The story behind why the British would support the idea of establishing a “national home” for one people within the territory of another and how this novel "experiment" came to fruition is the subject of this excellent book. The author, an international law expert, describes the pivotal role that international law, and the lack of its enforcement, played in the creation of Israel and offers a general legal history of the conflict.
What makes this book important and unique is Kattan’s use of a wide range of newly disclosed historical sources, including declassified legal opinions, minutes, telegrams, reports and memoranda, in addition to traditional sources such as UN documents, books and law journals. I will highlight a few of the book’s salient points and revelations that may surprise some readers, citing a narrow selection of this extensive research and legal analysis.
Origin of the Arab-Israeli Conflict
The book begins by addressing the origins of the Arab-Israeli conflict. In Kattan’s view, the conflict is rooted in anti-Semitism and colonialism, the driving forces behind British support for Zionism and ultimately the successful colonization of Palestine and creation of Israel. Zionism, he argues, provided anti-Semites in the British government with a pretext to stem the immigration to Britain of Jews fleeing persecution in Eastern Europe and Russia by diverting them to Palestine, while also supporting Britain’s imperial aims in the Middle East.
Alien immigration was a sensitive issue in England in the early twentieth century when anti-Semitism was common even among the educated elite. Kattan quotes A.J. Balfour making abhorrent statements about the “miseries created for western civilization by the presence of [Jews]” (pp. 20-21), and arguing that their Russian persecutors “had a case of their own” since Russians “were afraid of them” (p. 20). No surprise that he led the passage of legislation in 1905 restricting Jewish immigration to Britain. Kattan argues that within this historical context, the Balfour Declaration in which the British government stated its favorable view of "the establishment in Palestine of a national home for the Jewish people" should be interpreted as Balfour’s solution to the “problem” of Jewish immigration.
If anti-Semitism provided the motive, colonialism provided the means to effect the Zionist project. The colonization of Palestine imitated other colonial models, except that it did not involve any desire to "civilize" or exploit the native population. The Zionists wanted the land with as few Arabs as possible – in Theodor Herzl’s famous words: “we shall try to spirit the penniless population across the border” (p. 34). Clearly, the Zionists had no regard for the possibility that Palestinians had a say in their destiny, or that they had a right to live on their land at all. Kattan spends much of the book analyzing exactly how far the British went in supporting this vision.
A Palestinian Right to Self-determination?
In 1937, Winston Churchill said of the Palestinians: “I do not agree that the dog in a manger has the final right to the manger, even though he may have lain there a very long time.” Putting aside the statement’s appalling racism, was he right that Palestinians were not entitled to independence and statehood in Palestine? After a comprehensive legal analysis, Kattan concludes that prevailing international law and British colonial policy provided ample support for a Palestinian right to self-determination.
The Balfour Declaration of 1917, the British Mandate of Palestine of 1922, and the UN Partition Plan of 1947, which Zionists view as the legal basis for the legitimacy of the Jewish state, in Kattan’s view also contained language that supported, implied and assumed a Palestinian right to self-determination. Although self-determination was not “an independent legal right” (p. 120) for all peoples until decolonization in the 1960s, Kattan explains that by the time the League of Nations was established in 1919, the Great Powers did apply that right to colonized peoples albeit through an “evolutionary process” via the mandate system. That system was established in the League of Nations Covenant, which referred to “certain communities formerly belonging to the Turkish Empire [which would include the Arabs of Palestine] which deserved “provisional recognition” as independent states” (p. 129). The mandate system was intended to assist colonized peoples to advance to a stage of development at which they could govern themselves. Palestine’s “A-Class” mandate status meant that it was considered sufficiently advanced to merit “provisional recognition” of independence.
The contradiction between Zionism and the above principles is obvious, however. Not only were the indigenous Palestinians outraged by the British Mandate, with its provision for a "Jewish national home" in their homeland, the policy was controversial among British officials as well. Balfour’s successor Lord Curzon remarked sardonically: “it is quite clear that this mandate has been drawn up by someone reeling under the fumes of Zionism” (p. 124). He spent much of his tenure as Foreign Secretary attempting to dilute the provisions for the "Jewish national home." For example, Kattan reveals minutes and correspondence indicating the word "claim" in relation to Zionists’ rights in Palestine was omitted from the Mandate re-draft on the ground that Britain intended merely to “make room” for a Jewish national home, not to reconstitute Palestine as a Jewish state (p. 124).
Kattan also argues that the terms of the Mandate envisaged “one people for the purpose of self-determination…with Jewish self-determination envisaged only within the context of the self-determination of Palestine as a whole” (p. 128). In his view, the Mandate’s failure to mention Arabs in Palestine by name (instead of indirectly as “non-Jewish inhabitants”) did not negate their rights; and the reason the Mandate contained so many provisions to establish the Jewish national home was that the vast majority of Jews in the early 1920s were not physically present in Palestine while the Arabs already had centuries of continuous occupation there.
In support of this argument, Kattan cites documents such as the 1939 White Paper published by the British government, which stated that its objective in Palestine was the establishment of “an independent state in which two peoples, Arabs and Jews, share authority in government in such a way that the essential interests of each are shared” (p. 122); and a 1922 White Paper drafted by Winston Churchill which declared that “the status of all citizens of Palestine in the eyes of the law shall be Palestinian and it has never been intended that they, or any section of them, should possess any other juridical status” (p. 128).
Clearly, though, whatever right to self-governance had been recognized for Palestinians, that right was seriously compromised by the Balfour Declaration. But Kattan points out that even that document contained clauses safeguarding the civil and religious rights of non-Jewish communities in Palestine, and referred to a Jewish home within Palestine, not a Jewish state. While it has been argued that absence of the word "political" negated Palestinian self-determination rights, Kattan cites sources that suggest otherwise, such as Mandate drafting discussions in which Lord Curzon noted that under British law, civil rights included political rights. Much of the private correspondence and memoranda Kattan reveals indicate that when British officials communicated among themselves, a Palestinian right to self-determination was assumed and even explicitly recognized. Lord Balfour himself, chief architect of the "national home policy,” admitted in private correspondence with Lord Curzon that the Zionists’ “position was weak” because it “declined to accept the principle of self-determination” of Palestine’s “present inhabitants,” and that Zionism was a “flagrant” contradiction of “the letter of the [League of Nations] Covenant” (p. 123).
There is a difficulty, however, with Kattan’s use of opinions expressed in private to interpret legal documents and public statements in that he does not always take into account that the colonial powers often engaged in double-speak, claiming to protect those they were simultaneously oppressing. The mere fact that British officials privately spoke of certain Palestinian rights does not necessarily mean they intended to protect those rights in legally binding documents or statements of official policy that were in all likelihood deliberately vague and ambiguous. Should the back-tracking in the White Papers and redraft of the Mandate, for instance, be taken at face value, or was it really calculated political maneuvering designed to quell Arab anger? Perhaps more skepticism is called for in drawing a link between British officials’ private knowledge and public actions.
Whatever the British intended regarding the level of compromise of Palestinian rights, one can conclude that although colonialism was still "legal" during this period, international law had advanced to a stage where rights of indigenous peoples, including the right to self-determination, were recognized and to be protected. The establishment of a national home, not to mention a state, for a people with no connection to a territory other than a claim of exile nineteen hundred years earlier, in a land where they were vastly outnumbered by a people with centuries of continuous residence was as much an anomaly then as it would be today.
Misconceptions About Israel’s Creation
Israelis today generally point to the UN Partition Plan as the basis for legitimacy of the Jewish state. Kattan makes a strong case that Israel could not legally have achieved statehood via the UN Partition Plan because, on its own, the resolution (UN General Assembly Resolution 181) was non-binding, and it was not implemented by the UN Security Council or the British, as would have been required for it to become binding. His argument is based on the fact that the UN Charter generally only grants the General Assembly the authority to make non-binding resolutions; the authorization of Resolution 181 by Article 10, which only authorizes non-binding resolutions; the language of the resolution which is explicit in its being a recommendation; and the opinion of the UN Secretariat at the time that the Resolution effecting partition had ‘no obligatory character whatsoever’ although the Security Council could choose to enforce the plan (p.155). Thus, it was up to the UN Security Council or the British as the mandatory power to enforce the plan, and both declined to do so.
Legal technicalities about enforcement aside, in practical effect the partition resolution gave the Zionists the legitimacy they needed to establish the Jewish state. Lack of enforcement would have defeated their claim to legitimacy, however, if events at the UN had not been pre-empted by the outbreak of hostilities on the ground. Kattan recounts a sequence of legal events just prior to the war between the Zionist militias and the Arab armies that may surprise some readers.
When it came time to enforce the partition plan, it finally dawned on the US that the plan was practically unenforceable, of questionable legality and clearly unjust. They could not secure the necessary votes in the Security Council for enforcement and the British refused to do so as well. Arab representatives accused the US of undue influence on weaker states to vote in favor of partition, and argued convincingly that their right to self-determination was disregarded. The inequity of the partition was obvious. Jews were granted fifty-seven percent of the land although they constituted only thirty-three percent of the population and Zionist organizations controlled less than seven percent of the country's territory, and they were allotted eight-four percent of the agricultural land, while agriculture was the historic core of the economy in Palestine and citrus fruit the largest export. Jews were also given most of the Naqab (Negev) though they made up less than one percent of its population.
Kattan explains that, faced with the prospect of implementing an unworkable partition plan by force, the U.S. did an about-face and proposed a UN trusteeship which provided, among other things, that there would be one state of Palestine, that Arabs and Jews would agree on their form of government by referendum, and that future immigration would not be based on race or religion. In short, the trusteeship would have protected the right to self-determination of both peoples. As it turned out, the trusteeship was never voted on as war had begun and the Zionists ultimately imposed their own version of partition by force, going well beyond the recommendations of the partition plan, driving hundreds of thousands of Palestinians from their homes through deliberate and carefully planned military operations. Ultimately, partition was effected through the 1949 armistice agreements with the surrounding Arab states.
On 14 May 1948, Israel unilaterally declared its independence. Kattan reveals that the U.S. delegation to the UN, working to effect an equitable solution to the conflict, was stunned by Truman’s immediate recognition of the Israeli state. They had received no warning. Apparently, U.S. diplomats (according to declassified top secret memoranda) did not view the idea of a Jewish state favorably, and did not believe the Balfour Declaration required that they support one.
As the UN had not been given the opportunity to vote on the trusteeship and implement a different vision, the partition resolution has remained in effect, providing Zionists with a credible argument that it established their state. However, despite what Zionists and their representatives assert today, Kattan reveals that Israel could not, as a legal matter, have been established by the UN Partition Plan, and was in reality established by conquest.
Israel's “Exceptional” Nature
In one of Lord Balfour’s rhapsodies on Zionism’s blissful promise, he states: “I cannot help thinking that this experiment … is a great experiment, because nothing like it has ever been tried in the world, and because it is entirely novel” (p. 251). In Balfour’s mind, Zionism and Israel were “absolutely exceptional” – as Kattan puts it, “It was special. It was sui generis” (p. 251).
Unfortunately, this special status has also been granted to Israel by the UN, the body with the most significant mechanisms to enforce international law. The UN has accorded Israel virtual impunity since its establishment (and arguably in the manner of its establishment during the 1948 war, also addressed in this book). Israeli leaders illegally resisted the return of the refugees following the 1948 war and the U.S., bowing to the antecedents of the political forces it caters to today, did not use its power to enforce a condition on Israel’s entry to the UN which required its compliance with international law on the question of refugees. The Holocaust, and the refusal of other nations to accept displaced European Jews undoubtedly played a part in this leniency; yet this does not excuse the failure of the UN to enforce international law vis-à-vis Israel. Even when the UN has attempted to discipline the Jewish state, through annual affirmations of the refugees’ right of return, and UN Security Council Resolution 242 ordering withdrawal from the occupied Palestinian territory, Israel simply ignores the law without consequence.
Over six decades of legal impunity, the catalog of Israeli brutality and human rights violations has become vast. It includes: torture, illegal detention, assassination; assaults against civilians with missiles, helicopters, and jet fighters; annexation of territory; transfer of civilians for purpose of imprisonment; mass killing as in Gaza, Qana, Jenin, Sabra and Shatila; denial of rights to free passage and unimpeded civilian movement, education, and medical aid; use of civilians as human shields; humiliation; house demolitions on a mass scale; destruction of agricultural land; expropriation of water; illegal settlements; economic pauperization; attacks on hospitals, medical workers, and ambulances; and the killing of UN personnel, all carried on with UN acquiescence. Even when a UN fact-finding commission finally had the temerity to report evidence of war crimes by Israeli soldiers in the Goldstone Report covering events in Gaza earlier this year, accountability is a remote prospect.
What has Israel gained by this impunity? Territory that can only be retained through a costly and brutal military occupation. Increasingly, its officials risk arrest when they travel abroad. Comparisons with apartheid South Africa are ubiquitous. In fact, while some might argue Israeli impunity proves the irrelevance of international law, one could view it as proof of the indispensability of international law in that Israel has never known peace. Given consistent Arab opposition to Zionism since the nineteenth century, most likely it never will – that is, as a nation led by a Zionist regime.
As Kattan concludes “in the end it is unlikely that a lasting peace would subsist unless it is based on equity, justice and principles of international law, which have been sidelined throughout the course of the Arab-Israeli conflict to the detriment of all concerned” (p. 261).