British policy towards Palestine for the past 100 years has been informed by two narratives, two visions. The first is the vision of a Jewish state in Palestine, captured in the Balfour Declaration of 1917. The second is the vision of a democratic independent state in Palestine where human, political and religious freedoms were to prevail. This vision is captured in the “sacred trust” for Palestine accepted by Britain in 1920 in the [League of Nations] Mandate for Palestine.
As the International Court of Justice has stressed, the concept of sacred trust must be interpreted as requiring effect to be given to the principle of self-determination leading to independence.
First a few words about the Balfour Declaration. In 1917 the Foreign Secretary Arthur Balfour wrote a letter to the wealthy British banker and Zionist Lord Rothschild, in which he declared :
“His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of non-Jewish communities in Palestine…”
From the outset this Declaration was controversial. After all, in 1917 there were 690,000 Arabs (Christian and Muslim) compared with 59,000 Jews in Palestine and it seemed difficult even then to see how a small minority could be given preferential treatment.
The Balfour Declaration was seen largely as a means for diverting Jewish immigration from Britain to Palestine and was issued by a man with known anti-Semitic views. This led the most prominent British Jewish politician of the day, Sir Edwin Montagu, to oppose it vigorously. Later, when the language of the Balfour Declaration was included in the Mandate for Palestine, the House of Lords voted to reject this in a motion passed by 60 to 29, on the ground that the Declaration was opposed to the “wishes of the great majority of the people of Palestine”.
The other vision for Palestine was to be found in the Hussein-McMahon correspondence of 1915, promising an independent Palestine, the declaration of General Allenby when he liberated Jerusalem in December 1917 and promised liberation for all the peoples of Palestine, and the Mandate for Palestine itself. This brings me to the “sacred trust” which is contained in the Mandate.
The mandate for Palestine and the mandate system
The Mandate system of the League of Nations was proclaimed in Article 22(1) of the Covenant of the League of 1920 which provided:
“To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization and that securities for the performance of this trust should be embodied in this Covenant.”
Advanced nations were entrusted with the task of administering these territories, to be known as Mandates, in order to give effect to this “sacred trust”. They were, however, to be accountable to the Council of the League of Nations for their administration of the sacred trust. A distinction was made between the developed former colonies of the Turkish Empire – Iraq, Palestine and Transjordan, Syria and Lebanon and the less developed former colonies of Germany in Africa and the Pacific Ocean. The former colonies of the Turkish Empire, designated as “‘A’ Mandates”, were described in Article 22(4) of the Covenant as having
“reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.”
The League of Nations entered into Mandate agreements with the Mandatory Powers. Great Britain was granted the Mandate for Palestine whereby it entered into such an agreement in respect of Palestine and Transjordan.
The Mandate for Palestine took account of the controversial Balfour Declaration1 in its Preamble which declared that the Mandatory should be responsible for putting into effect the Balfour Declaration
“in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of non-Jewish communities in Palestine”.
The Mandate gave full power of legislation and administration to Great Britain. The Mandatory was required to develop self-governing institutions, safeguard the civil and religious rights of all the inhabitants, encourage local autonomy, ensure complete freedom of conscience and worship and prohibit any discrimination of any kind between the inhabitants on grounds of race, religion or language.
The administration of Palestine was controversial and unhappy. Conflict and violence between the Jewish and Arab communities in Palestine characterized the inter-war years and Britain found it difficult to administer the territory in a fair and even-handed manner.2 Britain did, however, succeed in producing an Anglophile Palestinian elite instilled with the best British values and committed to the creation of a democratic Palestine on the termination of the Mandate.
On 26 June 1945 the Charter of the United Nations was signed. A new international Trusteeship System was created by the Charter which was to apply to “territories now held under mandate”.3 Both the United Nations and the League of Nations anticipated that mandated territories would be placed under trusteeship but no obligation was imposed on mandatory states to do this.
The status of the Mandates after the demise of the League of Nations was raised in respect of the Mandate for South West Africa that had been conferred on South Africa. In 1950 the International Court of Justice gave an advisory opinion on the International Status of South West Africa.4
In its Opinion the Court made a number of pronouncements relating to the mandates system in general which are equally applicable to the Mandate for Palestine. Under the mandates system, the Court declared that “two principles were considered to be of paramount importance: the principle of non-annexation and the principle that the well-being and development of such peoples form ‘a sacred trust of civilization’.”5 The Mandates were created “in the interest of the inhabitants of the territory, and of humanity in general, as an international institution with an international object – a sacred trust of civilization.”6 The fulfilment of the sacred trust did not depend upon the existence of the League of Nations. In its dissolution resolution the Assembly of the League said that the League’s functions with respect to mandated territories would come to an end but it “did not say that the Mandates themselves came to an end”.7
In 1971 the International Court of Justice handed down another advisory opinion on South West Africa/Namibia – Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)8 – in which it held that the Mandate for South West Africa had been lawfully terminated by the United Nations.
As in 1950, the Court made a number of pronouncements of a general nature on the sacred trust that applied to all mandated territories. It made it clear that the continuance of an institution such as a Mandate was not inseparably linked with the League of Nations and “cannot be presumed to lapse before the achievement of its purpose”.9 The Court declared that the concept of the sacred trust had evolved in accordance with developments in international law and that
“These developments leave little doubt that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned”.10
Palestine after 1945
On the demise of the League of Nations in 1946 Britain, as the mandatory power, had two options. Either it could grant independence to Palestine, as had been done in the case of all the other A Class Mandates – Iraq, Syria, Lebanon and Jordan – or it could place Palestine under trusteeship. Sectarian conflict made independence impossible. Britain then proposed trusteeship for a five year period. In so doing Britain explained:
“throughout the period of the Mandatory rule in Palestine it has been the object of His Majesty’s government to lay the foundations for an independent Palestinian state in which Arabs and Jews would enjoy equal rights.”
When this proposal was rejected by both Arabs and Jews, Britain asked the United Nations to make recommendations on the future of Palestine.
On 29 November 1947 the General Assembly adopted Resolution 181(II) by a vote of 33 (including France, USA and USSR) to 13 (including all Arab States) with 10 abstentions (including China and the UK), which provided for the partition of Palestine into an Arab and a Jewish state, an economic union between them and the internationalisation of Jerusalem under United Nations administration. The Mandate was to terminate on the withdrawal of Britain and not later than 1 August 1948.
Resolution 181(II) was accepted by the Zionist League on behalf of the Jewish community but was rejected by the Arab community of Palestine and by Arab States. This was not surprising as the partition plan offered the Jewish community comprising 33 per cent of the population of Palestine 57 per cent of the land and 84 per cent of the cultivatable land. According to Ernest Bevin, Britain’s Foreign Minister, it was “manifestly unfair to the Arabs”.11
The legality of Resolution 181(II) was and still is debated hotly by international lawyers.12 Moreover, it was clearly impossible to implement it in the face of Arab opposition. Attention then returned to the possibility of a trusteeship agreement and on 20 April 1948 the US introduced the text of a draft Trusteeship Agreement for Palestine before the General Assembly which envisaged a single Palestinian state.13 Time was, however, running out as the United Kingdom had announced that it would evacuate its administration at midnight on 14 May.
Thus, at midnight on 14 May 1948 Israel declared its independence, invoking Resolution 181 (II) in support. From the outset, however, it was clear that the new state of Israel had no intention of abiding by the terms of the Resolution. The new state was recognised immediately by President Truman of the United States, much to the surprise and consternation of the State Department, which had warned against premature recognition.14 Two days later Israel was recognised by the Soviet Union.
Israel’s declaration of independence was followed by hostilities between the new state and the Arab states of Egypt, Jordan, Syria and Lebanon, which were brought to an end by the Armistice Agreements of 1949, and which resulted in the state of Israel occupying much more of Palestine than was envisaged by Resolution 181 (II). On 11 May 1949 Israel was admitted to the United Nations, with Britain abstaining in both the Security Council and the General Assembly.
In 1967 Israel fought the Six-Day war against its Arab neighbours. The jury is still out on the question whether Israel acted in self-defence or as an aggressor but for the present study a decision on this subject is unnecessary. What matters is that Israel occupied the West Bank, East Jerusalem and Gaza and continues to occupy them. In 1980 Israel purported to annex East Jerusalem, but this annexation was condemned as invalid by the Security Council of the United Nations.15 In 1967 the Security Council adopted resolution 242 unanimously, which emphasised the “inadmissibility of the acquisition of territory by war” and affirmed that a just and lasting peace required the “withdrawal of Israel armed forces from territories occupied in the recent conflict”.16
In the early 1990s Israel and the Palestinian Liberation Organisation (PLO) entered into a series of bilateral agreements known as the Oslo Accords which provided for the establishment of a Palestinian Interim Self-Government Authority (PA) “for a transitional period not exceeding five years, leading to a permanent settlement based on Security Council Resolutions 242 and 338.”17 The negotiations that preceded these Accords, the Accords themselves and the subsequent negotiations aimed at implementation of the Accords were characterised by an absence of lawyers and respect for international law. The Israelis, backed by the Americans, refused to be guided by international law because legal norms were not useful and disputes were to be settled on more realistic grounds.18 Needless to add, the sacred trust of Article 22 of the League Covenant, premised on self-determination with its ultimate goal of independence, received no mention in the Oslo Accords or related negotiations. As far as the Israelis and Americans were concerned real politik had replaced the sacred trust.
The breakdown of negotiations resulted in the Second Intifada, an uprising of the Palestinian people against the Israeli occupation. This led Israel, in 2002, to embark upon the construction of a wall, partly in Palestinian territory, allegedly for security reasons but in reality to incorporate Israeli settlements in the West Bank into Israel. The response of the UN General Assembly was to request the International Court of Justice to give an advisory opinion on “the legal consequences arising from the construction of the wall being built by Israel, the Occupying Power, in the Occupied Palestinian Territory… considering the rules and principles of international law…”19
On 9 July 2004 the International Court of Justice handed down its Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory20 in which it held that the wall being built by Israel in the Occupied Palestinian Territory is contrary to international law; that Israel is under an obligation to cease forthwith the construction of the wall and to dismantle the sections of the wall that had already been built; that Israel is under an obligation to make reparation for the damage caused by the construction of the wall; and that all states are obliged to withhold recognition of the illegal situation resulting from the construction of the wall. The Court also found that Israeli settlements in the Occupied Palestinian Territory are unlawful. This Opinion was supported by fourteen judges, including the British Judge, Dame Rosalyn Higgins. Only the American judge dissented.
The sacred trust was endorsed by the International Court when it recalled the dictum of the Court in its advisory opinion on the International Status of South West Africa21 that the Mandate was created ” as an international institution with an international object – a sacred trust of civilization” premised on two principles of “paramount importance: the principle of non-annexation and the principle that the well-being and development ” of the peoples of the mandated territories was ” a sacred trust of civilization”.22 Later in its Opinion, echoing the 1971 advisory opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970),23 the Court declared that the ultimate objective of the sacred trust referred to in Article 22 of the Covenant of the League of Nations “was the self-determination and independence of the peoples concerned”.24
The importance of the right of self- determination of the Palestinian people was stressed repeatedly by the Court25 and by judges in their separate opinions. Judge Higgins declared that “the Palestinian people are entitled to their territory, to exercise self-determination, and to have their own State”.
From the 2004 Opinion of the International Court it is clear that the sacred trust contained in the Mandate for Palestine did not terminate with the dissolution of the League of Nations. Nor did it terminate with the withdrawal of the mandatory Power in 1948 or the creation of the state of Israel in 1948 in a portion of the mandated territory of Palestine. The Mandate imposed a special international status on the territory of Palestine as a whole, which continues to exist until the independence of the whole of Palestine is achieved and the sacred trust is fulfilled.
The Balfour Declaration and the sacred trust
The Zionist dream has in part been fulfilled. There is a national home for the Jewish people in Palestine. Not as much as the most ardent Zionists would like, as 22 per cent of the former Palestine is still occupied Palestinian territory. True, settlements and the wall are slowly taking what remains of Palestine but many Zionists will not rest until the whole of the former Palestine has been incorporated formally into Israel. The Balfour Declaration is seen by Zionists as the inspiration for the state of Israel. In 2007 the Prime Minister of Israel, Ehud Olmert, said in a speech to commemorate the 90th anniversary of the Declaration:
“The Balfour Declaration constitutes one of the basic milestones in the establishment of the state of Israel – the right of the Jewish people to a national home.”
One British vision of Palestine has therefore been accomplished. There is a national home for Jews in Palestine; but what about the other vision? Self-determination and independence for the Palestinians living in what remains of the former mandate for Palestine? Is the “sacred trust” assumed by Britain in 1920 forgotten, abandoned in the interests of Israel and US domestic policies?
The implications for Britain of the continued existence of the sacred trust created by the Mandate for Palestine are twofold.
First, the sacred trust compels the UK as the former Mandatory Power, acting through the United Nations as successor to the League of Nations, to ensure that there is no consistent pattern of human rights violations in the territory. This is in the very nature of a “sacred trust”. This was made clear by the International Court when it said in respect of South West Africa that the former mandatory was obliged to respect and promote human rights in the mandated territory.
Secondly, as the International Court of Justice has stressed, the concept of sacred trust must be interpreted as requiring effect to be given to the principle of self-determination leading to independence.
Sadly Britain has done little to protect the human rights of the Palestinian people or to advance their independence.
There is abundant evidence of violations of the human rights of the Palestinian people ranging from torture to arbitrary restrictions on freedom of movement, and from the destruction of homes to the seizure of water resources. The reports of UN treaty bodies, UN Special Rapporteurs (including those of the present writer26), NGOs and UN Commissions of Enquiry testify to such violations.27 The violations of international humanitarian law are equally widespread and persistent. Settlements in the West Bank and East Jerusalem accommodate some 600,000 setters or colonists and were condemned as illegal by the International Court of Court in its 2004 Advisory Opinion.28 Many reports, including the so-called Goldstone Report of the Human Rights Council29 and the Report of the League of Arab States Fact Finding Committee on Gaza30, found that Israel had committed war crimes and crimes against humanity in its assault on the civilian population of Gaza in the course of Operation Cast Lead of 2008-2009.
Israel has established a brutal form of colonisation and apartheid31 in a territory subject to a sacred trust and the Western world has not only done little to help but on occasion has deliberately obstructed international action. Britain has acquiesced in this and has not raised its voice in protest. One would at least have expected Britain to declare that as the former mandatory entrusted with a “sacred trust” it would distance itself from the policies of the United States.
Britain’s attitude towards Israel’s crimes is illustrated by recent changes to the law governing universal jurisdiction. In 2011 the Police Reform and Social Responsibility Act was passed which makes it more difficult for citizens to obtain arrest warrants for suspected war criminals in the UK. This law was clearly enacted to protect Israeli political and military leaders, such as Tzipi Livni. It seems that Britain is determined not to prosecute those responsible for the killing of civilians in Operation Cast Lead.
Britain and the international community have likewise failed to take serious action to fulfil the ultimate objective of the sacred trust the self-determination and independence of the Palestinian people. Two institutions of which Britain is an important part in particular have failed in this respect : the United Nations and the International Criminal Court.
Palestine is a member of the League of Arab States. In 2011 Palestine was admitted to membership of UNESCO, by a vote of 107 (including France, but not Britain) to 14 (including the United States, Israel, Germany, Netherlands and Sweden) with 52 abstentions (including the United Kingdom). The precise number of states that recognise Palestine is unclear, but it seems that between 120 and 130 states have recognised the state of Palestine in some way or another. Moreover, an additional twenty states, mainly European, maintain some sort of diplomatic relations with the Palestinian Authority. Despite this impressive support for Palestinian statehood it has been denied membership of the United Nations,32 mainly due to opposition from the United States which has threatened to use its veto in the Security Council to block the admission of Palestine to the United Nations, threatened to cut off funding to the United Nations and pressured member states of the Security Council to withhold support for Palestinian membership.
Britain as the closest friend and ally of the United States has done nothing to oppose Washington on this subject. It has not declared that the “sacred trust” it undertook in 1920 compels it to support Palestinian statehood. It has not had the courage to say that this “sacred trust’ is more important than support for the Jewish lobby and the Evangelicals in the United States. The United States would veto any bid for Palestinian statehood in the Security Council, but let the United States be seen to be alone and isolated. Britain’s support for the United States on this issue lends legitimacy to US action. It is as bad as its support for the United States on the invasion of Iraq.
The International Criminal Court, of which Britain is an important member, has also done its best to thwart Palestinian statehood.
On 21 January 2009 Mr Ali Kashan, acting as Minister of Justice for the Government of Palestine, lodged a declaration with the International Criminal Court (ICC), under Article 12(3) of the Rome Statute, recognising the jurisdiction of the Court for “acts committed on the territory of Palestine” since 1 July 2002. The principal purpose of this referral was to secure the prosecution of those responsible for the commission of international crimes in the course of Operation Cast Lead, Israel’s assault on Gaza from 27 December 2008 to 18 January 2009. There was much evidence to support allegations of war crimes and crimes against humanity contained in the Report of the UN Fact Finding Mission on the Gaza Conflict,33 the Arab League Independent Fact Finding Committee on Gaza34 and reports of investigations conducted by Human Rights Watch, Amnesty International, Physicians for Human Rights and other NGOs.
The Prosecutor of the ICC appeared to take the Palestinian request seriously for three years. He met with delegations from the Palestinian Authority, League of Arab States and the Independent Fact Finding Committee on Gaza, and dispatched his staff to neighbouring Egypt and Jordan to make enquiries about Operation Cast Lead. He also encouraged and promoted academic debate and exchanges over the question of whether or not Palestine qualified as a state for the purposes of the jurisdiction of the ICC, in a manner more becoming for a professor than a prosecutor.35 Then on 3 April 2012, more than three years after he received the Palestinian request, he tersely dismissed it in a two-page largely unreasoned statement on the ground that competence for determining the meaning of the term “State” (which is not defined in the ICC Statute) “rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of the General Assembly”.36 He added that the Assembly of States Parties of the Rome Statute “could also in due course decide to address the matter”.37 After three years of giving the clear impression that it was for his office to make the determination of statehood for the purposes of the jurisdiction of the ICC, he decided that it was not the business of his office to make such a determination. This function rested with the United Nations or the Assembly of States Parties. There seems little doubt that this decision was intended to appease European states and the United States (despite the latter not being a party to the Rome Statute).38
In November 2012 the Assembly of States Parties (ASP), the governing body of the ICC, meets for its annual session. A group of thirty academic international lawyers has written to the President of the Assembly of States Parties requesting the Bureau of the ASP to place the question of Palestine’s declaration of acceptance of the ICC’s jurisdiction on the agenda of the ASP in November. This is in line with the Prosecutor’s suggestion that the ASP may make a decision on the statehood of Palestine not in general, but for the purposes of the jurisdiction of the ICC. Obviously such a move would be better coming from a state, particularly a state with the standing of Britain.
Will Britain support this move? Will it have the courage – as the former mandatory entrusted with a “sacred trust” to propose that the Palestinian Declaration be accepted on the grounds that Palestine qualifies as a state? Or will it follow blindly the wishes of the United States?
There are three victims of Britain’s failure to honour the “sacred trust” conferred upon it by the League of Nations. First and foremost, there are the Palestinian people. Second, there is international law itself. The refusal of Britain, with the support of the West, to seek the fulfilment of the sacred trust’s ultimate objective – the self-determination and independence of the Palestinian people – has undermined respect for international law and gives rise to serious doubts about the West’s commitment to human rights and the Rule of Law, which it claims to cherish. Third, there is the credibility and reputation of Britain as a nation. Can a state that simply abandons a “sacred trust” conferred upon it by the international community actually be trusted?
1 See Victor Kattan From Co-existence to Conquest. International Law and the Origins of the Arab-Israeli Conflict 1891-1949 (2009) 42- 44.
2 See Kattan op cit footnote 5 at 78-97.
3 Article 77.
4 1950 ICJ Reports 128.
5 Ibid 131.
6 Ibid 132.
7 Ibid 134.
8 1971 ICJ Reports 16.
9 Ibid at 32 (para 55).
10 Ibid at 31 (para 53).
11 Ibid at 152.
12 Ibid at 153 – 155; N Araby ” Some Legal Implications of the 1947 Partition Reasolution and the 1949 Armistice Agreements (1968) 33 Law and Contemporary Problems 97; H Cattan ” Recollections of the United Nations Resolution to Partition Palestine (1987-88) Palestine Yearbook of international Law 263
13 Kattan op cit footnote 5 at 166-7.
14 J Snetsinger Truman, the Jewish Vote and the Creation of israel (1974) 109.
15 See Security Council Resolution 1860(2009) which recognizes that “Gaza constitutes an integral part of the territory occupied in 1967”. See further,
Y Dinstein The International Law of Belligerent Occupation (2009) 276 -280.
16 For an analysis of this resolution, see J McHugo “Resolution 242: A Legal Appraisalof the Right-Wing Interpretation of the Withdrawal Phase with Reference to the Conflict between Israel and the Palestinians” (2002) 51 ICLQ 851.
17 Declaration of Principles on Interim Self-Government Arrangements, Israel-PLO 13 September 1993 (1993) 32 ILM 1525.
18 Omar Dajani ” Shadow or Shade? The Roles of International Law in Palestinian – Israeli Peace Talks” (2007) 32 Yale Journal of International Law 189.
19 General Assembly Resolution ES – 10/14.
20 2004 ICJ Reports 136.
21 Above footnotes 12 and 13.
22 Above footnote 40 para 70.
23 Above footnote 21 paras 52-53.
24 Above footnote 40 para 88.
25 Ibid paras 88, 118, 149, 159 and 156.
26 See, for example, E/CN./2004/6 of 8 September 2003 and A/HRC/4/17 of 29 January 2007.
27 See too the study of the South African Human Sciences Research Council published in Beyond Occupation , footnote 1.
28 Above footnote 40 at para 120.
29 Report of the United Nations Fact Finding Mission on the Gaza Conflict A/HRC /12/48 (Advance 1) of 23 September 2009. The Executive Summary and Recommendations appear in C Meloni and G Tognoni Is There a Court for Gaza? A Test Bench for International Justice (2012) 173-226.
30 No Safe Place. Report of the Independent Fact Finding Committee on Gaza 30 April 2009, The Executive Summary and Recommendations appear in Meloni and Tognoni op cit footnote 56 at 586 -594
31 See the Report of the South African Human Sciences Research Council published in Beyond Occupation footnote 1. The finding that Israel practises colonialism and apartheid in the Occupied Palestinian Territory was endorsed by the Russell Tribunal at its session held in Cape Town in November 2011.
32 The application of Palestine for membership of the United Nations is contained UN Documents A/66/371(General Assembly) and S/2011/592 (Security Council) of 23 September 2011.
33 Above footnote 56.
34 Above footnote 57.
35 Several of the articles submitted to the Office of the Prosecutor are included in Meloni and Tagnoni op cit footnote 56. See, in particular, the articles by Kearney, Pellet, Quigley, Ash, Ronen, Shany and Gowlland -Debbas. See too M Shaw “The Article 12(3) Declaration of the Palesinian Authority , the International Criminal Court and International Law” (2011) 9 Journal of International Criminal Justice 301; WT Worster “The Exercise of Jurisdiction by the International Criminal Court over Palestine” (2011) American University International Law Review 1159.
36 Statement on the Situation in Palestine published by the Office of the Prosecutor on 3 April 2012.
38 See the comments of William Schabas in his Foreword to Meloni and Tognonio op cit footnote 56 at viii.
Professor Dugard has published the definitive work on the law of apartheid, and was for seven years Special Rapporteur to the UN Human Rights Council on the Human Rights Situation in the Occupied Palestinian Territories.
Reproduced with permisson from the author