Israel’s declaration of independence on 14 May 1948 when the British Mandate ended has no legal validity.

By Christopher King   14 June, 2010   Redress.cc

Christopher King argues that beneath Israel’s litany of crimes against the Palestinians, and most recently its murder of humanitarian workers aboard the Gaza-bound international aid flotilla, lies the fact of its own illegality.

The true nature of the so-called freedom-loving, democratic state of Israel is now clear to the world following its military attack on Gaza, its illegal blockade of Gaza with terrible suffering of its population and now the murder of nine humanitarian activists in course of pirating the Free Gaza Flotilla in international waters.

These horrifying events should focus minds within the international community on the legitimacy of the Israeli regime. We should consider what meaning for its present status its disregard for legality and human rights since its inception might have.

The foundation of the entity Israel was supported by Europe and America due to sympathy or guilt, as you might have it, for the suffering of European Jews, the colonialist thinking of that time and familiarity with the Jewish biblical narrative.“...it is clear that once the Jews took up arms against the Palestinians, dispossessed them and settled on their land, they acted against the terms and intent of the Mandate, to say nothing of civil law.”

The British government resisted unauthorized Jewish immigrants from 1944 to 1948 because they caused trouble with the Palestinians and no administrator likes gratuitous trouble. When the Jews took up arms the British were bound to take action against them. On the Jewish side, there had been expressions of intent based on the Balfour Declaration (1917) that gave Zionists reason to believe that their aspirations had political support. This was so, although with critically important provisos.

The preamble to the League of Nations Mandate by which Britain administered Palestine and which has the same essential wording as the Balfour Declaration, reads:

Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on 2 November 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country [my italics].

Whatever was meant by the term “national home for the Jewish people”, it is clear that once the Jews took up arms against the Palestinians, dispossessed them and settled on their land, they acted against the terms and intent of the Mandate, to say nothing of civil law. Britain was placed in the position of breaching the Mandate if it condoned Jewish actions.“The Balfour Declaration and League of Nations Mandate in favour of a ‘national home for the Jewish people’ are often cited as the legal basis for the Jewish occupation of Palestine. It is obvious, however, that this cannot be true. These instruments had no legal force."

The Balfour Declaration and League of Nations Mandate in favour of a “national home for the Jewish people” are often cited as the legal basis for the Jewish occupation of Palestine. It is obvious, however, that this cannot be true. These instruments had no legal force. Moreover, dispossession of Palestinians from their land breached the most important civil rights safeguarded by the Mandate, namely, the right to possess their land and the right for them and their descendants to live upon it.

Israel’s declaration of independence on 14 May 1948 when the British Mandate ended has no legal validity. Subsequently, Israel was recognized by other countries, following the United States. It was admitted to the United Nations, the rebranded League of Nations, by Resolution 273 on 11 May 1949 which, again is cited by Jewish Palestinians as Israel’s legitimization. Resolution 273 was a grave error. Israel not only had no pre-existing historical foundation but it incorporated a fatal flaw. That flaw was its failure to recognize the rights of the Palestinians. The Balfour Declaration and the British Mandate had recognized Palestinian rights and the 10 December 1948 United Nations Declaration of Human Rights was a general acknowledgement that such rights existed for all peoples.

The right to own property without arbitrary confiscation and to live upon it in one’s own country did not, of course, come into existence with the UN Declaration of Human Rights. These rights had always explicity existed in European-based law, as well as in all developed countries and many others, with the exception of the brief experiment with socialism in some.“Israel not only had no pre-existing historical foundation but it incorporated a fatal flaw. That flaw was its failure to recognize the rights of the Palestinians.”

The right to own property and live peacefully upon it already existed in Palestine. In June 2005 Turkey transferred Ottoman land ownership records for Palestine up to 1916 to the Palestinian Authority. From 1917 to 1948 land records were maintained by the British administration. It should be mentioned that the Israeli authorities seized the land records held by the Palestinian Authority as reported by the Scottish Trades Union Council on 22 April 2002:

Our Palestinian trade union colleagues are now confirming what has been suggested by such news reports as have been able to get out of the areas under Israeli assault.

"Ariel Sharon, with the complicity of the entire Israeli political establishment, is moving to complete his lifetime's ambition – the creation of a state of Greater Israel on all of historic Palestine, through the expulsion or killing of non-Jewish Palestinians, and the destruction of all physical evidence of their history.

"That is why the Israeli gunmen have not only been massacring Palestinians. They have also been demolishing centuries-old buildings, and ripping up olive groves, some of which date back to Roman times.

"They have seized and removed the records and documentation of the Palestinian Authority and of Palestinian civic organizations, including all the membership records of the Palestinian trade unions.

“And most significantly, they have seized the Palestinian records of land ownership. What purpose can that have, other than in order to destroy evidence of the Palestinians entitlement to their land? [my italics].

The 22 August report from the American Libraries Association’s International Responsibilities Task Force illustrates that Israel particularly targets libraries that contain historical records relating to Palestinian demographics (e.g. Health, Development, Information and Policy Institute, Ramallah), commerce (e.g. Palestinian Insurance Company, Ramallah) and government statistics (e.g. Bureau of Statistics, Ramallah). Library papers and computers are vandalized and records that could support Palestinian claims on their land are either entirely removed or destroyed.

The fundamental issue in Palestine is land and the right to live upon it. Israeli actions make clear their awareness that they have no title to the land. Israel is attempting to strengthen its possession by making it difficult for Palestinians to establish their claims.“... the United Nations’ acceptance of Israel’s status as a legitimate state is inherently invalid. Legitimate means according to law. In dispossessing the Palestinians Israel had broken that people’s legally valid tie to the land on which they and their ancestors had lived for centuries if not millennia..."

This then is the fatal flaw in the United Nations 1949 recognition of Israel as a legitimate state within the international community. It ignores the land and residence rights of the Palestinians that had been made explicit in the Balfour Declaration, the British Mandate and the United Nations’ own recognition in the period leading up to the expiry of the British mandate that Palestinian rights must be protected.

By fatal flaw, I mean that the United Nations’ acceptance of Israel’s status as a legitimate state is inherently invalid. Legitimate means according to law. In dispossessing the Palestinians Israel had broken that people’s legally valid tie to the land on which they and their ancestors had lived for centuries if not millennia, which is the very foundation of nationhood, national identity and indeed, livelihood.

As I have said elsewhere, legitimacy for Israel can only be granted by the Palestinians and even they cannot legally give it while under the duress of armed occupation and dispossession. Agreements with the Palestinian Authority or even Hamas relating to land allocation and citizenship are therefore worthless as they might be subject to valid legal challenge at any time in the future.

The status of the Jews in Palestine in international law is therefore that of a people having an ethnic identity, some religious identity but without a Jewish country. Those who emigrated to Palestine possessed national identities based on their birthplace and parents’ residence as in the case of the Palestinians. By these internationally-recognized critera, if they wish to live in Palestine, they are Jewish Palestinians among Muslim, Christian and whichever other Palestinians have a claim to the land.

There is no point in the Jews of Palestine or anyone else arguing subtle and complex legal points in refutation of this. If this proposition is not true, then any people in any country may be dispossessed by a more powerful country and lose all claim to their land. That cannot be the case. International law is founded on the concept of national identity and the right to defend the nation on which it is based. That is precisely what Hamas, the legitimate, democratically-elected government of Palestine is doing.“The status of the Jews in Palestine in international law is ... that of a people having an ethnic identity, some religious identity but without a Jewish country.

The Jews of Palestine cannot conceivably, therefore, invent a country and national identity on land confiscated by armed force from the Palestinian people. It is not possible.

Destroying Palestinian records is crime of unspeakable viciousness that rivals the crimes that Jewish Palestinians carry out against the persons of their Musilm compatriots. It does immense cultural damage while giving no advantage to Jews. The lack of records might be easily remedied for land redistribution purposes on the basis of the known ethnic populations in 1947, when mass immigration commenced. A democratically elected government for all Palestine, following the return of refugees, could sort out the details.

I have never heard anyone suggest that the Jews of Palestine should be ejected from that country. It appears, however, that they do not wish to live equitably among those Palestinians who have prior and better claim to the land than they. In that case, I would suggest that they might select an agreeable location of about 22,000 square kilometres in the United States. They could emigrate, drive its American inhabitants out and set up a Jewish homeland there. More land could be taken over later if desired. As the United States has unfailingly endorsed these principles in the case of Palestine it will undoubtedly be in accord. Alternatively, perhaps Muslim Palestinians might do the same. I cannot see what possible objection the United States government might have.

Christopher King is a retired consultant and lecturer in management and marketing. He lives in London, UK.