The legal vacuum Britain created – John McHugo

Talk given at Abandoning Palestine conference, May 2022.

Click here to buy John McHugo’s book A Concise History of the Arabs.

I

After the First World War, Britain wanted Palestine for its own imperial purposes: to strengthen its control of the Suez Canal, to provide a land bridge from Egypt to Iraq, and to fulfil its promise in the 1917 Balfour Declaration to facilitate the establishment in Palestine of “a national home for the Jewish people”.  These purposes complemented each other. As Chaim Weizmann, then the emerging leader of the Zionist movement had put it in 1914 shortly after the war began, a Jewish Palestine would be “a little Asiatic Belgium”. This would mean “England would have a very effective and strong barrier [to protect the Suez Canal] and we would have a country.”[i]

When the Allied Powers acceded to Britain’s wish to possess Palestine, they did not consult its people who wanted independence in a form to be chosen by themselves, and did not want their land to be ruled by Britain. But the Powers extracted a legally binding quid pro quo from Britain. This  was that Britain committed itself to “a sacred trust of civilisation” for the “well-being and development” of the people of Palestine. This meant preparing them for independence. The result was the Palestine Mandate.    

About three decades later, on 14 May 1948, when the Mandate only had hours left to run, a telegramme travelled from the Foreign Office in London along the undersea cable to North America, and then to UKMIS, the British mission to the United Nations. It contained legal advice, and was intended to prepare the British delegation to the UN for the moment when the Mandate actually terminated.

Lawyers, as E. M. Forster asserted in Howard’s End, are a cold breed. Moreover, law and justice do not coincide exactly. Far from it, but in this talk it is law, not justice, that I have to work with.

Among the advice in the telegramme was the following statement:

“If the Jews claim to set up a state in the boundaries of the Jewish areas as defined by the United Nations in [the partition resolution] and the Arabs claim to set up a state covering the whole of Palestine, there would be nothing legally to choose between these claims”.[ii]

February 1956 Map of UN Partition Plan for Palestine, adopted 29 Nov 1947, with boundary of previous UNSCOP partition plan added in green.

I will revert to these words, but I read them now to help you grasp the sheer enormity of what Britain left behind it – a legal vacuum, something that implied that war was inevitable.

So what political rights had Britain been obliged to ensure for the people of Palestine? Let’s first consider the Balfour Declaration[iii]. When it was issued in 1917, it was just a statement of British Government policy. It promised British “best endeavours” to facilitate the establishment of “a national home for the Jewish people in Palestine”. It did not clarify what that meant, but the establishment of a national home was predicated on nothing being done that might prejudice “the civil and religious rights of existing non-Jewish communities in Palestine” – in other words, the Arab Palestinians.

The Zionist leader Chaim Weizmann argued that “civil rights” referred to such matters as existing property and economic rights, and did not include “political rights”. This argument still gets aired, and British ministers and diplomats today can even inadvertently  give credence to it by sheepishly stating that the declaration “ought” to have included political rights, but didn’t. Yet contain political rights it certainly did. Here I respectfully disagree with what Hanan Ashrawi said about this earlier.

First, consider the words “civil rights”. Was the civil rights  movement in America concerned only with property rights? Was it in Northern Ireland? Was it in South Africa? Of course, not.  “Civil rights” include political rights.

Secondly, Palestine had already taken part in elections on the basis of universal  but indirect male suffrage for the Ottoman Parliament. The Ottoman Empire was not a democracy, but elections mattered. If you respect somebody’s “civil rights”, how can you take away their right to vote?

Thirdly, the fact that “civil rights” included “political rights” was effectively what the British Government told its principal Arab ally. In January 1918, only two months after the issue of the declaration, it sent Cdr. David Hogarth, a colleague of T.E. Lawrence,  as an emissary to the Sharif Hussein of Mecca to explain the declaration. The message Hogarth carried stated that Britain was determined that no obstacle should be put in the way of the ideal of the return of the Jews to Palestine, “so far as is compatible with the freedom of the existing population, both political and economic”.

So there you have it from the horse’s mouth. The Balfour declaration had to be compatible with the political and economic freedom of the Palestinians. Afterwards, when Hogarth reported back to his superiors, he used wording that hinted at British double dealing. He said that the Sharif Hussein “would not accept an independent Jewish state in Palestine, nor was I instructed to warn him that such a state was contemplated by Great Britain.[iv]

The Balfour Declaration had to be compatible with the political and economic freedom of the Palestinians.

The Balfour Declaration had to be compatible with the political and economic freedom of the Palestinians.

Let’s look now at Article 22 of the Covenant of the League of Nations[v] which sets out “the sacred trust of civilisation” that Britain was compelled to undertake. This was a legally binding text. The sacred trust imposed on Great Britain was to ensure “the well-being and development” of the people of the territory covered by the Mandate. Everyone knew this meant preparing them for independence and was eventually confirmed by the International Court of Justice. Britain’s obligation to prepare the Palestinian people for independence was clear and unequivocal. 

Britain’s obligation to prepare the Palestinian people for independence was clear and unequivocal.

The other key, legally binding text was the document setting out the terms of the Mandate itself[vi]. It is a very strange piece of paper. It was largely Britain that drafted it, and it reflected British policy. Dr Weizmann, the leader of the Zionist Organisation, was allowed  to have substantial input into the text – although he did not get everything he wanted. Yet no Palestinian – or other Arab – representative was given this opportunity. They were merely informed of its contents after it had been drafted.

Nevertheless, the document was intended to implement Britain’s sacred trust of civilisation to the Palestinian people. This is clear from  the opening words,

 “Whereas the Principal Allied Powers have agreed, for the purposes of giving effect to Article 22 of the Covenant of the League of Nations…”

Preambular paragraphs beginning “whereas”, so beloved by lawyers who frequently insert them at the beginning of a document, are called recitals. They set out the intention behind the document and are used to interpret its meaning. They are not merely waffle. They matter.

But the recital referring to Art. 22 was immediately followed by another recital that read:

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

This incorporated the Balfour Declaration into the Mandate. Note how the civil rights of the Palestinian Arabs which, as I said, included their political rights, were preserved by this, at least on paper.

There was also another important recital, which immediately followed and should be read with the recital about the Balfour Declaration:

“Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country…”

Moving on from the recitals, we should also consider Art. 2 of the Mandate which obliged Britain to place Palestine

“under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safe-guarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race or religion.”  [emphasis added]     

Reading all these together, Britain had a sacred trust of civilisation to prepare the Palestinian people for independence, but was simultaneously bound to facilitate the establishment of the Jewish national home in Palestine. In fact most of the rest of the text of the Mandate, which I haven’t quoted here, is concerned with facilitating its establishment. Yet what if the Palestinians did not wish their country to become the national home for the Jewish people? Britain knew full well that they did not,  if this meant that incomers would take over their country. Britain had also been warned that that could only be accomplished by force of arms[vii].

Nevertheless, under Art. 2 of the Mandate Britain still had to grant the Palestinian people  “self-governing institutions” in which they could have expressed their views. Britain never did this. This failure came in for censure from the Mandates Commission at the League of Nations in Geneva in 1924[viii]. As Penny Sinanoglou, a scholar who has recently produced an exhaustive study of Britain’s various proposals to partition Palestine, has pointed out, “the Mandate was unworkable so long as Jews and Arabs could not be brought together in a joint, representative legislature”.[ix]

“The Mandate was unworkable so long as Jews and Arabs could not be brought together in a joint, representative legislature” – Penny Sinanoglou

And what if the Jewish community in Palestine, the Yishuv, wished to establish an ethnically Jewish state in Palestine? That was the aim of the mainstream Zionist movement. As the historian Martin Gilbert has pointed out, alongside many others, it was a centrepiece of British policy to withhold representative institutions in Palestine until such time as there was a Jewish majority. To paraphrase Sinanoglou, while Britain provided the international scaffolding for Jewish nationalism, it not only failed to do the same for the nationalism of the Arabs of Palestine, but actively suppressed it.[x]

Britain had…given itself a circle to square.

Britain, in pursuit of its imperial interests,  had of its own, free, political will  put itself in a position where it had given itself a circle to square. Throughout the duration of the Mandate it was unable to establish the representative institutions for Palestine it was bound to establish by Art. 2. The Jewish community in Palestine, the Yishuv, fiercely opposed the creation of such institutions unless Jews had first become a majority. In the meantime, it established its own, democratically elected institutions solely for the Jewish community. By contrast, in neighbouring Iraq, Syria and Lebanon to which Art. 22 of the Covenant also applied, self-governing institutions were established. By 1946, these countries had elected parliaments and were fully independent with a constitutional form of government.    

II

Let’s now look at what happened at the end of the Mandate. Let’s return to that legal advice:

“If the Jews claim to set up a state in the boundaries of the Jewish areas as defined by the [partition resolution] and the Arabs claim to set up a state covering the whole of Palestine, there would be nothing legally to choose between these two claims.”

“If the Jews claim to set up a state in the boundaries of the Jewish areas as defined by the [partition resolution] and the Arabs claim to set up a state covering the whole of Palestine, there would be nothing legally to choose between these two claims” – Foreign Office Legal Advisers

It is often wrongly suggested that the UN partition plan passed by UN General Assembly Resolution 181 on 29 November 1947 set out a binding settlement. This was not so. That is why the legal advice stated that there “would be nothing legally to choose between the two claims”. The partition plan was always provisional. Up to the last few days of the Mandate, there was always the possibility of a US led u-turn which would have scrapped partition in favour of turning the whole of Palestine into a UN trust territory. This was one of the great fears of Ben Gurion and the other leaders of the Yishuv. But Britain’s concerns were not for the people of Palestine, but to secure as orderly a withdrawal as possible while leaving Britain’s position and prestige in the wider Arab world intact.[xi]  

As a General Assembly resolution, the partition plan was only a recommendation[xii] – a suggestion. It could have been made binding by a Security Council resolution, but there was no majority for this on the Security Council so the issue was never put to a vote[xiii]. The steps towards implementing it were never taken, and Britain refused to cooperate with the UN Commission that was meant to be in charge of doing so. Britain has been damningly described by the legal scholar John Strawson as “too weak to prevent the civil war that broke out but strong enough to frustrate the UN plan”.[xiv] The Foreign Office legal advice accurately stated on 14 May that: “if a Jewish state is proclaimed it will be setting itself up by its own efforts and not through acts of the UN commission.” [xv]       

“If a Jewish state is proclaimed it will be setting itself up by its own efforts and not through acts of the UN commission” – Foreign Office Legal Advisers

Much activity towards setting the Jewish state up had taken place before Israel declared its independence. The Yishuv‘s own parliament, the Va’ad Leumi, had well organised departments dealing with matters such as education, health and labour. These provided the services to the Jewish population that were expected from a government.  They had experts such as economists, agronomists, statisticians and surveyors. In reality they had their own armed forces, which had reached the level of sophistication that they had their own military lawyers, while the Jewish Agency acted as ministry of foreign affairs.

British Mandate Palestinian passport

The Arab Higher Committee that was treated by Britain and the UN as the representative of the Palestinian people had almost nothing by contrast, including no democratic legitimacy as it had never been elected, and no armed forces. The Palestinian Arab population had had no choice but to rely on the government provided by the British Mandate for its security and all the services a government was meant to provide. Now that government would cease to exist. The relatively few who had passports issued by the Mandatory government would now find them worthless. Palestinians would now have no army or police to protect them. There would be no budget, no education or health services. No currency. The Palestinians would become a stateless people. Such was Britain’s legacy.

According to Menachem Begin’s memoirs, Irgun and Haganah commanders had met at the end of January 1948 to plan the conquest of what is today most of Israel and the northern West Bank.[xvi] By early April, about six weeks before the state of Israel was proclaimed, the armed forces of the Yishuv were relatively certain that the British, whose departure was now well under way, would not interfere very much[xvii]. They went on the offensive. They feared international support for partition  might weaken, and they needed to secure the territory of what would become the state of Israel.  The Haganah commanders had concluded that, “war is war and there is no possibility of distinguishing between good and bad Arabs” [xviii]. On the eve of the offensive, Ben Gurion said, “we shall enter the empty villages and settle them.” [xix] Slightly earlier, on 20 March, a representative of the Jewish Agency had told The Times that “the Jews of Palestine have already put a sort of partition into force, and we are maintaining it.” [xx] 

“The Jews of Palestine have already put a sort of partition in force and we are maintaining it” – A representative of the Jewish Agency

The historian Benny Morris is of the view that by the first half of April the Yishuv was engaged in a war of conquest.[xxi]  Before the proclamation of the State of Israel, thirteen operations to secure strategic Arab areas had already taken place. Not all had been successful, but they were pursuant to the Haganah’s Plan Dalet, which envisaged that where necessary in order to secure the State, the inhabitants would be expelled outside its boundaries. The Anglo-Palestinian scholar Victor Kattan, whose researches carried out for his book From Coexistence to Conquest has been invaluable for me in writing this paper, has pointed out that eight of these thirteen operations took place outside the areas earmarked by the partition plan for the Jewish state.[xxii] If the Yishuv claimed to accept the partition plan, it did not implement it. It contravened it. In fact, the partition plan had made war inevitable.

Up to half the Palestinians who were made refugees had lost their homes on Britain’s watch, before the state of Israel was even proclaimed. This is confirmed by analysis from the IDF, the Israeli Defence Forces.[xxiii] Palestinian society quite simply disintegrated, and Britain let this happen. Britain was still responsible for the security of the people of Palestine, whatever their faith or ethnic group. Rashid Khalidi has observed that, as the Mandate approached its end,

“Arab Palestine was crumbling, and the implications of the absence of a single Palestinian national authority that could have raised and organized forces to defend it were now acutely clear: as individual cities, towns, and villages, most defended by their inhabitants with scant help from outside, fell to the well-organised, centralised forces of a state that had not yet been declared.”[xxiv]     

VE Day, in Jerusalem, Palestine, 1945

When Israel declared its independence at midnight on 14 May, the civil war turned into an international conflict as four Arab states intervened. Governments felt pressurised by public opinion to go to the aid of their Palestinian brothers and sisters, but all these governments followed their own, self-seeking and often incompatible, agendas.

For its part, Israel immediately filed an application to become a member of the UN. This was rejected without even reaching the Security Council floor.

Why was this? As the legal advisers in the British Foreign Office put it four days after the Mandate ended:

Mandate-era mailbox, Jerusalem

“The present juridical situation as regards Palestine is obscure  and we cannot be sure whether other governments besides that of the Jewish State will emerge. It would be unfair and legally wrong in the circumstances to admit the Jewish State to the United Nations at this early stage and thus to give it international recognition, while not taking any similar steps for the rest of Palestine.”[xxv] 

What an admission by the legal advisers to the outgoing Mandatory Power!  Very significantly, the Foreign Office legal advisers also argued against recognition of Israel because, for the time being, it did not in their view fulfil “the basic criteria” of an independent state. Chief among these was the fact that it did not yet exercise effective control over the territories it claimed.[xxvi]     

III

So how did Israel come into existence as a state, since this did not happen as a result of the partition plan or a decree of the UN? The answer is: by an act of secession. Secession in international law has been authoritatively defined by Crawford as “the creation of a State by the use or threat of force without the consent of the previous sovereign”.[xxvii]  

Secession in international law has been authoritatively defined by Crawford as ‘the creation of a State by the use or threat of force without the consent of the previous sovereign’.

In the case of Israel, that force and the threat of its use had been exercised against the majority of the native people of the land, because there was no way it could come into existence unless it used force to take control of what would become its territory. In other words, it had to conquer that territory. One of the tests for when it became a state was met when it established a stable and effective government there. It had certainly reached that point by 24 February 1949 when it signed an armistice with Egypt[xxviii]. But, although it was immediately recognised after its declaration of independence on a de facto basis by the USA, the USA  and Britain both opposed Israel’s initial application to become a member of the UN. A second application was also rejected on 17 December, although this time the USA voted in favour. Nevertheless, it would only be on 31 January 1949 that the USA accorded Israel de jure recognition. And it would seem that this only recognised Israeli sovereignty over the areas earmarked for the Jewish state in the partition plan. Israel would have to wait until 11 May that year to be admitted as a member of the UN.[xxix] From that date, there has been no doubt about the legitimacy of the existence of the state of Israel in terms of international law. British de facto recognition followed two days later on 13 May, and de jure recognition on 28 April 1950.  

The picture was published in the Jerusalem Post after the destruction of Hotel King David by Irgun, 1946.

And what of the other areas of Palestine? The West Bank (which includes East Jerusalem) was unilaterally incorporated into its territory by Jordan in late 1948, but this never achieved international recognition [xxx]. Britain had left chaos here, too. That chaos can be exemplified by the fact that one of the last acts of the Mandatory Government had been to repeal Britain’s Palestine Defence (Emergency) Regulations of 1945, but Jordan was unaware that this had even occurred, and consequently duly enacted its own legislation to repeal the Regulations on the land it purportedly incorporated into Jordan[xxxi].  What is now the Gaza Strip came under Egyptian military occupation, and Gazans would find themselves living under military government until a new military occupier, Israel, took possession in 1967.

To conclude, Britain failed its sacred trust of civilisation towards the Palestinian people. Instead of the well-being, development and independence which it was obligated to ensure for them, it left them with a legal vacuum: chaos, war, and dispossession. It carries direct responsibility for this disaster, but that responsibility is too little remembered in Britain today. To rectify this amnesia is one reason why this conference is taking place. It is Britain’s duty to acknowledge  its responsibility – our, British, responsibility – and to work now to advance equal rights for all in what was once the British Mandate of Palestine. Those rights include self-determination and mutual security. It is clear, today, who has self-determination and security and who does not. 


In his books, John McHugo (Balfour Project trustee) tries to explain how we in the West have contributed to the catastrophic state of affairs that currently obtains in the Middle East. He is the author of “A Concise History of the Arabs” (2016, updated edition pending), “Syria: A Recent History” (revised edition 2017), and “A Concise History of Sunnis and Shi’is” (2017). During his legal career he worked on international boundary disputes in the Middle East and was listed among counsel for Bahrain at the International Court of Justice in 1994. He is also a board member of CAABU, the Council for Arab British Understanding.

[i] Rose, Chaim Weizmann: A Biography, 1987,  pp. 137-8.

[ii] Minute from Sir O. Sargent, 14 May 1948, FO 371/68664 Palestine, Eastern, para 7, quoted in Kattan, From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891-1949, p. 189.

[iii] The text is widely available. It can be found eg. on the website of Yale University’s Avalon Project, https://avalon.law.yale.edu/20th_century/balfour.asp. .

[iv] The text was published by the British Government on 20 March  1939 in Cmnd. 5964. I am indebted to Dr Peter Shambrook and his work on the Hussein MacMahon correspondence (to be published in his forthcoming book on this topic) for drawing my attention to this.    

[v] The text of the Covenant of the League of Nations is widely available, eg. on the Avalon Project website https://avalon.law.yale.edu/20th_century/leagcov.asp.

[vi] Again, the text is widely available. See eg.  https://avalon.law.yale.edu/20th_century/palmanda.asp#:

[vii] See the warnings in the King-Crane Commission, discussed in Khalidi, The Hundred Years War on Palestine, 2020, p. 51.

[viii] Pederson, The Guardians: The League of Nations and the Crisis of Empire, 2015, p. 97. 

[ix] Sinanoglou, Partitioning Palestine: British Policymaking at the End of Empire, 2020, p. 70.

[x] Sinanoglou, p. 11.

[xi] Morris, The Birth of the Palestinian Refugee Problem Revisited, 2004, p. 13.

[xii] Crawford, The Creation of States in International Law, 2007, pp. 431-2.

[xiii] Kattan, p. 166. Only five of the fifteen members were willing to vote in favour of such a resolution.

[xiv] Strawson, Partitioning Palestine: Legal Fundamentalism in the Palestinian-Israeli Conflict, 2010, pp. 122-3.

[xv] Minute from Sir O. Sargent, 14 May 1948, quoted in Kattan, p. 293. .

[xvi] Kattan, p. 180.

[xvii] Morris, p. 190.

[xviii][xviii] Morris, p. 99.

[xix] Morris, p. 371.

[xx] Quoted in Kattan, p. 168.

[xxi] Morris, 1948: A History of the First Arab-Israeli War,  pp. 118-9. 

[xxii] Kattan, p. 185.

[xxiii] Morris, The Palestinian Refugee Problem Revisited, p. 194.

[xxiv] Rashid Khalidi, The Iron Cage: The Story of the Palestinian Struggle for Statehood, p. 134.

[xxv]  Telegramme from Foreign Office to New York, 19 May 1948, FO371/68664, Palestine, Eastern,, 1948 quoted in Kattan, p. 233.

[xxvi] Kattan, pp. 234-5.

[xxvii] Crawford, p. 375.

[xxviii] Crawford, p. 433.

[xxix] Kattan, p. 233.

[xxx] Except by Britain and Pakistan.

[xxxi] For this, see the 2011 report by Al Haq, “Perpetual Emergency: A Legal Analysis of israel’s Use of the British Emergency (Defence) Regulations 1945, in the Occupied Territories” available at https://www.alhaq.org/publications/8169.html.

All photos sourced from Wikipedia.

This entry was posted in Events, Past. Bookmark the permalink.