CHAPTER THIRTY SEVEN — Part 2 of 2

 

Referring to the "A" Class Mandates, the League of Nations study stated:

In a first group — "A" Mandates (Syria and Lebanon, Palestine and Transjordan, and Iraq) - the nation is provisionally recognized as independent, but receives the advice and assistance of a Mandatory in its administration until such time as it is able to stand alone. (55)

The Study further stated:

The "A" Mandates differ appreciably from those of the other two categories. In the countries to which they apply, the inhabitants have reached a more advanced stage of development and their independence could, in principle, be recognized by the Covenant itself, subject to the conditions which have been mentioned above. The mission of the Mandatories in these countries has therefore consisted mainly in developing their capacity to govern themselves, in establishing their economic systems and social and other institutions on a more secure footing in order to fit them to take their position as independent nations. (56)

Referring to the Mandate over Palestine, the League of Nations states:

The Mandatory is to be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, 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 .... While ensuring that the rights and position of other sections of the population are not prejudiced, the Administration, for its part, must facilitate Jewish immigration under suitable conditions ... A nationality law is to be enacted containing provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine .... The Administration is to take all necessary measures to safeguard the interests of the community in connection with the development of the country.... In the event of the termination of the mandate, it is for the Council to make all necessary arrangements for safeguarding in perpetuity, under guarantee of the League, the rights secured by the mandate in respect of the Holy Places. (57)

In its meeting at San Remo, Italy, on April 25, 1920, the Supreme Council allotted the Mandates to different countries, and gave the Mandate over Palestine to Great Britain. The decision stated:

(a) To accept the terms of the Mandates Article as given below with reference to Palestine, on the understanding that there was inserted in the proces-verbal an undertaking by the Mandatory Power that this would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine. (55)

SOVEREIGNTY IN MANDATED TERRITORY

Many academic discussions were conducted by professors of international law as to where the sovereignty in mandated territories actually resides. Some stated that it resides in the Principal Allied and Associated Powers. Others stated that sovereignty resides in the Council of the League of Nations. Others stated that it resides in the Mandatory Power. Others stated that sovereignty resides in the people of the mandated territory, but that it is exercised on their behalf by the mandatory power until the mandate is terminated. As soon as the mandate is terminated, the country becomes independent and sovereign, as happened in all the mandated territories whether of Class A, B or C. Therefore, it is logical to assume that sovereignty lies in the inhabitants of the territory and that that is the only logical interpretation of Article XXII of the Covenant of the League of Nations. Professor J. Stoyanovsky, in a book dealing with the mandates system, arrived at the conclusion "that the mandated territories are only deprived of the exercise of their sovereignty powers, while the right of sovereignty is theirs by virtue of the principles of nationality and self-determination which are the foundations of modem international law." (59) Professor M. Paul Pic in his book Revue Generale de Droit International Public, stated that "the mandated territories belong virtually to the populations or to the autonomous communities. The League of Nations is their protector and family adviser." (60)

This theory is in accordance with the principle of self-determination of peoples which was advocated by President Wilson and other world leaders in the Paris Peace Conference. It marked the end of Colonialism because it was agreed that no new territory should be annexed by the victorious powers and that these territories should be administered solely for the benefit of the indigenous populations of these territories. Palestine, Syria, Lebanon, Jordan and Iraq were Arab countries under Turkish Colonialism. Turkey renounced its administrations and sovereignty over these territories by the Treaty of Lausanne in 1923. Article 16 of the said Treaty reads as follows:

Turkey hereby renounces all rights and title whatsoever over or respecting the territories situated outside the frontiers laid down in the present treaty and the islands other than those over which her sovereignty is recognized by the said treaty, the future of these territories and islands being settled or to be settled by the parties concerned.

This means that by the Treaty of Lausanne, Turkey renounced its sovereignty in favor of the inhabitants of these territories. The Paris Peace Conference decided to settle the future of these territories by recognizing them as "provisionally independent nations subject to the rendering of administrative advice and assistance by a mandatory until such time as they are able to stand alone."

The mandatory power is, therefore, in a position of a guardian or a trustee, and its duty is to guarantee the interest and well-being of the inhabitants of the territory until the termination of the mandate and the assumption by these territories of their independence as sovereign nations. As soon as the mandate is terminated, the country is supposed to be admitted to membership in the League of Nations. This happened in the case of Iraq, Syria and Lebanon became independent and sovereign nations at the end of World War II. This should also have happened in the case of Palestine. The British Mandatory Power intended to bring this about when it issued the White Paper in 1939 in which it stated that its object is ''the establishment within ten years of an independent Palestine state. The independent state should be one in which Arabs and Jews, the inhabitants of the country, will share in government in such a way as to ensure the essential interests of each community are safeguarded."

The British Government terminated the Mandate over Palestine by the Palestine Act of 1948 which states:

1. (1) On the fifteenth day of May, nineteen hundred and forty-eight, or such earlier date as His Majesty may by Order in Council declare to be the date on which the mandate in respect of Palestine accepted by His Majesty on behalf of the League of Nations will be relinquished ..., all jurisdiction of His Majesty in Palestine shall terminate, and His Majesty's Government in the United Kingdom shall cease to be responsible for the government of Palestine."

THE POSITION OF PALESTINE UNDER INTERNATIONAL LAW

The legal position of Palestine under international law was that it was a provisionally independent state receiving administrative assistance and advice from the Mandatory. The sovereignty was vested in the people of Palestine, but it was a dormant sovereignty exercised on behalf of the people of Palestine by the Mandatory power.

The British administration set up the Govemment of Piilestine. Palestine had its own fixed boundaries, its own nationality and its own currency. The Government of Palestine entered into hundreds of agreements on behalf of the people of Palestine with various mandated territories or sovereign governments.

Article 28 of the Mandate contemplated that at the termination of the Mandate, the territory of Palestine would pass to the control of "the Govemment of Palestine.'' The termination of the Mandate on the 15th day of May, 1948, fully vested sovereignty over Palestine in the inhabitants of the country. Palestine had become a sovereign, independent nation in fulfillment of Paragraph 4 of Article XXII of the Covenant of the League of Nations and also in accordance with the terms of the Mandate, the British White Paper of 1922, the British White Paper of 1939 and according to the inalienable rights of the people of Palestine to self-determination and independence. ln 1948, the majority of the people in Palestine were the 1,440,000 Muslim and Christian Palestinian Arabs. They were the indigenous inhabitants of the country whose existence as a provisionally independent nation had been recognized by Article XXII of the Covenant of the League of Nations. There was also in Palestine a Jewish minority of 718,700 of whom 253,700 were indigenous citizens of Palestime, 247,000 who were naturalized Palestinian citizens, and 216,Om who were aliens and illegal immigrants. The Palestinian Arab citizens were 74% of the population of Palestine and the Palestinian Jewish citizens were 26%. (61)

The termination of the Mandate and withdrawal of the forces of the Mandatory from the country opened the way for the establishment of an independent sovereign government in Palestine by the people of the country without the intervention either of the United Nations or any other foreign power. If the United Nations had any role to play in order to preserve international peace and security, it should have intervened only to assist the majority of the people of Palestine agdinst the Jewish minority whose leaders were committing war crimes, crimes against humanity and genocide against the indigenous population of Palestine.

WHAT WAS THE EFFECT OF THE RESOLUTION OF THE UNITED NATIONS GENERAL ASSEMBLY TO PARTITION PALESTINE?

The General Assembly in its 91st meeting, on the 23rd day of September, 1947, referred three items from the Agenda to the Ad Hoc Committee on the Palestine question: 1. Question of Palestine: item proposed by the United Kingdom; 2. Report of the United Nations Special Committee on Palestine: 3. Termination of the Mandate over Palestine and recognition of its independence as one State: item proposed by Saudi Arabia and Iraq.

The Ad Hoc Committee discussed these questions and appointed a sub-committee to study the scheme of partition of Palestine into an Arab and Jewish state and an international regime for Jerusalem. Another sub-committee was to study the proposal of establishing a unitary State in Palestine in which the Democratic Constitution would guaantee the human rights and fundamental freedoms of all its citizens without distinction as to race, language or religion. The Ad Hoc Committee submitted the reports ofthe two sub-committees to the General Assembly. After discussing the problem, there was great pressure from the United States Delegation and thc Soviet Delegation to adopt the Resolution to partition Palestine. The partition resolution known as Resolution 181 (11) recommended the partition of Palestine into an Arab state, a Jewish state and a special intemational regime for the city of Jerusalem. The United Kingdom, as the Mandatory Power, did not support the said Resolution, and in spite of the maneuvers and pressures by the big powers, the partition Resolution was adopted only by 33 votes in favor, 13 opposed and 10 abstentions. The General Assembly did not approve a resolution for submitting the Palestine question to the International Court of Justice to determine whether the United Nations had any jurisdiction to recommend the partition of Palestine or any other country.

It is submitted that the United Nations General Assembly had no jurisdiction to recommend the partition of Palestine because it had no jurisdiction under the Charter to destroy the territorial, political, geographic and economic unity of Palestine against the wishes of the overwhelming majority of the population of that country. The United Nations had no right to dispose of any part of Palestine and deprive the majority of the people of Palestine of their territory and transfer it to the exclusive use of an alien Jewish minority for the establishment of a foreign state in a part of Palestine, especially since the area allocated to the Jewish state had a majority of Christian and Muslim Arabs.

In spite of this contention, certain aspects of that resolution should be discussed. The areas of the Arab and Jewish states were defined as shown by the map of partition and the special regime for Jerusalem. It was stated in the said Resolution that "no discrimination of any kind shall be made between the inhabitants on the grounds of race, religion, language or sex." It was also stated that "the family law and personal status of the various endowments, shall be respected." It was further provided that "no expropriation of land owned by an Arab in the Jewish State (or by a Jew in the Arab State) shall be allowed except for public purposes. In all cases of expropriation full compensation as fixed by the Supreme Court shall be paid previous to dispossession." It was also recommended that there shall be an economic union of Palestine between the three parts.

Having realized that the partition resolution could not be implemented except by force, the United Nations Security Council adopted a resolution on the 1st day of April, 1948 "requesting the Secretary-General, in accordance with Article 20 of the United Nations Charter, to convoke a special session of the Genera1 Assembly to consider further the question of the future government of Palestine."

A Special Session of the General Assembly convened to discuss the future government of Palestine. While the session was discussing the subject, the Security Council adopted another resolution on April 17, 1948, in which it called upcn all persons and organizations in Palestine, and especially upon the Arab Higher Committee and the Jewish Agency, to take immediately, without prejudice to the rights, claims or positions of either community, and as a contribution to the well-being and permanent interests of Palestine, the following measures: (a) Cease all activities of a military or paramilitary nature, as well as acts of violence, terrorism and sabotage; (b) Refrain, pending further consideration of the future government of Palestine by the General Assembly, from any political activity which might prejudice the rights, claims, or position of either community.

The United States mission to the United Nations submitted a proposal for establishing a temporary United Nations Trusteeship for Palestine until the United Nations General Assembly was able to find a peaceful solution to the Palestine problem.

While the United Nations General Assembly was debating the Trusteeship Plan submitted by the United States Delegation, 37 representatives of Zionist parties met in Tel Aviv and issued what they termed a "Declaration of Independence."

WHAT WAS THE EFFECT OF THE SO-CALLED DECLARATION OF INDEPENDENCE BY ZIONIST LEADERS?

On the 14th day of May, 1948, 37 Zionist leaders representing Zionist parties throughout the world met in Tel Aviv and signed what they called a "DecIaration of Independence." Out of the 37, only one was born in Palestine. 13 were born in Russia, 11 in Poland, 2 in Romania, 2 in Germany, 2 in Latvia, 2 in Lithuania, one in Austria, one in Hungary, one in Denmark, and one in Yemen. Most of them migrated to Palestine between 1920 and 1940, and one of them came to Palestine only in 1947. It must be recalled that the minority of Jews in Palestine at that time totalled 716,000 persons, out of whom only 253,700 were indigenous Palestinians, 247,000 Jews who were naturalized Palestinian citizens, and 216,000 Jews who were alien illegal immigrants.

The said "Declaration of Independence" based its legitimacy on the United Nations Partition Resolution. It stated:

"On the 29th November, 1947, the United Nations General Assembly passed a resolution calling for the establishment of a Jewish State in Eretii-Israel; the General Assembly required the inhabitants of Eretz-Israel to take such steps as were necessary on their part for the implementation of that resolution. This recognition by the United Nations of the right of the Jewish people to establish their State is irrevocable."

The Declaration stated further: "the State of Israel will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations."

It also stated further "we appeal to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.''

Before this Declaration was made and thereafter, Zionist terrorist organizations, the Haganah, the Irgun and the Stem, were massacring and expelling Arabs and destroying their homes and villages. From 1948 to 1949, they expelled 452,780, from the boundaries defined for the Jewish state by the United Nations Resolution and expelled 347,220 from the areas they occupied outside the boundaries of the so-called Jewish state. They destroyed the homes and buildings in small towns and villages, completely erasing the buildings, the Mosques, the cemeteries in such a way that the Arab refugees whom they expelled would never be able to return to their homes in their towns and villages. They also occupied Arab homes, shops and commercial buildings in twelve cities and towns which fell under Zionist occupation. They are: Acre, Beisan, Nazareth, Safad, Tiberias, Haifa, Lydda, Ramleh, Jaffa, Beersheba, Jerusalem and Majdal.

This so-called "Declaration of Independence'' has no validity in international law because the United Nations has no right to grant the Jewish minority any right to establish a state. On the other hand, the Zionist war criminals violated every term of the United Nations Partition Resolution. They did not limit themselves to the boundaries specified by the United Nations Partition Resolution which amounted to 56.47% of the territory of Palestine but occupied 80% of the territory of Palestine, They expelled the majority of the Palestinian Arabs and destroyed their homes and villages, churches, mosques and cemeteries in contravention to the undertakings imposed by the Partition Resolution.

ISRAEL IS NOT A STATE ACCORDING TO INTERNATIONAL LAW

Applying the principles of international law to the Palestine problem, it can be seen that so-called Israel is not a State either in fact or in law on the following grounds:

1. The Balfour Declaration in which the United Kingdom Government "views with favor the establishment in Palestine of a National Home for the Jewish people" has no validity whatsoever. The United Kingdom did not own Palestine and had no relation whatsoever with Palestine in 1916, when it agreed with Zionist leaders to issue such a declaration in consideration for Zionist influence to bring the United States into World War I. This Declaration was both illegal and immoral. Although the said Declaration was injected in the Mandate for Palestine by power politics, it still remained invalid.

2. Article XXII of the Covenant of the League of Nations recognized the people of Palestine as a provisionaIly independent nation subject to the rendering of administrative assistance and advice by a Mandatory until they were able to stand alone. The injection of the Balfour Declaration in the Mandate against the wishes of the people of Palestine did not give any rights to alien Jews who were living in Europe and America. Their immigration to Palestine against the wishes of the majority of the people in Palestine was also illegal.

3. The British White Paper of 1922 and the British White Paper of 1939 fully explained what the United Kingdom meant by a Jewish National Home: a religious or a cultural center. The intention of the Mandatory Power was explained in the various White Papers, and more particularly in the White Paper of 1939, that within ten years an independent Palestine State would become a sovereign state in which the Arab majority and the Jewish minority would share in the Democratic Government of the State. The implementation of this project and the fulfillment of the objectives of the Mandate was interrupted by the outbreak of World War II and by the terrorism committed by the three terrorist Zionist organizations, the Irgun, Haganah and Stern Gang between 1939 and 1948.

4. The United Nations General Assembly had no right or jurisdiction to destroy the territorial integrity of Palestine and propose its partition into an Arab State, Jewish State and an International Regime for Jerusalem. Even the Mandatory Power did not support such a Resolution and, therefore, it is null and void. Moreover, the United Nations Security Council, on the 1st day of April, 1948, called for a Special Session of the United Nations to consider further the future government of Palestine. On the 17th day of April, 1948, the United Nations Security Council called upon the Arab Higher Comittee for Palestine and the Jewish Agency "to refrain, pending further consideration of the future government of Palestine by the General Assembly, from any political activity which might prejudice the rights, claims, or position of either community." While the United Nations General Assembly was considering the Trusteeship Plan for Palestine, 37 Zionist leaders signed what they called a "Declaration of Independence" and claimed to have established the so-called State of Israel. While relying on the Partition Resolution of the General Assembly, Zionist war criminals violated the letter and spirit of the said Resolution and committed the following war crimes, crimes against humanity, and genocide:

(a) They expelled over 800,000 Palestinians from the area supposed to be allotted to the Jewish State and from another 2,400 square miles which they occupied from the area allotted to the Arab State and the International Regime of Jerusalem.

(b) They committed massacres of Palestinian men, women and children.

(c) They looted, pillaged and plundered all the personal and real property of Palestinians in twelve cities and Palestinian villages.

(d) They destroyed the homes, commercial buildings, churches, mosques and Muslim and Christian cemeteries in Palestinian Arab small towns and villages.

(e) They violated the national, political, civil and religious rights of the Palestinians and destroyed the territorial integrity of Palestine, thereby committing the crime of genocide against the Pdlestinians.

5. So-called Israel does not qualify in fact as a state because it does not have the requisites of a state. A state is a juristic person in International Law and can only be considered a state where the material conditions of statehood are fulfilled by that juristic person. ProfessorJohn Bassett Moore, in his book International Law Digest, Volume 1, pp. 14-15, states:

For all purposes of International Law, a state may be defined to be a people permanently occupying a fixed territory, bound together by common laws, habits. and customs into one body politic, exercising, through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries capable of making war and peace, and entering into all international relations with other communities in the globe.

Let us examine the facts regarding the so-called State of Israel.

THE PEOPLE OF THE SO-CALLED STATE

Under international law, the population of citizens of a state may be defined as the body of persons which is regarded by International Law as belonging to that state as its population. Professor Moore states "that the people must be bound together by common law, habits and customs into one body politic." In the area in which so-called Israel was declared, as we have shown above, the majority of the people were Palestinian Arabs. In that area, there were only 5W,700 native-born or naturalized Palestinian Jews and the rest were alien Jews. The Zionist terrorist organizations expelled the indigenous population and that constituted a war crime. Therefore, socalled Israel did not have a people that fulfilled the qualifications of a people of a State.

THE TERRITORY OF THE SO-CALLED STATE

The territory of any state must belong to the people of that state. It is the territorial property of the state, and it must not belong to the territory of any other state. The possession of the territory by the people who declare themselves a state must be a legitimate possession. It could not have been acquired by war or conquest or aggression or by committing war crimes and the crime of genocide. As we have shown in the legal principles adopted by the civilized nations in recognizing a state, it must be shown that the state's possession of the territory is legitimate. Civilized nations will not recognize any territorial possession or arrangement which has not been obtained by peaceful means and will not recognize the validity of territorial acquisitions which may have been occupied through conquest by force of arms. This is exactly what happened in Palestine because the minority of Palestinian and alien Jews, by force of arms, massacre and compulsion, expelled the Palestinian majority and occupied their territory, homes, land and possessions. These acts constitute war crimes for which the leaders who claim to be the "government" of the so-called State of Israel should be tried as war criminals.

GOVERNMENT AND SOVEREIGNTY

Another requisite of a state is that there must be a sovereign government. What existed in the so-called Jewish state in 1948 were three Zionist terrorist organizations. They could not be considered a government of a so-called state because they were war criminals who violated the integrity of the state of Palestine, massacred thousands of its people, expelled more than 800,000 Palestinians, looted, pillaged and plundered Palestinian homes, lands and possessions and destroyed their villages. How could such war criminals be considered a lawful government of a civilized state?

The Sovereignty in Palestine is vested in the people of Palestine and not in a transplanted Jewish minority, less than 60% of whom are Palestinian citizens and of whom the rest are alien immigrants.

According to the Doctrine of Non-Recognition adopted by civilized nations, they will not recognize a state if that socalled stale discriminates against an ethnic or religious minority in the territory it occupies. What would be the position if the minority not only discriminates against the majority but expels the majority, destroys its villages and homes and pillages and usurps its lands, homes and properties?

THE ADMISSION OF SO-CALLED ISRAEL TO THE UNITED NATIONS MEMBERSHIP WAS VOID AB INITIO AND HAS NO VALIDITY UNDER INTERNATIONAL LAW

We have explained above the historical facts which led to the tragedy of Palestine. We proved how the alien Zionist Jews invaded Palestine, expelled its indigenous citizens, and committed against the Palestinians war crimes, crimes against humanity, and genocide. We have also stated the principles of international law regarding invasion, occupation and acquiring territory by conquest.

Can a naturalized Palestinian citizen, who is a Jew, expel a native Palestinian citizen who is a Muslim or a Christian? If not, can a Jew, who is an alien illegal immigrant in Palestine, do so? If a minority of Jews by force and violence occupied 80% of Palestine, what right do these Jews have in Palestine as occupants under international law? Can these Jews legally claim they are a "Jewish State"? Can these Jews claim sovereignty in Palestine under international law?

CITIZENS CANNOT EXPEL CITIZENS

A citizen of a state cannot expel another citizen. A State cannot expel or exile a native citizen. Since the First World War the international community has endeavored to lay down rules for the protection of minorities safeguarding their rights to life, liberty and religious freedom. The maxim adopted was that all citizens were to be equal before the law, enjoy the same civil and political rights without any distinction due to race, language or religion. It also provided that minorities of any state could petition the kague of Nations if these rights were violated.

The preamble of the United Nations Charterreaffirms faith in fundamental human rights, in the dignity and the worth of the human person, in the equal rights of men and women, of nations large and small. The Declaration of Human Rights guarantees against violation of the rights of the individual, These principles of international law support our contention that the minority of the naturalized Palestine Jews could not expel the majority of the citizens of Palestine from their ancestral homeland and deprive them of their citizenship, their political, religious and civil rights, and their right to political independence and self-determination.

If international law affords protection to minorities and guarantees their rights and freedoms, is it not legal and logical to assume that the same protection is afforded to the majority against the minority?

ALIENS CANNOT EXPEL CITIZENS

If Palestinian Jews cannot deprive Palestinian Arabs of their rights* under what principle of international law and justice can alien Zionist Jews, legal or illegal residents in Palestine, deprive the indigenous Arab Palestinian population of sovereignty and birthright in their homeland?

According to the principles of international law, "the natural home and field of human activity of every human being is his home state. He cannot claim any right to be admitted to, or settle in, foreign states. If admitted, he is merely a guest who must put up with the conditions offered him. He must obey the general laws of the land; being a foreigner, he must put up with the lack of many advantages conferred on the natives. If he is not satisfied, he can leave theco~ntry." (62) In the present case, alien Zionist Jews illegally in occupation of Palestine claim every right and deny the lawful indigenous population all their rights.

THE ZIONISTS USED FORCE IN DEFIANCE OF UNITED NATIONS

Commenting on the use of force and any change that might take place in Palestine, Senator Warren Austin, United States Ambassador to the United Nations, in a statement to the Security Council on April I, 1948, described the legal position in Palestine as fol1ows: "So long as there is a mandate no other country or people has the right to use military force in Palestine. Until an agreement is entered into which transmits this responsibility from the United Kingdom to its successor, the Security Council has the responsibility of trying to maintain order and peace in Palestine." (63)

Yet, by an armed insurrection and in defiance of the General Assembly of the United Nations and the Security Council, Zionists occupied 80% of Palestine and "proclaimed" themselves the so-called "State of Israel."

OCCUPATION OF PALESTINE BY ZIONISTS ILLEGAL

These principles of international law establish beyond any shadow of doubt that the occupation of 80% of Palestine by a minority of Jews was illegal. Under international law Zionists could not establish a state in Palestine. They could not substitute a new government structure. They could not change the nationality of the inhabitants. They could not replace the Arabic language. They could not expel, exile or forcibly transfer the population of Palestine. They could not occupy the public property of the Government of Palestine or occupy, appropriate, dispose of, or pillage the private property of the indigenous inhabitants of the country.

The General Assembly should be guided by the Advisory Opinion of the International Court of Justice of June 21, 1971, entitled Legal Consequences For States of the Continued Presence of South Africa in Namibia (South West Africa Nowithsfanding Security Council Resolution 276 (1970). (64)

The Court confirmed that the acquisition of territory by force or the annexation of territory, are inadmissible under international law. Judge Amoun in his opinion stated:

For while the law of former times, as in the 1885 Act of Berlin and the Treaties of Bardo and Algeciras and numerous other treaties, tolerated conquest and annexation, of which South Africa's conduct appears to be one of the latest examples, modem law, that of the United Nations Charter, the Pact of Bogota and the Charter of Addis Ababa, condemns them beyond reprieve, Annexation is nothing less than the negation of the new law of self-determination, Thus the United Nations has reiterated that acquisition of a territory may not be effected by the use or the threat of force. In its recent resolution 2628 (XXV), of 4 November 1970, the General Assembly "reaffims that the acquisition of territories by force is inadmissible,'' and that consequently the occupied territories must be restored. Nonetheless, South Africa has throughout, and even before the Court, sought to justify its continued occupation of Namibia by claiming to be there by right of conquest or by the effect of acquisitive prescription. The Court has dismissed this claim in paragraphs 85 and 86 of the Opinion. The most categorical argument on the point would have been that conquest and acquisitive prescription have totally disappeared from the new la^, which has condemned war and proclaimed the inalienability of sovereignty. (65)

A MANDATORY POWER CANNOT ANNEX THE MANDATED TERRITORY

The International Court of Justice stated in its advisory opinion in the case of the International Status of Southwest Africa in 1950 that the mandates' system was created by Articles XXII of the Covenant of the League of Nations with view to giving practical effect to two principles of paramount iniportance, namely "the principle of non-annexation and the principle of the well-being and the development of such peoples form a 'sacred trust of civilization.''' (66)

Referring to the claim of South Africa that its right to adminster Namibia was not derived from the mandate but from military conquests, the International Court of Justice in its advisory opinion regarding "legal consequences for states of the continued presence of South Africa in Namibia (Southwest Africa) notwithstanding Security Council Resolution 276 (1970)" stated:

"South Africa has for a long time contended that the Mandate is no longer legally in force, and that South Africa's right to administer the territory is not derived from the Mandate but from military conquest, together with South Africa's openly declared and consistent practice of continuing to adminster the Territory as a sacred trust towards the inhabitants."

In the present proceedings the representative of South Africa maintained on 15 March 1971:

"...if it is accepted that the Mandate has lapsed, the South African Government would have the right to administer the Territory by reason of a combination of factors, being (a) its original conquest: (b) its long occupation; (c) the continuation of the sacrcd trust basis agreed upon in 1920; and, finally (d) because its administration is to the benefit of the inhabitants of the Territory and is desired by them. In these circumstances the South African Government cannot accept that any State or organization can have a better title to the Territory.''

These claims of title, which apart from other considerations are inadmissible in regard to a mandated territory. lead by South Africa's own admission to a situation which vitiates the object and purpose of the Mandate. Their significance in the context of the sacred trust has best been revealed by a statement made by the representative of South Africa in the present proceedings on 15 March 1971: "it is the view of the South African Government that no legal provision prevents its annexing South West Africa." As the Court pointed out in its Advisory Opinion on the International Status of Soiith- West Africa, "the principle of non-annexation" was "considered to be of paramount importance" when the future of South West Africa and other territories was the subject of decision after the First World War (I.C.J. Reports 1950, p. 131). What was in consequence excluded by Article 22 of the League Covenant is even less acceptable today. (67)

If South Africa as a mandatory power cannot annex Namibia and Great Britain as a mandatory cannot annex the territory of Palestine, the minority of Jewish Palestinian citizens and aliens who came to Palestine during the mandate period cannot annex 80% of the territory of Palestine by force and violence, they cannot violate the territorial integrity of the country, expel 800,000 Palestinian citizens of the Christian and Muslim faith, dispossess them of their political. civil and religious rights, usurp their lands and properties, declare a Jewish State and transfer 80% of mandated Palestine to the exclusive use of the Jewish minority. These acts which were committed by the Jewish minority of citizens and aliens constitute war crimes, crimes against humanity and genocide. The continued occupation of 80% of Palestine by the Zionist war criminals from 1948 up to the present day is illegal and the declaration of independence of a so-called Jewish State is invalid. Furthermore, the occupation by so-called Israel of the remaining 20% of Palestine in 1967, namely the West Bank and Gaza, was an aggression and the continued occupation of the West Bank and Gaza is also illegal.

In the case of Namibia, the International Court of Justice stated in its advisory opinion of 1971 the following:

Having reached these conclusions, the Court will now address itself to the legal consequences arising for States from the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970). A binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence. Once the Court is faced with such a situation, it would be failing in the discharge of its judicial functions if it did not declare that there is an obligation, especially upon Members of the United Nations, to bring that situation to an end. As this Court has held, referring to one of its decisions declaring a situation as contrary to a rule of international law: "This decision entails a legal consequence, namely that of putting an end to an illegal situation." (I.C.J. Reports 1957, p. 82).

South Africa, being responsible for having created and maintained a situation which the Court has found to have been validly declared illegal, has the obligation to put an end to it. It is therefore under obligation to withdraw its administration from the Territory of Namibia. By maintaining the present illegal situation, and occupying the Territory without title, South Africaincurs international responsibilities arising from a continuing violation of an international obligation. It also remains accountable for any violations of its international obligations, or of the rights of the people of Namibia. The fact that South Africa no longer has any title to administer the Territory does not release it from its obligations and responsibilities under international law towards other States in respect of the exercise of its powers in relation to this Territory. Physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States. (68)

The International Court of Justice stated further:

The member States of the United Nations are, for the reasons given in paragraph 1 15 above, under obligation to recognize the illegality and invalidity of South Africa's continued presence in Namibia. They are also under obligation to refrain from lending any support or any form of assistance to South Africa with reference to its occupation of Namibia, subject to paragraph 125 below. (69)

The International Court of Justice stated further:

Member States, in compliance with the duty of non-recognition imposed by paragraphs 2 and 5 of Resolution 276 (19701, are under obligation to abstain from sending diplomatic or special missions to South Africa including in their jurisdiction the Territory of Namibia, to abstain from sending consular agents to Namibia, and to withdraw any such agents already there. They should also make it clear to the South African authorities that the maintenance of diplomatic or consular relations with South Africa does not imply any recognition of its authority with regard to Namibia.

The restraints which are implicit in the non-recognition of South Africa's presence in Namibia and the explicit provisions of paragraph 5 of Resolution 276 (1970) impose upon member States the obligation to abstain from entering intoeconomic and other forms of relationship or dealings with South Africa on behalf of or concerning Namibia which may entrench its authority over the Territory. (70)

Judge Amoun in his Opinions further stated:

The prohibition of all military assistance, not only de facto, but also in implementation of a treaty of alliance or of bilateral or multilateral defence. The obligations contained in those treaties cannot prevail over the obligation not to assist an aggressor State. A treaty which enabled assistance to be given to an aggressor would be immoral and contrary to international order. and could not therefore be tolerated by the international community. (71)

Judge Amoun stated further:

The presence of South Africa in Namibia, having thus been defined as illegal and warlike, and, in short, regarded as aggression, what are the legal consequences of this?

The recognition by the United Nations of the legitimacy of the Namibian people's .struggle against the South African aggression is nothing less than a recognition of belligerency. For the recognizing States, namely the States Members of the United Nations, it transforms the hostilities between a State and another subject of law, which the Namibian people is, into an international war. Consequently, when there is aggression by a State against a people for the purpose of subjugating it by force, then whatever its manifestations, if cannot be denied that it has the character of a war, or at least ofa state of belligerency, with all the legal effects attaching thereto, including in particular the status of neutrality imposed on third parry States. (72)

According to the principles declared by the International Court of Justice in its advisory opinions regarding Namibia and the aforementioned principles of international law regarding belligerent occupation or conquest, the Doctrine of Non-Recognition and the principles underlying the Mandate System, members of the United Nations are under the obligation to do all, and each, of the following:

1. To recognize the illegality and the invalidity of the continued presence of so-called Israel in 80% of the territory of Palestine occupied in 1948-1949 and in the West Bank and Gaza occupied in 1967.

2. To declare that the admission of so-called Israel to membership in the United Nations was contrary to intemational law and to the letter and spirit of the United Nations Charter. A so-called "State of Israel" never existed in fact or law. It was nothing but an illegal "proclamation" and illegal occupation by a minority of Zionist Jews. The admission of so-called Israel in the United Nations was made by undue pressure and deceit and, therefore, it was void ab initio.

3. To expel so-called Israel from the United Nations.

4. In compliance with the duty of non-recognition to withdraw their de facto and de jure recognition of so-called Israel and sever all diplomatic and consular relations with this illegal regime.

5. To refrain from lending any support or any form of financial or military assistance to so-called Israel because such assistance to aggressors and war criminals are immoral and contrary to international law.

6. To bring the illegal situation in Palestine to an end. The International Court of Justice stated in its advisory opinion of 1971 that "the Court would be failing in discharging of its judicial functions if it did not declare that there is an obligation, especially upon members of the United Nations, to bring that situation to an end. As this Court has held, referring to one of its decisions declaring a situation contrary to a rule of international law, this decision entails a legal consequence, namely that of putting an end to an illegal situation (l.C.J. Reports 1951, p. 821.''

7. To declare that sovereignty in Palestine still resides in the Palestinian indigenous population "whose well being and development form a sacred trust of civilization."

8. The United Nations Security Council should take measures under Chapter VII of the United Nations Charter to terminate the illegal Israeli occupation of Palestine and to send United Nations peace-keeping forces to keep peace and order in Palestine and protect both Jews and Arabs.

9. The United Nations General Assembly should form a United Nations Commission to administer all the territory of Palestine which was placed under the mandate, for a few months, to enable Palestinian citizens of the Muslim, Christian and Jewish faiths to reconstruct Palestine as an independent, sovereign and secular democratic state without any discrimination against any citizen on the ground of race, religion or political belief.

NOTES TO CHAPTER THIRTY SEVEN

1 British Command Paper No. 5957. Hussein-McMahon Correspondence 1915-1916, Letter No. 1, dated July 14, 1915,

2. Samuel Landman, Great Britain, the Jews and Palestine (London: New Zionist Press, 1936). Landman was Secretary of the World Zionist Organization from 19 17 to 1922 and secretary to Dr. Weizmann).

3. A Survey of Palestine prepared in December 1945 and January 1946 for the Information of the Anglo-American Committee of Inquiry (Jerusalem: Palestine Government Printer, 19461, volume I, p. I.

4. Ibid., p. 2.

5. White Paper, British Command Paper No. 1195, December 23, 1920.

6. Treaty Series, No. 13 (1923), British Command Paper No. 1910, September 1, 1922.

7. Survey of Palestine, volume 1, p. 5.

8. Hansard, Debates in the House of Lords, June 21. 1922.

9. Survey of Palestine, volume 1, pp. 87-90; British Command Paper No. 1700.

10. The Palestine Partition Commission's Report 1938, British Command Paper No. 5854, p. 23.

11. Encyclopaedia of Zionism and Israel (New York: The Herzl Press and McGraw Hill, 19711, volume 1, p. 534.

12. Survey of Palestine, volume 1, pp. 46-48; British Command Paper No. 5839.

13. British Command Paper No. 6019, May 17, 1939.

14. Statistical Abstract of Israel 1983, No. 34, p. 58.

15. The Report of the Second Sub-committee to the Ad Hoc Committee on the Palestine Question, A/AC 14/32 and Add. 1., November 1 1, 1947, p. 291.

16, Ibid., pp. 292-293.

17. Statistical Abstract of Israel 1983 (Israel Central Bureau of Statistics, 1983), No. 34, p. 58.

18. Ibid.

19. L. Oppenheim, International Law, edited by H. Lauterpacht (London: Longmans, Green & Co., 1955), Eighth Edition, volume 1, pp. 118-119.

20. Alf Ross, A TextBook of International Law (1947), p. 97.

21. Hyde, International Law, pp. 22-23.

22. Ross, A Textbook of International Law, pp. 136-137.

23. Ibid., p. 149.

24. Ibid., p. 152.

25. L. Oppenheim, International Law, volume 1, p. 451.

26. Ibid., p. 452.

27. Ibid., p. 544.

28. Ross, p. 137.

29. T. C. Chen, The International Law of Recognition (London: Stevens & Sons, Ltd., 1951), p. 63.

30. Lauterpacht, Recognition in International Law (19481, p. 115.

31. Ibid., p. 116.

32. Ibid., p. 409-410.

33. Ibid., p. 420.

34. International Conference of American States, (1890).

35. Corbett, Law and Society in the Relations of States (1951), pp. 100-104.

36. Ibid.. p. 420.

37. International Law Association, Report of the Thirty-Eighth Conference (Budapest: 19341, pp. 66,67-68; also Whiteman, Digest of International Law (Washington D.C.: Department of State, 1963), volume 2, pp. 1146- 1147.

38. Conference of the American States meeting at Washington, D.C. in 1932. VII press releases, Department of State, No. 149, August 6, 1932, pp. 100- 101. Also Whiteman, Digest of International Law, volume 2, p. 1 146.

39. The Anti-War Treaty of Non-Aggression and Conciliation signed at Rio de Janeiro, October 10, 1933, US TS 906 and Hudson International Legislation, volume 6, published by the Carnegie Endowment for International Peace, 1937, pp. 449-450.

40. Convention on Rights and Duties of States, Montevideo, 1933, US TS 881; 49 stat. 3097,3 101, quoted in Whiteman, Digest of international Law, volume 2, p. 1 146.

41. Buenos Aires Declaration, 1936, Resolution XXVII, Declaration of Principles of Inter-American Solidarity and Cooperation as approved December 2 1, 1936. Report of the Delegation of the United States of America to the Inter-American Conference/or the Maintenance of Peace (Buenos Aires: 1936), pp. 227-228; Whiteman, Digest of International Law, volume 5, pp. 880-881.

42. The Lima Declaration, 1938. Resolution XXVI, Non-Recognition of the Acquisition of Terrilory by Force, approved December 22, 1938; Report of the Delegation of the United States of America to the Eighth International Conference of American States (Lima: 1938), pp. 132-133; Whiteman, Digest of International Law, volume 5, p. 881.

43. The Convention of the Provisional Administration of European Colonies and Possessions in the Americas, concluded at the second meeting of ministers of Foreign Affairs of the American Republics held at Havana in 1940. Report of the Secretary ofState (1941), pp. 17-20, 84-90. US TS 977, Whiteman, Digest of International Law, volume 5, pp. 883-884.

44. Act of Chapultepec, approved March 8, 1945 at the Inter- American Conference of Problems of War and Peace. Resolution VIII Reciprocal Conference on Problems of War and Peace, Mexico City, February-March, 1945. Whiteman, Digest oflnternational Law, volume 5, p. 886.

45. Declaration of Mexico, approved March 6, 1945. Whiteman, Digest of International Law, volume 5, p. 886.

46. Permanent Court of International Justice, Series A, No. 53, p. 75.

47. Lauterpacht, Recognition in International Law, p. 363.

48. 1918 Foreign Relations of the United States (Washington, D.C.: Government Printing Office), volume 1, Supplement 1, p. 16.

49. Ibid., p. 110.

50. Ibid., p. 10. See also Whiteman. Digest of International Law, volume 1, p. 605.

51. 1918 Foreign Relations of the United States, volume I, Supplement 1, p. 25.

52. 1919 Foreign Relations of the United States, volume 3, Paris Peace Conference (1 946), pp. 740-741.

53. A Survey of Palestine, volume 1, p. 2.

54. League of Nations, the Mandates System, Origin - Principles- Application (1945, VI.A.l), pp. 23-24.

55. Ibid., p. 24.

56. Ibid., p. 26.

57. Ibid., pp. 29-31.

58. File 763.72119/9869, document I.C.P. 106.

59. J. Stoyanovsky, La Theorie Generale Des Mandates Internationaux, p. 83.

60. Paul Pie, "Le Regime du Mandat d'apres Ie Traite de Versailles," Revue Generate de Droit Internationale Public, 1923, p. 334.

61. Statistical Handbook of Jewish Palestine (Jerusalem: Department of Statistics of the Jewish Agency for Palestine, 1947), p. 55; and Statistical Abstract of Israel 1983, No. 34, p. 71.

62. Ross, A Textbook of international Law, p. 160.

63. Security Council Official Record, April 1. 1948.

64. I.C.J. Reports 1971. Opinion dated 21 June, 1971.

65. I.C.J. Reports 1971, pp. 91-92.

66. Advisory Opinion on the International Status of Southwest Africa, I.C.J. Reports 1950, p. 128 and p. 131,

67. I.C.J. Reports 1971, p. 43.

68. Ibid., p. 54.

69. Ibid., p. 54.

70. Ibid., p. 55.

71. Ibid., p. 94.

72. Ibid., p. 92.