Balfouria

star-balfour_150Could the Palestinians actually sue the United Kingdom for the Balfour Declaration?

With so much coverage of a Palestinian threat to sue the United Kingdom for the 1917 Balfour Declaration I was surprised to find no one had investigated if they actually make a go of it. To my surprise, it’s a long, long shot but, yes, it’s a possibility. They could have their day in court.

His Majesty’s government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.

Balfour Declaration Resources

A huge HT to Hadar at BBCWatch.org (a website that every Israel advocate should have on their favourites list) for preparing a comprehensive library of Balfour resources.

The British end of the story

Sue UK for Balfour

There is precedent. In 2012 aged victims of brutal treatment, torture, rape, wrongful detention and forced labour, during the Mau Mau rebellion in Kenya sued the United Kingdom Foreign and Commonwealth Office and HM Government. They asked for reparations and a formal apology.

The British response was that they were protected by time limitations – the Mau Mau Rebellion lasted 1952-1960 – and that the correct defendant should have been the current Kenyan Government as the successor authority –  Kenya gained independence in 1963.

The High Court ruled that this was a case where an exception needed to be made under the Limitation Act 1980 and the British settled out of court, in the first instance. They compensated more than 5,000 Kenyans it tortured and abused during the Mau Mau insurgency.

Mau Mau statueOn 12 September 2015, the British government unveiled a Mau Mau memorial statue in Nairobi’s Uhuru Park  “as a symbol of reconciliation between the British government, the Mau Mau, and all those who suffered”.

A 2016 suit extended the range of alleged offences, to include false imprisonment, forced labour and an interference with their right to education. The second, larger suit is still in court with a result expected in 2018.

The similarities with the Palestinian threat should be obvious.

There are also differences between the Kenyan and the Palestinian claims. After one hundred years the chain of causality has become very kinked.

  • Would the court accept that the 1917 Balfour Declaration, a non-binding statement of intention, made in London, is legally responsible thirty-one years later for events in Palestine?
  • The Declaration was made while World War II was raging and Ottoman Turkey still controlled Palestine. Can Britain be responsible if, in 1917, they had no way to deliver on a promise?
  • If you believe that Arabs fleeing or expelled from their homes was entirely the fault of Jews (and not largely of the Arab leaders), how can the British government be responsible?
  • What about the joint responsibility of Britain, France, Italy, Japan who in 1920, without mentioning it by name, essentially incorporated the Balfour Declaration into the San Remo Convention, the legal basis for Israel’s eventual creation – but also that of Iraq, Syria and Lebanon?
  • Or every state in the then Council of the League of Nations which confirmed the Mandates legally at fault?

Their hands are not exactly clean. When a plaintiff wants to compel the other party to do or refrain from doing some action, such as make a formal apology, the normal procedure is to ask for an injunction in an Equity court.

One issue that for some reason didn’t receive much play in court although critics certainly brought it up in the media was the brutal violence of the Mau Mau, chiefly against other Kenyans.

The catch is the clean (sometimes paradoxically called ‘dirty’) hands doctrine in Equity “he who comes into equity must come with clean hands”.

Probably this was avoided because the suit was not launched by the Mau Mau ‘organisation’ or its successors but by the victims. Although this was a group action, only those who had little or nothing to do with the organisation were called to testify.

The verdict:
Some Palestinians could have their day in court – and would (hopefully) lose.

The International end of the story

There are two international courts that might consider the case: the International Criminal Court (ICC) and the International Court of Justice (ICJ).

International Criminal Court
Cour pénale internationale

In many ways the International Criminal Court would be the appropriate place to start. The Court’s founding treaty, the Rome Statute, grants the ICC jurisdiction over four main crimes: a very wide definition of genocide; 15 forms of crimes against humanity including apartheid and deportation; war crimes and the crime of aggression†. In short, just about every libelous accusation aimed at Israel comes within ICC jurisdiction.

Unfortunately for the Palestinians their threat is a suit to be directed against the government of the United Kingdom or possibly the Foreign and Commonwealth office. Unfortunate because the ICC only conducts trials against individuals and there is no inherited responsibility. Arthur James Balfour, 1st Earl of Balfour, KG, OM, PC, FRS, DL met his maker in 1930. Unless they can somehow resurrect him they are stuck without a defendant.

They are also stuck on an important technicality.The Rome Statute was ratified by 60 states on 1st June 2002 officially establishing the ICC. Since it has no retroactive jurisdiction, the ICC only  deals with crimes committed on or after this date.

The verdict:
Palestinians are just under eighty-five years too late to sue in the ICC
.

International Court of Justice
La Cour internationale de Justice

The International Court of Justice presents the opposite problem. The International Court of Justice (French: Cour internationale de justice; commonly called the World Court, ICJ or The Hague) is the primary judicial branch of the United Nations (UN) and only deals with states, not individuals or organisations.

It has a dual role of settling legal disputes between states submitted to it by them and giving advisory opinions on legal matters referred to it by duly authorized United Nations organs and specialized agencies.

In 2002 the United Nations General Assembly upgraded the Palestine Authority’s status non-member observer State. Since then they have been energetically joining every international body they could. In March 2016 the Permanent Court of Arbitration in The Hague announced that the “State of Palestine” has joined it, becoming its 118th member state.

The Court can only deal with a dispute when the States concerned have recognized its jurisdiction. No State can therefore be a party to proceedings before the Court unless it has in some manner or other consented thereto.

The United Kingdom may find it difficult not to accept the court’s jurisdiction unless it withdraws from the court altogether. Just ask the lawyers. It declared in February of this year that it accepts as compulsory ipso facto and without special convention, on condition of reciprocity, the jurisdiction of the International Court of Justice.

The same causality and time limits issues as discussed in a British domestic suit arise – with a twist. The ICJ is an arm of the United Nations and that organisation in the United Nations Charter Chapter XIV established the court. Chapter XII specifically recognises existing mandates. A decision against the United Kingdom would call into question the Charter and with it the legal basis of the court.

The dirty hands principle discussed earlier should return with a vengeance. The Palestine ‘state’ can’t hide behind specially selected ‘innocents’ but must stand and defend the actions of the Palestine Arab leadership and the invading Arab armies in 1948 and possibly earlier.

This includes the partnership with the Nazis in the genocide of the Jews; incitement; assaults and murders and invasion.

A suit could backfire big time. Not only could they lose against the British over the Balfour Declaration but their whole Naqba mythology could be exposed in open court.

The verdict:
The Palestinian’s best chance but risky.

Coincidently, last week, I was able to ask Professor Eugene Kontorovich, a leading proponent of the ‘Israel settlements are legal under international law’ principle whether Israel should take its case to the ICJ.

His answer was that Israel would not be able to get a fair trial there.

Given the biases of the United Nations will the British?

Extra credit


† Must be ratified by at least 30 States and then voted upon by States Parties in 2017.

About David Guy

B.A./B.C.A. (Communication and Media Arts) University of Wollongong, AUSTRALIA M.A. in Government (Diplomacy and Conflict Studies) Inter Disciplinary Center, Herzliya, ISRAEL Twitter @5MFI
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