2.1. The argument of Yehuda Blum

Soon after the occupation began in June 1967, Professor Yehuda Blum, then a young lecturer in international law at the Hebrew University of Jerusalem and later Israel’s representative at the United Nations, published an article in which he claimed that the international law of belligerent occupation does not apply in its entirety to Israel’s actions in the West Bank.Footnote ²⁰ Blum’s argument was that Jordan had been an aggressor when it invaded the West Bank in May 1948 and had illegally annexed the territory in 1950. Hence it was not the sovereign power of the territory when it was conquered by the Israel Defense Forces (IDF) in 1967. Blum did not argue that the whole corpus of law relating to belligerent occupation does not apply in the West Bank, but only that those parts of this corpus of law, the purpose of which is to preserve the rights of the missing sovereign, do not apply. Blum’s conclusion was:Footnote ²¹

Blum did not elaborate which rules are regarded as those protecting what he termed the ‘reversionary rights’ of the legitimate sovereign, but from the context of his argument, it would seem that he was referring, first and foremost, to the obligation imposed on the occupying power in Article 43 of the Hague Regulations to respect the law in the occupied territory unless absolutely prevented from doing so.Footnote ²² What is notable is that Blum did not make the general argument that the West Bank is not occupied territory, and stated categorically that the humanitarian provisions of the law of occupation do indeed apply. Nevertheless, although the first military order promulgated by the military commander in the West Bank in June 1967 provided that the military courts established to try local residents accused of security offences must abide by the Geneva Convention,Footnote ²³ the authorities now changed their tune. Latching on to Blum’s argument that there was no legitimate sovereign in the territory when Israel occupied it, they argued that the purely humanitarian Geneva Convention does not apply de jure in the area.Footnote ²⁴ At the same time, they declared that Israel would abide by the Convention’s humanitarian provisions.Footnote ²⁵

2.2. Application of the Fourth Geneva Convention in the West Bank

The authorities based their argument that GCIV does not apply in the particular circumstances of the West Bank on the reference in the second paragraph of Article 2 of the Convention to occupation of ‘the territory of a High Contracting Party’, namely the territory of another state. This argument, which was presented by Meir Shamgar when he served as Attorney General of the State of Israel,Footnote ²⁶ contradicted the accepted view that, according to the first paragraph of Article 2, the Convention applies as soon as an armed conflict between states breaks out.Footnote ²⁷ The second paragraph addresses only the situation in which occupation of territory did not meet armed resistance.Footnote ²⁸ Hence the Geneva Convention applied as soon as the war with Jordan broke out in June 1967, and it continued to apply to territory occupied in that war.

It is not only the text and the background to the inclusion of the second paragraph that do not support the government’s interpretation; this interpretation is inconsistent with the very object of the Geneva Conventions, which is to protect the victims of war and not the political interests of the parties to the armed conflict. Given this object, it makes little sense to make the protection of civilians in occupied territory dependent on the status of the territory captured in the course of an armed conflict. As the recent Commentary on the First Geneva Convention explains, adopting the Israeli interpretation would mean that any occupying power could avoid application of GCIV simply by disputing the sovereign status of the state that held the territory before it was occupied.Footnote ²⁹

2.3. Lack of state sovereignty and occupation

The argument that only territory that was the sovereign territory of another state becomes occupied territory when conquered in a war was later adopted by Eugene Rostow.Footnote ³⁰ As opposed to the argument that GCIV does not apply in the West Bank, this argument claims that even the Hague Regulations do not apply in such territory. Support for this argument may possibly be found in Section III of these Regulations. This section, which contains the rules of international law relating to occupied territory, carries the heading ‘Military Authority over the Territory of the Hostile State’ (emphasis added).

In his seminal article Blum accepted that the West Bank was not terra nullius when it was occupied by Israel in June 1967.Footnote ³¹ Relying on the study by Ramendra Nath Chowdhuri,Footnote ³² Blum presented six different theories regarding the issue of sovereignty in territories that were subject to a League of Nations mandate. He reasoned that whichever theory one adopts, it must be assumed that sovereignty was somewhere.Footnote ³³ From this assumption it follows that on the termination of a mandate, no mandated territory becomes res nullius that is open to acquisition by the first comer.Footnote ³⁴

One of the theories listed by Blum attributes sovereignty to the inhabitants of the mandated territory. While ostensibly Blum did not dismiss any of the six theories, when he discussed the future sovereignty over the territory, he did not even consider the possibility that the sovereignty could be in the hands of the territory’s inhabitants. He simply argued that since Jordan had been an aggressor and Israel had acted in self-defence when it occupied the West Bank, Israel had the stronger claim to sovereignty over the territory.Footnote ³⁵

For reasons best known to himself, Blum did not consider the implications of his acknowledgement that the West Bank was not terra nullius in 1967. Nor did he mention that since the end of the nineteenth century it has been accepted that territory, the inhabitants of which enjoy some form of social or political organisation, is not terra nullius.Footnote ³⁶ While Blum wrote that former mandated territory is not open to acquisition by the first comer, he did not consider that the real reason is that the inhabitants of the territory are entitled to self-determination. In other words, Blum did not take into account the principle that emerged at the end of the First World War, that in the absence of a state that has sovereignty over territory, the sovereignty is in the hands of the territory’s inhabitants.Footnote ³⁷ Nor did he refer to two other important factors. As we discuss below, Britain’s Mandate over Palestine was an ‘A’ Mandate, a status that was reserved for territories that had formerly been part of the Ottoman Empire.Footnote ³⁸ Article 22 of the Covenant of the League of Nations states that the communities in such territories had reached the state of development so that ‘their existence as independent nations can be provisionally recognised subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone’.Footnote ³⁹ It follows that wherever the sovereignty rested while the mandatory power retained control over the territory, once that control ended, the people in the territory were entitled to exercise their right as independent nations that had been provisionally recognised by the League of Nations when it approved the Mandate.Footnote ⁴⁰ UN General Assembly Resolution 181 gave effect to this principle when it recommended that two states be created in the territory of the British Mandate so as to enable the members of both national groups who inhabited the territory, Jews and Arabs, to exercise their right to self-determination.Footnote ⁴¹

Blum’s view also suffers from an internal contradiction. If, as Blum admitted, the territory was not terra nullius in 1967, although it was not part of the sovereign territory of an existing state, no state could attain sovereignty over the territory by use of force, whether that use of force was lawful or not. Under the principle of self-determination developed at the end of the First World War (discussed below) with the termination of the rule over the territory by a foreign power it was for the inhabitants of the territory to decide on their political future. In an era in which the only actors recognised by international law were states and international organs, while peoples and individuals had no standing, it was possible to restrict the concept of occupation to the territory of one state that had been occupied by another. However, international law does not remain static, and this position of international law is no longer valid.

Article 1 of the UN Charter states expressly that one of the organisation’s purposes is ‘[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’.Footnote ⁴² Article 1 common to the International Covenant on Economic, Social and Cultural Rights (1966) and to the International Covenant on Civil and Political Rights (1966)Footnote ⁴³ declares that ‘[a]ll peoples have the right of self-determination’. The ICJ has made it clear that in interpreting the Mandates of the League of Nations and other international instruments of the time, later developments in international law must be taken into account. These include the right of self-determination of peoples.Footnote ⁴⁴

In ignoring these principles, both Blum and Rostow were adopting attitudes that were unfortunately prevalent in the nineteenth century and the early part of the twentieth century. As Eliav Lieblich and Eyal Benvenisti explain in their book on the law of belligerent occupation, until the twentieth century international law was entirely Eurocentric. The prevailing view was that the law of belligerent occupation applied only in Europe, and not to the territories inhabited by what were termed ‘uncivilised peoples’ who were not capable, in European eyes, of governing themselves.Footnote ⁴⁵ Lieblich and Benvenisti write:Footnote ⁴⁶

The denial that territory that was not part of the sovereign territory of another state cannot be regarded as occupied territory was based, inter alia, on denial of the right of the Palestinians in the West Bank and Gaza to self-determination.Footnote ⁴⁷ Rostow admitted that he regarded the notion of self-determination of peoples as problematic, absent any definition of the term ‘peoples’.Footnote ⁴⁸ He ignored the fact that the ‘people’ are, first and foremost, the inhabitants of a territory that is not part of an existing state.Footnote ⁴⁹ As the ICJ held in the Chagos case, the right of self-determination of the population of a territory that was subject to foreign rule was established in the 1960s.Footnote ⁵⁰ Hence, when Israel conquered the West Bank and Gaza in June 1967, the Palestinian inhabitants of these areas, which did not become part of the sovereign territory of another state after the end of the Palestine Mandate, were entitled to self-determination.Footnote ⁵¹ Of course, now that the Palestinians have gained universal recognition as a people and Israel itself has recognised the Palestinian people,Footnote ⁵² the Rostow-Blum view becomes even more problematic.

2.4. Application de jure of the law of belligerent occupation

When defending their actions in the Occupied Territories before the Supreme Court of Israel, counsel for the authorities have consistently relied on the customary law of belligerent occupation, as reflected in the Hague Regulations.Footnote ⁵³ The Supreme Court has held time and again that the regime of the West Bank is a regime of belligerent occupation.Footnote ⁵⁴ Nevertheless, before international bodies, relying on the Blum-Rostow theory, government lawyers argue that the law of belligerent occupation does not apply de jure but that the authorities apply this law on grounds of policy. The most recent expression of this view is contained in a brief submitted to the International Criminal Court in September 2024, in which the Attorney General of Israel repeats the claim that Israel applies the rules of international law as a matter of policy:Footnote ⁵⁵ ‘notwithstanding its position regarding application of the law of occupation de jure under these circumstances’.

In making its claim that since Jordan lacked sovereignty the law of belligerent occupation does not apply de jure in the West Bank, not only does the government contradict the view of international bodies, it ignores the fact that the claim was dismissed by the Supreme Court of Israel. In the Ha’etzni case the petitioner had been brought to trial before a military court in the West Bank on a number of charges, including violation of a section of the Jordanian criminal code that had been applied in the West Bank during Jordan’s rule over the area.Footnote ⁵⁶ Relying on Blum’s argument, counsel for the petitioner argued that since Jordan had not been the legitimate sovereign in the area, its laws were not valid when the IDF assumed control over the area. Thus, the proclamation of the military commander that prevailing law would remain in force was itself invalid.Footnote ⁵⁷ Even though the Court accepted Blum’s argument that Jordan was not a sovereign power in the West Bank before June 1967, it rejected the petitioner’s argument. Justice Landau stated:Footnote ⁵⁸

Mention of Article 43 is highly significant, as this provision comes into play only in occupied territory, defined in Article 42.Footnote ⁵⁹ We see then that the Court made it quite clear that application of the customary international law on belligerent occupation, as expressed in the Hague Regulations, is not dependent on sovereignty of another state over the area when it was occupied. As the petitioner was challenging the very power of the authorities, the answer given by the Court could not have been based on a policy of these authorities to apply the law of belligerent occupation. It was clearly based on its view that this body of law applies de jure.

2.5. Summary

In the post-Second World War era, the view that only the territory of a sovereign state can be subject to belligerent occupation is no longer tenable. When the West Bank and Gaza were occupied by the IDF in 1967 these territories were certainly not part of Israel’s sovereign territory.Footnote ⁶⁰ Even if we accept Blum’s view that Jordan was not the legitimate sovereign in the West Bank, that territory was not terra nullius. From the point of view of the territory’s inhabitants, the IDF was certainly a ‘hostile army’. Hence, once the territory was placed under the authority of that army it became occupied territory.Footnote ⁶¹ Its population retained their right to self-determination that had been frustrated when Jordan occupied and purported to annex the territory.

3.1. Background to the mandate systemFootnote ⁶²

As the First World War neared its end, the imperial powers Britain and France were determined to extend their empires by gaining control over territories that were part of the Ottoman and German empires, mainly in the Middle East and Africa. To this end, these two imperial powers reached an agreement in 1916 to divide the Middle Eastern territories of the Ottoman Empire between themselves.Footnote ⁶³ However, as the war drew to its end, another actor entered the field. In his speech to Congress on 18 January 1918, US President Woodrow Wilson laid out 14 points that should guide the peace arrangements to be made after the war.Footnote ⁶⁴ These points included the notion that in determining the fate of territories that had been part of the defeated empires, ‘the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined’. While not expressly mentioning the term ‘self-determination’, Wilson’s principle is regarded as the first expression of the idea that self-determination of the people living in a given territory should be a guiding political principle in determining sovereignty over the territory.Footnote ⁶⁵

There was a clear clash between the colonial aspirations of Britain and France and Wilson’s principle.Footnote ⁶⁶ The mandate system was devised by South African Prime Minister Jan Smuts as a way to reach a compromise between the two imperial powers and the United States.Footnote ⁶⁷ Hence, the mandate system emerged, as Susan Pedersen puts it, out of the ‘potent brew of liberal internationalism, imperial humanitarianism, and sheer territorial acquisitiveness’.Footnote ⁶⁸

It is important to appreciate the colonial background to the mandate system for two reasons. Firstly, the background should be taken into account when interpreting Article 22 of the League of Nations Covenant, which laid the legal foundation for the mandate system. Secondly, this background is highly relevant when attempts are made to base rights on this system in the world of the twenty-first century, in which colonial ideas are no longer a legitimate part of international law and international discourse.

3.2. Article 22 of the Covenant

Article 22 of the League of Nations Covenant states:

Writing on the Covenant of the League of Nations in 1934, international lawyer Sir John Fischer Williams argued that unlike the other articles in the Covenant, Article 22 ‘is not legal or parliamentary in its phraseology, but is conceived in a more emotional and more humanitarian strain’.Footnote ⁶⁹ It would seem to the more modern reader that the patronising tone reveals the colonial mindset that is reflected in Article 22.Footnote ⁷⁰ The world is divided between the western ‘civilised’ states and other peoples who could not govern themselves. Hence the latter must be subject to the ‘tutelage’ of ‘advanced’ nations, ruled by the former ‘as a sacred trust of civilisation’. Even those communities that were part of the Ottoman Empire that had reached the state of development where their independence could be provisionally recognised would, for the time being, be subject to the administrative advice and assistance of the mandatory powers. The very notion of ‘a sacred trust of civilisation’ is reminiscent of the colonial mindset, immortalised by Rudyard Kipling in his (in)famous poem ‘The White Man’s Burden'.Footnote ⁷¹ Be that as it may, in considering Article 22, a number of points must be stressed:

1. 1. In governing territories inhabited by peoples who could not (in the minds of the colonial powers, of course) govern themselves, the well-being and development of those peoples ‘form a sacred trust of civilisation’. No distinction is made between different groups of inhabitants of these territories. The well-being and development of all the inhabitants are subject to the ‘sacred trust’. This principle gains expression in the text of the British Mandate over Palestine. Article 2 declares that, alongside its obligation to place the country under such conditions ‘as will secure the establishment of the national Jewish home’, the Mandatory Power has the responsibility for ‘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’. Article 15 states: ‘No discrimination of any kind shall be made between the inhabitants of Palestine on the ground of race, religion or language’.Footnote ⁷²

2. 2. Certain communities that were formerly part of the Turkish Empire were provisionally recognised as independent nations, subject to temporary rule by the mandatory powers. Mandates under this paragraph of Article 22 became known as ‘A’ Mandates. Since, until it was occupied by Britain, Palestine was part of the Turkish Empire, the Mandate of Britain over Palestine was an ‘A’ Mandate. The Mandate states expressly that it was entrusted to Great Britain ‘for the purpose of giving effect to the provisions of Article 22 of the Covenant of the League of Nations …’Footnote ⁷³ In other words, the community in Palestine was provisionally recognised as an independent nation, and Britain was to govern the country according to ‘the principle that the well-being and development of [the people of Palestine] form a sacred trust of civilisation’.Footnote ⁷⁴

While Palestine was provisionally recognised as a nation, the Mandate over Palestine also contained special provisions stating that Britain ‘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 favour of the establishment in Palestine of a national home for the Jewish people’.Footnote ⁷⁵ I now turn to the background and meaning of this commitment.

3.3. The Balfour Declaration and the San Remo Conference

In November 1917, the British Cabinet passed a resolution to adopt what later became known as the Balfour Declaration.Footnote ⁷⁶ It is not my intention here to go into the background to this important document, which has been discussed by many others.Footnote ⁷⁷ Suffice it to say that in the Balfour Declaration Britain declared that:Footnote ⁷⁸

Supporters of the idea that the Jews have a continuing right to settle in all parts of Palestine rest their view on the decision at the San Remo Conference to include the Balfour Declaration in the British Mandate over Palestine.Footnote ⁷⁹ It is therefore important to clarify two points: one relates to the nature of the San Remo Conference; the other relates to negotiations that took place regarding the commitments of Britain in the Mandate.

In his letter of 19 June 2023 mentioned above, the Cabinet Secretary refers to the San Remo Conference as a League of Nations conference.Footnote ⁸⁰ Nothing could be further from the truth. The San Remo Conference was not a meeting of the League, but a meeting of the ‘Principal Allied Powers’: namely, the countries that had been victorious in the war – Britain, France, Italy and Japan.Footnote ⁸¹ The object of the meeting was to draw up a peace treaty to be offered to Turkey, and to decide the fate of the territories of the Ottoman Empire that Turkey was going to be required to renounce in that treaty. It was at this meeting that it was decided that the Mandate over Palestine would be entrusted to Britain and that the Mandate would include Britain’s commitment under the Balfour Declaration.Footnote ⁸² The Mandate itself, which was approved by the League of Nations Council in July 1922, states expressly that it was the Principal Allied Powers that decided that the Mandate over Palestine be entrusted to Britain.Footnote ⁸³

At the San Remo Conference, a draft treaty to be submitted to Turkey was drawn up. Under this treaty – known as the Treaty of Sèvres – Turkey agreed to waive its sovereignty over all parts of the Ottoman Empire outside Turkey. It also agreed that Palestine would be administered by a Mandatory selected by the Principal Allied Powers, and that the said Mandatory would be responsible for putting the Balfour Declaration into effect.Footnote ⁸⁴ While the Grand Visier Pasha signed the treaty, before it was ratified Kemal Atatürk became the ruler of Turkey. He refused to ratify the treaty;Footnote ⁸⁵ hence it never entered into force. It was later replaced by the Treaty of Lausanne. The Treaty of Lausanne does not mention the Balfour Declaration, but it includes Turkey’s agreement to renounce all territories beyond the borders of Turkey recognised in the Treaty, ‘the future of these territories … being settled or to be settled by the parties concerned’.Footnote ⁸⁶

The Principal Allied Powers decided at San Remo that Palestine and Mesopotamia (modern Iraq) would be ruled by Britain under a League of Nations Mandate, and that France would receive a Mandate over Lebanon and Syria. Britain demanded that the other Powers agree to incorporation of the Balfour Declaration in the Mandate over Palestine, and the other Powers reluctantly agreed.Footnote ⁸⁷ These arrangements were not incorporated in a treaty or any other written agreement, and they therefore had no legal (as opposed to political) force. Besides, even if a written agreement had been signed, it would have bound only the states that were parties to it, and not the whole international community. In all events, even under the prevailing norms of international law, the states that took part in the San Remo Conference had no legal right or authority to decide on the fate of territories over which they had no sovereignty. Even though Turkey had been defeated in the war and parts of the Ottoman Empire were occupied by Britain and France, it was accepted that until such time as Turkey renounced its sovereignty over these parts of its empire, no other state could obtain sovereignty over them.Footnote ⁸⁸ The very idea of the Treaty of Sèvres was to achieve official Turkish renunciation of its sovereignty over these areas, including Palestine. The renunciation was eventually contained in the Treaty of Lausanne, which was signed on 24 July 1923 and ratified by Turkey on 23 August 1923.

To summarise: the importance of the San Remo Conference was that a consensus was reached between the Principal Allied Powers (Britain, France, Italy, Japan) that Britian would receive the Mandate over Palestine and that the Mandate would include Britain’s commitment under the Balfour Declaration. Absent a written treaty between these Powers, it is doubtful whether their resolutions had any legally binding force; but even if they did, they were binding only in the relations between those Powers. The legal status of the Balfour Declaration was achieved only by its incorporation in the Mandate that was approved by the Council of the League of Nations.

3.4. The terms of the Mandate

Following the decisions of the Principal Allied Powers at San Remo, intense discussions and negotiations took place between representatives of the British government and Zionist leaders on the terms of the Mandate that would be submitted for approval by the League of Nations.Footnote ⁸⁹ Even before the San Remo Conference, the Zionist movement had submitted a draft of the Mandate to the British delegation at the Paris Peace Conference. Under this draft, drawn up by Felix Frankfurter, then a member of the American Zionist delegation and later a highly respected Harvard professor of law and Justice of the US Supreme Court, Palestine would be recognised as a Jewish Commonwealth.Footnote ⁹⁰ This proposal was rejected out of hand. As is well known to all students of Zionist history, the Mandate does not refer to Palestine as the home of the Jewish people, but to the establishment of a national home for the Jewish people in Palestine.

The dominant figure in deciding the terms of the Mandate was Lord Curzon, who had replaced Lord Balfour as Foreign Secretary in October 1919. Lord Curzon was no fan of the Balfour Declaration. He had voted against it in the Cabinet in 1917.Footnote ⁹¹ While he was fully aware that Britain could not back down from its commitment in the Declaration, he was adamant on two points: (i) there would be no recognition of Jewish title or rights to Palestine; and (ii) no recognition would be given to Palestine as the home of the Jewish people, but only to the commitment of Britain to facilitate the establishment of a home for the Jewish people in Palestine.

Curzon’s view carried the day. Hence it was that the Preamble to the Mandate does not recognise a right or title of the Jewish people to Palestine. Rather it declares that recognition has ‘been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country’.Footnote ⁹²

There can be little doubt that this declaration amounted to important international political recognition of the Jewish people’s claim to the establishment of a national home in Palestine. It is, doubtful, however, whether the declaration had any legal standing, even after the Council of the League of Nations approved the Mandate. The Mandate does not refer to a ‘right’, and in all events the League of Nations had no authority to recognise the rights of peoples over territory. The only power under Article 22 of the League Covenant was to approve the terms of the Mandate under which the mandatory powers would administer territory until such time as it would become independent.

The Mandate did not recognise the right or title of Jews to Palestine, nor even that they had a right to establish a state in Palestine. This was made perfectly clear by Winston Churchill, then British Colonial Secretary, in the White Paper that he published shortly before the Mandate was approved by the League Council.Footnote ⁹³ In this White Paper, writing on behalf of the British government, Churchill declared:

And he added:Footnote ⁹⁴

Many Jews, and non-Jews as well, hoped and thought that the Mandate would eventually lead to a state for the Jewish people in Eretz-Yisrael/Palestine, but one must distinguish between political aspirations and legal commitments. The Mandate did not recognise, either explicitly or implicitly, the legal right of the Jewish people to establish a state in Palestine.Footnote ⁹⁵

What about the rights of non-Jews who were the majority in Palestine when the Mandate was approved? The Balfour Declaration, and subsequently the Mandate, refer to the religious and civil rights of the non-Jewish communities. Those who wish to challenge the right of the Palestinian people to self-determination rely, inter alia, on the fact that there is no reference in the Mandate to the political rights of the non-Jewish communities.Footnote ⁹⁶ In this regard a number of points must be stressed:

1. 1. Britain’s demand at San Remo that the Balfour Declaration be included in the Mandate over Palestine met with resistance from the French and Italian representatives. They demanded that reference to the political rights of non-Jews be included and dropped this demand only after the British delegation explained that, from the British point of view, the term ‘civil rights’ includes political rights.Footnote ⁹⁷ This declaration of the British must be considered when interpreting Article 2 of the Mandate, which refers not only to the responsibility of the Mandatory Power to place the country under the conditions that ‘will secure the establishment of the Jewish national home’ but also to its ‘responsibility for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion’.

2. 2. Even if there is no express reference to the political rights of the non-Jews in Palestine in a document that was adopted in 1922, one cannot conclude that no such rights exist today, when self-determination of peoples has gained recognition as a protected right in international law.Footnote ⁹⁸

Much has been written on the apparent contradiction between Article 22 of the League Covenant and the British Mandate over Palestine, in which Britain undertook to facilitate building a home for the Jewish people in Palestine, even though the inhabitants of Palestine were not asked their opinion on the matter, and the British were well aware that the Arab inhabitants of the country were opposed to this undertaking.Footnote ⁹⁹ It is not my intention to discuss this apparent contradiction here. Suffice it to say that in interpreting the Mandate, one must try as far as possible to limit the apparent contradiction between the Mandate and Article 22, which provided the legal basis for approving Britain’s Mandate over Palestine. In the present context this means that the well-being of all the inhabitants of Palestine must be a major consideration in the interpretation of the Mandate. One cannot interpret the Mandate as an instrument that addresses the interests of the Jews, and their interests alone. As mentioned above, the Mandate included express provisions demanding protection of the rights of all the inhabitants, and prohibiting discrimination.Footnote ¹⁰⁰ This point has clear implications regarding the legal arrangements adopted in the territory after the Mandate ended, and especially after the State of Israel gained control over the whole territory of the Mandate in 1967. As the Mandate was about to end, the General Assembly of the United Nations appreciated this when, in Resolution 181 of 29 November 1947, it held that after the Mandate ended there must be an arrangement that recognises the rights of both national groups that constituted the population of Palestine.

Article 22 of the League Covenant was the only article that provided for granting a mandate to a member of the League to administer a territory that had been part of the territory of one of the empires that had been defeated in the First World War. It follows that Britain’s obligations under the Mandate could not free her from respect for the principle that the well-being and development of the peoples in Palestine ‘formed a sacred trust of civilisation’. The claim that the Mandate was a special case that departed from this principle is incompatible both with Article 22 and with the express statement in the opening paragraph of the Mandate that it was being entrusted to Great Britain ‘with the purpose of giving effect to Article 22’.

3.5. Approval of the Mandate by the League of Nations

Even though Balfour was no longer Foreign Secretary, and Foreign Secretary Curzon was not enamoured with the idea that Britain would undertake the Mandate over Palestine,Footnote ¹⁰¹ the Prime Minister, Lloyd George, supported the Mandate, and the task of obtaining League approval for it was entrusted to Balfour.Footnote ¹⁰² Balfour faced resistance from some members of the League.Footnote ¹⁰³ Article 5 of the League Covenant adopted the principle of unanimity for decisions both of the League Council and of its Assembly. The Covenant did not specify which of these two bodies was to approve a Mandate and Balfour feared that if the decision were in the hands of the Assembly, in which all League members had a vote, the Mandate might not be approved. He therefore was adamant that the decision should be in the hands of the Council, in which there were only eight members, including the four Principal Allied Powers that had approved the Mandate at San Remo.Footnote ¹⁰⁴ He managed to obtain France’s agreement to this move, on condition that the Mandate over Palestine would not enter into force until France’s Mandate over Syria and Lebanon was approved.Footnote ¹⁰⁵ Approval of the latter Mandate was being blocked because of differences between France and Italy. After discussion of the draft submitted by Britain – in the course of which Britain agreed to a slight change in Article 28 of its draft, and members of the Council reached agreement on the wording of Article 14 relating to the Holy Places – on 24 July 1922, the Council approved the Mandate.Footnote ¹⁰⁶ Following the agreement with France, the Council expressly stipulated that the Mandate over Palestine would enter into force only after France and Italy informed the Council that they had reached an agreement that would allow the Council to approve the French Mandate. On 29 September 1923, France and Italy informed the Council that they had reached agreement, and the Council decided that the Mandates over Palestine and Syria would enter into force immediately.Footnote ¹⁰⁷

The fact that the British Mandate (like all the other mandates) was confirmed by the Council, rather than the Assembly of the League of Nations, is significant. In his letter of 19 June 2023, the Cabinet Secretary, displaying unfortunate ignorance, states that the Mandate was approved unanimously by the League of Nations at San Remo. As stated above, the San Remo Conference was not a conference of the League, and the Mandate was not approved by the League at San Remo. Perhaps of greater importance is the fact that when the Mandate was approved, it was approved by the Council, which comprised only eight of the 51 members of the League. Hence one cannot even argue that approval of the declaration on ‘the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country’ is evidence of support for this declaration by the majority of states that were members of the League, let alone that it achieved unanimous support of the League of Nations.

3.6. The validity of the Mandate

At the time of the Mandate and ever since there have been scholars and political figures who have argued that the Mandate over Palestine was illegal.Footnote ¹⁰⁸ While, for the purposes of this article, these arguments are neither here nor there, in order to complete the picture of the Mandate, I shall briefly relate to them.

Critics have raised three main arguments against the Mandate’s validity: (i) the Mandate was incompatible with Article 22 of the League Covenant, which was the only legal basis the League had for approving a mandate; (ii) the Mandate violated the right of the Palestinian majority in Palestine to self-determination; and (iii) the Mandate was approved by the League before Turkey had renounced its sovereignty over Palestine. In his book on the creation of states, James Crawford discussed and dismissed these arguments.Footnote ¹⁰⁹

Before addressing the arguments, mention must be made of the intertemporal principle according to which the legality of actions must be assessed according to the prevailing legal norms at the time those actions were taken.Footnote ¹¹⁰ In other words, the legal validity of the Mandate must be judged according to prevailing norms of international law in 1922, and not according to the norms of international law in the twenty-first century.Footnote ¹¹¹

The compatibility of the Mandate with Article 22 of the League Covenant was questioned when it was approved by the League Council, but the Council decided nevertheless to approve the Mandate.Footnote ¹¹² Subsequently it was regarded as valid throughout the 1920s and 1930s during which time the Permanent Mandates Commission in Geneva reviewed Britain’s reports as the Mandatory Power and received petitions from individuals and groups in Palestine.Footnote ¹¹³ In 1924, the Permanent International Court of Justice heard a case in which Greece argued that Britain had violated terms of the Mandate.Footnote ¹¹⁴ None of the parties, nor the Court itself, raised doubts as to the legal validity of the Mandate. In two more recent cases before the International Court of Justice, judges of that court wrote about the Mandate and its implications for the rights of the Palestinians, without casting any doubt as to the Mandate’s validity.Footnote ¹¹⁵ Furthermore, the discussions leading to the adoption of Article 80 of the UN Charter, and indeed Article 80 itself, are all based on the view that the Mandate was legally valid.Footnote ¹¹⁶ This view was clearly reflected in General Assembly Resolution 181 of 29 November 1947, in which the General Assembly held that the Mandate would end when Britain left Palestine.

Turning to the argument on self-determination, there is no doubt that Britain was fully aware that the terms of the Mandate were incompatible with the emerging political principle of self-determination.Footnote ¹¹⁷ However, at that time this principle had not gained recognition as a binding legal principle, let alone a legal right.Footnote ¹¹⁸ Therefore, the argument that the Mandate was incompatible with the self-determination of the people in Palestine was a perfectly legitimate and understandable political argument.Footnote ¹¹⁹ It did not, and could not, however, affect the legal validity of the Mandate.

Finally, it is indeed true that Turkey did not ratify the Treaty of Sèvres in which it would have expressed its agreement to inclusion of the Balfour Declaration in the Mandate over Palestine. However, this clause had nothing to do with the refusal of Kamal Atatürk to ratify the treaty. That refusal was based on a change in the facts on the ground that had been effected by territorial gains of Kamal Atatürk’s Turkish National Movement, and rejection of the humiliating and harsh territorial and financial demands that the Treaty of Sèvres placed on Turkey.Footnote ¹²⁰ The Treaty of Lausanne, which was far more sensitive to Turkey’s interests, was signed in July 1923 and ratified by Turkey on 23 August 1923.Footnote ¹²¹ By this stage, the League of Nations had already approved the Mandate but it had not yet entered into force. The Treaty of Lausanne included Turkey’s renunciation of ‘all rights and titles whatsoever’ over territories of the Ottoman Empire outside the borders of Turkey agreed in the Treaty, ‘the future of these territories … being settled or to be settled by the parties concerned’. Renunciation of Turkish rights over Palestine was sufficient to allow the victorious powers to decide its fate and there was no need for Turkey to agree on how and by whom the territory would be governed. In any event, the future of Palestine as a British Mandate territory had already been settled, and Turkey agreed in the Treaty of Lausanne to what had been settled.Footnote ¹²² Finally, Turkey ratified the Treaty of Lausanne before the Council of the League of Nations decided on 29 September 1923 that the British Mandate over Palestine would come into effect. Hence, even if the treaty did not formally enter into force until all the other signatories had ratified it, Turkey had already renounced its sovereignty over Palestine when the Mandate came into effect.Footnote ¹²³

To summarise: I maintain that we must accept James Crawford’s analysis and conclusion. As the Mandate was approved by the League of Nations Council and was retained in force under Article 80 of the UN Charter, its legal validity was clear.

3.7. The Mandate: An agreement between the League of Nations and Britain

What was the legal status of the Mandate? This question arose before the ICJ in the Namibia case. In that case the ICJ held that a League of Nations mandate was an international agreement between the League and the mandatory power.Footnote ¹²⁴ There is nothing in the League of Nations Covenant to suggest that decisions of the League Council, such as the decision to approve a Mandate, imposed any legal obligations on members of the League (other than the obligation to respect the agreement between the League and the mandatory power), not to mention states that were not members when the decision was made. At the time, the legal doctrine in international law was that an international agreement does not generally give rights to or impose duties on persons or states who were not parties to the agreement.Footnote ¹²⁵ This view was reflected many years later in a judgment of the Supreme Court of Israel.Footnote ¹²⁶

Under Article 26 of the British Mandate over Palestine, Britain did indeed agree that if any dispute were to arise between it and a member of the League of Nations regarding implementation or interpretation of the Mandate, if the dispute could not be settled by negotiation, the Permanent Court of International Justice would have jurisdiction to hear it. One could argue that the implication was that the commitments of the Mandatory Power were not only to the League, but to all its members. This argument was rejected by the ICJ in the South West Africa case (Ethiopia and Liberia v South Africa). The Court held that the provision in Article 26, which also appeared in the Mandate of South Africa over Namibia, did not mean that the Mandatory Power had a general legal obligation towards each member state of the League to fulfil its obligations under the Mandate.Footnote ¹²⁷ Even if we reject this highly controversial view of the ICJ, the right of member states towards the Mandatory Power was only the right to demand that it fulfil its obligations towards the League under the Mandate.

As the Mandate was an agreement between the League of Nations and the Mandatory Power, the obligations under the Mandate lasted for as long as that agreement remained in force. When, with the approval of the UN General Assembly, the Mandate ended, those obligations ended too, and became matters of purely historical interest. The fact that the League Council had approved them as part of Britain’s Mandate did not give them validity in any other context.

3.8. The right of Jews to settle in the Land of Israel

The main legal argument of those who have advanced the right of Jews to settle in the West Bank after Israel gained control over the area in 1967 rests on the British Mandate. This argument – first advanced by Professor Rostow, later adopted in the Edmond Levy Report (2012),Footnote ¹²⁸ and more recently presented in the Cabinet Secretary’s letter of 19 June 2023 – rests on three propositions:

1. 1. The Mandate recognised a right of Jews to settle in all parts of Mandatory Palestine.

2. 2. That right was a right erga omnes.

3. 3. That right continues to exist after the British Mandate ended.

As we have seen above, the British refused to include in the Mandate any reference to the right or title of Jews, or of the Jewish people, to Eretz Yisrael/Palestine, nor even a right to establish a home in Palestine. After recognising the historical connection of the Jewish people with Palestine as grounds for reconstituting their national home, the Mandate made Britain ‘responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home’. It also held that ‘while ensuring that the rights and position of other sections of the population are not prejudiced’, the British administration in Palestine ‘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’.Footnote ¹²⁹

There is no doubt that, as clauses in a treaty between Britain and the League of Nations, these clauses imposed legal obligations on Great Britain. However, as stated above, those obligations were towards the League of Nations, and possibly to all members of the League,Footnote ¹³⁰ and not towards the beneficiaries of the Mandate.Footnote ¹³¹ Even if we assume, however, that the beneficiaries had rights under the Mandate, those rights were rights towards Great Britain. In other words, for as long as the Mandate was in force, the third-party beneficiaries could demand that Britain fulfil its treaty obligations. Those obligations, and the corresponding right to demand their fulfilment, ended when the Mandate itself ended.

The claim that Jews have the right to continue to settle in all parts of Mandatory Palestine is based on the obligation of Britain ‘to encourage … close settlement by Jews on the land’. Consistent with the notion that the Mandate did not recognise rights or entitlements of Jews, this provision obligated Britain only to encourage close settlement of Jews on the land, and even then the obligation was limited by Britain’s obligation to ensure that other sections of the population were not prejudiced. Hence, assuming the Mandate did grant a right to Jews who were the intended beneficiaries of the Mandate, their right regarding settlement was simply the right to demand that Britain encourage such settlement, subject to the reservation regarding other sections of the population. It was not a right to settle in all parts of Palestine, but the right to demand that the Mandatory Power encourage settlement. This could not be, and was not, a right erga omnes.

Under Article 25 of the Mandate, Britain was authorised to exclude application of its obligations regarding the national home for the Jewish people in the territory east of the Jordan River.Footnote ¹³² Hence, there is some basis to the argument that the British were not authorised to exclude application of these obligations in the territory west of the Jordan. However, this has no implications regarding the right of Jews to settle in Palestine. All it means is that while the Mandate was in force, Britain’s obligation to encourage close settlement of Jews related to the whole of Palestine west of the Jordan (subject, always, to ensuring the rights and interests of other sections of the population).Footnote ¹³³ As stated above, to the extent that a right existed, although the Jews were not a party to the agreement between the League and Britain, it was a right to demand that Britain encourage settlement and not a right to settle wherever they chose to settle.

3.9. Article 80 of the UN Charter

With the dissolution of the League of Nations after the end of the Second World War and the establishment of the United Nations, a legal problem arose regarding the status of territories that had been administered under a mandate from the League. The UN Charter did not retain the mandate system. In its stead, it recognised the possibility of subjecting certain territories, including those held under a mandate, to a trusteeship.Footnote ¹³⁴ Subjecting such territories to a trusteeship was not automatic. According to Article 77(2) of the Charter, the territories that would be subject to a trusteeship, and under what terms, would be ‘a matter for subsequent agreement’.

Article 80 addresses the question of the status of mandate territories that had not been made subject to a trusteeship.Footnote ¹³⁵ Did the mandate end with the dissolution of the League of Nations, or were the mandatory powers still obligated to respect the terms of the mandate? Article 80 stipulates that nothing in Chapter XII of the Charter concerning trusteeships ‘shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties’. In other words, even though the League of Nations, which had approved the Mandate, no longer existed, Britain was still obligated to comply with its undertakings under the Mandate. To the extent that Jews had a right to demand that Britain fulfil its Mandate obligations, this right continued to exist after the League of Nations was dissolved and no trusteeship had been established in place of the Mandate. When the Mandate ended with the approval of the UN General Assembly, Britain no longer had any obligations under the Mandate and so, obviously, the right to demand that it fulfil its Mandate obligations was no longer relevant.Footnote ¹³⁶

3.10. The trusteeship argument

Professor Rostow based his claim that the parts of Palestine that were not included in Israel’s sovereign territory were subject to a trust of some sort on the advisory opinion of the ICJ in the Namibia case.Footnote ¹³⁷ In that case, South Africa continued its control over Namibia even though its Mandate over the territory had been terminated by the General Assembly. In this context, the ICJ held that South Africa was bound by the duties of a trustee over the territory, and that the members of the United Nations were bound to see that it fulfilled these duties. Rostow was aware, of course, of the significant difference between that case and the case of the West Bank, in which the Mandatory Power had relinquished its control over the territory. However, he argued that a trust continues even when the original trustee denies or resigns. Applying this to the territory of the British Mandate, he argued that the trust continued even after the UN General Assembly had approved Britain’s decision to end the Mandate and no longer had control over the territory. The trust would be terminated only if the territory were made subject to a UN trusteeship or another state were established in the area.

Rostow’s argument ignores the fact that the mandate system was created in order to give a particular state the ‘mandate’ to administer a territory as trustee of a ‘sacred trust’ until the territory became independent. It was not a system to define the status of territories that were no longer part of a recognised state. The mandate system created an exception to the emerging political principle of self-determination, in creating a mechanism for provisional administration over the territory until the principle could be implemented.Footnote ¹³⁸ When the UN General Assembly confirmed Britain’s decision to terminate the Mandate, it recommended that the people of Palestine should exercise their right to self-determination in two states: a Jewish state and an Arab state. The United Nations could have decided to subject the territory of Palestine to a trusteeship. Although the US submitted a plan for it to do so,Footnote ¹³⁹ the proposal was dropped after Israel declared its independence.Footnote ¹⁴⁰ The fact that a Palestinian state was not established in 1948 in no way diminishes the right of the Palestinians in the part of Palestine that did not become part of Israel to exercise their right to self-determination.

Rostow’s trust argument has received little support in the international community.Footnote ¹⁴¹ However, let us assume for the moment that the ‘sacred trust’ created by the Mandate over Palestine continues in force after the Mandate ended. What are the implications? As mentioned above, the ‘sacred trust’ mentioned in Article 22 of the League Covenant was a sacred trust for all the peoples in the mandated territories until such time as they would gain their independence. The Jews in Eretz Yisrael/Palestine have gained their independence; the other people in the territory – the Palestinian Arabs – have not. Hence the implication of Rostow’s view is that the UN has a duty to make sure that the trust is not abused and that the Palestinians who are subject to the sacred trust will obtain their independence too. This was indeed the view taken by the International Court of Justice in its advisory opinion in the Wall case. The ICJ stated:Footnote ¹⁴²

Rostow’s trust argument was also taken up by a UN committee. In a recent report this UN committee accepts Rostow’s argument that the trust over Palestine continues after the end of the Mandate. The Committee claims, however, that Rostow ignored Article 5 of the Mandate, which states that the Mandatory Power must ensure that no part of the area is transferred to the sovereignty of a foreign government. The Committee argues that in the area that is not part of its territory, Israel is a foreign power that may not transfer part of its population into the area of the trust.Footnote ¹⁴³

Paradoxically, if one is to accept Rostow’s argument that the West Bank is still subject to a trust, and to apply the Namibia precedent to the present situation, we ineluctably reach the conclusion that Israel has become the trustee of the territory. This is actually consistent with the view that an occupying power has a duty of trust towards the inhabitants of the occupied territory.Footnote ¹⁴⁴ The duty of the Mandatory Power to place the country under conditions that will allow creation of the Jewish home has been fulfilled. The trust now relates to the duty to further the rights of the Palestinian inhabitants of the land, including their right to self-determination.

We see then that the trust argument is a double-edged sword. Rostow regarded the Mandate as an instrument that subjected all the rights of the other inhabitants of Palestine to what he regarded as the right of Jews to settle in all parts of the land. Hence he opined that the implications of the continuing trust over the West Bank were that that right continues to be valid. However, as we have shown here, the Mandate did not recognise a right of Jews to settle in all parts of Mandatory Palestine and was certainly mindful of the rights of the non-Jewish inhabitants of the land. When it confirmed Britain’s decision to end the Mandate, the UN General Assembly recommended a future government over the territory that would allow both Jews and Arabs to realise their right to self-determination. Since the Jews have exercised their right, any trust that still exists must imply the duty to the further exercise by the Palestinian Arabs of their right to self-determination.

3.11. General Assembly Resolution 181

A great deal has been written about this resolution, adopted by a two-thirds majority in the General Assembly of the United Nations on 29 November 1947.Footnote ¹⁴⁵ In discussing this famous resolution, two questions arise:

1. 1. Did the General Assembly have the authority to confirm Britain’s decision to end the Mandate that had been approved by the Council of the League of Nations?

2. 2. Did the General Assembly have the authority to make a binding decision on the form of government that would be established in the area when the Mandate ended?

In the present context we are not concerned with the second question, about which there is broad agreement that the answer is negative. According to Article 10 of the UN Charter the General Assembly does not have the authority to make decisions that bind UN member states, not to mention peoples who are not and could not be members of the UN, but merely to discuss and make recommendations on questions and matters within the scope of the Charter. Hence the widely held view is that the Partition Plan was a recommendation.Footnote ¹⁴⁶ If there was an organ of the United Nations that could have bound states to accept the Partition Plan, that organ was the Security Council. However, despite the request of the General Assembly that the Security Council give effect to its recommendation, the Security Council refrained from doing so.

Turning to the first question: the fact that the General Assembly did not have the authority to adopt a binding resolution on the future form of government in Palestine after the British Mandate ended does not mean that it did not have the authority to approve Britain’s decision to end the Mandate. The Council of the League of Nations had the authority to approve the termination of a mandate that a member state had been granted. Which body in the UN had this authority after dissolution of the League? This question arose before the International Court of Justice in the case of South Africa’s mandate in Namibia (South West Africa).Footnote ¹⁴⁷ In this case the Court held that the UN General Assembly had the authority to terminate South Africa’s Mandate over Namibia because of South Africa’s violation of its terms. If the General Assembly has the authority to terminate a League of Nations mandate based on violation of its terms, it also must have the authority to approve the decision of the mandatory power to end the mandate.

UNGA Resolution 181 states that the General Assembly ‘[t]akes note of the declaration by the mandatory Power that it plans to complete its evacuation of Palestine by 1 August 1948’. The first article in the Partition Plan, which forms part of that resolution states that ‘[t]he Mandate for Palestine shall terminate as soon as possible but in any case not later than 1 August 1948’.

Following this resolution the British Colonial Secretary announced on 11 December 1947 that Britain would be leaving Palestine on 15 May 1948. In the light of these developments the considered view of virtually all experts is that the Mandate over Palestine ended on the day on which Britain withdrew its forces from the country, namely 15 May 1948, which is, of course, the day on which Israel became an independent state.Footnote ¹⁴⁸ This view was also expressed in a judgment of the Supreme Court of Israel.Footnote ¹⁴⁹

Professor Rostow advanced the view that the Mandate was never terminated and that it continues to apply in those parts of Palestine in which no state had arisen.Footnote ¹⁵⁰ But his view had no traction. As mentioned, other experts – including James Crawford, Nathan Feinberg and Malcolm Shaw – all took the view that the Mandate ended after Britain withdrew from the Mandate with the approval of the UN General Assembly.Footnote ¹⁵¹ In its advisory opinion on the construction of the separation barrier the ICJ took this view too.Footnote ¹⁵² From the numerous resolutions of the UN Security Council in which it refers to the West Bank as occupied territory, it is abundantly clear that this is also the position of the Security Council.Footnote ¹⁵³ Israel never raised the claim that the Mandate continues to apply in parts of Eretz-Yisrael/Palestine. It accepted the UN Security Council Resolution 242 of November 1967 in which there is not a hint that some of the territories Israel occupied in 1967 are still subject to the terms of a League Mandate. The principles laid down in that resolution – ‘withdrawal of Israel from territories occupied in 1967, the termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace’ – are not consistent with the view that some of these territories are still subject to the terms of a mandate.

It is interesting to note in this context that Rostow, who was involved in 1967 in drafting UNSC Resolution 242, argued that since this resolution did not demand immediate Israeli withdrawal from territories conquered in the 1967 War, Adam Roberts was mistaken when he regarded the West Bank as occupied territory.Footnote ¹⁵⁴ It seems to me that in making this argument Rostow was assuming that an occupation is by its very nature unlawful, and that the occupying power therefore is obligated to end the occupation immediately and unconditionally.Footnote ¹⁵⁵ In this he was mistaken. Resolution 242 emphasised ‘the inadmissibility of the acquisition of territory by war’Footnote ¹⁵⁶ and held that Israeli armed forces must withdraw ‘from territories occupied in the recent conflict’. Nevertheless, it tied that withdrawal to termination of all claims of belligerency and ‘to respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognised borders free from acts or threats of force’. Thus, Resolution 242 implicitly recognises that when territory is occupied in the course of a war of self-defence, withdrawal from the occupied territory may be made dependent on peaceful resolution of the conflict between the warring parties. However, this does not in any way imply that the territory taken in the course of the war is not occupied territory in which the international law of belligerent occupation applies. In any event, despite his involvement in drafting the resolution, Rostow’s view of the meaning and implications of the resolution has not been widely accepted. In fact, the meaning of the resolution has generated a great deal of discussion in the literature, exposing a wide range of views on the issue.Footnote ¹⁵⁷

3.12. The Mandate and other international instruments

One of the inexplicable assumptions implicit in the Rostow argument is that the Mandate is some kind of ‘supra international document’ that trumps all subsequent developments in international law, including decisions of the most important international organs, including the UN Security Council. I write that this is an assumption, since none of the people who have supported the ‘Mandate argument’ have ever explained on what theory they base the primacy of the Mandate.Footnote ¹⁵⁸ Unlike Article 25 of the UN Charter, which provides that decisions of the Security Council bind all member states, there was no provision in the League of Nations Covenant under which decisions of the Council or Assembly bound members. Furthermore, unlike Article 103 of the UN Charter, which gives priority to the Charter obligations of UN members over their other treaty obligations, the League Covenant did not give primacy to members' Covenant obligations.

There are numerous resolutions of the UN General Assembly and Security Council declaring that Israel is an occupying power in the West Bank and, as such, is bound by its obligations under the Fourth Geneva Convention. Leaving aside the General Assembly resolutions, which are not legally binding, a strong case can be made that at least some of the Security Council resolutions include decisions that are binding. Article 25 of the Charter stipulates that the member states accept and agree to carry out all ‘decisions’ of the Security Council. In the Namibia case, the ICJ rejected South Africa’s argument that only Security Council resolutions passed under Chapter VII of the Charter are binding.Footnote ¹⁵⁹ Even resolutions passed under Chapter VI may be binding, all depending on the Council’s intention, as reflected, inter alia, in the language used in the resolution.Footnote ¹⁶⁰ Hence, for example, in UNSC Resolution 2334 (23 December 2016) the Security Council reiterated its ‘demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard’.Footnote ¹⁶¹ Use of the term ‘demand’, as opposed to the term ‘calls upon’ used in other parts of the same resolution, may very well imply that the Security Council intended that this be a binding decision.Footnote ¹⁶²

The Security Council has also decided on various occasions that the establishment of Israeli settlements in the West Bank is illegal and that Israel must cease building such settlements.Footnote ¹⁶³ What legal argument can be advanced that the claimed right under the Mandate of Jews to settle in all parts of Palestine overcomes a decision of the Security Council that establishment of settlements for Israelis in the West Bank is a violation of international law and that Israel must evacuate its settlements? As mentioned above, the League Covenant did not contain a clause similar to Article 25 of the UN Charter, under which all members agreed to accept decisions of the League Council; nor did it contain a clause similar to Article 103 of the Charter, according to which in the event of a clash between the obligations of a UN member state under the Charter and its obligations under any other treaty, its obligations under the Charter shall prevail.

International law did not freeze in 1922, when the British Mandate over Palestine was approved by the Council of the League of Nations. Much has happened in international law since 1922. In the present context, the most important developments are the total rejection of colonialism and colonial regimes and the development of the right of peoples to self-determination.

The question of the continued validity of an international instrument that is no longer compatible with customary international law arose in the Namibia case, concerning South Africa’s Mandate over Namibia. As we saw above,Footnote ¹⁶⁴ in that case the ICJ held that ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’.

The potential tension between instruments that were valid under the prevailing norms of international law at the time they were made and subsequent developments in international law was mentioned by Max Huber in his famous decision in the Islands of Palmas arbitration.Footnote ¹⁶⁵ In this decision Huber mentioned two parts to the intertemporal principle: the creation of rights and the continued existence of rights. While the creation of a right is determined by the law in force at the time it was created, ‘the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law’.Footnote ¹⁶⁶ In our context, even if we were to assume that the Mandate created the right of Jews to settle in all parts of Palestine (an assumption, it will be recalled, that I rejected above), the continued existence of that right must take into account subsequent developments in international law.Footnote ¹⁶⁷ These developments include the prohibition on acquisition of territory by use of force, the right to self-determination of peoples, and the prohibition on an occupying power to transfer part of its civilian population into occupied territory.

Resting Israel’s rights in the West Bank and its right to settle its citizens there on what was, as we saw above, essentially a colonial regime, and denying the right to self-determination of the other people who live in the land, might have been persuasive arguments 100 years ago. In the world of the twenty-first century, their only effect is to lend credence to the growing number of people in the world who claim that Israel is a colonial regime.

3.13. Concluding comments on Rostow’s view

In ending my criticism of Rostow’s ‘Mandate argument’, a number of points are worth mentioning. Rostow presented his view before the competent organs of the UN expressed their opinion on the matter. Rostow assigned major significance to the advisory opinion of the ICJ in the Namibia case, and even criticised those who attacked this opinion as being based on colonial ideas.Footnote ¹⁶⁸ Rostow passed away before the ICJ delivered two advisory opinions in which it held that the West Bank (including East Jerusalem) is subject to a regime of belligerent occupation.Footnote ¹⁶⁹ We cannot know whether Rostow would have given these opinions the same weight he gave to the Namibia opinion, even if he disagreed with the Court’s reasoning.

In his main article on the Mandate argument Rostow claimed that the founders of the League of Nations ‘established the mandate system in order to liberate peoples who had lived in the colonies and protectorates of empire, and launch their new states on a footing of dignity and equality’.Footnote ¹⁷⁰ Rostow obviously did not examine the founding documents of the mandate system; nor did he have the advantage of access to the impressive work recently published by contemporary historians who expose the colonial background and purposes of the system.Footnote ¹⁷¹ It seems, then, that Rostow’s argument was based on false premises. If one considers the colonial background to the mandate system in general, and to the British Mandate over Palestine in particular, it is difficult to accept Rostow’s conclusions.

Finally, in deciding on the position of international law on a given question, the greatest weight must be given to the views of states and to decisions of international organs, first and foremost among which are the International Court of Justice and the UN Security Council. When disputes are considered by the ICJ, the views of academic experts may serve only as ‘subsidiary means for the determination of the rules of international law’.Footnote ¹⁷² They cannot prevail when they are contrary to the position of almost all states, the ICJ and the UN Security Council, and, one may add, the highest judicial body of the state involved.Footnote ¹⁷³