“United Jerusalem is Israel’s capital. Jerusalem was always ours and will always be ours. It will never again be partitioned and divided.”
So proclaimed Israeli PM Netanyahu on Jerusalem Day – Israel’s celebration of the end of the 1967 War and the conquering Jordanian controlled East Jerusalem. Obviously, such remarks don’t bode well for the peace talks. Indeed, Palestinian chief negotiator, Saeb Erekat responded by saying that Netanyahu’s comments were akin to the proclamation of ‘eternal’ conflict. The Palestinians want the Palestinian dominated East Jerusalem to be the capital of the future Palestinian state; Israel wants the world to recognize the Jewish state’s legal claim to the entirety of the holy city. The final status of the city will need to be negotiated and will likely alter status quo. Currently, Israel controls the western part of the city (indeed, the government offices are located there) and the eastern part (outside of Israel, East Jerusalem is generally considered as occupied territory). The standing of all of Jerusalem in international law predictably looks much different than the current arrangement; indeed international law looks at Jerusalem in a different light than both the Palestinians and Israelis.
The ambiguous legal status of Jerusalem dates back to the end of the British Mandate of Palestine in 1948. The year before the end of the Mandate, the UN – at Britain’s request – discussed the position and importance of the Holy City to Jews, Christians and Muslims. The result was UNResolution 181. The General Assembly Resolution – also known as the Palestine Partition Plan – sought to divide the Mandate into an Arab state and a Jewish state – corpus separatum. Jerusalem, per 181, was to be given international status, to be administered by the UN. The resolution was adopted by the Zionist movement and a handful of Palestinian parties, but rejected by the powerful Arab League and the Palestine Arab Higher Committee. International law still holds Jerusalem under Resolution 181 as the correct legal status of the city.
The day before Britain withdrew from Palestine, Israel issued its declaration of Independenceand soon after was invaded by the Arab armies. The short war resulted in an armistice agreement in 1949. When Britain withdrew, it refused to give authority of Jerusalem (or Palestine in general) to any party; thus, at the end of the war, Israel had sovereignty over Western Jerusalem and Jordan had the Eastern part of the city. Interestingly, the Armistice signed between Jordan and Israel, included provisions concerning Jerusalem, but refrained from officially giving control of the city (or parts of the city) to either side. The agreement simply stipulated that Jordanian forces were to remain in the Eastern part of the city and Israeli troops were to remain in the West. UN troops (mainly American, British and French) were stationed along the newly created Green Line to enforce the Armistice.
In 1950, Jordan unilaterally annexed the West Bank and East Jerusalem (Britain recognized the West Bank, but not Jerusalem. Pakistan was the only country to recognize Jordan’s legal claim to East Jerusalem). Thus, in 1950, in the eyes of international law and despite the Jordanian claim to East Jerusalem, the entire city of Jerusalem was considered an undivided, international city. Though Israeli and Jordanian forces were controlling and administering the western and eastern parts (respectively) of the city, the entire Holy City was legally neither part of Israel or Jordan.
[tweetmeme] The uneasy Armistice endured until the 1967 war, during which Israel took control of East Jerusalem, the West Bank, Gaza, the Sinai Peninsula and Golan Heights. The post-1967 occupation of the West Bank, Gaza and Golan Heights (the Sinai was returned to Egypt in 1978) created a number of purposefully ambiguous legal resolutions meant to move towards a permanent peace agreement. Immediately after the war, the UN passed Resolution 242 – perhaps one of the most divisive legal decisions.
Resolution of 242 was important for several reasons. First, it established, in the preamble, that the acquisition of territory through war was illegal:
Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security,
This clause was directed at the Israeli acquisition of the aforementioned territories (Israel grew by a factor of three as a result of the war). The resolution also called for Israel to withdraw from the territories it acquired in the war:
1. Affirms that the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:
(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict*
Thus, the legal standing of the Holy City after the 1967 war continued to be based on corpus separatum and the internationalization of the entire city. However, because Resolution 141 was never implemented and the control of the city was disputed before the 1967 War, Israel has claimed that it had sovereignty of West Jerusalem in 1948 and Jordan only had sovereignty of East Jerusalem through acts of aggression. Israel maintains that the acquisition of Jerusalem in 1967 was not annexation, but rather reintegration of territory that was taken in 1948 through Jordanian aggression.
After the War of 1973, the UN issued Resolution 338, which reiterated Resolution 242, calling for Israel to withdraw from the territories it acquired in 1967.
In 1980, several important measures concerning Jerusalem were enacted in the Israeli Knesset and the UN. The first was UNSC Resolution 476, passed by the Security Council on 30 June. 476 called for Israel to resist making any unilateral physical or administrative changes in occupied East Jerusalem:
Reconfirms that all legislative and administrative measures and actions taken by Israel, the occupying Power, which purport to alter the character and status of the Holy City of Jerusalem have no legal validity and constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East
One month later, on 30 July, the Israeli Knesset passed the Jerusalem Law, which highlighted Israel’s claim to all of united Jerusalem and established the city as the capital of Israel, calling the disputed city Israel’s ‘eternal and indivisible’ capital. Importantly, the UNSC passed Resolution 478, calling Israel’s Jerusalem Law illegal and urged all UN members to remove their diplomatic teams to Israel from the Holy City. Both UNSC Resolutions 476 and 478 reconfirmed the commitment of international law to the premise that “the acquisition of territory by force is inadmissible.” Thus, according to international law, in 1980, Jerusalem was an undivided city that was under no one state’s jurisdiction. Of course, the de jure was far from the de facto.
Today, the situation is nearly identical to 1980. The international community remains united in its legal status (Jerusalem is an international city) and Israel remains steadfast in its opinion that all of Jerusalem is in Israel. One doesn’t need to look far to find Israelis who rally around the call for a united, Israeli Jerusalem; indeed, PM Netanyahu’s party, Likud, calls Jerusalem the undivided capital of Israel:
Jerusalem is the eternal, united capital of the State of Israel and only of Israel. The government will flatly reject Palestinian proposals to divide Jerusalem, including the plan to divide the city presented to the Knesset by the Arab factions and supported by many members of Labor and Meretz. The government firmly rejects attempts of various sources in the world, some anti-Semitic in origin, to question Jerusalem’s status as Israel’s capital, and the 3,000-year-old special connection between the Jewish people and its capital. To ensure this, the government will continue the firm policies it has adopted until now.
In contrast, the United Nations very clearly holds the view that Israel’s claim to Jerusalem is illegal. In addition to the myriad resolutions stating as much, there are also clear messages sent by the UN calling for Jerusalem to be a shared or international city, acting as the capital for both Palestine and Israel. The official UN position is based on the 1947 Resolution (181) dividing Palestine and leaving Jerusalem to be administered by the UN as an international city.
The United States – by far Israel’s biggest ally – maintains that the status of Jerusalem should be resolved through direct negotiations between the two parties and should not be imposed by an outside source. The US does not recognize Jerusalem as Israel’s capital, though, and backs idea, based on Resolution 181, that Jerusalem should be an international city. Furthermore, official US policy holds that the Holy City has not been under any state’s sovereignty since the end of the British Mandate in 1947.
The EU recently voted to support the division of Jerusalem while Britain recognizes Israeli control, though not sovereignty over west Jerusalem and considers Israel’s control of East Jerusalem to be occupation. Saudi Arabia, Belarus, Japan, Portugal, Norway, Canada,France and Italy all stand behind the rejection of Israel’s legal reading of the Jerusalem issue and support the internationalization of the city (or a negotiated settlement as part of a comprehensive peace agreement). There are no international embassies in Jerusalem (Paraguay and Bolivia have embassies outside the city) as all 13 embassies that existed in Jerusalem in 1980 moved to Tel Aviv after Resolution 478. There are a handful of countries with consulates in Jerusalem – technically registered to no one nation – while the main embassies remain in Tel Aviv.
The legal history of the Holy City is certainly complex and is marked by the willingness of the international community to put off the Jerusalem question, preferring to instead revert back to 181 and wait for the situation to be settled by Israel and Palestine. Of course, a fair resolution to the Holy City conflict can be hammered out between both sides. Yet the statements by the Israeli state since the 1980’s has demonstrated a clear hesitancy to release any part of Jerusalem to Palestine or even to international jurisdiction (to put it lightly). If Israel and Palestine cannot reach an agreement concerning Jerusalem, is it possible that the international community steps in to enforce the international legal interpretation of the issue? Or, is it more likely that international law will change to accommodate the reality of an increasingly Judaized Jerusalem? Perhaps the most likely result of perpetual discord on the Jerusalem question is the continued schism the de facto and de jure realities of the city.
*The UNSC Resolution 242 is incredibly ambiguous. In the English version of the text, there is no article before the word ‘territories’ – ”Withdrawal of Israel armed forces from territories occupied in the recent conflict.” In the French version (French is the other working version of the UN, thus making the French version as legal and binding) includes the article ‘des’ before ‘territoires’ – “Retrait des forces armées israéliennes des territoires occupés lors du récent conflit.” In the French version, the ‘des’ can be translated into ‘the’ and read as ‘all.’ The differences between the text are subject to much disagreement. More on this to come.
Photo from Songs 4 Freedom