17 August '12..
Mr Falk is not on his own among the United Nations coterie of organizations and officials who seem ready to try and wrest the title deeds granted to the Jewish people to reconstitute the Jewish National Home in Palestine pursuant to the Mandate for Palestine and article 80 of the UN Charter – following the decisions of the San Remo Conference and the signing of the Treaty of Sevres.
Former Secretary General Kofi Annan amazingly failed to include any mention of the Mandate and article 80 in his brief delivered to the International Court of Justice (ICJ) in 2003 seeking its advisory opinion on the legality of part of Israel’s security fence being erected in the West Bank.
The ICJ’s subsequent failure to consider the effect of the Mandate and article 80 still needs to be explained – especially as one of the Presiding Judges warned that such an examination was necessary.
UNESCO maintains that Palestine is a State – when it clearly fails to comply with the requirements of the Montevideo Convention 1933.
Now Mr Falk – writing recently on his blog page – adds further fuel to the fire:
“I regard the Balfour Declaration and the mandatory system as classic colonial moves that have lost whatever legitimacy that they possessed at the time of their utterance, and prefer to view the competing claims to land and rights on the basis either of the 1948 partition proposal or the 1967 boundaries, although if there was diplomatic parity, I would respect whatever accommodation the parties reached, but without such parity, it seems necessary to invoke the allocation of rights as per settled international law.”
Mr Falk was parroting what had first appeared in Article 18 of the PLO Charter in 1964:
“The Balfour Declaration, the Mandate system and all that has been based on them are considered fraud.”
But even the PLO was forced to change that viewpoint just four years later – when it recognized that if the Mandate system was a fraud, then the Mandates for Syria and Lebanon and Mesopotamia – which had delivered self determination to the Arabs in 99.999% of the captured Ottoman territory – could also be subject to challenge.
With some crafty draughtsmanship – Article 18 was replaced in 1968 with the following Article 20 in the redrafted Charter:
“The Balfour Declaration, the Mandate for Palestine and everything that has been based on them is null and void”
In response to Mr Falk’s remarks – I asked him:
“The mandatory system delivered self determination to the Arabs as well as the Jews. When did the League of Nations mandate lose its legitimacy as settled international law?
Are both Jordan and Israel illegitimate?
Is article 80 of the UN Charter not settled international law?
The partition proposal was in 1947 – not 1948. It spoke of a Jewish state and an Arab state – not a Palestinian state. There were no 1967 boundaries. Do you agree? “
Mr Falk’s reply was very troubling:
“Churchill was a notorious advocate of colonialism and possessed a colonial mentality, persisting after World War II. I think it is not in Israel’s current interest to argue the historical case for its original claim of statehood.
A more compelling ground would be to work toward peace and reconciliation premised on the 1967 realities. To keep moving the goal posts, ‘fact on the ground’ after 1967, is equally doomed if a sustainable peace is our shared goal.”
Suddenly everything was to now be forgotten in Mr Falk’s opinion before “the 1967 realities”.
The penny suddenly dropped as I commented :
“I now am beginning to understand why you don’t want to have anything to do with the Mandate and article 80 of the UN Charter or what happened between 1920-1948.. The inconvenient truth of the Jewish people’s struggle to assert its legal claim to reconstitute the Jewish National Home in Palestine during those 28 years totally undercuts and dismisses those who would deny the Jews any legal or moral rights in their ancient and biblical homeland.
Now you even go further in wanting to forget 1948-1967 as well – when you state:
“I think it is not in Israel’s current interest to argue the historical case for its original claim of statehood. A more compelling ground would be to work toward peace and reconciliation premised on the 1967 realities.”
Israel’s case is not only historical – it is legal – sanctioned by the League of Nations and the United Nations. Why do you continually seek to deny the existence of these vested Jewish legal rights?
Mr Falk then proceeded to change tack yet again in stating:
“Your reliance on the Balfour Declaration, UN partition proposals, etc., is one, but only one, construction of international law. There are competing constructions that do not regard as any longer valid all acts based on colonialist authority. My own view because of these contradictory lines of historical authority is to start from the present reality to sort out the respective claims of both peoples according to the logic of self-determination, an approach that will never satisfy extremists on either side, but has the best chance of achieving a sustainable peace.”
Suddenly the “ realities of 1967” mentioned as a starting point just a few days earlier had disappeared into the blue yonder to be replaced by “the present reality” as the new starting point.
Both puzzled and bemused I was motivated to ask Mr Falk:
“Which of the “contradictory lines of historical authority” do you personally accept?
1. the PLO position that regards the Balfour Declaration, the Mandate and everything that resulted from it to be null and void.
2. The Zionist position that accepts the Mandate to have been a proper exercise of the League of Nations sovereign power to confer on Great Britain
With respect this is the third time you have changed your starting date:
1. You originally said 1948 or 1967
2. You then said 1967
3. You now state – “the present reality”
Won’t any of these starting points still involve sorting out the respective claims of both parties to self determination based on what happened between at least 1917-2012 and what happened to the territory once called Palestine during that period?”
I am still waiting for an answer from Mr Falk.
Turning historical facts and established international law on its head in favour of a fake and forged PLO narrative can only exacerbate – not help resolve – the 130 years old conflict between Arabs and Jews.
David Singer is a Sydney Lawyer and Foundation Member of the International Analysts Network
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