Thursday, February 9, 2017

Aboriginal Rights of the Jewish People (2017 Edition)

Reconciling subsequent rights of the newborn Palestinian People with prior rights of the age-old Jewish People.

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


Introduction


Earlier editions of this article appeared in American Thinker, Israel Resource Review, Winnipeg Jewish Review, Jerusalem Post, Times of Israel, Tablet Magazine, and at www.aish.com. Versions in Italian, French and Chinese are also available, as separate postings on this website. This English-language version is the authoritative text, current to April 2017.

This essay is not just about the specialized discipline called "public international law" but appropriately also about history and comparative law -- including anthropology and elements drawn from natural, Common, Canadian, USA, Islamic and Jewish law.

This article does not aspire to be any exhaustive survey of the moral and legal claims of modern Israel as a sovereign country within the international States' system. Rather, emphasis here is on the companion and complementary aspects of the self-determination rights of the Jewish People and its millennial rights in its ancestral homeland.

Throughout, the argument is that the age-old Jewish People possesses long-exercised aboriginal rights of entry, sojourn and settlement, which today extend at least from the Jordan River to the Mediterranean Sea. This paper thus dissents from United Nations Security Council Resolution 2334 of December 23, 2016, which egregiously erred in reaffirming "that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law."


"Aboriginal" versus "indigenous"

The adjectives "aboriginal" and "indigenous" are commonly used for relative assessments that across populations compare a couple of pertinent characteristics:
  • First, either term is more or less appropriately employed when the intention is to classify a local People as "domestic" relative to the "foreign" provenance or intrusion of one or more alien Peoples. By definition such a geographic comparison refers to at least two different places.
  • Second are historical comparisons asking: "Which one of the extant Peoples now in this country or region was here first in time?" Referring to more or less the same geographic space, this is a temporal inquiry that includes at least three chronological periods -- the present time plus the birthday or "date of entry" of each one of the popular contenders for the prize of local priority.
By both Latin etymology (ab origine = from the beginning) and English meaning, the word "aboriginal" specifically points to this key aspect of "being first" in the land. But such explicit reference to priority is absent both in the English term "indigenous" and its Latin ancestor indigenus, the two of which equally mean "born in the land" rather than first in the land.

As between "aboriginal" and "indigenous," this semantic difference is not just a linguistic curiosity. Because priority can suggest a special connection to the land, being "first in time" has often been perceived as conferring prestige, legitimacy and sometimes rights. Among the extant local Peoples, who was there first can thus be of deep political interest. The identity of the true aboriginal People is understandably sometimes keenly contested. Priority in the land often features in ancient popular myths and also in millennial histories. But, there are also modern ethnic genealogies, including some newly fabricated with an eye to current disputes. With this "priority" issue so salient sociologically and politically, careful use of terminology is required to capture any distinction between an aboriginal and an indigenous People.

Consider extant Peoples in a modern country or region. First in the land, the current aboriginal People may also be indigenous as literally born there. Or, that current aboriginal People might have initially come from outside to an empty territory. And if not empty, any preexisting populations might perhaps have been annihilated or assimilated. But over the centuries, the land can gradually give birth (ethnogenesis) to one or more additional Peoples. If so, none of those later indigenous Peoples can ever be aboriginal relative to the current People that was there first in time; just as that current aboriginal People retains its priority relative to Peoples subsequently arriving by conquest or settlement.

The one term "indigenous" has recently been promoted internationally in the Declaration on the Rights of Indigenous Peoples (2007). This provides no legal definition of "indigenous People." Itself disclaiming any pretension to be exhaustive, this UN instrument conceptually focuses, from an international perspective, on the domestic relationship between the current sovereign State and one or more indigenous Peoples. Notable is what the Declaration omits -- specifically, it says very little about inter se relations among indigenous Peoples and nothing at all about an "aboriginal" People.

What are aboriginal rights?

The theme of "People" and "historic homeland" has for centuries resonated with Jews around the world. However, our own time sees an increasingly bitter controversy over the Jewish People’s right to self-determination in all or part of its aboriginal homeland. That fierce debate inevitably involves the political and legal doctrine of the self-determination of Peoples. There is also the companion doctrine of aboriginal rights.

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

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

President of the jaded, pragmatic and sometimes defeated country that was 20th-century France, Charles de Gaulle quipped: "Treaties are like roses and pretty young women -- they last as long as they last." But, don't expect de Gaulle's cynical, Realpolitik perspective on treaties to be shared by a beleaguered aboriginal People.

Pertinent experience in Canada, New Zealand and elsewhere shows that, if States recognize ancestral rights in a treaty with an aboriginal People, they can expect to be forever regularly reminded of that recognition and those rights. Exactly so is it in the Declaration on the Rights of Indigenous Peoples which characteristically highlights "the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties." This is a powerful reminder that the Jewish People also has clear treaty rights that endure to this day.

In addition to such treaty rights, the Jewish People also has other kinds of rights as adumbrated in the 1948 Declaration of the Establishment of the State of Israel. There, the reference is to a "natural and historic right" to "the birthplace of the Jewish People," where "Jews strove in every successive generation to reestablish themselves." On December 2, 2012, the Israel Cabinet reaffirmed: "The Jewish People has a natural, historical and legal right to its homeland."

The concept of aboriginal rights has been well understood by other Peoples, e.g., by the Greek People in the 19th century, when it fought for independence from the Ottoman Empire. Now speaking articulately about their aboriginal and treaty rights, the Indian tribes of Canada astutely perceive that law is akin to an ongoing discussion about rights, in which it is essential to offer meaningful arguments. That legal discussion is also a place where a small People tells its own story, which can be a compelling narrative that engages the conscience of others more powerful.


Napoleon's proclamations to the Jews

Exactly such a reflection of gentile conscience were the one or more wartime proclamations which 29-year-old General Napoleon Bonaparte is alleged to have addressed to the Jewish People during his 1799 campaign in the Holy Land, which the French then included within their understanding of "Syria." Still harboring hopes that his army would soon conquer the whole Ottoman Mideast, Bonaparte is said to have then described "Israelites" as "lawful heirs" to their "ancestral land" and encouraged them to hasten home to reclaim their "patrimony."

News of Bonaparte's invitation to the Jews "to reestablish ancient Jerusalem" appeared in the Paris press on May 22 and 29, 1799. There were one or more similar reports in newspapers elsewhere in Europe. Whether from Paris and/or the Mideast, the story that Bonaparte had issued such a proclamation then rippled through Jewry where ancient Messianic hopes were stimulated.

Bonaparte's alleged initiative for the Jews had policy precedents. During the month before and after May 19, 1798, when Bonaparte's fleet sailed for Egypt, prominently published in Paris were some semi-official strategic points and propaganda about how France could richly gain by sponsoring the return of Jews to their ancestral homeland.

This same calculation appeared in Bonaparte in Cairo or Memoirs of this General's Campaign in Egypt. This was a rapidly written "current affairs" book rushed into print in Paris close to the end of 1798 or the start of 1799. Regarding restoration to the Jewish People (la nation juive) of "their land of origin," it was there argued: "The conqueror of Egypt is too good a judge of men to misunderstand the advantages which could be derived from this people in the execution of his vast plans."


Jean-Léon Gérôme (1863), Bonaparte in the Mideast, 1798-1799.
The revolutionary French Republic and Napoleon Bonaparte then strongly
championed the new political principles of
popular sovereignty and the self-determination of Peoples.





Palestinians "a People" but Jews not?

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

Such rejection of Jewish peoplehood is astonishing because an enormous body of archaeological and other historical evidence demonstrates that -- like the Greeks and the Armenians -- the Jewish People is among the oldest of the world's Peoples. Now, a quarter-century of genome research has produced a totally new kind of evidence suggesting that most of today's Jews are, to an appreciable extent, genetically interrelated and significantly descended from Jews of the ancient world.


"Dead Sea Scrolls" fragment from Genesis.
Referring to a specific name
and also to shared ancestry, territory, language and achievement,
Genesis describes what it means to be
a distinct People alongside other named Peoples.


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

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

The Hebrew Bible also exercised considerable influence on the development of Islam. Thus, referring to the Taurat (Arabic: توراة ), the Koran endorses the Torah or Pentateuch (Five Books of Moses) as part of the revealed word of God. The Koran also tells the story of the Jewish People, including its special connection to the Holy Land.

What is "a People"?

Linguists have theorized about whether there was ever a proto-Semitic language. This famous linguistic theory was eagerly racialized to suggest kinship among the alleged Semitic-speakers. If so, any such genetic connection would have to reach far back into prehistory and today awaits further findings from the new genome science.

From linguistics far more pertinent to the phenomenon of Jewish ethnogenesis are the immediate origins of the Hebrew language in the half millennium after 1500 BCE. Finally born around 1000 BCE was a particular tongue biblically known as the "language of Canaan" (Hebrew: sepat kena'an שְׂפַת כְּנַעַן) or more frequently as "Jewish" (Hebrew: yehudit יהודית).

The specifically "Hebrew" language (Hebrew: ivrit עברית) is not explicitly identified as such anywhere in the Bible. Using "Hebrew" as the name for the language of the Jews seems to have first occurred in the 2nd century BCE. At the dawn of the Common Era, the "Hebrew" language (Greek: Hebraisti Ἑβραϊστὶ) appears several times in the Christian gospels, where the reference probably points to Aramaic.

That bit of linguistic history is useful to teach that peoplehood is not just about genetics; but is rather simultaneously a complex sociological phenomenon -- partly a conceptual artifact or symbol, always something of a cultural invention. Significantly analogous to the trademark of modern intellectual-property law is the particular name which a specific population commonly uses to consistently self-identify as a distinct People, as distinguished from other Peoples.

For example, consider in clear chronological order and specific historical context, the ethnonyms --  יהודים‎ Yehudim = Jews;  汉人 Hanren = Han People (i.e. the Han Chinese);  українці Ukraïntsï = Ukrainians; and Québécois = Quebeckers. General self-identification under such a definite name is the key expression of group self-consciousness that simultaneously signals and enables collective political ambition.

Beyond its chosen popular name, the pertinent group must also share some relatively distinct social and cultural features drawn from a wide-open menu, potentially including -- ancestors, language, history, homeland, territory, rites, rituals, religion, mores, etiquette, laws, citizenship, institutions, mythology, folklore, writing system, literature, drama, painting, plastic arts, dress, diet, cuisine, dance, music, games, sports, agriculture, and economy. Thus, every People is not marked by the same set of shared characteristics. But practically, there is little difficulty in identifying a particular People and distinguishing one from another.

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

For example, powerful objective evidence comes from the early 7th-century BCE cuneiform inscriptions of the Neo-Assyrian King Sennacherib written in Standard Babylonian Akkadian. Reference there is to the defeat (701 BCE) of Hezekiah "the Jew" (ia-u-da-a-a) who was said to be king of a country called Judah (ia-u-di):
As to Hezekiah, the Jew (ia-u-da-a-a), he did not submit to my yoke, I laid siege to his strong cities, walled forts, and countless small villages, and conquered them by means of well-stamped earth-ramps and battering-rams...  Himself I made a prisoner in Jerusalem, his royal residence, like a bird in a cage.
Subjectively, the ethnonym Yehudim appears biblically numerous times in Hebrew and Aramaic. In the Second Book of Kings, for example, Yehudim is used in two different places by way of contrast to Edomites and Chaldeans respectively. Such early biblical references complement independent epigraphic sources reaching back at least as far as the 8th century BCE. For example, pertinent are famous stelae, royal seals of Judah, and Neo-Assyrian and Neo-Babylonian cuneiform inscriptions. Combining such solid extra-biblical evidence with what we have long known from the Hebrew Bible, we can conclude with a high degree of confidence that by 600 BCE there already existed a distinct population:
  • in/from the kingdom of Yehuda (יְהוּדָה);
  • using a language called yehudit (יהודית); and
  • self-identifying as Yehudim (יהודים‎).
Without exception, this popular name Yehudim can be validly translated into English as "Jews" -- rather than as "Judahites" or "Judeans," as sometimes preferred for purely contextual or interpretative reasons entirely extrinsic to the precise ethnonym in  the original Hebrew, Aramaic or Akkadian.

Due to a complex historical rationale explained in the Bible, those Jews and their descendants down to this day have always retained for the specifically "Jewish" People -- in addition to its popular name Yehudim -- the companion, rhetorical, poetic, high-register, liturgical, sacred name "Israel" (Hebrew: יִשְׂרָאֵל). This powerful cultic ethnonym appears in many biblical passages including the famous: "Hear, O Israel!" (Hebrew: Shema Israel! שְׁמַע יִשְׂרָאֵל‎). In May 1948, parallel historical and linguistic considerations probably dictated the choice of "State of Israel" (Hebrew: Medinat Israel מדינת ישראל) as the official name for the new Jewish country.


Aboriginal by genetics alone?

Nazis, racists and racialists may dissent, but there is currently no authoritative political or legal doctrine of the aboriginal rights of genes or of the self-determination of genes. Rather, aboriginal and self-determination rights pertain to a culturally complex, sociological "People" born via general self-identification under a specific name, like "Jews" (Hebrew: Yehudim יהודים‎).

This explains why the modern political and legal idea of peoplehood is flexible enough to embrace the specifically "American" People, which is famously of mixed ancestry; and also the virtually homogeneous, self-identified "Japanese" People. Thus, peoplehood is available to the population of a nation-State like Croatia, with a very high percentage of common ancestry; but also to the population of Canada, a country for the most part recently settled by ethnically diverse migrants. There, common ancestry can be less salient, with the distinct "Canadian" People now more importantly self-defined by shared institutions, laws, citizenship and territory.

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

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

An existing People can today claim to be aboriginal either in its own name or perhaps by virtue of direct succession from an immediate parent People that had itself already claimed to be "the" aboriginal People there. But, a specific People cannot now suddenly claim to be aboriginal, solely by virtue of some recently alleged genetic descent from a culturally remote or unrelated ancient People with a different name.

Today turning to antiquity to make an aboriginal claim in its own name, a distinct modern People needs to show not only some credible genetic roots, but also a continuing socio-cultural identity that, without a break, reaches back across each century to the relevant historical time.

Logically and juridically, a current People cannot now make an aboriginal claim in its own name with respect to historical periods before its own ethnogenesis, i.e. when the pertinent population did not yet generally self-identify as that particular People. Nor can a distinct, modern People's right to national self-determination now be claimed in its own name so as to retroactively apply in an historical period before its own ethnogenesis.

Which is "the" aboriginal People?

Among the distinct, self-identified Peoples now living in a country or region, the one with the best claim to be aboriginal is the specifically named People that was there first in time. Without reference to numbers, this now existing aboriginal People is distinguished from the other current local Peoples which subsequently either were formed in the land (indigenous) or came there via conquest, migration and settlement.

For example, 1860s British North America witnessed creation of a new country called "Canada." In this connection, the Fathers of Confederation intentionally crafted a new "political nationality" to unite several mostly settler populations with contrasting self-identifications, largely based on differences of language, religion and ancestry. But across the 20th century, Canada completed its own trajectory "from colony to nation." According to the Supreme Court of Canada, a new specifically Canadian People gradually emerged via a process of general self-identification. Because this ethnogenesis occurred at home, this nascent "Canadian People" as such is certainly indigenous to Canada.

Nonetheless, the North American Indian tribes there significantly remain the "First Nations." They are still among the aboriginal Peoples of Canada, though some Indian bands now number only a few hundred individuals. Nor can their special status as "first in time" be erased, because the subsequently born "Canadian" People is also indigenous or because the First Nations are now just a fraction of Canada's population.

Like the First Nations, the Jewish People for more than two millennia has always had the strongest claim to be the aboriginal People in its ancestral homeland -- though for most of those centuries, Jews there were but a small percentage of the local inhabitants. Nor is this persistent Jewish claim to be the aboriginal People there now in any way weakened because:
  • the majority of Jews have at various times lived elsewhere;
  • Jews are now once again the local majority; and
  • local Arabs after 1967 generally opted to rebrand with a new self-identification as the distinct "Palestinian" People -- which as such is arguably indigenous, as so recently born mostly between the Jordan River and the Mediterranean Sea.

Redemption through return to the land

Matters relating to entry, sojourn and settlement are key to Judaism's understanding of history. This responds to the biblical command from God to live in "the land of Israel" (Hebrew: Eretz Israel ארץ ישראל). Entry and settlement are crucial because Jewish religion/history subjectively focuses on repeated migrations back to the promised land as a redemption of the Jewish People. First, there was the return to settle in the land after the biblical exodus from Egypt. Second, came the Jewish People's return to Eretz Israel after the Babylonian exile in the 6th century BCE. Finally, throughout the Common Era, there is the prospect of the Jewish People's redemption to be effected by Jews persistently "ascending" (Hebrew: aliyah עֲלִיָּה‎) to settle in Eretz Israel. Thus, the essential truth is that most Judaism has been "Zionist" millennia before the late 19th-century birth of political Zionism as a secular movement.

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


Diaspora Jewry famously linked to its homeland


During the Roman period when Jews were the local majority, several million Jews worldwide felt strong religious obligation to famously make steady, annual payments for the upkeep and ceremonies of the Second Temple in Jerusalem. Roman emperors repeatedly reaffirmed this then controversial right of Jews throughout the Empire to contribute to the Temple's expenses. Stubbornly sticking to their own lunar calendar, Jews from Egypt to Babylon watched for the mountain-top signal fires that for centuries relayed from the Temple authoritative news of the start of the new month (Hebrew: rosh chodesh ראש חודש‎‎). The Second Temple was also the focus for widespread Jewish pilgrimage from the Mediterranean lands and beyond.

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

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


Religious importance of living in the land

Fierce focus on sacred homeland was confirmed by the enduring high authority of the Mishneh Torah (מִשְׁנֵה תּוֹרָה) which Moses Maimonides finished in Egypt around 1180. He was a famous physician, philosopher and rabbi. But, he was also twice State-appointed head (Arabic: ra'is al-yahud رأس اليهود) of all the Jewish communities of Saladin's new Ayyubid Sultanate which was then fighting the Crusaders in the Holy Land:
Great sages would kiss the borders of Eretz Yisrael, kiss its stones, and roll in its dust. Similarly, Psalms 102:15 declares: "Behold, your servants hold her stones dear and cherish her dust." The Sages commented: Whoever dwells in Eretz Yisrael will have his sins forgiven as Isaiah 33:24 states: "The inhabitant shall not say 'I am sick.' The people who dwell there shall be forgiven their sins." Even one who walks four cubits there will merit the world to come and one who is buried there receives atonement...
Such rabbinic emphasis on living in Eretz Israel was just one side of the coin. The other side was some companion understanding and policy from the sultan. Early in his reign, Saladin confirmed the rights of communal autonomy which Mideast Jews had previously enjoyed under the Fatimids. In 1187, Saladin conquered Jerusalem and three years later invited Jews to return to settle there. This must have delighted Maimonides. During the preceding nine decades, the Crusaders had mostly excluded Jews from the two holy cities of Hebron and Jerusalem. After Saladin's 1190 invitation, Jerusalem once again attracted a significant Jewish population, including from as far away as France.

Judaism, the "aboriginal" faith

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

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

Aboriginal versus majority rights

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

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

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

This current requirement of contemporary and contextual fairness points to some strikingly different historical, geographical and demographic situations. Thus, for potential examination are specific local circumstances in the broader context of the whole world as it once was. But also to be considered is the immediate framework of, for example, the erstwhile Fatimid, Ayyubid, Mamluk, Ottoman or British Empires. And, in that last British case, careful account must be taken of Mandate Palestine, both east and west of the Jordan River (1922-1946). But, Transjordan (Eastern Palestine) also remains part of the moral and political equation, long after the June 1946 entry into force of the UK treaty that cut the Hashemite Kingdom of Transjordan from Mandate Palestine.

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

If you like, you can retrospectively test the morality and fairness of then cancelling age-old Jewish rights of entry and settlement with the example of the May 1939 UK White Paper which is discussed way down below.

"Majority rules" not retroactive

Is it appropriate to now make judgments about the moral weight of history based consciously or unconsciously on the metaphor or fiction of a particular hypothetical majority vote that was factually never held in the past? The stark reality is that the majority principle is a democratic "decision rule" that a current polity uses to select among present alternatives. Needless to say, the dead cannot rise from the grave to vote today; nor can we now issue writs for holding a referendum in the past. Thus, we can apply "majority rules" right now in our own polity, but not to an earlier historical period and place where -- for any number of important reasons -- men and women had failed to apply it in their own time.

Furthermore, the logic that renders impossible the retroactive application of "majority rules" is significantly complemented by the related principle that it is today's majority that governs rather than that of yesterday. Even within a current and continuing polity, the practical acceptance of "majority rules" depends on the systemic requirement for elections from time to time. And, the same iterative context that makes it possible for the losing minority to peacefully accept temporary defeat also requires the supplementary rule that it is the present majority that now governs. Thus, the authority of past majorities is evanescent. They are "the snows of yesteryear" to borrow a phrase from famed French poet François Villon.  

For these reasons, the majority principle alone cannot now confer rights on a current minority solely because it had once been the majority. For example, think about the UK Liberal Party. It was a giant in British politics in the late 19th and early 20th centuries, but is currently a negligible player. Does anybody now suggest that the great Liberal landslide victory in the UK General election of 1906 by itself suffices to confer rights on that political party today?

Furthermore, consider the USA urban landscape that is the 13th Congressional District of New York. This constituency has experienced substantial demographic change and arbitrarily shifting borders, just like the "Palestine" that was invented during the First World War. Including Harlem, the 13th Congressional District was majority Black American during the first part of the 20th century. But today, 55% of the local population is Hispanic and only 27% Black American. Should Hispanics have been told to stay out of the neighborhood? With regard to the 13th District, would anyone now argue that the minority Black Americans still have rights flowing from the one circumstance that they had been the majority there before 1950?

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


"The Jewish movement not imperialist"

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

Jerusalem Mayor and Ottoman Parliamentary Deputy
Yusuf Ziya Pasha al-Khalidi (1829-1907).
يوسف ضيا باشا الخالدي
In 1899 he wrote to the Chief Rabbi of France:
"Who can contest the rights of the Jews regarding Palestine?
Good Lord, historically it is really your country!"

Born in Jerusalem in 1829, Yusuf Ziya Pasha al-Khalidi was an urbane, polyglot intellectual. He had served as mayor of, and Ottoman parliamentary deputy for Jerusalem where Jews were once again the local majority. As a Muslim, an Arab and a subject of the Ottoman sultan, he wrote (March 1, 1899) to the Chief Rabbi of France, Zadok Khan, a friendly letter strongly warning against political Zionism. Therein, Yusuf Pasha explicitly welcomed some Jewish immigration provided that the newcomers would become loyal Ottoman subjects. But he emphasized that the current political, military, ethnic and religious realities in the Ottoman Empire made Zionism impossible. Nonetheless, Yusuf Pasha's letter portrayed Palestine as the ancestral land of the Jews and validated their historical claim to be aboriginal there:
Qui peut contester les droits des Juifs sur la Palestine? Mon Dieu, historiquement c'est bien Votre pays! [Who can contest the rights of the Jews regarding Palestine? Good Lord, historically it is really your country!]
After the 1918 shattering of the Ottoman Empire, more positive to the practicability of political Zionism was the Hashemite Prince Feisal ibn Hussein who was pertinently the principal Arab delegate at the 1919 Paris Peace Conference. There, American Zionist representative Felix Frankfurter received from Feisal a March 3, 1919 letter saying: "We will wish the Jews a most hearty welcome home." Specifically referring to Zionism, Feisal therein acknowledged: "The Jewish movement is national and not imperialist."



The twelve tribes of Israel straddled the Jordan River.

The aboriginal home

Generally and locally, many Muslims and most Arabs stubbornly reject the legitimacy and permanence of Israel as "the" Jewish State, i.e. as the political expression of the self-determination of the Jewish People in a part of its larger aboriginal territory. That ancestral homeland stretched from the Mediterranean Sea to lands east of the Jordan River. For example, the Hebrew Bible tells us that the Twelve Tribes straddled the Jordan River. Also extending eastward across the Jordan River was the northern kingdom of ancient Israel and then later Hasmonean Judea.

Since antiquity, this country was known to Jews as "the land of Israel," in Hebrew, Eretz Israel (ארץ ישראל). The enduring cultural idea of the Jewish People's relationship to that particular bounded territory was always subjectively -- and often also objectively -- a famous ingredient in Jewish peoplehood. The Jewish case is a classic example of the sociological truth that conceptually a home is way more than just a tangible house and a homeland much more than merely a measured stretch of the earth's surface.


Hasmonean Judea extended east of the Jordan River.

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

For centuries Christians remembered a Roman "Palestine"
that extended east of the Jordan River.



What was "historic" Palestine?

Including forcible deportation of some Philistines, coastal Philistia (Standard Babylonian Akkadian: Pilištu) features more than once in the early 7th-century BCE cuneiform inscriptions of the Neo-Assyrian King Sennacherib. Better known are the many references in the Hebrew Bible. For example, the Book of Exodus specifically refers both to the "Sea of the Philistines" (Hebrew: Yam Pelishtim יָם פְּלִשְׁתִּים) and to the littoral "Land of the Philistines" (Hebrew: Eretz Pelishtim אֶרֶץ פְּלִשְׁתִּים). The first extant Greek references to "Palestine" come eight times from alleged eyewitness Herodotus who wrote perhaps around 430 BCE. Not inconsistent with the aforementioned earlier sources, Herodotus perhaps means a particular stretch of the Mediterranean coast between Phoenicia and Egypt. 

Greek and Roman writers before the 2nd century CE, with some exceptions, understood Palestine as just the seaside strip associated with the memory of the Aegean Philistines who disappeared before the 6th century BCE. But such narrow geographical usage expanded around 133 CE, when the entire Roman Province of Judea was officially termed "Palaestina" to punish Jews for their periodic, stubborn revolts against imperial Rome.

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

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

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

Holy Land's population migratory?

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

Nor should it be presumed that such a migratory pattern only pertained to local Jews. Across the centuries, other ethno-religious components (e.g., Muslim Arabs) were also significantly coming and going. Millennial mother-to-daughter continuity was not the exclusive demographic pattern in this Afro-Asian corridor. There, the last thousand years have seen total local population occasionally drop to remarkably low levels. Such rounds of radical depopulation were subsequently partly reversed by some indigenous growth. But from time to time, there have also been repeated waves of fresh migrants drawn from various ethno-religious groups, whether from adjacent regions or further afield.

For example, in the late 18th and early 19th centuries, regional rulers like Zahir al-Umar (Bedouin), Ahmet al-Jazzar (Bosnian), and Mehmet Ali (Albanian) invited farmers and other Muslim Arab migrants from Egypt and elsewhere to help repopulate the land. In addition, there were always newcomers who arrived without authorization. For example, from the sixteenth to eighteenth centuries, Bedouin from neighboring regions significantly migrated to the Holy Land, where some became sedentary, as encouraged by the Ottomans.

The magisterial UK Peel Commission in 1937 said there was not much effective control of land frontiers which, during the interwar period, remained mostly open to undocumented immigration by Arabs. If true for most of the first half of the 20th century when various treaties had already delineated State boundaries, how much truer for overland migrants in earlier periods when internationally the Holy Land had no land borders whatsoever!

During the last millennium, the minority demographic of then self-identified "Jews" probably followed a pattern that was roughly a scaled-down version of what was happening there generally. Thus, Jews too were coming and going, and some who left later returned. During tough times, Jews maintained their local presence partly “relay race” style, with newcomers taking the baton from longtime Jewish residents. But whether stationary, entering or leaving, Jews always saw themselves as part of the distinct Jewish People with the strongest claim to be aboriginal there. And what is more, this stubborn Jewish self-perception was sometimes shared by non-Jews like Napoleon Bonaparte, Yusuf Ziya Pasha al-Khalidi, Arthur Balfour, David Lloyd George, Feisal ibn Hussein and Woodrow Wilson.


Always Jews in the Holy Land?

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

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

Written in Hebrew characters are the thousands of medieval documents from the famous Cairo Geniza. These are among the contemporary historical sources that reveal much about Jewish life in the Holy Land, during the subsequent period stretching from the Muslim conquest in the fourth decade of the 7th century CE to the Crusader victory in 1099.

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

During this period of the Crusaders and the Ayyubids, Acre was an important center for Holy Land Jews, about whom we learn from a variety of sources. For example, pertinent are many Geniza documents and also accounts by the 12th-century Jewish travelers Benjamin of Tudela and Rabbi Petachia of Ratisbon. Acre was then for a brief time the home of Moses Maimonides and later of Moses Nachmanides, two famous rabbis who encouraged Jews to live in Eretz Israel (ארץ ישראל) for profound religious reasons.



The Koran is an historical document providing evidence about
the existence of the Jewish People and its link with
the Holy Land or Eretz Israel (ארץ ישראל).

During the Mamluk period (1250 -1516), Jerusalem was sometimes seat for a deputy to the Egypt-based Jewish prince or leader (Hebrew: נגִּיד nagid ) who as ra'is al-yahud headed all the Jewish communities of the sultanate. Fifteenth-century Holy Land Jews also feature in the letters of Rabbi Obadiah ben Abraham Bertinoro and the travelogues of Christian pilgrims like Arnold van Harff, Martin Kabatnik and Felix Fabri. There were also always Jewish pilgrims, about whom a local Jewish guide (early 1480s) told Felix Fabri:
The Jews pile up these stones to occupy a place beforehand, for they hope that erelong they will again inhabit the Holy Land; and therefore their pilgrims, who come from far countries, take places beforehand, in which places they hope that they shall dwell after the return. 

Richer are sources from the four Ottoman centuries ending in 1917-1918. For example, 16th-century doomsday registers (Ottoman-Turkish: مفصل دفترى  mufassal defteri) record the names of local Jewish tax-payers. Evidence also comes from documents like some late 18th-century account books of the Jerusalem Jewish community. With the 19th century, travel books, letters, and consular reports join a flood of other sources about local Jews who also told their own stories. Though the number of Jews there grew absolutely, they were then still just a fraction of the total population which -- including all the Muslims, Christians and Jews -- notably remained astonishingly low; probably, very much lower than in the early Roman Empire.


Aboriginal Peoples include Jews, Greeks and Armenians

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

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


Lord Byron championed the aboriginal rights of the Greek People.

In the early 19th century, some prominent personalities like the English poet Lord Byron enthusiastically championed the aboriginal rights of the Greek People. Partly for this reason, some of the European Powers intervened to help Greeks win their independence from the Ottoman Empire. In 1821 CE, when some Greeks began their revolt against the sultan, they were probably a minority of the population in the territory that is now modern Greece.

In the 19th and 20th centuries, Greek history has been partly about the hundreds of thousands of diaspora Greeks, who gradually migrated to their core ancestral homeland. For example, many returned to Greece as refugees after the First World War, when British Prime Minister David Lloyd George had unsuccessfully backed the aboriginal rights of the Greek People to the Anatolian littoral. There, large indigenous Greek communities like Smyrna (Izmir) persisted from antiquity until 1922, when they were savagely destroyed by the Muslim Turks who in 1915 had killed one and a half million Armenians.

UK Prime Minister David Lloyd George backed the
aboriginal rights of Greeks in Anatolia and of Jews
 in the Holy Land = Eretz Israel (ארץ ישראל).

The horrific atrocity that was the 1915 Armenian genocide shocked the conscience of the Western world, notably including the Christian sensibility of both Lloyd George and USA President Woodrow Wilson. Writing to Congress about the plight of the Christian Armenians, Wilson (1920) significantly described his fellow Americans as:
the greatest of the Christian peoples [with] ... an earnest desire to see Christian people everywhere succored in their time of suffering, and lifted from their abject subjection and distress and enabled to stand upon their feet and take their place among the free nations of the world.
The Armenian genocide was also an important part of the moral context in which the USA and the Allied Powers decided to recognize both the Armenian People's right to self-determination in its ancestral territory and the Jewish People's historic rights in the Holy Land. Until the 1917-1918 British conquest, the Holy Land was still part of the Ottoman Empire which Woodrow Wilson reviled. As early as the 1912 presidential campaign, he had already pledged: "If ever I have the occasion to help in the restoration of the Jewish People to Palestine, I shall surely do so."

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


Palestine 1916, (left) Friedrich Kress von Kressenstein with top Austrian, Baron Lager.
Kress von Kressenstein was leading Ottoman forces facing the British in Egypt.
During WW1, he was among the German soldiers and diplomats who

stopped the Ottomans from driving the Jews from the Holy Land.


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

Well informed about the perilous wartime situation of Jews there, President Wilson in June 1917 confided to American Zionist leader Rabbi Stephen S. Wise: "When the war will be ended, there are two lands that will never go back to the Mohammedan Apache. One is Christian Armenia and the other is Jewish Palestine."

Then urgently in need of wartime help, the UK deferred to USA power and preference. Thus, no accident that the November 1917 Balfour Declaration, promising best efforts to create "a national home for the Jewish People," was adopted by the UK War Cabinet only after consultations with President Wilson. Entirely consistent with the Balfour Declaration was Wilson's January 8, 1918 "Fourteen Points." Therein, he included the pertinent requirement: "Nationalities that are now under Turkish rule should be assured an undoubted security of life and an absolutely unmolested opportunity of autonomous development."


USA President Woodrow Wilson
 confidentially approved a draft of
the 1917 Balfour Declaration
 before its adoption by the UK cabinet.


Aboriginal rights of the First Nations

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

Common Law courts began recognizing aboriginal rights in the 19th century. From 1982, the rights of the Aboriginal Peoples of Canada have explicitly featured in Canada's Constitution Act. The Supreme Court of Canada has decided that, where a First Nation maintains demographic and cultural connections with the land, aboriginal rights can survive both sovereignty changes and the influx of a new majority population, resulting from foreign conquest. Dealing with claims of right on all sides, the Court seeks to juridically reconcile the subsequent rights of newcomers with the aboriginal rights of a First Nation.

Today, the concept of aboriginal rights is also an important topic in Australia, New Zealand and the United States, and is now receiving some more attention internationally. For example, pertinent to the millennial phenomenon of aboriginal rights is the Declaration on the Rights of Indigenous Peoples. For obvious political reasons, this UN instrument notably lacks a legal definition of “indigenous People.” Also due to political sensitivities, international law has never been able to formulate an agreed legal definition of “a People” for the companion doctrine of the self-determination of Peoples.

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

For more than two thousand years, Jews have stubbornly exercised their aboriginal rights of entry, sojourn and settlement. Thus, whether a thousand years ago or today, self-identified "Jews" returning to join other Jews in the Holy Land (ארץ ישראל) are not like the 17th-century Pilgrim Fathers who built English settlements in America, where they had neither ancestors nor native kin. Nor is the Jewish People in its own aboriginal homeland ever to be compared with the Dutch Boers in South Africa or the French colons in Algeria.

Canada's Constitution includes
the rights of the Aboriginal Peoples of Canada.

Judaism's focus on sacred homeland

The self-identified, specifically "Jewish" People, under that same name, has for more than two millennia continuously affirmed its historical and demographic connections to its ancestral homeland. Thus, Eretz Israel (ארץ ישראל) has for at least twenty-six centuries been a central element in the religion of Judaism. This territorial focus was described by British Foreign Secretary Arthur Balfour who had been UK Prime Minister (1902-1905). In 1919, he wrote:
The position of the Jews is unique. For them race, religion and country are inter-related, as they are inter-related in the case of no other race, no other religion, and no other country on earth. In no other case are the believers in one of the greatest religions of the world to be found (speaking broadly) only among the members of a single small people; in the case of no other religion is its past development so intimately bound up with the long political history of a petty territory wedged in between States more powerful far than it could ever be...
From antiquity, most Judaism has been a Messianic religion, including specific reference to the homeland of the Jewish People. Authoritative for centuries as a restatement of the law is the late 12th-century Mishneh Torah (מִשְׁנֵה תּוֹרָה) of Maimonides. This holds that belief in the coming of the Messiah is one of the thirteen essential articles of Jewish faith. For centuries, Judaism has affirmed that the Messiah will: (i) be a descendant of David, King of Israel; (ii) gain sovereignty over Eretz Israel; (iii) gather world Jewry together there; (iv) rebuild the Temple in Jerusalem; (v) restore full Torah observance in Eretz Israel; and (vi) bring peace to the whole world.

Born in Spain at the end of the 12th century, Moses Nachmanides was an influential rabbi, philosopher, physician and kabbalist. Himself migrating to the Holy Land, Nachmanides emphasized that the biblical command by God to take possession of the promised land is directed to Jews of all generations, including the period of exile. Nachmanides strongly concurred with earlier Rabbis who had assessed that "dwelling in the Land of Israel outweighs all the commandments." 

Today, Jewish law (Hebrew: halacha האלאכהא) is the world's oldest continuously-functioning legal system. Jewish law has always explicitly recognized the Jewish People's legal rights in its aboriginal homeland, the precise boundaries of which were carefully defined by rabbinic discussion across the first three centuries of the Common Era. Make no mistake, more than two thousand years of halacha insist that the age-old Jewish People at the very least has ancestral rights of entry, sojourn and settlement in Eretz Israel.

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


Jews are "the" aboriginal People

Of all extant Peoples, Jews have the strongest claim to be "the" aboriginal People of the Holy Land (Eretz Israel). There, the Hebrew language (Biblical Hebrew: יהודית yehudit) and the religion of Judaism gradually emerged, leading to the birth of a then self-identified, specifically "Jewish" People at least 2,600 years ago. Before then, the Holy Land was home, inter alia, to the immediate ancestors of the Jewish People, including personalities like Kings Saul, David and Solomon, famous from the Hebrew Bible.

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

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

Nor traditionally did the great Arab People of world history claim to be aboriginal to the Holy Land.  Like Yusuf Ziya Pasha al-Khalidi and Prince Feisal, erudite Arabs always knew from the Koran that Allah had promised the Holy Land to the Jews, all of whom would return there by Judgment Day. Such Arabs were also keenly aware of their proud and persistent narrative that celebrated the heroic Muslim conquest of a Byzantine province then already inhabited by Jews, Samaritans, and Greeks.

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

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

This means that the Jewish People can now draw some steadily increasing benefit from the key doctrine of the self-determination of Peoples, which normally allocates territory by the national character of the current local population. At the same time, the Jewish People also continues to affirm aboriginal rights in parts of its ancestral homeland. And, it will be seen that these Jewish aboriginal rights still have some political and legal significance in the ongoing dispute caused by the stubborn refusal of many Muslims and most Arabs to recognize the legitimacy and permanence of Israel as the Jewish State.

The Jewish State

Most Jews round the world see Israel as "the" Jewish State, i.e. as the political expression of the self-determination of the age-old Jewish People in a part of its larger ancestral homeland. Like other Peoples, the Jewish People has a right to self-determination. Though the self-determination of the great Arab People is expressed via twenty-one Arab countries, Israel is the sole expression of the self-determination of the great Jewish People.

Some Western thinkers are now uncomfortable with the idea of a nation-State as the homeland of a particular historical People, i.e. a well-known People in history. If so, there is no special reason to target Israel, because other jurisdictions are also nation-States -- for example, the Canadian Province of Quebec, Japan, Greece, and the countries of the Arab League.

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

Israel born of the Ottoman Empire

Until the end of the First World War, the Holy Land was part of the Ottoman Empire. Thus, Israel and around two dozen other modern countries are in whole or in part successor States of the Ottoman Caliphate, which for four hundred years (1516-1918) was the principal Power in the Mideast. Apart from the ruling Turks, the Ottoman Empire was home to many other Peoples including Albanians, Vlachs, Greeks, Slavs, Copts, Armenians, Maronites, Alawis, Druze, Kurds, Circassians, Arabs and Jews.

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

Ottoman Empire at greatest extent in 1580 CE.

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

Theodor Herzl affirmed that the Jews are one People.

Why the Balfour Declaration?

The British decision to offer "best endeavours" toward establishing a national home for the Jewish People in Palestine had three principal motives: 

Firstly, Palestine was key protection for the eastern flank of the Suez Canal, the crucial gateway to British India. UK strategic thinkers valued Zionism partly as a humanitarian pretext to justify their plans for longtime British rule in Palestine, which otherwise would have been claimed by France. Also known to the British was that President Wilson, absent Zionist cover, would have resented UK retention of Palestine as just another imperialist land grab. 

Secondly, a more urgent and immediate British goal was generating enthusiasm for the war effort among several million Jews in Russia. After the March 1917 revolution that toppled Czar Nicholas II, Russia continued to be war weary and was known to be ready to abandon the Allied cause. The UK War Cabinet approved the Balfour Declaration just one week before Lenin's antiwar Bolsheviks seized power. 

Thirdly, a longer-term target was facilitating migration and settlement to gradually realize the Jewish People's self-determination in its ancestral homeland. This last aim was explained by Foreign Secretary Arthur Balfour, as recorded in the minutes of the War Cabinet's (October 31, 1917) deliberations:
There were considerable differences of opinion among experts regarding the possibility of the settlement of any large population in Palestine, but he was informed that, if Palestine were scientifically developed, a very much larger population could be sustained than had existed during the period of Turkish misrule. As to the meaning of the words "national home," to which the Zionists attach so much importance, he understood it to mean some form of British, American, or other protectorate, under which full facilities would be given to the Jews to work out their own salvation and to build up, by means of education, agriculture, and industry, a real centre of national culture and focus of national life. It did not necessarily involve the early establishment of an independent Jewish State, which was a matter for gradual development in accordance with the ordinary laws of political evolution.
The pertinent UK government declaration was communicated to Anglo-Jewry leader Lord Rothschild in a letter which was published on November 9, 1917.


The key phrase "national home for the Jewish people"
was repeated in several resolutions and treaties
ultimately endorsed by the 1923 Lausanne Treaty
 with Turkey, as successor to the Ottoman Empire.


A "Palestinian" People in 1919?

As Great Britain worked to defeat the Ottoman Turks, the world also began to learn about the national claims of the great Arab People. Here recall the wartime exploits of Lawrence of Arabia and Prince Feisal, both of whom were present at the 1919 Paris Peace Conference. There, a powerful searchlight was trained on the doctrine of the self-determination of Peoples, including the claims of the great Arab People.

But, nobody in Paris knew anything about a distinct Palestinian People. Had there then been such a specifically "Palestinian" People, its existence would certainly have been known to Prince Feisal, USA President Woodrow Wilson, France’s Prime Minister Georges Clemenceau, British Prime Minister David Lloyd George and to the other leaders who came to work on the peace treaties.

At the Paris Peace Conference, Versailles, January 1, 1919.
Left to right -- Rustum Haidar, Nuri as-Said, Prince Feisal,
Captain Pisani (behind Feisal), Lawrence of Arabia,
unknown slave, and Captain Tahsin Kadry.


This assessment is confirmed by extensive local testimony and petitions collected in 1919 by the USA King-Crane Commission. Contrary to President Wilson's own Zionist inclinations, the Commission's procedure and conclusions were tilted toward Christians and Arabs and strongly against Mideast pretensions of the Jews. Thus, the Commission's report stressed that, in the Holy Land, both Muslim Arabs and Arabic-speaking Christians vigorously rejected the plan to create a new country called "Palestine" which they perceived to be part of the detested Zionist project.

Ever a Muslim State called Palestine?

In 1919-1920, most local Muslim Arabs and Arabic-speaking Christians backed then current Arab plans to create a large Arab State with its capital in Damascus. They expected this new Arab country to include at least all of historic or greater Syria -- namely what is today Syria, Lebanon, Jordan, Israel, Gaza, and the West Bank (Judea and Samaria).

For Muslims in the Holy Land, this broader geographic focus of self-identification was natural, because a large province of Damascus (Ottoman-Turkish: Şam ﺸﺎﻢ) had at various times featured prominently in Muslim and Ottoman history. By contrast, the Ottoman Empire never had a province or sub-provincial unit called, or co-extensive with "Palestine," no matter how conceived. Nor had Muslim history ever known a State or a province called "Palestine."

After the Muslim conquest in the fourth decade of the 7th century CE, the Caliphate for a time kept the old Roman and Byzantine toponym Palaestina, arabicized as Filistin  (فلسطين), for one district or jund (جند) of the province of Damascus. Straddling the Jordan River, this medieval Jund Filistin covered terrain that was just a part of the much larger Palestine that was:
  • previously a province of the Roman-Byzantine Empire;
  • then for centuries remembered by Christians everywhere; and
  • finally realized again in 1922 as the League of Nations Palestine Mandate.

Straddling the Jordan River, the medieval Jund Filistin
was just part of what had once been Byzantine Palestine.

Global self-determination exercise 

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

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

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

Lawrence of Arabia fought for the great Arab People
but also supported the plans for
"a national home for the Jewish People."

Why a national home for the Jewish People?

The explicit purpose was to implement the 1917 Balfour Declaration which "always meant an eventual Jewish State." This authoritative assessment was specified by then Prime Minister Lloyd George and former Foreign Secretary Arthur Balfour to Colonial Secretary Winston Churchill in the summer of 1921.

"Palestine" was then a non-existent country of uncertain extent that was described by the League of Nations in 1922 as "the Palestine Mandate." This was an entirely new British jurisdiction then expected to endure for a very long time. In addition to Western Palestine as the national home for the Jewish People, the Mandate also included Transjordan (Eastern Palestine), where in 1921, the British had acknowledged the presence of the Hashemite Prince Abdullah ibn Hussein, who was Prince Feisal's older brother.


1922 Palestine was a new British jurisdiction that included
both Transjordan (Eastern Palestine) and
"a national home for the Jewish People" (Western Palestine).
 
The "national home for the Jewish People" was launched by the Palestine Mandate of the League of Nations. This international instrument specifically referred to "putting into effect" the Balfour Declaration as endorsed by agreement of the Principal Allied Powers at the San Remo Conference, April 1920. Drafted by the UK government, the Palestine Mandate was unanimously adopted by the League Council (July 24, 1922), then consisting of Belgium, Brazil, China, France, Great Britain, Italy, Japan and Spain.

The Palestine Mandate was duly enacted under clear authority to explicitly define Mandate terms, specifically conferred on the League Council by the 1919 Covenant of the League of Nations. The Palestine Mandate was therefore legally binding at the very least on all League members. The Palestine Mandate was thus akin to a multilateral treaty that created international obligations and rights, as confirmed by the interwar Permanent Court of International Justice. The instrument's principal beneficiary was the Jewish People. According to the 21st-century International Court of Justice, the Palestine Mandate still has some important legal effects today.

The Palestine Mandate importantly also became a bilateral agreement, because verbatim repeated as the text of the 1924 Anglo-American Treaty, which was ratified by the USA Senate. Thus, the USA most solemnly "consented" to all the terms of the Palestine Mandate. This was needed because the USA had never been at war with the Ottoman Empire, did not attend the San Remo Conference, and was not a member of the League of Nations. Summarizing USA obligations for the Secretary of State, Director for Near Eastern and African Affairs Loy W. Henderson (July 7, 1947) reported: "This Government has taken the position that the Mandate for Palestine, which incorporates the substance of the Balfour Declaration, is recognized by us as an international commitment."

The regime of the Palestine Mandate was unique (sui generis) in terms and purpose. Supervising the conduct of the UK as the authorized mandatory Power, the Permanent Mandates Commission of the League of Nations repeatedly refused to use generalizations about the postwar Mandates conceived as a system, if such systemic deductions were inconsistent with the specific terms of the Palestine Mandate. By contrast, opponents of the national home for the Jewish People have (into the 21st century) tried to evade detailed terms of the Palestine Mandate, which they have sought to ignore, reinterpret or invalidate, including with reference to flawed understandings of general provisions in the Covenant of the League of Nations.

Well informed about the Holy Land, the 1917-1922 decision-makers knew the territory there to be significantly under-developed and under-populated. They also understood that the national home for the Jewish People would initially lack a Jewish majority population. Then, there was a conscious choice to refer not just to the small number of Jews living locally, but also to the past, present and future of the great Jewish People. Thus, the national home for the Jewish People was then seen as also pertaining to the fourteen million Jews worldwide, including the one million then living in the Mideast.


Alexandria Jewish Quarter in 1898,
when there were about one million Jews living in the Mideast.

The international decision to create a national home for the Jewish People was made not so much on the basis of local demographics, but explicitly due to "the historical connection of the Jewish People with Palestine." This was clear recognition of the great Jewish People's long affirmed and continuous links to its aboriginal homeland.

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


 Did Arabs deserve all the Mideast?

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

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

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


1938-1939: Jewish refugee crisis

The world was awash with Jews fleeing Germany and Austria, an international tragedy that prompted the fruitless Evian Conference of July 1938. In October 1938, the Jew-persecuting Nazis moved on into Czechoslovakia. Subsequently, the situation for Jews got even worse due to the State-sponsored terrorism that was the November 1938 Kristallnacht pogrom across Germany, Austria and the formerly Czech Sudetenland. Every nook and cranny from Shanghai to the Dominican Republic was being tested as hundreds of thousands of Jews desperately sought shelter from persecution.

In February 1939 King George VI had his private secretary
contact the Foreign Office to tell Hitler's government
"to check the unauthorised emigration" of
German, Austrian and Czech Jews.


King-Emperor over about one quarter of the globe's land surface, George VI in February 1939 heard that "a number of Jewish refugees from different countries were surreptitiously getting into Palestine." Thus, the otherwise constitutional monarch was galvanized into executive action of his own. What did the King choose to do? He did not turn to the First Lord of the Admiralty and the Colonial Secretary to increase vigilance at sea and at overland entry points into Palestine. Rather, the King was more blameworthy in asking his Private Secretary Alexander Hardinge to contact the King's close friend Lord Halifax, the Foreign Secretary. Thus, the Foreign Office instructed the British Ambassador in Berlin to encourage Hitler "to check the unauthorised emigration" of German, Austrian and Czech Jews. With an astonishing lack of moral sense and compassion, the King was "glad to think that steps are being taken to prevent these people leaving their country of origin."


Jewish rights erased by 1939 UK White Paper?

Released on May 17, 1939: "After ... five years, no further Jewish immigration will be permitted unless the Arabs of Palestine are prepared to acquiesce in it." This was the crux of a White Paper entitled Palestine: Statement of Policy. Also promised was "establishment within ten years of an independent Palestine State." This radically new direction was driven by the 1936-1939 revolt of the Arabs of Palestine and also by sense of impending war with Germany.

In addition, the White Paper was significantly a product of enduring British belief in Pan-Arab nationalism. This was an ideology that the British had themselves sponsored during the First World War as propaganda to help defeat the Ottoman Turks. But more often than not, the British themselves genuinely believed in the existence and rights of the great Arab People. This particular UK perspective partly explains why the White Paper was discreetly negotiated, not with the leaders of the rebellious Arabs of Palestine, but rather with the neighboring Arab countries, i.e. with the British protégé Prince Abdullah (Transjordan) and the newly independent Arab States of Iraq, Egypt and Saudi Arabia.

Some members of the Permanent Mandates Commission thought those foreign governments had no right to interfere in Palestine. Nonetheless, the UK Cabinet was by April 1939 hellbent to make a deal with "the Arabs" writ large. Specifically, the British hoped that pleasing the Arab States with regard to Palestine might be an effective way: firstly, to win the support of the Muslim world if war came with Germany; and secondly, to get the Arabs of Palestine to end their rebellion. To the point, on April 11, 1939, the British Ambassador in Cairo had reported that the Egyptian "Prime Minister said that tranquillity could be restored at once in Palestine if [Jewish] immigration were stopped forthwith for a definite period."

The resulting formula was immediately understood as signaling an early end to Jewish immigration -- leaving local Jews a permanent minority, always at the mercy of an intolerant Arab majority. Thus, longtime Zionist leader Chaim Weizmann saw this new British policy as "a death sentence for the Jewish People." On April 18, 1939, Prime Minister Neville Chamberlain received Weizmann's warning:
The proposed liquidation of the mandate and the establishment of an independent Palestine state, coupled with reduction of the Jewish population to one-third of the total and with restriction of the area of Jewish settlement to a small sector of the country, are viewed as destruction of Jewish hopes and surrender of the Jewish community of Palestine to the rule of the Arab junta responsible for the [1936-1939] terrorist campaign. Adoption of these proposals is regarded as tantamount to the establishment of a Jewish ghetto in a small corner of the country. Jews are determined to make the supreme sacrifice rather than to submit to such a regime.
During the May 23, 1939 debate in the House of Commons, Conservative Party back bencher Winston Churchill stood with the opposition parties in vigorously rejecting the Conservative government's White Paper. Churchill emphasized that the UK had made a solemn promise to world Jewry -- namely, to the Jewish People globally -- that Jews would be able to settle in Palestine. He said the UK as Mandatory Power was entitled to regulate entry but had no right to terminate Jewish immigration:
What sort of National Home is offered to the Jews of the world when we are asked to declare that in five years' time the door of that home is to be shut and barred in their faces? [...] After that the Arab majority, twice as numerous as the Jews, will have control, and all further Jewish immigration will be subject to their acquiescence, which is only another way of saying that it will be on sufferance. What is that but the destruction of the Balfour Declaration? What is that but a breach of faith? What is it but a one-sided denunciation... of an engagement?
By contrast, Chamberlain thought looming war with Germany urgently argued for favoring Arabs both locally and generally in order to win the support of Muslims everywhere, including in British India. Chamberlain had already confided this motive to Cabinet on April 20, 1939:
We are now compelled to consider the Palestine problem mainly from the point of view of its effects on the international situation. It is of immense importance, as Lord Chatfield [Minister for Defence Coordination] has pointed out, to have the Moslem world with us. If we must offend one side, let us offend the Jews rather than the Arabs.
This was calculation of perceived national interest, but also a choice facilitated by prejudice, as Chamberlain revealed in a July 1939 letter to one of his sisters: "No doubt the Jews aren't a lovable people; I don't care about them myself."


1939: a Jewish right to migrate to Palestine!

Aware of the worldwide Jewish refugee crisis, the Permanent Mandates Commission had every humanitarian incentive to refuse to accommodate UK convenience and prejudice. In June 1939, the Commission unanimously concluded: "The policy set out in the White Paper was not in accordance with the interpretation which, in agreement with the mandatory Power and the Council, the Commission had always placed upon the Palestine mandate." Moreover, the Commission majority stubbornly refused to concede that consistent with the Mandate's explicit terms and its authors' intentions could be the White Paper proposals likely to lead to early termination of Jewish rights of entry and settlement.


USA Supreme Court Justice Louis Brandeis
believed Jews had a legal right to migrate to Western Palestine
by virtue of the terms of the League of Nations Mandate.

A concurring legal assessment came from famed USA jurist Louis Brandeis who repeatedly discussed Jewish migration to Western Palestine with President Franklin Roosevelt from March to May 1939. Less than six months after retiring from the Supreme Court, Brandeis shared (July 31, 1939) with some fellow Zionists his shrewd prediction that Jews would continue going to Western Palestine despite the UK White Paper. Asked if such Jewish migration would be "illegal," Brandeis replied:
The Jewish People consider it legal in view of the fact that any attempt to curtail immigration is in violation of the terms of the Mandate; it may be considered illegal by Great Britain but we Jews consider it to be legal.

Rights of entry and settlement post WW2

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

The bitter controversy over Jewish entry prompted creation of the 1946 Anglo-American Committee of Inquiry Regarding the Problems of European Jewry and Palestine. Releasing its report on April 30, 1946, USA President Harry Truman specifically supported recommendations for immediate admission of 100,000 Jewish refugees and for abandonment of the 1939 UK White Paper's core principle that further Jewish entry would depend upon approval by the Arabs of Western Palestine:
I am also pleased that the Committee recommends in effect the abrogation of the White Paper of 1939 including existing restrictions on immigration and land acquisition to permit the further development of the Jewish National Home.
Despite this clear message from President Truman, UK Prime Minister Clement Attlee stubbornly refused to implement the Committee's humanitarian recommendations. On October 10, 1946, Truman forthrightly reminded Attlee that it had been more than a year since Truman had first called for immediate admission of 100,000 Jewish refugees. To this humanitarian plea, the President added legal argument:
In our view the development of the Jewish National Home has no meaning in the absence of Jewish immigration and settlement on the land as contemplated in the Mandate. We therefore feel that the implementation of the Mandate, as well as the humanitarian considerations mentioned above, call for immediate and substantial immigration into Palestine.
Representative of the UK's contrary view was a letter to USA Secretary of State George C. Marshall from British Foreign Secretary Ernest Bevin (June 27, 1947). This registered:
grave concern at the persistent and successful attempts of Jewish organisations to send Jewish illegal immigrants to Palestine from various European countries... My colleagues and I feel very strongly that the organisers of this traffic are ... endangering the peace and security of the Middle East...
Such a powerful indictment matched ugly British enforcement to prevent Jews from entering Western Palestine. Jews replied with clear affirmation of the Jewish People's rights of entry and settlement via persistent migration that made newspaper headlines and heightened international support. From 1945 to 1948, more than 80,000 Jews were able to successfully enter in full defiance of British jurisdiction, though some other Jews came with UK authorization.


Exercising aboriginal rights of entry and settlement
in defiance of British jurisdiction,
more than 80,000 Jews entered Western Palestine,
both by land and sea, from 1945 to 1948.



UK pushed Arabs and Jews to war?

After the First World War, the international decision to create "a national home for the Jewish People" from the Mediterranean Sea to the Jordan River (Western Palestine) had not displaced local Arabs. Including reduced infant mortality, they had a climbing birth rate; and their numbers were also reinforced by Arab migrants from other parts of the Mideast. According to the 1937 Peel Commission Report, interwar overland migration by Arabs into Western Palestine was significantly undocumented and unregulated. From 1922 until 1948, the Arab population of Western Palestine almost tripled, while the Jewish population there multiplied eight times. At the end of 1946, Jews were about one third of the population of Western Palestine.

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

For example, across 1947 the UK government was struggling with implementation of its fateful decision to divide the territory of British India. This division was an attempt to accommodate Muslims who were around one fifth of the population of the Indian subcontinent. There, partition displaced around fourteen million people and caused circa two million deaths. Nonetheless, the UK government championed partition for the circa 20% Muslim minority of British India, but not for Western Palestine's 33% Jewish minority.

Though understandable in terms of the pro-Arab orientation of the UK's broader Mideast policy, growing British negativity to the local Jewish minority was impractical, because there was a large and increasingly vocal Jewish population in the USA; and in Western Palestine, Jews generated most of the tax revenue, industry and trade. Moreover, in April 1946, the British Joint Intelligence Staff warned Cabinet that, not counting trained women fighters, local Jews could field an 80,000 man army "well-equipped and trained" and with an "excellent system of communications and intelligence." By contrast, then discounted was the military potential of local Arabs who had failed to impress during their failed rebellion of 1936-1939.

In the postwar imperial breakup, the UK government rushed to grant full sovereign independence to the great expanse of Eastern Palestine (June 1946). Eight months later, the UK despaired of ever being able to make a success of the Mandate within the confines of that narrow strip (Western Palestine) that was all that remained after the excision of Transjordan. This new-found impossibility logically flowed from a disingenuous British rereading of the Palestine Mandate. This had originally been intended as establishing a long-term British jurisdiction for gradual development of the national home for the Jewish People. But from May 1939, the UK government finally decided to officially reinterpret the Palestine Mandate as a ten-year transition toward sovereign independence for local Arabs. Moreover, the British also newly argued that local Arabs had an immediate right to forever remain the majority in Western Palestine.


1947 UN proposed heavy Jewish immigration 

In February 1947, Foreign Secretary Bevin said the United Nations would be asked to recommend a solution in the light of a firm UK decision to quickly end its mandatory role. Repeated was UK unwillingness to use British troops or administration to enforce any UN proposal unless accepted by both Arabs and Jews. In this regard, an accurate Palestine Post precis captured the crux of criticism by Soviet Permanent Representative to the United Nations, Andrei Gromyko (November 26, 1947):
The United Kingdom has also failed morally, because she knew -- in fact, it was abundantly clear -- that one could not count on any possible agreement between the Arabs and the Jews. Britain had never shown any true desire fully to cooperate with the United Nations for a solution of the question.
With the UK and some other countries abstaining, more than two thirds of the UN Members then voting in the General Assembly supported the historic partition recommendation (November 29, 1947). This resolution inter alia incorporated an explicit provision reflecting President Truman's persistent call for early Jewish migration on a large scale:
The mandatory Power shall use its best endeavors to ensure that an area situated in the territory of the Jewish State, including a seaport and hinterland adequate to provide facilities for a substantial immigration, shall be evacuated at the earliest possible date and in any event not later than 1 February 1948.
Also included in the UN resolution were companion proposals for the trisection of Western Palestine, no later than October 1, 1948. Specifically suggested was a "Special International Regime for the City of Jerusalem" (corpus separatum), where Jews were the majority of the municipal population. Significantly, this UN recommendation specified that Jews would still be able to take up residence in Jerusalem which was envisioned as one city undivided. According to the UN plan, the remainder of Western Palestine would be partitioned between "the Jewish State" and "the Arab State."


Shouts of "war" sparked Mideast refugees

The first Secretary-General of the Arab League, Abdul Rahman Azzam was interviewed by the newspaper Akhbar al-Yom. The resulting article (October 11, 1947) anticipated the November 29th UN partition recommendation, in relation to which Azzam explicitly promised war:
I personally wish that the Jews do not drive us to this war, as this will be a war of extermination and momentous massacre which will be spoken of like the Tartar massacre or the Crusader wars.
Partition “would, to say the least, result in bloodshed.” This was the prediction or threat which Egyptian Delegate Mohammed Hussein Heykal (November 24, 1947) offered the UN Ad Hoc Committee on Palestine:
If the United Nations decides to amputate a part of Palestine in order to establish a Jewish state, no force on earth could prevent blood from flowing there. Moreover, once such bloodshed has commenced, no force on earth can confine it to the borders of Palestine itself. All the peoples of the Orient would come to the aid of their brothers in Palestine in a race war. If Arab blood is shed in Palestine, Jewish blood will necessarily be shed elsewhere in the Arab world... Would the members be acting in a humanitarian way to place in certain and serious danger a million Jews simply in order to save a hundred thousand in Europe or to satisfy the Zionist dream? The Egyptian delegation is giving the world fair warning.
Reacting to the November 29th adoption of the UN General Assembly resolution recommending partition, Secretary-General Azzam's Cairo speech (December 4, 1947) vowed:
When our nation starts a fight it doesn't look forward to its conclusion. We will start and will not stop until victory is achieved and our enemy has been thrown into the sea.
The November 29th General Assembly Resolution recommending partition was quickly welcomed by Jews; but angrily rejected by Arabs both in Western Palestine and across the Mideast. Pogroms soon hit Jewish communities in several Muslim countries.

Civil unrest began immediately in Western Palestine. There, growing violence gradually became reciprocal, with Jews eventually giving back as much as they got from local Muslim Arabs and armed infiltrators from neighboring Arab countries. British exit was commonly expected to trigger full-scale war. Still, the UK government reiterated determination to withdraw its army and administration by August 1, 1948, later abbreviated to midnight May 14th.

In the interim, the British mostly ignored the General Assembly's November 29, 1947 recommendations, including via continuation of persistent international and local efforts to prevent Jews (especially those fit for military service) from reaching Western Palestine. The UK attitude toward Western Palestine was "irresponsible," wrote Dean Rusk at the USA State Department. On January 26, 1948, Rusk opined: "British noncooperation amounts to a rejection of the Assembly resolution." Rusk's view was later corroborated by the USA Consul General at Jerusalem who on February 9, 1948 reported:
The British continue to be adamant in their refusal to assist in any shape or fashion the implementation of the partition recommendation. Their officials, generally speaking, cannot get out of Palestine too soon. The [British] Police have no sympathy for the Jews, and state freely their opinion that the latter will “collect a packet” from the Arabs once the British relinquish the mandate. Many Police add that in their opinion the Jews have “asked for it.”
Most in Western Palestine dreaded the coming of war. Decisively, local Jews had nowhere else to go; but from late 1947 some Arabs began a sporadic but gradually increasing exodus from Western Palestine to neighboring Arab countries, including Transjordan (Eastern Palestine). Just hours after the British departed, soldiers from several Arab States (May 15, 1948) entered Western Palestine, thus keeping their repeated public promises to wage war.

This underlines the powerful point -- locally and generally, Arabs themselves made the fateful decisions to vociferously reject the 1947 UN proposal for peaceful partition and instead shout "war." Taken together, these two rash Arab choices were the principal, proximate cause for several waves of Mideast refugees, specifically:
  • about 600,000 Arabs constituting most, but not all, of the Arab population that had been living in those parts of Western Palestine that from 1948 came under the Israel government; and
  • about 850,000 Jews from various Muslim and Arab countries, as well as from those parts of Western Palestine that were conquered by the Arab armies.

What if Jews had been defeated?

Genocide is sadly a recurring topic in Jewish history but also historically linked to the tragic fate of other Mideast Peoples like the aboriginal Armenians and Greeks of Anatolia.

Genocide also infamously featured when European-origin populations conquered the aboriginal Peoples of the Americas. There, relentless European invasion was a bitter process that began at the end of the 15th century and persisted into the 20th century. For example, the Sioux were massacred at Wounded Knee, South Dakota, on December 29, 1890. This cruel experience from the Americas was among the reasons why the UN Declaration on the Rights of Indigenous Peoples stipulates: "Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide."

"Genocide" commonly brings to mind the industrial-scale horror of the Nazi extermination machine that killed six million Jews in 1940s Europe. But, broader is the authoritative legal definition that is provided by the 1948 Genocide Convention:
any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.

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

Steeped in Mideast politics was Harry St. John Philby, a convert to Islam who inter alia served as advisor to the Saudi government. In that capacity, Philby confided (1937) to Jewish Agency Chairman David Ben Gurion his expert view: "The hatred of Jews among all Arab peoples [is] tremendous, and one could not rule out a slaughter in which all the Jews of Palestine would be annihilated." In the same year, the Peel Commission Report recorded just such anxieties among local Jews:
What they most fear is a crystallization of the National Home as it is, leaving the Jews in a permanent minority in Palestine, exposed to the possibility of Arab domination, or even, in certain not inconceivable circumstances, of suffering the same fate that befell the Greeks in Smyrna or the [Christian] Assyrians in 'Iraq.

With an eye to the Nazi-perpetrated Holocaust that had just come to an end (1945) in Europe, some Arabs both locally and generally saw military force as "the final solution" to the Jewish question in Western Palestine. Such belief in dealing with local Jews with violence -- even genocide, if possible -- was significantly inspired by the Grand Mufti of Jerusalem, Haj Amin al-Husseini who was the most famous Mideast Muslim leader during the Second World War.

Wiener Illustrierte, Jan. 1944
Grand Mufti of Jerusalem, Haj Amin al-Husseini
saluting Muslims of the Nazi Waffen SS in 1943.


Haj Amin had earlier instigated the 1920 Jerusalem pogrom, the 1929 Hebron massacre, and the 1936-1939 Arab rising against the British and the Jews. Later, Haj Amin went to Iraq, where he helped foment the farhud (Arabic: الفرهود‎‎) that in June 1941 ruthlessly decimated the age-old Jewish community of Baghdad.

The Grand Mufti met with Hitler in Berlin, November 28, 1941.

From late 1941 in Nazi Germany, Haj Amin used personal contacts and radio broadcasts to persistently encourage Germans and Muslims to kill Jews. He repeatedly called for Nazi aerial bombardment of Tel Aviv. Meeting with Hitler in Berlin on November 28, 1941, Haj Amin sought assurances that Mideast Jews would eventually be killed as part of Hitler's plans for global Holocaust.

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

Haj Amin al-Husseini with Heinrich Himmler (1943).

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

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

Were the Jews of Western Palestine slated to go the same way as the aboriginal Armenians and Greeks of Anatolia? As May 1948 approached, there was "serious doubt as to whether the Jewish people in Palestine could themselves control the situation." This was certainly the influential view of George F. Kennan's Policy Planning Staff in the USA State Department, which (January 19, 1948) reckoned:
Without substantial external assistance the proposed Jewish State cannot be established or exist... It is improbable that the Jewish State could survive over any considerable period of time in the face of the combined assistance which would be forthcoming for the Arabs in Palestine from the Arab States, and in lesser measure from their Moslem neighbors.
Subsequent history proved Kennan to be wrong about indigenous Jewish capacity to create and sustain a nation-State in part of the aboriginal homeland of the Jewish People. But, had Kennan been right, Jews there would probably have been annihilated or culled via pogrom and ethnic cleansing.

Is this grim assessment just "rearview" speculation? No, because on April 4, 1948, USA Defense Secretary James Forrestal was told by the State Department (Dean Rusk) that, when the British would leave Western Palestine, likely was outbreak there of "widespread, violent civil war" that might result in the "slaughter of thousands and perhaps hundreds of thousands of Jewish residents." In the event, things turned out rather differently, mostly because nascent Israel was able to overcome the long-promised Arab aggression.


Local Christians: the first "Palestinians"?

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

By contrast, for reasons already explained, focus on a remembered "Palestine" came more readily to the Holy Land's several Christian minorities. By circa 1900, local Christians were perhaps no greater in number than the Jews. For more than a millennium and a-half, the old Mideast Christian sects there had been infamous for their bitter hatred of Jews. For example, after the 7th-century Muslim conquest of Byzantine Palestine, Christian chroniclers shifted blame to Jews for persecutions of Christians perpetrated by Muslims there.

Historically characteristic of Mideast Muslim governance was the ethno-religious communal autonomy of the Ottoman millet system. Whatever its advantages, the millet system contributed to sustaining stubborn inter se rivalries and resentments among the non-Muslim minorities subject to the sultan. Such competition and discrimination facilitated Ottoman "divide and rule." This traditional Ottoman statecraft was well understood by James Finn who was British Consul at Jerusalem from 1845 to 1863. In this context, Finn believed that: "Oriental Christians have so great a prejudice and superstitious hatred of Jews, that they would not on any account have dealings with them." A half-century later, Finn's eyewitness testimony was corroborated by the firsthand account in Yusuf Pasha's 1899 letter:
In Palestine, there are also fanatical Christians, especially among the Orthodox and the Catholics. Because they think that Palestine ought to belong exclusively to them, they are very jealous of the progress made by the Jews in their ancestral land. Thus, they never miss a chance to incite the hatred of Muslims against the Jews.
The enduring antisemitism of these old Mideast Christian sects was fueled by dogmatic religious prejudice, perhaps enhanced by continuing economic rivalry. Thus, it is entirely understandable that Arabic-speaking Christians founded two well-known, anti-Zionist newspapers  الكرمل Al-Karmil  (Haifa, 1908) and فلسطين  Falastin (Jaffa, 1911). Those publications perhaps planted some seeds for the post-1967 birth of the specifically "Palestinian" People. But in the short term, those newspapers dovetailed with the fervent anti-Zionism found among local Christians by the USA King-Crane Commission in 1919 and by the UK Peel Commission in 1937.


19th-century Muslim Arabs "Palestinian"?

Local Muslim Arabs were not generally seen as "Palestinian" by their neighbors or by the increasing number of foreigners who visited the Holy Land. For example, 19th-century European and American travelers sometimes spoke about "a land without a People." This remark was an informed assessment that the few hundred thousand inhabitants of the Holy Land then lacked a distinct, local national identity; but rather had ethno-religious self-identifications similar or identical to those of the adjacent populations, also under Ottoman rule.

UK statesman Lord Shaftesbury
traveled in the Holy Land
which he later described (1853)
as "a country without a nation."

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

For example, Yusuf Pasha's 1899 letter had much to say about the great Jewish People, the Ottoman Empire, Turks and Arabs; and also about Muslims, Christians and Jews in Palestine and beyond. But his 1899 letter said nothing about a distinct Palestinian People, exactly because at that time no Muslim Arab population generally self-identified as such.

In the late 19th century, most local Muslims saw "Palestine" as a foreign geographical reference with neither historical resonance nor practical advantage. Longstanding self-identifications as "Muslim" and "Arab" were commonly preferred due to their very powerful cultural content. Then, relatively unattractive to most local Muslims as focus for their national self-identification was the mere toponym "Palestine." Local Muslims came to generally self-identify as the distinct "Palestinian" People only after the 1967 Six-Day War, i.e. a full twenty years after satisfaction of three necessary preconditions:
  • 1917-1922, the political rebirth of the name "Palestine";
  • 1946, the excision of Eastern Palestine (Transjordan) from the British Mandate; and
  • 1948, the Jews opt to call their new country "Israel."

1st precondition for a "Palestinian" People: Palestine reborn


A glance at a 19th-century Ottoman-Turkish dictionary or at Yusuf Pasha's 1899 letter suffices to show that Mideast Muslims were then familiar with the geographical expression "Palestine." However, they generally perceived it to be an indication that was historically Christian, and in usage principally European or Western. More to the point, legally, administratively and politically, there was factually then no State, province or sub-provincial unit called or coextensive with "Palestine." Nor had any such jurisdiction existed for many centuries.

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

History teaches that a People can lend its name to a country. For example, the appellation "England" derives from the Angles, one of the Germanic tribes that settled there during the 5th and 6th centuries CE. A new People can also form by taking its name from an existing country.

For example, about a century after the 1867 creation of the Canadian Province of Quebec, the French-speaking inhabitants there suddenly found it expedient to generally self-identify as Québécois. With significant political implications, the newborn Québécois People is a subset of the larger French-Canadian People that still has some important populations in other places like the Canadian Provinces of New Brunswick, Ontario and Manitoba; and also in the New England States of the USA. This Québécois comparison confirms why local Muslim Arabs could not generally self-identify as "Palestinian" until sometime after the foundation of a new British jurisdiction called "Palestine."

The Québécois comparison also teaches that the birth of a new named People can be triggered by the specific socio-political logic of a particular time and place. In the 1960s, the Québécois deliberately stopped being French-Canadian, mostly to better position themselves for a sustained nationalist attempt to secede from Canada. In the same way and around the same time, most local Arabs purposely transformed themselves into "Palestinians," principally to help their fight against Israel. In neither case does the obvious political motivation invalidate the authenticity of the ethnogenesis. A population is free to generally self-identify as it chooses, and for whatever reasons.

 
2nd precondition for a "Palestinian" People: East Palestine cut from British Mandate

In April 1946 the last Assembly of the League of Nations approved a March UK treaty that on entry into force in June cut from the Mandate's territory all of Eastern Palestine. This then became an independent Arab State called "the Hashemite Kingdom of Transjordan."

This 1946 change enhanced the "Palestine" appellation's potential attraction, because for the first time "the Palestine Mandate" now unambiguously referred to territory that was fully coincident with the "national home for the Jewish People" (Western Palestine). This smaller Palestine Mandate from the Mediterranean Sea to the Jordan River literally existed for less than two years, i.e. between the births respectively in June 1946 of the Kingdom of Transjordan and in May 1948 of the State of Israel.

From 1922 to 1946, the concept of greater Palestine offered little to help local Arabs fight their war against the Jews; while the status of that smaller Palestine from the Mediterranean Sea to the Jordan River (Western Palestine) was still far too ambiguous to invite any population to generally self-identify by calling itself "Palestinian." For example, during the interwar period:
  • Transjordan was explicitly included in (or excluded from) the various treaties which the UK made on behalf of Palestine.
  • The British High Commissioner for Palestine was also empowered to advise the Transjordan Administration, in relation to which he "retained such ultimate powers as the continuance of the Mandate with its international obligations implied."
  • The UK "Palestine Command" was under a single British General Officer Commanding in Palestine and Transjordan.
  • British forces in Transjordan were partly funded by the Palestine government with local revenue that came mostly from Jewish taxpayers.
  • A few Jews served in the Transjordan Frontier Force which answered to the British High Commissioner for Palestine and had been created under legislation of Palestine.
  • The Palestine pound was also the official currency of Transjordan.
  • The Palestine Railways Administration also operated lines in Transjordan.
  • At Palestinian ports and harbors, the trade and commerce of Transjordan enjoyed facilities equal to that of Palestine. 
  • Customs barriers were not to be erected at the Jordan River.
  • Nothing prevented Arabs from moving freely in either direction, because the Jordan River was fordable most of the year and, even at official crossing points, there was no need for Arabs to show a passport or identity document.

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

Precisely this reasonable expedient was proposed by the UK Peel Commission in 1937. Then recommended was trisection of Western Palestine. A slice of territory from Jerusalem to the sea near Jaffa was imagined as remaining under British administration. The suggested Jewish State would have extended in a coastal strip from Rehovot to the border with Lebanon, but also thickening north of Afula to take up all the territory abutting Lebanon and Syria. The imagined "Arab State" would have consisted of both Transjordan (Eastern Palestine) and the Arab-inhabited parts of the "national home for the Jewish People" (Western Palestine). This proposal was then reluctantly accepted by Jews, but specifically rejected by Arabs both locally and generally.


3rd precondition for a "Palestinian" People: the name "Israel"

Until the afternoon of May 14, 1948, nobody in Washington knew the name of "the new Jewish state." As indicated below, the name "State of Israel" had to be added at the last moment as a handwritten correction to the typed text of President Truman's statement recognizing the provisional government of the nascent country.

News that "Israel" was to be the name for the newborn "Jewish state"
prompted last-minute alteration of President Truman's May 14, 1948
statement recognizing "the provisional government as
the de facto authority of the new State of Israel."








For centuries "Palestine" had been a largely Christian term which Jews sometimes used in a mostly secular context. However, during the Mandate period (1922-1948), local Jews were also internationally regarded as "Palestinian" and the adjective was frequently used as synonym for "Jewish." For example, The Palestine Post was a prominent English-language newspaper that was the voice of the "national home for the Jewish People" and the Palestine Symphony Orchestra had only Jewish musicians.

Thus, the name "Palestine" and many other specific features of the Mandate regime were still too closely associated with Jews and Zionism to have then been an attractive focus for the national self-identification of most local Muslims. This explains why they did not generally self-identify using the geographic indication "Palestinian" until approximately twenty years after May 1948, when Jews had abruptly abandoned the "Palestine" trademark.

"Palestinians" championed before 1967 ?

Arab leaders were themselves slow to recognize the existence of a distinct Palestinian People with its own right to self-determination. For example, no such Palestinian People features in the agreement which Chaim Weizmann concluded (London, January 3, 1919) with Prince Feisal as principal Arab leader at the Paris Peace Conference. To the contrary, this document pledges cooperation between greater Palestine imagined as Jewish "territory" and a proposed large Arab State that Feisal then hoped would include the Hejaz, Syria and some other parts of the Mideast. Pertinent to millennial Jewish rights of entry and settlement, the Weizmann-Feisal agreement inter alia stipulates:
All necessary measures shall be taken to encourage and stimulate immigration of Jews into Palestine on a large scale, and as quickly as possible to settle Jewish immigrants upon the land through closer settlement and intensive cultivation of the soil.

Chaim Weizmann (left) and Prince Feisal (right) in 1918.
On January 3, 1919, they pledged cooperation between
an expected great Arab State and
historic Palestine imagined as Jewish "territory."

There is significantly no word about any distinct Palestinian People in the strongly anti-Zionist statement for the Paris Peace Conference of the General Syrian Congress, meeting in Damascus. In that important resolution (July 2, 1919), the only "country" championed is "our country Syria." The toponym "Palestine" appears twice, but is explicitly defined as nothing more than Syria's "Southern Zone" or "the southern part of Syria, known as Palestine." As for the general reference to "the people of the country," they are decisively not Palestinians but rather "our Arab people" and "Arabs inhabiting the Syrian area."

Nor was a sovereign Palestine for a distinct Palestinian People the preference of the most famous Mideast Muslim leader from the 1920s until the late 1940s. Grand Mufti of Jerusalem, Haj Amin al-Husseini had been an early fan of Adolf Hitler. Supremely confident of Axis victory in the Second World War, Haj Amin in October 1941 negotiated in Rome with the Italian Foreign Ministry and Benito Mussolini. Haj Amin then promised close cooperation with Fascist Italy and Nazi Germany "on the sole condition that they recognize in principle the unity, independence, and sovereignty of an Arab state of a Fascist nature, including Iraq, Syria, Palestine, and Trans-Jordan."

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


The Six-Day War: a Mideast earthquake?
 
Egyptian President Gamal Abdel Nasser's Pan-Arabism was one of the principal victims of the Mideast war that erupted on June 5, 1967. Israel's quick victory over several Arab States discredited Pan-Arabism and significantly weakened the drive for Pan-Arab identity. For Egypt, this meant additional focus on its own national self-interest that eventually led to the 1979 peace treaty with Israel, a bilateral agreement that was condemned across the Arab Mideast.

For Arabs of Palestine, the eclipse of Pan-Arabism was reinforced by Israel's conquest of Gaza, East Jerusalem, and the West Bank (Judea and Samaria). This direct Israel presence powerfully enhanced a distinct Palestinian nationalism that had been germinating slowly for about five decades.

After June 1967, local Arabs were far more likely to see themselves as politically distinct from the Arabs of Egypt and Jordan. Now spearheading their own irredentist struggle, local Arabs had fresh incentive to generally self-identify as "Palestinian."  Moreover, their new leader Yasser Arafat became an international celebrity and the Palestine Liberation Organization emerged as a major player in Mideast politics.

The additional self-identification as Palestinian was all the more attractive, because it effectively expressed the stubborn determination of local Arabs to eventually master all the territory that early 20th-century declarations, resolutions and treaties had explicitly recognized as venue for the "national home for the Jewish People" (Western Palestine).

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


Reconciliation of rights

This analysis neither denies the current existence of a distinct "Palestinian" People nor suggests that this newborn Palestinian People is today without rights, including claims to self-determination, independence and territory.

Rather, there are now "claims of right" on all sides. Urgently required is a peaceful process that effects something like a legal or juridical reconciliation of the subsequent rights of the newly-emerged Palestinian People with the prior rights of the age-old Jewish People, including Jewish self-determination rights and longstanding Jewish aboriginal and treaty rights.

Such a reconciliation of rights would have to sincerely respect the honor and dignity of both Peoples. For example, the flawed notion that the newly minted Palestinians might be a "fake" or "contrived" People would not contribute to the realization of a reconciliation of respective rights. Nor does it help to feverishly concoct biased legal interpretations that are regularly applied to Israel but to no other country, in the same or similar circumstances.

The experience of twenty-six centuries teaches that prospects for peace cannot be enhanced by trying to shame the aboriginal Jewish People in its ancestral homeland. Specifically, neither truth nor justice is served by tarring Jewish settlement west of the Jordan River as "a flagrant violation under international law." Whatever the source, such smears mostly fuel the conflict by providing ideological justification for intransigence, diplomatic unilateralism, and further fighting.

By contrast, a process for something like a legal or juridical reconciliation of respective rights must be peaceful, inter alia, because the Jewish People's aboriginal and human rights explicitly include "the right to life." Both individually and collectively, Jews have a strong moral and legal right to live safely in Eretz Israel (ארץ ישראל), including throughout Western Palestine which was clearly designated as venue for "a national home for the Jewish People" in treaties from 1922 to 1924.

This significantly means that the nascent Palestinian People now lacks the right to wage a "war of national liberation" against the aboriginal Jewish People, which is legitimately sited between the Mediterranean Sea and the Jordan River (Western Palestine). There, the Jewish People lives "as of right and not on sufferance," as said by Winston Churchill in 1922.

Speaking for the UK government in 1922
Winston Churchill said the Jewish People is in Western Palestine
"as of right and not on sufferance."

Sketching a principled peace

The political and legal doctrine of the self-determination of Peoples does not require every People to have its own independent State. But, government rests on the consent of the governed, meaning that in principle one People lacks a right to rule over another People. Therefore, a peaceful process for something like a legal or juridical reconciliation of rights would likely respect the doctrine of the self-determination of Peoples which is truly one of the key elements of public international law.

For example, a full-and-final peace treaty agreed today would probably have to waive most Jewish aboriginal and treaty rights with respect to land now mostly inhabited by Palestinians, wishing to live in a new Palestinian State. By the same principle, such a treaty would probably have to include within Israel land now mostly inhabited by Jews. If so, there would be no moral or legal requirement to compensate a new Palestinian State for Israel's retention of some territory beyond the 1949 armistice demarcation lines (ADL):
  • Firstly, the ADL were part of the defunct 1949 Egyptian and Jordanian armistice agreements, both of which clearly stipulated that the ADL were without prejudice to a final political settlement.
  • Secondly, no Arab government has ever recognized the ADL as the legitimate and permanent borders of the Jewish State.
  • Thirdly, the final peace treaties with Egypt (1979) and Jordan (1994) do not specify the ADL as the international border, but instead explicitly locate the frontier, respectively -- to the west, at the 1906 boundary with Egyptian Sinai; and to the east, at the Jordan River.
  • Fourthly, the Jewish People's aboriginal, treaty and self-determination rights are juridically so fundamental that they probably outweigh anything that might be said on behalf of the current legal status of the ADL.

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

The Jewish People's aboriginal, treaty and self-determination rights combine to argue for the inclusion in an agreed, full-and-final peace treaty of significant safeguards to ensure that a new Palestinian State could never be a stepping stone to the destruction of Israel. This "safeguards" advice speaks not only politically in terms of national security, but also sounds powerfully in morality and natural and international law.

The moral and legal foundations for recommending such a prudential precondition partly refer to the right of self-defense which is a key principle of morality and of almost all legal systems. Both in 1948 and 1967, the Hashemite Kingdom of Jordan volunteered to initiate an armed attack from the east. Moreover, during the 20th and 21st centuries, major terrorist operations were repeatedly launched both from Gaza and the West Bank (Judea and Samaria).

Including such safeguards in an agreed, full-and-final peace treaty is also supported by an argument offered by the famous 20th-century legal philosopher John Rawls. The Law of Peoples (1993) says a nascent People's right to national self-determination is neither absolute nor sufficient to justify a morally repugnant purpose:
The right to independence, and equally the right to self-determination, hold only within certain limits... Thus, no people has the right to self-determination, or a right to secession, at the expense of subjugating another people.
If so, even more compelling is the stronger argument that no People has the right to self-determination at the expense of annihilating another People. Thus, Rawls's logic leads us to the conclusion that it would be immoral, illicit and illegal for the Palestinians to cynically exploit a new right to independence as a way to destroy the State of Israel, and to eliminate the aboriginal Jewish People which has been there legitimately for at least twenty-six centuries.

For these reasons -- an agreed, full-and-final peace treaty would probably need to have a number of major stipulations for Jewish security. Such far-reaching safety measures should probably embrace both transitional and enduring military provisions -- and even more so, because the Jewish People remains a vulnerable aboriginal minority in the blood-soaked Arab and Muslim Mideast. There, perennially "just around the corner" are pogrom, terror, war and genocide.

By companion logic, as a key test of good faith and finality, a principled agreement ought also to feature a demographic article unequivocally recognizing the legitimacy and permanence of Israel as "the" Jewish State, i.e. as the political expression of the self-determination of the Jewish People in a part of its aboriginal homeland.


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