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Geoffrey Clarfield and Salim Mansur: The legal case for Israel

By Geoffrey Clarfield and Salim Mansur

An Israeli flag flies on a beach in Tel Aviv.

The Palestinian Authority (PA) recently announced that it intends to sue the British government for the Balfour Declaration — a short letter sent from Arthur James Balfour to Lord Rothschild on Nov. 2, 1917. It reads as follows:

“I have much pleasure in conveying to you, on behalf of His Majesty’s Government, the following declaration of sympathy with Jewish Zionist aspirations which has been submitted to, and approved by, the Cabinet. “’His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country. “I should be grateful if you would bring this declaration to the knowledge of the Zionist Federation.”

It is important to remember that the Balfour Declaration was written in the midst of the First World War. The Ottoman Empire had declared a jihad against the Allies. They were a formidable foe who were aligned with Germany and the Austro-Hungarian Empire against Britain, France, Russia and later the United States.

The Turkish army fought major military engagements against the Allies in the Balkans and the Middle East. The most brutal were the battles of Gallipoli, where the Turks slaughtered thousands of men from the British Empire, until the Allies withdrew. The much-publicized Bedouin revolt in the province of Hejaz in Arabia, co-ordinated by Col. T.E. Lawrence, and massively funded by the British, was the exception to the rule. Even there, Arab Bedouin tribes, like the Howeitat, were divided between those who obeyed the Turks and those who rebelled. But the overwhelming majority of Arab Muslims supported the Turks and fought against the Allied powers.

At the beginning of the war, Turkish authorities in the land of Israel (Palestine) expelled most of the Jewish residents. Many of those Jews fled to Egypt where the British administration and the Egyptian Jewish community gave them refuge. Many of the Jewish men volunteered for the British Army and were inducted into the Zion Mule Corps. Their mission was to supply soldiers on the battlefields of Gallipoli with water, food and ammunition. They were under constant fire and many perished. They served with great merit and were determined to one day liberate the land of Israel from its Turkish occupiers.

Prior to making the Balfour Declaration, the British government announced that it would raise Jewish battalions to fight within the British Army in the Middle East. The British wanted these men to fight the Turks in Palestine, for they believed that history, religion and historical justice demanded that the Jews reconstitute their homeland in the land of Israel after nearly 2,000 years of Christian oppression and 1,300 years of Muslim occupation.

The British knew how badly Jews were treated by the Muslims and the Ottoman Empire. The Jews were second-class citizens, as prescribed by the Shariah law, and required to pay jizya (poll tax). They were humiliated in public and subjected to frequent pogroms. Consequently, some 5,000 volunteered for the Jewish battalions in the British Army and fought in Palestine (which included modern-day Jordan) against the Turks. They fought with courage and contributed to the Allied victory in the Middle East, despite enduring the deeply entrenched anti-Semitism among the ranks of the British high command in Palestine.

At the peace conference in Versailles, and at the many meetings that preceded the formation of the League of Nations, politicians and supporters of the Jewish people referred to the Balfour Declaration when discussing the future of the Middle East. The League of Nations set up the mandate system, under which Britain and France were given authority over different parts of the former Ottoman Empire, to prepare the people of the region to eventually emerge as a series of independent nation states.

The new entities created in the Middle East were present-day Iraq, Israel, Lebanon and Syria. Israel was established under the League of Nations’ Mandate for Palestine, which was administered by Britain. The United Nations adopted the statutes of the League of Nations and, consequently, they remain valid under international law.

When the Mandate for Palestine was established, Britain had every intention of opening up both sides of the Jordan River to the Jewish people. However, the British client in the Hejaz (the Hashemites of Arabia), who were supported by Lawrence, were routed by the Saudis and their tribal allies from the interior of Arabia. While the defeat of the Hashemites turned Arabia into the Saudi kingdom and the heartland of modern radical jihadist Islamism, it led Britain to partition Palestine contrary to its own policy, as stated in the Balfour Declaration. As a result, 75 per cent of Palestine was handed over to the Hashemites in 1922 and Abdullah, one of the sons of Sharif Husayn of Mecca, was made the emir, or king, of the newly minted Emirate of Transjordan.

The majority of Jordanians still consider themselves Palestinian-Arabs living in what was Mandated Palestine

In order to accommodate the Hashemites, Britain also turned over the settled Arabs and other Bedouin tribes of Palestine on the east of the River Jordan to the newly created Emirate. The settled Arabs and Bedouin tribes of Palestine resented this unfair transfer, and have periodically rebelled against the Hashemite emirs. The majority of Jordanians still consider themselves Palestinian-Arabs living in what was Mandated Palestine, and resent the autocratic rule of the Hashemite emirs hoisted upon them by Britain.

Over the decades, numerous Arab clans that attempted to raid Jewish communities in Mandated Palestine west of the Jordan river and were defeated, moved east of the Jordan, which was once indisputably within Mandated Palestine and is known today as the Kingdom of Jordan. These Arab clans are commonly portrayed as Palestinian refugees, even though they live in the one part of Palestine that has been an Arab-Palestinian state since the early 1920s. It is telling that the only opposition party in contemporary Jordan that’s been banned by King Abdullah II is the one that declared Jordan a Palestinian-Arab state.

Though the concept of an independent Jewish homeland in the ancient land of Israel has been anathema to most Arabs and Muslims since the rise of Islam, their modern-day animus against the Jews and the State of Israel is driven by nationalism and anti-Semitism. While Christian and Muslim theologians have believed that the Jews were punished with statelessness for not accepting Jesus as the Messiah of the Jews and for rejecting the message of Muhammad, neither can deny the historicity of Jewish rights in Palestine on the basis of their own sacred texts.

Indeed, when it comes to Islam, the Qur’an itself reveals without any ambiguity the rights of the Jews in the Holy Land as divinely ordained. The Qur’an states, “And (remember) when Moses said unto his people: ‘O my people! Remember Allah’s favour unto you, how He placed among you Prophets, and He made you kings, and gave you that (which) He gave not to any (other) of (His) creatures. O my people! Go into the holy land, which Allah hath ordained for you. Turn not in flight, for surely ye turn back as losers’.”

Herbert Samuel — the first British commissioner to Palestine, who was also a Jew — appointed Haj Amin al-Husseini the grand mufti of Jerusalem. In return, Haj al-Husseini organized numerous pogroms against the Jews in Palestine between 1920 and 1936. The goal of these so-called “Arab revolts” was to terrorize the Jews and prevent them from gaining their own state. Haj al-Husseini eventually became a leader of Muslims among Arabs, especially the Arabs of Palestine.

During the Second World War, the mufti took his staff to Nazi Germany and became Hitler’s ally. He broadcast in Arabic from Berlin and called for the destruction of the Jewish people. He raised thousands of Muslim troops who fought with the Nazis in the Balkans. Declared a war criminal by the post-war Nuremberg courts, the mufti escaped to Egypt and later moved to Lebanon, where he facilitated the entrance of high-level Nazi soldiers and intelligence officers into such Arab states as Syria, Egypt and Iraq, in order to continue their war against the Jews in the land of Israel.


Hazem Bader/AFP/Getty Images

The United Nations adopted the statutes of the League of Nations, which included the Mandate for Palestine, prior to the establishment of the State of Israel in 1948. And according to the mandate, the League of Nations gave all of the land west of the Jordan to the Jewish people. Until 1948, there were many Jewish communities in so-called Arab East Jerusalem, as the Jews formed a majority of the city’s population. There were also Jewish communities in Hebron, Gush Etzion, Samaria and on the shores of the Dead Sea. During the War of 1948, many of the people in these communities were killed and the rest were evacuated.

Israel fought its first war of independence against Syria, Lebanon and Iraq, which were constituted under the same legal framework authorized by the League of Nations as the Mandate for Palestine, as well as Egypt. Between 1948 and 1968, Jordan illegally occupied East Jerusalem, as well as Judea and Samaria, in contravention of the League of Nation’s mandate, under which they rightfully belonged to the Jews.

When Israel engaged in the Oslo negotiations in the early 1990s, it was hopeful that the creation of a second Arab-Palestinian state on the west of the Jordan may bring peace to the region. A new entity called the Palestine Authority was created, but soon after its creation, it adopted Haj al-Husseini’s jihad against the Jews.

There can be no peace in the ancient land of Israel, or the area of Mandated Palestine, without an acknowledgement of historical facts. The Balfour Declaration was a key document that was incorporated into the Mandate for Palestine by the League of Nations. This is the legal instrument that authorized the Jews to reconstitute their national homeland in Palestine. The United Nations, as the League of Nation’s successor, remains bound in principle and in international law to both the Balfour Declaration and the 1922 partition of Palestine that created the Emirate of Transjordan. The most up-to-date documentation of these facts, of the right of the Jews to an independent state west of the Jordan (Israel), has been carried forth by Swiss-trained Canadian legal scholar Jacques Gauthier, the foremost expert in the world in this field.

Clearly, the goal of the Palestine Authority’s threat to sue the British government over the Balfour Declaration is based on the incredibly deranged twin expectations that, by undermining the legal foundation of the State of Israel, it will also delegitimize Syria and Iraq, thus enabling and abetting the forces of radical Islamism to succeed in the jihad that the Ottoman Empire launched, but failed to complete.

The threat, if the PA goes forward with it, should be summarily dismissed by the courts for not only lacking any legal validity against the Balfour Declaration, but also for the not-so-hidden agenda of lawfare by the PA, on behalf of ISIL, al-Qaida and their global network of jihadists.

Geoffrey Clarfield is an anthropologist at large, and Salim Mansur teaches at Western University in London, Ont.


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