The first thing I asked Dr. Jacques Gauthier in this special interview is what, in essence, was the significance of the legal basis for the establishment of the State of Israel. "This is a crucial question. For Israel and the Jewish people, it is extremely important to know today, and not to forget, what was given to this people as part of important events in the past," Gauthier replied.
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"Because this is the question: Are the Jews living today in East Jerusalem, or as settlers in Judea and Samaria, or in Hebron, or even within the Green Line – are they legal? Are they thieves? Invaders? Do land and property not belong to them? This is the claim – that Jews are not allowed to be, and are not allowed to live, in certain areas within the land of Israel. So the question of law and sovereignty in the territories of the country is crucial and vital. If the right granted over the entire territory of Palestine-Israel exists within the framework of international law – then the Jews are not deviating from the scope of the law."
Over the last generation, Gauthier has become the greatest living expert on the topic of the San Remo Conference. From a legal viewpoint, the Jewish state was born in San Remo. The importance of this lies in the fact that, for once, this event was about the purely legal issue of international law. We live in a time when the legal field has become a propaganda arena, on the one hand, and on the other a political arena. For the past 20 years, there has been talk of what is called 'Lawfare' ie "legal warfare".
Gauthier spoke to me on the phone from Toronto, Canada, which has been under lockdown for a long time. The weather was pleasant there, around 20 degrees, and only the behavior of the coronavirus was deceiving the Canadians. Surprisingly, right after extensive lockdowns and the start of the vaccination campaign, suddenly came an incomprehensible outbreak.
Gauthier is a lawyer who has been researching his doctorate for about 20 years, actually under the guidance of Marcelo Cohen, who often represents legal cases in favor of Palestinians. The result is a 1,300-page book on the entire legal issue of the San Remo Conference, making him, as noted, an expert on the subject.
"Natan Sharansky gave me his book with a dedication, and there he thanked me for my work that helps strengthen Jewish identity," says Gauthier. According to him, one of the serious problems in the national Jewish identity – which causes internal divisions – stems from a disagreement based on a lack of knowledge in Israel about the basic legal rights of the Jewish people over all of the western Land of Israel. The right also existed, of course, in the eastern Land of Israel, which is controlled by the Hashemite family, but Israel waived its right to that under the peace agreement with Jordan.
Bible-based territory
"In 1921, when Churchill was the Secretary of State for the Colonies, he took part in a meeting held in Cairo on the division of the land," says Gauthier. "Later he visited the Land of Israel and said to the Jews – you are here by right. We have just cut two-thirds of Palestine-Land of Israel and created an Arab country [in Jordan]. But you have a full right to the whole country. These are the things he said."
Q: In the Israeli consciousness, there mainly exists the decision of the partition, on November 29, 1947, and the declaration of the state a year later. San Remo does not really exist in this consciousness. Why is this conference so important?
"You have to understand what the decision was. San Remo – this is the decisive moment. Why? There were then the five victorious powers [in World War I] that were given the power and authority in law to deal with the issues dealing with the defeated nations. The Allies dealt with the question of sovereignty. Britain, the US, Italy, Japan and France. From January 1919, they dealt with the results of the war in relation to Germany and Turkey. From the point of view of sovereignty, they received authority from the defeated powers in Versailles, who gave up their territories.
"A legal proceeding began in which the allied powers were the judges. On February 27, 1919, the Zionist delegation led by [Haim] Weizmann and [Nahum] Sokolow arrived, and as usual in a legal proceeding, they filed their case: First – and this is related to what is happening today – they demanded recognition of the historical right of the Jewish people to the Land of Israel and the right to re-establish their national home. This is what they demanded. They did not ask the powers for the right, but the recognition of the right. They presented a map that is very important – the territory of the right that includes all of the western Land of Israel and a strip of land on the east side of the Jordan up to the Hejazi railway. The Jews did not want to interfere in this railway. All these territories are identified within the Bible. They wanted historical recognition and the definition of the area that has a biblical foundation.
"The second thing they asked for was sovereignty over the territory of the Land of Israel and that it be recognized by the League of Nations [the organization that preceded the UN] and that the British be the ones to preserve these rights. Sovereignty was actually passed to the Jewish people; the request was – give us free immigration and when we become a majority, give us independence."
Q: Where are the Arab demands in all this?
"An Arab delegation arrived in Paris on February 6, 1919. They were accompanied by Lawrence of Arabia. They presented the claims, and what they achieved – both sides presented claims over Ottoman territory. Both sides want states. And the Arabs won a lot of territory. But in presenting the claim they created a distinction: Everything except the Land of Israel. They do not claim the Land of Israel as part of the Arab territory, and that is because Weizmann and [Emir] Faisal reached an agreement between them earlier."
In the following years, during wars and internal struggles between the Hashemite and Saudi tribes and monarchies, the Arab territory was divided. Similarly, the hostile relations between the Arabs and the French, who were given a mandate over Syria, led to the expulsion of King Faisal from Syria.
These developments, which are not related to Zionism, created complications that have had an impact throughout the 20th century. "It is impossible to understand the San Remo Conference, which convened in April 1920, without understanding the background to the Balfour Declaration on Nov. 2, 1917, through Versailles and Paris in 1919. When the British gave the Balfour Declaration, they still had no authority [over Israel and the Middle East]. It's like talking about an egg. What's inside? In 1920, they turned the Balfour Declaration into international law. They turned it into a 'Jewish state'. Everyone understood the concept of a national home as a state."
Q: Were the Arabs actually done an injustice?
"In San Remo, the decisions were very much in favor of the Arabs. They should celebrate this conference every year. At one point Lloyd George, in order to recognize the historical right, speaks of the biblical phrase 'from Dan to Beersheba'. French Prime Minister Melran says, 'What do you mean?' And Lloyd George replies: 'I want to rely on a map', and he pulls out a historical atlas of the Land of Israel. Inside he chooses map number 34. It shows the kingdom of David and Solomon. The map is enshrined in international law. The French presented a map according to which the claim of the Mandate for the national home goes too far north. Anyway, the boundaries were recognized. This was supposed to be the land given to the Jews."
Legal definitions
In recent years, propaganda noise has constantly infiltrated the issue of rights over the land. The International Criminal Court has repeatedly attacked Israel, and according to Gauthier, the San Remo Conference is of crucial importance in this issue. "It took me 20 years to put this puzzle together until I finished the job in 2007," he says, "then I started appearing and speaking in Parliament in Brussels, in the House of Lords, in the US Congress. Most people listened as I presented firm facts. There is a process that began from San Remo in April 1920 to August of that year, from the Treaty of Sevres to the 1922 ratification of the mandate in the League of Nations. This is about transferring the right to the Jewish people to re-establish their national home.
"I began to study the issue of Jerusalem, and from there I realized that the entire Holy Land should be explored. The Green Line is irrelevant to the question of the rights of the Land of Israel. There is a special clause in the armistice agreement between Israel and Jordan in 1949 which states that nothing in the agreement will be considered as a source of rights or obligation under international law. In terms of international law, the agreement says nothing on the question of sovereignty. What is important in this agreement is the statement that Jordan or Israel will not resort to violence. The Line is relevant with respect to the armistice. In 1967, the Jordanians were on the aggressive side. There is no question about that."
The draft British Mandate was submitted by Balfour to the League of Nations on December 7, 1920. It is worded as a legal contract, which includes several "whereas..." clauses until it comes to the issue of determining the role of the British Mandate. Then, it reads "WHEREAS by Article 132 of the Treaty of Peace signed at Sevres on the tenth day of August, 1920, Turkey renounced in favor of the Principal Allied Powers all rights and title over Palestine…" and so on.
The draft underscores the Balfour Declaration adopted by His Majesty's Government and subsequently signed into peace agreements by the allied powers to establish a national home for the Jewish people in Palestine. One of the "whereas..." states that "recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their National Home in that country…," and three sections later defines the mandate, whose function is to "secure the establishment of the Jewish national home."
The problem of status versus rights
Nazi Germany, in cooperation with the Arab National Movement led by the Mufti and Rashid Ali al-Gaylani, prompted a change in direction and worked to destroy the Jewish settlement and thereby erase the Jewish right. Gauthier says that Ben-Gurion and the Zionist leadership's consent to the Nov. 29 decision was simply a result of the Holocaust when, out of weakness, they agreed to accept whatever they were given.
For decades, Israelis have been dragged into a defensive discourse against Palestinian rights and the Nakba question. Although the UN has accepted the resolutions of the League of Nations as existing international law, this institution has become a hothouse of anti-Israeli resolutions. Over the years, Arab states, the PLO and the Soviet Union have turned it into an anti-Zionist and antisemitic propaganda center, and the basic rights on which the Jewish state was established under the law of nations have been covered with the radioactive fallout of Third World theories, Palestinianism, and propaganda definitions such as "occupation".
In a world of propaganda, editorials, and tweets of false narratives and the terrorism of revolutionary liberation organizations, it is difficult for us to grasp the values of Western civilization and international law that were represented by a few diplomats and heads of state wearing top hats and ridiculous bow ties who gathered at Villa Devachan in San Remo. Their guiding principle was Article 22 of the earlier League of Nations Declaration, which refers to peoples who cannot stand on their own as a result of the war: "...there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization…".
The British Mandate was just such a sacred trust, eroded by the British themselves. Because of the Holocaust, people forget that at the same time as the top hat meetings took place, a "small" genocide was perpetrated against the Jews in the territories of the Soviet Union. More than one hundred thousand were killed in the civil war that followed the October Revolution, after the Russian defeat in World War I.
"When I arrived in Jerusalem a few years ago, most of them did not know what I was presenting," says Gauthier. "Foreign Ministry staff were not present. In 2017, a conference was organized, and that was eventually put together by the Foreign Ministry and the Ministry of Justice. The person who introduced me was the Foreign Ministry's legal adviser, Tal Becker." Becker introduced Dr. Gauthier as the best man for presenting the historical fundamental rights recognized in San Remo.
"Now they are aware of the great importance of being able to answer legal arguments. If you do not know your rights, you also do not know how they're acting against you. By being in a state of ignorance, the Jews begin to believe false narratives, which results in a divided and polarized nation. You must at least have knowledge of the rights you received."
This is one of the most interesting historical cases where on the one side you have a violent claim for rights while totally denying the rights of another people, the Jews, whom the Palestinians insist on not recognizing at all as a nation, and on the other, a recognized right enshrined in international law. The history of recent generations shows that jurists are also swept away by the defendant's right to violence, while the legal right enshrined in every law and in international contracts is pushed aside.
Q: How did you come to research this particular topic?
"I'm a lawyer. I studied in Canada, in The Hague, I studied in Geneva. For a few years, I was looking for a doctorate in international law. That's how I got to the topic of Jerusalem. I didn't understand how complicated it was. But to understand Jerusalem, you must study all of the Holy Land. I wanted to work on a complex subject. It took me 20 years, but with the support of my family, I continued.
"The doctoral director in Geneva was Marcelo Cohen, whose views are different from mine. He told me we will work on it together. Thanks to him, the work was extended by ten years. It came out in a book 1,300 pages long, but I could have written 5,000 pages on this. In 2006 I defended the thesis, and it was finally recognized. I am not connected to a particular religion. But when I travel to Israel I connect to the beauty of the land and I also connect to the trinity of God, the land and the people."
Q: How is this reflected in the political-legal problems that Israel is embroiled in today?
"Israel's legal rights are on solid ground. The problem has been Israel's status in the territories since 1967. It has not annexed most of the West Bank. By adopting Security Council Resolution 242, Israel has said it is willing to part with some of the territory in favor of a Palestinian state. What causes confusion regarding these rights is precisely the actions of Israel. If you are the sovereign, you can hand over part of the territory [in favor of a diplomatic settlement], it does not stand in contradiction."
Q: There is no doubt about the question of sovereignty.
"I'll try and explain what clouded the water on these issues. If tomorrow Israel annexes Area C - it will not do anything contrary to the rights over the land. From a diplomatic viewpoint, it was a mistake not to annex [it] in 1967."
Q: There is constant talk of the "occupation." What is the meaning of this concept, if Israel actually controls the territory that is its right, and not just because it occupied it in military action?
"UN resolutions repeat the mantra that sovereignty cannot come as a result of occupation. I agree with that. The problem is that if you control an area where you already have rights – you do not lose the rights because you are in the area as a result of occupation. The [1947] partition decision does not change the situation. The partition was the result of a desperate situation and a lack of choice, as a result of which they were willing to make concessions. Ben-Gurion then thought it was better to get something after the Holocaust. The Arabs did not accept this and went to war."
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Here, of course, a typical Israeli failure of thought was born: in order to justify control of territories occupied in 1967, it is claimed that the Arabs did not accept 1947 and started the war. Rights are claimed only in the context of the Arabs' aggression against the State of Israel, while the right has existed since before 1947. Part of the problem comes from Israel's advanced level of education, which is uncomfortable with the fact that it is the biblical right that lead to the diplomatic and legal rights of 100 years ago.
Q: You have no problem with the term "occupation"?
"'Occupation' is defined as a situation in which there is no decision concerning sovereignty in a particular territory. Despite its right – Israel has not applied its sovereignty. Therefore, it is an occupation. Israel itself considers the situation as occupation. But I am not worried about that. What worries me is the use of the phrase 'Occupied Palestinian Territory'. This is not Palestinian territory. It is an 'occupied' territory due to the lack of a final diplomatic decision. This is an intermediate stage. In the end, it is an occupation of territory previously given to the Jews."
