The mandate system is sometimes described as a waystation between colonialism and independence. The population of Palestine had lived under foreign overlords, but not in classic colonialism. Under Turkey, the Palestine Arabs enjoyed considerable autonomy in local governance. They even held seats in Turkey's parliament. Britain not only assumed full control but, in collaboration with the Zionist Organization, inserted an outside population bent on taking over the country. The League of Nations, more through its weakness than as a matter of its policy, provided cover for Britain, lending an aura of pseudo-legality to its project. When the Arabs staged an armed revolt, as they did in 1936, Britain put it down so harshly that their capacity to protect themselves was severely reduced. As a result, the European settlers who came under Zionist auspices were able, a decade later, to force most of the Arabs out of the country.

The star of self-determination shone briefly at the Paris Peace Conference as Britain felt itself compelled to subject its conquest of Arab territory to a procedure that gave the appearance of limiting Britain's power. That appearance was largely illusory. Britain could decide on its own to remain in Palestine and to govern it. Britain could define the territory of Palestine. The mandate system required Britain to consult the population on the choice of a mandatory, and to allow for an indigenous government. Britain ignored these stipulations, and the League Council did nothing to enforce them. The Covenant, to be sure, gave the Council no enforcement authority, leaving Britain a free hand. The mandate system presupposed that a mandatory would hold legal title to the territory. Britain never gained that title, so even by the Council's standards, Britain had no legal authority over Palestine.

The peace treaty by which Turkey renounced sovereignty, the Treaty of Lausanne, gave no sovereignty to Britain or its Allies. Britain conceded that fact, as we saw, in the Permanent Court of Justice. It acknowledged to the Court that Britain had taken Palestine militarily during World War I and was holding it on that basis and on that basis alone.

Britain was largely successful during the 1920s in escaping criticism that it lacked legal status. Other states focused on their own interests in Palestine. That passivity let Britain operate as if it were in Palestine legitimately. If Britain were merely a belligerent occupant, the infusion of immigrants from Europe and the role the Zionist Organization played in governance were unlawful.

In 1932, however, a situation developed in which Britain could not avoid the issue of its status in Palestine. The British Government found itself in a dilemma from which it could extricate itself only by asking other major powers what they thought Britain's status in Palestine to be. In that year, Britain enacted tariffs for goods entering Britain from foreign countries, imposing, in general, a duty amounting to 10 percent of their value. The dilemma was that the British Government did not want to charge this duty on goods entering Britain from its various possessions around the world. Parliament had provided an exception for this situation in the 1932 legislation, which was called the Import Duties Act., The exception was that the Government was given the option to grant what was called a “colonial preference” to goods entering Britain “from any part of the British Empire.” Mandate territories were mentioned specifically in the Act, as Parliament knew they would present a problem. The Import Duties Act authorized the Government to accord a “colonial preference” to “any territory in respect of which a mandate of the League of Nations is being exercised by the Government of the United Kingdom.”

The Government issued an order granting a preference to three territories Britain held under mandate in Africa: Tanganyika, Cameroons, and Togoland. These territories fell under Covenant Article 22, paragraph 5. Their status was lower than that of Turkey's Arab territories, which fell under Article 22, paragraph 4, as having attained “a stage of development where their existence as independent nations can be provisionally recognized.”

The Government delayed, however, in issuing a comparable order that would have applied to Palestine. The reason for the Government's hesitancy was that if it accorded Palestine a preference, states with which Britain had a bilateral most favored nation treaty might claim that goods entering from their own territories were entitled to the same preference.

In documentation it presented to the League of Nations, as we will see in more detail shortly, the British Government highlighted its 1917 statement, the Balfour Declaration. The Balfour Declaration plays a central role in the Narrative. It was highlighted as well in 1948, in a statement issued in Tel Aviv to proclaim a Jewish state in Palestine. That statement recited that in 1897, “the First Zionist Congress convened and proclaimed the right of the Jewish people to national rebirth in its own country.” The statement then continued, “This right was recognized in the Balfour Declaration of the 2nd November, 1917.”

A prominent Israeli jurist described the Balfour Declaration as the starting point for analysis of legal rights in Palestine. “From an international legal perspective,” wrote Yoram Dinstein, “the first step for any meaningful discussion of the Palestine Question is the Balfour Declaration of 2 November 1917.” The “Palestine Question” was the title of the agenda item for Palestine in documents of the United Nations, when it began dealing with the situation in 1947. Dinstein, long-time professor of international law at Tel Aviv University, was familiar with the work of the United Nations on Palestine, having served there in Israel's delegation.

The Balfour Declaration occupies a central place in the Narrative, as a font of Jewish entitlement claims in Palestine. It would, to be sure, be important in the subsequent history of Palestine. Only one sentence in length, it reads:

This statement was made by Britain's War Cabinet, a small coterie of top officials that managed the conduct of the war against Germany and its ally Turkey. The statement came to be known by the name of the Secretary of State for Foreign Affairs, A. J. Balfour. Whether it should be the focal point for Palestine's status, analyzing from an international legal perspective, is not obvious.

The Paris Peace Conference afforded an opportunity for the Zionist Organization to explain its reasons for a Jewish national home. Israeli historian Tom Segev called the peace conference “the pinnacle of Weizmann's diplomatic achievements.” Segev wrote that Weizmann “managed to ensure that the British would remain in Palestine.” Segev explained Weizmann's success: “Weizmann, at the head of the Zionist delegation, pleaded for the international ratification of the Balfour Declaration. As a result, the League of Nations agreed to grant a mandate to the British, empowering them to govern Palestine, that included an explicit responsibility to help the Jews establish a national home in the country. The mandate was Weizmann's own personal achievement.”

Segev's assessment reflects what the Narrative came to reflect, that the Zionist Organization succeeded at the Paris Peace Conference in convincing the world to promote its objectives. The reality was far different. In Paris, the Zionist Organization did not move the international dial on the topic of Zionism. Nor did it ensure that Britain would remain in Palestine. Britain had its own reasons for doing so. Neither did it gain agreement from the League of Nations, which was not yet in existence. And when the League did address Palestine, as we shall see, it did not empower Britain to govern there or to promote a Jewish national home.

Weizmann gave himself less credit than did Segev for his performance in Paris. In his memoir, Weizmann, who was not known for understating his own successes, could find nothing more positive to say about his achievements in Paris than that the Zionist participation resulted in some “good press in France.”

The invitation issued to the Zionist Organization to make a statement at the Paris Peace Conference did afford it a chance to state its case in a forum that could shape events. The major powers were gathered to arrange peace with Germany and Turkey and to make decisions about territory being taken from them. The Zionist Organization made both a written and an oral presentation.

In its written plea, the Zionist Organization laid out a plan for Britain to control Palestine, quite a bold move for a non-governmental organization.

By referencing the Balfour Declaration in the 1948 proclamation of Jewish statehood, the founders of Israel took the Balfour Declaration to mean that Britain had promised a state. The meaning of the Balfour Declaration in that regard was a matter of debate all through the period Britain governed Palestine. The Zionist Organization aimed for statehood, and it played a role in implementing British policy in Palestine. The Balfour Declaration itself, however, avoided any definition of “national home.”

The context of the adoption and delivery of the statement provides clues. The War Cabinet, in instructing Balfour to convey its statement to the English Zionists, asked him to “take a suitable opportunity of making the following declaration of sympathy with the Zionist aspirations.” The Zionists aspired to statehood. In the communications leading up to the issuance of the Balfour Declaration, the English Zionists pressed for a statement that would strongly imply an aim of statehood. Draft language was exchanged that would have recited that the Government “accepts the principle that Palestine should be reconstituted as the National Home of the Jewish people.” The War Cabinet's rejection of such phrasing was deliberate. The Balfour Declaration did not by its terms envisage Jewish statehood in Palestine.

In the aftermath of World War I, protection of minority groups was high on the international agenda. New borders were generating new minorities. For example, a German population group who found themselves within Poland as a result of a border shift came to be protected by treaty, so that they could continue to develop in a German cultural environment. Germans inhabiting the sector of Poland in question were guaranteed a right to conduct primary schooling in the German language, in schools funded by the Polish government. In Palestine, the Jews, similarly, were expected to be a minority, hence “national home” might mean something similar. The treaty on Poland did not, to be sure, use the term “national home,” but the term served readily as shorthand for what was spelled out in that treaty.

Concern immediately arose on the Arab side in any event about what the War Cabinet had in mind. Hussein bin Ali asked the British Government to clarify.

In 2017, a celebratory event was held in London for the centenary of the Balfour Declaration. Prime Minister Theresa May lauded Balfour. “Lord Balfour,” she said, “had the vision and the leadership to make this profound statement about restoring a persecuted people to a safe and secure homeland.” As we have seen, of course, it was not Balfour who made the statement. He had a hand in the drafting, but it was the War Cabinet's statement. The aim, May was suggesting in any event, was to protect Jewry. That effort was the more remarkable, she said, because the Government had other matters on its mind. “With Britain still embroiled in the midst of the First World War, the idea of establishing a homeland for the Jewish people would have seemed a distant dream for many.”

If the Balfour Declaration was issued to assert Jewish rights, it potentially could serve as a basis for such rights. If the Balfour Declaration was issued for other reasons, then it may not provide such a basis. The 1948 declaration of Jewish statehood, as we just saw, referred to a Jewish right in Palestine and asserted that such a right “was recognized in the Balfour Declaration of the 2nd November, 1917.” So the Balfour Declaration was taken by the statehood declarants as a rights-affirming document, issued on the premise that the Jewish people had a legal right to territory in Palestine.

The War Cabinet's statement, however, was not framed in the language of rights. It recited that the War Cabinet “favoured” a Jewish national home, but without saying why. The English Zionist Federation had lobbied for rights-affirming language. One draft it proposed referred to “the right of the Jewish people to build up its national life in Palestine.” The War Cabinet avoided such phrasing. The Balfour Declaration as issued contains no hint of legal right. The historical record shows that the War Cabinet issued it not to proclaim Jewish rights, but to promote the War effort.

May said that the statement was issued despite Britain's involvement in the War. May got it wrong. The statement was issued precisely because of the War.

Even if the San Remo meeting had been the major international event portrayed in the Narrative, the main claim in the Narrative—that at San Remo the Allies endorsed Jewish rights in Palestine—was far from obvious. “At San Remo,” Dore Gold wrote, “Jewish historic rights became Jewish legal rights.”

The Balfour Declaration was on the table at San Remo, but Jewish legal rights did not figure in what was said. Discussion of the Balfour Declaration was initiated at the 24 April 1920 session at San Remo by Britain, which asked that the Balfour Declaration be mentioned in the peace treaty with Turkey. The others seemed puzzled, because end-of-war provisions on the cession of territory do not normally include detail on how a new sovereign will govern. Curzon opened his plea for inclusion of the Balfour Declaration by saying, “His Britannic Majesty's Government had, two years previously, promulgated a formal declaration which had been accepted by the Allied Powers, that Palestine was in future to be the National Home of the Jews throughout the world.” In a hint that Britain was being influenced by the Zionist Organization's lobbying, Curzon added that “the Jews themselves attached a passionate importance to the terms of this declaration,” and that “they would not only be disappointed, but deeply incensed if the pledge given in Mr. Balfour's declaration were not renewed in the terms of the treaty.” Tellingly, in his entreaty to the Allies, Curzon said nothing about Jewish rights.

Nonetheless, the way in which Curzon depicted the Balfour Declaration rattled the Allies. The Balfour Declaration did not say that “Palestine” was to be “the national home.” It said that Britain favored a national home “in” Palestine. Curzon's alteration, whether intentional or not, gave the appearance that a territorial entity was contemplated. The Allies knew what the Balfour Declaration said and what it did not say.

Curzon's statement that the Allies had “accepted” the Balfour Declaration was apparently a reference to statements made by Italy and France that were solicited by the Zionist Organization in 1918. As soon as the Balfour Declaration was delivered to Lord Rothschild, Nahum Sokolow began soliciting statements favorable to Zionism from the Allies.

The Crown, in its announcement of Britain's intentions, promised fairness to Palestine's population. “I desire to ensure you of the absolute impartiality with which the duties of the Mandatory Power will be carried out and of the determination of my Government to respect the rights of every race and creed represented among you, both in the period which has still to elapse before the terms of the mandate can be finally approved by the League of Nations and in the future when the mandate has become an accomplished fact.”1 King George did not explain why there was a time period that “has still to elapse” before approval of terms by the League of Nations. His statement was apparently aimed at rationalizing the onset of a mandate without consultation with the League of Nations.

The phrasing about League approval was likely lost on most listeners. The Crown did not say that approval would be sought for the mandate, but only for its “terms.” The mandate itself would not be up before the League for approval. Britain had already been appointed, by its lights, by the Allies. So the League could not keep Britain from claiming to govern by a mandate. If the mandate was not conferred by the League, a listener might have wondered, did the League have any control over how Britain might choose to govern?

Even the “terms,” however, would not depend on the League. Britain did plan to seek the League Council's approval of a mandate document it was drawing up that would recite “terms.” The Covenant did not require approval of the “terms.” Members of Parliament who opposed the Balfour Declaration put uncomfortable questions to the Government. One question posed in 1920 was, “Will the League of Nations have anything to say to these terms; can they disregard them after they are decided by the Government?” Cecil Harmsworth, Under-Secretary of State for Foreign Affairs, avoided giving an answer. As we shall see shortly, the Foreign Office would not let the League second-guess the “terms.” Under the Covenant's Article 22, paragraph 8, the prerogative of the League Council ran only to terms that related to the degree of authority a mandatory expected to wield, and then only if the mandatory itself failed to explain the degree of authority.

An element of the Narrative, as we have just seen, is that Jewry was regarded as holding a collective right to territorial entitlement in Palestine. The 1948 declaration of statehood claimed that this right was “re-affirmed” in the Palestine mandate document. The declaration recited that the 1897 Zionist congress called for the “the right of the Jewish people to national rebirth in its own country. This right,” the 1948 declaration continued, “was recognized in the Balfour Declaration of 2 November 1917, and reaffirmed in the Mandate of the League of Nations, which, in particular, gave international sanction to the historic connection between the Jewish people and Eretz-Israel and to the right of the Jewish people to rebuild its National Home.”

The 1948 declaration's reference to the mandate document as a document “of the League of Nations” was questionable since, as we have seen, the document was written by the British Government, not by the League of Nations. The reference to “the Jewish people” held significance, because only a “people” has a right to self-determination. Further, even a group that is a “people” may not necessarily be entitled to exercise self-determination in a particular territory. As was the case in Palestine, another people may have their own claim. The claim of a right for the Jewish people was particularly problematic since they, in the main, did not inhabit the territory of Palestine. A people making a claim to a territory typically inhabits that territory. This circumstance was lacking for Jewry. One early analyst of the Palestine mandate referred to Jews as “an absent people.”

As a minimum, in any event, the collectivity making a territorial claim must be a “people.” Ruth Gavison, professor in international law at the Hebrew University, explained in a book published by the Jerusalem Center for Public Affairs, “The claim that Jews are not a nation in the context of our concerns comes from the fact that international law recognizes the right of peoples to self-determination, while only recognizing cultural and religious rights for other cultural groups, with a special sensitivity to the claims of national minorities. If Jews are only a religion, basic elements of their claim to a right to selfdetermination in Zion may be undermined.”

On a summer morning in 1999, I received an unexpected telephone call from London at my office. Israel and the Palestine Liberation Organization had agreed to begin talks for a final peace to settle the conflict over Palestine. A treaty was anticipated. The British Government was concerned that while Israel had a staff of lawyers competent in international law, the Palestinians did not. A treaty could more readily be agreed upon if the Palestinians had solid legal backup. A panel of lawyers assembled by the British Government had just met to make plans for legal consultation. At the meeting, my name was mentioned as a possible addition to the panel.

Two months later, I found myself sitting down for an exploratory meeting with officials of the Palestine Liberation Organization. One of the British lawyers opened the session by quipping that Prime Minister Tony Blair was backing the project to make amends for the Balfour Declaration. On the other side of the table, the quip was received politely for the icebreaker that it was intended to be. The question of whether Britain's issuance and implementation of the Balfour Declaration might indeed have been less than legal hung in the air for only a moment, before the conversation turned to the matters at hand.

As participants on both sides of the table knew, however, it was a question at the very heart of the conflict over Palestine that began when Britain took the territory from Turkey. A change in the complexion of Palestine's population under Britain's tenure generated the conflict that the anticipated treaty was to end. During the interwar years, when it governed Palestine, Britain went to considerable lengths to establish itself legally and to frame its implementation of the Balfour Declaration as legitimate. That effort, which involved arrangements with other powers of the day and with the League of Nations, was largely successful as a matter of public relations. That success set the stage for the United Nations to make a recommendation about Palestine's future.

Much ink has been spilled over Britain's role in Palestine from a policy perspective, but less attention has been devoted to whether Britain's governance and the changes it brought about were based in legality, such that they could appropriately serve as a basis for a territorial disposition in the country.

In 1947, when it approached the United Nations for advice about Palestine, the British Government felt constrained to explain its status there, and how the Palestine mandate could be seen as a lawful exercise of authority. In a memorandum it prepared for the United Nations about the mandate, the Government wrote:

Britain here confirmed that the League Council action of 24 July 1922 related only to the mandate's terms, but that it was not an action that held legal significance for Britain having a mandate, since peace with Turkey was yet to be concluded. That distinction has been missed by many analysts, including Shabtai Rosenne, the first Legal Adviser to Israel's Foreign Ministry. Rosenne wrote that “the Mandate for Palestine was confirmed by the Council of the League of Nations and entered into force on 24 July 1922.” As the 1947 British document correctly stated, however, the Council did not purport to confirm a mandate to Britain on 24 July 1922, or to give it any legal effect on that date.

Fourteen months later, on 29 September 1923, the Council did purport to give “effect” to the mandate itself. In 1945, on another occasion when the British Government was explaining its status in Palestine, it said that on 29 September 1923 the mandate “came formally into operation.” The British Government never clarified what this characterization meant. The Crown had, as we saw, announced a mandate on 1 July 1920. Was the mandate “provisional” in some sense for three years? Was it only an “informal” mandate, if such a term had any legal meaning? If the mandate lacked “effect” prior to 29 September 1923, did Britain regard itself as a belligerent occupant until that date, despite what it said on 1 July 1920?

The reference to the Balfour Declaration in the 1948 statement proclaiming Israeli statehood was premised on the Balfour Declaration as a document carrying normative force. As we saw, the 1948 statement began from the 1897 assertion of Jewish rights and then said that that assertion of rights was recognized in the Balfour Declaration. As for the British Government, its view of the Balfour Declaration was less clear. It would seek, as we shall see, to gain acceptance of the national home concept by others but without claiming legal force for the Balfour Declaration itself. Moreover, as we shall see in Chapter 17, the British Government appeared to regard the Balfour Declaration as a policy statement, a policy that could be reversed if circumstances warranted.

Nonetheless, the supposedly binding nature of the Balfour Declaration became an element of the Narrative. Britain was said to have committed itself to a national home for the Jewish people in Palestine. Yoram Dinstein provided a legal underpinning. The Balfour Declaration, Dinstein wrote, “had a binding force as far as that country was concerned.” Dinstein said that this was so because later British governments said so. “The British intention to be bound by the text (formally acknowledged and reiterated by successive British governments) can easily be ascertained.” The commitment was based, Dinstein wrote, on the international law principle that a state can be bound by a promise it makes, so long as it intended to bind itself. “Under international law (as elucidated in two subsequent decisions of the International Court of Justice, in the Eastern Greenland case and in the Nuclear Tests cases),” he continued, “a unilateral declaration issued by the competent authorities of a state can have a binding effect upon that state, if such was the intention behind it.”1 The Balfour Declaration hence was said to be binding not as a two-party legal act, but as a unilateral commitment.

Dinstein's argument to that point was sound. A state can indeed be bound by a commitment made unilaterally. The Balfour Declaration did include the statement that Britain intended to apply its “best endeavours” to “facilitate” a national home” for the “Jewish people” in Palestine, hence Dinstein could find a way to see it as a unilaterally made commitment.

“After the victory of the Allied Powers in World War I—and pursuant to Article 22 of the Covenant of the League of Nations,” wrote Yoram Dinstein, “the former Turkish territories in the Middle East were placed under the Mandates system. Palestine was assigned as a Mandate to Britain.” Per the Narrative, in line with Dinstein's claim, Britain's assumption of a governance role in Palestine came about because of the League's mandate system and through an assignment of Palestine to Britain.

Dinstein's statement conflated two separate issues. One is Britain's right to rule Palestine. The other is the mandate system. The mandate system was not a route to gaining a right to rule territory. It could be used only by a state that held sovereignty over the territory it wanted to place under mandate. Dinstein's wording, however, implied that Britain gained the right to govern through the mandate system.

The League Covenant did, to be sure, suggest that it was desirable that Turkey's Arab provinces, once under new sovereignty, should be administered as mandates rather than as colonies. But the League did not “place” territories under the mandate system. The League had no power to require any state that was holding territory to opt for the mandate system. The League of Nations had no role in determining which states would take on mandates. Nor, as we saw in Chapters 6 and 7, did the Allies have standing to “place” Palestine under Britain's control.

The decision to bring the mandate system into play for Palestine was made by Britain alone. As the San Remo meeting ended, Britain finished a draft of a peace treaty under which it would gain sovereignty from Turkey. The Supreme Council handed the draft to Turkey on May 11, hoping for an immediate signature. Turkey asked for time to respond. Britain was being pressed by the Zionist Organization to “regularize” its tenure in Palestine. From the time the guns of war fell silent, the Zionist Organization lobbied Britain to take practical steps in Palestine that would lead to Jewish statehood. From April 1918, Britain sponsored what was called the Zionist Commission, made up of Zionists from Europe.

Moshe Sharett, as we saw, called the Palestine mandate document “an open covenant” and “an international instrument.” Whatever other implications Sharett intended, he certainly meant that the document would be binding on Britain, and specifically, that Britain would be bound to implement the Balfour Declaration. Yoram Dinstein said, to show that Britain intended to be bound, that the Balfour Declaration was “formally acknowledged and reiterated by successive British governments.” One feature of the Narrative is that the mandate document required Britain to implement a Jewish national home. There could clearly not be any Jewish rights at the international level if the mandate document was not at least binding on Britain.

No sooner had Britain declared mandate rule in 1920, however, than it began to have second thoughts about the feasibility of implementing the Balfour Declaration. Arab opposition in Palestine to the Zionist project forced a reevaluation. Britain faced a population intent on immediate independence. In May 1921, Arabs staged major protests in Jaffa, Palestine's largest city, as they feared that Britain was helping the Zionist Commission, renamed by then as the Palestine Zionist Executive, to take over their country. In a plea to Britain to cancel the Balfour Declaration, the Palestine Arab Congress complained that the British Government “is already carrying out this declaration into effect in spite of our wishes.” A commission of enquiry was appointed, and its recitation of Arab grievances mirrored those of the 1920 military court of inquiry we saw in Chapter 8.

Minutes from 1921 meetings of the British Cabinet reveal concern that the Palestine situation might spin out of control:

Canceling the Balfour Declaration and ceding power to an Arab-led government was considered:

An element of the Narrative, as we have just seen, was that Britain was lawfully in Palestine. Had Britain gained sovereignty by the Treaty of Lausanne, it would have had status in Palestine sufficient to exercise a mandate. The Treaty of Lausanne, however, gave Britain nothing.

As events unfolded in 1923, Britain did not try to tell the League of Nations what it would later say in the 1947 explanation. League Council members knew that the Treaty of Sèvres was dead. They knew that the Treaty of Lausanne was not yet ratified, so they would have seen through an explanation like the one devised for the report to the United Nations in 1947.

Once the Treaty of Lausanne was signed, however, the British Government tried to fashion an argument that, were it to be ratified, it would give Britain legal status in Palestine. This was Curzon's argument to the League Council in his16 August 1923 communication that we saw in Chapter 11. The defunct Treaty of Sèvres had specified sovereignty to the Principal Allied Powers and had recited that the Balfour Declaration was to be applied. The Treaty of Lausanne had nothing of that. All Curzon had was its Article 16, whose text bears repeating. It read:

It was the final clause of Article 16 that Curzon recited to the League Council in August 1923. To repeat, in his communication to the League Council, Curzon interpreted this phrase to mean, “Turkey has agreed to accept the disposal of Palestine effected by the parties concerned.” Article 16, however, did not identify those parties. Nor did it specify what may have already been “settled.” At San Remo, the Principal Allied Powers had “settled” nothing but had only anticipated that Britain would keep Palestine and implement the Balfour Declaration if that would be agreed by Turkey in a peace treaty.