A Mandate for Peace - 2004

[Published February 2004]

Madrid, Oslo and the Road Map have capped a disastrous 13 years of international diplomacy trying to find an Arab partner, other than Jordan, to negotiate the sovereignty of the West Bank and Gaza with Israel.

One wonders how long this mindless process will be allowed to continue.

Death, injury and human suffering by both Jews and Arabs seem to be the only tangible results from this non-stop diplomacy as both sides struggle to assert sovereignty over Judea and Samaria (the West Bank) and Gaza - an area of land comprising just 6% of the territory once called Palestine administered by Great Britain from 1920 to 1948 pursuant to the Mandate for Palestine created by the League of Nations.

The Mandate came into being at the time of the distribution of former Turkish lands conquered by the victorious allied countries in World War I. The only competing claims were those of Jewish nationalism and Arab nationalism.

The territorial allocation made to the Arabs was more than 100 times greater in area and hundreds of times richer than the area of Palestine mandated for the establishment of the Jewish National Home.

The Mandate was the legally binding expression of the International Community of Nations. The Mandate continues to have important legal ramifications until this very day, because of the provisions of Article 80 of the United Nations Charter, - something that has been consistently overlooked and ignored by the world body and its members.

The Mandate document expressed some very important principles, including.

1.recognition of the historical connection of the Jewish people with Palestine and the grounds for "reconstituting" their national home in that country;

2.the creation for the first time of an identifiable territory called "Palestine" with defined territorial boundaries which incorporated Israel, Judea and Samaria (the West Bank), Gaza and Transjordan (today's State of Jordan).

3.safeguarding the civil and religious rights (but not any political rights as none were intended to be conferred) of the existing non-Jewish communities in Palestine;

4.facilitating Jewish immigration and encouraging "close settlement by Jews on the lands, including State lands and waste lands not required for public purposes" (Article 6);

All this might have been ancient history but for the occurrence of six subsequent events, which could result in the Mandate now being resurrected onto the current political stage to break the deadlock that currently exists.

The first two events were the birth of the United Nations in 1945 and the demise of the League of Nations in 1946.

Transjordan, which comprised 75% of the Mandate for Palestine, was granted its independence in 1946 at the last session before the League of Nations was dissolved. Although originally designated as part of the proposed site for the Jewish National Home, not one Jew then or until today lives or is allowed to live in this part of former Palestine.

The remaining 25% of Palestine, however, still remained under the League of Nations Mandates System, as did a number of other territories around the world.

To deal with these continuing Mandates, Article 80 was introduced into the United Nations Charter.

Article 80 provided that nothing in the International Trusteeship System set up under the United Nations Charter should be construed in or of itself to alter in any manner the rights whatsoever of any states or peoples or the terms of existing International Instruments to which members of the United Nations might respectively be parties.

In 1950 the International Court of Justice in an advisory opinion on South West Africa (1950 I.C.J.Reports 128) decided that the substantive obligations of the Mandate over that territory continued in force despite the dissolution of the League of Nations. The Court affirmed that these obligations remained the essence of "the sacred trust of civilization" despite the dissolution of the League of Nations.

The ramifications of this case as applied to the Mandate for Palestine, are, of course, highly significant

The third event of crucial importance was the United Nations Partition Plan of 1947, which attempted to resolve the issue of sovereignty in the remaining 25% of Palestine then still subject to the Mandate. The proposal was accepted by the Jews and rejected by the Arabs.

This led to the fourth crucial event, the Israeli War of Independence in 1948, when against six invading Arab armies, Israel was left in sovereign control of present day Israel, whilst Transjordan obtained control of Judea and Samaria, and Egypt gained control of Gaza.

In 1950, Transjordan renamed itself Jordan, and also renamed Judea and Samaria - the West Bank. Jordan then attempted to annex the West Bank but only Britain and Pakistan recognized the annexation. Egypt was content to administer Gaza and not seek to annex it.

Judea and Samaria (the West Bank) and Gaza, comprising a mere 6% of the original Mandate, were therefore the only territories of the Mandate in which sovereignty remained unallocated between Arabs and Jews after 1948. Israel was then internationally recognised as the sovereign authority in 19%, and Jordan as the sovereign authority in 75%, of the original Mandate.

However, by virtue of Article 80 of the United Nations Charter, the terms of the Mandate for Palestine were still alive and kicking in relation to Judea and Samaria (the West Bank) and Gaza, where sovereignty still remained unallocated to anyone.

The fifth event of significance occurred in 1967 when Israel gained control of Judea and Samaria, (the West Bank) and Gaza as a result of the 6-Day War. Jews then began settling in these areas as they were permitted to do under Article 6 of the Mandate, in some cases returning to places from where they had been driven out in the 1948 War.

The sixth event of significance was the signing of the Peace treaty between Israel and Jordan in 1994.

This has not been achieved in Judea and Samaria (the West Bank) and Gaza between Israel and the Palestinian Authority, despite the best and worthy endeavours of a succession of American Presidents, British Prime Ministers, United Nations Secretaries General and other talented European and world dignitaries.

These six events and the Mandate itself have become of the utmost importance in 2004 because one can glean from them the following -

1.Judea and Samaria (the West Bank) and Gaza are not "occupied Arab lands" but are in fact areas of the Mandate which are still to be dealt with in accordance with the "sacred trust of civilisation" declared by the League of Nations and preserved by Article 80 of the United Nations Charter.

2.All Jewish settlements presently established in Judea and Samaria (the West Bank) and Gaza accord with the objectives of the Mandate which encouraged close settlement of these areas by the Jews. They are not illegal in International Law;

3. There are already two successor sovereign States in the territory formerly called "Palestine". One is the Jewish State of Israel and the other is the Arab State of Jordan. Together they exercise sovereignty in 94% of the Mandate area.

4.It is only in the remaining 6% of the Mandate - Judea and Samaria (the West Bank) and Gaza - that sovereignty remains undetermined and the terms of the Mandate uncompleted;

Jordan and Israel, the two sovereign successor States at peace with each other for the last 10 years, are obviously the most appropriate partners to negotiate the sovereignty of this small parcel of land wedged in between their respective countries, and to determine the future of both the Jewish and Arab populations residing in those areas.

With goodwill and mutual respect, not one resident of those areas, be he Jew or Arab, would have to move from his present home.

Such negotiations would have very real prospects of success because they would be predicated on firm historic, geographic and demographic bases. Ethnically there is no difference between Arabs living on the west side of the Jordan River and those on the east side. Jordan can, and should, speak for and govern all of them.

Madrid, Oslo and the Road Map possessed none of these attributes and the results have now become plain for all to see.

Former Israeli Minister of Defence and Israeli Ambassador to Washington, Moshe Arens, has described it better than anyone, - a border dispute involving the redrawing of the boundary line between Jordan and Israel.

Jordan renounced all claims to these areas in 1988. It is not beyond the bounds of possibility that it could now have a change of heart, following the descent into chaos that it has been witnessing on its own doorstep over the last 2 years in particular.

International support in the shape of financial, military, and diplomatic assistance would help Jordan make this brave decision and give a real boost to efforts to end the 125 years old conflict between Jews and Arabs in Palestine.

The sooner Jordan and Israel are brought together to revisit the Mandate's clear and unambiguous terms and to implement its provisions to final completion in Judea and Samaria (the West Bank) and Gaza, the sooner justice will be done to both the Jewish and Arab inhabitants of former Palestine.

Jordan's mission would be a noble one in the search for peace. Those who could help bring about the opening of negotiations between Jordan and Israel over this small piece of real estate with possibly a confederation between them at the end of those negotiations, would find their efforts far more rewarded than the authors of so many plans that have hardly left the drawing board before being consigned to historical oblivion.