The “Indigenous Peoples” in the Land of Israel

Executive Summary

• The Palestinian “Balfour Apology Campaign” to demand the annulment of the Balfour Declaration is part of a consistent policy of denying the rights of the Jews to their national homeland as a people indigenous to the area. Yet the Jewish People for more than two millennia has consistently maintained the strongest claim to be the aboriginal people in its ancestral homeland, and their existence and roots are widely documented, acknowledged, and recognized.
• Christianity grew out of Judaism, and the early Christian existence and settlement in the Holy Land were part and parcel of the Jewish existence and settlement there. Even the 1937 Report of the British “Palestine Royal Commission” acknowledged that “Christians, moreover, cannot forget that Jesus was a Jew who lived on Jewish soil and founded His Gospel on the basis of Jewish life and thought.”
• The Hebrew Bible, the Christian Gospels, and the Muslim Koran all refer to the Jewish People and its connection to the Holy Land. For ancient Greek and Roman pagan writers, Jerusalem was a Jewish city and the site of the Temple, the holy place of the Jews.
• Turkish journalist Sinem Tezyapar, citing passages from the Koran, noted in 2014, “The region where the Jews currently live is, beyond any doubt, their homeland, the land that their forefathers lived in and were buried in; thus, they must be allowed to live there….There is no basis whatsoever that prohibits Muslims from recognizing Jews’ presence in the region and accepting them as a state.”
• Arab and Palestinian leaders are attempting to establish a mythical, new narrative according to which the “Palestinian People” have existed as a distinct people indigenous to the area for thousands of years, predating the Jewish People. Saeb Erekat, the Secretary-General of the PLO, claimed in 2014 that he is a direct descendant of the Canaanite tribes who lived in Israel some 9,000 years ago. Yet according to Erekat’s own Facebook entry, the Erekat clan is from the northwestern Arabian Peninsula and settled in the Palestine area around 1860.
• Over the past years, there has been an increase in international awareness of the rights of indigenous peoples as a basic component of international law and practice. The “United Nations Declaration on the Rights of Indigenous People” acknowledges the historic rights of indigenous peoples to their lands, territories, and resources, and guarantees their continued rights to maintain and protect these lands.

The present, ongoing, and cynical attempt to rewrite and manipulate historic and legal realities would appear to be part of today’s radicalized Arab and Muslim rejection of any non-Muslim historic or legal right to land or any religious heritage apart from Islam.

The purpose of this study is to analyze the character of the Jews as perhaps one of the oldest indigenous peoples who remains a distinct people and to consider the nature and implications of such distinctness in the practical realities of today’s international community.

With the 2017 centenary of the November 2, 1917 Balfour Declaration¹ and its acknowledgment of the right of the Jewish people to their national homeland in Palestine, the international community is witnessing a concerted attempt by the Palestinian leadership to cast doubt and undermine the historic and legal basis, veracity, and justification for the indigenous character of the Jewish people and the rights of the Jews in the area.

This attempt to nullify the Balfour Declaration is not new.

The attack on the Balfour Declaration goes back a long time. For example, Nazi collaborator Haj-Amin al-Husseini, the Mufti of Jerusalem, commemorated the anniversary of Balfour Declaration on November 2, 1943, at a large ceremony which was staged at the Luftwaffe Building in Berlin and attended by the elite of the Nazi leadership. There, the Mufti called for the abrogation of the Balfour Declaration and openly declared his support for the genocide of the Jewish people. His message and contribution to the Nazi propaganda effort² were transmitted to the Arab world by shortwave radio:

… That which draws the Germans closer to us and brings us to their side is the fact that Germany has never invaded any Arab or Islamic land, and its long-standing policy of friendship for the Moslems is known. Germany is also fighting against the common enemy which oppressed the Arabs and Moslems in their different lands. It knew the Jews precisely and decided to find a final solution [entgüldige Lösung] for the Jewish danger, [one] which will contain their harm in the world.³

Similarly, Ahmed Shukeiri, a founder of the Palestine Liberation Organization and the author of the Palestinian Covenant (Jerusalem, 1964), completely rejected the Balfour Declaration. Article 20 of the Palestinian Covenant dismisses any possible religious, national or historical claim of the Jews, as follows:

The Balfour Declaration, the Mandate for Palestine, and everything that has been based on them are deemed null and void. Claims of historical or religious ties of Jews with Palestine are incompatible with the facts of history and the true conception of what constitutes statehood. Judaism being a divine religion is not an independent nationality. Nor do Jews constitute a single nation with an identity of its own: they are citizens of the states to which they belong.⁴

Sadly, the renewed Palestinian campaign appears to be receiving support from countries within the international community.

This disturbing wave of denial both of the Jewish right to its homeland, as well as its character as a people indigenous to the area, was clearly not a momentary reaction suited chronologically to the Balfour Declaration centenary. It is part of a consistent and increasingly vocal policy of denying the rights of the Jews as a people entitled to their national homeland.

It involves, among other things refusal by the Palestinian leadership, both in negotiations and public statements as well as in its conduct in international organizations, to acknowledge the fact that Israel is the national state of the Jewish people and that the Jews are a national people with historic and legal rights in the area.

This policy of denial is evident in the Palestinian leadership’s initiating in the United Nations agency for education and culture, UNESCO, resolutions denying Jewish (or any non-Moslem) connection or national and cultural heritage to Jerusalem and its holy sites as well as to the biblical town of Hebron, home to the graves of the forefathers of the Jewish religion.⁵

This culminated in an October 2016 resolution of UNESCO’s World Heritage Committee entitled “the Old City of Jerusalem and its Walls,” referring to the Temple Mount compound solely by reference to Muslim names, “Al-Aqsa Mosque/Al-Haram Al-Sharif,” defining it as “a Muslim holy site of worship.”⁶

This policy of denial was also evident in the adoption by UNESCO’s World Heritage Committee of a resolution on July 7, 2017, inscribing the old town of Hebron on the World Heritage List as a Palestinian site with no connection to the Jewish people.⁷

In the context of the Balfour Declaration 2017 centenary, the Palestinian leadership launched a “Balfour Apology Campaign.” This included a call to the Arab League by Mahmoud Abbas, president of the Palestinian Authority and Chairman of the PLO, at the Arab League’s September 2016 summit meeting in Nouakchott, Mauritania, to institute “an international criminal case for the crime committed against our nation by the UK for issuing the Balfour Declaration.”⁸

The summit meeting was followed-up by a disturbing statement to the UN General Assembly in September 2016 in which Abbas stated:

100 years have passed since the notorious Balfour Declaration, by which Britain gave, without any right, authority or consent from anyone, the land of Palestine to another people.⁹

Abbas went on to formally demand an apology from the UK for issuing the Balfour Declaration.¹⁰

In October 2016, the UK-based “Palestinian Return Center,” a group affiliated with the Hamas terror organization and acknowledged by the UN as an official NGO (non-government organization), hosted a public seminar in the British House of Lords, condemning the Balfour Declaration and reiterating the call for a British apology.

Fake News and Fake History

The attempt to rewrite and to manipulate historic and legal realities would appear to be part of today’s increasingly radicalized Arab and Muslim rejection of any non-Muslim historic or legal right to land or any religious heritage apart from Islam in the area of the Middle East. This is all the more evident according to the more extreme Muslim views of the Jews.¹¹

The more extreme version is represented by the political and tactical aims of the “Islamic State in Iraq and the Levant” (ISIL or ISIS) advocating a jihadist extension of such a worldview far beyond the Middle East even to Asia and Europe, with the establishment of an Islamic Caliphate.¹²

No less worrying is a parallel tendency in today’s weak and politically-correct Western world which in many ways hesitates to face historic and legal realities.

Hence the importance today in clarifying the historic, religious, and legal basis underlying the indigenous nature of the Jewish people.

The Jewish People

The classical, never-ending question “Who is a Jew?” has figured in Jewish and non-Jewish discourse for thousands of years. It is a basic question involving issues of Jewish identity and self-identification, matrilineal or patrilineal descent. It has cultural, religious, political, genealogical, and personal dimensions. The answer varies according to whether the question is being considered by Jews based on normative religious status or self-identification, or by non-Jews for other reasons. It involves characteristics of ethnicity, religion, history, custom, emotion, and many other aspects.

The internal Israeli issue of “Who is a Jew” has, from the earliest days of Israel’s establishment, involved questions of individual, legal identity. But in the wider, national context, it touches on Israel’s national demographic structure.¹³

However, in the wider, general context of the peoples of the world, the question of who or what are the Jews as a collective and as a People, their inter-relationships, and their historic, political, cultural, and legal status and rights, have rarely been addressed and analyzed.

Can the Jewish People be described as a “unified” collective, with cultural or historical distinctiveness, with historic ties to a particular territory? Or, is it a wider and more diffuse people with some common religious, historic, cultural, and traditional characteristics, but nevertheless geographically dispersed with no clear territorial context?

In light of the long and detailed, and to a large extent, sad history of the Jewish People from virtually the beginnings of time, the answer straddles both these scenarios.

The listing of the thousands of indigenous peoples in the world, as provided by Wikipedia, records Jews as both “an ethnoreligious people in the Middle East” as well as a people that “have largely lived in the Diaspora.”¹⁴

The purpose of this study is to analyze the character of the Jews as perhaps one of the oldest indigenous peoples who still remain a distinct people and to consider the nature and implications of such distinctness in the practical realities of today’s international community.

Furthermore, the aim is to furnish today’s Jewish leadership – both in the Diaspora and in the State of Israel – with possible tools, in the context of the international realities of today, to realize fully the rights and status inherent in the Jews being acknowledged as an indigenous people.

Indigenous Peoples

Indigenous or aboriginal peoples have, from time immemorial, been a factor – if perhaps a passive and latent factor – in national and international society.

While the natural inclination, when thinking of indigenous or aboriginal peoples, is to look at the Native Americans, the Canadian First Nations, Inuit (“Eskimo”), Australian and New Zealand Aboriginals and Maoris, there are other groups that do not always come to mind, but whose indigenous character is a constant element in today’s world society.

The history of indigenous peoples is sad, to say the least, since their historic roots, traditions, cultures, character, and integrity as peoples have in many cases been debased, repressed, and even degraded by colonialism, slavery, racism, genocide, expulsion, globalization, internationalization, and technology.

As we have seen throughout history, indigenous peoples, whether in the Americas, Southeast Asia, and Europe, have been heavily exploited, marginalized, oppressed, persecuted, abused, expelled and dispersed. Their basic integrity and dignity, historical roots, traditions, cultures, and character as distinct peoples have been suppressed and ignored through a relatively lengthy process of discovery, colonization, followed by decolonization, and then independence and democracy. Their lands, resources, and properties were exploited and to a large extent dissipated.

There exist today perhaps thousands of indigenous and aboriginal peoples, tribes, and nations in virtually every part of the world.¹⁵ These peoples, whose respective presence and cultures have existed throughout history, continue to exist. When permitted over the past few decades, they may retain some of their traditional cultural and religious practices, observances, and even geographical presence throughout the world, despite attempts throughout modern history to remove them and to obliterate their culture.

Canadian historian and former government adviser on aboriginal issues, Alan Hertz, in a 2011 essay on “Aboriginal Rights of the Jewish People,” recalls that the Canadian Indian and Inuit (Eskimo) tribes, commonly and realistically called “First Nations,” are still the aboriginal peoples, even though some of these tribes now number only a few hundred individuals. Their status as “first in time” is not lost because they are now just a fraction of Canada’s population. Aboriginal rights are frequently minority rights.¹⁶

A no-less ancient people – the Chinese – share with the Jews a long, ancient and well-documented history of culture and civilization. However, while both the Jewish and Chinese peoples certainly enjoy a long and ancient history, the Chinese people never developed as a single, collective indigenous people.

With respect to the 4,000-year history of China, when one compares the Chinese people during the Shang dynasty, which ruled from circa 1700 to circa 1027 BCE, roughly the same period of the earliest Jewish presence in the areas of the Holy Land, it is impossible to refer to one specific Chinese indigenous people.

China expert Sam Becker, a fellow of the Sino-Israel Global Network & Academic Leadership (SIGNAL), and a graduate of Yale and Taiwan universities, observes that in broad terms, historians often describe Chinese civilization as “continuous” from over 4,000 years ago up to the present day. But the area of China was, in fact, a conceptual amalgamation of multiple smaller kingdoms, tribes, cultures, and peoples, in a constant state of flux throughout history.¹⁷

The last dynasty in China – the Qing Dynasty – ended at the beginning of the 20th century, and before that point, the average “Chinese” considered themselves in terms of their regional and ethnic identities and saw Chinese statehood only as the dynastic organization of the time.

The Jews as an Indigenous People

An obvious, yet rarely considered example of indigenous people by any definition, is the Jewish People, whose history, traditions, and religious and national character have been and continue to be acknowledged by all, whether through the study of the Bible or of the history of civilization.

Like the North American “First Nations,” the early Chinese Han people, and other Asian tribes and peoples, the Jewish People for more than two millennia has consistently maintained the strongest claim to be the aboriginal people in its ancestral homeland despite the fact that as a result of exiles, repression, forced diasporas, Inquisition, and the Holocaust, Jews were but a small percentage of the inhabitants there.

The existence and roots of the Jewish People are widely documented, acknowledged, and recognized. This is evident both in the context of their historic location and settlement in their original tribal areas in the “Holy Land,” including the areas of Judea (origin of the term Jew) and Samaria, and also in the context of their presence in various Jewish dispersions and diasporas caused by periods of exile, persecution, and attempts to obliterate their character as a people (even up to present day).

Jewish peoplehood and its evident linkage to its ancestral homeland predates other religions and reaches back to antiquity.

As borne out by history, Christianity grew out of Judaism, and the early Christian existence and settlement in the Holy Land/Palestine were part and parcel of the Jewish existence and settlement there.

In this context, even the 1937 Report of the British “Palestine Royal Commission” acknowledged that “Christians, moreover, cannot forget that Jesus was a Jew who lived on Jewish soil and founded His Gospel on the basis of Jewish life and thought.”¹⁸

The Hebrew Bible, the Christian Gospels, and the Muslim Koran all refer to the Jewish People and its connection to the Holy Land. Since antiquity, there has never been a time when Jews were absent from the Holy Land. Even when Jewish numbers dropped to a low point, the Holy Land was still home to rabbis and rabbinic study famous throughout the Jewish world. With around 2,600 years of continuous history, the Jewish People kept a subjective-objective identity that always included significant demographic and cultural links to its native land.¹⁹

The documented historical record of continuous Jewish presence and existence in the area described as the “Holy Land” or “Palestine,” in addition to the writings in the scriptures which speak for themselves, are borne out in historic writings of early Greek visitors to the area that appeared in parallel with the scriptures.²⁰

References to Jewish presence from nearly 20 different sources, dating from the third century BCE to the third century CE, are included in Professor Menachem Stern’s comprehensive anthology of Greek and Latin Authors on Jews and Judaism.²¹

For ancient Greek and Roman pagan authors, Jerusalem definitely was a Jewish city by virtue of the fact that its inhabitants were Jews, it was founded by Jews and the Temple, located in Jerusalem, was the center of the Jewish religion.

In these sources, Jerusalem appears in several contexts: foundation narratives, descriptions of and links to the Temple, historical events, usually relating to invasions and captures of the city, physical descriptions, and the derogatory use of the term “Solyma” by Roman writers after its destruction by Titus in 70 CE. It is noteworthy that despite the negative views of Jews and Judaism expressed by authors such as Manetho, Apion, Tacitus and Juvenal, the Jewish identity of Jerusalem is always clear and never a subject of dispute. These ancient texts, therefore, disprove recent attempts by Muslims and others to deny the historic connection of the Jewish people to Jerusalem and the location of the Temple in Jerusalem through fabrications and lies.

The “father of history,” Herodotus, who visited Egypt under Persian rule in the 450s BCE, wrote extensively about the Egyptians and referred to the “Syrians of Palestine” who were circumcised and were assumed to be the Jews. In fact, it is likely that it was Herodotus who coined the name “Palestine,” namely, the area of the Land of Israel, as his encounter was with the descendants of the Philistines who inhabited the coastal towns of Gaza, Ashdod, and Ashkelon. The Jews inhabited the landlocked region of Jerusalem and its surrounding hills, known as Judea.”²²

For ancient Greek and Roman pagan writers, Jerusalem was a Jewish city and the site of the Temple, the holy place of the Jews. It was founded in the remote past by ancient Jews, influenced by the theology, laws, and customs established by Moses, as he led a “pariah people” out of Egypt.

The Temple was the religious center of the Jews and Jerusalem. While strongly fortified, it was attacked on several occasions by Greeks and Romans. Although difficult to capture because of its natural circumstances and its fortifications, the Romans invaded it and later destroyed both the city and the Temple.

Canadian historian, researcher, and lawyer Alan Hertz, in his essay “Aboriginal Rights of the Jewish People” (2011)²³ summarizes as follows:

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 personalities like Kings David and Solomon, famous from the Hebrew 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. But all of those other Peoples have long since vanished from the world. Nobody today is entitled to make new claims on their behalf, including by reason of a supposed genetic descent that is only recently alleged and without basis in history and genome science.

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.

From the initial Muslim conquest of the Holy Land in the first half of the 7th century CE, Jews there suffered persistent discrimination and periodic persecution. However, neither the Arab People nor subsequent invaders succeeded in eradicating the local Jewish population or bringing an end to the links between the Jewish People and its aboriginal homeland.

Dr. Dore Gold, President of the Jerusalem Center for Public Affairs and an acknowledged expert in Middle Eastern studies and international relations, cites a leading commentator on the Koran and one of Islam’s greatest historians, Abu Ja’far Muhammad bin Jarir al-Tabari (839-923 CE), who, in his account of the conquest of Jerusalem by the second caliph, Umar bin al-Khattab, describes him heading toward “the area where the Romans buried the Temple [bayt al-maqdis] at the time of the sons of Israel.”²⁴

Umar himself allowed the Jews to return to Jerusalem after the Romans and Byzantines kept them away for 500 years. As late as 1950, the Supreme Muslim Council in Jerusalem, once under the control of the notorious Mufti, Hajj Amin al-Husseini, actually published a guidebook that gave the history of the Temple Mount, establishing that “its identity with the site of Solomon’s Temple is beyond dispute.”²⁵

In an article criticizing current tendencies among Muslim communities to deny Jewish historic, cultural, and religious ties to the Holy Land in general, and the holy sites in Jerusalem in particular, Turkish journalist Sinem Tezyapar opines:

Widespread rejection of Jews’ historical, cultural, and religious ties to the Holy Land is one of the most common but facile narratives throughout Islamic majority countries. Despite the fact that this negation of Jews’ rights in the Holy Land masquerades as an Islamic cause or even as an imperative of piety, there is no truth to the rejectionists’ assertions that can be based on Islamic grounds.

The region where the Jews currently live is, beyond any doubt, their homeland, the land that their forefathers lived in and were buried in; thus, they must be allowed to live there. What is perhaps not well-known is that from an Islamic point of view, there is no basis whatsoever that prohibits Muslims from recognizing Jews’ presence in the region and accepting them as a state. In fact, the Koran itself provides clarification on this pivotal issue, not only referring to the connections of the Jews with the Holy Land but also to the legitimacy of their presence until the Last Day.²⁶

In this context, Tezyapar cites passages from the Koran:

Remember Moses said to his people: “O my people! Call in remembrance the favor of Allah unto you, when He produced prophets among you, made you kings, and gave you what He had not given to any other among the peoples. O, my people! Enter the Holy Land which Allah hath assigned unto you, and turn not back ignominiously, for then will ye be overthrown, to your own ruin. (Koran, 5:20-21)

We settled the Children of Israel in a beautiful dwelling-place and provided for them sustenance of the best. (Koran, 10:93)

In a similar vein, Jerusalem analyst and writer Nadav Shragai, basing himself on sources including archeological research by Dr. Gavriel Barkai,²⁷ Dan Bahat,²⁸ the writings of Haim Merchavia,²⁹ and the publication “Three Religions and their Contribution to Jerusalem and the Land of Israel”³⁰ writes:

The City of David is the area identified by archaeologists and historians as the location of King David’s capital some 3,000 years ago. David’s son Solomon established the First Temple on the summit of Mount Moriah, where Isaac was bound for sacrifice, a location known today as the Temple Mount.

Archaeological excavations in the City of David took place during Ottoman rule, as well as under the ensuing British Mandatory rule, and have continued under Israeli rule as well, unearthing discoveries of Jewish life and artifacts from various ancient periods.

Adjacent to the City of David is an area called the King’s Garden, described in the books of Nehemiah and Ecclesiastes, as well as in many other historical sources. Scholars, visitors and pilgrims have attributed the area to King David and Solomon.³¹

Shragai points to further historic empirical evidence of Jewish settlement in the area about Rachel’s Tomb, located on the northern outskirts of Bethlehem some 460 meters south of Jerusalem’s municipal boundary. The site has been identified for over 1,700 years as the grave of the Jewish matriarch Rachel. The copious literature of Jewish, Christian, and Muslim pilgrims identifies and documents the spot as the place where Rachel was buried.³²

Alan Hertz documents the Jewish People’s claim to its ancestral homeland reaching back to antiquity, antedating the post-Classical birth of both Europe and the Islamic civilization. He traces an enormous body of archaeological and other historical evidence demonstrating that the Jewish People, like the Greek, Armenian, or Han Chinese Peoples, is among the oldest of the world’s Peoples.

Documents from the Cairo Geniza reveal much about Jewish life in the Holy Land from the Muslim conquest in the early 7th century CE to the Crusader victory in 1099. During the Crusader period, Acre was an important center for Jews, about whom we learn from a variety of sources, including accounts by the 12th-century Jewish travelers Benjamin of Tudela and Rabbi Petachia of Ratisbon.

During the Mamluk period (1250-1516), Jerusalem was the seat for a deputy to the Egypt-based nagid who headed all the Jewish communities of the sultanate. Fifteenth-century Holy Land Jews also feature in the letters of Rabbi Obadiah ben Abraham Bertinoro and the travelogues of Christian pilgrims like Arnold van Harff, Felix Fabri, and Martin Kabatnik.

16th-century Ottoman registers (defter-i mufassal) record the names of Jewish tax-payers. Evidence also comes from documents like some late 18th-century account books of the Jerusalem Jewish community. With the 19th century, travel books and consular reports join a flood of other sources about local Jews who also told their own stories. Though the number of Jews grew absolutely, they remained a fraction of the total population.³³

Palestinian Peoplehood

Despite all the above, Arab and Palestinian leaders recently appear to be attempting to establish a mythical, new, and manipulative narrative according to which the “Palestinian People” have existed as a distinct people indigenous to the area of Biblical Palestine/Land of Israel/Holy Land, for thousands of years. So much so that they even predate the Jewish People and constitute the indigenous people in the area.

This assertion recently received prominence in international political and media circles with several curious claims by Saeb Erekat, the Secretary-General of the PLO, head of the Palestinian negotiating team, and long term participant in negotiations with Israel since the Madrid Conference of 1991. He claimed at an international security conference in Munich on February 1, 2014, that he is a direct descendant of the Canaanite tribes who lived in Israel some 9,000 years ago:

I am the proud son of the Canaanites who were there 5,500 years before Joshua bin Nun burned down the town of Jericho.³⁴

This was immediately controverted by several authoritative sources, citing Erekat’s own Facebook entry describing the provenance of the Erekat clan from the Huweitat region of the northwestern Arabian Peninsula, which settled in the area of ancient Palestine around the year 1860 in the village of Abu Dis, Erekat’s place of birth.³⁵

Even more amazing is the statement by a member of the Jordanian Parliament, Shiekh Mousa Abu Sweilam, on February 3, 2014, according to which:

The Palestinians are the original owners of Palestine, who lived on its land when they moved from the western Mediterranean basin to its east in 7000 BC.³⁶

This is surely a curious statement in light of the known historic fact that the Muslim presence in the area commenced only in the seventh century CE.

Dr. Ahmed Tibi, a member of Israel’s Knesset, is quoted in the Haaretz newspaper (January 19, 2014) stating:

… the Arab citizens of Israel are an indigenous population.³⁷

These claims have been widely refuted and criticized³⁸ as nothing more than irresponsible propaganda.

More Recent Historic Documentation

The indigenous nature of the Jewish People and its inherent linkage to the territory has been acknowledged by leading commentators and has served as the basis for a number of recent important historic international documents, recognizing the Jewish People’s long-affirmed and continuing links to its aboriginal homeland.

In her article “The National Rights of Jews,” Prof. Ruth Gavison, professor (emeritus) of human rights at the Faculty of Law of the Hebrew University of Jerusalem states:

It is … justified for Jews to have sought revival of political independence in their ancient homeland – Zion. Thus Zionism is not a colonial or an imperialist operation in the sense analyzed and condemned by modern political philosophy. This is true despite the fact that at the beginning of the twentieth century Jews were not a critical mass in that country. The presence of Arab population in Israel was not a conclusive reason against this move because that community never had enjoyed political independence, and Jews were at liberty to seek political revival in the only place in the world that had been their homeland.³⁹

The British promise to create a national home for the Jewish People encapsulated in the 1917 Balfour Declaration⁴⁰ and the 1920 San Remo Resolution of the post-World War I Allied Supreme Council, which incorporated the Balfour Declaration and Article 22 of the Covenant of the League of Nations.⁴¹ The documents constitute the bases upon which the British Mandate for Palestine was constructed.⁴² The commitment was given not so much on the basis of regional politics and local demographics, but explicitly due to “the historical connection of the Jewish People with Palestine.”

The connection is acknowledged in several important and significant statements, including:

• The third preambular paragraph of the Palestine Mandate:

Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country;

• Statement by Sir Winston Churchill dated March 28, 1921:

It is manifestly right that the Jews, who are scattered all over the world, should have a national centre and a National Home where some of them may be reunited. And where else could that be but in the land of Palestine, with which for more than 3,000 years they have been intimately and profoundly associated? We think it would be good for the world, good for the Jews, and good for the British Empire. But we also think it will be good for the Arabs who dwell in Palestine….⁴³

• The 1922 British Government White Paper, authored by Churchill:

… it is essential that it [the Jewish community in Palestine] should know that it is in Palestine as of right and not on the sufferance. That is the reason why it is necessary that the existence of a Jewish National Home in Palestine should be internationally guaranteed, and that it should be formally recognized to rest upon ancient historic connection.”⁴⁴

Similarly and more recently, former U.S. President Barack Obama acknowledged in his speech to the UN General Assembly on September 21, 2011, that:

The Jewish people have forged a successful state in their historic homeland.⁴⁵

International Recognition of Indigenous Peoples and Rights

It has only been in the past few years that the international community has directed its attention to the fact that the rights of indigenous peoples, whether to their historic territories and traditional lands, natural resources in such territories and lands, as well as their own distinctive culture and languages, need to be acknowledged, recognized, and protected both nationally and internationally.

Over the past years, there has been an increase in international awareness of the rights of indigenous peoples as a basic component of international law and practice.

The issue has recently been the subject of national and international introspection intending to seek ways of solving ongoing issues and relationships between indigenous peoples and governments concerned, on the one hand, and indigenous peoples and the international community, on the other.

These rights have recently been crystallized and codified into the “United Nations Declaration on the Rights of Indigenous People.”⁴⁶ This declaration acknowledges the historic rights of indigenous peoples to their lands, territories, and resources, and guarantees their continued rights to maintain and protect these lands, with entitlements to compensation, restitution, or redress for lands confiscated.

As an annex to a UN General Assembly resolution, this declaration, adopted by a majority of 144 states (Israel not participating in the vote), is not a binding, legal document, but is widely regarded as representing the consensus within the international community.

While most states have indeed acknowledged or accepted this declaration, Israel was absent during the 2007 session of the General Assembly at which it was adopted (which took place on a Jewish festival).

Israel has yet to declare its acceptance of the declaration.

UN Declaration on the Rights of Indigenous People

The United Nations determines among other principles the following:

Article 10

Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 26

1. Indigenous peoples have the right to the lands, territories, and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories, and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories, and resources.

Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.⁴⁷

Definition of Indigenous Peoples

On the question of the definition of indigenous peoples, the international community has refrained from adopting a definitive definition of the concept of “indigenous peoples.” The prevailing and accepted view has been that no formal universal definition of the term is necessary, given that a single definition would inevitably be either over- or under-inclusive, making sense in some societies but not in others.

However, for practical purposes, a commonly accepted understanding of the term was provided by Prof. Jose R. Martinez Cobo, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, in his study on the Problem of Discrimination against Indigenous Populations:

Indigenous communities, peoples, and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions, and legal system.

This historical continuity may consist of the continuation, for an extended period reaching into the present of one or more of the following factors:

• Occupation of ancestral lands, or at least of part of them;
• Common ancestry with the original occupants of these lands;
• Culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an indigenous community, dress, means of livelihood, lifestyle, etc.);
• Language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in the family, or as the main, preferred, habitual, general or normal language);
• Residence in certain parts of the country, or in certain regions of the world;
• Other relevant factors.

On an individual basis, an indigenous person is one who belongs to these indigenous populations through self-identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group). This preserves for these communities the sovereign right and power to decide who belongs to them, without external interference.⁴⁸

On the issue of self-definition by indigenous peoples, Article 33 of the UN Declaration places the prerogative of determining identity solely in the hands of each indigenous people, according to its customs and traditions, including the prerogative to take-up citizenship of the states of their residence:

1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.
2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

The definition is wide enough to cover the indigenous Jewish presence in the area, which has defined ancestral lands, ethnic identity and continued historical continuity and existence as a people to the present day.

On the question of the protection and restoration of indigenous rights, the declaration states:

Article 28

1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories, and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories, and resources equal in quality, size, and legal status or of monetary compensation or other appropriate redress.

Logically and from its text, the UN Declaration, as drafted, would appear to cater principally to those indigenous peoples living today as a persecuted or disadvantaged minority, seeking to restore and/or maintain its historical rights within the established framework of a national state entity.

However, this would not prejudice a claim by an indigenous people that is not necessarily a persecuted or disadvantaged minority.

While part of the Jewish People exists within its own sovereign national State of Israel, with its own lands, resources, and culture, others reside outside the state of Israel in a large Jewish Diaspora, and in the West Bank areas of Judea and Samaria, territory that is disputed and subject to negotiation as part of the Middle East peace process.

In light of all the above and in the event that the State of Israel were to declare its formal acknowledgment and acceptance the declaration, Israel could stress that it considers the UN Declaration on the Rights of Indigenous Peoples to represent a clear acknowledgement of the indigenous character of the Jewish people in its totality and due recognition of its historic rights in all those spheres set out in the Declaration.

By the same token, with a view to addressing some essential aspects relating to the character of the Jewish People as an indigenous people that appear to be missing from the UN declaration, and with a view to avoiding misunderstanding, Israel could declare that the preambular reference to peoples who have suffered from “historic injustices as a result, inter alia, of, their colonization and dispossession of their lands, territories, and resources”⁴⁹ is directly relevant to the Jewish People. The historic injustices suffered by the Jewish people throughout its long history, include exiles, banishment, dispersion, Inquisition, forced conversion, Holocaust, and forced diaspora.

Similarly, the preambular recognition⁵⁰ of the need to respect and promote the inherent rights of indigenous peoples deriving from their cultures, spiritual traditions, histories, and philosophies, especially as related to their lands, territories, and resources, would be considered to be fully applicable to the Jewish people.

Particularly important is the reference in both the preamble and Article 37 anchoring the basic inherent rights of indigenous peoples that emanate from “treaties, agreements, and other constructive arrangements concluded with States or their successors” and calling for States to honor such treaties, agreements, and arrangements.

Israel considers that this provision is specifically applicable to those international documents recognizing and setting out the historic rights of the Jewish People to their national home. These include the 1917 Balfour Declaration, the 1920 San Remo Declaration, and the 1922 League of Nations Mandate Instrument for Palestine, the continued validity of which is reaffirmed in Article 80 of the United Nations Charter, which states: “…nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples…”⁵¹

The reference in Articles 8 and 10 to actions aimed at harming indigenous peoples and violating and undermining their rights are particularly relevant to the sufferings of the Jewish people throughout history and are no less relevant today as regards incitement to racial hatred, discrimination, and anti-Semitism, especially in the international arenas including within the UN system and in UN General Assembly resolutions.

The distinctive spiritual relationship of indigenous peoples with their traditionally owned, occupied, or otherwise used or acquired lands (Article 25) represents the historic, religious Jewish connection with the Holy Land.

Israel would obviously need to stress the importance that it attributes to the requirement in Article 42 of the Declaration according to which the United Nations and its bodies, including the Permanent Forum on Indigenous Issues Specialized Agencies and States, promote and respect the full application of the Declaration and follow up its effectiveness.

Israel would view this provision particularly applicable to the numerous annual political resolutions adopted by an automatic majority in the UN General Assembly and other UN bodies unjustly singling out Israel and denying the rights of the Jewish People with respect to its indigenous areas.

Conclusion

The purpose of this paper is threefold:

• It is intended to refute and debunk the groundless and transparent attempt by the Muslim and Arab countries, espoused by the Palestinian leadership and supported by elements within the international community, to deny the Jewish historic, legal, and religious heritage in its traditional homeland and Holy sites.
• It sets out the historic and legal nature of the Jewish people as one of the oldest indigenous peoples that still exists and thrives.
• It is intended to acknowledge the indigenous nature of the Jewish People and to link this acknowledgment to its entitlement within today’s international community to full recognition as an indigenous people and the concomitant rights recognized by the international community for all indigenous peoples.

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Notes