Jewish Reply to White Paper Raps Misinterpretations, Misrepresentations of Mandate, False Views of S

The Jewish reply to the White Paper which was issued by the British government on Oct. 20th, and which aroused world-wide criticism, is contained in a memorandum which has been submitted to the British government. The memorandum, which constitutes the first official Jewish reply to the White Paper, has been prepared under the auspices of the Jewish Agency by Leonard Stein, well known expert on Palestinian and Zionist affairs and former political secretary of the World Zionist Executive.

The document, which characterizes the White Paper as “unfortunate in its contents and not less unfortunate in its tone and outlook.” criticizes the White Paper under the following five summarized headings:

“1. The White Paper misrepresents and misinterprets the Mandate.

“2. It lays down principles which, in vital particulars modify, to the disadvantage of the Jews, the policy embodied in the White Paper of 1922, and which are incompatible with the normal development of the Jewish National Home as contemplated in the Mandate.

“3. Though it purports to be based on the report of Sir John Hope Simpson, it gives a false impression of his findings on a number of important points, and, while emphasizing those features of the report which can be turned to the disadvantage of the Jews, fails to bring out the true nature of the constructive proposals which are the essence of Sir John Hope Simpson’s final recommendations.

“4. While ostensibly designed to promote ‘cordial cooperation between the Jews, Arabs and the government,’ it loses no opportunity of introducing injurious, and in some cases quite irrelevant allegations, of which the effect, if not the purpose, can only be to discredit the Jewish Agency, to disparage Jewish achievements in Palestine, and to encourage the ill-disposed elements of the Arab population.

“5. Quite apart from its specific proposals (which are, indeed, so vague, confused and ambiguous that it is not easy to be sure of their precise significance) the White Paper is conceived in a spirit which is not that of a government seriously interested in the establishment of the Jewish National Home, and conscious of having in this regard responsibilities implying, not merely a reluctant and grudging acquiescence, but active and positive cooperation.”

MANDATES BODY’S REPORT CITED

Afer quoting the Balfour Declaration and statements by Lord Balfour, Lloyd George, General Smuts and Lord Robert Cecil on this document, all of them testifying that the establishment of the Jewish National Home was the main purpose of the Mandate, the memorandum takes issue with the contention of the White Paper that the policies it pronounced are based on the following recent statement of the Mandates Commission which the Commission conceived to be the essence of the Mandate that, namely, “that the obligations laid down in the Mandate in regard to the two sections of the population are of equal weight; that the two obligations imposed upon the Mandatory are in no sense irreconcilable.” While land and immigration bulk most largely in the White Paper, the obligations which the Mandate imposes upon the Mandatory power and which are of equal weight as formulated by the Mandates Commission are as follows: “(1) placing the country under such … conditions as will secure the establishment of the Jewish National Home. (2) placing the country under such conditions as will secure the development of self-governing institutions.” From this the memorandum concludes that the quotation in the White Paper from the Mandates Commission’s report is irrelevant and misleading.

The memorandum also criticizes the omission by the White Paper, in its recital of those portions of the Mandate relating to Jewish and non-Jewish interests, of the preamble to the Man-

date, “implying that no account is to be taken of the fact that the preamble emphasizes the importance attached by the framers of the Mandate to the establishment of the Jewish National Home by including in the preamble two paragraphs relating to that subject—the first reciting the Balfour Declaration, and the second referring to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.”

OBLIGATIONS ARE TO JEWISH PEOPLE

In this connection the memorandum points out that while article 2 of the Mandate speaks explicitly of the “establishment of the Jewish National Home as laid down in the preamble,” making a reference to the preamble essential to an appreciation of article 2, the preamble explains that what is meant is “a national home for the Jewish people.” From this the memorandum draws the conclusion that the obligations undertaken by the British government regarding the national home “are obligations to the Jewish people, and not, as might be supposed from various passages of the White Paper, merely obligations to the local Jewish inhabitants as one of the two sections of the population of Palestine.”

The memorandum is also critical of the omission from the list of passages making “special reference to the Jewish National Home and to Jewish interests,” of the most important of all such passages apart from the preamble, namely article 2, which opens by enjoining the Mandatory power to create “such political, administrative and economic conditions” as will ensure the establishment of the Jewish National Home. Article 2, the memorandum notes, is referred to only among those articles bearing upon the “safeguarding of the rights of the non-Jewish community.”

The detailed reply to the government then goes into an analytic examination of the various articles of the Mandate of which the White Paper offers an interpretation. It finds that the last part of article 2 by which the Mandatory power is “also” made responsible “for safeguarding the civil and religious rights of all the inhabitants of Palestine irrespective of race or religion” has no bearing on the proposals with regard to land and immigration lengthily discussed in the White Paper. Noting that the words used are “civil and religious rights,” and pointing out that no question of religious rights enters, the memorandum argues that as regards “civil rights” it cannot be seriously contended that the “civil rights” of any inhabitant of Palestine include the right to be provided by the government with land or with employment, or the right to require the government to take any particular action with regard to land settlement or immigration. It contends that since no inhabitant of Palestine enjoys, or has ever enjoyed, any rights of this kind, “it is impossible to construe the Mandate as requiring the Mandatory to safeguard rights which have no existence.”

FINDS PARAPHRASE PERVERSE

The memorandum finds too that the paraphrase of article 6 of the Mandate in paragraph 21 of the White Paper, which defines article 6 as follows: “it is the duty of the administration under the Mandate to ensure that the position of the ‘other sections of the population’ is not prejudiced by Jewish immigration. Also it is its duty under the Mandate to encourage close settlement by Jews on the land, subject always to the former condition,” is “unreasonable and perverse.”

Taking exception to this interpretation, the memorandum says “where the imposition of a duty is qualified by a proviso, it is plainly contrary to all reasonable canons of interpretation to present the proviso as the paramount obligation and the positive duty as a mere appendix. It is quite clear that the main purpose of article 6 was to impose upon the Mandatory the positive and affirmative obligation of facilitating the immigration of Jews and close settlement of Jews on the land.”

Claiming that the White Paper’s construction of article 6 of the Mandate is something entirely new and noting that the White Paper admits that the obligations laid down by the Mandate with regard to the two sections of the population are of equal weight, the memorandum says “whatever the precise meaning of the proviso, article 6 imposes upon the Mandatory a definite and positive obligation towards the Jews. It is, therefore, inadmissable unless all alternative constructions are plainly excluded, to construe the proviso in such a manner as to make it, on the face of it, incompatible with the discharge by the Mandatory power of the positive obligation imposed upon it. There is high legal authority for the view that the interpretation of the proviso in the White Paper, so far as it relates to immigration, is ‘inconsistent with the Mandate, inasmuch as it clearly involves a prohibition—or as the White Paper calls it, a suspension—of all that Jewish immigration and settlement which article 6 of the Mandate expressly directs the Mandatory to facilitate and encourage.'”

DISCUSSES “RIGHTS AND POSITION”

The memorandum then turns to the question of the possible interpretation of the proviso in article 6 in a way other than that which “renders nugatory the positive injunction of the article.” The answer to the question, it finds, depends on the meaning attached to the words “rights and position.” Carefully showing that the words used are “rights and position” and not “interests” and demonstrating that unlike article 2, this part of article 6 deals, not with the inhabitants of Palestine as individuals, but with “other sections of the population,” the memorandum says that so far as “rights” are concerned, it seems tolerably clear that the proviso that “the rights of other sections of the population are not to be prejudiced” is merely a “paraphrase of the proviso to the Balfour Declaration, which lays it down that ‘nothing shall be done which might prejudice the civil and religious rights of the existing non-Jewish communities.’

“In other words, the rights which are not prejudiced are the civil and religious rights of the Arab population, whatever these may be. The question of religious rights is not relevant to this discussion: As for the civil rights of the ‘Arab section of the population,’ it is impossible to understand on which reasonable principles of construction they can be made to include the right on the part of every Arab in Palestine to be provided with land or employment, as the case may be, before any Jewish immigrant is admitted or any land allowed to pass into Jewish hands, or, for that matter, the ‘right’ to be prevented from disposing of his land if he desires to do so. So far as the word ‘rights’ is concerned, it is submitted that there is nothing in article 6 which justifies, still less requires, the action apparently proposed to be taken by the Mandatory power with reference to Jewish land settlement and immigration.

This brings the discussion down to the word “position,” the memorandum states. Ruling out the possibility that political position can be referred to, the memorandum finds that saying that the economic position of the Arab section of the population is not to be prejudiced

can mean either that Jewish immigration and settlement must not result in the economic position of the Arab section of the population being worse than it was when the Mandate came into effect or it may mean that they must not result in the economic position of the Arab section of the population being worse than it would have been if Jewish immigration and settlement had not taken place.

ARAB POSITION NO WORSE

Quoting the Simpson report and the Foreign Office Handbook of Syria and Palestine to prove that the position of the Arab section of the population, that is of the Arabs as a whole, is no worse than before the Mandate came into effect, the memorandum also finds that that it cannot be seriously suggested that the position of the Arabs as a whole is worse than it would have been if no Jewish immigration had taken place. Pointing out that there is not the slightest reason to suppose that the position of the Palestine Arabs is in any respect inferior to that of the neighboring Arabs in Transjordania, Syria or Iraq “where the question of Jewish immigration has not arisen,” the memorandum cites the Mandates Commission’s reference to “the undeniable material advantages which Palestine has derived from the efforts of the Zionists.”

The last consideration on this point, the memorandum states, is whether with the present position of the Arab section of the population as a starting point, there is reason to believe that Jewish immigration must now be restricted if the Arabs’ position is not to be changed for the worse. Observing that so far as the provisions of article 6 are concerned to justify fresh restrictions on the immigration and settlement of Jews it must be shown that these restrictions are indispensable in order to prevent the Arab position from deteriorating, the memorandum points out that the Mandatory power has no right under article 6 to place obstacles in the way of Jews in order to effect improvements in the condition of the Arabs.

Hence, the memorandum maintains, the White Paper “goes far beyond anything that is either required or justified by article 6 in laying down the principle that Arabs who at present have no land or too little land must be provided with as much as they require, and that Arab workers must not be merely protected against the loss of employment they have at present, but must be given a prior claim to any fresh employment which may become available.

NO GUARANTEE OF LAND OR JOBS

“The Arab section of the population has never hitherto had a guarantee either of land or employment, and on no reasonable construction of article 6 can the government’s obligation to ensure that the position of ‘other sections of the population’ shall not be prejudiced be interpreted as an obligation to suspend or restrict the immigration of Jews until the requirements of the Arabs, both with regard to land and to employment have been satisfied.”

The memorandum also devotes a number of paragraphs to a defense of the Jewish Agency and the Jewish National Fund against the criticism leveled against them in the White Paper. Commenting on the fact that the White Paper raises a question with regard to the articles of the Jewish Agency’s constitution which provide that land acquired with funds provided by the Agency shall be held as the inalienable property of the Jewish people, and tha “in all works or undertakings carried out or furthered by the Agency, it shall be deemed a matter of principle that Jewish labor shall be employed,” the memorandum points out that on August 6, 1930 the British government intimated its readiness to recognize the enlarged Jewish Agency as constituted by the agreement which embodied the constitution, including the articles now objected to.

As regards the criticism of the Jewish National Fund by the White Paper and the exclusive employment of Jewish labor on Jewish land the memorandum cites government sources as being award of this practice as well as of the existence and organization of the Fund. The strictures of the White Paper with regard to the tenure of land as Jewish public property and to the employment of Jewish labor, the memorandum points out, if agreed to by the Jewish Agency would violate article 6 of the Mandate because it is essential that the Agency “should take such steps as it can to ensure that land acquired for Jewish colonization at the expense of Jewish public funds shall not become an object of speculation but shall continue to be used for the purpose for which it was intended.” If the reference to this matter in the White Paper has any definite meaning, the memorandum says, it means that the British government regards it as its duty under the Mandate to introduce legislation making it impossible for the Jewish National Fund to hold land on terms not permitting it resale, or to insist upon its lessees employing Jewish labor. This, the memorandum submits, contravenes article 6 of the Mandate because it involves legislation designed to prevent the Jewish Agency or the Jewish National Fund from taking effective measures to ensure that land acquired for “close settlement by Jews” with the assistance of Jewish public funds shall continue to be used for this purpose.

RAPS INTERPRETATION OF ARTICLE 11

The memorandum criticizes the White Paper’s interpretation of article 11 of the Mandate. It is pointed out that with regard to the final paragraph of the article the White Paper says “that the population of Palestine as a whole, and not any sectional interest, is to be the government’s case,” while with regard to the second paragraph of the article dealing

with arrangements between the administration and the Jewish Agency with reference to public works and the development of the natural resources of Palestine, the White Paper emphasizes that the language used is only permissive and not obligatory.

To this line of reasoning the memorandum says that the British government “has been actuated by a desire to lay all the emphasis on those articles of the Mandate which restrict its obligations in respect to the Jewish National Home and to place the narrowest possible interpretation on those which have the opposite tendency.” As proof the memorandum compares paragraph 8 of the present White Paper with paragraph 5 of the 1922 White Paper. The memorandum also argues that it is misleading to suggest that the main point of interest about the reference to the Jewish Agency in the second part of article 11 is that it is merely permissive. The memorandum points out first that if this were all it would not be necessary to mention the Agency at all, and secondly “if article 11 authorizes the administration to make arrangements with the Jewish Agency with reference to the development of natural resources and the execution of public works, it is because it is thought appropriate to recognize the special position of the Agency as a public body closely interested in the development of Palestine, and a body which is not to be classed with mere concession-hunters seeking personal profit.”

The memorandum then takes up three important particulars in which the White Paper of 1930 has modified the White Paper of 1922 to the disadvantage of the Jews. The 1930 White Paper speaks in terms of the Jewish section of the inhabitants of Palestine in dealing with the Jews while the 1922 White Paper speaks in terms of the Jewish people, the memorandum notes. In the second place, the memorandum points out, the present White Paper lays all emphasis on the limitations to be imposed in the interests of the Arabs while the 1922 White Paper laid stress on the growth of the existing Jewish community and the increase of its numbers by immigration as essential elements in the establishment of the Jewish National Home. And finally the memorandum finds that where the 1922 White Paper required that Jewish immigration “should not deprive any section of the present population of their employment,” it is quite another thing to say that the Jews must also prove that it will not prevent unemployed Arabs from obtaining employment.

SIMPSON REPORT MISINTERPRETED

Turning to the future land policy as outlined in the White Paper the memorandum finds that the White Paper, in discussing occupied state lands, misinterpreted Sir Simpson’s statement that “even were the title of the government admitted, and it is in many cases disputed, it would not be feasible to make these areas available for settlement in view of the impossibility of finding other land on which to settle the Arab cultivators.” This passage, the memorandum finds, has been made to read in the White Paper that “even were the title of the government to these areas admitted, and it is in many cases disputed, it would not be possible to make these areas available for Jewish settlement in view of their actual occupation by Arab cultivators, and of the importance of making available additional land on which to place Arab cultivators who are now landless.” This is inconsistent with the Mandate, the memorandum states, because the White Paper takes the view that even when state lands can be made to provide for additional cultivators “over and above those already in occupation, they should be used for the close settlement, not of Jews, but of Arabs.” The memorandum further notes that the government is not without blame in the matter of state lands because as Sir Simpson points out it “is regretable” that the Huleh and Beisan areas have unfortunately “passed from the ownership of the government” into the “hands of concessionaires.”

Touching on the matter of the area available for the rural population, the memorandum questions the reliability of the figures quoted in the White Paper. The memorandum points out that the White Paper argues that since the holdings of the fellaheen are smaller than they ought to be, there is consequently no margin of land available for Jewish colonization, this conclusion being based on an assumption of facts as to the total cultivable area and the size of the Arab rural population.

QUESTIONS CULTIVABLE AREA FIGURES

Pointing out that Simpson himself had admitted that figures for the cultivable area were open to doubt, the memorandum comments on the discrepancy between the 6,544,000 dunams on which Simpson’s calculations are based and the figure of between 10 and 11 million dunams hitherto officially accepted. The higher estimate was given last April by the commissioner of lands and the lower one quoted by the director of surveys. The memorandum claims that a 40 per cent reduction in the estimate of such a person as the commissioner of lands is open to doubt until it can be conclusively established.

The memorandum mentions that among the methods used by the survey department in obtaining these figures was the taking of aerial photographs of “a number of tracts selected as representative” and that as a result of a study of these photos “an average percentage of cultivable land was calculated.”

FINDS METHOD UNRELIABLE

The memorandum shows that this method is not reliable because the proportion of hill country photographed is not stated and because it is not clear how such photos can be relied on to distinguish between cultivable and cultivated areas. At this point the memorandum quotes from the Simpson report to show that what had seemed to be “sterile and barren rock” at Motza, Dilb and Beth Hakarem were now flourishing areas. Hence the memorandum asks “would land which seemed to be ‘sterile and barren rock’ have appeared cultivable or uncultivable from an aerial photograph?”

Noting that the region chiefly affected by the reduced estimate of cultivable land is the hill country and showing that when Simpson speaks of “congestion” he refers to the hill country, the memorandum points out that the centers of Jewish colonization are in the Maritime Plain and the Plain of Esdraelon and not in the hill country. The memorandum says that the “discovery that the area of the hill country was smaller than it was supposed to be might be a reason for limiting Jewish immigration in that region on the ground that it might tend to prejudice the position of the Arabs. On the other hand … if any congestion which may exist in the hill country is due to causes entirely unconnected with Jewish immigration, it cannot be contended that the government’s duty to safeguard the ‘rights and position’ of the Arab section of the population requires it to place restrictions on Jewish purchases of land in other parts of the country in order that room may be made for the settlement of Arabs from the hills.”

RURAL POPULATION FIGURES DOUBTED

The figures of the White Paper, based on the Simpson report, that there are 86,980 rural Arab families in Palestine, making a rural Arab population of about 465,000 and rural Jewish population of 36,627 are also questioned by the memorandum. It points out that the census of 1922 showed an Arab rural population of 373,000 which, compared with the Simpson report’s figures of 465,000, means an increase of 23.4 since 1922. At the same time the Arab urban population rose from 184,000 in 1922 to 206,000 in 1930, an increase of 11.2. The memorandum believes that the fact that the rural population grew more than twice as fast as the urban population calls for some inquiry.

The next element touched upon by the memorandum is the size of the “lot viable, the White Paper stating that “an area of at least 130 dunams is required to maintain a fellah family in a decent standard of life in the unirrigated tracts” and that if the whole of the cultivable land, other than Jewish land, were divided among the existing Arab cultivators, the result would be an average holding of not more than 90 dunams. The memorandum points out, however, that not all the land cultivated by Arabs is the unirrigated cereal-growing land, the Arabs owning 48,750 dunams of orange land and a considerable number of them being engaged in vegetable-growing and interested in tobacco, watermelons and grapes.

CRITICIZES DEFINITION OF “LANDLESS”

Touching on the question of the “landless” class, the memorandum not only takes exception to the figures in the White Paper but to the definition of the term “landless” The memorandum shows that the figure of 29.4 per cent of