Wednesday, November 25, 2009

Medieval Treaty Obligation

Allen Z. Hertz was senior advisor in the Privy Council Office serving Canada's Prime Minister and the federal cabinet. Formerly he worked in Canada’s Department of Foreign Affairs and taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He studied history and languages at Montreal’s McGill University (B.A.) and then did graduate work in East European and Ottoman history at New York’s Columbia University, where he received his M.A. and Ph.D. He later earned international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.).


Most of the work for this paper was done in 1989, when I was a Visiting Fellow of Cambridge University’s Research Centre for International Law, now the Lauterpacht Centre. Recalled with gratitude are the kindness and cooperation afforded by Professor Sir Elihu Lauterpacht and the Centre’s staff. A footnoted version of this article was published in Connecticut Journal of International Law, Vol. 6 (1991), pp. 425-443.

Modern international law places special emphasis on the treaty as a legal source and insists that treaty obligations are legally binding. The late Professor Clive Parry (1917-1982) used to teach Cambridge University law students that before 1919 the moral requirement to fulfill treaty obligations was "binding in honour alone." He also argued that before the First World War publicists and diplomatists regularly excluded treaties from the ambit of international law, which was then conceived to be primarily customary.

This paper on the Middle Ages is part of a larger project that tests the validity of Parry's significant argument, via an examination of treaty obligation in the medieval, classical and modern periods of international law. The Middle Ages are understood as ending with the 16th-century Protestant Reformation. The classical period of international law terminated abruptly with the 1919-1920 Paris Peace Conference, the several treaties of which each included the Covenant of the League of Nations.


The present study argues that the medieval treaty was binding in canon law principally by virtue of ecclesiastical jurisdiction over solemn oaths. As Christians, kings were said to be subject to the pope "by reason of sin" (ratione peccati), in this connection, perjury and oath breaking. Also on this website are a dozen March 2012 postings entitled "Treaty Obligation from the Protestant Reformation to 1919" that describe how the Protestant Reformation destroyed Christendom’s legal unity, thereby setting the stage for the emergence of the classical system of international law. As in the Middle Ages, post-Reformation lawyers continued to intone “agreements must be kept” (pacta sunt servanda). But, by contrast with medieval law, the classical framework notably offered no legal remedy for breach of treaty.

The March 2012 postings entitled "Treaty Obligation from the Protestant Reformation to 1919" show that, for approximately 400 years, the moral requirement to fulfill treaty obligations was "binding in honour alone." Therefore, the classical context is one in which particular attention must be paid to the meaning of “honour” and its significance in international law and relations. This topic is thoroughly explored in “Honour’s Role in the International States’ System,” which was posted on this website in November 2009. Also relevant is the February 2012 posting entitled "Peace Bilateral and International: Birth of 'International Peace and Security' as Legal Order and Term of Art."

Those three postings identify the treaty as a major beneficiary of the international-law revolution that occurred at the end of the First World War. The aristocratic emphasis on honour was then replaced by a bourgeois focus on law. The treaty then became an integral part of international law and remarkably rocketed into the number-one position among the sources and evidences of international law. Also there emphasized is the understanding that one of the principal purposes of first the League of Nations and then the United Nations (UN) was to make treaties "legally" binding, as they had been during the Middle Ages.

What Was the Pope’s Jurisdiction?

What today we call “international law” began to emerge in the period from the mid-16th century to the early 17th century. But, casting his mind back to the Middle Ages, Gottfried Wilhelm Leibniz (1693) said that “the divine positive law contained in the sacred Scriptures” was a common tie linking Christians. To the Old and New Testaments, he added the canon law as “the pontifical legislation, to which kings and peoples submit themselves.” On this basis, Leibniz thought that:
before the schism of the last century, it seems to have been accepted for a long time (and not without reason) that a common republic of Christian nations must be thought of.
Leibniz’s Respublica Christiana is an historical commonplace. But, it took systematic study for 19th- and 20th-century scholars to recover two key concepts:
  • Medieval society (i.e. Christendom) was understood theologically as Christ’s body (Corpus Christi) and legally as a body ("the church" as a corporation) coextensive with the entire community of the faithful.
  • Within Christendom, the pope claimed superior judicial and legislative powers expressed through binding decretal letters prepared by a professional chancery, in its heyday unequalled in Europe.
According to Walter Ullmann (1975): "The basic assumption behind every decretal was papal primacy in the shape of universal monarchic government to be exercised over society which was the Church as the body of clergy and laity alike." A similar understanding had earlier caused Sir Paul Vinogradoff (1923) to include "the world State of medieval Christendom" as one of the "historical types of international law."

The relationship between the universal church’s canon law and a specific territory’s secular law received representative expression in the work of the renowned legist and canonist Baldus De Ubaldis (1327-1400). He believed that, if absolutely necessary, the pope had the power to depose even the Holy Roman Emperor. Secular rulers and secular law were said to be subject to higher norms embodied in natural law, ius gentium and divine law, including canon law. Baldus conceded that secular rulers could legislate contrary to higher norms, but he argued that such legislation would be invalid. In other words, canon law was seen as a limit to secular law and jurisdiction. Canon law and secular law were said to apply in their respective spheres. However, Baldus stressed that the ecclesiastical courts could always take jurisdiction by reason of sin (ratione peccati). Canon law was said to be supreme in spiritual matters, the extent of which was to be defined by the ecclesiastical courts. According to Baldus:
A spiritual case impinging upon a civil one is not heard by a civil, that is a secular judge; but, on the contrary, if a case for a civil court impinges upon a spiritual case, it belongs to the spiritual judge.
 Finally, he claimed that residual power belonged to the church insofar as ecclesiastical authorities could exercise full jurisdiction over any territory lacking secular jurisdiction.

Baldus De Ubaldis (1327-1400)

From the mid-12th century to the eve of the Reformation, the popes were generally lawyers, sometimes even jurists of great distinction. According to Harold Berman (1983):
The papal court of general jurisdiction, both original and appellate, was called in the 12th century, the consistory; the pope himself presided over it. As papal jurisdiction expanded, the popes began to appoint judicial auditors (cardinals, bishops or simple chaplains), whose decisions were binding, subject to papal ratification. In the 13th century, the auditors became a permanent court, called the Audience of the Holy Palace, which deliberated as a body (often divided into sections), and at the end of the century a separate court of appeals was established for civil and criminal cases. In the 14th century a supreme court was established, eventually named the Rota.
The papal court was an institution in many respects comparable to modern international tribunals. According to Walter Ullmann (1970):
The papal court could act both as a tribunal of first instance and as an appellate court. It could become active on its own motion or upon the complaints of a party, be that an individual or a group or a corporate body or a Ruler. Its jurisdiction was unrestricted as to subject matter, persons or territories. No prescriptive time impeded its working. 
The papal court had: (i) compulsory jurisdiction over all Christians including kings; (ii) a mixed judicial-legislative competence to make final legal pronouncements of universal applicability; and (iii) the power to enforce decisions via spiritual sanctions like excommunication and interdict.

What Were the Papal Sanctions?

An “interdict” was a negative command or prohibition directed against an individual, a group or a place. For example, Pope Innocent III placed all of England under an interdict from 1208 to 1213. In the affected area, the use of sacred things was forbidden. The faithful were thus unable to enjoy divine services, including celebration of the mass, public processions and the benediction of the blessed sacrament. Pope Innocent IV (1245) said interdict was an appropriate penalty for the wrongdoing of corporate bodies like cathedral chapters, peoples or tribes.

The most serious ecclesiastical sanction, “excommunication” separated the offender from the communion of the faithful. Apart from general ostracism, excommunication meant exclusion from: Christian burial; public acts of prayer and worship; and the sacraments, including the Eucharist, in which bread and wine were taken as Christ’s body and blood. Excommunication signified the loss of church membership rights. But, the delinquent remained subject to ecclesiastical jurisdiction and bound to Christian obligations. The medieval incorporation of the individual into the church as the body public explains excommunication’s gravity as a legal and social sanction. Sometimes called “the papal arms,” excommunication had a powerful effect precisely because it was based on the religious faith that was then fundamental to society at large.

Excommunication was politically decisive because an excommunicate ruler “was to be shunned by his ministers and his officials and he was to be refused obedience.” Canon lawyers generally agreed that Christians were absolved from their loyalty oaths to an excommunicate king. For example, Pope Innocent IV (1245) excommunicated the Holy Roman Emperor Frederick II. The papal sentence absolved subjects from their oaths of allegiance and instructed them neither to obey Frederick nor to recognize him as emperor or king.

There was agreement between Baldus and his teacher, the civilian Bartolo da Sassoferrato (1314-1357), that an excommunicate ruler could not legislate and an excommunicate judge could not pronounce a valid sentence. Diplomatic relations and treaty making with an excommunicate king were strictly forbidden. This ban was reflected in the coronation oath (1310) of the Holy Roman Emperor Henry VII. He had to promise that he would never enter into relations, alliance or agreement with anyone standing outside the community of the Catholic faith. And, a sentence of excommunication voided prior agreements. For example, “earlier alliances were broken off and treaties that had been painfully negotiated were trampled underfoot,” when Pope Clement V (1309) excommunicated leading Venetians and placed an interdict on the Republic of Venice. Sworn agreements with England’s King Henry VIII were specifically invalidated when he was excommunicated by Pope Paul III in 1535. Furthermore, the papacy might proclaim a crusade against a king who continued to defy one year of excommunication and interdict.

Medieval Treaties Binding in Canon Law?

The world was familiar with the treaty and the question of treaty obligation long before the emergence of the modern State and the pluralistic States’ system with its distinctive international law. In the early 19th century, international-law scholar Henry Wheaton wrote:
The law of nations acknowledged by the ancient Greeks and Romans was exclusively founded on religion. The laws of peace and war, the inviolability of heralds and ambassadors, the right of asylum, and the obligation of treaties, were all consecrated by religious principles and rites. […] Treaties were sanctioned with solemn oaths, the violation of which it was believed must be followed by the vengeance of the gods.
Wheaton here referred to classical antiquity, but the remarks are an excellent starting point for an understanding of the medieval treaty, which was an agreement between Christian kings, concluded within the context of their common faith. The legitimacy of a treaty between a Christian and a non-Christian ruler was therefore problematic. Medieval history records many agreements between Christian and Muslim potentates. However, a ban on relations between the faithful and unbelievers, prohibita communio fidelis cum infideli, was generally the church’s theoretical position.

The medieval treaty was a holy contract inseparably bound up with the key institution of the sacred oath and the canonical provisions punishing perjury and other oath violations. According to the New Catholic Encyclopedia:
An oath is the invocation of the name of God in witness to the truth. It may be taken only in accordance with the truth, with prudence, and with justice. The intention of calling God to witness to the truth of a statement (assertory oath) or a promise (promissory oath) must be sincere and sufficiently manifest to others in words or unmistakable signs. A person is bound by a special and personal obligation of religion to fulfill what he has freely promised by oath to do.
In the strictest sense, perjury is lying under oath, i.e. intentionally swearing to the veracity of a statement known to be false. According to the New Catholic Encyclopedia:
A lying, or perjured, oath is always a mortal sin because it involves contempt for God and disrespect for his attributes. The perjurer asks God to be witness to a lie or supposes that God can be deceived. Perjury is one of the most serious offences against the virtue of religion; it contains the malice of contempt for God.
There is clearly an important distinction between subsequent, willful failure to fulfill a sworn promise and the making of a knowingly false statement under oath. The latter constitutes the grave offence of perjury; the former is also a sin, but its seriousness depends on the circumstances of the particular case. But, the Middle Ages significantly tended to use “perjury” broadly to cover both sworn falsehood and subsequent willful failure to perform an oath obligation. Willful violation of a promissory oath is still regarded as perjury in some European countries.

The Bayeux tapestry indicates that Harold swore an oath to back his promise to help William Duke of Normandy become King of England

According to Ernest Nys (1894), the oath necessarily gave the medieval treaty a “religious character” which allowed the papacy to take judicial notice of any breach of treaty. For Joycelyne Dickinson (1955), the key point about medieval thought on treaties was that:
They were invested with a special solemnity, because they were usually ratified by oaths, to break which involved the sin of perjury which was a spiritual offence. This was true whether the oath had been taken at a great ceremony, in the hands of a papal legate or senior ecclesiastic, and before a great gathering of people, or whether it was exacted by a local official in pursuance of a clause in the treaty calling for widespread oath-taking in the dominions of the contracting parties. In either case, the oath to the treaty would be a sanction which could, in the last resort, be enforced with heavy ecclesiastical penalties, but which was, in the first place, a matter of conscience.
The medieval approach to treaty obligation was well expressed in an oration (1518) of the Tudor divine and diplomatist Richard Pace. He preached on the “Universal Peace” between England and France in the presence of England’s King Henry VIII, his Lord Chancellor Thomas Wolsey, the Papal Legate Cardinal Lorenzo Campeggio and the French ambassadors. The sermon was at London’s Saint Paul’s Church, where “this most religious treaty” between Kings Henry VIII and Francis I was proclaimed and ratified.
O happy pair of Kings! You are today about to give a most auspicious beginning to three things: to the treaty; to faith; and to peace: to the treaty, that it shall be entered into with holiness; to faith, that it shall be sincere and inviolable; to peace, that it shall be perpetual. […] So may immortal God bring it to pass that the joy we feel at this most healthful peace, formed and entered into in this church today, shall be solid and perpetual for all Christians. Of this inestimable blessing the sacred oaths with which this holy treaty has been confirmed give me a sincere hope. He who shall not fear to violate these oaths shall sink his body and soul together into the depths of Hell and the Gehenna of fire.

How Were Medieval Treaties Made?

Used as examples of medieval treaty making will be the Paris Treaty (1259), the Arras Treaty (1435) and the Cateau-Cambrésis Treaty (1559). These agreements are featured for three reasons. First, they have been examined in detail by modern historians. Second, their parties (England, France, Burgundy, Spain) were major participants in the European diplomacy of their day. Third, from a political viewpoint, they were substantively important as peace treaties.

Through the Paris Treaty (1259), England’s King Henry III and France’s King Louis IX sought to end a half-century dispute over Normandy, Anjou, Touraine, Maine and Poitou. The treaty was made in four main stages: pax inita (beginning peace); pax firmata (affirming peace); ratificacio (ratification); and publicacio (publication).

Pax inita: In 1257 papal pressure pushed King Henry III to Paris pourparlers. The English king (May 1258) gave five envoys letters of proxy (littere procuratorie) with full powers (plena postestas) to act on his behalf. Simon de Montfort, Hugh Bigod, Peter of Savoy, and Guy and Geoffrey de Lusignan were authorized to go to Paris to extend the truce and negotiate a definitive peace. Furthermore, the king empowered them to swear solemn oaths on his soul (juramentum in animam regis) that he would keep the truce and abide by the treaty terms. Observed by papal envoys, bilateral negotiations (tractatus) yielded articles of peace (composicio pacis) passed under the seals of the Archbishop of Tarentaise, probably acting for Henry III, and the Archbishop of Rouen for Louis IX. The document was then kept safe in the Paris Temple which was headquarters of the Knights Templar, a crusading order directly under the Pope’s authority.

Pax firmata: On May 28, 1258, the French and English delegations met with Louis IX. In Henry III’s name, Simon de Montfort, Peter of Savoy and Hugh Bigod swore that the English king would fulfill the agreed terms, provided that Louis IX would accept the treaty by Candlemas (February 2, 1259). The three English envoys gave Louis IX a sealed document containing the articles of peace and the text of their oaths. In Louis IX’s name, two French negotiators then swore that their king would fulfill the agreed terms on two conditions. First, for his remaining territory in France, Henry III had to do homage to Louis IX. Second, Henry III and his sons had to deliver letters patent recording their personal oaths to observe the treaty. The articles of peace and the oaths sworn by the French negotiators were then embodied in a sealed document given to the English envoys.

Around Candlemas 1259, three French envoys arrived in England where they announced that Louis IX had accepted the treaty. Henry III designated William de Fortibus and Humphrey de Bohun as “proctors” with full powers to swear on his soul that we would fulfill the treaty terms. On February 17th the two proctors took the oath at Westminster in the presence of Henry III and the French envoys. The text of the oath was then recorded in a document which was sealed and given to the French delegation. In subsequent separate ceremonies, Henry III’s two sons Edmund and Edward swore that they too would observe the treaty. Letters patent recording Edmund’s oath were carried to Louis IX and there must have been a similar document for Edward.

Ratificacio and publicacio: Louis IX received from the English baronial council a paper confirming the articles of peace and from Edward and Edmund sealed documents indicating acceptance of the treaty. Through envoys, the two kings exchanged ratification instruments in October 1259. Henry III travelled to Paris, where he met with Louis IX and participated in a ceremony publishing the treaty on December 4, 1259. Louis IX then received homage from Henry III for his remaining territory in France.

1259 King Henry III's homage to Louis IX

1435 Arras Treaty “Religious”?

The Arras Treaty was concluded between Charles VII, King of France, and Philip III, Duke of Burgundy. The Hundred Years’ War (1337-1453) found its turning point, because Burgundy decided to quit the 1420 Treaty of Troyes -- the alliance with England that had almost defeated France. The delegations met in the Saint Vaast Abbey, where mediation was provided by Cardinal Nicolo Albergati acting for the pope and the Cardinal of Cyprus for the General Council of the Church at Basle. The text was agreed after lengthy negotiations, in which the mediators played an active role. The two cardinals may even have met with each of the parties separately, after the fashion of the cross-examination of witnesses by judges in ecclesiastical courts. In article 40, the parties acknowledged that breaches would be sanctioned by interdict and gradually intensifying penalties of excommunication (aggravatio and reaggravatio). Vassals would be absolved from their loyalty oaths to the party beaching his promise. Furthermore, principal vassals would be required to ratify the treaty and swear to keep the peace. They would also be obliged to accept a positive duty to renounce their allegiance should their ruler prove to be a treaty breaker (articles 39, 41).

The document was promulgated before a great assembly in the Saint Vaast Abbey Church on Saint Matthew’s Day (September 21st). Duke Philip III and the French ambassadors were asked whether they would faithfully observe the oaths which they were about to take. The Cardinal of Cyprus celebrated the mass of the Holy Spirit. The gospel was read by the Abbot of Saint Vaast and the epistle by the Abbot of Saint Nicholas of Reims. The Duke’s confessor, the Bishop of Auxerre, preached a sermon on reconciliation and fraternal union. The Cardinal of Cyprus presented a cushion bearing a golden cross and the Eucharist. Duke Philip III swore a solemn oath that he would forget his father’s assassination (1419) and pardon the guilty. Acting for the King of France, the Dukes of Bourbon and Richemont together put their hands on the cross and asked Duke Philip III to forgive King Charles VII for the 1419 murder. The two cardinals placed a hand on Philip III’s head and absolved him from the oath that he had taken to the 1420 Troyes Treaty with England. The cardinals repeated the absolution rite for the Burgundian lords who had also taken personal oaths to the Troyes Treaty. There followed an hour-long reading, first of the two cardinals’ respective papal and conciliar procurations, and then of the text of the new Arras Treaty. The congregation cried “Noel!” which, in medieval French, was figurative usage expressing joy at the final arrival of a long-awaited happy event. Duke Philip III swore to uphold the new treaty by an oath made on the gospels held by the two cardinals. His oath was then recorded in ratification letters issued that same day. Acting for King Charles VII, the French ambassadors solemnly swore to fulfill the new treaty and these oaths were also documented. The entire congregation was asked to raise the right hand and, in common, to take an oath to respect the treaty. The ceremony was concluded with the benediction.

Philip III Duke of Burgundy

Duke Philip III was eager to have the Arras Treaty ratified by both the pope and the Council of Basle. The mission to the pope at Florence was successfully entrusted to the Priest of Autun, Nicolas Goguet (November 1435). At the same time, Besançon Dean Jean Fruyn secured letters of ratification from the Council of Basle.

King Charles VII

France’s King Charles VII ratified the Arras Treaty in Saint Martin’s Church, Tours (December 10, 1435). Archbishop of Crete, Fantinus Valareso said mass for a congregation, including the princes and nobles. Also present were the Burgundian ambassadors, Bishop Rolin of Noyon and Jean de Croy. The royal chancellor summarized the treaty and explained its purpose. Kneeling before the archbishop’s chair, King Charles VII swore to keep the treaty with an oath which he gave, while touching the New Testament lying on the archbishop’s lap. The same oath was taken individually by the princes and principal nobles, and the rest of the congregation raised the right hand and swore a general oath. They all then shouted “Noel!” King Charles VII shook hands with the Burgundian ambassadors and an organ accompanied singing of Te Deum.

1559 Cateau-Cambrésis Treaty Religious?

The agreement was a landmark in the long-standing struggle between two powerful European dynasties, the Valois (France) and the Habsburgs (Spain and the Low Countries). Negotiations began at the Cistercian Abbey of Cercamp and continued at the bishop’s residence at Le Cateau near Cambrai. On April 3, 1559, ambassadors of King Henry II of France and King Philip II of Spain signed the articles of peace, which had been engrossed on parchment. Although the Protestant Reformation had already torn the fabric of Europe’s legal unity, “the Most Christian King” of France and “the Catholic King” of Spain both remained firmly within the framework of the Roman Church.

The treaty was proclaimed on the same day in Le Cateau’s parish church, in a ceremony that included the Te Deum and mass. Religion was also reflected in the treaty’s preamble:
God has moved two great Princes… to seek an end to the disputes and differences of the war between them, and to transform it into a good, final, complete, sincere and durable Peace.
The medieval worldview lived on in the stipulation that the monarchs swear solemn oaths:
They [the signatory ambassadors] also undertake that the Catholic King shall, as soon as can be, take an oath to the treaty, in the presence of the representatives of the Most Christian King, on the Holy Gospels, and the Canon of the Mass, and on his honour. The Most Christian King shall do likewise, in the presence of the representatives of the Catholic King.
King Philip II ratified the treaty at a ceremony in the Coudenberg Palace Chapel at Brussels, on Whit Monday (May 15, 1559). After mass was said by the Bishop of Arras, Antoine Perrenot de Granvelle, King Philip II and the French ambassadors approached the high altar. Placing his hand on what was believed to be a relic of the true cross, the King of Spain promised to observe the treaty’s terms. On June 18, 1559, the King of France and the Dauphin performed the same rite in a ceremony at Notre Dame Cathedral in Paris.

Kings of Spain and France Embrace
Cateau-Cambrésis Treaty 1559

Kings Lacking Jurisdiction over Treaties?

The medieval concept of sovereignty was fundamentally personal, i.e. the sovereign was identified with the ruler as a natural human being. The medieval lawyer tended not to distinguish between public and private law, between a diplomatic envoy and an ordinary agent. For example, arbitration between two private individuals or between two rulers followed the same procedure, drawn from Roman law. Within this context, it is hardly surprising that treaties were considered to be nothing more than the contracts of kings. This perspective explains how the Roman ius gentium -- a body of private law governing individuals, their transactions and property -- was later able to father the system of public law for independent States. But, for understanding medieval treaty obligation, it is far more significant to appreciate that there was then an identity of contract and treaty. The former may therefore be used to explain the latter. In other words, the juridical position of the medieval treaty can be fixed by turning to medieval material on the law of contract.

For example, Baldus believed that a prince’s contracts were binding in both natural law and ius gentium. This emerges from his analysis of the feudal relationship. According to Joseph Canning (1987):
Baldus like all jurists sees the feudal bond as being based pre-eminently upon the most fundamental legal relationship, contract, without which human intercourse and society would be impossible. The sanctity of contract, and the fides involved in keeping it, are so fundamental that they are seen as the product of ius naturale or ius gentium, and are prior to any positive-law power possessed by the emperor, and limit him as anyone else. Thus, the divinely approved commission of power to the emperor does not include the plenitude of power over contracts, and especially feudal ones, a limitation he shares, for instance, with the king of France -- in feudal matters, both must observe due process of feudal law.
With reference to the jurisdiction of the secular ruler, Baldus was emphatic: “God has subjected the laws to him, but has not subjected to him contracts by which he is bound.” And, elsewhere he said: “Although the emperor is not bound by positive law, he is bound by the law of contract.” Furthermore, Baldus argued that contracts relating to the nature of the ruler’s office are also binding on his successors. This legal opinion was given for the feudal nexus between lord and vassal -- a relationship between superior and inferior. As a contract between equals, a treaty between two kings would be an a fortiori instance of his argument. Consequently, Baldus would have had no hesitation affirming that secular rulers are also bound by their treaties.

Papal Jurisdiction over Treaties?

Studying medieval diplomacy, Donald Queller (1967) concluded that, “truces, treaties and alliances are merely special forms of conventions or contracts.” This view is supported by a look at treaty-making procedures, which used instrumentalities drawn from private law. For example, “procuration” was a private-law institution that authorized an agent with full powers (plena postestas). From Roman law, procuration passed into diplomatic usage, probably via canon law:
The procurator was a sort of agent, used primarily in business affairs or before a court. The identical instrument was, however, gradually found serviceable for governmental administration or diplomacy.
In other words, procurators were first employed for negotiating private contracts for their principals and only later for treaties between rulers.

Canon law saw no difference between a treaty and a contract. “Agreements must be kept” (pacta sunt servanda) was the principle of penitential discipline that applied to either treaty or contract. The canonical theory was that “an oath and a promise are equal in the sight of God… not to fulfill the obligations of a pact is equivalent to lie.” Depending on the circumstances, the breach of a promise might itself be grave enough to deserve ecclesiastical censure by reason of sin (ratione peccati). But, in practice, the parties to treaties and contracts were not satisfied with simple promises or pacts. They were Christians who, frequently for contracts and always for treaties, reinforced their obligations with the swearing of solemn oaths. This was the decisive aspect which ensured that the church was allowed to decide both contract and treaty disputes. Oaths including pledges of faith were by reason of subject matter (ratione materiae) under ecclesiastical jurisdiction.

In the New Testament (Matthew xvi, 18-19), Saint Peter is promised the keys to the kingdom of heaven and told: “Whatsoever you will bind on earth will be bound in heaven and whatsoever you shall loose on earth shall be loosed in heaven.” According to Walter Ullmann (1978), Saint Peter’s keys became in the pope’s hands keys of law (claves juris).

St. Peter's keys in the Vatican Coat of Arms

The pope was regarded as “living law” (lex animata) and “ordinary judge of all” (iudex ordinarius omnium). He had the power of binding and loosing (postestas ligandi et solvendi) which was understood juristically. As both legislator and judge, the pope could bind with law or judicial sentence. He could also loose by amending or repealing law or reversing a judicial decision. And, most relevant to matters of contract and treaty, the pope could release either a private individual or a king from a sworn obligation. This was a dispensation comparable to the solutio obligationis of Roman law. An excellent example is the aforementioned release of Duke Philip III of Burgundy from his sworn obligation to uphold the 1420 Troyes Treaty, the alliance with England.

The possibility of a papal dispensation was well known, so parties sometimes explicitly agreed to refrain from applying to the pope for release from a treaty oath. For example, precisely this stipulation was inserted into the 1360 Brétigny Treaty between the kings of England and France.

1360 Brétigny Treaty

The papacy was especially active in relation to treaties which feature frequently in the registers kept by the papal chancery. There are many examples of kings submitting their agreements to the pope for approval, confirmation, ratification, or nullification. In the late 15th century, France’s King Louis XI told his ambassadors that ratification by the pope was still the best way to ensure the performance of a treaty obligation.

Medieval Case Law for Breach of Treaty?

According to Harold Berman, cases alleging breach of a solemn oath (causa fidei laesionis seu perjurii), like other ecclesiastical causes, were started:
by filing a complaint in the court of the appropriate archdeacon or bishop, and an appeal could be taken by the losing party to the court of the appropriate archbishop and thence to the court of the pope in Rome…. The pope also exercised a universal original jurisdiction: the plaintiff could impetrate (procure) a writ from the papal curia nominating papal delegates to try any case locally. This, indeed, was quite common in cases involving considerable sums of money, as well as in cases in which the parties resided in different archbishoprics.
King John of England turned to the papal court at Rome to make a “denunciation” against King Philip Augustus of France. The allegation was that, in April 1202, Philip had resumed hostilities against John’s mainland possessions in contravention of a solemn truce, backed by the sacred oath of both parties. King Philip Augustus began by contesting the court’s jurisdiction. He argued that Rome had no right to interfere in a quarrel between kings and emphasized that John was also his vassal. Pope Innocent III replied with the decretal Novit ille (1204). The pope conceded that the Church had no business meddling in feudal affairs per se, but claimed jurisdiction, because the case involved a question of sin, i.e. the allegation of the breach of a solemn oath. Moreover, Pope Innocent III took this occasion specifically to affirm that the breaking of peace treaties (rupta pacis foedera) was subject to canon law on the facts of the case (ratione causae). A papal legate was therefore dispatched to Meaux, where a council began proceedings for "censures" against Philip Augustus. The French bishops then appealed to Rome, where representatives of both kings were summoned. Because John’s representatives failed to appear, King Philip Augustus won by default. This litigation was a reflection of the contemporary political constellation which cost King John most of his territories on the continent.

In 1337, France’s King Philip VI took away the Duchy of Guyenne from England’s King Edward III. The English considered this to be a violation of the treaties between England and France. A contemporary legal opinion advised Edward to appeal to the pope’s compulsory jurisdiction (full apostolic powers) by reason of sin (ratione peccati). The proposal envisaged a papal judgment ordering the King of France to restore the confiscated province on pain of excommunication and interdict.

Kings Wary of Pope’s Compulsory Jurisdiction?

Medieval legal sophistication is evident in the distinction which contemporaries made between the pope’s compulsory jurisdiction (full apostolic powers) and instances where the disputing parties agreed to submit their case to the pope for either mediation or arbitration. Medieval rulers sometimes volunteered to accept papal mediation or arbitration, but they were generally wary of compulsory jurisdiction flowing from the pope’s full apostolic powers. For example, Pope Boniface VIII (1295) sought to use his compulsory jurisdiction to order a peace treaty between England’s King Edward I and France’s King Philip IV. Despite application of ecclesiastical sanctions, Philip IV refused to obey the pope. However, Philip IV was willing to authorize Pope Boniface VIII to arbitrate in his private capacity as Signore Benedictus Gaytanus. “As if a private person” (tamquam in privatam personam), Pope Boniface VIII gave his arbitral award on June 27, 1297.

The distinction between the pope’s compulsory jurisdiction and voluntary submission to papal mediation or arbitration was again recognized in 1300, when King Edward I invited Pope Boniface VIII to settle a new dispute with the King of France. The pope replied to the English envoys that he had considered the matter carefully, but did not believe that it could be settled through mediation because the French would make unreasonable demands:
And, if we will arbitrate, the French will not execute our award; it would not even be possible to force them to do it by making them pay a fine, about which they will worry very little. This is why we believe that it would be good if we would use our full apostolic powers. For us to be able to do this, it would be necessary that complaints against the king of France are formulated for us and that it is alleged that he has committed a sin by wrongfully retaining territory belonging to the king of England. [...] If the king of France argues that we do not have the authority to intervene in questions of fiefs, we will reply that we do by reason of sin.

Treaty Obligation's Link to the Search for Peace

Modern international law says the system’s rules are based on the consent of States expressed in their practice. And, the Statute of the International Court of Justice regards the best evidence of State practice to be treaties as “establishing rules expressly recognized by the contesting States.” The preamble to the UN Charter points to “respect for the obligations arising from treaties” as one of the organization’s main aims. UN Charter, Article 102 requires that every treaty made by UN Members be registered with the Secretariat and published. Article 36 of the Statute of the International Court of Justice invites States to opt to recognize the court’s compulsory jurisdiction over treaty interpretation.

The UN Charter is itself a treaty. Although it deals with a variety of additional topics like human rights and economic and social development, the UN Charter focuses on maintenance of international peace and security. Thus, UN Charter, Article 2(4) prohibits the “use of force against the territorial integrity or political independence of any State.” Because UN membership is near universal, an act of aggression is normally also a treaty violation. The point is fundamental, because peace treaties have always been among the most significant agreements between States. This invites the key question: are peace treaties legally binding? Is there now an effective international remedy for an egregious violation of the treaty obligations that States accepted when they joined the UN?

As students of international law and politics soon learn, the answer is complicated, and can only reveal a varying gap between theory and practice, aspiration and performance. In the Middle Ages, there was also appreciation for the uncomfortable gap between theory and practice. But, the medieval search for peace continued even though the goal seemed impossible to attain. Our own century shares with that earlier age the attempt to make treaties binding in law. In measuring our own task and judging our accomplishment, can we ignore the efforts and experience of those who did the same work not so long ago?

Friday, November 13, 2009

Obama's Cairo Speech: Line-by-Line Israel Analysis

Allen Z. Hertz was senior advisor in the Privy Council Office serving Canada's Prime Minister and the federal cabinet. Formerly he worked in Canada's Department of Foreign Affairs and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong.


This line-by-line critique poses tough questions about the meaning and intent of the speech which President Obama delivered on June 4, 2009. This important address is also covered in two November 2009 essays posted to this website. See "Cairo and After: Does Obama Seek a Weak Israel?" and "Obama: Walking on Israel in Chamberlain's Shoes?" There is also an October 2011 posting entitled "Aboriginal rights of the Jewish People" which explains more deeply some of the historical and legal references in this line-by-line analysis. 

Office of the Press Secretary
(Cairo, Egypt)

Cairo University
Cairo, Egypt

1:10 P.M. (Local)


Now part of this conviction is rooted in my own experience. I'm a Christian, ...

[Comment: President Obama here chooses to broach the sensitive matter of his personal religious affiliation. This makes sense because consistent public-opinion polling reveals that most Americans want a political leader to have strong religious belief, and are interested in learning something about their leader's religious faith. Thus, commentators are also fully entitled to discuss these delicate religious questions that President Obama himself sometimes raises.

Though probably Muslim in childhood, Barack Obama started publicly practicing Christianity at some point before his October 1992 marriage to Michelle Robinson. For about 15 years he attended services at Chicago's Trinity United Church of Christ, where the Reverend Jeremiah Wright frequently used the pulpit for anti-Israel and anti-USA rants. During the 2008 Democratic nomination campaign, candidate Obama made the improbable claim that he had been unaware of the bitterly anti-USA pronouncements of his long-time pastor. But, these self-serving denials directly contradict what had previously been written about Wright in Obama's 1995 autobiography, Dreams From My Father.]

but my father came from a Kenyan family that includes generations of Muslims. As a boy, I spent several years in Indonesia and heard the call of the azaan at the break of dawn and at the fall of dusk.

[Comment: Psychologists tell us that childhood experience is significant. And, the Jesuits believed: "Give me the child until the age of seven and I will give you the man.” Because President Obama is a pivotal public figure who himself raises the matter of his Muslim roots, we are fully entitled to ask about his childhood to help us better understand the foundations of his current worldview and perhaps predict his policy directions, including with respect to Israel and the Islamic Republic of Iran.

Theologically, Islam regards all children to be born Muslim and to remain such until adults teach them otherwise. Child Obama was probably Muslim also because: (1) his paternal grandfather in Kenya was Muslim; (2) his Kenyan father (though ideologically Marxist) was born Muslim, always kept his two Muslim names ("Barack" and "Hussein"); and when he died, his family wanted him buried with Muslim rites; (3) he was given two Muslim names, "Barack" and "Hussein"; (4) his Indonesian stepfather was also Muslim; (5) his Indonesian classmates and playmates recall that he attended religious services both at school and in mosques, when they believed him to be Muslim; (6) he was registered as "Muslim" at two elementary schools in Indonesia; (7) he then studied the Koran; (8) an Indonesian teacher recalls that child Obama was also learning Arabic recitation of the Koran, a part of which adult Obama can still recite by memory, as demonstrated during a 2007 interview with New York Times columnist Nicholas Kristof; and (9) reflecting on her childhood with her older brother, Obama's half-sister Maya Soetoro in 2007 told the New York Times: "My whole family was Muslim."]

As a young man, I worked in Chicago communities where many found dignity and peace in their Muslim faith.

[Comment: This passage recalls information in Barack Obama's 1995 autobiography Dreams from My Father which, inter alia, details his continuing ties to Muslims, e.g., close friends and roommates. Dreams From My Father and other statements by Barack Obama (e.g., about his 1981 trip to Pakistan) raise the possibility that he retained something of a Muslim self-identification beyond his first decade. This hypothesis is supported by testimony from a former Obama girlfriend, an erstwhile lover who today recalls that, as a recent graduate (1983) from Columbia University, he socialized mostly with Muslims from Pakistan.

When Obama's long-term pastor, the Reverend Jeremiah Wright first met Obama in 1987, he was impressed by how much Obama then knew about Islam by contrast with Obama's slender knowledge about Jesus. Asked if he had converted Obama from Islam to Christianity, Wright replied: "That's hard to tell. I think that I convinced him it was okay for him to make a choice in terms of who he believes Jesus is. And I told him that it was really okay and not a put down of the Muslim part of his family or his Muslim friends."

As a new law student at Harvard University in 1988, Obama was told by the Reverend Jesse Jackson, Senior: "If you want to succeed in politics in this country, you had better get yourself a Christian religion." What did Jackson then know about Obama's religious background? And why twenty years later (October 2008), did Jackson publicly predict that an Obama victory in the presidential election would certainly mean a reversal in USA policy toward Israel?

Thus, the high probability that Barack Obama was Muslim as a child in Indonesia does not necessarily mean that his close connection with Islam and Muslims abruptly ended in 1971, when he moved to Hawaii. President Obama himself pointed to this possibility at the April 28, 2013 White House correspondents' dinner. There, speaking truth in jest, he said: "I’m not the strapping young Muslim socialist that I used to be."

Certainly, President Obama's 2009 journey to Cairo to reach out to the Muslim world cannot be compared with President Richard Nixon's 1972 trip to Beijing to begin direct dialogue with the communist leaders of China. As a long-time "Cold Warrior" with sterling anti-communist credentials, Nixon was hard to challenge on his motives for talking with Chairman Mao. By contrast, ought there not to be some degree of skepticism about the motives of a President with publicly avowed Muslim roots, reaching out to the Muslim world? The potential political problem here falls under the familiar headings of bias and conflict of loyalties.]

The second major source of tension that we need to discuss is the situation between Israelis, Palestinians and the Arab world.

[Comment: Iran is discussed later in the speech. Thus, President Obama here implies that the crisis sparked by Iran’s race to develop nuclear weapons is less “a source of tension” than the long-standing dispute over the stubborn refusal of most Muslims and Arabs to accept 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.

President Obama's decision to prioritize "the situation between Israelis, Palestinians and the Arab world" is a key foreign-policy error. In the eyes of both Arabs and Jews, USA credibility and prestige depend on President Obama's first dealing promptly with Iran's race to nuclear weapons. A USA which appears to falter or appease Iran has little moral and political authority to broker peace between Arabs and Jews. By contrast, great would be the authority of a USA that demonstrates commitment to an enduring "pax Americana" by first bringing an end to Iran's programs for acquiring nuclear weapons.]

... the situation between Israelis, Palestinians and the Arab world.

[Comment: Nothing in President Obama's speech provides a clue that between the Jordan River and the Mediterranean Sea the Jews are no longer the demographic minority.

President Obama refers at least five times to “the Palestinian people,” but only once to “the Jewish people.” And there, the reference to “the Jewish people” is not to a “People” as bearer of rights, but as historic victim. By contrast, President Bill Clinton's peace parameters (December 23, 2000) specifically referred to "the state of Israel as the homeland of the Jewish people."

It is probably no accident that President Obama prefers to talk about “Israelis” and words that perhaps suggest the existence of an Israeli People. But, 20% of Israelis are Muslim Arabs. Are not these Israel Arabs also part of President Obama's “Arab world”?

Does he here carefully choose words both to distance Jews in the USA from those in Israel and to conform to the Muslim and Arab narrative that stubbornly insists that Jews are practitioners of a religion, but not a “People” entitled to invoke the political and legal doctrines of aboriginal rights and the self-determination of Peoples? Since self-identification is the required rule, President Obama should listen carefully to what Jews themselves say about this issue. To the extent that Jews in Israel and around the world say that they are one People and that Israel embodies their self-determination, what grounds could President Obama have to dissent from their view?

And, are not non-Arab parts of the Muslim world also key players here? For example, non-Arab, Muslim Iran (i.e. the Islamic Republic of Iran) repeatedly threatens to destroy Israel and regularly funds, trains, arms and participates in terrorist organizations that strike not only in Israel but also against Jews in other countries. Thus, this long-standing struggle is nothing less than a war against the Jews.

In this context, most Muslims and Arabs stubbornly refuse to accept 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. Moreover, the Cairo speech dovetails with the Muslim and Arab narrative by spectacularly omitting two essential points. Firstly, the Jewish People is indigenous to the Mideast. Secondly, some then self-identified "Jews" have lived in their aboriginal homeland in each year since the Jewish People's ethnogenesis around twenty-six centuries ago.]

America's strong bonds with Israel are well known.

[Comment: President Obama does not say whether he approves of the strong USA bonds with Israel; nor does he commit to their future maintenance. He simply states there are now “strong bonds” and high awareness thereof. Al Qaeda, Hamas, Ahmedinejad, and the Walt-Mearsheimer critics of USA foreign policy all concur. In fact, they "accuse" the USA of having bonds with Israel that are "too" strong.]

This bond is unbreakable.

[Comment: Given USA public opinion and Israel’s supporters in the Senate and the House of Representatives, President Obama knows that the bond is now practically “unbreakable.” However, here he significantly fails to promise that the bond will remain unbroken in the future. To the contrary, he later significantly says, “America will align our policies with those who pursue peace.” Is the implication that an Obama-approved pursuit of peace must be in line with the pro-Muslim, pro-Arab tilt of this speech?]

It is based upon cultural and historical ties....

[Comment: Another neutral statement of fact, but no promise for the future. But, it is telling that President Obama’s Cairo speech offers no political rationale or moral foundation for maintaining “America’s strong bonds with Israel.” This is one of the main respects in which the Cairo speech tilts against Israel.]

and the recognition that the aspiration for a Jewish homeland is rooted in a tragic history that cannot be denied.

[Comment: Here as elsewhere, President Obama consistently seeks to minimize Jewish rights.

 Almost insulting is the abstract and indefinite way in which he talks about “a Jewish homeland.” He very carefully chooses words that sound as if he is speaking at some time at the end of the 19th century.  But the stark truth is that today the Jewish People does not have an “aspiration for a Jewish homeland." Rather, the Jewish People already has 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 homeland.

For more than 61 years, the State of Israel has been the embodiment of the national self-determination of the Jewish People.  And before the 1948 birth of Israel, there was from the Mediterranean Sea to the Jordan River, the "national home for the Jewish People" created by the 1922 League of Nations Palestine Mandate which has a status akin to a treaty. The Palestine Mandate was an entirely new jurisdiction that until 1946 also included Transjordan.

From ethnogenesis around the 600 BCE, the Jewish People has, in each and every year, kept some demographic and cultural links with the Holy Land, known to Jews as "Eretz Israel." Of all extant Peoples, the Jewish People has the strongest claim to be aboriginal to the Holy Land.  In all those centuries, then self-identified "Jews" did not dream of a homeland on Vancouver Island. Their dream was always of Eretz Israel, their native land where (in greater or lesser numbers) some then self-identified "Jews" have always lived.

Today Jews are no longer a minority in the Holy Land, so they can more fully benefit from the doctrine of the self-determination of Peoples, which normally assigns territory according to the ethnic character of the current local population. The Jewish People also has aboriginal and treaty rights to its ancestral homeland. Thus, President Obama's reference to "tragic history" (e.g., the Holocaust) is not needed to vindicate the Jewish People's right to sovereignty and territory.

The Jewish People has aboriginal rights to the Holy Land in the same way that the Aboriginal Peoples of Canada have rights to their tribal lands. And, the principle of the self-determination of Peoples applies to the Jewish People in the exact same way as to the Japanese, Italian or Turkish Peoples.

The great Arab People’s right to self-determination is already expressed via twenty-one sovereign States that explicitly self-identify as Arab. Since circa 1967, a specific Muslim Arab population has for the first time chosen to generally self-identify as "the Palestinian People." This newborn Palestinian People now has claims to self-determination, independence and territory. But these Palestinian rights are neither fully formed nor self-executing. Urgently required is a peaceful process that fully respects the dignity of both Peoples. In this context, there is a moral and legal imperative to "peacefully" reconcile subsequent Palestinian rights with prior rights of the Jewish People -- including Jewish aboriginal, treaty, and self-determination rights.

The Jewish People is already fully entitled to live in its aboriginal homeland, and particularly in that part of its homeland that stretches from the Jordan River to the Mediterranean Sea. For this reason, the newborn Palestinian People lacks a right to wage a war of national liberation against the Jewish People whose presence there is not colonial in character.]

Around the world, the Jewish people were persecuted for centuries, and...

[Comment: President Obama moves quickly to discuss Europe, without saying anything about 1400 years of persistent Muslim and Arab discrimination against Jews. Is the President validating the Muslim and Arab narrative by ignoring Jewish history in the Mideast? The Mideast has always had large numbers of Jews, e.g., around one million in 1900. In each and every year from antiquity to the present day, there have also always been then self-identified "Jews" living in the aboriginal homeland of the Jewish People. Part of their long history there is as the sorry victims of Muslims who offered local Jews not only periodic bouts of bitter persecution, but also consistent discrimination, beginning with the Arab conquest in the fourth decade of the 7th century CE.]

anti-Semitism in Europe culminated in an unprecedented Holocaust. Tomorrow, I will visit Buchenwald, which was part of a network of camps where Jews were enslaved, tortured, shot and gassed to death by the Third Reich. Six million Jews were killed --more than the entire Jewish population of Israel today.

[Comment: "Buchenwald" was a sop for USA Jews! President Obama very significantly balances the Cairo speech with a trip to a German concentration camp. However, internationally more relevant would have been a State visit to Tel Aviv and Jerusalem. The Buchenwald trip was a clever public relations stunt to ensure that USA Jews would miss or forgive the shabby treatment of Israel in the Cairo speech.

The Holocaust reference was calculated to confuse. The killing of six million Jews was not necessary to vindicate the Jewish People’s moral and legal right to its aboriginal homeland. Israel as "the" Jewish State is based on the political and legal doctrines of aboriginal rights and the self-determination of Peoples. Before the Holocaust of the 1940's, the Jewish People's historic connection to its ancestral homeland was already explicitly recognized from 1917 to 1922, in a series of declarations, resolutions and treaties that were subsequently blessed by the 1923 Lausanne Treaty with the Turkish Republic, as successor to the Ottoman Empire. In terms of the normal "sources and evidences of public international law," few new sovereign States have been born with a stronger legal pedigree than modern Israel.]

Denying that fact is baseless, it is ignorant, and it is hateful.

[Comment: As elsewhere in the speech, President Obama here plays to the well-known sentiments and anxieties of USA Jews in order to camouflage significant anti-Israel directions. Though Iran's President Mahmoud Ahmedinejad is a Holocaust denier, some Muslims and Arabs accept the historicity of the Holocaust for the particular purpose of arguing that the Arabs of the Holy Land should not have to pay the price for the genocidal crimes of Europeans.

Precisely in this connection, let us examine the record of the principal leader of local Arabs from the 1920's until the mid-1940's -- the Grand Mufti of Jerusalem, Haj Amin Al-Husseini. After the British exiled him from Palestine, the Grand Mufti went to Baghdad where he played a major role in instigating the 1941 "farhud" pogrom that decimated the Jews of Iraq. Moreover, the Grand Mufti was an early fan of Adolf Hitler (whom he met in late 1941), and an enthusiastic supporter of the Holocaust, which he fervently hoped would soon include the killing of all the Jews in the Mideast. Germany and the Nazis were generally favored by Muslims and Arabs, who from 1939 to 1945 did little to help the Allied war effort, to which the Jews of Eretz Israel made significant contributions.

The Cairo speech notably ignored the Jewish People’s aboriginal and treaty rights to its ancestral homeland and instead seemed to accept the Muslim and Arab narrative that the Jewish claim to Israel rests on the Holocaust.]

Threatening Israel with destruction --or repeating vile stereotypes about Jews-- is deeply wrong, and only serves to evoke in the minds of Israelis this most painful of memories while preventing the peace that the people of this region deserve.

[Comment: Saying “threatening Israel with destruction is deeply wrong” was, inter alia, calculated to resonate powerfully with USA Jews who, lacking the practical experience of Israel Jews, are unreasonably grateful for Israel’s mere survival. By contrast, most Israel Jews have the good sense to understand that, with regard to the same or similar circumstances, Israel needs to enjoy rights identical to those of other countries, and to be regularly judged according to the same standards commonly applied to other countries.

President Obama’s repeated existential focus is too starkly minimalist to accommodate Israel within the world of States, where Israel -- like other countries -- has a legitimate daily need to advance specific economic, political and legal interests. Given the touted USA bonds with Israel, President Obama ought to refer to Israel in terms going well beyond a mere right to exist.

Former Israel Foreign Minister Abba Eban in 1981 emphasized: “Nobody does Israel any service by proclaiming its ‘right to exist.’  Israel’s right to exist, like that of the United States, Saudi Arabia and 152 other states, is axiomatic and unreserved. Israel’s legitimacy is not suspended in midair awaiting acknowledgement... There is certainly no other state, big or small, young or old, that would consider mere recognition of its ‘right to exist’ a favor, or a negotiable concession.”

As a close friend, the USA ought to advance any number of concrete Israel interests. However, President Obama’s repeated minimalist focus on a bare right to exist is perhaps a signal that that he intends to sell Israel short. This interpretation would be consistent with an earlier remark attributed to USA National Security Adviser General James Jones who quipped that the Obama administration was not going to “throw Israel under a bus.”]

...and only serves to evoke in the minds of Israelis this most painful of memories while preventing the peace that the people of this region deserve.

[Comment: Is President Obama here suggesting that regional peace has not been achieved partly because "Israelis" are paranoid due to Jewish experience of the Holocaust of the 1940's? If so, this is a familiar left-liberal trope that willfully ignores the real threat now posed by various Muslim and Arab regimes that would (if they could) destroy Israel and kill great numbers of Jews both there and abroad.

For example, the genocidal intent of the regime of the ayatollahs has been repeatedly expressed by a variety of key Iranian players using a range of language. However, in some left-liberal circles, there is a pretense that the allegation of Iranian threats of genocide rests merely on faulty translation from Farsi of just one statement by President Ahmedinejad! Truth be told, the genocidal intent of the ayatollahs is as clear today as was that of Nazi Germany in the 1930's.

It is also possible that President Obama's language was carefully chosen to dovetail with the spin of the many Muslims, Arabs and leftists who regularly accuse Jews of "exploiting" the Holocaust for political and financial advantage. This essentially Anti-Semitic charge is in every sense as reprehensible as it would be to say that Black Americans seek political and financial advantage by "exploiting" the memory of slavery.

In the normal context of modern human-rights methodologies, we do not second guess the victims and their suffering. It is deeply offensive to question the authenticity of a People's voice, its historic trauma and any continuing persecution or discrimination. A tragic history of victimhood normally gives rise -- not to insulting suggestions of paranoia -- but rather to special efforts to protect the victims from repetition of the same or similar crimes, as well as an obligation to apologize and make significant reparation.

Though there are still some indigent Jews -- and there were many more in the 19th and 20th centuries -- today the most salient aspect of Jewish "disadvantage" arises not from economics but from the persistent Anti-Semitic passion to kill Jews en masse. Thus, there were large-scale Russian and Romanian pogroms in the 19th and 20th centuries and the Holocaust in the 1940's.

The main feature of 21st-century Jewish disadvantage remains the sad fact of so much current Muslim and Arab intent to destroy Israel and kill Jews. President Obama should be reminded that Jews living in Israel are not paranoid, but rather have every reason to fear that some of their Muslim and Arab neighbors really are planning to kill them.]

On the other hand, it is also undeniable that the Palestinian people --Muslims and Christians-- have suffered in pursuit of a homeland.

[Comment: "Muslims and Christians"? Europeans and North Americans are regularly fed the evident falsehood that the Palestinian cause is "secular.” Is President Obama validating the Palestinian narrative in this respect? He refers to the Christians, but fails to inform us that their numbers have dramatically dwindled. On the West Bank and in Gaza, the rapid eclipse of the Arabic-speaking Christians is principally due to sharper persecution by the Muslim Arabs who are increasingly drawn to political action based on their Islamic identity.

For centuries, Jews living in their own aboriginal homeland (Eretz Israel = the Holy Land) were generally hated by both Muslim and Christian neighbors. However, this does not mean that there was often much solidarity between Muslims and Christians there. Today Christians are fleeing the Mideast because of heavier Muslim oppression.

As in the speech's later references to Jerusalem, President Obama chooses to ignore the sad circumstance that Israel is the only Mideast country where Christians are able to freely practice their faith.]

On the other hand, it is also undeniable that the Palestinian people... have suffered in pursuit of a homeland.

[Comment: “On the other hand”? Is President Obama here implying that the Palestinian People’s suffering in quantity and quality matches Jewish suffering in the Holocaust? Just such an equation features in the Muslim and Arab narrative, which then goes further to say that the Jews in Israel are as bad as the Nazis. If so, the implied comparison would be wildly inaccurate and inappropriate for many reasons, including the key fact that the Jews never tried to exterminate the Arabs living in the aboriginal homeland of the Jewish People, i.e. Eretz Israel = the Holy Land. Thus, a century of efforts to implement the Jewish People’s aboriginal and treaty rights there saw Arabs experiencing not genocide, but rather exceptional population growth which Arabs themselves celebrate. By contrast, the Nazi extermination of six million Jews was a clear demographic catastrophe for Jews whose numbers dramatically fell in absolute terms.]

On the other hand, it is also undeniable that the Palestinian people... have suffered in pursuit of a homeland.

[President Obama's sonorous reference to "pursuit of a homeland" by "the Palestinian People" is intended to refer to the political and legal doctrine of the self-determination of Peoples. In its entirety, the Cairo speech is articulate about the self-determination rights of the Palestinian People, but says nothing explicit about the self-determination rights of the Jewish People. Similarly, President Obama completely ignores the aboriginal and treaty rights of the Jewish People.

Here President Obama's approach is consistent with the habit of left-liberals and Muslims who falsely imagine that the right to self-determination of the newborn Palestinian People is absolute -- and can justify anything. Such claims are political, perhaps even criminal, but hardly properly juridical. For an antidote, let us consider some pure law, i.e., some universal principle, without reference to any particular dispute. Thus, let's listen to moral and political philosopher John Rawls (1921-2002) who held the Conant Chair at Harvard University.

In his 1993 paper, The Law of Peoples, Rawls demonstrated that he did not believe that a People has an unqualified or absolute right to self-determination and independence. For example, at p. 47, Rawls specifies that: "no people has the right to self-determination, or a right of secession, at the expense of the subjugation of another people..." A fortiori, Rawls would agree that a People lacks a political, moral or legal right to independence and self-determination for use as a means for destroying or annihilating another People.

It is entirely consistent with morality and law to support the principle of the self-determination of Peoples, while simultaneously demanding that implementing the newborn Palestinian People's right to self-determination is politically, morally and legally contingent on Palestinian acceptance of real security arrangements for the Jewish People, as well as on unequivocal Palestinian recognition of the permanence and legitimacy 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.

Born via a socio-political process of general self-identification, "a People" exists in history with a particular name. Sometimes a new, named People is born (e.g., the Quebecois) and sometimes Peoples disappear from history, e.g., the ancient Philistines who simply vanished without a trace. A then commonly self-identified, specifically "Jewish" People has objectively existed since circa 600 BCE. A then commonly self-identified, specifically "Palestinian" People has objectively existed since circa 1967 CE. And make no mistake -- a temporal dimension is logically implicit in Rawls' references to "self-determination" and "secession" which entail the notion of prior rights pertinent to a People's exercise of its right to self-determination.

There was no such thing as a then commonly self-identified, specifically "Palestinian" People at the time of Woodrow Wilson. Neither he nor anybody else at the 1919 Paris Peace Conference had ever heard anything about the existence of a distinct "Palestinian People" -- though the statesmen there were grappling with the often conflicting claims of more than a score of other well-known Peoples with long histories of self-affirmation, suffering and struggle. There, in that post WW1 peace settlement that recognized the Jewish People's historical connection to Palestine, there was a sincere search for equities that carefully weighed the needs of the great Jewish People of world history against those of the great Arab People of world history.

The rock solid fact is that, at the dawn of the 20th century, locally only a handful of Arabic-speaking Christians were then concerned with anything like a notion of "Palestine" or "Palestinians." But, history, sociology and law all strenuously insist that an acorn is not an oak tree! Nor today can a given People in its own name claim any political, moral or legal rights with respect to a time before its own birth. All such prenatal claims are logically by way of alleged succession in title from some earlier, named People, with regard to which there must be an entirely new evaluation, including what was then specifically affirmed by that earlier, named People.

Before 1967 CE, locally the non-Jewish population did not generally self-identify as "the Palestinian People," but rather as "Muslim" and "Arab." In this regard, it is pertinent to note that the claims of the Muslim "umma" or of "the great Arab People of world history" are morally and legally no stronger against the prior rights of the Jewish People than the current claims of the newborn Palestinian People.]

For more than 60 years they've endured the pain of dislocation. Many wait in refugee camps in the West Bank, Gaza, and neighboring lands for a life of peace and security that they have never been able to lead.

[Comment: Again President Obama appears to validate the Muslim and Arab narrative. Although he notably fails to attribute any of the historical suffering of the Jewish People to Muslim and Arab wrong-doing, he implicitly blames Jews for Arab suffering in 1948 and later.

Though the great Arab People was born in Arabia, the modern Jewish People has generally been practical enough to understand the need for compromise with respect to sharing its aboriginal homeland with Arabs. For example, in both 1937 and 1947, Jews accepted the principle of sharing with an Arab State the territory of the recognized "national home for the Jewish People" that then stretched from the Jordan River to the Mediterranean Sea. By contrast, Arabs locally and generally then rejected the principle of peacefully sharing with "the Jewish State" the land between the Jordan River and the Mediterranean Sea.

The Holy Land didn't have any refugees until May 1948, when local Arabs and the Arab States opted to launch a war with the proclaimed aim of exterminating the Jews. This Arab decision to go to war caused the problem of the refugees -- around 850,000 Jews from various Muslim and Arab countries and around 600,000 Arabs from the parts of the "national home for the Jewish People" that ended up under Israel control.

President Obama should be reminded that, though local Arabs have undeniably suffered, there is the key moral and legal issue of the extent to which they and their Arab allies were the principal authors of this misfortune. Moreover, President Obama is a lawyer, so he ought to understand that Arabs locally and generally have always had a clear moral and legal duty to promptly mitigate their own losses, no matter how caused.]

They endure the daily humiliations --large and small-- that come with occupation. So let there be no doubt: The situation for the Palestinian people is intolerable. And America will not turn our backs on the legitimate Palestinian aspiration for dignity, opportunity, and a state of their own. (Applause)

[Comment: "humiliation" -- The Cairo speech has a psychological strategy or game plan. For example, here Barack Obama volunteers to introduce the complex topic of "humiliation," closely followed by its opposite -- the notion of "dignity." The latter features five times in the Cairo speech, including with explicit reference to Islam and Palestinians, but not once specifically in connection with Jews, Judaism or Israel. Taken in its entirety, the Cairo speech shows that Barack Obama does not much care about Jewish dignity.

Logically and historically, "humiliation" and "dignity" are linked together in the broader, sociological concept of "honor," which for centuries has played a key role in Western and Islamic civilization. The notion of honor is crucial throughout the Muslim and Arab Mideast. So what is honor? English philosopher Thomas Hobbes (1588-1679) opined: “The manifestation of the value we set on one another is that which is called honoring and dishonoring. To value a man at a high rate is to honor him, at a low rate is to dishonor him. But high and low, in this case, is to be understood by comparison to the rate that each man sets on himself.”

Thus, dishonor or humiliation is a subjective phenomenon. For example, see Wikipedia: "Humiliation is the abasement of pride, which creates mortification... It is an emotion felt by a person whose social status has just decreased." Significantly, "humiliation" features twice in the Cairo speech -- the first time referring to "the Palestinian people" and the second time to "black people in America."  This is an important clue that Barack Obama is purveying the left-liberal trope that falsely portrays the Palestinian People as analogous to Black Americans. But, unlike the newborn Palestinian People, Black Americans really do have a history of several centuries of disadvantage and suffering, just as Christians and Muslims have victimized the Jewish People for close to two millennia. Consequently, modern human-rights methodologies teach us that both the Jewish People and Black Americans are owed apology, restitution and special vigilance against revictimization. But, the newborn Palestinian People has no such super-added, age-old claim to be classified as an historically-disadvantaged group. Moreover, Black Americans are not about to to be given "a state of their own."

Truth be told, we really do not know what would be enough to end Palestinian "humiliation." What would satisfy subjective sentiments of Palestinian honor? Would establishing another Arab mini-State suffice for Palestinian honor or would Palestinian "humiliation" only end with the destruction of Israel and the killing or flight of the more than six million Jews there? This is no mere rhetoric because history shows that seeking such vengeance has frequently been the Mideast option. Thus, Barack Obama's invocation of "humiliation" and "dignity" is still another instance of his intentional use of  irresponsible and extravagant words for the express purpose of undermining Jewish rights and interests.

Certainly, nowhere in the Cairo speech is Obama at all concerned to protect Jews from the subjective emotion of humiliation. Rather, Obama once hints at Jewish Holocaust paranoia and elsewhere prefers to play on Jewish emotions of fear. For example, his only direct reference to "the Jewish People" is as victim of centuries of outright persecution. Similarly, he twice refers to Israel's "right to exist" and to its need for "security." Since with regard to Jews, Obama himself opts to play on fear, let us ask if a single Jewish life is worth less than some Palestinian "humiliation," e.g., in connection with security procedures at check points required for the prevention of terrorism.

And what about the daily humiliation of airline passengers worldwide from intrusive airport-security procedures? Make no mistake -- that regular affront to the privacy and dignity of millions of travelers was historically triggered by the need to prevent aircraft hijacking and other airborne terrorist acts, no small part of which was initially perpetrated by Palestinians or by persons claiming to act for the cause of the Palestinian People. The newborn Palestinian People always has the dignified option of concluding a full-and-final, bilateral peace agreement, including recognition of 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 homeland.]

They endure the daily humiliations --large and small-- that come with occupation. So let there be no doubt: The situation for the Palestinian people is intolerable. And America will not turn our backs on the legitimate Palestinian aspiration for dignity, opportunity, and a state of their own. (Applause)

[Comment: "occupation" -- There are a number of important legal doctrines that the Cairo speech could have referenced in connection with the current dispute. However, President Obama deliberately chose to echo the Muslim and Arab narrative that focuses on the so-called "occupation." At the same time, he significantly failed to include any discussion of the Jewish People's aboriginal, treaty and self-determination rights. Thus, President Obama joined those placing peculiar, persistent and exaggerated emphasis on one particular doctrine -- the law of belligerent occupation.

By contrast with some of its specific humanitarian content, the doctrine of belligerent occupation itself is not a fundamental norm of public international law. Thus, there are instances in which aspects of the doctrine of belligerent occupation must give way to some far more important legal elements -- for example, rights explicitly stipulated in directly relevant treaties; and the principle of the self-determination of Peoples, which probably ranks as a fundamental norm of public international law. This means that the Jewish People's right to self-determination between the Jordan River and the Mediterranean Sea -- as well as any treaty specifically to that effect -- can outrank and render inapplicable some parts of the doctrine of belligerent occupation.

To be sure, President Obama knew the reference to "occupation" was code-language for moral and legal condemnation of Israel. By contrast, those who genuinely seek a full-and-final settlement agreed between the Parties tend to steer clear of prejudicial references to belligerent occupation. True peacemakers know that they have to start by respecting the honor and dignity of both Peoples and then reconcile their relevant rights. Namely, there is an urgent need to effect a careful juridical reconciliation of Jewish aboriginal, treaty and self-determination rights with the self-determination rights of the Palestinian People.

There is bias in tarring the Israel government via exaggerated and unreasonable applications of the doctrine of belligerent occupation. To do so dishonors the Jewish People in its aboriginal homeland, significantly undermines prospects for an "agreed" settlement, and provides a rationale for continued conflict. Let us listen carefully to the rhetoric of those who inflate the scope and meaning of the doctrine of belligerent occupation. In their logic, is there not contradiction between their view of belligerent occupation and the need for a full-and-final settlement that is "agreed" between the parties? If the Jewish People is unlawfully occupying another People's territory, what is there to negotiate? In that event, it would only remain for the Jews to get out of there pronto! And, with what consequence? Almost certainly further conflict, as was the case after the unilateral Israel withdrawals from South Lebanon and Gaza.

Does President Obama sincerely support the idea of a full-and-final settlement "agreed" by the parties? It certainly doesn't seem so, because he consistently chooses words that undermine the legitimacy of Israel and encourage Muslim and Arab intransigence.]

So let there be no doubt: The situation for the Palestinian people is intolerable. And America will not turn our backs on the legitimate Palestinian aspiration for dignity, opportunity, and a state of their own. (Applause)

[Comment: "America will not turn our backs" -- President Obama here made an unequivocal and spectacular USA promise to the Palestinian People. Though veiled by some relevant dissimulation, the Cairo Speech notably lacked any clearly expressed USA commitment to continue to support Israel. Nor does the speech contain any moral rationale for continuing USA support of Israel. To the contrary, the speech's moral condemnation of Israel demonstrates that President Obama is uncomfortable supporting Israel.

Was he once again validating the Muslim and Arab narrative by falsely implying that Israel is the obstacle to a Palestinian State? To get Palestinians to say “yes” to a Palestinian State, the Israel government did a lot of work in connection with the 1993 Oslo Accords that created the Palestinian Authority, which now directly administers almost all of the parts of the West Bank that are mostly inhabited by Palestinians. The Israel government also made generous peace offers, e.g., in the negotiations brokered by President Bill Clinton in December 2000, and in 2008 talks between Prime Minister Ehud Olmert and Mahmoud Abbas. Moreover, egregiously omitted from the Cairo Speech was any mention of Israel's voluntary withdrawal from Gaza in 2005.] 

For decades then, there has been a stalemate: two peoples with legitimate aspirations, each with a painful history that makes compromise elusive.

[Comment: To tilt toward the Palestinians, President Obama consistently seeks to make unequal things appear equal. For example, there is no reference to the fact that Jews are no longer a minority between the Mediterranean Sea and the Jordan River. From the context of the whole speech, President Obama here likely refers to an imagined Israel People rather than to "the Jewish People" which is the rationale for the existence of the Jewish State. This helps him stay closer to the Muslim and Arab narrative that strongly denies the existence of "the Jewish People" as a People entitled to invoke the political and legal doctrines of aboriginal rights and the self-determination of Peoples.

Does President Obama also avoid talking about “the Jewish People” partly to drive a wedge between Jews in the USA and those in Israel?

For certain, President Obama knows that most Muslims and Arabs are nowhere near to accepting 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 (Eretz Israel = the Holy Land). President Obama should be reminded that the Jewish People is among the world’s oldest Peoples, while local Muslim Arabs generally self-identified as the distinct "Palestinian" People only after 1967 CE. Nor are the Jewish People's aboriginal, treaty and self-determination rights there any weaker if the non-Jewish population chooses to self-identify as "Arab" or "Muslim," both of which today remain very powerful ethnic and religious identities.]

It's easy to point fingers --for Palestinians to point to the displacement brought about by Israel's founding,

[Comment: Is President Obama suggesting that Palestinians were displaced by Israel’s founding? If so, this is a very serious moral and legal indictment which reveals the extent to which he adheres to the Muslim and Arab narrative.

In 1947, the UN General Assembly recommended the peaceful creation of two new countries -- i.e. specifically "the Jewish State" and "the Arab State." These two new jurisdictions were to sit on land that had been internationally recognized as territory of the "national home for the Jewish People" in a consistent series of declarations, resolutions and treaties from 1917 to 1922, that were then endorsed by the 1923 Lausanne Treaty with the Turkish Republic, as successor to the Ottoman Empire. Nonetheless, in 1947 Jews accepted and Arabs rejected the UN proposal to partition the territory of the "national home for the Jewish People" to accommodate "the Arab State" and "the Jewish State." Had Arabs accepted the UN's 1947 partition recommendation, there would have been peaceful creation of two new States, without any displacement of population.

With regard to Mideast refugees, President Obama ought to know that the displacement of Jews from the various Muslim and Arab countries (circa 850,000) and Arabs from the "national home for the Jewish People" (circa 600,000) was brought about, not by Israel’s creation, but rather by the war which Arabs locally and generally decided to launch in a then widely proclaimed attempt to destroy Israel and exterminate the Jews there.]

and for Israelis to point to the constant hostility and attacks throughout its history from within its borders as well as beyond.

[Comment: This is another example of words carefully chosen to favour Arabs and cast doubt on Israel's viability. President Obama is wrong to suggest that Israel says that it has suffered from “constant hostility and attacks throughout its history from within its borders...” Attacks on Israel have for the most part come from beyond its borders, including some attacks inside Israel by infiltrators from outside. In this respect, the Cairo Speech again tilts against Israel by tending to exculpate the Arab countries from State responsibility for so often allowing their territory to be used as launching pads for terrorist attacks on Israel. And, such attacks from "beyond" have clearly been a major problem in the more than 60 years of Israel's existence.]

But if we see this conflict only from one side or the other, then we will be blind to the truth:

[Comment: An impartial search for truth? That is not a phrase that could reasonably be used for President Obama's speech which mostly validates the familiar Muslim and Arab narrative. In this Cairo address, there is very little of a balanced presentation that also accommodates some of the key perspectives of Jews, Judaism, the Jewish People and Israel.]

The only resolution is for the aspirations of both sides to be met through two states, where Israelis and Palestinians each live in peace and security. (Applause)

[Comment: In the Cairo speech, President Obama favors references to "Israelis," but tends to steer clear of acknowledging the right to self-determination of "the Jewish People." However, the Cairo speech is firmly planted in the modern political and legal doctrine of the self-determination of Peoples. There, the clearly recognized rule is self-identification. If local Arabs tell us that they now self-identify as "the Palestinian People," we are obliged to take them at their word. By the same token, the fact that the majority of Jews in Israel and around the world self-identify as "the Jewish People" requires President Obama to accept their self-identification, including Israel's claim to be "the Jewish State." Does President Obama have difficulty with the notion that the right to self-determination also belongs to "the Jewish People," which is among the world's oldest Peoples?

Is he implying that the Arabs have been championing and the Jews rejecting the notion of partitioning the land between the Jordan River and the Mediterranean Sea? The very opposite is true. Though the then internationally recognized "national home for the Jewish People" stretched from the Jordan River to the Sea, Zionists embraced partition proposals in 1937 and 1947. And subsequently, Israel governments have repeatedly offered partition, e.g., under Prime Ministers Barak (2000) and Olmert (2008). And beyond talk, there were deeds -- in 2005, the Israel government unilaterally withdrew from Gaza. This involved uprooting thousands of Jewish inhabitants who had to abandon homes, schools, synagogues and businesses.

By contrast, most Muslims and Arabs still stubbornly reject the principle of a full-and-final peace treaty that would permanently partition the land between the Jordan River and the Sea. Muslims and Arabs generally reject a permanent partition, principally because they cannot bring themselves to sign a full-and-final peace treaty that includes unequivocal acceptance of 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 (Eretz Israel = the Holy Land).

Remarkably, most Muslims and Arabs pretend to ignore that the Jewish People is indigenous to the Mideast and aboriginal to its ancestral homeland, where then self-identified "Jews" have lived in each and every year since antiquity.]

That is in Israel's interest, Palestine's interest, America's interest, and the world's interest. And that is why I intend to personally pursue this outcome with all the patience and dedication that the task requires. (Applause)

[Comment: This is another instance in which words have been carefully chosen to the detriment of Israel's bargaining position. Though the USA and Israel are already independent States, Obama egregiously begs the question with repeated present-tense references to “Palestine” which does not now exist.

Nor in all recorded history was there ever a Muslim or Arab or Turkish "State" or "province" called Palestine. In 1922, there was created an entirely new jurisdiction called the "League of Nations Palestine Mandate," which included two new entities: the Transjordan Emirate; and the "national home for the Jewish People," that extended from the Mediterranean Sea to the Jordan River.

Approved by the last Assembly of the League of Nations, a 1946 treaty created the new, independent Hashemite Kingdom of Transjordan, which only then was severed from the League of Nations Palestine Mandate. In 1948, the "national home for the Jewish People" became the independent State of Israel.]

The obligations --the obligations that the parties have agreed to under the road map are clear. For peace to come, it is time for them --and all of us-- to live up to our responsibilities.

[Comment: President Obama fails to note that the 2003 Road Map to Peace was drawn up before Hamas seized control of Gaza in 2007. Because the Palestinian Authority’s fundamental situation has significantly deteriorated, it is probably unrealistic to think that all of Israel's Road Map obligations can be fulfilled at this time.

When and where to follow the Road Map thus partly depends on the conduct of other participants. For example, the Road Map has been flagrantly violated by the firing at Israel civilians of several thousand mortar rounds and rockets -- acts which constitute war crimes under international humanitarian law.]

Palestinians must abandon violence. Resistance through violence and killing is wrong and it does not succeed.

[Comment: Is it just coincidence that President Obama chooses to use the word “resistance”? Such usage is fully consistent with the Muslim and Arab narrative that Palestinian fighters are not terrorists but rather militants engaged in legitimate “resistance” to foreign occupation of their country. "Resistance" conjures up the memory of the many wars of national liberation fought against colonial regimes after the Second World War. There is also the history of the famous French Resistance, the "maquis" that fought the Nazis during the Second World War.

It is striking that the word “terrorism” appears nowhere in the Cairo speech. Ostensibly calling for an end to violence, President Obama’s Cairo speech as a whole tends to ideologically validate a narrative that provides the moral justification for Muslims and Arabs to continue their war against the Jewish People.

President Obama should be reminded that, between the Sea and the Jordan River, the Jewish People is no colonialist interloper, but rather the People with the strongest claim to be aboriginal. In greater or lesser numbers, Jews have lived in the Holy Land (Eretz Israel) in each and every year since the ethnogenesis of the Jewish People some 26 centuries ago. Because the Jewish People's presence between the Jordan River and the Mediterranean Sea is lawful, the newborn Palestinian People lacks the right to wage a war of national liberation.]

For centuries, black people in America suffered the lash of the whip as slaves and the humiliation of segregation.

[Comment: Is President Obama equating the suffering of local Arabs with that of "black people in America”? Such a shocking comparison would slander Israel’s Jews by suggesting that they are like the 19th-century American slave owners. Similarly, does the reference to “humiliation of segregation” validate the Muslim and Arab narrative that says Israel is an apartheid State? This disturbing possibility is reinforced by President Obama's subsequent reference to White South Africa in connection with movements of national liberation.

But no matter what he implies, the truth is that Jews are both aboriginal to the Holy Land and historically the prime example of the victim-People, whether in Europe or the Mideast. Such Jewish suffering has seldom been surpassed by the tragedies of other Peoples. Without doubt, North American Indians, Black Americans and others have also been victims over long periods of time. But by contrast with the great Jewish People, the great Arab People does not have a special history of being a victim for close to two millennia. And what of the "Palestinians"? They enter history under that particular name around 1967 CE, before which they principally self-identified as "Muslims" and "Arabs" but seldom as "Palestinians" for reasons explained by the history of the toponym "Palestine."

Throughout all history, "Palestine" has never been the name of an independent State, nor of a Muslim, Arab or Ottoman "province." As the name of a Roman province, "Palestine" first featured in the 2nd century CE, when the local population was still largely Jewish. After the Muslim conquest of the early 7th century CE, the Caliphate for a time kept the name "Palestine," arabicized as "Filastin," for one small district (jund) of Damascus province. Straddling the Jordan River, this "Jund Filastin" was roughly equal to "Palaestina Prima" that was one of three administrative units of the Palestine province of the Roman-Byzantine Empire. There, Christianity became the official religion in the 4th century CE. Throughout the centuries, memories of this "Christian" Palestine were treasured by Christians, including by Arabic-speaking Christians.

Around 1900 CE, the perhaps half million Muslim Arabs of the Holy Land were without much attachment to the largely Christian concept of "Palestine," which was then a non-existent country that seldom featured in their imagination. Nor were Muslim Arabs there objectively seen as "Palestinians" by their neighbors or by the increasing number of foreigners who visited the Holy Land. Nineteenth-century travelers sometimes spoke about "a land without a People," because they believed that the few hundred thousand inhabitants there lacked a single, distinctive national identity, but rather had several separate, ethno-religious self-identifications similar or identical to those of the adjacent populations, also under Ottoman rule.

Around 1900 CE, local Muslim Arabs had self-identifications that commonly included family and clan ties; hometown and neighborhood patriotism; attachment to Greater Syria; feeling for Ottoman citizenship; a sense of belonging to the ecumenical Muslim community (ummah); and pride in the Arabic language and the Islamic civilization of the great Arab People. Focus on "Palestine" came more easily to local Arabic-speaking Christians. By contrast, strong national self-identification using the geographical reference "Palestinian" only started to become general among the Muslim population several decades after the name "Palestine" was politically reborn during WW1 (1914-1918).

This political resurrection of the appellation "Palestine" was effected by a series of declarations, resolutions, and treaties explicitly recognizing the Jewish People's claim to its historic homeland. Stretching from the Mediterranean Sea to the Jordan River, the new "national home for the Jewish People" was the western part of an entirely new jurisdiction called the "League of Nations Palestine Mandate," that from 1922 until 1946 also included the much larger Transjordan Emirate.

In the three decades after the First World War, the name "Palestine" was too closely identified with the Zionist project to have had much attraction for most Muslim Arabs there. Muslim Arab perception of the connection between Jews and the toponym "Palestine" endured until May 1948. Then, "Israel" was suddenly revealed as the appellation for the Jewish State. Thus, the Jews had first to definitely abandon the "Palestine" trademark before most local Muslim Arabs could begin to comfortably see themselves as "Palestinian."

In addition to taking over the "Palestine" trademark, the newly-emerged Palestinian People went on to craft an identity that, in several essential ways, is mirror image of the very long history of the Jewish People. For example, the Muslim and Arab narrative generally supplants the Holocaust with the dislocation caused by the 1948 War; the Jewish Diaspora with that of the so-called Palestinian "refugees"; and the centuries-old Jewish longing to return to Eretz Israel with an alleged Arab right of return to Palestine, including all the territory of the State of Israel.

The political purpose of this Muslim and Arab narrative is to appropriate for the newly self-identified Palestinian People, the Jewish People’s aboriginal and treaty rights, as well as whatever is morally owed to the Jewish People by reason of almost two millennia of persistent discrimination and periodic persecution at the hands of both Christians and Muslims.]

But it was not violence that won full and equal rights.

[Comment: Is President Obama comparing the Palestinian People with "black people in America" and Israel Jews with the USA "white" majority population that for approximately four centuries discriminated against Black Americans? If so, the metaphor is strikingly inappropriate, because during the last 1400 years in the Holy Land and elsewhere, Muslims and Arabs regularly maltreated Jews, not the other way around.

Moreover, a "life and death" struggle internationally differs fundamentally from USA domestic resolution of socio-economic disadvantage. Specifically, the USA population is only 12.6% Black American -- an ethnic minority that is geographically dispersed across a very large and powerful country. Thus, Black Americans cannot have any reasonable hope of ever founding an independent State of their own on what is now USA territory. There are accordingly hardly any relevant points of comparison between the situation of Black Americans and that of the Palestinian People.

President Obama came to office with long experience of the vulnerable mindset of left-liberal Jews. He knows that many Jews harbor significant guilt not only because they see themselves as economically privileged, but also because they fancy themselves to be "White" and as such owing an apology to "Blacks" and "Browns" for alleged "historical injustices" said to have been perpetrated by the USA or the Western World. However, how can Jews be "White," if the principal criterion of "Blackness" is not skin color, but rather a long history of spectacular victimhood? This important sociological insight is powerfully supported by the well known quip that, in the USA, "Jews earn like Episcopalians but vote like Puerto Ricans." This particular perspective should remind us of the need for caution in addressing complex and delicate questions pertaining to Jews, Judaism, the Jewish People and Israel.

We need to think twice before accepting facile comparisons likely to spawn false conclusions. For example, should we endorse President Obama's implication that the goal is to give the Palestinian People "full" rights that are internationally "equal" to those of the Jewish People? Clearly, both Peoples now have self-determination rights. But, the Jewish People significantly has aboriginal and treaty rights which the Palestinian People lacks. If President Obama is here suggesting that the two Peoples have (or ought to have) fully identical rights internationally, he may have erected a further obstacle to a full-and-final peace settlement. By contrast, recognizing that the rights of the two Peoples are not identical internationally enhances significantly the possibilities for peacefully reconciling the former with the latter.

For example, the aboriginal, treaty and self-determination rights of the Jewish People combine to argue that any new jurisdiction west of the Jordan River be demilitarized or "unmilitarized." Otherwise, a new Palestinian State would likely soon become a stepping stone to the destruction of Israel. Without an army are about ten percent of the world's independent States, e.g., Costa Rica. And, other independent countries like Switzerland have accepted some permanent treaty limitations with respect to their conduct of foreign relations. Thus, President Obama's incautious reference to "full and equal rights" can be seen as another instance of his imprudent rush to proclaim "peace" positions that in practice tend to perpetuate the conflict.] 

It was a peaceful and determined insistence upon the ideals at the center of America's founding. This same story can be told by people from South Africa to South Asia; from Eastern Europe to Indonesia.

[Comment: Is President Obama validating the Muslim and Arab narrative which claims that their struggle against the Jews is like several well known modern instances of indigenous "resistance" to the colonialism of foreigners? If so, he should recall that the Jewish People is indigenous to the Mideast which has always had a large Jewish population, e.g., around one million in 1900. Moreover, each century since ancient times witnessed some then self-identified "Jews" continuing to live on their ancestral lands, where today they are no longer a minority. Of all extant Peoples, the Jewish People has the strongest claim to be aboriginal to the Holy Land (Eretz Israel), which is not the original home of the great Arab People of world history. Though the newly self-identified Palestinian People may have claims to some territory and independence, it nonetheless lacks a right to wage a war of national liberation against the Jewish People which is lawfully in a part of its own aboriginal homeland.

Because one People cannot claim to rule another People, mandatory is a peaceful process that now recognizes the dignity of both Peoples and seeks to reconcile the subsequent rights of the newborn Palestinian People with the prior rights of the ancient Jewish People. For example, a full-and-final peace settlement agreed "today" would probably have to include a waiver of most Jewish aboriginal and treaty rights with regard to territory "now" mostly inhabited by Palestinians, wishing to live in a new Palestinian State. However, a new Palestinian State would have to be created in such a way that it can never be a stepping stone to the destruction of the Jewish State. This is especially so because many Muslims and Arabs say that they want to destroy Israel. Such repeated public statements are clear confession of intent to commit grave violations of international law, including genocide and nullification of the aboriginal, treaty and self-determination rights of the Jewish People.]

It's a story with a simple truth: that violence is a dead end. It is a sign neither of courage nor power to shoot rockets at sleeping children, or to blow up old women on a bus. That's not how moral authority is claimed; that's how it is surrendered.

[Comment: President Obama does not denounce as a war crime the firing of Hamas rockets at civilians in Israel. Nor does he specifically condemn Arab bombing of Israel public transport as “terrorism” which remarkably is a term entirely absent from the vocabulary of the Cairo speech as a whole. This is noteworthy because Islam-based terrorism remains a grave security threat to the USA both at home and abroad. And, many thousands of miles away from Israel, Islam-based terrorism also afflicts a great number of countries, where Islamic ideology plays a distinctive and prominent role in violent confrontations among Muslims and between Muslims and non-Muslims.]

Now is the time for Palestinians to focus on what they can build. The Palestinian Authority must develop its capacity to govern, with institutions that serve the needs of its people. Hamas does have support among some Palestinians, but they also have to recognize they have responsibilities. To play a role in fulfilling Palestinian aspirations, to unify the Palestinian people, Hamas must put an end to violence, recognize past agreements, recognize Israel's right to exist.

[Comment: This passage probably signals new USA willingness to reach out and talk with Hamas, as part of efforts to achieve a general settlement. Here as elsewhere, repeated references to Israel’s "right to exist” fall short. What is required is acceptance of 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. In return, Israel would recognize the new Palestine as the embodiment of the self-determination of the Palestinian People.]

At the same time, Israelis must acknowledge that just as Israel's right to exist cannot be denied, neither can Palestine's.

[Comment:  Former Israel Foreign Minister Abba Eban in 1981 emphasized: “Nobody does Israel any service by proclaiming its ‘right to exist.’  Israel’s right to exist, like that of the United States, Saudi Arabia and 152 other states, is axiomatic and unreserved. Israel’s legitimacy is not suspended in midair awaiting acknowledgement... There is certainly no other state, big or small, young or old, that would consider mere recognition of its ‘right to exist’ a favor, or a negotiable concession.”

Although here President Obama literally affirms "Israel's right to exist," the context is one in which his words subtly denigrate Israel by comparing its current rights as a sovereign State with those of a proposed country, i.e. a new Arab State to be called "Palestine" that historically has never existed and yet remains to be created. Thus, President Obama's present-tense references to "Palestine" egregiously beg the question. They are purposely intended to undermine Israel's position which was evidently one of President Obama's principal goals in Cairo.

 Does President Obama not know that the principle of partitioning the land between the Jordan River and the Mediterranean Sea has long been favored by Zionists and Israel governments of various stripes? In return for suitable security arrangements, an agreed border, and the recognition of the legitimacy and permanence of Israel as "the" Jewish State -- Jews in Israel and the USA would be pleased to welcome a new Palestinian State. However, a Palestinian State dedicated to the destruction of Israel would be rejected by Jews both in Israel and the USA.

Under natural law, international law and Israel law, Israel's Jews have a right to life, i.e. "to stay alive" in their aboriginal homeland. The claims to territory and self-determination of the newly-emerged Palestinian People are neither absolute nor fully-formed. Juridically, Palestinian rights have first to be peacefully reconciled with Jewish rights, including the aboriginal, treaty, and self-determination rights of the Jewish People. Absent such a peaceful process for the reconciliation of rights, the subsequent rights of the newborn Palestinian People do not automatically cancel the Jewish People’s prior rights, including the right of Jews there not to be killed by their Arab neighbors. This certainly means that the Palestinian People lacks the right to wage a war of national liberation against the Jewish People, which is legitimately sited between the Mediterranean Sea and the Jordan River.

By ignoring the aboriginal, treaty, and self-determination rights of the Jewish People, Obama’s speech notably omits any compelling moral and legal rationale for Israel’s existence. Thus, here as elsewhere, the Cairo speech seems to consistently validate the Muslim and Arab narrative, in the context of which there is fundamental justice to the never-ending war against Israel.]

The United States does not accept the legitimacy of continued Israeli settlements. (Applause)

[Comment: The hallmark of the Cairo Speech is moral disapproval of Israel and by implication impairing the honor and dignity of the Jewish People. Here, President Obama significantly refers to "legitimacy" rather than "legality," partly because he knows that, both politically and technically, it would be hard for him to make the case that Jewish settlements are actually "illegal."

About 722,000 Jews now live in homes beyond the 1949 Green Line, i.e. the Armistice Demarcation Lines (ADL) which have decreasing relevance and legal weight. Firstly, the 1949 armistice agreements with Egypt and Jordan explicitly say that the ADL are without prejudice to a final political settlement. Secondly, no Arab government has ever recognized the 1949 ADL as the legitimate and permanent borders of the Jewish State. Thirdly, the peace treaties with Egypt (1979) and Jordan (1994) indicate as Israel's international borders, not the 1949 ADL, but rather to the west the old (1906) Sinai boundary with Egypt, and to the east the Jordan River. Fourthly, the Jewish People's aboriginal, treaty and self-determination rights rest on principles so fundamental that they probably outweigh anything that might be said on behalf of the current legal status of the 1949 ADL.

President Obama spoke with some caution, finesse and strategy on a topic that is politically controversial, and morally and legally complex. Tactically, he chose not to explicitly reject the legitimacy of all settlements beyond the 1949 ADL, but specifically pointed only to “continued Israeli settlements." So, by what political, moral or legal criteria are such "continued Israeli settlements" to be distinguished from earlier Jewish settlement there? Or is the President still leaving open the likely implication that all Jewish settlement is illegitimate? If so, that implication would collide, inter alia, with written assurances that President George W. Bush made to Israel Prime Minister Ariel Sharon.

In 2004, Israel proposed to unilaterally disengage from Gaza, including voluntary removal of Jewish settlements there. In return, President Bush wrote: "As part of a final peace settlement, Israel must have secure and recognized borders, which should emerge from negotiations between the parties in accordance with UNSC Resolutions 242 and 338. In light of new realities on the ground, including already existing major Israeli population centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949, and all previous efforts to negotiate a two-state solution have reached the same conclusion. It is realistic to expect that any final status agreement will only be achieved on the basis of mutually agreed changes that reflect these realities."

The then self-identified, specifically “Jewish” People was born in Eretz Israel around 600 BCE. From that time until today, there was never a year when then self-identified "Jews" were absent from their ancestral homeland. So, can a Jew be an illegal immigrant in Eretz Israel? A resounding "No!" came from USA Supreme Court Justice Louis Brandeis in 1939 when he roundly condemned, as a violation of international law, anti-Jewish restrictions on entry for settlement between the Jordan River and the Mediterranean Sea.

During and immediately after WW1, a series of declarations, resolutions and treaties had given explicit recognition to “the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.” Among those treaties is the 1922 League of Nations Palestine Mandate which provides for creation of “a national home for the Jewish People” from the Jordan River to the Mediterranean Sea. In the rest of Mandate Palestine (i.e. east of the Jordan River), the League of Nations Palestine Mandate says provisions with respect to Jewish settlement do not apply. However, for Western Palestine (between the Jordan River and the Mediterranean Sea), the Mandate explicitly stipulates for “close settlement by Jews on the land.” 

But, what does the 1922 League of Nations Palestine Mandate have to do with President Obama? Well, Article 6 of the USA Constitution says: “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” Is the 1922 League of Nations Palestine Mandate a treaty made under the authority of the United States? If not, no problem, because the full text of the 1922 League of Nations Palestine Mandate is repeated verbatim in the main body of the 1924 Anglo-American Treaty. This 1924 Treaty formally gives the USA's “consent” to the specific terms of the 1922 League of Nations Palestine Mandate, which are fully recited therein. The 1924 Treaty was duly ratified by two-thirds vote in the USA Senate which means that it ranks as “supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”

Thus, the 1924 Treaty suffices to now stop a USA President from cogently arguing that Jewish settlement west of the Jordan River is “illegal.” By virtue of doctrines of legal and equitable estoppel, a USA President cannot now lawfully argue against the Jewish People's settlement rights west of the Jordan River that which is the very opposite of what the USA had specifically affirmed in the 1924 Treaty with the United Kingdom.

Instead of questioning the legitimacy of Jews building homes in Eretz Israel, President Obama should respect the honor and dignity of the Jewish People in its ancestral homeland. For sure, there may now be need for an agreed peace settlement that takes into account the self-determination rights of the newborn Palestinian People; but that is far from the whole story there. West of the Jordan River, there are also some Jewish self-determination rights, and also the aboriginal and treaty rights of the Jewish People.

Is there not sly dissimulation in President Obama's words about rejecting "the legitimacy of continued Israeli settlements"? Significantly, his precise statement is logically not inconsistent with the Muslim and Arab narrative that regards every inch of the State of Israel to be a "settlement" both illegitimate and illegal. For sure, the Cairo speech openly rejects the legitimacy of "continued Israeli settlements." But, despite what a casual reader might carelessly presume, the speech nowhere compensates by according any legitimacy to President Bush's "already existing major Israeli population centers" just east of the 1949 ADL. Nor in Cairo did President Obama offer any specific guarantee for the extent of Israel's territory west of the 1949 ADL -- though he offered suspiciously vague references to "security" and a "right to exist."

For more than a century, local Arabs have been pronouncing against the capacity of an individual Jew to lawfully acquire title to a plot of land anywhere in the Jewish People's historic homeland, where then self-identified "Jews" have lived for more than two millennia. Within the framework of modern legal methodologies, such flagrant anti-Jewish discrimination not only offends human rights, but nullifies Jewish rights -- including the Jewish People's right to self-determination, and its aboriginal and treaty rights. Those who argue that the West Bank and East Jerusalem are “disputed” rather than “occupied” territory do so primarily with reference to such existing Jewish rights.

Pending Israel’s acceptance of a specific list of “renunciation of rights” in an agreed, full-and-final peace treaty, the Jewish People retains its aboriginal and treaty rights, potentially applicable to all (or any part) of the territory from the Jordan River to the Mediterranean Sea. Moreover, there are also Jewish self-determination rights pertinent to the places where Jews now live.

During the short time that Jordan ruled East Jerusalem and the West Bank (1948-1967), a significant amount of Jewish property was confiscated and Jews could not hold or acquire title to land there. However, Jews had for centuries been property owners there, e.g., under the Ottomans (1516-1917) and the British (1917-1948). Under Israel law, Jews have legal capacity to acquire and hold lawful title to specific plots of land in East Jerusalem and on the West Bank. Are East Jerusalem and the West Bank without Jewish land titles antedating the 1948 Jordanian invasion? And, what about the many Arabs who sold real estate to Jews in the decades since 1967? During that time, there was also the lawful use of State land and of the public power of expropriation, both of which are normal features of every legal system.]

This construction violates previous agreements...

[CommentWhat are these "previous agreements" and what did they specifically promise? Is the President here referring to the 2003 Road Map to Peace? Which other agreements and between whom? Is President Obama taking the liberty of making himself a judge to settle disputes about agreements between Israel and the Palestinian Authority? Or is he offering purely partisan opinions about alleged violations of agreements between Israel and the USA?

Every party has public law experts trained to interpret treaties and other international agreements and to advise whether the other parties have lived up to their specific commitments. For example, some agreements are specifically conditional, and others rendered ineffective by fundamental breach of the other party. This means that an obligation to fulfill a specific commitment may depend on fulfillment of a similar or different obligation by another party. Is President Obama referring to agreements touched by such considerations?

The Cairo speech is exceptionally solicitous of the dignity of the Palestinian People, but remarkably careless with the honor of the Jewish People and Israel. Nowhere is there any suggestion that Palestinians might have failed to honor their word. By contrast, here President Obama proclaims that Israel and Jews have "violated agreements." This is a serious charge. Here the clear intent is to again tar the Jewish People and Israel. As elsewhere, the Cairo speech should be understood as an assault on the good name of Jews, the Jewish People and Israel.]

This construction violates previous agreements and undermines efforts to achieve peace. It is time for these settlements to stop. (Applause)

[Comment: President Obama notably fails to provide specific reasons for his belief that a settlement freeze would create conditions for peace.

He should be reminded of the long history of Muslim and Arab discrimination against Jews in the Holy Land. Going back many centuries, local Arabs have had a bad case of NIMBY = "Not In My Back Yard." They generally disliked their aboriginal Jewish neighbors and did not want to see any more Jews in the vicinity. But, such stubborn ethno-religious prejudice against Jews should not cause us to imagine that peacefully building homes for Jews is currently an obstacle to reaching an agreed settlement.

To the contrary, from the subjective viewpoint of the persistent anti-Jewish discrimination of local Arabs, one of the primary incentives for quickly signing a full-and-final peace treaty with Israel could be that an early agreement could limit or end further home building by Jews, inter alia, by establishing an agreed border for an independent Palestinian State, with its own citizenship, immigration and land-ownership laws.

Asking the Israel government for an immediate settlement freeze is manifestly unfair, just as the whole Cairo speech is tilted against Israel and the Jewish People. President Obama must know that for critical international negotiations, the normal rule is that "nothing is agreed until everything is agreed." Were the Israel government to concede a settlement freeze as a precondition for restarting the peace talks, it would thereby lose leverage essential for subsequent negotiation of a treaty that would include essential provisions on Jewish security and recognition of 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.

For precisely this reason, a settlement freeze is likely no step toward a "full-and-final" peace agreement, but rather more probably a poor substitute ensuring that there would never be a "full-and-final" peace agreement. President Obama's peculiar focus on an immediate settlement freeze is thus best understood as a powerful expression of his marked anti-Israel bias, and yet another example of how he contributes to the perpetuation of the conflict.]

And Israel must also live up to its obligation to ensure that Palestinians can live and work and develop their society.

[Comment: President Obama places on Israel an exceptionally extensive and heavy obligation that has no clear moral foundation, though there are some specific obligations in the 2003 Road Map for Peace and some other international instruments.

Generally ensuring life, work and social development is certainly the normal obligation that the State owes to its own citizens, but commonly not to non-resident foreigners or to enemy aliens and combatants. Arab leadership on the West Bank and in Gaza has the primary “obligation to ensure that Palestinians can live and work and develop their society.” And, that is a powerful reason why Arab leaders there should hasten to make peace with their Jewish neighbors.

It would be admirable, and probably also in self-interest, for Israel to continue rendering substantial help. But, such ongoing assistance by Israel has also to be seen in relation to the urgent need for an agreed, full-and-final peace settlement -- including effective security guarantees; the demarcation of permanent borders; and the recognition of 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.]

Just as it devastates Palestinian families, the continuing humanitarian crisis in Gaza does not serve Israel's security;

[Comment: Instead of a juridical approach that would hold Hamas and its supporters responsible for the consequences of their own unlawful conduct, President Obama prefers the sociological “root causes” model. Here he seems to validate the Hamas narrative which implausibly claims that Israel-caused living conditions in Gaza are among the justifications for the continuing rocket and mortar attacks on Israel civilians.

Does President Obama also validate the Muslim and Arab narrative that Israel is responsible for a so-called “humanitarian crisis” in Gaza? Statistical comparisons across countries of nutrition, fertility, infant mortality, and longevity conclusively show that there is no “humanitarian crisis” in Gaza, from which Israel voluntarily withdrew in 2005.

The USA State Department and counterparts in some other Western countries officially label Hamas a terrorist organization. Should not President Obama pause to consider whether alleged socio-economic difficulties in Gaza are more properly to be ascribed to serious mistakes made by Hamas?]

neither does the continuing lack of opportunity in the West Bank. Progress in the daily lives of the Palestinian people must be a critical part of a road to peace, and Israel must take concrete steps to enable such progress.

And finally, the Arab states must recognize that the Arab Peace Initiative was an important beginning, but not the end of their responsibilities. The Arab-Israeli conflict should no longer be used to distract the people of Arab nations from other problems. Instead, it must be a cause for action to help the Palestinian people develop the institutions that will sustain their state, to recognize Israel's legitimacy,

[Comment: President Obama here again misses the essential need for Muslim and Arab acceptance of 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.

President Obama must know that the "Arab Peace Inititiative" dovetails with the Muslim and Arab narrative in insisting that any full-and-final peace settlement include the alleged “right of return” to Israel for millions of Arabs claiming to be children, grand-children, even great-grandchildren of local Arabs said to have lost homes, farms and businesses in 1948. This alleged "right of return" is an essential Muslim and Arab war aim, because a flood of "returning" Arabs would cause Israel to lose its distinctive character as "the" Jewish State, i.e. as the national homeland of the Jewish People, just as Greece is the homeland of the Greek People.

Recognition of Israel as "the" Jewish State is a key litmus test of  peaceful intention, exactly because most Muslims and Arabs do not believe that the Jews are a People entitled to a State of their own. As a Columbia University undergraduate, Barack Obama studied under renowned Palestinian nationalist Edward Said, who argued that Jews have for centuries lived as a minority in various countries around the world and should therefore also be a minority in a new country called "Palestine" that would stretch from the Jordan River to the Mediterranean Sea. Later in his public life, Barack Obama kept ties with Professor Said and with other prominent Palestinian nationalists like Rashid Khalidi who now teaches at Columbia University.]

and to choose progress over a self-defeating focus on the past.

[Comment: Is President Obama subtly validating the Muslim and Arab narrative by implying that in "the past" there was a "Palestinian" People with a country of its own called "Palestine"? For sure, today there exists a Palestinian People with claims to territory and independence, but until the second half of the 20th-century, history knows nothing about any "Palestinian" People or about any Muslim or Arab or Ottoman "province" or "State" called Palestine.

Local Muslim Arabs did not generally self-identify as “Palestinian” until four decades after the 1922 creation of a new jurisdiction called the "League of Nations Palestine Mandate." This included both the newly-created Transjordan Emirate and “a national home for the Jewish People,” from the Jordan River to the Sea. The 1922 birth of this "national home for the Jewish People" was simultaneous to the creation or recognition of several new countries for the self-determination of the great Arab People.

During Ottoman rule (1516-1917), there was never a State, province or administrative unit called "Palestine." The territory from the Sea to the Jordan River (Western Palestine) that in 1922 became "national home for the Jewish People" had for four hundred years been an integral part of Greater Syria, generally the Ottoman Vilayet of Damascus. Under the Ottomans, there was no single sub-unit or collection of sub-units that geographically dovetailed with the area of the later "national home for the Jewish People," from the Jordan River to the Sea (1922-1948).

There is no reference to "Palestine" in the New Testament. In the 2nd century CE, the Jewish-inhabited Roman Province of Judea was officially renamed “Palestine” to punish the Jews for their national revolt led by Bar Kochba. In the 4th century CE, the Roman-Byzantine Empire became a Christian State. For more than a millennium after the Muslim conquest in the 7th century CE, Christians everywhere (including Arabic-speaking Christians) treasured the memory of a "Christian" Palestine that had extended from the Sea to lands east of the Jordan River. This remembered "Palestine" was for theological reasons geographically identical with the earlier Jewish idea of the "Land of Israel" (Eretz Israel) and also with the Christian and Muslim notion of "the Holy Land." After the Muslim conquest in the early 7th century CE, the Caliphate for a time retained the Roman-Byzantine appellation "Palestine" (arabicized as "Filastin") for one sub-unit (jund) of the Muslim Province of Damascus. But, compared with the Byzantine Palestine province, "jund Filastin" was just a district straddling the Jordan River.

Before "political" resurrection in the 1917 Balfour Declaration, "Palestine" was a largely Christian term, always linked to the Christian understanding of Jewish history as recounted in the Hebrew Bible and the Christian Gospels. The Jewish People understandably opted to abandon the "Palestine" trademark in May 1948, when it was announced that "Israel" had been chosen as the name for the new Jewish State. Before May 1948, "Palestine" and "Palestinian" had been expressions largely unattractive to most local Muslims, because they generally deemed the terminology to be too intimately connected with the national home for the Jewish People launched by the Balfour Declaration and a series of resolutions and treaties from 1920 to 1923.

Arab leaders had themselves been slow to recognize the existence of a distinct "Palestinian People" with a right to self-determination. For example, as principal Arab leader at the 1919 Paris Peace Conference, the Hashemite Prince Feisal had specifically accepted the plan to create "a national home for the Jewish People" in Palestine. Nor was a sovereign Palestine for a distinct Palestinian People the preference of the most famous local Arab leader of the first half of the 20th century. Grand Mufti of Jerusalem, Haj Amin al-Husseini was a fan of both the Holocaust and Hitler whom he met in 1941. Confident of Axis victory in the Second World War, the Mufti promised close cooperation with Germany and Italy in return for their support of his plan to create a united, fascist Arab State to cover all the territory that was then Iraq, Syria, and Palestine (both east and west of the Jordan River).

After WW2 (1939-1945), the governments of Egypt and Jordan showed how little regard they had for the existence of a distinct Palestinian People and its right to self-determination. First, they rejected the 1947 United Nations General Assembly resolution recommending the partition of the area from the Jordan River to the Sea, into two new countries, specifically "the Jewish State" and "the Arab State."  Second, no Palestinian State was created between 1948 and 1967, when Egypt held the Gaza Strip and Jordan had East Jerusalem and the West Bank.]

America will align our policies with those who pursue peace,

[Comment: Given this speech’s tendency to validate the Muslim and Arab narrative, is President Obama here serving notice that the USA will now champion the Muslim and Arab cause unless the Israel government makes sweeping concessions to repair the harm alleged to have been done by Israel? This passage should be understood as a warning and threat to the Jewish People and Israel.]

and we will say in public what we say in private to Israelis and Palestinians and Arabs. (Applause)

[Comment: Is President Obama here promising that the negative treatment Israel gets in this Cairo speech will also be the ill treatment Israel is to receive within the privacy of the USA-Israel relationship? And, is he promising that just as he appears to validate the Muslim and Arab narrative here in his Cairo speech, so will his administration favor that side with regard to the long-standing dispute over the refusal of most Muslims and Arabs to accept the legitimacy and permanence of Israel as "the" Jewish State?]

We cannot impose peace. But privately, many Muslims recognize that Israel will not go away.

[Comment: Here, it is noteworthy that President Obama curiously fails to take into account the impact of the recent rise of the Islamic Republic of Iran. From Israel's victories in the 1967 and 1973 wars, there had been growing Muslim and Arab awareness, frustration and anger that the "Zionist entity" was an unpleasant, self-sustaining fact on the ground. This factual awareness powerfully contributed to Israel's conclusion of peace treaties with Egypt (1979) and Jordan (1994). But, otherwise there has been no general end to the long-standing war against the Jews, in which context most Muslims and Arabs stubbornly refuse to accept 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.

This strong Muslim rejectionist tendency is now fueled by the rise of the Islamic Republic of Iran which is actively waging proxy wars against Israel, and which repeatedly threatens to destroy Israel with missiles. The prospect that the Islamic Republic of Iran may soon have nuclear weapons means that Israel’s enemies can now plausibly imagine one or more scenarios in which "the" Jewish State could be defeated in the foreseeable future. Thus, Israel's chances for peace are now slimmer than in the past.]

Likewise, many Israelis recognize the need for a Palestinian state. It is time for us to act on what everyone knows to be true.

[Comment: Why did President Obama choose to say "many" Israelis when he could just as easily with truth have said "most" Israelis? For almost two decades, public opinion polls have demonstrated that most Israelis are willing to welcome a new Palestinian State in return for -- suitable security arrangements; an agreed border; and unequivocal Palestinian recognition of 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.

By reading down longstanding Israeli support for the principle of a two-State solution, President Obama was probably trying to leave open the suggestion that peace has not been achieved, partly because the majority of Israelis have yet to accept the principle of permanent partition of the land between the Jordan River and the Mediterranean Sea. If that is what President Obama intended to convey, he was clearly mistaken.

Majority Israel support for the principle of a two-State solution has long been available. But, lacking has been Muslim and Arab willingness to accept a full-and-final peace focusing on now implementing the principle of the self-determination of Peoples, while including essential stipulations to ensure that a new Palestinian State could never be a stepping stone toward eventual destruction of Israel as the national home for the Jewish People.]

Too many tears have been shed. Too much blood has been shed.

[Comment: Here President Obama offers cliches. His shallow rhetoric is patently inadequate to address the deepening tragedy of the continuing Muslim and Arab war against Jews, Judaism, the Jewish People and Israel. Prime Minister Golda Meir long ago said that there will be peace when Arabs come to love their children more than they hate Jews. Though intellectually attractive, this principle of a reciprocal end to suffering has practically proven to be an inadequate doctrinal basis upon which to base peace. The principal problem is that most Muslims and Arabs regard the war against the Jews as fundamentally just, not only from a legal and political perspective, but also from a theological perspective. Therefore, Muslims and Arabs generally support the idea of enduring significant suffering to sustain the struggle against Jews, Judaism, the Jewish People and Israel. Thus, by itself, the idea of an end to reciprocal suffering does not suffice.

Reaching peace probably also requires sincere Muslim and Arab acceptance of 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. And, this would be exceedingly difficult to achieve because it presupposes widespread Muslim and Arab understanding that: (1) the Jews are a People within the context of the political and legal doctrine of the self-determination of Peoples; (2) Jews are no longer a minority between the Jordan River and the Mediterranean Sea; (3) the Jewish People has the strongest claim to be aboriginal to the Holy Land; and (4) from Biblical times, the Mideast has always been home to Jews, including some living in the Holy Land, which for centuries was known to Jews everywhere as "Eretz Israel."]

All of us have a responsibility to work for the day when the mothers of Israelis and Palestinians can see their children grow up without fear; when the Holy Land of the three great faiths is the place of peace that God intended it to be; when Jerusalem is a secure and lasting home for Jews and Christians and Muslims,

[Comment: President Obama here seems to fault Israel with respect to the standards it has met with regard to protection of, and access to, the holy places in Jerusalem. Since June 1967, the three religions have generally had secure and free access to their holy places in East Jerusalem and the West Bank. But, it is well known that Jews were entirely excluded from the Jewish holy places in East Jerusalem and the West Bank during the Jordanian occupation, 1948-1967, when there was also widespread desecration of Jewish cemeteries and holy places there.]

and a place for all of the children of Abraham to mingle peacefully together as in the story of Isra -- (applause) -- as in the story of Isra, when Moses, Jesus, and Mohammed, peace be upon them, joined in prayer. (Applause)

[Comment: President Obama wants innocent non-Muslims to believe that this is an anodyne ecumenical reference. But, the truth is that this "Isra" remark is a flagrant instance of his practice of dissimulation. President Obama was fairly confident that non-Muslims would not bother to explore this telling "Isra" reference, which is extremely well known to Muslims. In the Koran and the Hadith, "Isra" is the Prophet Mohammed’s (alleged) magical night ride on the horse Burak to Jerusalem. There, in the (then yet to be built) Al-Aqsa mosque, Mohammed's status as the last and most authoritative of the Prophets was (allegedly) validated by his prophetic predecessors, including Moses and Jesus. President Obama's familiarity with the religion of  Islam is something that he himself has affirmed and which has also been noted by his former pastor, the Reverend Jeremiah Wright. Thus, President Obama probably well understood that Muslims would understand the "Isra" story as endorsing their claim to both Jerusalem and the superiority of their faith over Judaism and Christianity. This sadly neglected passage in the Cairo speech is extremely important evidence of President Obama's arrogance and duplicity. It also reveals the extent to which he adopts the Muslim and Arab narrative.]

[With respect to the Islamic Republic of Iran]

I recognize it will be hard to overcome decades of mistrust, but we will proceed with courage, rectitude, and resolve. There will be many issues to discuss between our two countries, and we are willing to move forward without preconditions on the basis of mutual respect. But it is clear to all concerned that when it comes to nuclear weapons, we have reached a decisive point. This is not simply about America's interests. It's about preventing a nuclear arms race in the Middle East that could lead this region and the world down a hugely dangerous path.

I understand those who protest that some countries have weapons that others do not. No single nation should pick and choose which nation holds nuclear weapons. And that's why I strongly reaffirmed America's commitment to seek a world in which no nations hold nuclear weapons. (Applause) And any nation --including Iran-- should have the right to access peaceful nuclear power if it complies with its responsibilities under the Nuclear Non-Proliferation Treaty. That commitment is at the core of the treaty, and it must be kept for all who fully abide by it. And I'm hopeful that all countries in the region can share in this goal.

[Comment: With the phrase "all countries in the region,” President Obama also points to Israel which is generally believed to possess nuclear weapons, but (like nuclear-armed India and Pakistan) never became party to the Nuclear Non-Proliferation Treaty. Is President Obama here implying that Israel’s possession of nuclear weapons could also be on the table in potential talks with the Islamic Iran? If so, there is a possibility that President Obama might be considering sacrificing Israel's vital security interests as part of a larger deal to serve his own vision of USA needs in the Mideast.

For decades, there has been a bilateral understanding with Israel that the USA would refrain from publicly addressing whether or not Israel has nuclear weapons. President Obama's remarks here suggest that USA diplomacy should be very carefully scrutinized for any signs of movement in this regard.]


2:05 P.M. (Local)