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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.
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