Who is Entitled to Gift Away Jewish National Rights?

Dr Yoram Shifftan

It is important to note that the Sharon-Olmert proposition to uproot Jewish presence in Gaza and North Shomron (and to  transfer  the area to the enemy) is an irreversible gift since it is unilateral, voluntary, and does not put any obligation on the other side.

It is unlawful to gift away property and rights without prior consultation of the lawful owner, and even more so if the owner is not even aware of his rights.

The trust of the League of Nations for the "Jewish people", which is the "beneficiary" of the "trust" operates on the same principle as a trust for an individual beneficiary, say a property held in trust for a young individual until he is eighteen. Once this individual attains the age of eighteen, this individual, and him only, is entitled to decide what will happen to the property and rights involved. These rights of the individual are invariant regardless of the passage of time, the changing composition of the Board of Trustees, and the location of the trust. It is clear that in the post-colonial era, the "Jewish people" are long passed majority age. The Jewish people are the sole owner of the rights bestowed on thm in perpetuity by the League of Nations' mandate, whatever these rights are.

According to the Palestine Mandate (trusteeship) of the League of Nations the owner of "Palestine" is the "Jewish people" and its rights include "the reconstituting their national home in that country" by creating "such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions" including via the urgent "facilitation and encouragement of Jewish immigration and close [dense] settlement by Jews on the lands, including State lands and waste lands  not required for public purposes". Transfer of land out of Jewish control is not permitted: "No Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power". Later, these Jewish rights were temporarily "postponed", "withheld", in four fifths of Palestine, i.e. in "Jordan" of today. It is to be emphasized that according to the Mandate Jews exclusively were given "political" rights in Palestine.

These rights were given to the Jewish people by the community of nations in perpetuity and were enshrined in the Charter of the United Nations. Thus according to international law these rights of the "Jewish people" are still valid and legally binding. The sole beneficiary of this trusteeship, the "Jewish people", has to be consulted before some of these rights are given away. But the owner of these rights (the beneficiary of the trust) himself is not even aware of his rights. This can be ascertained by every Israeli by simply asking his neighbors. Indeed during the existence of Israel, and even before the declaration of the state in 1948, these rights were not taught in Israel's education system. As strange as it may appear to an outside observer, the modern Magna Charta (the original Magna Charta being the bible) of the Jewish people is absent in the official education  system in Israel and among Diaspora Jews. Furthermore, since Oslo, Israel's official representatives are banned from declaring these rights in public.

It is therefore suggested that a public campaign shall be initiated, and petitions shall be launched to Israel's state comptroller and Supreme Court. External courts, in particular the court of the ex-Mandatory Power, the U.K., could be approached. The purpose of the public campaign and the request from the court shall involve four requirements.

A.  That the owner shall be consulted. Since the sole owner and beneficiary of these rights is the "Jewish people", a referendum (or appropriate election) will be organized among all Jews living in Palestine, since only the Jews are the "owner" of these rights. Israeli Arabs and Knesset members of the anti-Zionist Arab parties, who are not the owner of these rights and therefore are not entitled to gift away what is not theirs,  shall not be involved in the referendum (or in the Knesset) in any way.

B. That prior to such a referendum the people of Israel shall be made aware of the above-mentioned national rights of the  Jewish people. This should include the government of Israel, at its own expense, placing advertisements in all Israeli newspapers in all languages and informing the population about Jewish National Rights, preferably by citing the original formulation of the mandate and explaining its current validity. Special programs on radio and television should be dedicated for the teaching of this information. Additionally, this information can be propagated by the distribution of leaflets with this information to all households in Israel (like the Geneva people have done). The inclusion of these rights in Israel's education system and in Israel's advocacy abroad should also be urgently instituted and actively encouraged. In view of the very many years of neglect is it is clear that a compensatory positive action is required in informing the public. Without this special effort of informing the owner of his rights the "general principle of law" that requires that the owner is to be made aware of his rights will not be fulfilled, and a referendum (or even a Knesset vote on the subject) will be meaningless and invalid in law.

C. After the Israeli public has been made aware of Jewish National Rights as described in (B), and before the referendum described in (A) is carried out, there will be a period of  public discussion of the wisdom and advisability of the Sharon-Olmert uprooting proposal. It is to be emphasized that Olmert and the Quartet have emphasized many times that the proposed uprooting is only the beginning in the process of Israel returning to the pre-1967 lines. The younger Israeli generations cannot imagine the sense of vulnerability that prevailed in pre-1967 Israel and how deep was the sense of relief that was provided by the 1967 victory. This discussion will inform the younger generations that the victory in 1967 was a matter of touch and go, of pure luck, that may not repeat again, and unlike the Arabs, Israel cannot afford to lose even one major war. One example among many to the extreme vulnerability of pre-1967 Israel is seen from the fact that in this war a Jordanian tank brigade was about to cut Israel into two parts in its narrowest waist, the seventeen kilometers of the Natanya Tul-Karem axis. There were no meaningful forces on the ground to stop the Jordanians and so a desperate last-minute effort was made to divert some planes, since the whole air force was occupied in Egypt, and these few planes managed to stop the Jordanian tank brigade at the last minute. The younger generations will be informed about the security nightmare of pre-1967 Israel which included the fear that the country will be cut into two parts, the permanent infiltration of terrorists, even though  Israel then faced the more disciplined Jordanian and Egyptian armies and the not the much worse chaotic Palestinian authority (which we brought on ourselves!). And because the West Bank and Gaza were no-go area for Israelis (as it is gradually becoming now again by our free choice!), it was very hard to take defensive measures, to gather information, to mobilize the reserves in time, to hit the terrorists in their shelter towns without hitting the innocent, to have enough space for military jets to fly, and the whole country lived under the permanent threat of annihilation and massacre as was indeed promised by all Arab states.

The defense (not to mention ecological, living space and more) value of the territories has much increased since 1967 also as a deterrent against the use of WMD. The crawling return to the 1967 situation will return the nightmare which prevailed in pre-1967 Israel but it would be much worse because of WMD and the sense of demoralization that we brought all this misery on ourselves. Already it is seen that the more territorial concessions are made the more difficult it becomes to stop the supply of weapons and ammunition to the terrorists. Soon civilian aircraft will be under dire threat. And the more official and legal Arab status in the West Bank and Gaza becomes, the more difficult it will be to face the world and to return again to  the territories. After 1967 Israeli soldiers had comfortable military bases in the "territories" which they gifted away to the Palestinian authority, so when they had to return after the second intifada began, they had to live and fight for days in the crowded spaces of tanks since now their bases were occupied by Palestinian forces. The public discussion should also raise the irreversibility of gifts, and the difficulties the world will have in accepting Israeli military forces in the territories without accompanying civilian Jewish settlements (which also serve as essential logistic bases); such a military-only presence will appear colonial and contribute to anti-Israel  feelings.

The court shall set the lengths of the periods of the activities described in (B) and (C).

D. It is self-evident that during the activities described in (A)-(C), all preparations for the proposed  evacuation shall be suspended.

In view of the momentous, irreversible and unheard-of nature of the Sharon-Olmert uprooting proposition, that a government shall volitionally and unilaterally  single  out for transfer its own citizens from areas where it has the right to sovereignty (whereas in fact no area in the world should be made judenrein), and forcibly uproot them and replace them with the enemy, and in view  of the total ignorance of the Israeli public of Jewish National Rights according to the League of Nations Mandate, and of the fact  that according to current international law Israel is entitled to sovereignty and formal

annexation of at least all of the area of Western Palestine, it is clear that the periods  of  each of the  activities specified in (B) and (C) should be many months. Rushing such momentous decision is evidently unlawful. Here too, we find that reality is the opposite of the lawful situation, even to the point of negating the need for a referendum altogether. No reason has been given by the Israeli authorities for the urgency. Such an urgency only follows a major military defeat and in this case a total surrender to terror. Such a surrender is a guarantee to encourage further terror as indeed was recently admitted by Hamas,

that explicitly said that the "disengagement" justifies a posteriori their terror tactics and suicide bombing. The very existence of a referendum was explicitly ruled out by the Prime Minister because of this unexplained and artificial urgency:

In a holiday interview with Maariv (14 September 2004), Sharon said, “A national referendum isn’t on the agenda since it would cause a delay in the timetable of implementing the disengagement plan”.

“I wanted to carry out a plebiscite at the time but I was told it would be a very long process”, the Prime Minister said. “The disengagement plan will be carried out without delay, according to dates I have outlined. If the plebiscite wouldn’t have caused a delay, I would have considered it, but that is not the case”.

Such an urgency is unacceptable. The unprecedented nature of the uprooting proposal is obvious if we recall that from the  point of view of international  law Israel is entitled to urgently encourage and facilitate dense Jewish settlement in the West Bank, the Gaza Strip and East Jerusalem to equal extent that it is entitled to encourage Jewish settlement  within the 1949 armistice lines ; see for example the former Assistant Secretary of State, the ex-dean of the best law faculty in the

US (Yale), Prof. Eugene V. Rostow, in "The Legal Context of the Middle East Pace Talks", Policywatch, The Washington Institute, February 24, 1992.

Thus the proposed evacuation is analogous to Tony Blair's government suddenly deciding to single out for evacuation all British people from Cambridge and Oxford and the area between them, and to hurriedly transferring the land of Cambridge and Oxford, not to a neutral observer, but to an enemy, say to Bin Laden  and his associates, and doing this without prior inclusion of such an intention in the manifesto of the Labor party before the election, nor after a referendum on the matter. For complete analogy we should mention that the opposition of her Majesty Government, the Conservative Party, has in fact included such an extreme and momentous evacuation in its own manifesto, but it was defeated in a landslide victory by Tony Blair, who prior to the election mocked and derided the Conservative Party's unprecedented evacuation plan. Prime Minister Tony Blair was roundly defeated by his own party who objected to the very idea of a Bin Laden state in the heart of the British Isles, and his evacuation plan was also twice rejected within his own  party, but he continues unperturbed with the

evacuation preparations despite promising to abide by the opinion of his own  party that brought him to power.

As for requirement A above that the referendum shall be restricted to Jews only (it is technically impossible to include those Jews that  are not living in Israel and we also note that Diaspora Jews deserve to a smaller extent to be included since they do not do military service and they will not directly suffer  the consequences of the decisions as compared to  Palestine-based Jews), the major reason for this restriction is that Jews only are the beneficiary of the League of Nations trust. This should be enough. But one can invoke many other  reasons for this restriction. Israel is the only country in the world which gives voting  rights in the national level to its Arab citizens who are not required as a sector to do military service. This military service involves 3 years for men (shorter period for women) and  later long periods in  the reserves for many years. Such a service is  a very dangerous activity and it also  sets back economically Jewish citizens of Israel as compared to Arab citizens of Israel. The Arab citizens are  not even required to  do some kind of "National Service", they even  refuse to voluntarily do national  service in their own  community, and there have been cases of intimidation and firing from jobs of those few Israeli Arabs that dared even raise the subject for discussion. So what kind of democracy is it that gives all the rights to an ethnic section

(even though it belongs to the enemy ethnicity) that does not bear all the duties. Without the readiness to endanger one's life for the state one lives in, one has no right to decide on questions of national survival, security, sovereignty, frontiers,  and the dominant culture of the state. The universal situation in the world is like the Jews in the First World War that were killing each other in the service of the opposing combatant armies.

It is normal for a nation state to discriminate in favor of its own ethnic majority. For example, Israel is already discriminating in favor of Jews in its law of return. Similarly  Germany favors in its laws ethnic Germans and facilitate their return  and integration after absence from Germany of many generations, and nobody says that this discrimination is racist. On the other hand, millions of Turks live in Germany and neither  them or their  descendants have the German nationality and the right to vote in the national level, and this occurs when, in contrast to the analogous situation in  Israel, Germany is not at war with Turkey. The situation is similar in Switzerland where for many years guest workers and their families find it very difficult to

get Swiss citizenship which is also made difficult by the  fact that the local authority has to permit such a citizenship!

The community of nations, as expressed in the Mandate (trust) for Palestine of the League of Nations has explicitly referred to Jews (only) being consulted in all matter national: "An appropriate Jewish agency shall be recognized as a public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration, to assist and take part in the development of the country.

The Zionist organization ...shall be recognized as such agency. It shall take steps in consultation with His Britannic Majesty's

Government to secure the co-operation of all Jews who are willing to assist in the establishment of the Jewish national home (Article 4 of the Mandate for Palestine)". It is the natural continuation of this that Jews only shall decide on national questions related to the Jewish  national home in Palestine, or rather in the one fifth that remains from it. The least appropriate is to involve members of the ethnic minority belonging to the ethnicity of the enemy and who do not even do military service as a whole sector of  the population (recall that some ultra-Orthodox Jews are only given temporary postponement of their military service). The Sharon-Olmert uprooting plan is typically such a national question, as distinct from questions of local and  municipal nature that involve all the population of Western Palestine.

Democracy is also an arbitrary notion and in any case just one consideration among others. For example, even when one   applies the democratic principle, one person one vote, there is the prior arbitrary decision, for example which tribes in Africa to include in a certain national state, or whether to include Northern Ireland in the U.K. or in the Irish Republic (both can be justified), which might strongly affect the  final result. Then there is the phenomenon of "one-time democracy", e.g. Hitler coming to power democratically and then abolishes democracy or, similarly, an extreme Muslim regime rising to power democratically (i.e. by the principle "one person  one vote") and then persisting forever, see Algeria as an example. It is probably with this possibility in mind that Atta Turk, the father of modern Turkey, enshrined constitutionally, a complete separation of religion and state, and had it not been for the Turkish army preserving the constitution, this separation will have long disappeared. But such a constitutional act is inherently undemocratic since it is invariant with the passage of time.

Similarly, Israel is entitled, with view of the importance of having at least one Jewish state (compare with already 22 states,  for the ONE ONLY Arab nation as the Arabs themselves are not tired to repeat) as an overriding value, to constitutionally enshrine in law, that Israel shall forever be a Jewish state, and by the name of this supreme value take corrective actions that are not always utopian democratic, but this is what all other nations do in the real world. Refusing to recognize this less-than-utopian democracy with respect to the Jews only, this anti-Zionizm, is by definition anti-Semitic (Judeophobic) as it singles

out the Jew, as indeed was recognized by  Martin  Luther King. One such corrective action is the limitation of decision making in the national level to Jews only. This applies even more if we invoke the well proven Muslim and in particular Arab intolerance to Jewish sovereignty in a territory of any size.

Indeed the empirically proven failure of the Oslo conception of Shimon Peres resides in his lack of recognition that better economic and educational status will not compensate for the inherent Muslim intolerance of the notion of any Jewish  sovereignty. The failure of the Peres Oslo conception  is demonstrated in the "paradox" that even in countries at "peace" with Israel, Jordan and Egypt, it is the organizations of journalists, actors, doctors, engineers etc. that are the most virulently anti-Israel and anti-Jewish. I recall a supposedly secular urbane Palestinian journalist working for CNN extolling on the airwaves of the BBC the virtue of life for Jews under Islam,  but the mask fell when he said that the normal situation was exemplified in the Jews living in the Old city of Jerusalem asking the Turkish Sultan for permission to settle out of the walls of the Jerusalem. According to him Jews should always ask permission of a Muslim authority before any "independent" act. This is the normal Muslim mentality according to which Jews can only be second rate (dihimmis) tolerated, humiliated when not massacred, minority. Even if there is a Muslim-Arab that thinks otherwise he would soon be intimidated to shut up. Again every Israeli

can find out that this is indeed the situation by simply asking his Muslim neighbor if he thinks that a state with a dominant Jewish culture is justified. It is the Left’s persistent ignoring of this fundamental intolerance in the Muslim-Arab mentality that creates the wishful thinking that has led to the catastrophe of Oslo. This mentality is sometimes dissimulated to obtain the next concession. But it is easy to recognize it if one follows the intra-Arab utterances. Every concession by Israel is cashed in for the final showdown. It is the Israeli Left’s refusal to see that peace in this part of the world can only be based on deterrence, that now endangers the very existence of the only Jewish state. And a typical reflection of this blindness of the Left to recognize unpleasant reality, is the idea that the referendum on the uprooting in Gaza and North Shomron, shall include the very same Arabs who objected and object to the Israeli declaration of independence in 1948 and to the notion of a Jewish state. In 15 years Israeli Arabs will be 30%. What if then they and the Israeli Left will decide to abolish the dominant Jewish nature of Israel?  And later still, the Jews of Palestine will turn to dihimmis in yet another Arab totalitarian  state, as a prelude to the final massacre. If Israel will not constitutionally anticipate this eventuality when there is still time, the end of the Jewish state, not to mention the final massacre, is very much in sight. And like in the days of Hitler, the leftists and their descendants who helped to create this situation will not be spared.

The so-called liberal, progressive left, who are in fact gauchiste de salon, was always inflicted by a fixation on one utopian slogan, that created a mental inflexibility which disabled them from enlarging their universe of discourse to see other aspects of reality. When they fixed on Stalin, they were not able to see the atrocities he committed. The current romance is with extreme Muslim terrorist fanatics so they are unable to demonstrate against the atrocities committed, with full support and participation of a Muslim government, against the natives in the Sudan. Their fixation on utopian democracy disables them from seeing the additional aspect of reality which is the overriding value of securing one Jewish state in Palestine.

Typically, Moshe Hanegbi, the voice of Israel's legal commentator, is not able to refer to the fact that the very preservation of a democracy requires at times the curtailment of some democratic rights. In his analysis there is never a concession  to the fact that a democracy at war is not the same as democracy in peace. Not to mention his focusing, like the rest of the voice-of-Israel personnel, on the danger the settlers pose to democracy while completely ignoring the undemocratic conduct of Sharon.

Israel is sometime compared to South Africa's apartheid. But in the apartheid regime there were rules, issued by the state itself, which would be the equivalent of the Israeli authorities not allowing Arabs and Jews to marry, to share the same benches in public parks, to use the same pubs, to work in the same lab at Hebrew University, to sit in the same bus in peacetime (liberal Israel allows Israeli Arabs and Israeli Jews to travel in the same buses, even though it is Arabs only

that provide the suicide bombers, and in some cases Israeli Arabs are among the perpetrators). One could compare the segregation period in the south of the US to apartheid, but to take preventive measures of security and self-defense, or measures to secure the dominant Jewish nature of Israel, and to label them apartheid, is yet another Orwellian abuse of language. On the other hand, the British locked up Jewish refugees from Hitler and exposed them to perilous journeys to Australia and Canada just because they escaped from German-speaking countries, and, also in World War II the US arrested its citizens of Japanese origin.

As to requirement (B) above, every Israeli can verify that his neighbors think that there is something illegal from the point of view of international  law in Israeli settlements and therefore, so the conventional wisdom goes,  the more Israeli settlements will be dismantled the more we shall be loved in the world. The Israeli leftist elite that has infiltrated to gain total control of the  legal system, the media and many of the government positions (on the principle that a friend brings  a friend), and acting as Lenin fools or because he is bribed, has an interest to perpetuate this false belief of the man in the street, so that the uprooting can be accomplished with a semblance of democracy and without public outcry. A striking example reported earlier involved the head of correspondents in the Voice of Israel (his name was Gad Ben Yzhak) who was reluctant to compensate on the

"Haarachat Mazav" radio program for Dr Alon Liel's labelling the settlements as illegal, saying, many months before the uprooting plan in Gaza and North Shomron was raised, that the Voice of Israel cannot comply with this request since "we have to prepare the nation for the uprooting of settlements". It could be that he trusted me to divulge his motives since my focus was the importance of teaching the legality of the settlements for the purpose of foreign Hasbara (advocacy).

Combining this with similar incidents, such as a conversation with Dov Weisglass in 2001 in which he remained unresponsive to my appeal that the legality of the settlements shall be taught and asserted, it is hard to avoid the conclusion that in Israel the value of objective truth, as a value in itself, and a basis of rational decision making and Hasbara, is non-existent, and like in the Soviet Union, where there were various versions of the newspaper "Pravda", and only the Communist elite got the real truth while the rest got different degrees of diluted and fabricated "truth", objective truth is restricted to the elite and concealed from the rest. The effort of the elite and its subservient newspapers and electronic media in the nineties to conceal from the Israeli public  the Palestinian infractions of Oslo and the continuation of Palestinian and other Arab incitement against Jews is another case in point.

But what is the point in maintaining periodic elections if the information needed to effect such an election is actively concealed from the public, and a policy which is diametrically opposed to the one declared before the election and was included in the manifesto is implemented immediately after the election. Israel now is only a facade of a democracy, pretending to go through the motions. But then only in Israel the editorials and various professional writers of Haaretz, the newspaper for thinking people, the Israeli Guardian or Le Monde  (similar opinions were expressed by professional journalists in other major Hebrew newspapers), are not ashamed to write in public that Sharon may well be personally corrupt  and his conduct is undemocratic, but this should be ignored as long  as he carries  out the uprooting policy. Again, in a world where there is no  value of "objective truth", there is also no value of "objective justice".

This article has focused on the legitimacy of the Sharon-Olmert uprooting plan in Gaza and North Shomron. But it should be clear that the "agreement" of the Sharon government to the Road Map (despite the objection to a "Palestine state" in a special vote in the Likud party and that such a state is the opposite of the Likud's manifesto) is illegitimate since it suffers from the same lack of fulfillment of the four gifting requirements described above. This lack of legitimacy makes it invalid for the Quartet to ask Israel to fulfill its obligations according to the Road Map (in any case the Arab side has not fulfilled its part according to the Road Map). The gifting involved in accepting the Road Map is illegitimate not only because the Jewish public is unaware of its rights and was not consulted in a multistage procedure as described above, but a gifting under duress is invalid (this was elaborated on in an earlier publication). There should be no doubt that the Road Map involves gifting away Jewish National Rights: according to international law as expressed in the Palestine Mandate of the League of Nations, all empty spaces (which are not privately owned) in Judea, East Jerusalem, Samaria and Gaza are to be allocated for dense Jewish settlement, and it is the duty of the Israeli government and the international community to encourage and facilitate this Jewish settlement. This is incompatible with the Road Map, unless a proper procedure of gifting away of Jewish National Rights has preceded the acceptance of the Road Map.