by Adnan Abdelrazek
The United Nations Charter states that the main objectives of the UN are “to maintain international peace and security,” and it can take actions regarding these and other issues.1 The power of the UN comes from the international legitimacy it has in its charter and member states.2 The UN General Assembly and the UN Security Council were the main addresses for resolving issues related to the Israeli-Palestinian conflict. This article summarizes some of the main resolutions on Jerusalem and the Occupied Palestinian Territories since the signing of the Declaration of Principles – the Oslo Accords and the difference between the UNSC and the UNGA resolutions and their impact on the resolution of the conflict.
Article V of the Declaration of Principles on Interim Self-Government Arrangement between Israel and the PLO (September 13, 1993) stipulates that the permanent status negotiations will commence as soon as possible, but not later than the beginning of the third year of the interim period, between the government of Israel and the Palestinian people’s representatives.
“It is understood that these negotiations shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest,” a letter from the permanent representatives of the Russian Federation and the United States of America to the United Nations addressed to the secretary-general states “The two parties agree that the outcome of the permanent status negotiations should not be prejudiced or preempted by agreements reached for the interim period. A/48/486, S/26560.3
The Declaration of Principles and the UN
On December 20, 1993, the UN General Assembly overwhelmingly welcomed the signing of Declaration of Principles, including its annexes and agreed minutes, by the government of the state of Israel and the Palestine Liberation Organization. And reaffirmed “that the United Nations has a permanent responsibility with respect to the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy.” A/RES/48/158.4
This UNGA statement concerning its permanent responsibility on the question of Palestine was followed by several resolutions concerning Jerusalem and the attempts by Israel to change its status.
The UNGA Resolutions on Jerusalem
A few months after the signing of the Declaration of Principles, the UNGA took a strong resolution concerning Jerusalem A/RES/48/59 and determined that “the decision of Israel to impose its laws, jurisdiction and administration on the Holy City of Jerusalem are illegal and therefore null and void and has no validity whatsoever”;5 it deplored the transfer by some member states of their diplomatic missions to Jerusalem and their refusal to comply with the provisions of that resolution as a violation of the UNSC Resolution 478 (1980).6
Two months later, the Security Council took yet another, milder decision S/904(1994)concerning the same issue and reaffirmed “its support for the peace process currently under way and called for the implementation of the Declaration of Principles.”7
The Security Council didn’t act upon the issue of Jerusalem as often as the General Assembly. However, when the situation in the city was endangering the peace process or the world order, the UNSC acted accordingly. An example was when the Netanyahu government dug a tunnel underneath the al-Haram al-Sharif Mosque, an act that led to violent clashes between the Israeli armed forces and Palestinians. Following this event, the UNSC adopted resolution S/RES/1073(1996) which recalled its previous resolutions on Jerusalem and other relevant Security Council Resolutions and expressed its concerns about the eruption of violence and the developments at the Holy Places in Jerusalem.8 It called for the reversal of all acts which have caused the deterioration and called on both sides to restrain and urged them to fulfill their obligations, as well as for the safety and protection of Palestinian civilians to be ensured.”
Activities in East Jerusalem — The Construction of Abu Ghneim Settlement
When Israel started in 1996 the construction of a new settlement in the Jabal Abu Ghneim, area in East Jerusalem, the General Assembly passed Resolution A/RES/51/223,9 which:
1. Calls upon the Israeli authorities to refrain from all actions or measures, including settlement activities, which alter the facts on the ground, preempting the final status negotiations, and have negative implications for the Middle East peace process; and
2. Calls upon Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, which is applicable to all the territories occupied by Israel since 1967.10
In addition, UNGA Resolution A/RES/ES-10/2 followed on the same issue in the UNGA’s tenth special emergency session,11 which:
1. Condemns the construction by Israel, the occupying Power, of a new settlement in Jabal Abu Ghneim … and all other illegal Israeli actions in all the occupied territories;
2. Reaffirms that all legislative and administrative measures and actions taken by Israel, the occupying power, that have altered or purported to alter the character, legal status and demographic composition of Jerusalem are null and void and have no validity whatsoever;
3. Demands immediate and full cessation of the construction in Jabal Abu Ghneim; and
4. Recommends that a comprehensive, just and lasting solution to the question of the City of Jerusalem, should be reached in permanent status negotiations between the parties.
When Israel refused to comply with the UNGA resolution and continued the construction of settlement, the UNGA convened in another special emergency session and issued another resolution, A/RES/ES-10/3,12 which:
1. Condemns the failure of the Government of Israel to comply with the demands made by the General Assembly at its tenth emergency special session in resolutions;
2. Reaffirms that all illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory, especially settlement activity, and the practical results thereof cannot be recognized, irrespective of the passage of time;
3. Reiterates the demands made in resolution A/RES/ES-10/3, in particular for the immediate and full cessation of the construction of a new settlement at Jabal Abu Ghneim; and
4. Recommends that the High Contracting Parties to the Geneva Convention convene a conference on taking measures to enforce the Convention in the Occupied Palestinian Territory, including Jerusalem.
Israeli Attacks on al-Haram al-Sharif Mosque
In October 2000 the Israeli forces brutally attacked Palestinians at al-Haram al-Sharif mosque. The UNSC adopted resolution S/RES/1322, narrowing its text to the event itself with a general notion about Israeli obligation under the Geneva Convention as follows:13
• Reaffirming the need for full respect by all of the Holy Places of the City of Jerusalem, and condemning any behavior to the contrary:
• Deplores the provocation carried out at al-Haram al-Sharif in Jerusalem on 28 September 2000, and the subsequent violence there and at other Holy Places, as well as in other areas throughout the territories occupied by Israel since 1967, resulting in over 80 Palestinian deaths and many other casualties;
• Condemns acts of violence, especially the excessive use of force against Palestinians, resulting in injury and loss of human life; and
• Calls upon Israel, the occupying power, to abide scrupulously by its legal obligations and its responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War.14
In comparison, the General Assembly, in its emergency session on the same issue, issued resolution A/RES/ES-10/7 and was firmer with the Israeli actions,15 from which:
1. Condemns (not deplores) the violence that took place on 28 September 2000 and the following days at al-Haram al-Sharif and other Holy Places in Jerusalem as well as other areas in the Occupied Palestinian Territory;
2. Condemns also acts of violence, especially the excessive use of force by the Israeli forces against Palestinian civilians; and
3. Demands (not calls) that Israel, the occupying Power, abide scrupulously by its legal obligations and its responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, which is applicable to all territories occupied by Israel since 1967
The Road Map and the Arab Peace Initiative
The Security Council in its Resolution 1397(2002),16 welcomed and encouraged the diplomatic efforts of special envoys from the United States of America, the Russian Federation, the European Union and the United Nations Special Coordinator (the Quartet) and others to bring about a comprehensive, just and lasting peace in the Middle East, welcomed the contribution of Saudi Crown Prince Abdullah. And then it endorsed in Resolution S/RES/1515 the Quartet Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict.17
In Phase III of its Performance-Based Roadmap, the “Permanent Status Agreement and End of the Israeli-Palestinian Conflict 2004-2005,” the Quartet stipulated that “[p]arties reach final and comprehensive permanent status agreement that ends the Israeli-Palestinian conflict in 2005, through a settlement negotiated between the parties based on UNSCR 242 and 338 and 139, that end the occupation that began in 1967, and includes an agreed, just, fair, and realistic solution to the refugee issue, and a negotiated solution on the status of Jerusalem taking into account the political and religious concerns of both sides, and protects the religious interests of Jews, Christian, and Muslims worldwide, fulfills the vision of two states, Israel, and a sovereign, independent, democratic and viable Palestine, living sideby- side in peace and security”.
The Council of the League of Arab States at its 14th ordinary session met in Beirut on March 28, 2002. There His Royal Highness Prince Abdullah Bin Abdullaziz, presented his initiative, by which he called for full Israeli withdrawal from all the Arab territories occupied since June 1967, in implementation of UNSC Resolutions 242 and 338, reaffirmed by the Madrid Conference of 1991, and for the Arab countries to establish normal relations in the context of a comprehensive peace with Israel, if it binds with such and accepts an independent Palestinian state, with East Jerusalem as its capital.
Constructing the Wall
In accordance with Article 96 of the United Nations Charter, the International Court of Justice, pursuant to Article 65 of the Statute of the Court, was requested to urgently render an advisory opinion on the following question: What are the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the OPT, including in and around East Jerusalem.
The ICJ issued its ruling in the matter on July 9, 2004, which concluded that “[b]y the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem and by adopting its associated régime, Israel has violated various international obligations incumbent upon it (see paragraphs 114-137 above)”.18 The court, by a vote of 14-1, ruled that “[t]he construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law”; that “Israel is under an obligation to terminate its breaches of international law”; and that it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith al1 legislative and regulatory acts relating thereto.19
On the basis of the U.S. initiative and under its mediation, the delegations of Israel and the PLO and other participants met in the city of Annapolis, Maryland and came out with a common declaration which included, among other things:
- Agreed on principles for the bilateral negotiating process and their determined efforts to reach their goal of concluding a peace treaty resolving all outstanding issues, including all core issues, without exception; and
- Called on both parties to fulfil their obligations under the Performance-Based Roadmap and refrain from any steps that could undermine confidence or prejudice the outcome of negotiations.20
Fact finding Mission of the Human Right Council
In accordance with its Resolution/HRC/RES/19/17, the Human Rights Council dispatched an independent international fact-finding mission to investigate the implications of the Israeli settlements on the human rights of the Palestinian people throughout the OPT, including East Jerusalem.21 The UNGA Resolution (A/HRC/22/63,7/2/2013) mission report states that the Israeli settlements in the OPT, including East Jerusalem, violate Article 49 of the Fourth Geneva Convention, which also prohibits the occupying power from transferring parts of its own civilian population into the territory that it occupies.22 This prohibition has attained the status of customary international law; thus, these actions are illegal under international law.
The U.S. Administration Departs from Its Consistent Position
A few weeks before President Barack Obama left office, his administration did not veto, as it has always done, a UNSC resolution concerning the illegality of the Israeli settlements in the Palestinian occupied territories, including East Jerusalem.
UNSC resolution 2334(2016):23
• Confirmed that the “establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two -State solution and a just, lasting and comprehensive peace;
• Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respects all of its legal obligations in this regard; and
• Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations.
The U.S. Administration Moves Its Embassy to Jerusalem
After the Trump administration approved moving the U.S. embassy from Tel Aviv to Jerusalem, the UNGA special emergency session resolution A/RES/ES-10/19 stressed that “Jerusalem is a final status issue to be resolved through negotiations in line with relevant United Nations resolutions,” expressing, in this regard, its deep regret at recent decisions concerning the status of Jerusalem:24
• Affirms that any decisions and actions which purport to have altered the character, status or demographic composition of the Holy City of Jerusalem have no legal effect, are null and void and must be rescinded in compliance with relevant resolutions of the Security Council, and in this regard calls upon all States to refrain from the establishment of diplomatic missions in the Holy City of Jerusalem, pursuant to Council resolution 478 (1980);25 and
• Demands that all States comply with Security Council resolutions regarding the Holy City of Jerusalem, and not recognize any actions or measures contrary to those resolutions.26
Difference Between Types of Resolutions
The briefing above presents, to some extent, the position of the United Nations and through it the views of the international community on Jerusalem since the Oslo agreement and the failure to implement it. Specifically the above summary of resolutions shows the discrepancies in positions between the General Assembly resolutions, supported by great number of nations, and the Security Council resolutions, which often prevents the Council from being firmer with the Israeli violations and its obligations under the international law.
General Assembly Terminology
Welcomed the Declaration of Principles (Oslo agreement); the UN has permanent responsibility with respect to the question of Palestine; Jerusalem is a final issue to be resolved through negotiation in line with the UN relevant resolutions; called for refraining from actions and measures (in Jerusalem) which alter the facts on the ground and pre-empt the final status negotiations; the imposition of Israeli laws, jurisdiction, and administrative measures in Jerusalem are void and have no validity; Israel has to abide by its legal obligation and responsibility under the rules of the Geneva Convention; all the attempts to change the character, the legal status and the demographic composition of Jerusalem are null and void and have no validity; settlement activities in Jerusalem cannot be recognized, irrespective of passing of time.
Security Council Terminology
Affirmed its support for the peace process and called for the implementation of the Declaration of Principles; concerned about the difficulties facing the peace process; welcomed the Quartet establishment and endorsed the Roadmap (which call to negotiate the solution on Jerusalem, taking into account the political and religious concerns of both parties; and for Israel acceptance of independent Palestinian state with East Jerusalem is its capital); affirmed the Saudi peace initiative; Welcomed the Annapolis declaration supporting the bilateral negotiation of all core issues without exception.
Expressed concerns about development at the holy places of Jerusalem; called for the reversal of acts which have negative implication for the Middle East peace process; deplored the provocation carried at al-Haram al-Sharif and condemned acts of violence specially excessive use of force against Palestinian civilians by Israeli forces; called upon Israel to abide scrupulously by its obligation under the Fourth Geneva Convention; confirmed that establishing settlements by Israel in the OPT, including Jerusalem has no legal validity and violate international laws and pose obstacles to achieving the two-state solution.
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4UNGA, 1993. RESOLUTIONS ADOPTED BY THE GENERAL ASSEMBLY, A/RES/48/158. [Online] Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/84AD91C3ACE01C2E8525607E00712670
5UNGA, 1993. RESOLUTIONS ADOPTED BY THE GENERAL ASSEMBLY, A/RES/48/59 (A+B). [Online] Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/29F93C8FC9778ECA852561540071AB20
6UNSC, 1980. Resolution 478 (1980). [Online] Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/DDE590C6FF232007852560DF0065 FDDB
7UNSC, 1994. Resolution S/RES/904 (1994). [Online] Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/4690652A351277438525634C006DCE10
8UNSC, 1996. RESOLUTION S/RES/1073 (1996). [Online] Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/b792301807650d6685256cef0073cb80/ ee9fd45e870ef244852563b5004ac1c6?OpenDocument
9UNGA, 1997. RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY, A/RES/51/223. [Online] Av a i l a b l e a t : h t t p s : / / u n i s p a l . u n . o r g / D P A / D P R / u n i s p a l . nsf/2f86ce183126001f85256cef0073ccce/0e00636cd4e9981180256460003d30e4?OpenDocument
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11UNGA, 1997. RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY, A/RES/ES-10/2. [Online] Av a i l a b l e a t : h t t p s : / / u n i s p a l . u n . o r g / D P A / D P R / u n i s p a l . nsf/2f86ce183126001f85256cef0073ccce/252eeca3d55d2213802564ac00374540?OpenDocument
12UNGA, 1997. RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY, A/RES/ES-10/3. [Online] Av a i l a b l e a t : h t t p s : / / u n i s p a l . u n . o r g / D P A / D P R / u n i s p a l . nsf/2f86ce183126001f85256cef0073ccce/615e20d7b8297aeb052564f100363761?OpenDocument
13UNSC, 2000. Resolution 1322 (2000), S/RES/1322 (2000). [Online] Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/22F8A95E5C0579AF052569720007921E
14ICRC, 1949. CONVENTION (IV). [Online] Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/5ba47a5c6cef541b802563e000493b8c/ f9aa4e95f285ed49852563680059609a?OpenDocument
15UNGA, 2000. Resolution adopted by the General Assembly, A/RES/ES-10/7. [Online] Av a i l a b l e a t : h t t p s : / / u n i s p a l . u n . o r g / D P A / D P R / u n i s p a l . nsf/2f86ce183126001f85256cef0073ccce/08596718a4f2273685256998004d3993?OpenDocument
16UNSC, 2002. Resolution S/RES/1397 (2002). [Online] Av a i l a b l e a t : h t t p s : / / u n i s p a l . u n . o r g / D PA / D P R / U N I S PA L . NSF/0/4721362DD7BA3DEA85256B7B00536C7F
17UNSC, 2003. Resolution S/RES/1515 (2003). [Online] Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/71B2C135FCA9D78A85256DE400530107
18(ICJ), I. C. o. J., 2004. Legal Consequences of the Construction of a Wall, Press Release 2004/28. [Online] Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/3740E39487A5428A85256ECC005E157A
19UNGA, 2012. Human rights situation in the Occupied Palestinian Territory, including East Jerusalem, A/HRC/19/L.34. [Online] Av a i l a b l e a t : h t t p s : / / u n i s p a l . u n . o r g / D PA / D P R / u n i s p a l . n s f / f3059c4183c2cc2b85256d33006f5b4b/6a07e703b85c58a385257fce006ba815?OpenDocument dNSF/5ba47a5c6cef541b802563e000493b8c/0aed277dcbb2bcf585257b0400568621?OpenDocument
20UNSC, 2008. Resolution 1850 (2008), S/RES/1850 (2008). [Online] Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/7F7430A137000C4E85257523004CCADF
21UNGA, 2012. 19/17 Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan, A/HRC/RES/19/17. [Online] Av a i l a b l e a t : h t t p s : / / u n i s p a l . u n . o r g / D PA / D P R / u n i s p a l . n s f / f3059c4183c2cc2b85256d33006f5b4b/34031f489d4a3d3385257fce006ba805?OpenDocument
22UNGA, 2013. Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Opt, A/HRC/22/63. [Online] Available at: https://unispal.un.org/DPA/DPRUNISPAL. NSF/5ba47a5c6cef541b802563e000493b8c/ 0aed277dcbb2bcf585257b0400568621?OpenDocument
23UNSC, 2016. Resolution 2334 (2016), S/RES/2334 (2016). [Online] Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/6E628F30062A868385258096005D36BE
24UNGA, 1997. ILLEGAL ISRAELI ACTIONS IN OCCUPIED EAST JERUSALEM, A/ES-10/19. [Online] Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/eed216406b50bf6485256ce10072f637/ a041fe92e4bffad105256546007d8de0?OpenDocument
25UNSC, 1980. Resolution 478 (1980). [Online] Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/DDE590C6FF232007852560DF0065 FDDB
26UNGA, 2017. General Assembly Overwhelmingly Adopts Resolution Asking Nations Not to Locate Diplomatic Missions in Jerusalem, GA/11995. [Online] Available at: https://www.un.org/press/en/2017/ga11995.doc.htm