Balfour: not a suitable case for lawfare

10 Comments

Courts are not the forum to rule on a 1917 declaration on Palestine.

Anniversary buffs have another bumper year ahead. In 1917 we mark the centenaries of two Russian revolutions, the US's entry into the first world war and the royal family rebranding itself the House of Windsor. However it's safe to predict that none will attract as much ire as the November 1917 signing of a brief, painfully even-handed, declaration of government policy on the future of the Ottoman Empire by a UK foreign secretary, the Conservative former prime minister Arthur Balfour.

Either you have never heard of the Balfour declaration or you will have passionate opinions on it. If you're in the former group, all you need to know is that the declaration asserted publicly that the UK government 'will view with favour the establishment in Palestine of a national home for the Jewish people... it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities...'.

The whole thing runs to 68 words; you'll find it on the web along with syllable-by-syllable analysis of the sort normally applied to the Second Amendment of the US Constitution, or the lyrics of Don McLean’s American Pie.

Whether you believe the declaration a far-sighted recognition of rights or the direct opposite, is to put it mildly, a matter of debate. The place for such analysis may be in academic seminars or over late-night beers or shishas (which is how I first had my ear bent on the topic, by Palestinian 'militants' in the 1970s).

What is not a good place is a court of law being asked to pass judgment on how the UK government should act in 2017. Yet that is exactly where we seem to be going. The president of the Palestinian Authority has announced his intention of suing the UK government as part of a campaign for an apology for what he says is the declaration's role in establishing the state of Israel.

No doubt English lawyers will be found to act in the case, in whatever forum this particular piece of lawfare is eventually aired.

This would be misguided. Jonathan Turner, chair UK Lawyers for Israel, gives me some preliminary legal reasons (accompanied by the cry 'Bring it on!'). He notes that the Balfour declaration was not a legal document and did not have legal consequences; 'it was merely an expression of intent on the part of the British government'. The key legal document was the 1922 Mandate for Palestine, unanimously adopted by the League of Nations, which allocated far larger Ottoman territories for future Arab states. Turner notes that the rights of the Jewish people to their national home recognised by the League of Nations are preserved by Article 80 of the UN Charter. 'Denial of those rights would be inconsistent with the UN Charter and international law.'

That's all very well, but I think such arguments jump the gun. I'm troubled by the very idea that there is a special case for apology over Balfour in the first place.

For a start, we need to place the declaration in context. In modern eyes, the idea of a British foreign secretary creating and breaking foreign states with a line on the map may be outrageous. But in 1917, close to high noon of the British Empire, it was a logical approach to the administering the debris of the Ottoman Empire, against which Britain was slowly winning a world war. In this, British and French line-drawing was cynical and duplicitous all round. Famously, the British encouraged an Arab rebellion in the Hejaz with little intention of granting independence. (This was the Lawrence of Arabia saga.) Meanwhile the 1916 Sykes-Picot agreement to divide the Arab world between constitutional monarchies (the British sphere) and republics (the French) had bloody consequences that fill newspaper foreign pages to this day.

In his magisterial study of antisemitism in Britain, Anthony Julius QC describes British policy in general as 'incoherent, reactive and indecisive'. Anyone seeking examples of British perfidy in the Middle East will find many more, from Egypt (1882) to Iran (1953) to Oman (1971). Plus, incidentally, the shameful turning back of Jewish refugees from the UN-mandated territory of Palestine. And don't get me started on the attempted erasure of the Kurdish identity.

In this dismal catalogue, the singling out of one ministerial decision for global legal scrutiny 100 years after the event seems odd. But of course it plays into a fashionable narrative, that the Israeli-Palestinian question is the root of the Middle East's, or even the world's woes. The trouble with this view is that it mutates into an obsession over the legitimacy of one small state rather than, say, over Pakistan or the Republic of China on Taiwan – both, like Israel, established amid massive displacements of people in the aftermath of the second world war.

This obsession has an ugly name, with which the legal profession should not be tainted.

Let's leave the argument over Balfour to the academics – and those late-night beers and shishas.