The city of Jerusalem was always considered part of the territory
of Palestine and had no special juridical status until the
partition resolution of 1947. The rights of different denominations
inside the city, particularly the different Christian
denominations, were regulated by a highly-detailed scheme known as
the Status Quo Agreement, and the successive govern¬ments have
always declared their adherence to that agreement. However, that
agreement had more to do with the lives of the different Christian
denominations and the potential disputes between them than with the
determination of the legal status of Jerusalem as distinct from the
rest of Palestinian territories.
The partition resolution of 1947 introduced for the first time the
concept of a corpus separatum, or special regime for the
city of Jerusalem and the surrounding villages and towns. [Part (3)
of Resolution 181 - Plan of Partition with Economic Union.]
The resolution recognized the importance of Jerusalem for adherents
of the three great monotheistic religions and purported to grant it
a separate international status.
This was reaffirmed shortly thereafter by Resolution 185 concerning
the protection of the city of Jerusalem and its inhabitants, and by
the recom¬mendations of the United Nations mediator for
Palestine, Count Folke Bernadotte, who made recommendations for the
implementation of that resolution, the appointment of a municipal
commissioner, and the estab¬lishment of a conciliation
commission to implement those resolutions. His recommendations were
adopted, shortly after his assassination, in Resolution 303 of
December 9, 1949.
Recognition Difficulties
Unfortunately, these resolutions were never implemented as fighting
broke out with the withdrawal of British Mandatory forces. Jewish
forces captured what is currently known as West Jerusalem,
including eight Arab neighborhoods. Arab forces, primarily the
Jordanian army, captured East Jerusalem including all of the Old
City, and the Jews lost two neighbor¬hoods there, namely the
Jewish Quarter and Neveh Ya'acov. The Jewish forces incorporated
fully the portion of Jerusalem they had captured into what became
the State of Israel, while the Arab forces incorporated the
por¬tion of Jerusalem they had captured into the West Bank and
later annexed it to the Hashemite Kingdom of Jordan. Until they
relinquished their claims in favor of the PLO in 1989, Jerusalem
continued to be treated by them as part of the West Bank.
While Israeli apologists often point out that only two countries,
Pakistan and England, have ever officially recognized the
annexation of the West Bank by Jordan, it is equally true that no
country has recognized the annex¬ation of West Jerusalem to
the State of Israel.
The reality, however, is that the international community did not
protest too loudly the elimination of this corpus separatum
and its absorp¬tion into Israel and the West Bank, although
occasional reference is made to the possibility of
internationalizing Jerusalem. The special importance the city holds
for the three major monotheistic religions is often a reason for it
not being recognized as an exclusively Israeli city or as the
capital of the State of Israel.
Unilateral Israeli Action
Following the war of 1967, however, the entire city, together with
the rest of the West Bank, was captured by Israeli forces and
Israel proceed¬ed to carry out a number of steps to alter the
legal and factual status of the city. The international community,
without exception, repeatedly and formally rejected those steps and
declared Jerusalem an integral part of the Occupied Palestinian
Territories whose status under the rule of belligerent occupation
cannot be unilaterally altered.
The result was, from the legal point of view, the creation of an
anomaly whereby Israeli actions on the ground found full expression
within the Israeli municipal legal system, altering the status of
East Jerusalem and applying Israeli law and administration to it.
This, of course, had and con¬tinues to have a major impact on
the lives of Palestinians on a day-to-day basis. On the other hand,
the international community unanimously reject¬ed such
actions, declared them to be illegal, and passed innumerable
reso¬lutions, unequivocally establishing an entirely different
status for the city under international law. The absence of
enforcement or enforceability of such decisions became a stark
example of the ineffectiveness of interna¬tional law when it
is not backed by proper enforcement mechanisms. Yet under
international law there is absolutely no question and no argument
that Israeli steps taken unilaterally after 1967 are null and
void.
As for the Israeli steps taken, the first was in 1967 when Israel
declared that full Israeli law and administration would be
henceforth applied to East Jerusalem. The basis, in Israeli
municipal law, for such actions was the law of the Knesset
permitting the government to take whatever measures it saw
necessary to "apply Israeli law and administration" to any area
under the control of the Israeli army. This meant that an
annexation could in fact be undertaken by an Israeli government
without the necessity of referring back to the Knesset.
A large number of administrative steps were taken to implement that
decision. First, Israel moved to expand the municipal boundaries of
the city of Jerusalem in a gerrymandering fashion, to include as
much land as pos¬sible and exclude as much of the Palestinian
population as possible. Second, the inhabitants of the expanded
Jerusalem municipality were issued with blue identification cards,
distinct from the orange cards issued by the military government in
the rest of the West Bank. The severe restric¬tions placed on
Palestinians in Jerusalem, including heavy taxes and the imposition
of the onerous obligations of Israeli law, to which they were
totally unfamiliar, made their lot initially very different from
that of the residents of the rest of the Occupied Palestinian
Territories.
Israel Annexes Jerusalem
The Israeli administration, however, wisely avoided making
immediate radical changes. Indeed, East Jerusalemites were given
significant exemp¬tions from the application of certain
Israeli laws, most notably the permis¬sion to continue using
Jordanian currency, the ability to carry and use Jordanian
passports and travel across the bridges (which was denied to
Israeli citizens), the continuation of the use of Jordanian
curricula in government schools, the continuation of the Awqaf
ministry and properties under Jordanian direction rather than
incorporating it into the Israeli Ministry of Arab affairs, and
other similar measures. At the same time, the inhabitants of East
Jerusalem were not issued with Israeli citizenship or passports
although it was implied that they could apply for such passports.
The manner in which the decision was implemented and the rejection
of these measures by the Palestinian Arabs meant that they would do
very lit¬tle to attempt to test or demand their rights under
Israeli law. Extensive use of the British (Emergency) Defense
Regulations which continued to be part of Israeli domestic law, and
extensive land expropriation and settlement activities in East
Jerusalem were meant as a show that there was little
dif¬ference between the treatment of East Jerusalemites and
their compatriots living in the rest of the West Bank under
military law. In fact, Israeli civil¬ian courts imposed, if
anything, harsher sentences on Palestinian Jerusalemite activists,
who were equally subjected to torture, forced con¬fessions,
arbitrary detention, and deportations as well as such collective
punishments as house demolitions, curfews and restrictions on
movement, particularly in the early years of the occupation.
While the international community was quick to denounce and reject
Israeli measures in Jerusalem, the focus of such rejection did not
come until the Israeli Knesset in 1980 passed the "Basic Law"
declaring united Jerusalem the capital of Israel and officially
annexing the city to the State of Israel.
On the ground, this did not radically change the situation for
Palestinian Arabs living in East Jerusalem who had already been
experiencing the real¬ity of annexation on a daily basis, but
internationally, the outcry was immediate and emphatic. All the
countries of the world that had embassies in Jerusalem immediately
moved them to Tel Aviv. The law was unani¬mously condemned as
a clear violation of international law. Resolution after resolution
of the United Nations General Assembly, and more
signif¬icantly of the Security Council whose decisions are
binding under interna¬tional law, reaffirmed the position of
international law rejecting the annex¬ation of land by force,
asserting that Jerusalem is an integral part of the West Bank and
the rest of the Occupied Palestinian Territories, affirming the
applicability of the 4th Geneva Convention to Jerusalem as part of
the Occupied Palestinian Territories, and generally and
specifically rejecting all unilateral Israeli actions on Jerusalem.
The United States, while official¬ly agreeing with this
position, nonetheless vetoed a number of resolutions that would
have led to concrete actions to be taken against Israel for
vio¬lating international law.
U.N. Resolution 252
One of the first Security Council resolutions pertaining to this
matter is Resolution 2
52 of May 21, 1968, in substance repeatedly reaffirmed by
sub¬sequent Security Council resolutions. An example is
Resolution 267 of 1969, which presents a prototype of many other
similar resolutions. It reads in its operative paragraphs as
follows:
1. Reaffirms Resolution 252 (1968);
2. Deplores the failure of Israel to show any regards for the
resolutions of the General Assembly and Security Council mentioned
above;
3. Condemns in the strongest terms all measures taken to change the
status of the city of Jerusalem;
4. Confirms that all legislative and administrative measures and
actions taken by Israel which purport to alter the status of
Jerusalem, including expropria¬tion of land and properties
thereof are invalid and cannot change that status ...
With minor changes, similar resolutions have been repeatedly and
unanimously passed by the Security Council, albeit with occasional
absten¬sions on the part of the United States. The norm is
that the international com¬munity can be considered united
regarding the legal status of Jerusalem.
Israel's Hold on Jerusalem
On the ground, however, Israel totally ignored these resolutions
and depended on the United States to veto any enforcement. It
proceeded to enact its own internal municipal legislation
strengthening its hold on Jerusalem. The most important such legal
step was the 1980 Basic Law declaring Jerusalem united and the
eternal capital of Israel, in effect reaffirming the application of
Israeli law and administration to it. The sig¬nificant thing
about this law, other than the immediate international response it
evoked, is that in the absence of a constitution in Israel, Basic
Laws have a superior legal effect and are conceived as being of
constitu¬tional stature and override any ordinary Knesset
legislation. While it is not absolutely clear in Israeli law, it is
often implied that Basic Laws can only be altered by a special
majority and by a specific legislation of similar qual¬ity,
that is, another Basic Law.
More important than the legal steps, Israel proceeded to Judaize
the city and to create a Jewish majority there through
expropriation of Palestinian land; freezing of all building and the
application of certain administrative measures aimed at radically
altering the situation on the ground, and creating facts. As noted
above, upon annexation, individu¬als in East Jerusalem were
given blue identity cards and not outright Israeli citizenship.
Professor of law, and dean of Tel Aviv University at the time,
Yoram Oinstein declared the annexation of Jerusalem illegal
precisely because Israeli citizenship was not granted to East
Jerusalemites. A large number of administrative actions have been
taken to reduce the number of Palestinians residing in East
Jerusalem, to make it difficult for them to find work or reside in
East Jerusalem, and to strip those who physically live
out¬side the municipal boundaries of East Jerusalem of their
residency there and give them West Bank identity cards.
These measures, while having drastic effects on Palestinians trying
to survive in East Jerusalem, are null and void under international
law and do not alter the status of the city.
Violating International Law
The Israeli plan is to totally ignore international law on this
matter, given the absence of any enforcement device, and to work
hard to create facts on the ground, in the belief that, sooner or
later, the international community would be forced to accept them.
Another possibility would be for the Palestinians to capitulate and
accept this situation and for the Israelis to then use Palestinian
capitulation as an indication of their having been granted special
new rights under international law.
The situation of Jerusalem therefore offers a classic example of
the fla¬grant violation of international law tolerated by the
international commu¬nity because of the absence of any
enforcement mechanisms, or more accu¬rately the absence of any
will to provide enforcement of international law. As in the case of
Bosnia, cynicism slowly sets in and international law, which many
hoped would provide some arbiter of international affairs, slowly
gives way to the absolute lawlessness of "might is right."
The Gulf War has recently demonstrated what the international
com¬munity can do, against a weaker party that flagrantly
violates internation¬al law. Unfortunately there is neither
the will nor the desire for a uniform application of international
law and Israel, so far, has taken full advantage of this weakness.