Britain in Palestine (1917-1948) - Occupation, the Palestine Mandate, and International Law

• Autore: Patrick C. R. Terry
• Carica: Professor of Law at the University of Public Administration in Kehl (Germany)
• Pagine: 187-251

ARTICLES & ESSAYS

https://doi.org/10.6092/issn.2531-6133/7663

UNIVERSITY OF BOLOGNA LAW REVIEW

ISSN 2531-6133

[VOL.2:2 2017]

This article is released under the terms of Creative Commons Attribution 4.0 International License

187

Britain in Palestine (1917-1948) - Occupation, the Palestine Mandate,

and International Law

PATRICK C. R. TERRY †

TABLE OF CONTENTS: 1. Introduction; 2. The Balfour Declaration; 2.1. The Letter; 2.2.

Background; 2.3. Controversies Surrounding the Balfour Declaration; 2.3.1. The “Too

Much Promised” Land; 2.3.1.1. Sykes-Picot-Agreement (1916); 2.3.1.2. Mcmahon-

Hussein Correspondence (1915/1916); 2.3.2. International Legal Status of the Balfour

Declaration; 2.3.3. Interpretation of The Text; 3. British Occupation of Palestine (1917-

1923); 4. The Palestine Mandate; 4.1. The Mandates System; 4.1.1. Self-Determination

and President Wilson; 4.1.2. Covenant of The League of Nations; 4.1.2.1. Article 22;

4.1.2.2. Sovereignty; 4.1.2.3. Assessment; 4.1.3. President W ilson’s Concept of Self-

Determination and The Covenant; 4.2. The Palestine Mandate in Detail; 4.2.1. First

Decisions; 4.2.2. Turkey; 4.2.3. The Mandate’s Provisions; 4.2.4. The Mandate’s

Legality; 4.2.4.1. Self-Determination; 4.2.4.2. Article 22 (4) Covenant of The League of

Nations; 4.2.4.3. Other Violations of International Law; 5. Conclusion.

ABSTRACT: At a time when there are not even negotiations between Israel and the

Palestinians in order to resolve their longstanding dispute, this article seeks to explain

the origins of the conflict by examining Britain’s conduct in Palestine from 1917-1948,

first as an occupier, then as the responsible mandatory, under international law.

Although at first sight dealing with a purely historical issue, a discussion of British

conduct in Palestine is relevant at a time when the realization of a viable two-State-

solution to the conflict between Israel and the Palestinians is becoming ever more

urgent and concurrently less likely. This article analyses the developments in Palestine

as of 1917 and the legality, in international law, of (mainly) British actions. It will be

argued that British attempts at implementing the Balfour Declaration -which, as will

be shown, had no standing in international law- while being occupiers of enemy

territory were contrary to the Hague Regulations as acknowledged by leading British

officials at the time. It will then be explained that the Palestine Mandate, as confirmed

by the League of Nations’ Council, contravened Article 22 (4) of the League of Nations

Covenant, and that British efforts to implement it as of 1920 -and thus four years

before the peace treaty with Turkey came into force- were similarly inconsistent with

the Hague Regulations. Far from believing in the legality of their actions, leading

British officials and politicians were, as will be documented, well aware of their

conduct’s “legal imperfections”. It will be concluded that British conduct in Palestine

could rarely, if at all, claim to be accordance with the new international legal order the

UK had helped to create following WWI. Repeatedly ignoring international law did not

benefit the British: their rule in Palestine was to end in humiliating defeat in 1948.

Almost seventy years later the world is still trying to resolve a conflict the British set in

motion in 1917 with the issuance of the Balfour Declaration.

KEYWORDS: Palestine (1917-1948); United Kingdom; Public International Law

University of Bologna Law Review

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https://doi.org/10.6092/issn.2531-6133/7663

188

The contradiction between the letters of the Covenant and the policies of the Allies is eve n more flagrant in the

case of ‘independent’ Palestine. . .

What I have never been able to understand is how it can be harmonized with the declaration, the Covenant, or

the instructions to the Commission of Enquiry. . .

1

1. INTRODUCTION

The conflict in Palestine is one of the most enduring in the world. To many, it

remains a mystery why the parties cannot reach a just and sensible agreement

based on international law. Some claim this is due to the conflict parties’

“legal fundamentalism” and accuse mainly the Palestinian Arabs of constantly

reverting to legal arguments, thereby making compromise impossible.

2

This

article, however, will show that the Palestinian Arab position is more

understandable when Palestine’s history under British rule is considered.

Although it is true that a just solution for the future cannot be found by

dwelling on the past, it seems obvious that if wrongs committed are not at

least acknowledged during negotiations the party subjected to them -in this

case, the Palestinian Arabs- will continue to perceive any solution as unjust.

Furthermore, ignoring past illegal actions does nothing more than highlight

the weakness of the contrary legal arguments, and can only increase distrust

on the part of those to whose disadvantage such a course of action is.

Beginning with the Balfour Declaration in 1917, and ending with the

recognition of the State of Israel in 1948, virtually all the steps undertaken by

Britain were contrary to the international legal order it had helped create.

Palestinian Arabs suffered the consequences of British actions, which

culminated in the creation of a new state. The statements accompanying these

actions, however, stressed their legality or, more commonly, ignored legal

issues.

The story of Palestine and international law begins in the First World

War. Palestine, still under Ottoman rule at that time, became the “too much

† Patrick C. R. Terry is a Professor of Law at the University of Public Administration in Kehl

(Germany). A similar version of this article was published previously in the Ukrainian Yearbook of

International Law 2009 (year of publication: 2014). All URLs were last accessed on 6th May 2017.

1 British F oreign Secretary Arthur Balfour in a Memorandum (dated 11st August 1919) to Earl

Curzon; extracts reprinted in Doreen Ingrams, Palestine Papers 1917-1922, Seeds of Conflict, London:

John Murray Publishers Ltd. (1972), 73 (PRO. FO. 371/4183).

2

See JOHN STRAWSON, PARTITIONING PALESTINE, LEGAL FUNDAMENTALISM IN THE PALESTINIAN-ISRAELI

CONFLICT (2010).

University of Bologna Law Review

[Vol.2:2 2017]

https://doi.org/10.6092/issn.2531-6133/7663

189

promised land”.

3

Britain and France had agreed it would be under an

international regime in the event of victory, while the British might have

promised the Arabs that Palestine or parts of Palestine would be included in an

independent Arab state. Moreover, the British government “viewed with

favour” the establishment of a “Jewish national home” there.

Britain, having become reliant on the Suez Canal as a vital transport

link, mainly wanted to create a reliable European outpost near the Canal by

establishing such a “homeland” and hoped that by gaining Jewish favour the

outcome of the First World War could be influenced in a positive way. The

United Kingdom did not achieve these objectives. Far from creating a stable

outpost near the Suez Canal, Britain, burdened by having made too many

contradictory promises, would scramble to remain in control of Palestine. After

thirty years of futile attempts at restoring order, Britain, in 1947, at last

acknowledged its defeat.

This sorry story began in 1917. Following Palestine’s occupation Britain

went on to assure itself of the Palestine Mandate, based on the newly

developed mandates system. Irreconcilable promises and safeguards in the

Mandate soon meant that Britain was having ever more difficulties in adhering

to its provisions. The attempt at remaining within the terms laid down after

the First World War finally was abandoned in the late 1930s, when it proved

too arduous for Britain to keep unrest at bay.

This article will demonstrate that none of the major British actions in

Palestine was consistent with international law. After briefly explaining and

interpreting the Balfour Declaration of 1917, and showing that it had no

standing in international law, the British regime of occupation in Palestine will

be examined. First attempts at implementing the Balfour Declaration as of

1920 will be shown to have been contrary to the 1907 Hague Regulations to

which Britain was a party.

Following an analysis of the mandates system conceived by the

victorious First World War Allies, which will illustrate why that system fell

short of U.S. President Wilson’s much heralded principle of self-determination,

3

A. E. Prince, The Palestine Impasse, 1 INT’L J. 122, 125 (1946); Robert Gale Woolbert, Pan Arabism and

the Palestine Problem, 16 FOREIGN AFF. 309, 311 (1938).