Aboriginal Rights of the Jewish People

A discussion about a moral and legal requirement to peacefully reconcile the subsequent rights of the newly-emerged Palestinian People with the prior rights of the ancient Jewish People.

Introduction
Denying or minimizing Jewish rights is an integral part of the ongoing war against the Jewish People and Israel. For example, Yasser Arafat and Mahmoud Ahmadinejad have denied that the Jews are a People, within the context of the modern political and legal doctrines of aboriginal rights and the self-determination of Peoples. However, there is an enormous body of archaeological and other historical evidence demonstrating that the Jewish People, like the Greek People or the Han Chinese People, is among the oldest of the world’s Peoples. In fact, the early modern European Peoples probably derived their understanding of what it means to be a People in history, principally from the example of the Jewish People as set out in the Bible.

What is a People?
Linguists theorize about a proto-Semitic language which suggests kinship among the ancient Semitic populations, long before the birth of Hebrew and then Arabic. But “peoplehood” is about much more than genetics. It is also a complex sociological phenomenon –an abstraction, yet nonetheless one of the principal motors of world history. Opting to self-identify consistently as a specific People, a human population shares a variable range of relatively distinct civilizational features, e.g., name, ancestors, history, homeland, territory, language, literature, religion, culture, economy and institutions. And, in addition to its subjective identity, a People also normally attracts objective identity in the eyes of its friends and enemies who frequently provide valuable historical evidence about its existence and characteristics. And, this reference to historical evidence is critical, because the political and legal doctrines of aboriginal rights and the self-determination of Peoples cannot apply retroactively. This means that a People, without a continuous identity stretching back to the relevant historical time, cannot today make an aboriginal or other claim with respect to that earlier period before its ethnogenesis, i.e. when it did not yet self-identify as that particular People. And to be sure, new Peoples are always emerging –while older Peoples may disappear, though genes and cultural characteristics may to some extent persist in populations of one or more other Peoples.

Names and Extent of the Aboriginal Home
For over sixty years, there has been a dispute over the unwillingness of most Muslims and Arabs to accept the legitimacy and permanence of Israel as “the” Jewish State, i.e. as the political expression of the self-determination of the Jewish People in a part of its aboriginal homeland. Extending from the Mediterranean Sea to lands east of the Jordan River, the larger aboriginal homeland of the Jewish People was for many centuries known to Jews as “the land of Israel,” in Hebrew,Eretz Israel. To Christians, this same Eretz Israel was “the Holy Land” or “Palestine” as imagined on numerous pre-20th-century maps prepared in Europe and America. From the 17th century to the First World War (1914-1918), such Christian maps regularly portrayed the Holy Land or Palestine as also including lands east of the Jordan River.

The Jewish People in the Holy Land
Ancient historical sources like the Jewish Bible, the Christian Gospels and the Muslim Koran all specifically testify both to the existence of the Jewish People and its connection to its ancestral homeland. The Jewish People has at least 2,600 years of continuous history, with a subjective-objective identity that since antiquity has always kept some demographic and cultural links to the Holy Land. From antiquity to the present, each century provides an astonishing variety of historical sources about Jews who lived in the Holy Land. For example, there are 16th-century Ottoman tax registers (defter-i mufassal) which detail the names of the Jewish tax-payers. Including some Rabbis famous throughout the Jewish world, there were always Jews living in the Holy Land, where the total population (also including the Muslims and the Christians) had by the 19th century fallen to a level much lower than in Roman times or today.

Aboriginal Rights of the Greek People
The modern Jewish People is aboriginal to its ancestral homeland in the same way that the Greek People is aboriginal to Greece. In the early 19th century, some prominent Europeans like the English poet Lord Byron enthusiastically championed the aboriginal rights of the Greek People. In 1821, when the Greeks began their revolt against Ottoman rule, they were a minority of the population in the territory that is now modern Greece. In the 19th and 20th centuries, modern Greek history has been partly about the hundreds of thousands of Diaspora Greeks who chose to return to their ancestral homeland. And, after the First World War, British Prime Minister David Lloyd George unsuccessfully backed the aboriginal rights of the Greek People to the Anatolian littoral. There, large Greek communities had persisted from antiquity until 1922, when they were finally destroyed by the Turks, who are not aboriginal to Anatolia.

Aboriginal Rights of Canada’s “First Nations“
The modern Jewish People claims both aboriginal and treaty rights to parts of its ancestral homeland. Aboriginal and treaty rights are also claimed by the AboriginalPeoples of Canada, including the “First Nations” or Indian tribes. The Canadian First Nations strongly believe that their sovereign rights to their tribal lands extend back to the beginning of time, i.e. long before the origins of Canadian, European and international law. In the same way, the Jewish People’s claim to its ancestral homeland antedates the birth of both modern Europe and the Islamic civilization.Conceptually, the Jewish People is aboriginal to its ancestral homeland in the exact same way that the First Nations are aboriginal to their tribal lands in the Americas. Common Law courts began recognizing aboriginal rights towards the end of the 19th century. From 1982, the rights of the Aboriginal Peoples of Canada have explicitly featured in Canada’s Constitution Act. The Supreme Court of Canada has decided that, where a First Nation maintains demographic and cultural connections with the land, aboriginal title (including self-government rights) can survive both sovereignty changes and the influx of a new majority population, resulting from foreign conquest. Dealing with claims of right on all sides, the Court seeks to reconcile the subsequent rights of newcomers with theaboriginal rights of a First Nation. The concept of aboriginal rights is also an important legal topic in Australia, New Zealand and the United States, and is now receiving more attention internationally. Spot on is the comparison between the aboriginal rights of the Jewish People and those of Canada’s First Nations. Between the Jordan River and the Mediterranean Sea, “the Jewish People” is theaboriginal tribe and “the Arab People” is the interloping settler population, including newer waves of Arab immigration in the 19th and 20th centuries.

Aboriginal Rights of the Jewish People
Like the Greek People or the First Nations of Canada, the Jewish People has for more than two millennia continuously affirmed its connection to its ancestral homeland, where Jews became less than half the population probably at some point in the late Byzantine period, i.e. the sixth century CE. Of all extant Peoples, the Jewish People has the strongest claim to be aboriginal to the Holy Land, where Judaism, the Hebrew language, and the Jewish People were born (ethnogenesis) around 2,600 years ago. Before then, the Holy Land was home, inter alia, to the immediate ancestors of the Jewish People, including historical personalities like Kings David and Solomon, famous from the Jewish Bible. And at that time and still earlier, the Holy Land was also home to other Peoples –like the Phoenicians, Ammonites, Moabites, Edomites, and Philistines– which have long since vanished from the world, with nobody today entitled to make new claims on their behalf, e.g., by reason of recently alleged genetic descent.

What then of that dramatis persona of world history known as “the Arab People”? As such, the Arab People is aboriginal to Arabia, not the Holy Land. Judaism, the Hebrew language and the Jewish People were already established in the Holy Land for about a thousand years before the 6th-7th century CE ethnogenesis in Arabia of the great Arab People, the birth of which was approximately coeval with the emergence of Islam and Classical Arabic. Though local Jews suffered persistent discrimination and periodic persecution, neither the Arab People –from its 7th-century CE conquest– nor subsequent invaders succeeded in eradicating the Jewish population or ending the links between the Jewish People and the Holy Land.

Jews are today no longer a minority between the Jordan River and the Mediterranean Sea. This means that the Jewish People can now draw greater benefit from the doctrine of the self-determination of Peoples which normally allocates territory by the national character of the current local population. At the same time, the Jewish People also continues to affirm aboriginal rights to parts of its ancestral homeland. And to be sure, these Jewish aboriginal rights still have political and legal significance in the ongoing dispute over the refusal of most Muslims and Arabs to recognize the legitimacy and permanence of Israel as the Jewish State.

Israel as the Jewish State
Most Jews round the world see Israel as the Jewish State, i.e. as the political expression of the self-determination of the Jewish People in a part of its aboriginalhomeland. Like other Peoples, the Jewish People has a right to self-determination. Though the self-determination of the great Arab People is expressed via twenty-one Arab countries, Israel is the sole expression of the self-determination of the great Jewish People. Some Western thinkers are now uncomfortable with the idea of a nation-State as the homeland of a particular People, but that is no reason to target and fault Israel, because the overwhelming majority of modern countries are nation-States. For example, also nation-States are Japan, Italy, Greece and the countries of the Arab League. In theory and practice, the nation-State model does not have to conflict with fundamental civil and human rights for aliens or for citizens who do not ethnically self-identify as members of the majority People. Moreover, the nation-State can also accommodate collective rights for one or more minority Peoples. And, with regard to such individual and collective rights, Israel domestic law is comparable to what is provided by other legal systems, and superior to what is offered in the other Middle Eastern States.

Israel Born of the Ottoman Empire
Until the end of the First World War, the Holy Land was part of the Ottoman Empire. Thus, Israel and two dozen other modern countries are successor States of the Ottoman Caliphate, which for four hundred years (1516-1920) was the principal Power in the Near and Middle East. Apart from the ruling Turks, the Ottoman Empire was home to other Peoples including Greeks, Armenians, Kurds, Arabs and Jews. For centuries, these Jews lived in large numbers in a variety of Ottoman venues including Constantinople, Salonika, Cairo, Alexandria, Damascus, Aleppo, Mosul, Baghdad, Basra, Tiberias, Hebron, Safed, Jaffa and Jerusalem.

In October 1914, the Ottoman Empire opted to enter the First World War to fight against the United Kingdom and its Allies. As the fortunes of war began to favour the British Army, the United Kingdom government addressed the question of what to do with the multi-national Ottoman lands both in the light of current British interests and the 19th-century liberal doctrine of the self-determination of Peoples. In this regard, the father of modern political Zionism, Theodor Herzl, in his 1896 manifesto The Jewish State, had already proclaimed that Jews, though living in many different places around the globe, constitute one People for the purpose of self-determination.

Why the Balfour Declaration?
In October 1917, the British Cabinet decided to favour plans to create “a national home for the Jewish People.” The venue was said to be “Palestine,” a then non-existent country of uncertain extent, that was ultimately defined by the League of Nations in 1922 as “the Palestine Mandate,” that also included the Trans-Jordan Emirate first formed in 1921. The United Kingdom government’s promise of “best endeavours” to create “a national home for the Jewish People” was motivated by a desire to help realize the Jewish People’s long-standing claim to self-determination in its ancestral homeland; to shore up support for the Allied war effort among Jews in revolutionary Russia and the United States; and to help cover the eastern flank of the Suez Canal, which was then the crucial gateway to British India. The intention to create this “national home for the Jewish People” was announced in the November 1917 Balfour Declaration.

A Palestinian People in 1919?
As Great Britain worked to defeat the Ottoman Turks, the world also began to learn about the national claims of the great Arab People. Here recall the wartime exploits of Lawrence of Arabia and the Hashemite Prince Feisal ibn Hussein, both of whom were present at the 1919-1920 Paris Peace Conference. There, a powerful searchlight was trained on the doctrine of the self-determination of Peoples, including the claims of the great Arab People. But, nobody in Paris then knew about a distinct “Palestinian” People. Had there then been such a Palestinian People, its existence would have been known to Prince Feisal, USA President Woodrow Wilson, France’s Prime Minister Georges Clemenceau, British Prime Minister David Lloyd George and to the other leaders who worked on the peace treaties. This assessment is confirmed by extensive local testimony and petitions collected in 1919, by the USA King-Crane Commission. Its report to President Wilson indicated that, whether Muslim or Christian, the Arabs of the Holy Land specifically rejected any plan to create a new territory called “Palestine,” which they perceived to be part of the detested Zionist project. To the contrary, local Arabs were said to be enthusiastically seeking incorporation in a then-proposed unitary Arab State, the borders of which would have matched the existing Ottoman Province of Syria.

This Ottoman Syria had for centuries included the territory of what is now Syria, Lebanon, Jordan, the West Bank, Gaza and Israel. For Muslims in the Holy Land, this broader focus of self-identification was natural because the Ottoman Empire had no province or sub-provincial unit called, or co-extensive with “Palestine,” no matter how conceived. Nor had Muslim history ever known a country or province called “Palestine.” After the 7th-century CE Arab conquest, the Umayyad Caliphate kept the old Roman and Byzantine toponym Palaestina, arabicized asFilastin (Ùلسطين), for the name of one small district or jund (جند) of the Province of Syria. But, this short-lived Filastin was just a fraction the size of the Palestine that was known to the Byzantines; imagined by Christians on pre-20th-century maps; or finally realized in 1922, as the Palestine Mandate that included both Trans-Jordan and the national home for the Jewish People, from the Jordan River to the Mediterranean Sea.

Global Self-Determination Exercise
The Paris Peace Conference was concerned with the task of accommodating the political interests of the victorious Allied and Associated Powers with the claims to self-determination of well-known Peoples with long histories of self-affirmation and bitter suffering under foreign oppression. Thus, considered were difficult and entangled issues touching the self-determination of such famous Peoples as the Chinese, the French, the Germans, the Poles, the Finns, the Letts, the Latvians,the Estonians, the Czechs, the Slovaks, the Slovenes, the Croats, the Serbs, the Italians, the Hungarians, the Romanians, the Bulgarians, the Greeks, the Turks, the Kurds, the Armenians, the Arabs, and the Jews. In this larger context, just one decision among many was creation of “a national home for the Jewish People.” And, it is noteworthy that “national home for the Jewish People” was the exact phrase reiterated from 1917 to 1922, in a series of consistent declarations, resolutions and treaties that were ex post facto blessed by the 1923 Lausanne Treaty with the Turkish Republic, as successor to the Ottoman Empire.

Why a National Home for the Jewish People?
The decision to realize the self-determination of the Jewish People in its ancestral homeland was the rationale for the 1922 creation of “a national home for the Jewish People,” from the Jordan River to the Mediterranean Sea. With a legal status akin to a multilateral agreement or treaty, the Palestine Mandate of the League of Nations (July 24, 1922) entrusted the United Kingdom government with a new jurisdiction that included both Trans-Jordan and the national home for the Jewish People. In 1946, Trans-Jordan was severed from the Palestine Mandate to become the independent Arab State called “the Hashemite Kingdom of Jordan.” In 1948, the national home for the Jewish People became the independent Jewish State called “Israel.”

Decision-makers at the Paris Peace Conference knew that the Holy Land was significantly under-developed and under-populated. They also understood that the new national home for the Jewish People would initially lack a Jewish majority population. However, the decision to create a national home for the Jewish People was made not so much on the basis of local demographics, but in recognition of the Jewish People’s long-affirmed aboriginal rights and its continuing links to the Holy Land. Much weight was also given to broader considerations of demography, history, politics and social justice that were both global and Middle Eastern. Thus, there was a conscious choice to refer –not just to circa 85,000 Jews then living locally– but also to the past, present and future of 14 million Jews worldwide, including the one million Jews then living in the Near and Middle East.

Did Arabs Deserve All the Middle East?
Failure to create a national home for the Jewish People would have meant denying the great Jewish People a share in the partition of the multi-national Ottoman Empire, where Jews had lived for centuries, including in the Holy Land. Failure to create a national home for the Jewish People would also have meant that the great Arab People would have received almost the whole of the Ottoman inheritance. That result would have been unacceptable to David Lloyd George, Woodrow Wilson and their peers, because they significantly understood that the claim to self-determination of the great Jewish People was as compelling as that of the great Arab People.

The Paris decision-makers strongly insisted that they had also done justice to the claims of the great Arab People which they believed they had freed from 400 years of Turkish rule and helped on the road to independence via creation or recognition of several new Arab States on lands that had formerly been subject to the Ottoman sultan. For example, 77% of the territory of the Palestine Mandate was Trans-Jordan, which finally became an independent Arab State in 1946.

The international decision to create a national home for the Jewish People, between the Jordan River and the Mediterranean Sea, did not result in the displacement of local Arabs. To the contrary, from 1922 until 1948, the Arab population of the national home for the Jewish People almost tripled, while the Jewish population there multiplied eight times. The later problem of Arab refugees (about 736,000) from the national home for the Jewish People, and Jewish refugees (about 850,000) from Arab countries only emerged from May 1948, when local Arabs allied with several neighbouring Arab States to launch a war to destroy the newly independent Israel. Their declared intention was to exterminate the Jews living between the Jordan River and the Mediterranean Sea, just as the Turks in 1922 had spectacularly succeeded in liquidating the aboriginal Greek communities of the Anatolian littoral.

Who Self-Identified as Palestinian before 1948?
The Jewish People has kept the same name and subjective-objective identity in each century since ancient times. By contrast, among local Muslim Arabs, the formation of a distinct, subjective-objective “Palestinian” identity did not generally occur before the second half of the 20th century. And, this is understandable because the fifty years from the Ottoman collapse to the 1967 Six-Day War was a short time for the birth of a new People. Moreover, relatively few Muslim Arabs would have wanted to self-identify as “Palestinian” until three preconditions had been satisfied.

First precondition was political resurrection of the ancient toponym “Palestine” via the 1917 Balfour Declaration and the 1922 creation of the Palestine Mandate which consisted of Trans-Jordan and the national home for the Jewish People, between the Jordan River and the Mediterranean Sea.

Second precondition was the 1946 separation from the Palestine Mandate of an independent Arab State called Jordan. This is significant because the new Palestinian identity was directly focused on the territory of the national home for the Jewish People, i.e. the smaller Palestine from the Jordan River to the Mediterranean Sea that had existed for only two years from May 25, 1946 (birth of Jordan) until May 14, 1948 (birth of Israel). Before 1946, that precise territorial focus was largely absent, because as a border the Jordan River then had relatively little meaning for the self-identification of most of the Muslim Arabs living on either bank. This factor was implicitly recognized by the United Kingdom Peel Commission, which in 1937 recommended the creation of a new Arab State to consist of both Trans-Jordan and the Arab-inhabited parts of the national home for the Jewish People. And, this factor was also implicitly recognized by King Abdullah I, who in 1950 annexed to the Kingdom of Jordan the West Bank and East Jerusalem that his Arab Legion had conquered in the 1948-1949 war.

Third precondition was the abrupt jettisoning in May 1948 of the appellation “Palestine” in favour of “Israel” as the name for the newly independent Jewish State. Before 1948, the adjective “Palestinian” had too often been used as synonym for “Jewish.” And to be sure, the name “Palestine” and many other specific features of the 1922 Palestine Mandate were too closely associated with Jews and Zionism to offer much of a focus for Muslim Arabs. They generally did not identify as “Palestinian” until the Palestine trademark had been definitely abandoned by the Jews.

The Palestinian People Born in the 1960’s
Arab leaders themselves were slow to recognize the existence and right to self-determination of a distinct Palestinian People. For example, as principal Arab leader at the Paris Peace Conference, Prince Feisal had specifically accepted the plan to create Palestine as “a national home for the Jewish People.” And his father, the Hashemite King of the Hedjaz (later part of Saudi Arabia) was party to the 1920 Sevres Treaty that explicitly stipulated that Palestine would be “national home for the Jewish People.” Around three decades later, the governments of Egypt and Jordan showed how little regard they had for the self-determination of a Palestinian People. First, they rejected the 1947 United Nations General Assembly resolution recommending the partition of the national home for the Jewish People into two new independent States, the one Jewish and the other Arab. Second, no Palestinian State was created between 1948 and 1967, when Egypt held the Gaza Strip and Jordan had East Jerusalem and the West Bank.

The loss of those lands by Jordan and Egypt in the Six-Day War strongly encouraged the tendency of local Arabs to see themselves as distinct from the Arabs of Jordan and Egypt. Now more clearly spearheading their own irredentist struggle, local Arabs had added incentive to self-identify as “Palestinian.” And all the more so, since the new identification effectively expressed their stubborn determination to eventually master all the territory that in 1922 had been recognized as national home for the Jewish People. And certainly, history knows of other instances of new national identities forged in the fire of territorial dispute and ethno-religious hatred.

Peaceful Rights Reconciliation
This analysis neither denies the current existence of a distinct Palestinian People nor suggests that the new-born Palestinian People is today without rights, including claims to self-determination and territory. Rather, the conclusion is that there are now claims of right on all sides, and that there is an urgent moral and legal requirement for a peaceful process to respectfully reconcile the subsequent rights of the newly-emerged Palestinian People with the prior rights of the ancient Jewish People. And, these aboriginal rights of the Jewish People certainly include “the right to life,” i.e. the right of Jews to live safely in their ancestral homeland. This significantly means that the newly-minted Palestinian People lacks a right to wage a war of national liberation against the Jewish People, which is legitimately sited between the Jordan River and the Mediterranean Sea. There, the Jewish People lives “as of right and not on sufferance,” as said by then Colonial Secretary Winston Churchill in 1922.

For any full-and-final peace settlement concluded today, the doctrine of the self-determination of Peoples would probably require waiving Jewish aboriginal rights to land now mostly inhabited by Palestinians wishing to live in a new Palestinian State. Similarly, the self-determination principle would probably demand inclusion within Israel of land now mostly inhabited by Jews. But equally important, theaboriginal rights of the Jewish People would urgently require the peace treaty to also specify effective safeguards for Jewish security, including unequivocal recognition of the legitimacy and permanence of Israel as the Jewish State, i.e. as the political expression of the Jewish People in a part of its ancestral homeland.

*Allen Z. Hertz was formerly senior advisor in the Privy Council Office serving Canada’s Prime Minister and the federal cabinet. He also worked in Canada’s Department of Foreign Affairs and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He studied European history and languages at McGill University (B. A.) and then East European and Ottoman history at Columbia University (M. A., Ph.D.). He also has international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.).