jews in the diaspora. Similarly recognized for many centuries was individual and collective Jewish responsibility to locally give alms to support Jews traveling to Eretz Israel, whether for pilgrimage or settlement.

Famous was the 12th-century CE example of physician, philosopher and poet Yehuda Halevy. Deep religious attachment to ancestral homeland motivated his pilgrimage. He traveled from the Iberian Peninsula via Egypt, and died near Jerusalem in 1141 CE. After specifying the uniqueness of Eretz Israel for the proper practice of Judaism, Yehuda wrote: “Jerusalem can only be rebuilt when Israel yearns for it to such an extent that they embrace her stones and dust.”

A generation later, Yehuda’s fierce focus on sacred homeland was confirmed by the enduring high authority of the Mishneh Torah of physician, philosopher and rabbi — Moses Maimonides:

Great sages would kiss the borders of Eretz Yisrael, kiss its stones, and roll in its dust. Similarly, Psalms 102:15 declares: “Behold, your servants hold her stones dear and cherish her dust.” The Sages commented: Whoever dwells in Eretz Yisrael will have his sins forgiven as Isaiah 33:24 states: “The inhabitant shall not say ‘I am sick.’ The people who dwell there shall be forgiven their sins.” Even one who walks four cubits there will merit the world to come and one who is buried there receives atonement…

Across two millennia, there have been important reciprocal influences among Judaism, Christianity and Islam. But, the latter two faiths generally acknowledged some historical derivation from Judaism as forerunner. This explains why Christian and Islamic political, cultural, and demographic connections to Jerusalem and the Holy Land usually came with some awareness that Judaism there was first in time. For example, the two later religions theologically understood that, like the Jews, they too revered the Lord God of Israel. The two later Abrahamic faiths also validated more or less of the Jewish historical narrative in the Hebrew Bible, which had massive influence on the development of first Christianity and then Islam.

Before crystallization of the modern political dispute over Jewish self-determination rights in the Holy Land, Christians and Muslims for close to two thousand years were generally aware of a broader context, in which the Jewish People always had a special connection to the land of its birth. There, Jews were subject to permanent discrimination, periodic persecution, and episodic restriction. But, across the centuries, minority status there generally did not preclude (inter alia) Jewish entry, sojourn and settlement. Nor are rights to such millennial aboriginal practices now diminished, because today Jews are again the majority of the local population.

Aboriginal versus majority rights

Aboriginal rights are not invariably minority rights; but, 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.

Abundant polemical references to historical demography suggest that retrospectively imagining something like a hypothetical majority vote in an earlier period is now often an unspoken premise underlying current judgments about the moral weight of history. If so, we should recall that “majority rules” is by itself a relatively narrow principle that is notably more procedural than substantive.

Thus, we can safely suppose that, since antiquity, there was never a time when a moral or natural-law right to (potentially) bar Jews from their aboriginal homeland could have been derived simply from a hypothetical majority vote. In every conceivable instance, there would also have to have been alleged some further compelling reason (e.g., self-defense) as a substantive moral or natural-law justification for then (potentially) precluding one or more of Jewish entry, sojourn and settlement. And, with reference to each particular historical case, the moral or natural-law cogency of any such substantive reason for then (potentially) barring Jews would today have to be carefully weighed within the specific equities of that particular time and space, to which that justification pertains.

This current requirement of contemporary and contextual fairness points to some strikingly different historical, geographical and demographic situations. Thus, for potential examination are specific local circumstances in the broader context of the whole world as it was. But also to be considered is the immediate framework, for example, of the erstwhile Mamluk, Ottoman or British Empires.

And, in that last British case, there was also Mandate Palestine, both east and west of the Jordan River (1922-1946) — though politically Transjordan (Eastern Palestine) still remained a key part of the equation, even after the June 1946 entry into force of the treaty that cut the Hashemite Kingdom from Mandate Palestine.

Nor logically can such a retrospective assessment of a possible moral or natural-law justification for then (potentially) barring Jews now refer anachronistically to the interests of a distinct “Palestinian” People for periods before 1967, when local Arabs did not yet generally self-identify as “the Palestinian People.”

For instance, below discussed is the May 1939 Palestine White Paper which for a decade fruitlessly tried to cancel Jewish settlement rights. After Hitler’s Kristallnacht and grotesquely simultaneous to the rapid expansion of Jew-persecuting Nazi Germany was UK announcement of morally-flawed White Paper measures signaling an early end to age-old Jewish rights of entry, sojourn and settlement.

By contrast, in May 1939 far more equitable would have been the option of dramatically enhancing Jewish migration both to the suggested, separate British Jerusalem and to the hypothetical, small Jewish State that had been proposed in the 1937 UK Peel Commission Report. To the point about contextual, contemporary fairness, that Peel Report also recommended creation of a large Arab State to consist of both Transjordan and the Arab-inhabited parts of Western Palestine.

“Majority rules” not retroactive

Is it appropriate to now make judgments about the moral weight of history based consciously or unconsciously on the metaphor or fiction of a hypothetical majority vote in an earlier historical period? 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 can apply right now in the present, but not retroactively to an earlier historical period.

These are among the reasons why logically the majority principle alone cannot now confer rights on a current minority solely because it had once been the majority. Consider the example of the urban territory now covered by the 13th Congressional District of New York. This city neighborhood was majority Black American during the first part of the 20th century. But today, 55% of the local population is Hispanic and only 27% Black American. With regard to the 13th District, would anyone now argue that the minority Black Americans still have rights flowing from the one circumstance that they had been the majority there before 1950?

Moreover, think about the UK Liberal Party which was a giant in British politics in the late 19th and early 20th centuries, but is currently a negligible player. Does anybody now suggest that the great Liberal landslide victory in the UK General election of 1906 by itself suffices to confer rights on that political party today?

In the same way, taken in isolation, the bare fact that one hundred years ago Arabs were the majority between the Mediterranean Sea and the Jordan River cannot by itself create or sustain any current political, moral or legal right; and, even less so against the aboriginal Jewish People, which is today once again the majority there.

“The Jewish movement not imperialist”

As across the last two millennia, so today — the presence of self-identified “Jews” in their ancestral homeland has always been legitimately aboriginal, not an expression of colonialism or imperialism. Agreement on this aboriginal aspect emerges from two contrasting, early Arab responses to political Zionism.

Born in Jerusalem in 1829, Yusuf Ziya Pasha al-Khalidi was an urbane, polyglot intellectual. He had served as mayor of, and Ottoman parliamentary deputy for, Jerusalem where Jews were then once again the local majority. As a Muslim, an Arab and a subject of the Ottoman sultan, he wrote (March 1, 1899) from Constantinople a respectful letter opposing political Zionism to the Chief Rabbi of France, Zadok Khan. Therein, Yusuf Pasha detailed several practical reasons why he thought political Zionism both impossible and probably harmful. But at the same time, he validated the Jewish People’s claim to be aboriginal to the Holy Land:

Qui peut contester les droits des Juifs sur la Palestine? Mon Dieu, historiquement c’est bien Votre pays! [Who can contest the rights of the Jews regarding Palestine? Good Lord, historically it is really your country!]

After the 1918 shattering of the Ottoman Empire, more positive to the practicability of political Zionism was the Hashemite Prince Feisal ibn Hussein who was pertinently the principal Arab delegate at the 1919 Paris Peace Conference. There, American Zionist representative Felix Frankfurter received from Feisal a March 3, 1919 letter saying: “We will wish the Jews a most hearty welcome home.” Specifically referring to Zionism, Feisal therein acknowledged: “The Jewish movement is national and not imperialist.”

The aboriginal home

Generally and locally, many Muslims and most 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 most Muslims (Ottoman-Turkish: ارض مقدس arz-i mukaddes) was geographically identical to the earlier Jewish concept of Eretz Israel.

What was “historic” Palestine?

Extant are some Classical references to “Palestine” starting with the Greek historian Herodotus in the 5th century BCE. Although there were exceptions, Greek and Roman writers before the 2nd century CE generally saw Palestine as nothing more than the slim coastal strip associated with the memory of the (probably Aegean) Philistines who had disappeared before the 6th century BCE. But such narrow geographical usage expanded around 133 CE, when the entire Roman Province of Judea was officially termed “Palaestina” to punish Jews for their periodic, stubborn revolts against imperial Rome.

This Roman administrative toponymy explains why “Palestine” came to mean the entire Holy Land for Christians, eventually including those speaking Arabic. Authoritative 19th-century Ottoman-Turkish dictionaries by Sir James Redhouse indicate that Mideast Christians referred to the biblical “land of promise” or “the Holy Land” as Diyar Filistin (ديار فلستين), meaning “lands of Palestine.”

As a Christian synonym for the Holy Land, “Palestine” was for centuries just a bare historical reference — nothing more than a fond memory of the early 7th century CE, when Palaestina was still part of the Roman-Byzantine Empire, with Christianity as official faith. Thus, a visit there prompted Mark Twain to accurately observe (1869 CE): “Palestine is no more of this work-day world. It is sacred to poetry and tradition — it is dream-land.”

This remembered, but literally non-existent Palestine had for centuries been imagined on European and American maps as invariably including lands east of the Jordan River. Thus, the 1911 edition of the Encyclopaedia Britannica captured the correct historical and geographical understanding in specifying that the Jordan River separates “Western Palestine” from “Eastern Palestine,” which extends as far as the beginning of the Arabian desert. Moreover, every actual “Palestine” that has historically existed, from the end of the 4th century CE until June 1946, has always included part or all of the territory that is now the Hashemite Kingdom of Jordan.

Holy Land’s population migratory?

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 (ארץ ישראל), perhaps into the 6th century CE. Though some Jews always preferred to stay in their aboriginal homeland, others were continually moving in and out — a migratory pattern that has endured to this day.

Nor should it be presumed that this migratory pattern only pertained to local Jews. Across the centuries, other ethno-religious components of the Holy Land’s population (e.g., Muslim Arabs) also engaged in significant outbound and inbound migrations. For example, during the last millennium all population there occasionally dropped to remarkably low levels. Such rounds of general depopulation were then from time to time somewhat reversed — including by renewed and repeated waves of fresh migrants drawn from various ethno-religious groups, whether from adjacent regions or further afield.

Always Jews in the Holy Land?

The Hebrew Bible, the Christian Gospels and the Muslim Koran all refer to the Jewish People and its connection to the Holy Land (ארץ ישראל). Since antiquity, there has never been a time when then self-identified “Jews” were absent from the Holy Land. Even when Jewish numbers dropped to a low point, the Holy Land was still home to learned rabbis famous throughout the Jewish world. Across at least 2,600 years, the then self-identified, specifically “Jewish” People continuously kept the same subjective/objective identity that always famously included significant demographic and cultural links to its native land, Eretz Israel.

In the first five centuries of the Common Era, Jews were still the majority in Palestine where they played a key role in Jewish civilization, including completion of the Jerusalem Talmud. Rabbis there then thoroughly discussed the geographic limits of Eretz Israel, because some specific rules for Jewish religious practice only applied within the boundaries of the aboriginal homeland of the Jewish People.

Written in Hebrew characters are the thousands of medieval documents from the famous Cairo Geniza. These are among the contemporary historical sources that reveal much about Jewish life in the Holy Land, during the subsequent period stretching from the Muslim conquest in the fourth decade of the 7th century CE to the Crusader victory in 1099.
During the Crusader period, Acre was an important center for Holy Land Jews, about whom we learn from a variety of sources. For example, pertinent are many Geniza documents and also accounts by the 12th-century CE 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 for profound religious reasons.

During the Mamluk period (1250-1516), Jerusalem was sometimes seat for a deputy to the Egypt-based Jewish prince or leader (Hebrew: נגִּיד 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 1480s 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 1917-1918 CE. For example, 16th-century CE doomsday registers (Ottoman-Turkish: مفصل دفترى mufassal defteri) record the names of local Jewish tax-payers. Evidence also comes from documents like some late 18th-century CE account books of the Jerusalem Jewish community. With the 19th century CE, travel books, letters, and consular reports join a flood of other sources about local Jews who also told their own stories. Though the number of Jews there grew absolutely, they were then still just a fraction of the total population which — including all the Muslims, Christians and Jews — notably remained astonishingly low; probably, very much lower than in the early Roman Empire.

Aboriginal Peoples include Jews, Greeks and Armenians

Among several other aboriginal Peoples of the Ottoman Caliphate were the Jews, the Greeks and the Armenians. The age-old Jewish People is aboriginal to its ancestral homeland, Eretz Israel (ארץ ישראל), in the same way that the storied Greek People is aboriginal to the Aegean region and the Armenian People has millennial rights in its historic lands. In the Mideast and Mediterranean, the history of the Jews, Greeks and Armenians reaches back to antiquity.

Pertinently, these three ancient Peoples were already present before arrival from Central Asia of any of the Turkic Peoples; and obviously long before the 13th-century CE origins of the empire of the Ottoman Turks. By the time of the Ottoman conquest, each one of these three aboriginal Peoples already had its specific cultural identity that was so thoroughly entwined with its own distinctive, ethnic religion. Inter se relations were at best cool. But Jews, Greeks and Armenians had bitter common experience as victims of the Muslim Turks, right up until the collapse of the Ottoman Empire at the end of the First World War.

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 Greeks win their independence from the Ottoman Empire. In 1821, when some 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, Greek history has been partly about the hundreds of thousands of diaspora Greeks, who gradually migrated to their core ancestral homeland. For example, many returned to Greece as refugees after the First World War, when British Prime Minister David Lloyd George had unsuccessfully backed the aboriginal rights of the Greek People to the Anatolian littoral. There, large indigenous Greek communities like Smyrna (Izmir) persisted from antiquity until 1922, when they were savagely destroyed by the Muslim Turks who in 1915 had killed one and a half million Armenians.

The horrific atrocity that was the 1915 Armenian genocide shocked the conscience of the Western world, notably including the Christian sensibility of both Lloyd George and USA President Woodrow Wilson. Writing to Congress about the plight of the Christian Armenians, Wilson (1920) significantly described his fellow Americans as:

the greatest of the Christian peoples [with] … an earnest desire to see Christian people everywhere succored in their time of suffering, and lifted from their abject subjection and distress and enabled to stand upon their feet and take their place among the free nations of the world.

The Armenian genocide was also an important part of the moral context in which the USA and the Allied Powers decided to recognize both the Armenian People’s right to self-determination in its ancestral territory and the Jewish People’s historic rights in the Holy Land. The latter was still part of the reviled Ottoman Empire until the 1917-1918 British conquest. But, as early as the 1912 presidential campaign, Woodrow Wilson had already pledged: “If ever I have the occasion to help in the restoration of the Jewish People to Palestine, I shall surely do so.”

For Jews of the Holy Land, the First World War brought repression, persecution, starvation, deportation and flight. Their numbers there dropped sharply from around 85,000 in late 1914 to about 40,000 by the time of the Mudros Armistice (October 30, 1918). During the conflict, Jews fleeing Western Palestine and other Jews who stayed there were both able to receive some crucial help from the U.S. Navy, because the USA remained neutral relative to the Ottoman Empire.

Locally and internationally, it was then reasonably feared that Jews in the Holy Land might soon meet a grim fate like that of the hapless Armenians. The supreme Ottoman leader there, Ahmet Djemal Pasha was already infamous for his role in the 1915 Armenian genocide. In 1917, Djemal wanted to begin similar death marches to drive Jews out of Western Palestine. However, he was stopped by principal ally Germany, including Generals Erich von Falkenhayn and Friedrich Kress von Kressenstein who were then serving the Ottomans as commanders on the Palestine Front.

Well informed about the perilous wartime situation of Jews there, President Wilson in June 1917 confided to American Zionist leader Rabbi Stephen S. Wise:

When the war will be ended, there are two lands that will never go back to the Mohammedan Apache. One is Christian Armenia and the other is Jewish Palestine.

Then urgently in need of wartime help, the UK deferred to USA power and preference. Accordingly, no accident that the November 1917 Balfour Declaration, promising best efforts to create “a national home for the Jewish People,” was adopted by the UK Cabinet only after the draft document had been blessed by President Wilson privately, because he did not want to go to war with the Ottoman Empire. Entirely consistent with the Balfour Declaration was Wilson’s January 8, 1918 “Fourteen Points.” Therein, he included the pertinent requirement: “Nationalities that are now under Turkish rule should be assured an undoubted security of life and an absolutely unmolested opportunity of autonomous development.”

Aboriginal rights of the First Nations

Conceptually, the Jewish People is aboriginal to its ancestral homeland (ארץ ישראל) 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 in 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 age-old Jewish People’s claims in its ancestral homeland reach back to antiquity and thus antedate 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, 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 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 juridically reconcile the subsequent rights of newcomers with the aboriginal rights of a First Nation.

Today, the concept of aboriginal rights is also an important legal topic in Australia, New Zealand and the United States, and is now receiving some more attention internationally. For example, pertinent to the millennial phenomenon of aboriginal rights is the new United Nations Declaration on the Rights of Indigenous Peoples (2007).

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, notably including major waves of Arab immigration in both the 19th and 20th centuries. For more than two thousand years, Jews have stubbornly exercised their aboriginal rights of entry, sojourn and settlement. Thus, whether a thousand years ago or today, 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 ever to be compared with the Dutch Boers in South Africa or the French colons in Algeria.

Judaism’s focus on sacred homeland

Like the Greek People, the Armenians and the First Nations — the self-identified “Jewish” People, under that same name, has for more than two millennia continuously affirmed its historical and demographic connections to its ancestral homeland. Thus, Eretz Israel (ארץ ישראל) has for at least twenty-six centuries been a central element in the religion of Judaism.

Today, Jewish law (Hebrew: האלאכהא halacha) is perhaps the world’s oldest continuously functioning legal system. Jewish law has always explicitly recognized the Jewish People’s legal rights in its aboriginal homeland, the precise boundaries of which were carefully defined by rabbinic discussion across the first three centuries of the Common Era. More than two thousand years of halacha insist that the Jewish People most certainly has, inter alia, rights of entry, sojourn and settlement in Eretz Israel.

From antiquity, most Judaism has been a Messianic religion, including specific reference to the homeland of the Jewish People. Authoritative for centuries as a restatement of the law was the late 12th-century Mishneh Torah of Maimonides. This holds that belief in the coming of the Messiah is one of the thirteen essential articles of Jewish faith. For centuries, Judaism has affirmed that the Messiah will:

  • be a descendant of David, King of Israel;
  • gain sovereignty over Eretz Israel;
  • gather world Jewry together there;
  • rebuild the Temple in Jerusalem;
  • restore full Torah observance in Eretz Israel; and
  • bring peace to the whole world.

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

Jews are “the” aboriginal People

Of all extant Peoples, Jews have the strongest claim to be “the” aboriginal People of the Holy Land (Eretz Israel). There, the Hebrew language (Biblical Hebrew: יהודית yehudit) and the religion of Judaism gradually emerged, leading to the birth of a then self-identified, specifically “Jewish” People at least 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 Saul, 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 Philistines, Phoenicians, Ammonites, Moabites, Edomites, and Samaritans. But with the sole exception of the few surviving Samaritans, all of those other ancient 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, and a then self-identified, specifically “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.

Nor traditionally did the great Arab People of world history regularly claim to be aboriginal to the Holy Land. From a wide variety of Muslim sources including the Koran, erudite Arabs — like Yusuf Ziya Pasha al-Khalidi and Prince Feisal (both referenced above) — always knew the Holy Land to be the Jewish People’s ancestral home. To the point, starting from the mid 7th century, the proud and persistent Muslim narrative was famously about Arab conquest of a Byzantine province already inhabited by Jews, Samaritans, and Greeks.

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 enduring links between the great Jewish People and its aboriginal homeland.

To the contrary, for fourteen hundred years, then self-identified “Jews” continued to stubbornly exercise their millennial rights of entry, sojourn and settlement — and, even more so after the mid-19th century CE. For example, Jews legitimately once again became the majority of the population in Jerusalem from the 1860s. Across the 20th and 21st centuries, Jews still continue to exercise their enduring aboriginal rights of entry, sojourn and settlement. Thus, in the same way, Jews today are once again legitimately the majority between the Jordan River and the Mediterranean Sea.

This means that the Jewish People can now draw some steadily increasing 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 in 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 caused by the stubborn refusal of many Muslims and most 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 age-old 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 historical People, i.e. a well-known People in history. 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 historical People that constitutes the majority. 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 around two dozen other modern countries are in whole or in part successor States of the Ottoman Caliphate, which for four hundred years (1516 CE-1918) was the principal Power in the Mideast. Apart from the ruling Turks, the Ottoman Empire was home to many other Peoples including Albanians, Vlachs, Greeks, Slavs, Copts, Armenians, Maronites, Alawis, Druze, Kurds, Circassians, Arabs and Jews.

For centuries, these Jews lived in a variety of Ottoman venues including Buda, Belgrade, Bucharest, Sarajevo, Edirne, Salonika, Constantinople, Bursa, Izmir, Aleppo, Damascus, Mosul, Baghdad, Basra, Cairo, Alexandria, Tiberias, Hebron, Safed, Jaffa, Gaza and Jerusalem.

In October 1914, 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, 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 as “the Palestine Mandate.” This was a brand-new, unique, British jurisdiction that was expected to endure for a very long time. In addition to the national home for the Jewish People, the Mandate also included Transjordan (Eastern Palestine), where a Hashemite Emirate had been invented in 1921-1922.

The UK government’s promise of “best endeavours” to create “a national home for the Jewish People” was motivated by a desire:

  • to gradually realize the Jewish People’s longstanding claim to self-determination in its ancestral homeland;
  • to shore up support for the Allied war effort among Jews in revolutionary Russia and the United States; and
  • to 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 a UK government declaration that was first made public on November 2, 1917, in a letter to Lord Rothschild, signed by Foreign Secretary Arthur Balfour who had been UK Prime Minister from 1902 to 1905.

A “Palestinian” People in 1919?

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 Prince Feisal, 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 anything about a distinct Palestinian People. Had there then been such a specifically “Palestinian” People, its existence would certainly 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, 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, 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, Israel, Gaza, and the West Bank (Judea and Samaria).

For Muslims in the Holy Land, this broader geographic focus of self-identification was natural, because a large province of Damascus (Ottoman-Turkish: Şam ﺸﺎﻢ) 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 Filistin (فلسطين), for one district or jund (جند) of the province of Damascus. Straddling the Jordan River, this Jund Filistin 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, as “the Palestine Mandate.” The latter was an entirely new, one of a kind, British jurisdiction that included both Transjordan (Eastern Palestine) and “a national home for the Jewish People” (Western Palestine).

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, 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 explicit international purpose was to implement the 1917 Balfour Declaration. That particular instrument “always meant an eventual Jewish State,” specified then Prime Minister Lloyd George and former Foreign Secretary Arthur Balfour to Colonial Secretary Winston Churchill in the summer of 1921. Thus, ultimately realizing the self-determination of the Jewish People in a part of its larger aboriginal territory was precisely the rationale for the 1922 creation of “a national home for the Jewish People,” from the Mediterranean Sea to the Jordan River.

The “national home for the Jewish People” was launched by the Palestine Mandate of the League of Nations which specifically referred to “putting into effect” the Balfour Declaration as endorsed by agreement of the Principal Allied Powers at the San Remo Conference (April 1920). The Palestine Mandate was drafted by the UK; unanimously adopted by the League Council (July 24, 1922); and forwarded by the Secretary-General to all League members. Still with some legal impact today, the Palestine Mandate was juridically akin to a multilateral treaty.

The Palestine Mandate importantly also became a bilateral agreement, because verbatim repeated as the text of the 1924 Anglo-American Treaty, which was ratified by the USA Senate. Thus, the USA most solemnly “consented” to all the terms of the Palestine Mandate. This was needed because the USA had never been at war with the Ottoman Empire, did not attend the 1920 San Remo Conference, and was not a member of the League of Nations.

The Palestine Mandate recognized and described a new British jurisdiction that included both Transjordan (Eastern Palestine) and the national home for the Jewish People (Western Palestine). The regime of the Palestine Mandate was unique (sui generis) in terms and purpose. Supervising the conduct of the UK as the authorized mandatory Power, the Permanent Mandates Commission of the League of Nations repeatedly refused to use generalizations about the post-war Mandates conceived as a system, if such systemic deductions were inconsistent with the specific terms of the Palestine Mandate.

Well informed about the Holy Land, the 1917-1922 decision-makers knew the territory there to be significantly under-developed and under-populated. They also understood that the national home for the Jewish People would initially lack a Jewish majority population. Then, there was a conscious choice to refer — not just to circa 85,000 Jews living locally in 1914 — but also to the past, present and future of the great Jewish People. The national home for the Jewish People was then seen as also pertaining to the fourteen 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 great Jewish People’s long affirmed and continuous links to its aboriginal homeland.

The Palestine Mandate also contained detailed stipulations requiring development of the national home for the Jewish People. Included were provisions calling for facilitated Jewish immigration and “close settlement by Jews on the land,” from the Mediterranean Sea to the Jordan River (Western Palestine). Thus, this part of the global arrangements, after the First World War, forthrightly focused on millennial Jewish rights of entry and settlement.

Originally, the Palestine Mandate was expected to last for a long, indefinite period, during which there would be gradual development of the national home for the Jewish People. But, it eventuated that the last Assembly of the League of Nations in April 1946 blessed a March UK treaty that in June severed Eastern Palestine to become the independent Arab country then dubbed “the Hashemite Kingdom of Transjordan.” By virtue of a unilateral declaration of independence on May 14, 1948, parts of the “national home for the Jewish People” on the following day became the sovereign Jewish State called “Israel.”

Did Arabs deserve all the Mideast?

After the First World War, failure to create a national home for the Jewish People would have meant giving the great Arab People almost the whole of the Mideast inheritance; while denying the great Jewish People any share in the partition of the multi-national Ottoman Empire, where Jews had lived for centuries, including in the Holy Land.

Without doubt such an unfair result would have been unacceptable to David Lloyd George, Woodrow Wilson and their peers. Remarkably, they broke with centuries of antisemitism, by then refusing to discriminate against the Jewish People. Within the global context of a worldwide peace settlement, they equitably perceived the claim to national self-determination of the great Jewish People to be as compelling as that of the great Arab People.

Those 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 four hundred 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 June 1946.

Jewish rights erased by 1939 UK White Paper?

“After … five years, no further Jewish immigration will be permitted unless the Arabs of Palestine are prepared to acquiesce in it.” This was the crux of the May 1939 UK White Paper along with “establishment within ten years of an independent Palestine State.” Longtime Zionist leader Chaim Weizmann said the White Paper was “a death sentence for the Jewish People.”

With an eye to coming war with Germany, the British urgently wanted to curry favor with Arabs and Muslims everywhere, including British India. This motive was confided by UK Prime Minister Neville Chamberlain to Cabinet on April 20, 1939: “Immense importance… to have the Moslem world with us… If we must offend one side, let us offend the Jews rather than the Arabs.” To his sister Hilda, Chamberlain added (May 28, 1939): “No doubt the Jews aren’t a lovable people; I don’t care about them myself.”

An intensifying Nazi persecution had already created a Jewish refugee crisis with impacts as far away as Shanghai. This was part of the global context in which the Permanent Mandates Commission declined to accommodate British convenience and prejudice. In June 1939, Belgium, the Netherlands, Norway and Switzerland firmly opposed the UK; France; and fascist Portugal, which was anxious to keep good relations with both Nazi Germany and the two Western Powers. Thus, four to three, the Permanent Mandates Commission stubbornly refused to concede that consistent with the Palestine Mandate could be White Paper proposals likely to lead to early termination of Jewish rights of entry and settlement.

A concurring legal assessment came from famed USA jurist Louis Brandeis who repeatedly discussed Jewish migration to Western Palestine with President Franklin Roosevelt from March to May 1939. Less than six months after retiring from the Supreme Court, Brandeis shared (July 31, 1939) with some fellow Zionists his shrewd prediction that Jews would continue going to Western Palestine despite the UK White Paper. Asked if such Jewish migration would be “illegal,” Brandeis replied:

The Jewish People consider it legal in view of the fact that any attempt to curtail immigration is in violation of the terms of the Mandate; it may be considered illegal by Great Britain but we Jews consider it to be legal.

 

Rights of entry and settlement post WW2

After the Second World War (1939-1945), there were several hundred thousand Holocaust survivors and other Jewish refugees, many of whom were tragically trapped in postwar European camps for displaced persons. Thus, the right of Jews to migrate to Western Palestine then became an explosive moral, legal and political issue that troubled the conscience of the Western world. From May 1947 also engaged was the sympathy of the Soviet Union which regularly opposed British policy in the Mideast.

The bitter controversy over Jewish entry prompted creation of the 1946 Anglo-American Committee of Inquiry Regarding the Problems of European Jewry and Palestine. Releasing its report on April 30, 1946, USA President Harry Truman specifically supported recommendations for immediate admission of 100,000 Jewish refugees and for abandonment of the 1939 UK White Paper’s core principle that further Jewish entry would depend upon approval by the Arabs of Western Palestine:

I am also pleased that the Committee recommends in effect the abrogation of the White Paper of 1939 including existing restrictions on immigration and land acquisition to permit the further development of the Jewish National Home.

Despite this clear message from President Truman, UK Prime Minister Clement Attlee stubbornly refused to implement the Committee’s humanitarian recommendations. On October 10, 1946, Truman forthrightly reminded Attlee that it had been more than a year since Truman had first called for immediate admission of 100,000 Jewish refugees. To this humanitarian plea, the President added legal argument:

In our view the development of the Jewish National Home has no meaning in the absence of Jewish immigration and settlement on the land as contemplated in the Mandate. We therefore feel that the implementation of the Mandate, as well as the humanitarian considerations mentioned above, call for immediate and substantial immigration into Palestine.

Representative of the UK’s contrary view was a letter to USA Secretary of State George C. Marshall from British Foreign Secretary Ernest Bevin (June 27, 1947). This registered:

grave concern at the persistent and successful attempts of Jewish organisations to send Jewish illegal immigrants to Palestine from various European countries… My colleagues and I feel very strongly that the organisers of this traffic are … endangering the peace and security of the Middle East…

Such a powerful indictment matched ugly British enforcement to prevent Jews from entering Western Palestine. Jews replied with clear affirmation of the Jewish People’s rights of entry and settlement via persistent migration that made newspaper headlines and heightened international support. From 1945 to 1948, more than 80,000 Jews were able to successfully enter in full defiance of British jurisdiction, though some other Jews came with UK authorization.

In 1947 UN proposed “substantial immigration”

After the First World War, the international decision to create “a national home for the Jewish People” from the Mediterranean Sea to the Jordan River (Western Palestine) had not displaced local Arabs. To the contrary, from 1922 CE until 1948, the Arab population of Western Palestine almost tripled, while the Jewish population there multiplied eight times. At the end of 1946, Jews were about one third of the population of Western Palestine.

The trauma of the Second World War had spiritually and materially exhausted the British. Their global empire spectacularly collapsed, bringing full sovereign independence (1946-1949) to Transjordan (Eastern Palestine), India, Pakistan, Sri Lanka, Burma, Ireland, and Israel (Western Palestine).

For example, across 1947 the UK government was struggling with implementation of its fateful decision to divide the territory of British India. This division was an attempt to accommodate Muslims who were around twenty percent of the population of British India. There, partition displaced around fourteen million people and caused circa two million deaths. Nonetheless, the UK government pushed partition for the Muslims of British India, but not for the Jews of Western Palestine.

In this same imperial breakup, the UK government announced despair of ever being able to make a success of the Mandate in Western Palestine. This new-found impossibility logically flowed from a disingenuous UK rereading of the Mandate. This had originally been intended as a long-term jurisdiction for gradual development of the national home for the Jewish People. But from May 1939, the British reinterpreted the Mandate as a short-term transition toward national self-determination and independence for local Arabs. Moreover, the British newly argued that local Arabs had an immediate right to forever remain the majority in Western Palestine.

In February 1947, Foreign Secretary Bevin said the United Nations would be asked to recommend a solution in the light of a firm UK decision to quickly end its mandatory role. Repeated was UK unwillingness to use British troops or administration to enforce any UN proposal unless accepted by both Arabs and Jews. In this regard, an accurate Palestine Post precis captured the crux of criticism by Soviet Permanent Representative to the United Nations, Andrei Gromyko (November 26, 1947):

The United Kingdom has also failed morally, because she knew — in fact, it was abundantly clear — that one could not count on any possible agreement between the Arabs and the Jews. Britain had never shown any true desire fully to cooperate with the United Nations for a solution of the question.

With the UK and some other countries abstaining, more than two thirds of the UN Members then voting in the General Assembly supported the historic partition recommendation (November 29, 1947). This resolution inter alia incorporated an explicit provision reflecting President Truman’s persistent call for early Jewish migration on a large scale:

The mandatory Power shall use its best endeavors to ensure that an area situated in the territory of the Jewish State, including a seaport and hinterland adequate to provide facilities for a substantial immigration, shall be evacuated at the earliest possible date and in any event not later than 1 February 1948.

Also included in the UN resolution were companion proposals for the trisection of Western Palestine, no later than October 1, 1948. Specifically suggested was a “Special International Regime for the City of Jerusalem” (corpus separatum), where Jews were the local majority. Under the 1947 UN recommendations, Jews were to continue to have the right to take up residence in Jerusalem which was to be one city undivided. The remainder of Western Palestine was to be partitioned between “the Jewish State” and “the Arab State.”

Shouts of “war” sparked Mideast refugees

The first Secretary-General of the Arab League, Abdul Rahman Azzam was interviewed by the newspaper Akhbar al-Yom. The resulting article (October 11, 1947) anticipated the UN partition recommendation, in relation to which Azzam explicitly promised war:

I personally wish that the Jews do not drive us to this war, as this will be a war of extermination and momentous massacre which will be spoken of like the Tartar massacre or the Crusader wars.

Partition “would, to say the least, result in bloodshed.” This was the prediction or threat which Egyptian Delegate Mohammed Hussein Heykal (November 24, 1947) offered the UN Ad Hoc Committee on Palestine:

If the United Nations decides to amputate a part of Palestine in order to establish a Jewish state, no force on earth could prevent blood from flowing there. Moreover, once such bloodshed has commenced, no force on earth can confine it to the borders of Palestine itself. All the peoples of the Orient would come to the aid of their brothers in Palestine in a race war. If Arab blood is shed in Palestine, Jewish blood will necessarily be shed elsewhere in the Arab world… Would the members be acting in a humanitarian way to place in certain and serious danger a million Jews simply in order to save a hundred thousand in Europe or to satisfy the Zionist dream? The Egyptian delegation is giving the world fair warning.

After adoption of the UN resolution, Secretary-General Azzam’s Cairo speech (December 4, 1947) vowed:

When our nation starts a fight it doesn’t look forward to its conclusion. We will start and will not stop until victory is achieved and our enemy has been thrown into the sea.

The General Assembly Resolution was quickly welcomed by Jews; but angrily rejected by Arabs both in Western Palestine and across the Mideast. Pogroms soon hit Jewish communities in several Muslim countries. Civil unrest also began in Western Palestine, where British exit was commonly expected to trigger full-scale war.

Still, the UK government reiterated determination to withdraw its army and administration by August 1, 1948, later abbreviated to midnight May 14th. In the interim, the British mostly ignored the General Assembly’s recommendations, including via continuation of controversial efforts to prevent Jewish migrants from reaching Western Palestine. Moreover, British soldiers and administration generally refused to cooperate with partition preparations of either UN officials or local Jews. The UK attitude toward Western Palestine was “irresponsible,” wrote Dean Rusk at the USA State Department. On January 26, 1948, Rusk opined: “British noncooperation amounts to a rejection of the Assembly resolution.”

Most in Western Palestine dreaded the coming of war. Decisively, local Jews had nowhere else to go; but from late 1947 some Arabs began a sporadic but gradually increasing exodus from Western Palestine to neighboring Arab countries, including Transjordan (Eastern Palestine). Just hours after the British departed, soldiers from several Arab States (May 15, 1948) entered Western Palestine, thus keeping their repeated public promises to wage war.

This underlines the powerful point — locally and generally, Arabs themselves made the fateful decisions to vociferously reject the 1947 UN proposal for peaceful partition and instead shout “war.” Taken together, these two rash Arab choices were the principal, proximate cause for several waves of Mideast refugees, specifically:

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

What if Jews had been defeated?

Genocide is sadly a recurring topic in Jewish history but also historically linked to the tragic fate of other Mideast Peoples like the aboriginal Armenians and Greeks of Anatolia. Genocide also infamously featured when European-origin populations conquered the aboriginal Peoples of the Americas. Relentless European invasion was a bitter process that began at the end of the 15th century and persisted into the 20th century. This cruel experience from the Americas was among the reasons why the UN Declaration on the Rights of Indigenous Peoples stipulates:

Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide.

“Genocide” commonly brings to mind the industrial-scale horror of the Nazi extermination machine that killed six million Jews in 1940s Europe. But, broader is the authoritative legal definition that is provided by the 1948 Genocide Convention:

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.

Starting from the early 1940s, there were again — as in preceding centuries — significant Muslim attacks against Jews, including in Iraq, Tunisia, Libya and Yemen. Thus, even before the November 1947 General Assembly Resolution recommending trisection of Western Palestine, some Muslims both locally and generally viewed steadily increasing conflict as a potential way to annihilate Mideast Jewish communities. Local precedents were bloody pogroms that Muslims had launched against Jews in Jerusalem (1920); Jaffa (1921); and especially Hebron (1929), which then received widespread attention internationally, including condemnation at the Permanent Mandates Commission.

Steeped in Mideast politics was Harry St. John Philby, a convert to Islam who inter alia served as advisor to the Saudi government. In that capacity, Philby confided (1937) to Jewish Agency Chairman David Ben Gurion his expert view:

The hatred of Jews among all Arab peoples [is] tremendous, and one could not rule out a slaughter in which all the Jews of Palestine would be annihilated.

With an eye to the Nazi-perpetrated Holocaust that had just come to an end in Europe, some Arabs both locally and generally saw military force as “the final solution” to the Jewish question in Western Palestine. Such belief in dealing with Jews violently was significantly inspired by the Grand Mufti of Jerusalem, Haj Amin al-Husseini who was the most famous Mideast Muslim leader during the Second World War.

Haj Amin fled Europe where Yugoslavia sought to indict him as a war criminal. From mid-1946, he was in Cairo as chairman, first of the Arab Higher Executive and then of the Arab Higher Committee which seriatim claimed to be the legitimate government of the Arabs of Western Palestine. In March 1948, he told the Jaffa newspaper Al-Sarih that the Arabs were not simply trying to prevent partition, but “would continue fighting until the Zionists were annihilated.”

Haj Amin had earlier instigated the 1920 Jerusalem pogrom, the 1929 Hebron massacre, and the 1936-1939 Arab rising against the British and the Jews. Later, Haj Amin went to Iraq, where he helped foment the farhud (Arabic: الفرهود‎‎) that in June 1941 ruthlessly decimated the age-old Jewish community of Baghdad. From late 1941 in Nazi Germany, Haj Amin used personal contacts and radio broadcasts to persistently encourage Germans and Muslims to kill Jews. He repeatedly called for Nazi aerial bombardment of Tel Aviv. Meeting with Hitler in Berlin on November 28, 1941, Haj Amin sought assurances that Mideast Jews would eventually be killed as part of Hitler’s plans for global Holocaust.

In the Mideast, perhaps even more influential than the Nazi Holocaust was the precedent of successful ethnic cleansing in the early 20th-century Ottoman Empire. That state was simultaneously the Sunnite Islamic Caliphate that retained the loyalty of most Arabs throughout the First World War. Like Haj Amin, many Arab leaders had served in the Ottoman army or administration. They understood that for strategic reasons the Turks, with help from some fellow Muslims, had ruthlessly killed or brutally displaced more than three and one-half million Ottoman Christians, during and immediately after the First World War.

For example, in 1948 still salient in Mideast memory were the ghastly Armenian genocide of 1915 and the savage liquidation of the aboriginal Greek communities of the Anatolian littoral in 1922. Eminent Arabs like Haj Amin were importantly aware that such Ottoman barbarities not only went mostly unpunished, but ultimately richly benefited the newborn Turkish Republic, by brutally cancelling the aboriginal and self-determination rights of the Greeks and Armenians in Anatolia. Those early 20th-century Ottoman “crimes against humanity” served cold calculations of raison d’état, but were also significantly fueled by Muslim fanaticism. This was precisely the contemporary assessment of Henry Morgenthau, Senior, who was in Constantinople as USA Ambassador, during the First World War.

Were the Jews of Western Palestine slated to go the same way as the aboriginal Armenians and Greeks of Anatolia? As May 1948 approached, there was “serious doubt as to whether the Jewish people in Palestine could themselves control the situation.” This was certainly the influential view of George F. Kennan’s Policy Planning Staff in the USA State Department, which (January 19, 1948) reckoned:

Without substantial external assistance the proposed Jewish State cannot be established or exist… It is improbable that the Jewish State could survive over any considerable period of time in the face of the combined assistance which would be forthcoming for the Arabs in Palestine from the Arab States, and in lesser measure from their Moslem neighbors.

Subsequent history proved Kennan to be dead wrong about indigenous Jewish capacity to create and sustain a nation-State in part of the aboriginal homeland of the Jewish People. But, had Kennan been right, Jews there would probably have been annihilated or culled via pogrom and ethnic cleansing. In the event, things turned out rather differently, mostly because nascent Israel was able to overcome that long-promised Arab aggression.

Who was “Palestinian” before 1967?

The age-old Jewish People kept the same name and subjective/objective identity consistently from antiquity. By contrast, the dawn of the 20th century 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, local 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.

For example, there is the pertinent testimony of Yusuf Ziya Pasha al-Khalidi. Already noted above, his 1899 letter had much to say about the great Jewish People, the Ottoman Empire, Turks and Arabs; and also about Muslims, Christians and Jews in Palestine. But nowhere therein did Yusuf Pasha say anything about a distinct Palestinian People, exactly because at that time no Muslim Arab population generally self-identified as such.

For reasons that have already been explained, some focus on “Palestine” came more readily to the Holy Land’s several Christian minorities. By circa 1900 CE, local Christians were perhaps no greater in number than the Jews. For around a millennium and a-half, the old Mideast Christian sects there had been infamous for their bitter hatred of Jews, as also specifically described by Yusuf Ziya Pasha al-Khalidi in 1899. The enduring antisemitism of these old Mideast Christian sects was fueled by dogmatic religious prejudice, perhaps enhanced by continuing economic rivalry. Thus, it is understandable that Arabic-speaking Christians founded two well-known, anti-Zionist newspapers Al-Karmil (Haifa, 1908) and Filistin (Jaffa, 1911). Those publications perhaps planted some seeds for the eventual birth of the specifically “Palestinian” People.

By contrast, most local Muslims then saw “Palestine” as a foreign geographical reference without much advantage. Longstanding historic self-identifications as “Muslim” and “Arab” were commonly preferred due to their powerful cultural content. Then, relatively unattractive to most local Muslims as focus for their national self-identification was the mere toponym “Palestine.” Local Muslims generally self-identified as part of the distinct “Palestinian” People only after the 1967 Six-Day War, i.e. a full twenty years after satisfaction of three necessary preconditions:

  • 1917-1922, the political rebirth of the name “Palestine”;
  • 1946, the excision of Eastern Palestine (Transjordan) from the British Mandate; and
  • 1948, 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 CE 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 larger 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 sometime after the birth of a new British jurisdiction called “Palestine.”

A glance at a 19th-century Ottoman-Turkish dictionary — or at Yusuf Ziya Pasha al-Khalidi’s 1899 letter — suffices to show that Mideast Muslims were then familiar with the geographical expression “Palestine.” However, they 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 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: Eastern Palestine cut from British Mandate

The “Palestine” appellation’s potential attraction was somewhat elevated when a 1946 UK treaty cut from the Mandate’s territory all of Eastern Palestine which became an independent Arab State called “the Hashemite Kingdom of Transjordan.” The pertinent point was that for the first time the Palestine Mandate now unambiguously referred to territory that was fully 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 less than two years, i.e. between the births respectively in June 1946 of the Kingdom of Transjordan and in May 1948 of the State of Israel.

From 1922 to 1946, the concept of greater Palestine offered little to help local Arabs fight their war against the Jews; while the status of that smaller Palestine from the Mediterranean Sea to the Jordan River (Western Palestine) was then legally and politically far too ambiguous to invite any population to generally self-identify by calling itself “Palestinian.” For example, nothing then prevented Arab migrants from crossing the Jordan River in either direction; and from 1922, Transjordan (Eastern Palestine) was still explicitly included in or excluded from 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 June 1946, the overwhelming majority of local Muslim Arabs did not self-identify as “Palestinian,” partly because to have done so then would have signaled not so much keen 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.

Precisely this reasonable expedient was proposed by the UK Peel Commission in 1937. Then recommended was trisection of Western Palestine. A slice of territory from Jerusalem to Jaffa was to remain under British administration. The suggested Jewish State would have extended along the coast from Rehovot to the border with Lebanon, but also thickening north of Afula to take up all the territory abutting Lebanon and Syria. The proposed “Arab State” would have consisted of both Transjordan (Eastern Palestine) and the Arab-inhabited parts of the “national home for the Jewish People” (Western Palestine). This Peel 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 the afternoon of May 14, 1948, nobody in Washington knew the name of “the new Jewish state.” The name “State of Israel” had to be added at the last moment as a handwritten correction to the typed text of President Truman’s statement recognizing the provisional government of the nascent 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 CE-1948), local Jews were also 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. This explains why they did not generally self-identify using the geographic indication “Palestinian” until approximately twenty years after May 1948, when Jews had abruptly abandoned the “Palestine” trademark.

“Palestinians” championed before 1967?

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 1919 Paris Peace Conference, Prince Feisal persisted in his earlier acceptance of the plan to create “a national home for the Jewish People” in Palestine.

There is significantly no word about the existence of any distinct Palestinian People in the July 2, 1919 statement by the General Syrian Congress, meeting in Damascus. In that important State paper intended for the Paris Peace Conference, the only “country” at issue is “our country Syria.” The toponym “Palestine” appears twice but is explicitly defined as Syria’s “Southern Zone” or “the southern part of Syria, known as Palestine.” As for “the people of the country,” they are decisively not Palestinians but rather “our Arab people” and “Arabs inhabiting the Syrian area.”

Nor was a sovereign Palestine for a distinct Palestinian People the preference of the most famous Mideast Muslim leader from the 1920s until the late 1940s. Grand Mufti of Jerusalem, Haj Amin al-Husseini had been an early fan of Adolf Hitler. Supremely confident of Axis victory in the Second World War, Haj Amin in October 1941 promised close cooperation with Nazi Germany and fascist Italy in return for their support of his plan to create a single Muslim Arab State to include Iraq; Syria; and Palestine, both east and west of the Jordan River.

After the Second World War, the governments of Egypt and Transjordan had little regard for the right to self-determination of any distinct Palestinian People. Firstly, they rejected the 1947 United Nations General Assembly Resolution recommending Western Palestine’s trisection, as described above. Secondly, no independent Palestinian State was ever created between 1948 and 1967, when Egypt held the Gaza Strip and Jordan had East Jerusalem and the West Bank (Judea and Samaria).

However, the loss of those lands by Egypt and Jordan in the Six-Day War (June 1967) strongly encouraged the tendency of local Arabs to see themselves as politically 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.”

This additional national self-identification was all the more attractive, because it effectively expressed the stubborn determination of local Arabs to eventually master all the territory that early 20th-century declarations, resolutions and treaties had explicitly recognized as venue for the “national home for the Jewish People” (Western Palestine).
Nor was this recent Palestinian ethnogenesis the first historical instance of a brand-new national identity forged in the fire of bitter ethno-religious hatred and stubborn territorial dispute. For example, consider the significance of the 1930s invention of the name and idea of “Pakistan” for the 1947 emergence of that new country, so solidly based in Muslim identity.

Reconciliation of rights

This analysis neither denies the current existence of a distinct “Palestinian” People nor suggests that this newborn Palestinian 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 honor and dignity of both Peoples, and effects something like a legal or juridical reconciliation of the subsequent rights of the newly-emerged Palestinian People with the prior rights of the age-old Jewish People, including longstanding Jewish aboriginal, treaty and self-determination rights.

Such a process for something like a legal or juridical reconciliation of respective rights must be peaceful, inter alia, because the Jewish People’s aboriginal and human rights explicitly include “the right to life.” Both individually and collectively, Jews have a strong moral and legal right to live safely in their native land — and even more so in that specific part of their aboriginal homeland (Western Palestine) that was explicitly recognized as venue for “a national home for the Jewish People” in treaties from 1922 to 1924.

This significantly means that the Palestinian People now 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 (Western Palestine). There, the Jewish People lives “as of right and not on sufferance,” as said by Winston Churchill in 1922.

Sketching a principled peace

One People lacks a right to rule over another People. Therefore, a peaceful process for something like a legal or juridical 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 ADL were part of the now defunct 1949 armistices with Egypt and Jordan, two agreements that clearly stipulated that the ADL were 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 final peace treaties with Egypt (1979) and Jordan (1994) do not specify the ADL as the international border, but instead explicitly locate the frontier respectively — to the west, at the 1906 boundary with Egyptian Sinai; and to the east, at the Jordan River; and
  • Fourthly, the Jewish People’s aboriginal, treaty and self-determination rights are juridically so fundamental that they probably outweigh anything that might be said on behalf of the current legal status of the ADL.

Aboriginal rights generally highlight holy places revered by the tribe or People. It is therefore easy to imagine that an agreed, full-and-final peace treaty could also draw on Jewish aboriginal and treaty rights to include one or more paragraphs specifically ensuring Jews free, secure and effective access to certain key religious sites, sacred to Judaism for more than two millennia. This might perhaps have some impact in Jerusalem and Hebron, and maybe also in some other venues west of the Jordan River.

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. This precondition speaks not only politically in terms of national security, but also sounds powerfully in morality and natural and international law. To be sure, the nascent Palestinian People’s new right to self-determination is not absolute. Specifically, it would be immoral, illicit and illegal for Palestinians to cynically exploit a right to independence as a way to destroy or annihilate the aboriginal Jewish People which has been there for at least twenty-six centuries.

For this reason, an agreed, full-and-final peace treaty would probably need to have a number of major stipulations for Jewish security — and even more so, because the Jewish People remains a vulnerable aboriginal minority in the Muslim and Arab Mideast. And, such far-reaching safety measures should probably embrace both transitional and enduring military provisions, but also 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.).
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