The Palestinians and the Israelis have two diametrically opposed
narratives for Jerusalem. The Palestinians see nothing but a city
under Israeli occupation, along with its periphery; the Israelis
see a liberated city that has been united with its western half and
has become the "eternal capital of Israel." International law,
however, is not based on conjectures, religious or sentimental
accounts. It is a secular law with the competence to rule on this
divisive issue. This article will focus on the legal dimensions
that govern the question of East Jerusalem, specifically according
to public international law, humanitarian international law and the
law of military or belligerent occupation.
Invasion, Military Occupation and the Prerogatives of the
Occupied
When the West Bank was conquered in 1967, East Jerusalem was an
integral part of it. Three weeks after it was occupied, the Arab
city was annexed to the State of Israel - quietly and without
Knesset legislation, as was the case with the Jerusalem Basic Law
of 1980. On June 28, 1967, Israel introduced amendments in
municipal and other laws pursuant to which the municipal boundaries
of Jerusalem were modified to include all areas of Arab Jerusalem.
This was codified through the rulings of the Israeli High Court of
Justice and was followed by the Jerusalem Basic Law drafted by in
the Knesset in 1980.1
The correct interpretation of public international law, and
specifically international humanitarian law, obligates Israel to
apply the law of military occupation equally on Jerusalem as on the
occupied West Bank, as they are one indivisible entity. The lands
west of the Jordan River have constituted one political unit in
conformity with Jordanian law and constitution. This legal status
of West Bank and Jerusalem was determined by the Regulations of the
Fourth Hague Convention of 1907, Articles 42 and 43; Articles 1 and
2 of the Fourth Geneva Convention of 1949; and Part I of the First
Protocol of 1977. Israel cannot evade its international commitment,
or ignore the sources of public international law as ruled by
Article 38 of the Statutes of the International Court of Justice,
which embodies the treaties, conventions and the principles of
public law that have been endorsed by civilized countries and court
rulings.2
Nor can Israel fall back on the excuse that it did not exist when
the Hague Regulations was charted, because it is now part and
parcel of customary international law3 and it is binding to all
countries whether they existed contemporaneously or came into
existence thereafter, and this was validated by the International
Court of Justice. In addition, Israel ratified the four Geneva
Conventions on July 6, 1951, which it had signed on August 12,
1949, and had required the Arab countries to observe with respect
to its own prisoners of war.
On July 4, 1967, the UN General Assembly adopted (with a
near-consensus) Resolution 2253, followed by Resolution 2254, in
which Israel was asked to rescind the measures it had taken in
Jerusalem which were considered invalid, and it was called upon to
desist from any undertaking that would change the status of the
city.
In May 1968, the Security Council adopted its first resolution
pertaining to the issue of Jerusalem - Resolution 252 - in which it
rejected the acquisition of land by military conquest and
considered invalid Israel's act to unify Jerusalem and to change
its legal status. The resolution enjoined Israel to abide by the
previous resolutions of the General Assembly with respect to
Jerusalem.
These resolutions, whether by the General Assembly or the Security
Council, were all drafted in agreement with the principles of the
law of military occupation. Accordingly, the occupier does not own
one iota of sovereignty even if it exercised authority over a
territory, as this authority will cease with the end of the
occupation. Occupation is temporary by nature and does not confer
on the occupier the prerogative to legislate or effect changes in
the social, economic, political, cultural and administrative
conditions of the occupied territory, except in that which pertains
to military necessity.4
Hence, it should be stressed that sovereignty belongs to the people
and not to the ruler. In other words, the ruler or the political
authority does not possess sovereignty, but is an instrument that
can exercise it, albeit on behalf of a people or nation.
It follows that Jordan did not have sovereignty over the West Bank
- even if the Jordanian regime exercised political authority over
the West Bank, including Jerusalem. The rationalization used by
Yehuda Blum about a sovereignty vacuum in Jerusalem is baseless,
because it is predicated on the negation of the sovereignty of the
Palestinian people, a fact which runs counter to the fundamentals
of the sovereignties of nations as codified by constitutional law
and public international law. The Israeli occupation which comes in
the wake of an alleged defensive war or an offensive one does not
affect the sovereignty of the Palestinian people. And Blum's
assertion that the laws and customs of military occupation had been
applied to the West Bank after the entry of the Jordanian army is
nullified by the fact that a real unity existed between the West
Bank and the East Bank through one legislative authority, one
executive authority, and one juridical authority and a unified
legal system.5
The above confirms the advisory opinion proffered by the
International Court of Justice in its ruling issued according to
Article 96, Clause 2 of the UN Charter. The Court saw that its
ruling regarding Israel's invasion of the West Bank entails that
Israel be considered an occupying power and the Palestinian lands -
the West Bank, East Jerusalem and the Gaza Strip - occupied lands
to which apply the Hague Regulations and the Fourth Geneva
Convention, as well as the integrity of international humanitarian
laws.6
Methods of Territorial Acquisition
Several means were used in the past for the acquisition of a
territory. They have become obsolete with the end of colonization,
the discovery of all parts of the world and the codification of the
right to self-determination as a legal right jus cogens.7 More
importantly, the obsolescence of the traditional methods for
territorial acquisition are predicated on the complete prohibition
of war as decreed in the UN Charter Article II, Clauses 4 and 7.
Clause 4 states: "All members shall refrain in their international
relations from the threat or the use of force against the
territorial integrity or political independence of any state, or in
any other manner inconsistent with the Purpose of the UN." The
Brian-Kellogg Pact of 1928, also called the Paris Agreement,
preceded the Charter in calling for the renunciation of war in all
its forms as an instrument of national policy. Before then, the
League of Nations (1919) undertook to restrict wars and the use of
force, and League members were compelled to bring to arbitration or
juridical settlement any dispute that could potentially lead to
military confrontation.
Clearly, international legitimacy set out to secure the prohibition
of war in all its forms (except legitimate defense). It is
enshrined in the 1970 Declaration on Principles of International
Law Concerning Friendly Relations and Cooperation among States in
accordance with the UN Charter. The first principle of the
Declaration states: "Every State has the duty to refrain in its
international relations from the threat or use of force against the
territorial integrity or political independence of any State, and
shall never be employed as a means of settling international
issues." The Declaration further states:
The territory of a State shall not be the object of military
occupation resulting from the use of force in contravention of the
provisions of the Charter. The territory of a State shall not be
the object of acquisition by another State resulting from the
threat or use of force. No territorial acquisition resulting from
the threat or use of force shall be recognized as legal.8 It should
be noted that according to the 1998 Rome Statute of the
International Criminal Court, a war of aggression constitutes a
crime for which "there is responsibility under international
law.
It follows that Israel lacks any legal claim to ownership of East
Jerusalem and its district. Moreover, there has never been an overt
or implicit cession of the city by the Palestinians to the
Israelis, nor any lease, partial or full. Besides, Clause 3 of
Article V of the Declaration of Principles of 1993, and similarly
Clause 1 (a) of Article XVII of the 1995 Palestinian-Israeli
Interim Agreement on the West Bank and Gaza Strip (Oslo II) negate
any legitimate ownership by Israel of the Jerusalem District. The
two texts state that Jerusalem is one of the permanent-status
issues to be negotiated once the interim period had elapsed. Thus,
the international community has to date not recognized Jerusalem as
the capital of the State of Israel, and all countries have insisted
on keeping their embassies in Tel Aviv.
Some might see a connection between the Israel-Arab armistice and
sovereignty over Jerusalem. But this is not accurate. An armistice
is a legal act for the cessation of hostilities between two parties
or more for a specified period until a peaceful settlement is
reached between them. But it has no bearing on the legal status of
either of the parties; it neither gives sovereignty to anyone nor
does it derogate it from anyone. The Jordan Armistice Agreement of
April 3, 1949 does not deal in any way with the issue of
sovereignty between the warring parties, whereas it states
unequivocally in Article II, Clause 2: "It is also recognized that
no provision of this Agreement shall in any way prejudice the
rights, claims and positions of either Party hereto in the ultimate
peaceful settlement of the Palestine question, the provisions of
this Agreement being dictated exclusively by military
considerations." Added to this is the fact that the Palestinians
were not party to the truce agreement with Jordan and Egypt.9
Based on the above arguments, the Israeli annexation of Arab East
Jerusalem whether de facto annexation or de jure, as Israeli
legislation has decreed later, is null and void and has no legal
basis. This is the opinion of international jurisprudence expertise
which has demonstrated that annexing an occupied territory by the
occupier is an illegal act and runs counter to customary and
conventional international law.10
The Internationalization of Jerusalem
Any discussion of Jerusalem cannot but refer to the concept
internalization that was proposed as a solution for Jerusalem. This
was brought forward in Part III of the Partition Plan, General
Assembly Resolution 181, 1947. It was agreed then to establish
Jerusalem as corpus separatum under a special international regime
administered by the UN. A trusteeship council was to be designated
to discharge its administrative obligations in all areas. The
resolution had defined the city boundaries and Arab and Jewish
quarters alike.11
The concept of internationalization came to the fore in the 19th
century, but far from providing a suitable solution, security or
world peace, internationalization is an explosive issue because it
wrests sovereignty from the rightful owner and gives it or entrusts
it to an organization or an international authority.
Internationalization contravenes the right of a people to
self-determination.
The idea of internationalizing Jerusalem dates back to 1919, after
Britain occupied historic Palestine and the Vatican approached it
with the request to place the holy sites in Palestine under
international supervision. The issue of religious freedom for Jews
and their access to the Western Wall (al-Buraq wall) came to a head
in 1929. The League of Nations formed a committee to deliberate the
problem and concluded that al-Buraq was Muslim waqf property and
that only Muslims had a real right to it, but the committee gave
the Jews freedom of access to the Wall and the permission to pray
there. In 1931, the British administration codified the committee's
recommendations into a law and published it in the official
gazette.
In fact, the Peel Commission had proposed a similar solution when
it recommended the partition of Palestine into three parts. One
would include all the religious and holy sites in Palestine, and
this would extend from Nazareth in the north passing through
Jerusalem and ending in Bethlehem in the south. And it suggested
placing it under the control of the British Mandate, so that
neither Jewish nor Palestinian sovereignty would apply to
it.12
In my estimation, the concept of internationalization is confined
to one important and crucial issue, which is religious freedom,
especially because Jerusalem is unique in its centrality to the
three monotheistic faiths. Human rights conventions and treaties
that guarantee and safeguard religious freedom and the practice of
religious rites are relatively new in international law. Public
international law is indebted to the Treaty of Westphalia (1648),
which ended all religious wars in Europe, but important
developments in the area did not take place until after WWII and
the drafting of the Universal Declaration of Human Rights in 1948
and the UN Covenant on Civil and Political Rights, and the
International Covenant on Economic, Social and Cultural Rights in
1966 which went into effect in 1976.13
Municipal Elections
After it occupied East Jerusalem, Israel decided on an aberrant
status for the city. The city itself was annexed to the State of
Israel, but the citizens were separated from their city and were
given the status of residents, not citizens. This way, the Arab
citizens can be threatened with deportation in accordance with
residency laws as practiced worldwide. And Israel has, accordingly
been revoking their residency rights, rejecting the legality of
their marriages, and denying them family reunification and the
registration of their children.
The consideration of the Palestinian citizens of Jerusalem as
residents and all the measures taken to make their life difficult
contravene international law conventions. But the intention is
clear: It is aimed at checking Arab demographic growth in the State
of Israel and their representation in the Israeli legislative body,
the Knesset. To mitigate the fact that they were denied the right
to exercise their prerogative to vote in the Knesset, the Israeli
authorities allowed the citizens of Arab Jerusalem to vote for the
municipal council instead. Many rejected it outright, in spite of
Israel's policy of intimidation and enticement. Throughout the four
decades of occupation, both the number of candidates and voter
turnout percentages among Arab East Jerusalemites have remained
zero.
Some might surmise that the Palestinians boycotted municipal
elections - running or voting - as a result of political pressure
by the national forces in the city that reject annexation and
occupation. The fact is that, aside from those who were working in
the municipality and feared for their jobs, or a group of
old-timers who were misled into believing they would lose their
income if they didn't vote, the crushing majority saw in the
participation in municipal elections a validation of the annexation
of their city and a recompense for Israeli oppression. Many feared,
and rightly so, that participation in municipal elections would be
tantamount to an explicit or implicit recognition of, and
acquiescence to, Israeli sovereignty over their city, which would
set a precedent in international law difficult to disavow later on.
And a boycott that lasts four decades becomes a legal convention.
In other words, there has been a continuity in the boycott over
four decades, in spite of the divergent political and emotional
positions of the Palestinians vis-à-vis the Israelis and in
spite of the Oslo agreements. There was no doubt whatsoever that
the Palestinians in Jerusalem were not interested in participating
in municipal elections in order not to relinquish Palestinian
sovereignty in any way.
Conclusion
The question of Jerusalem is an issue of paramount concern for many
worldwide. So many ideas and theories have been brought forward in
search of a solution to the Israeli control over Arab Jerusalem.
But they all overlook one major fact: that Jerusalem is an Arab
city occupied and subject to the applicability of the law of
belligerent occupation. Armed power is not a source of
international legitimacy, and religious freedom does not mean
internationalization. One must not confuse the various concepts or
create new ones that do not concord with the rules of international
law. Contemporary history has not seen an occupation as protracted
as the Israeli one; however, no matter how long the Israeli
authority lasts, sovereignty in Arab Jerusalem reverts to the
Palestinian people. In Jerusalem, the best course to follow is to
fully respect each other's rights.
Endnotes
1. See Usama Halabi, The Impact of the Annexation of Jerusalem to
Israel on the Rights and Status of Its Arab Citizens (Jerusalem:
PASSIA, 1990) (Arabic), pp. 7-8; Henry Cattan, "The Status of
Jerusalem under International Law and United Nations Resolutions,"
Journal of Palestine Studies, Vol. X, Spring 1981, pp. 3-15.
2. Ibrahim Sha'ban, Al-intifada al-falastiniyyah fi 'amiha
al-awwal: dirassah fi daw' ahkam al-qanun al-duwali al-'am
(al-Quds, 1989), pp. 24-49.
3. Theodor Meron, "The Geneva Convention as Customary Law,"
American Journal of International Law (1987), Vol. 81, No. 2, pp.
348-370.
4. G. Schwarzenberger, International Law as Applied by
International Courts and Tribunals, Vol. II of The Laws of Armed
Conflicts (London, Stevens & Sons Limited, 1968), pp. 163-164;
R.Y., Jennings, The Acquisition of Territory in International Law
(Manchester: Manchester University Press, 1963), p. 20.
5. Yehuda Blum, "The Missing Reversioner: Reflections on the Status
of Judea and Samaria," Israel Law Review (1968) Vol. III No. 2, pp.
279-301; Alan Gerson, Israel, the West Bank and International Law
(London: Frank Cass, 1978), p. 2.
6. Claudie Barrat, "The Advisory Opinion of the International Court
of Justice on the Construction of a Wall in the Occupied
Palestinian Territories," Legal Reports (Ramallah: The Palestinian
Independent Commission for Citizens' Rights, 2004), pp.
76-87.
7. Hector G. Espiell, "Self-Determination and Jus Cogens" in UN Law
Fundamental Rights: Two Topics in International Law, Ed., Antonio
Cassese (The Hague, 1979), pp. 167-173.
8. R. Rosenstoc, "The Declaration of Principles of International
Law Concerning Friendly Relations: A Survey," The American journal
of International Law (1971), Vol. 65 No. 4, pp. 713-735.
9. For the full text, see the Arab-Israeli Armistice Agreement,
February-July 1949 (Beirut: The Institute for Palestine Studies,
1976), p. 19.
10. G. Schwarzenberger, op. cit., pp. 163-164.
11. Mahdi Abdul-Hadi, ed., Documents on Palestine, Vol. I
(Jerusalem: PASSIA, 2000), pp. 180-181.
12. For further information about this project, see Mahdi
Abdul-Hadi, Al-mass'alah al-falastiniyyah wa mashari' al-hulul
as-siyassiyah 19934-1974 (Beirut: al-maktabah al-'asriyyah, 1992),
pp. 37-51.
13. For further information about human rights treaties, see
Mahmoud Sharif Bassiouni, Al-watha'eq al-duwaliyyah al-ma'niyyah
bi-huquq al-insan, 2 vols. (Cairo, Dar al-Shourouq, 2003); The
United Nations, The Core International Human Rights Treaties,
Office of the United Nations High Commissioner, New York and
Geneva, 2006.
<