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The Mandate for Palestine, also known as the Mandate of Palestine or British Mandate of Palestine, was a territory in the Middle East including the modern territories of Israel, Jordan, and the West Bank and Gaza Strip, formerly belonging to the Ottoman Empire, which the League of Nations entrusted to the United Kingdom to administer in the aftermath of World War I as a Mandate Territory.
Palestine and Statehood: An historical overview |
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Palestine and Statehood: An historical overview Until 1923, Palestine was part of the Ottoman Empire. In December 1917, British troops entered Jerusalem and ended 400 years of Ottoman rule. In 1922, the League of Nations issued the Mandate of Palestine which authorized the United Kingdom to become the Mandatory Power in Palestine. The Mandate Document, however, included several paradoxical stipulations contrary to the Mandate System as set forth in Article 22 of the League's Charter. Major stipulations The Mandate Document included several paragraphs, which were considered by many historians and international lawyers as flagrant breaches of the word and spirit of the Mandate system. The system was intended to protect the territories occupied by the British and French from the axis enemy (Germany, the Austro-Hungarian Empire and the Ottoman Empire), and to develop these territories to independence and freedom for their populations. The MD, contrary to that system, stipulated that the UK must develop the territory of Palestine in cooperation with the Jewish Agency in order to achieve a national home for the Jewish people, ignoring the real interests of the vast majority of Palestinian Arabs or Palestine. In 1922 Palestine was still considered as a part of the sovereignty of the Ottoman Empire, which became Turkey after that date. It wasn't until Turkey signed the Lausanne Treaty in 1932 that Turkey relinquished her claim to sovereignty on Palestine. Thus, the MD was in clear breach of the rules of international law. The Legal Status of Palestine The UK's rule over Palestine contained flaws and several breaches. The Mandatory Power (UK) was considered, by many international lawyers, as a colonial power, which should have supervised the Mandate Territory and developed it as an honest trustee, which it failed to do. In regards to sovereignty over Palestine during the years of the Mandate, many international experts consider that sovereignty was inherent to the people of that territory and was temporarily in the hands of the League of Nations. Palestine was considered as an embryo of a state. It had its constitutions in 1922, its nationality law in 1925 and several other laws and by-laws covering almost all aspects of life and social and economic activities. The Mandatory Power exerted all its efforts to help the Zionist Organizations, represented by the Jewish Agency, the Jewish Keren Ha' Kayemet, the Jewish Keren Ha'yesud and the Zionist Haganah [the armed organization of the Jewish agency], to bring an influx of Jewish immigrants into the Mandated Territory, to develop their own independent economy, arms and to construct armed settlements, in all Palestine. All of this was claimed to be in conformity with the MD of Palestine, which was the legal fig-leaf in concealing the real goals of both the imperial power and Zionist Organizations. During the whole of British rule, Palestinians revolted and demonstrated, but the British forces dealt with these revolutionary acts in utmost cruelty, putting them down and killing thousands of Palestinian Arabs and deporting or imprisoning tens of thousands. In 1947, the UK government, unable to control the strong Zionist terrorist organizations, decided to refer the whole issue to the United Nations General Assembly which issued in November 26, 1947 a resolution dividing Palestine into two states: A Jewish state consisting of 54 percent of the territory of Palestine, an Arab state consisting of 44 percent of that territory, and the Jerusalem Area, as a Corpus Separatum, consisting of 2 percent of Palestine. Furthermore, the Resolution decided to have an Economic Union between the two states and stipulated that the Jerusalem Area, which included Bethlehem, should be a separate area under the control of the UN. The Zionist leadership pretended to accept the resolution, relying on the fact that it would be refused by the reactionary Arab leadership. After the UN Resolution, clashes broke out among the two communities. The armed Zionist organizations, well prepared and organized, as well as heavily armed, defeated the poorly armed Palestinians and the weak unorganized Arab armies. They occupied and annexed 70 percent of Jerusalem and 50 percent of the territory allocated to the Arab State, and on May 15, 1948, declared the State of Israel on 78 percent of historical Palestine territory, leaving the Palestinians without a state and in limbo. All these events happened in collusion among the colonial British government, the Jewish Agency and some Arab regimes, ruled and/or controlled by the British. Aftermath of the 1948 War As mentioned above, there was an enlarged Jewish state [Israel], but the remaining territories of Palestine were either annexed to Jordan [The West Bank], or put under Egyptian rule [The Gaza Strip]. So, the Palestinian people, who constituted 67 percent of the population of Palestine in 1947 and owned 93 percent of its land, were betrayed and left in a state of destitution. Sixty-two percent of them were driven out of their home under gunpoint and in several massacres committed by armed Zionist organizations. At present, there are 10.5 million Palestinians, including around 5 millions refugees, scattered in several Middle Eastern countries and other Diaspora states. As for Palestinian Statehood: The UN General Assembly by great majority has recognized the right of the Palestinian people to self determination and statehood in more than 40 resolutions. Most famous of these resolutions were the two issued in October, 1974: 3236 and 3237. The latter recognized the PLO as the legitimate representative of the Palestinian people and stipulated that it would be granted the status of Observer in all UN organs and affiliated organizations and its sponsored conferences. In December 15, 1988, a month after the declaration of the State of Palestine by the PLO conference in Algiers, the UN General Assembly decided in its resolution of December 15, 1988 to recognize the PLO declaration of the State of Palestine and to substitute the use of PLO for the name of Palestine in all its organs and conferences. UN membership After the Oslo accords in 1993 and the failure of peace negotiations which lasted for 18 years, the PLO intends to bring to the UN General Assembly once again, through the UN Resolution number 377 of 1950, the issue of recognition of the State of Palestine on the basis of the June, 1967 borders. Such resolutions, if issued by the UN General Assembly, could have some legal, political and media ramifications, but, nevertheless, it will not have any practical impact on the Israeli Government and some of its allies. The State of Palestine will still lack a major element of a sovereign state: That is the "effective control" over territory and population. This can only be achieved when the Israeli occupation is compelled to withdraw from Palestine. This fact may push many members of the International Community to support Palestine to end the occupation. However, there will be a slim chance for the admission of the state of Palestine into the United Nations if the US, or any other permanent members of the UN Security Council uses the Veto in this regards. In this situation, the General Assembly cannot vote for the Admission of Palestine, as the International court of Justice ruled in its Advisory Opinion of March 3, 1950, in its interpretation of the provisions of Article 4 of the UN Charter. The best procedure to be conducted in this regard is one of the following: a) To apply to the General Assembly of the UN asking them to denounce the continuing Israeli occupation and to declare the strict and unchangeable will of members of the United Nations to end the occupation of all Palestinian lands occupied in 1967 and their confirmation of the right of the Palestinian People to self-determination and statehood in a "full fledged independent state on all occupied Palestinian Territories occupied in 1967, including East Jerusalem" living in peace side by side with Israel. b) To ask the UN General Assembly to demand from the ICJ an Advisory Opinion on the right of the Palestinian people to self-determination and statehood on the occupied territories. A resolution of the UN General Assembly, if taken by great majority of more than 75 percent of the members and an Advisory Opinion from the ICJ could have a great impact on most states and members of the international community. They would also carry an important moral pressure on both states and international civil society. The Palestinians, Arab States, Arab public opinion and civil society and other friends and supporters of the Palestinian people, should play a very active role in organizing and administrating all possible measures to properly invest and harness the said Resolution and/or Advisory Opinion. One can give an example of the fruits of such good investment by referring to what the prominent Israeli leading newspaper Ha'aretz wrote in June 2011. It referred to what several Israeli jurists and international law experts were aware of: "Palestine adhering to the Rome Statute of 1998 (the ICC Statute), thus becoming a member of the ICC capable of invoking its jurisdiction in cases of Israel committing war-crimes of other similar crimes". Such membership is possible if many states and/or members of the ICC Statute are finally convinced that Palestine is a state which is worth becoming a member of the said convention. In this regard, it must be highlighted that the ICC Statute does not provide for states to become members of the ICC but that they should be members of the UNO. It only demands in all its Articles that Member States should be "States". If support for Palestine is very high, it constitutes great pressure on several states and may be a turning point in their attitude towards Palestinian Statehood. Abdullah Abu Eid is a professor of international law and human rights at Birzeit University
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The British Mandate for Palestine, also known as the Palestine Mandate and The British Mandate of Palestine, was a legal commission for the administration of Palestine, the draft of which was formally confirmed by the Council of the League of Nations on 24 July 1922 and which came into effect on 26 September 1923. The document was based on the principles contained in Article 22 of the draft Covenant of the League of Nations and the San Remo Resolution of 25 April 1920 by the principal Allied and associated powers after the First World War. The mandate formalised British rule in the southern part of Ottoman Syria from 1923–1948. With the League of Nations' consent on 16 September 1922, the UK divided the Mandate territory into two administrative areas, Palestine, under direct British rule, and autonomous Transjordan, under the rule of the Hashemite family from the Kingdom of Hejaz in present-day Saudi Arabia, in accordance with the McMahon Correspondence of 1915.Following the 1922 Transjordan memorandum, the area east of the Jordan river became exempt from the Mandate provisions concerning the Jewish National Home. Palestine Mandate The Mandate for Palestine, also known as the Mandate of Palestine or British Mandate of Palestine, was a territory in the Middle East including the modern territories of Israel, Jordan, and the West Bank and Gaza Strip, formerly belonging to the Ottoman Empire, which the League of Nations entrusted to the United Kingdom to administer in the aftermath of World War I as a Mandate Territory.
The Council of the League of Nations: Whereas the Principal Allied Powers have agreed, for the purpose of giving effect to the provisions of Article 22 of the Covenant of the League of Nations, to entrust to a Mandatory selected by the said Powers the administration of the territory of Palestine, which formerly belonged to the Turkish Empire, within such boundaries as may be fixed by them; and Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor 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; and 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; and Whereas the Principal Allied Powers have selected His Britannic Majesty as the Mandatory for Palestine; and Whereas the mandate in respect of Palestine has been formulated in the following terms and submitted to the Council of the League for approval; and Whereas His Britannic Majesty has accepted the mandate in respect of Palestine and undertaken to exercise it on behalf of the League of Nations in conformity with the following provisions; and Whereas by the afore-mentioned Article 22 (paragraph 8), it is provided that the degree of authority, control or administration to be exercised by the Mandatory, not having been previously agreed upon by the Members of the League, shall be explicitly defined by the Council of the League Of Nations; confirming the said Mandate, defines its terms as follows: ARTICLE 1. The Mandatory shall have full powers of legislation and of administration, save as they may be limited by the terms of this mandate. ART. 2. The Mandatory shall be responsible for placing the country 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 safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion. ART. 3. The Mandatory shall, so far as circumstances permit, encourage local autonomy. ART. 4. An appropriate Jewish agency shall be recognised as a public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration to assist and take part in the development of the country. The Zionist organization, so long as its organization and constitution are in the opinion of the Mandatory appropriate, shall be recognised as such agency. It shall take steps in consultation with His Britannic Majesty's Government to secure the co-operation of all Jews who are willing to assist in the establishment of the Jewish national home. ART. 5. The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power. ART. 6. The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes. ART. 7. The Administration of Palestine shall be responsible for enacting a nationality law. There shall be included in this law provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine. ART. 8. The privileges and immunities of foreigners, including the benefits of consular jurisdiction and protection as formerly enjoyed by Capitulation or usage in the Ottoman Empire, shall not be applicable in Palestine. Unless the Powers whose nationals enjoyed the afore-mentioned privileges and immunities on August 1st, 1914, shall have previously renounced the right to their re-establishment, or shall have agreed to their non-application for a specified period, these privileges and immunities shall, at the expiration of the mandate, be immediately reestablished in their entirety or with such modifications as may have been agreed upon between the Powers concerned. ART. 9. The Mandatory shall be responsible for seeing that the judicial system established in Palestine shall assure to foreigners, as well as to natives, a complete guarantee of their rights. Respect for the personal status of the various peoples and communities and for their religious interests shall be fully guaranteed. In particular, the control and administration of Wakfs shall be exercised in accordance with religious law and the dispositions of the founders. ART. 10. Pending the making of special extradition agreements relating to Palestine, the extradition treaties in force between the Mandatory and other foreign Powers shall apply to Palestine. ART. 11. The Administration of Palestine shall take all necessary measures to safeguard the interests of the community in connection with the development of the country, and, subject to any international obligations accepted by the Mandatory, shall have full power to provide for public ownership or control of any of the natural resources of the country or of the public works, services and utilities established or to be established therein. It shall introduce a land system appropriate to the needs of the country, having regard, among other things, to the desirability of promoting the close settlement and intensive cultivation of the land. The Administration may arrange with the Jewish agency mentioned in Article 4 to construct or operate, upon fair and equitable terms, any public works, services and utilities, and to develop any of the natural resources of the country, in so far as these matters are not directly undertaken by the Administration. Any such arrangements shall provide that no profits distributed by such agency, directly or indirectly, shall exceed a reasonable rate of interest on the capital, and any further profits shall be utilised by it for the benefit of the country in a manner approved by the Administration. ART. 12. The Mandatory shall be entrusted with the control of the foreign relations of Palestine and the right to issue exequaturs to consuls appointed by foreign Powers. He shall also be entitled to afford diplomatic and consular protection to citizens of Palestine when outside its territorial limits. ART. 13. All responsibility in connection with the Holy Places and religious buildings or sites in Palestine, including that of preserving existing rights and of securing free access to the Holy Places, religious buildings and sites and the free exercise of worship, while ensuring the requirements of public order and decorum, is assumed by the Mandatory, who shall be responsible solely to the League of Nations in all matters connected herewith, provided that nothing in this article shall prevent the Mandatory from entering into such arrangements as he may deem reasonable with the Administration for the purpose of carrying the provisions of this article into effect; and provided also that nothing in this mandate shall be construed as conferring upon the Mandatory authority to interfere with the fabric or the management of purely Moslem sacred shrines, the immunities of which are guaranteed. ART. 14. A special commission shall be appointed by the Mandatory to study, define and determine the rights and claims in connection with the Holy Places and the rights and claims relating to the different religious communities in Palestine. The method of nomination, the composition and the functions of this Commission shall be submitted to the Council of the League for its approval, and the Commission shall not be appointed or enter upon its functions without the approval of the Council. ART. 15. The Mandatory shall see that complete freedom of conscience and the free exercise of all forms of worship, subject only to the maintenance of public order and morals, are ensured to all. No discrimination of any kind shall be made between the inhabitants of Palestine on the ground of race, religion or language. No person shall be excluded from Palestine on the sole ground of his religious belief. The right of each community to maintain its own schools for the education of its own members in its own language, while conforming to such educational requirements of a general nature as the Administration may impose, shall not be denied or impaired. ART. 16. The Mandatory shall be responsible for exercising such supervision over religious or eleemosynary bodies of all faiths in Palestine as may be required for the maintenance of public order and good government. Subject to such supervision, no measures shall be taken in Palestine to obstruct or interfere with the enterprise of such bodies or to discriminate against any representative or member of them on the ground of his religion or nationality. ART. 17. The Administration of Palestine may organist on a voluntary basis the forces necessary for the preservation of peace and order, and also for the defence of the country, subject, however, to the supervision of the Mandatory, but shall not use them for purposes other than those above specified save with the consent of the Mandatory. Except for such purposes, no military, naval or air forces shall be raised or maintained by the Administration of Palestine. Nothing in this article shall preclude the Administration of Palestine from contributing to the cost of the maintenance of the forces of the Mandatory in Palestine. The Mandatory shall be entitled at all times to use the roads, railways and ports of Palestine for the movement of armed forces and the carriage of fuel and supplies. ART. 18. The Mandatory shall see that there is no discrimination in Palestine against the nationals of any State Member of the League of Nations (including companies incorporated under its laws) as compared with those of the Mandatory or of any foreign State in matters concerning taxation, commerce or navigation, the exercise of industries or professions, or in the treatment of merchant vessels or civil aircraft. Similarly, there shall be no discrimination in Palestine against goods originating in or destined for any of the said States, and there shall be freedom of transit under equitable conditions across the mandated area. Subject as aforesaid and to the other provisions of this mandate, the Administration of Palestine may, on the advice of the Mandatory, impose such taxes and customs duties as it may consider necessary, and take such steps as it may think best to promote the development of the natural resources of the country and to safeguard the interests of the population. It may also, on the advice of the Mandatory, conclude a special customs agreement with any State the territory of which in 1914 was wholly included in Asiatic Turkey or Arabia. ART. 19. The Mandatory shall adhere on behalf of the Administration of Palestine to any general international conventions already existing, or which may be concluded hereafter with the approval of the League of Nations, respecting the slave traffic, the traffic in arms and ammunition, or the traffic in drugs, or relating to commercial equality, freedom of transit and navigation, aerial navigation and postal, telegraphic and wireless communication or literary, artistic or industrial property. ART. 20. The Mandatory shall co-operate on behalf of the Administration of Palestine, so far as religious, social and other conditions may permit, in the execution of any common policy adopted by the League of Nations for preventing and combating disease, including diseases of plants and animals. ART. 21. The Mandatory shall secure the enactment within twelve months from this date, and shall ensure the execution of a Law of Antiquities based on the following rules. This law shall ensure equality of treatment in the matter of excavations and archaeological research to the nationals of all States Members of the League of Nations. (1) "Antiquity" means any construction or any product of human activity earlier than the year 1700 A. D. (2) The law for the protection of antiquities shall proceed by encouragement rather than by threat. Any person who, having discovered an antiquity without being furnished with the authorization referred to in paragraph 5, reports the same to an official of the competent Department, shall be rewarded according to the value of the discovery. (3) No antiquity may be disposed of except to the competent Department, unless this Department renounces the acquisition of any such antiquity. No antiquity may leave the country without an export licence from the said Department. (4) Any person who maliciously or negligently destroys or damages an antiquity shall be liable to a penalty to be fixed. (5) No clearing of ground or digging with the object of finding antiquities shall be permitted, under penalty of fine, except to persons authorised by the competent Department. (6) Equitable terms shall be fixed for expropriation, temporary or permanent, of lands which might be of historical or archaeological interest. (7) Authorization to excavate shall only be granted to persons who show sufficient guarantees of archaeological experience. The Administration of Palestine shall not, in granting these authorizations, act in such a way as to exclude scholars of any nation without good grounds. (8) The proceeds of excavations may be divided between the excavator and the competent Department in a proportion fixed by that Department. If division seems impossible for scientific reasons, the excavator shall receive a fair indemnity in lieu of a part of the find. ART. 22. English, Arabic and Hebrew shall be the official languages of Palestine. Any statement or inscription in Arabic on stamps or money in Palestine shall be repeated in Hebrew and any statement or inscription in Hebrew shall be repeated in Arabic. ART. 23. The Administration of Palestine shall recognise the holy days of the respective communities in Palestine as legal days of rest for the members of such communities. ART. 24. The Mandatory shall make to the Council of the League of Nations an annual report to the satisfaction of the Council as to the measures taken during the year to carry out the provisions of the mandate. Copies of all laws and regulations promulgated or issued during the year shall be communicated with the report. ART. 25. In the territories lying between the Jordan and the eastern boundary of Palestine as ultimately determined, the Mandatory shall be entitled, with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of this mandate as he may consider inapplicable to the existing local conditions, and to make such provision for the administration of the territories as he may consider suitable to those conditions, provided that no action shall be taken which is inconsistent with the provisions of Articles 15, 16 and 18. ART. 26. The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another member of the League of Nations relating to the interpretation or the application of the provisions of the mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations. ART. 27. The consent of the Council of the League of Nations is required for any modification of the terms of this mandate. ART. 28. In the event of the termination of the mandate hereby conferred upon the Mandatory, the Council of the League of Nations shall make such arrangements as may be deemed necessary for safeguarding in perpetuity, under guarantee of the League, the rights secured by Articles 13 and 14, and shall use its influence for securing, under the guarantee of the League, that the Government of Palestine will fully honour the financial obligations legitimately incurred by the Administration of Palestine during the period of the mandate, including the rights of public servants to pensions or gratuities. The present instrument shall be deposited in original in the archives of the League of Nations and certified copies shall be forwarded by the Secretary-General of the League of Nations to all members of the League. Done at London the twenty-fourth day of July, one thousand nine hundred and twenty-two. |