The Palestine-Israel Journal is a quarterly of MIDDLE EAST PUBLICATIONS, a registered non-profit organization (No. 58-023862-4).
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Editorial Board

Adnan Abdelrazek

Danny Rubinstein

Sam'an Khoury

Daniel Bar-Tal

Walid Salem

Galia Golan

Gershon Baskin

Hind Khoury

Edy Kaufman

Ata Qaymari

Benjamin Pogrund

Nafez Nazzal

Dan Jacobson

Jumana Jaouni

Moshe Maoz

Munther Dajani

Khuloud Khayyat Dajani

Izhak Schnell

Lucy Nusseibah

Meir Margalit

Menachem Klein

Ali Abu Shahla

Ilan Baruch

Hanna Siniora

Yehudit Oppenheimer

Mossi Raz

Susie Becher

Frances Raday




Vol.17 No.12 2011 / JERUSALEM, In the Eye of the Storm

Focus

A UN Perspective on the Status of Jerusalem

An overview of the United Nations’ historical and current positions regarding the status of Jerusalem.

     by Adnan Abdelrazek

Palestine was a province of the Ottoman Empire for 400 years. With the empire’s collapse as a result of World War I, the League of Nations placed Palestine under a mandate which it assigned to the United Kingdom. The British Mandate of Palestine, which was confirmed in 1922, put into effect the Balfour Declaration of 1917 whose principal objective was “the establishment in Palestine of a national home for the Jewish people.” The terms of the mandate, which favored an increase in Jewish immigration to Palestine, were opposed by the Arabs, as it aroused growing fears of a Jewish takeover in Jerusalem and elsewhere in the country. This produced great tension between Arabs and Jews, particularly in Jerusalem and specifically around al-Aqsa Mosque and al-Buraq (the Western Wall).

The mandatory powers immediately assumed full responsibility of the holy places, including “preserving existing rights,” “securing free access” and “free exercise of worship,” except with regard to the management of purely Muslim sacred shrines, the inviolability of which was guaranteed by the Mandate (Article 13). In view of the difficulties in establishing a commission by all of the religious communities, responsibility for the holy places remained with the mandatory powers which preserved the Ottoman status quo governing relations among the various communities.1

With the growing tension between the two communities, particularly over Jewish immigration to Palestine, Jerusalem soon became a flashpoint of conflict. In August 1929, a serious outbreak of violence occurred over al- Buraq (the Western Wall). The mandatory power appointed an international commission with the approval of the League of Nations, which concluded, inter alia, that “to the Moslems belong the sole ownership of, and the sole proprietary right to, the Western Wall, seeing that it forms an integral part of the Haram al-Sharif area, which is a Waqf property” and that “the Jews shall have free access to the Western Wall for the purpose of devotions at all times….”2

The security situation, however, continued to deteriorate with the intensification of Jewish immigration by those seeking refuge from Nazism in the 1930s. In response to the Palestinian uprising which began in 1936 in protest against the immigration, the mandatory powers set up the Palestine Royal Commission, headed by Lord Peel. It concluded that the Mandate was unworkable and recommended that it be terminated. It also proposed the partition of Palestine into an Arab state and a Jewish state. In view of the sanctity of Jerusalem and Bethlehem to all three faiths, the commission held the holy places to be, in the words used in the League’s Covenant, “a sacred trust of civilization.” It proposed that a Jerusalem-Bethlehem enclave encompassing all of the holy places, with a corridor to the sea terminating at Jaffa, remain under British trusteeship under a new League of Nations mandate.3

This first plan for the partition of Palestine, with a special status for Jerusalem, was superseded by political and military events. After World War II, the UK declared that it was unable to resolve the conflict in Palestine and brought the problem to the United Nations.

Consequently, the Palestine question was taken up by the UN in April 1947, while the country itself was being ravaged by the conflict between the Jewish and Arab communities, a conflict which had a deep impact on Jerusalem as well. Most of the Jewish immigrants to the city had settled in a new and expanded western sector, while the old eastern sector, including the walled Old City and the surrounding towns and villages, remained predominantly Arab. According to a survey made available to the UN Special Committee on Palestine, appointed by the General Assembly to present proposals for a solution to the question, by December 1946, there were an estimated 102,000 Jews, 104,000 Muslims and 46,000 Christians in the Jerusalem sub-district.4

The Special Committee unanimously recommended that the sacred character of the holy places be guaranteed by special provisions and that access to them be ensured “in accordance with existing rights.” It also recommended that specific stipulations be made in any future constitution of any state or states to be established in Palestine concerning the status of the holy places and the right of religious communities. The committee also submitted two alternative plans for the future of Palestine. The plan recommended by the minority in the committee envisioned the establishment of an independent, unified, federal state in Palestine, with Jerusalem as its capital and with separate municipalities for the Arab and Jewish sectors. It also recommended the creation of a permanent international regime for the supervision and protection of the holy places in Jerusalem and elsewhere. The plan proposed by the majority recommended the partition of Palestine into an Arab state and a Jewish state, and the territorial internationalization of the Jerusalem area as an enclave in the Arab state.5

It was the second plan which the General Assembly adopted on Nov. 29, 1947, under the title “United Nations General Assembly (UNGA) Resolution 181 (II) The Future Government of Palestine.” The resolution includes “a Plan of Partition with Economic Union, which details provisions for the boundaries of the three entities — the Jewish state, the Arab state and Jerusalem; governmental institutions; the protection of religious and minority rights; and freedom of transit and economic and other forms of cooperation among the three entities, with particular regard to the holy places and religious rights and freedoms.

The Special International Regime for Jerusalem (Corpus Separatum)

The special international regime for Jerusalem was to be administered by the United Nations through the Trusteeship Council. The boundaries of the city were defined as including “the present municipality of Jerusalem plus the surrounding villages and towns, the most eastern of which shall be Abu Dis; the most southern, Bethlehem; the most western, Ein Karem (including the built-up area of Motsa); and the most northern Shu’fat.”

The General Assembly requested that the council elaborate a statute for the city, to last initially for 10 years, providing for the appointment of a governor and administrative staff; broad local autonomy for villages, townships and municipalities; the demilitarization of the city and the establishment of a special police force to protect, in particular, the holy places and religious buildings and sites; the election of a legislative council by all residents irrespective of nationality; and the participation of the city in the Economic Union of Palestine….6

During the debate over UNGA Resolution 181(II), the representatives of the Jewish Agency accepted the Partition Plan, but the Arab states and the spokesman of the Arab Higher Committee rejected it, declaring that they did not consider themselves bound by the resolution. Meanwhile, as a result of the deep differences between the conflicting parties, an all-out war broke out in Palestine, resulting in the de facto division of the country and of the city of Jerusalem itself.

Efforts to Establish the International Regime

In April 1948, the Trusteeship Council, which was to become the Administering Authority under UNGA Resolution 181 (II), prepared a detailed draft statute for the planned separate territorial entity. The council also considered proposals for the immediate establishment of an international force and the assumption of temporary trusteeship in order to ensure the protection of the city and its inhabitants, but it reported that “it found it impossible to secure mutual agreement of the interested parties.”7 Meanwhile, in May 1948, the General Assembly had also appointed a mediator (Count Folke Bernadotte) who warned in his first report that the Partition Plan was being outrun by events and that the new government of Israel was increasingly skeptical of the proposed internationalization of the city, favoring instead the absorption of at least its Jewish part into the nascent State of Israel.8

In the ensuing months, the international community was preoccupied with efforts to prevent further destruction; to implement a ceasefire and the demilitarization of the city, without prejudice to its future political status; and the question of the Palestinian refugees. Consequently UNGA Resolution 194 (III) of Dec. 11, 1948 was adopted and the Conciliation Commission for Palestine (UNCCP) was established. The efforts and activities of this commission are detailed in its periodic reports to the General Assembly. Seeking acceptance by the parties, the commission established the Special Committee on Jerusalem and Its Holy Places to undertake the preparatory work and to consult with Arab and Israeli government representatives as well as local authorities.

The UNCCP reported that the Arab delegations were in general prepared to accept the principle of an international regime for the Jerusalem area, subject to UN guarantees regarding its stability and permanence. While it recognized that the commission was bound by UNGA Resolution 194 (III), Israel declared itself unable to accept the establishment of the international regime for the city of Jerusalem, although it accepted without reservation an international regime for, or the international control of, the holy places.9

A Second UN Model

As a consequence of the reality on the ground, a new draft text establishing a permanent international regime for the Jerusalem area was adopted by the Conciliation Commission in September 1949 and submitted to the General Assembly. In an effort to reconcile the requirements for “maximum local autonomy in Jerusalem” with the international community’s interests in a special status for the city, the draft text provided for the division of the city into an Arab and a Jewish zone, within which the respective local authorities would be empowered to deal with all matters not of international concern. The latter were specifically assigned to the authority of a commissioner appointed by the UN and responsible to the General Assembly.

In response to various criticisms of the plan, the commission subsequently issued a clarification that the plan was based on the existing division of the city and left to the governments of the adjoining states — Israel and Jordan — virtually all normal powers of government within the Jewish and Arab parts of Jerusalem, respectively. In that light, the role of the international machinery would be to bridge the gap between what in fact would be two separate jurisdictions in an otherwise geographically unified area.10

The De Facto Division of the City

Meanwhile, the Israeli Knesset, which originally was based in Tel Aviv, was transferred to Jerusalem in December 1949 and convened in February 1949. The Israeli president took the oath of office in Jerusalem, but the Trusteeship Council adopted a resolution affirming that these actions were incompatible with General Assembly resolutions and called upon Israel to revoke them.11

Israel’s de facto rejection of the implementation of the international regime in Jerusalem was not an impediment to its acceding to membership in the UN. However, Resolution 273 (III) of May 1949 admitting Israel to the UN contains explicit references both to the earlier resolutions on the internationalization of Jerusalem and the repatriation of refugees, and to the explanations given b y t h e I s r a e l i representative.12

Fu r t h e rmo r e , on Jan. 23, 1950, the Israeli Knesset proclaimed Jerusalem as Israel’s capital and began moving government offices to the city. The division of the city was further forma l i z ed whe n Jordan (then not yet a UN member) also took steps to extend its jurisdiction to East Jerusalem and the West Bank, pending a solution to the question of Palestine.

The de facto division of the city between two countries at war, with sealed borders, was formalized in the Israel-Jordan Armistice Agreement of April 3, 1949. For the international community, however, the agreement had no legal effect on the continued validity of the provisions of the partition resolution for the internationalization of Jerusalem. Accordingly, no country set up an embassy in Jerusalem until 1967; these were later moved to Tel Aviv following Israel’s 1980 Jerusalem Law declaring “complete and united” Jerusalem as the capital of Israel. Today, not a single country has its embassy in Jerusalem. Particular mention should also be made of the continued presence in Jerusalem of an international sui generis consular corps, commonly referred to as the “Consular Corps of the Corpus Separatum.” Unlike consuls serving in Israel, consuls of these states do not present letters of credentials to the president of Israel or to the Israeli Foreign Ministry. They do not pay taxes and have no official relations with Israeli authorities. In their activities, they respect common protocol rules designed to prevent any appearance of recognition of sovereign claims to the city.13

The 1967 War and the Military Occupation of East Jerusalem

Immediately after Israel’s occupation of the eastern part of the city in the 1967 war, then-Israeli Defense Minister Moshe Dayan declared: “The Israeli Defense Forces have liberated Jerusalem. We have reunited the torn city, the capital of Israel. We have returned to this most sacred shrine, never to part from it again.”14

Subsequently, Israel took a number of measures to enlarge and extend its jurisdiction over East Jerusalem and to consolidate its control over the entire city. Those as well as later measures have been declared invalid by the UN and the international community.

Ambassador Ernesto A. Thalmann of Switzerland was dispatched by the UN secretary-general to report on Jerusalem. After several meetings with government leaders, he wrote, inter alia:

[I]t was made clear beyond any doubt that Israel was taking every step to place under its sovereignty those parts of the city which were not controlled by Israel before June 1967. The statutory base for this had already been created, and the administrative authorities had started to apply laws and regulations in those parts of the city…. The Israeli authorities stated unequivocally that the process of integration was irreversible and not negotiable.15

The occupation of East Jerusalem in June 1967 and its subsequent annexation and that of the surrounding area by Israel have not been recognized internationally. The issue has been the object of numerous resolutions by international and regional organizations that reaffirm the special status of the city and seek to roll back the measures taken by the Israeli authorities.

Following the war, the General Assembly convened its Fifth Emergency Special Session (June 17-Sept. 18, 1967) during which it adopted Resolution 2253 (ES-V), which considered the measures taken by Israel in Jerusalem invalid and called upon Israel “to rescind all measures already taken and to desist forthwith from taking any action which would alter the status of Jerusalem.” The invalidity of the Israeli measures in Jerusalem was readopted by the General Assembly in dozens of resolutions in the last 43 years. In addition, the General Assembly and the Security Council invoked principles based on the UN Charter which were violated by the Israeli measures in Jerusalem and the rest of the Occupied Palestinian Territories (OPT). The General Assembly and the Security Council also reaffirmed the applicability of the Fourth Geneva Convention to Jerusalem as part of the territories occupied in 1967.

The Security Council, in its landmark Resolution 242 of Nov. 22, 1967, while not specifically addressing the status of Jerusalem, emphasized “the inadmissibility of the acquisition of territory by war” and affirmed that “the fulfillment of principles of the Charter of the United Nations” required, among other things, “the withdrawal of Israel armed forces from territories occupied in the recent conflict….”

Moreover, in its Resolution 252 (1968), the Security Council considered that “all legislative and administrative measures and actions taken by Israel, including expropriation of land and properties thereon, which tend to change the legal status of Jerusalem are invalid and cannot change that status,” and urgently called upon Israel “to rescind all such measures already taken and to desist forthwith from taking any further action which tends to change the status of Jerusalem.”

Following a discussion of Israeli settlements, the Security Council affirmed in Resolution 446 (1979) that the Fourth Geneva Convention “is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem.” It also censured in Resolution 478 (1980) “in the strongest terms” the enactment by Israel of the Basic Law on Jerusalem and its refusal to comply with relevant Security Council resolutions, and affirmed that the enactment of the law “constitutes a violation of international law and does not affect the continued application of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, in the Palestinian and other Arab territories occupied since 1967, including Jerusalem.”

Since 1986, the Security Council has used the terminology “Palestinian and other Arab territories occupied by Israel since 1967, including Jerusalem” to reaffirm the applicability of the Geneva Convention to the area under Israeli occupation. These resolutions, subsequently reaffirmed in similar wording, continue to embody the UN’s position of principle and that of most governments on the status of Jerusalem.16

The Agreements between the Parties and Regional proposals — A Slow Shift

As shown above, resolutions condemning Israeli practices — such as settlement building, house demolitions, demographic changes, economic abuse and security incidences in Jerusalem — and calling for their nullification have invariably been adopted by the General Assembly and selectively by the Security Council. The applicability of the Fourth Geneva Convention’s provisions to the OPT, including East Jerusalem, have also been reaffirmed by many UNGA resolutions. However, a change in terminology concerning the peace process and the vision of a solution to the conflict — especially with regard to Jerusalem — has been slowly incorporated into UNGA resolutions and the rest of the General Assembly organs. Sifting through the UNGA resolutions, one still notices a gap between their terminology and the terminology used by regional conferences and declarations, including those between the concerned parties. An analysis of these GA resolutions since 1991 through 2009 shows the following trend:

* The Madrid Conference and the Declaration of Principles (The Oslo Accords)

While it welcomed the Madrid Peace Conference “which constitutes a significant step towards the establishment of a comprehensive, just and lasting peace in the region” (UNGA Resolution 46/75 of 1991), the General Assembly called in the same resolution for the convening of an international conference under UN auspices, based on Security Council Resolutions 242 (1967) and 338 (1973) and for the legitimate national rights of the Palestinian people, primarily the right to self-determination — a call hardly consistent with the Madrid Conference terms of reference.

The Declaration of Principles’ (DoP) terms of reference were not treated any differently by the General Assembly. UNGA Resolution 48/94 of December 1993 only took note in its preamble (not operative) of “the recent positive evolution in the Middle East peace process, in particular the signing on 13 September 1993 of the Declaration of Principles on Interim Self-Government Arrangements by the Government of the State of Israel and the Palestine Liberation Organization.” However, in its operative Paragraph Three, the Assembly reaffirmed “the inalienable right of the Palestinian people and all peoples under foreign occupation and colonial domination to self-determination, independence and sovereignty”; and in Paragraph Five, it called upon Israel “to refrain from violation of the fundamental rights of the Palestinian people and from denial of its right to self-determination.” A year later, the General Assembly expressed its full support for the “achievements of the peace process thus far, in particular the Declaration of Principles on Interim Self-Government Arrangements, signed by the Government of the State of Israel and the Palestine Liberation Organization.”17

Indeed the General Assembly expressed its recognition and support of the Madrid Conference and the Oslo Accords, but resolutions concerning the status of Jerusalem which were adopted in 1991 — UNGA Resolution 46/82 of Dec. 16, 1991 and annually through 2002 — did not refer in any way to the visions of the Madrid Conference or the Oslo Accords, nor did they incorporate any of their terms of reference or declarations in the resolutions’ operative paragraphs. During these years, the main operative paragraphs of the resolutions regarding Jerusalem repeatedly included the following two paragraphs:


1. “Determines that Israel’s decision to impose its laws, jurisdiction and administration on the Holy City of Jerusalem is illegal and therefore null and void and has no validity whatsoever”; and
2. “Deplores the transfer by some States of their diplomatic missions to Jerusalem in violation of Security Council resolution 478 (1980), and their refusal to comply with the provisions of that resolution.”

It is worth mentioning that the Islamic Summit of 1992 (also in 1994) had already adopted some of the Madrid Conference terms of reference and “[s]upported the peace process based on Security Council Resolutions 242 and 338 and the formula ‘Land for Peace.’” In a July 1994 letter to the Security Council and the General Assembly concerning Jerusalem, the PLO representative to the UN had called upon Israel “to abide by its contractual obligation emerging from the Declaration of Principles,” and yet in its resolutions concerning Jerusalem the General Assembly continued to hold on to its principal stand.18

The Arab Peace Initiative’s and the Road Map’s New Terminology

It was after the Arab Peace Initiative and the Road Map (two major political dynamics) that the General Assembly adopted a new terminology in its resolutions and shifted to a new modality of perceived solutions for Jerusalem.

On March 28, 2002, the Arab Summit in Beirut, adopted the Arab Peace Initiative based on then-acting Saudi regent, Crown Prince Abdullah’s initiative, which called for

[f]ull Israeli withdrawal from all the Arab territories occupied since June 1967, in implementation of Security Council Resolutions 242 and 338, reaffirmed by the Madrid Conference of 1991 and the land for peace principle, and Israel’s acceptance of an independent Palestinian State, with East Jerusalem as its capital, in return for the establishment of normal relations in the context of a comprehensive peace with Israel.19

Almost a year later, on April 30, 2003, the Quartet (consisting of representatives of the United States, the European Union, the Russian Federation and the UN) presented the Road Map to the government of Israel and the Palestinian Authority (PA). The Quartet’s text, which took into consideration the Madrid Conference’s terms of reference, as well as the Beirut Arab Summit declaration, talked about ending the Israel-Palestinian conflict in 2005:

[t]hrough a settlement negotiated between the parties based on UNSCR 242, 338, and 1397, that ends the occupation that began in 1967, and includes an agreed, just, fair, and realistic solution to the refugee issue, and a negotiated resolution on the status of Jerusalem that takes into account the political and religious concerns of both sides, and protects the religious interests of Jews, Christians, and Muslims worldwide (author’s emphasis), and fulfils the vision of two states, Israel and sovereign, independent, democratic and viable Palestine, living side-by-side in peace and security.20

New UN Terminology It is these two initiatives/peace formulas which brought a major shift in the General Assembly’s terminology in its resolutions regarding new modalities for solving the conflict over Jerusalem. This was, of course, a reflection of world politics and the global balance of power, particularly regarding the Middle East conflict, which manifested itself through the General Assembly’s negotiated decisions and votes. Nevertheless, it was the first time since the 1967 war and after years of annually debating the Jerusalem issue that the body moved from its old formula to a new one, which reads:


Reaffirming that the international community, through the United Nations, has a legitimate interest in the question of the City of Jerusalem and the protection of the unique spiritual, religious and cultural dimension of the city, as foreseen in relevant United Nations resolutions on this matter; and
Stresses that a comprehensive, just and lasting solution to the question of the City of Jerusalem should take into account the legitimate concerns of both the Palestinian and Israeli sides and should include internationally guaranteed provisions to ensure the freedom of religion and of conscience of its inhabitants, as well as permanent, free and unhindered access to the holy places by the people of all religions and nationalities.

Since 2003, this new terminology has been annually adopted by the General Assembly through its latest resolution in 2009.21

Closing Remarks

The dictates of vast historical and political facts and analyses of proposals, wishes and realities on the ground notwithstanding, it is useful to present the UN’s perspective concerning the complexity of Jerusalem’s fate. From the presentation above one can learn that that the UN (influenced by the British Mandate) initially presented a model of a special city ruled and controlled by an international regime (the Trusteeship Council), while preserving certain interests of the Arab and the Jewish communities. This model was readjusted in 1948-49 to give more considerations to military dynamics, particularly to the stronger Israeli forces which advanced on ground. Shortly after the end of the war, the UN accepted the Armistice Agreement between the parties but was still hoping for an international community role, particularly concerning the holy places. The 1967 war and the strong Israeli measures for changing the reality on the ground in the direction of irreversible “ownership” of the city brought the UN to a defensive mode of approach, hoping unsuccessfully to stop the Israeli scheme. During the past several years, due to some historical changes in the global and regional balance of power, the UN has assumed the role of a secondary player to the dominant forces (the Quartet and Israel), who may or may not bring a solution to the status of Jerusalem.


Endnotes
1. The League of Nations, The Mandates System: Origin, Principles, Application. Geneva: League of Nations, 1945, ch. 1-2.
2. Report of the Commission on the Western Wall. London: H.M.S.O., 1931 (reprinted by the UN as an addendum to UN document A/7057-S/8427.
3. The British Government. The Palestine Royal Commission. Report Cmd 5479, London, 1937.
4. Supplement to The Survey on Palestine. Notes compiled for the information of the United Nations Special Committee on Palestine, June 1947.
5. Official Records of the General Assembly, Second Session, Supplement No. 11, A/364 of September 1947.
6. “The City of Jerusalem.” Part III of Resolution 181 (II) adopted on Nov. 29, 1947, provides in details the components of the adopted corpus separatum.
7. See Trusteeship document T/118/Rev.2 and GA document A/544 of May 5, 1948.
8. Official Records of the General Assembly. Third Session. Supplement No. 11, A/648 of Sept. 16, 1948.
9. United Nations Conciliation Committee on Palestine (UNCCP). Second progress report, A/838 of April 19, 1949.
10. See GA document A/973/Add.1 and UNCCP supplementary report A/1367/ Rev.1.
11. UNCCP third progress report A/972, thirteenth progress report A/2629 and the Trusteeship report T/427.
12. General Assembly Resolution 273(III).
13. Benziman, Uzi. “Israeli Policy in East Jerusalem after Unification,,in Joel Kraemer, ed. Jerusalem: Problems and Prospects. New York: Praeger, 1980.
14. Facts on File, Vol. XXVII, June 7, 1967.
15. Report of UN secretary-general under Resolution 2254(ES-V), S/8146 related to Jerusalem.
16. See in addition Security Council resolutions 592(1986) of Dec. 8, 1986; 605/1987 of Dec. 22, 1987; 672 (1990) of Dec. 12, 1990; 681 (1990) of Dec. 20, 1990; 1073 (1996) of Sept. 28, 1996; 1322(2000) of Oct. 7, 2000; and Presidential Statement S/1998/21 of July 13, 1998.
17. General Assembly Resolution 49/88 of Dec.16, 1994.
18. General Assembly Report A/47/88 of Dec. 2, 1992.
19. Text of the Arab Peace Initiative adopted at the Beirut Summit, Agence France- Presse (AFP), March 28, 2002.
20. The Road Map full text, BBC News, April 30, 2003.
21. General Assembly Resolution 57/111 of Feb. 14, 2003 and Resolutions 58/22, 59/32, 60/41, 61/26, 62/84 and 63/30.








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