Water under the bridge

Robert Silver

International law is fashionable again, arousing passions over Britain's imperial legacy. The Falklands conflict has reawak-

ened interest. Debate over the future of Hong Kong will, no doubt, contribute to the excitement. Another talking-point threatens to be the role of the River Jordan as a political frontier. The Foreign Office, under pressure from a Zionist group called 'Jordan is Palestine', has undertaken a historical study. 'Jordan is Palestine' cam- paigns for international acknowledgement that Jordan is a successor state under the Palestine mandate. Its interest lies partly in the associated acknowledgement, not yet made by the Israeli Government, that the Palestinians are a dispossessed people, in need of a homeland. The pressure group's twist to the argument is to claim that this homeland is rightly Jordan. Mr Shamir, Israel's Foreign Minister, and General Sharon have, in recent years, made favourable obiter references to the claim, but, as yet, Israel has not officially endors- ed it, This is not surprising, given its potential- ly explosive implications for King Hussein, Israel's second least unfriendly Arab neighbour. If Jordan is a successor state under the mandate, this, allied to the Palestinian character of much of its popula- tion, plus Hussein's repeated statements of an identity of loyalties between Palestinians and Jordanians, supports the inference that Jordan is the Palestinian Arab state, as Israel is the Palestinian Jewish state. Those who backed partition in the 1930s and 1940s — the Peel Commission and the General Assembly of the United Nations will, through a roundabout route, involving five wars, hundreds of thousands of casualties and diplomatic archaeology by zealous international lawyers, have been vindicated. Meanwhile the Hashemites will have been consigned to the dustbin of history, alongside the Habsburgs and Hohenzollerns. King Hussein is alert to the threat and is said to have raised the group's activities with Mrs Thatcher. Legitimacy, once again, is a live issue.

The story begins in a small, muddy village on the outer edge of the Arabian desert in 1921. Amman was chiefly notable at the time for the death in action, three thousand years before, of Uriah the Hittite. Political geography is a complicated sub- ject, but the best research suggests that Jor-

dan, in 1921, was the name of a river, not a territory, and a river which, at places, nar- rowly escapes definition as a ditch. Trans- jordan was not even, to quote Metternich, a geographical expression. Palestine, a term which had passed into disuse since the Roman Empire, had been brought back in- to circulation during the 19th century by Victorian evangelists. In Ottoman eyes, it was part of Southern Syria, a fact which, even now, encourages irredentist claims on Israeli territory by Syria. The area later known as Transjordan was populated by 2-300,000 villagers and nomads. No one knew where their loyalties lay and no one was very interested.

Transjordan was a political device, in- vented in 1921, to avoid a crisis in Anglo-French relations. The kingdom of Moab — its biblical name — was a land without a ruler. Abdullah, second son of the sherif of Mecca, was a ruler without a land. He had abandoned the Hejaz railway at Amman, en route to Damascus. At Am- man he hoped to raise an army, march on Syria, dislodge the French and gain a throne for his brother, Feisal. The area had been included in the British Empire under General Allenby's postwar occupation. T. E. Lawrence persuaded the Abdullah to cross the desert to Cairo and meet Winston Churchill, the Colonial Secretary. Churchill, Lawrence and Samuel, the High Commis- sioner for Palestine, took Abdullah aside and urged him to take on Transjordan, and, unfraternally, cease to disturb the French. He agreed — for six months. Six months have turned into 60 years. 'I have partitioned Palestine once,' said Churchill later, 'and 1 will partition it again.'

The British mishandled the legal aspects of their new manufacture. The League of Nations finally settled the terms of the Palestine mandate in 1922. Transjordan was included. It was not the subject of a separate trusteeship. It figures in the provi- sions of the mandate as an area whose eastern frontiers had yet to be defined and which was excluded by Article 25 from the clauses relating to a Jewish National Home. Otherwise, it didn't rate a mention. The British were consequently not obliged to 'facilitate' Jewish settlement there, though, presumably, by Article 15, which outlawed discrimination between inhabitants 'on the grounds of race, religion or language', they were bound not to prevent it either — as

they did. The mandate left the forms of local administration to the mandatory. It provided no procedure for its own termina- tion — which created a problem. Never- theless Britain was obliged to refer any change of sovereignty to the League.

As a result of these maneouvres, a genu- ine ambiguity arose. On the one hand, Trans- jordan was ultimately subject to the High Commissioner for Palestine. Its budget was reckoned in Palestinian pounds. At inter- national law, its inhabitants had Palestinian nationality. If they travelled, they carried Palestinian passports. Transjordan ap- pears, in any interwar edition of Whit- taker's Almanac as a sub-entry under 'Palestine'. The entry on Palestine in the 1966 edition of Encyclopaedia Briiannica, contributed by an Arab writer, Closes the story on May 15th, 1948, and then advises us to 'see ISRAEL, JORDAN'.

On the other hand, the British dealt with Transjordan as if it were semi-autonomous. In 1928, they concluded a treaty with Abdullah, as 'Emir'. They set up a legislative council. In 1939, a cabinet was established. Also, in the same year, Transjordan was allowed to appoint consular representatives in the world's capitals. Abdullah was known as 'Emir of Transjordan' though his title was inherited through his family, not attached by tradition to the land. In 1946, the British set up an independent state. The legality of their actions appears to have been doubtful. In 1928, the treaty, which conferred semi-sovereign status, had been referred to the League of Nations. The Per- manent Mandates Commission raised seri- ous objections. The Council, the high authority, let it through on the nod. In 1946, the British acted unilaterally: they did not consult either the League of Nations, which dissolved in 1946, or the United Na- tions, its successor. Ernest Bevin announc- ed Transjordan's independence as a fait accompli. Zionists objected because 80 per cent of the land area of the mandate had been withdrawn from the scope of any potential partition between Jews and Arabs. In 1947, the British transferred responsibility for the rest of Palestine to the United Nations, which partitioned it.

Much of this legal and historical material is not new. It has been available to anY researcher who has cared to look. Few did, or,if they did, paid much attention, until two academic lawyers, both committed Zionists, Paul Riebenfeld, an American, and David Singer, an Australian, turned it into the basis for an extremely vigorous pressure group. One of the doctrines of in- ternational law, unlike municipal law in the Anglo-Saxon tradition, is that irregula" rities, once committed, can't be rectified by prescription or passage of time. Moreover the General Assembly of the United Nations can't rehear partition, taking into account the excluded territory and all the conse- quences which have flowed from exclusion' and it is unlikely, in its present mood, that it would entertain the suggestion.

'Jordan is Palestine' adds another dimen" sion to the argument. Part of its claim that Jordan is now the rightful Palestinian

homeland is based on the demographic character of the country. Seventy-five per cent of its population are Palestinians, in- the narrow sense; either they or their fathers have come from west of the Jordan. In the wider sense, set out by the group, almost all of its inhabitants are by defini- tion Palestinians. In 1951, Jordan offered citizenship to Palestinian refugees, wherever they were. This offer was never rescinded. It does not appear to have car- ried with it rights of residence. At the latest count, 180,000 Palestinians are Jordanian citizens, living outside Jordan. Given the near-universal retention of their Jordanian passports by inhabitants of the West Bank, the gross figure may well be an under- estimate. The Hashemites' Transjordanian power-base is tenuous, resting on the con- trol over the army. Hussein has often assert- ed that the Palestinians and the Jordanians are a united people, chiefly to support his claim to the West Bank. The PLO, which wants a state on the West Bank, though its maximalists want more, takes great interest in Jordan as a potential base and part of a potential homeland.

'Jordan is Palestine' provides an um- brella for a wide range of Zionist opinion, some of it inside Israel. Its public stance in relation to the West Bank is neutral. Never- theless, its critics say that some of its sup- porters wish to see Israeli annexation of the West Bank or Judaea and Samaria — and use the group's argument as an auxiliary to other legal claims, based on biblical or strategic inspiration. Presumably, if Israel were to annex the West Bank, it would lose its Jewish identity unless it either expelled the West Bank's Arab inhabitants or denied them citizens' rights in an expanded Israel. A less likely alternative would be a voluntary refusal by the Arabs of Israeli na- tionality.

The limitations of the pressure group's basic argument are clear. Despite the flaws in the Hashemites' claims on their kingdom, Jordan enjoys wide international recognition as a sovereign state under King Hussein's control. It is interesting to note that Transjordan was rejected on its first application for membership of the United Nations in 1946, when the consensus of opi- nion appeared to be that it was a British puppet-state.

'Jordan is Palestine' applies a tightly defined concept of international law and draws inappropriate conclusions. Interna- tional law may not, in any case, be the best guide to international peace-making. If the claim that Jordan is Palestine is true, it is less than the whole truth; Jordan, according to the group's own definition, is only a part of Palestine. Maybe Jordan ought to con- stitute Palestine, or part of it, but it does not do so at the moment, except in the minds of lawyers arguing according to stan- dards set by the League of Nations. And, as things stand at present, practical realisation of the slogan 'Jordan is Palestine' requires a coup d'etat in Amman. The pressure group says that what is needed is merely a change of name from 'Jordan' to 'Pales- tine'. Sceptics may think that verbal altera- tions rarely create new political facts.

Yet, strangely enough, 'Jordan is Palestine', by a bizarre historical side- route, may have hit on a pragmatic answer to a problem of conflicting nationalist claims, a conflict which potentially threatens nuclear catastrophe. The argu- ment recognises that the Palestinian Arabs have suffered an injustice, whoever is responsible. History can't be undone. They ought to enjoy restitution, though not reinstatement. So, Zionists would argue, ought former Jewish residents who left Arab countries in the aftermath of the 1948 war. The timing of mutual restitution is a matter for international negotiations. The Jews can't be expected to leave Israel, where they have made their homes and, in any case, they won't. The land, formerly occupied by Palestinian Arabs in the western half of their country, is now unavailable for settlement. A bi-national state in Palestine, desired by some idealists in the interwar period, has never been a realistic answer to the problem, though it is what the PLO says it wants now. The Palestinian Arab minimalists have set their hearts on the West Bank alone, which is too small to form the nucleus of a state, and any state set up on it would be economically unviable and intrinsically unstable. It is also disputed territory between Israel and Jor- dan and it ought to form the subject matter of negotiations between the two states. A sizeable portion of Israeli public opinion, reflected in the viewpoint of the Israeli Labour Party, is ready in the long term to see a federal relationship between all or part of the West Bank and Jordan. This solution would be greatly assisted by a change in the image of itself which Jordan offers the world to one which recognised its real ethnic character. The economic future of the region clearly depends on cooperative development of available water supplies the Red Sea, the Dead Sea and the River Jordan.' A division of territory between a Palestinian Jewish government in Jerusalem and a Palestinian Arab govern- ment in Amman, on the ruins of the British mandate, may offer the best chance, in an imperfect world, of achieving peace with justice.