HL Deb 10 November 1921 vol 47 cc286-91

LORD PARMOOR rose to ask His Majesty's Government whether in view of the fact that the Turkish Treaty has not been signed, and that the Mandate under which Palestine is to be governed by Great Britain has not been approved by the League of Nations or accepted by Parliament, Palestine is in the position of occupied enemy territory; and whether any powers exist to give legal sanction to the alienation of Church property in care of the citizens of foreign countries.

The noble Lord said: My Lords, when the question was raised by my noble friend, Lord Sydenham, the other day as regards the alienation of certain properties belonging to the Greek Church Patriarchate in Jerusalem, I ventured to ask a supplemental question on what was perhaps a legal and technical topic. The noble Duke who is, I think, going to answer to-day, on the last occasion, with great courtesy, not really having had notice of the Question, gave a partial answer which contained some of the information which I desired. His answer was, if I am right—and I have looked into the OFFICIAL REPORT again—that the alienation of this property was being carried out under what he called an Ordinance of the High Commissioner, endorsed by the Secretary of State for the Colonies.

That only puts the matter one step further back. What authority was there to issue this Ordinance at all? If the noble Duke will look at the terms of my Question he will see what I suggest is a reason why no such Ordinance could possibly have legal validity. He will see it pointed out in that Question that, in the first place, there has been no ratification of the Turkish Treaty, and secondly, that the Mandate under which Palestine is to be governed by Great Britain has not been approved by the League of Nations or accepted by Parliament. That is the fact, and therefore Palestine, at the present time, is in the position of occupied enemy territory. Now, if Palestine is in the position of occupied enemy territory, one of the first principles of International Law that we have always tried to enforce is that the occupiers are not to interfere with the existing Territorial Law, except so far as may be necessary for military purposes. What is the existing Territorial Law? The existing Territorial Law is that this property is inalienable. There is no question about it under the Moslem Law, which would be the existing Territorial Law. This property could not he alienated; at the outside, it could he exchanged under certain conditions, or leased for a period of three years.

What I want the noble Duke to tell me, if he can, is on what authority has this Ordinance been made, an Ordinance which appears to me to be entirely inconsistent with the principles of International Law. I may say that, looking into this matter again to-day in a work of great authority, I found the statement that the right to alienate property by a mere occupying force had not been brought into operation since the time of William the Conqueror, in 1066. That is going back some way for a precedent. But, as a matter of fact, under the Hague Conference and by every other principle of International Law that has been acknowledged in modern times, a property of this kind cannot be touched. While you are in occupation of enemy territory, you cannot act except under the Territorial Law of the country; you have to wait for new conditions to come to the front under which a new law can be brought into operation. I do not want to detain your Lordships at any length. I merely wish to ask the noble Duke to inform me what is the authority for this Ordinance upon which he relies, and how it is applicable when the Treaty has not been ratified and the Mandate has not so far been approved? I beg to ask the Question on the Paper.


My Lords, I agree with what the noble and learned Lord has just said, and I think, as I stated last week, that this great sale of the property of the Orthodox Greek Church was illegal under the terms of International Law. The so-called military administration of Palestine, which was really a civil administration under an experienced military officer, carefully avoided interfering with the operation of Turkish Law while it was in power. It merely prohibited sales of land as a temporary measure of protection to the impoverished people of Palestine against possible speculation in landed estate.

The status of Palestine in International Law remains unchanged since the military administration was removed under pressure from the Zionist Party. I have a curious piece of evidence which shows that one Department of State, at least, recognises the correct status of Palestine. There is a Palestinian married to an English woman who has since January, 1914, been trying to obtain naturalisation in this country and has failed. In June of last year he was directed by the. Home Office, in a letter which I have, to describe himself as an Ottoman, with "Palestinian" in brackets, and that shows clearly that the Home Office at that date—June of last year—realised the position which the Colonial Office and the High Commissioner in Palestine seem to have ignored.

Moreover, we have just been told by the noble Earl who leads the House that you cannot try Turkish subjects because the Treaty of Sevres has not been signed. Can you, before the signature of that Treaty, sell on a large scale the property of Ottoman subjects, who are still Ottoman subjects, although the country is under military occupation? I maintain that Palestine is still Ottoman territory in British military occupation, and, if so, these sales of land, and some other proceedings, are ultra vires. I hope the noble Duke will be able to persuade me that that view is quite wrong.


My Lords, in reply to a Question by the noble Lord, Lord Sydenham, I gave your Lordships last week a brief account of the financial difficulties of the Orthodox Patriarchate of Jerusalem, and of the steps which have been taken by the Government of Palestine to overcome them. It is quite true that the present legal position of His Majesty's Government in Palestine is that of a power occupying enemy territory. I am advised that, from a strictly legal point of view, the action taken by His Majesty's Government, through the Palestine Government, with respect to the Patriarchate is entirely legal; that is, that it cannot be questioned by the Courts and will be validated in due course by the necessary legal processes when the military occupation comes to an end. I am informed that the Ordinance regulating the affairs of the Patriarchate is perfectly legal, in that it is an order of the High Commissioner who is in the position of a competent military authority.

On the other hand, it is perfectly true that this action goes somewhat beyond that which is recognised by international jurisprudence as the normal functions of an ordinary occupying power. But I would represent to your Lordships that His Majesty's Government. is not an "ordinary" occupying power. It has been entrusted by the Supreme Council of the Allies with the administration of Palestine, pending the coming into force of the Treaty of Sevres, and consequently considered itself authorised, and indeed bound, to set up a civil administration in the country for the purpose of discharging the usual functions of Government.

As I told your Lordships last week, the Patriarchate was faced, when the civil Government of Palestine came into being, with a very large number of debts which it could not meet. It would have been open to His Majesty's Government to limit itself to the ordinary functions of an occupying power and refuse to intervene; but it was clear that, as soon as civil Courts were set up, all or many of the creditors of the Patriarchate would have taken steps to recover these debts by the ordinary legal processes. There is no doubt that judgment would have been given in their favour. The Patriarchate might have been forced into bankruptcy.

I need not enlarge on the consequences which would have ensued. The whole income of the Patriarchate would have been diverted to the receivers in bankruptcy; the schools, hospices and other charitable institutions of the Patriarchate would have been closed, and the Patriarch, Synod and members of the Confraternity of the Holy Sepulchre, and the other monasteries attached to it, would have been forced to depend on casual charity for their daily bread. I think that your Lordships will agree that the Government in declaring a moratorium in favour of the Patriarchate did the only thing that it could have done, even if in so doing it overstepped what, by a narrow interpretation, might be regarded as the usual functions of an occupying Power.

On the other hand, it was clearly impossible to leave matters at that., to protect the Patriarchate in perpetuity from its creditors, and to place it in a position of being able to continue to contract further liabilities, and yet be under no obligation to redeem them. In common justice to the creditors, it was necessary, as they were being deprived of their usual legal remedies against their debtor, to propound some alternative method of repayment. The Patriarch and Synod were not capable, without the assistance of the Government, of either propounding such a method of repayment or even establishing an equilibrium between their normal revenue and expenditure.

I have already described to your Lordships the steps which the Commission appointed by the Government of Palestine are taking to effect this purpose and in taking them they have, as I informed your Lordships last week, the concurrence of the Advisory Council and of the Patriarch and Synod. These steps, though on a strict interpretation of the law legal ones, are nevertheless beyond the normal functions of an occupying Power: but I submit to your Lordships that, had they not been taken, the Patriarchate would have been in a far worse position than it now is. According to International Law a country in foreign occupation must be administered according to its own law, but the occupying Power can modify this law by orders issued by the competent military authority, and this has been done in regard to many matters in Palestine, including the Patriarchate.


If I may say one word in answer to the noble Duke, I thank hint very much for the detailed answer that he has given to my Question, but if we look beneath the surface I think I am not going too far if I say that he, speaking on behalf of His Majesty's Government, admits that what has been done in Palestine cannot be regarded as legal under International Law, and will have to be validated by subsequent proceedings.


My reply does not admit that it is illegal action. The words I used were: "I am advised that front a strictly legal point of view the action taken by His Majesty's Government, through the Palestine Government, is entirely legal."


Will the noble Lord repeat the next passage, where he stated that it cannot be questioned by the Courts and will be validated in due course by the necessary legal processes. It will have to be validated in due course. In other words, it is not valid at the present time. I think I am not at all misinterpreting what the noble Duke says, and I think it is perfectly clear that there is no sanction whatever for what is being done at the present time. There are other ways in which matters of this kind might be carried out, if necessary, in accordance with International Law, and I only want to insist upon it for this reason, that there was never a. time in the world's history when the rules of International Law should be more rigidly observed, and the difficulty is that they have not been observed in many directions.


I think the last paragraph of my reply made it clear that there are powers by which the High Commissioner, representing the military authority, can modify the law. "The occupying Power can modify the law by orders issued by the competent military authority," and therefore the action taken was in that respect legal.


I do not wish to carry the controversy further, but I do not think I will find that that is what "modification" means in terms of International Law.