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

Hisham Awartani

Danny Rubinstein

Sam'an Khoury

Boaz Evron

Walid Salem

Ari Rath

Zahra Khalidi

Daniel Bar-Tal

Ammar AbuZayyad

Galit Hasan-Rokem

Khaled Abu Aker

Galia Golan

Nazmi Ju'beh

Gershon Baskin

Edy Kaufman

Ata Qaymari

Benjamin Pogrund

Nafez Nazzal

Simcha Bahiri

Nadia Naser-Najjab

Dan Jacobson

Jumana Jaouni

Dan Leon

Anat Cygielman

Khuloud Khayyat Dajani

Izhak Schnell



Vol.4 No.1 1997 / Children of The Conflict

Viewpoint

The Legal Status of Palestinians in Jerusalem

Legal practices to strengthen Jerusalemís Jewish community and weaken that of the Palestinians.

     by Usama Halabi

As a result of the 1948 war between Arabs and Jews, and especially because of the attacks launched by armed Jewish groups on Arab neighborhoods in the western part of Jerusalem (e.g., Talbiyeh, Baka'a and Katamon), as well as on neighboring villages, like Deir Yassin, most, if not all, of the Palestinians living there were forced to leave their houses and flee to the eastern part of Jerusalem and to other neighboring Palestinian towns and villages. By spring of 1949, following the signing of the armistice agreement between Israel and Jordan, Jerusalem was divided into two sectors: West Jerusalem under Israeli control and East Jerusalem under Jordanian control. The Palestinians who had left West Jerusalem and had become refugees were subsequently declared by the Israeli authorities as "absentees" according to the Absentees' Property Law of 5710-1950.1 Consequently, all property owned by these Palestinians was transferred to the Custodian of Absentees' Property and from the latter to the Development Authority2 which, through Amidar - a company which housed new immigrants - designated it for new Jewish immigrants only. Palestinians who had lived in West Jerusalem prior to 1948 and left it during the war, became refugees and "absentees" regarding their property in the said part of the city.

1948-1967: Citizens of Jordan

On December 13, 1949, King Abdullah of Jordan passed a law amending the Law of Nationality of 1928. Accordingly, Jordanian citizenship was granted to all persons who were holding Palestinian citizenship and were habitually residing in Transjordan or in the "western area that [was] administered by the Hashemite Kingdom of Jordan" (i.e., Jerusalem and the West Bank ¨U.H.).3 On April 11, 1950, parliamentary elections took place in Jordan, covering both the East Bank and the West Bank, including East Jerusalem. Following these elections, the Jordanian House of Commons approved the amended law and parliament's decision concerning the "unification of the two Banks."4 Thus, Palestinians who were living in East Jerusalem and the West Bank became Jordanian citizens.

Since 1967: Citizens of Jordan and Residents of Israel

On June 7, 1967, the Israeli army completed its occupation of East Jerusalem. Ignoring the United Nations and the international community, and in violation of international law, the Israeli government, in a unilateral move, annexed occupied East Jerusalem on June 25, 1967. Seeking a legal cover for this action, the government submitted to the Knesset (Israeli parliament) on June 26 three bills concerning Jerusalem, extending Israeli law to any area of "Eretz Israel" designated by the government; enlarging by proclamation the area of a particular municipality; and protecting the holy places.
Following the enactment of the said laws, the Israeli government applied on June 28, 1967, the law, jurisdiction and administration of the State of Israel to an area of 72,000 dunums, stretching from the village of Sur Baher in the south to Qalandia Airport in the north. On the same date, the minister of interior issued a proclamation enlarging the area of jurisdiction of the West Jerusalem Municipality accordingly. Finally, on June 29, 1967, in response to the repeated requests of Teddy Kollek, former mayor of Jerusalem, the military commander of Jerusalem ordered the dissolution of the Arab municipality.5
Thus, according to Israeli law, without using the word "annexation," East Jerusalem became part of Israel. The Arab inhabitants of the city, however, were not granted Israeli citizenship. Instead, Israel allowed them to continue holding Jordanian passports and, following a population census on June 26, 1967, they were given Israeli identity cards (IDs) which indicated their status as "residents" of Israel rather than full citizens.

The Legal Implications of Being Israeli Residents

As permanent residents of Israel, Palestinian Jerusalemites were subjected to Israeli laws which had become applicable and relevant to all fields of their life. Palestinians of East Jerusalem were given some rights; in return, they had to bear almost all duties imposed by the different Israeli laws. They became, for example, eligible for national insurance allowances (for children, the elderly, disabilities, etc.) and they were given the right to vote in municipal, but not national, elections. On the other hand, Palestinians in East Jerusalem had to pay taxes to both the Israeli government and the Jerusalem Municipality. In addition, all businesses, companies and merchants that had been functioning prior to the occupation and annexation of the city, were forced to register with the Israeli Companies Registrar and/ or obtain Israeli business licenses. To travel abroad and to be able to re-enter Jerusalem, Palestinians had to obtain a "laissez-passer" (travel document) to leave through Ben-Gurion Airport and an Israeli "exit permit" to cross the Allenby Bridge into Jordan. Additionally, the right of East Jerusalem Palestinians to build houses on their own private lands came under the control of the discriminatory policy of the Israeli construction and planning authorities.
Those authorities have obstructed planning and construction in the Arab neighborhoods for many years, while, at the same time, they have been implementing plans for new Jewish settlements and constructing thousands of housing units for Jews in the eastern part of the city. Out of a total number of 9,070 housing units built between 1990 and 1993, only 463 units (5.1%) were built in Arab neighborhoods.6 Private building of houses was limited as well because many areas remained unplanned, preventing Palestinians living there from obtaining building permits. Additionally, in some planned Arab areas, 25% of the land was designated as "green areas" (open public spaces) where building was forbidden? When one adds to the above the fact that, since 1967, more than 4,000 dunums of Palestinian land in East Jerusalem have been confiscated, and on which 35,000 housing units were built for Jews only,8 the aggravation of the housing crisis among Palestinians of East Jerusalem, which drove many of them to live outside the municipal boundaries of the city, becomes easier to understand.

Confiscation of IDs and Revocation of Jerusalem Residency Status

In the Mubarak Awad case9, the Supreme Court of Israel, sitting as the High Court of Justice, ruled, inter alia, that Israeli laws and administration apply to the "eastern part of Jerusalem" and, thus, the eligibility for the right of residence of Palestinian Jerusalemites and the loss of this right has to be decided in accordance with the Entry into Israel Law of 195210 and with the Entry into Israel Regulations of 1974 issued in accordance with the said law. The court rejected the argument that Palestinian Jerusalemites (who, it should be noted, did not enter into Israel, but rather Israel "entered" into their hometown - ed. emphasis), have a special status which provides them with a "quasi citizenship" or "constitutional residency" that cannot be revoked by the minister of interior.11 The Court added that inhabitants of East Jerusalem who have not received Israeli citizenship by naturalization, reside in Israel (i.e., East Jerusalem) according to a residence permit and that every person who was included in the Population Census of June 1967, is considered to have been in possession of a permanent residence permit since then.12 According to Article 11A of the Entry into Israel Regulations, a permanent resident of East Jerusalem will be considered to have changed his/her domicile and to reside in another country, and, thus, will lose his/her right of permanent residency if he/she has stayed outside Israel for at least seven years; has obtained a permanent residence permit in another country; or has obtained citizenship of another country by naturalization.
Given the fact that Dr. Mubarak Awad resided outside Jerusalem (his hometown) for more than 10 years, settled in the USA, married an American and obtained American citizenship before he returned to Jerusalem and petitioned the Israeli Supreme Court, the court ruled that he had lost his right of permanent residency in Israel (i.e., in East Jerusalem) and, thus, the Israeli minister of interior could expel him from the country. 13
In the Fathiya Shiqaqi case,14 the Israeli High Court of Justice, on June 6, 1995, expanded its ruling on the Mubarak Awad case by deciding that a Palestinian Jerusalemite loses his/her right of residency even if none of the above-mentioned three categories of Article 11A of the Entry into Israel Regulations applied to the person. The Court said: "The fact of residing in a state out of Israel could also be determined by other facts that are not mentioned (emphasis - U.H.) in regulation 11A of the said regulations. The appearance of a new reality, replacing the reality of permanent residency in Israel, might be clearly indicated by circumstances other than those mentioned in regulation 11A of the said regulations."15 The court disregarded the fact that the petitioner left Israel on a valid "exit permit" and entered Israel on a valid "entry permit," and decided that she had lost her right of residence because she stayed out of Israel for six years, and gave birth to three children while in Syria with her husband, who had been deported some years earlier.
Until 1994, the confiscation of Israeli IDs and revocation of the "Jerusalem resident" status was applied from time to time, but mainly against Palestinian Jerusalemites who had lived in another country (other than Jordan) for a long time and who, usually, had obtained a passport of that country. The Israeli Ministry of Interior has changed its policy and, at present, this measure is being intensively used against any Palestinian Jerusalemite whose "center of life is not in Israel." This includes Jerusalemites who have moved to Jordan for work purposes or family reasons (a Jerusalemite wife married to a Jordanian), even if they left Jerusalem and came back to it legally and within the time limit set forth in the "exit permit" provided by the Ministry of Interior itself.16
The new policy is applied also to Jerusalemites who live outside the municipal boundaries of Jerusalem, especially women married to non¨resident husbands living in Ramallah and other neighboring Palestinian towns and villages, such as A-Ram, Al-Ezariyyah, etc.17 According to Shlomo Matania, who served as acting director of the Population Registry Office in East Jerusalem, the basis of this new policy is directives issued by the legal adviser of the Ministry of Interior to cancel the resident status of those who are registered but for whom the "center of life" is not in the city.18 Finally, in a letter of September 19, 1996, the Ministry of Interior, through the Registration and Passport Department, expressed its position that any Jerusalemite who lives in the "territories" (the West Bank) for more than seven years ceases to be an Israeli residcnt.19
It should be noted that, in the past, the Israeli authorities lacked accurate data regarding the number of Jerusalemites living outside the Jerusalem municipal boundaries, especially in the West Bank. Now, following the Palestinian elections of January 20, 1996, this data seems to be available. The names of Palestinians who participated in the elections, including East Jerusalemites residing outside the municipal boundaries, appeared in lists which were submitted to the Israelis and approved by them prior to the elections. Those lists may have been used by the Israeli Ministry of Interior to determine who is still an Israeli resident and who is not. This assumption seems reasonable in light of the Israeli practices in East Jerusalem since the Declaration of Principles (DOP) was signed in September 1993. These practices have included, in addition to the confiscation of IDs, an ongoing closure banning Palestinians of the West Bank and Gaza from entering the city, the confiscation of Palestinian land, the planning of new bypass roads (e.g., the Ring Road)20 and new Jewish settlements (e.g., Jabal Abu Ghneim - Har Homa)21 and the demolition orders issued by the Jerusalem Municipality against Palestinian houses built without licenses.22 The aim of these practices has been to strengthen the Jewish community and its presence in the city and to weaken the Palestinian community and its claim of sovereignty over East Jerusalem.

Concluding Remarks

The situation of Palestinians in East Jerusalem will not be determined until the permanent status of the city is agreed upon during the final-status negotiations between Israelis and Palestinians (which were supposed to have started on May 4, 1996). To avoid a situation whereby the only question on the agenda of the final-status negotiations concerning Jerusalem might be the "limited minority rights of Palestinian neighborhoods in united Jerusalem," the Palestinian Authority, as well as NGOs (local and international) and the international community have to demand a freeze on Israeli building and settlement activity in East Jerusalem and the maintenance of the status quo regarding the residency status of Palestinian Jerusalemites residing outside the municipal boundaries of Jerusalem, until a permanent solution to the question of Jerusalem is reached. In the DOP, each side recognized the "legitimate rights" of the other. Both sides have to agree to keep the city open and undivided under shared sovereignty. It is hoped that, in the near future, Jerusalem will be a capital of peace where everyone can choose one's place of residence, without fear of losing any of one's rights.

Endnotes

1. Published in Sefer Ha-Hukkim (Book of Laws), No. 37, 2 Nissan, 5710 (March 14, 1950), p. 86.
2. Established by the Development Authority (Transfer of Property), Law of 5710-1950.
3. See Law Additional to the Law of Citizenship, No. 56 of 1949, published in the Jordanian Official Gazette of December 20, 1949, No. 1004, p. 422.
4. See Proclamation published in the Official Gazette of October 11, 1950, No. 1037, p. 574. The Jordanian Law of Citizenship of 1928, as amended by the law of 1949, was replaced on February 16, 1954, with the Jordanian Citizenship Law, No.6 of 1954.
5. Usama Halabi, The Jerusalem Arab Municipality (Arabic), Jerusalem: PASSIA, 1993, p. 28.
6. B'Tselem (The Israeli Information Center for Human Rights in the Occupied Territories), "A Policy of Discrimination - Land Expropriation, Planning and Building in East Jerusalem," May 1995.
7. Sarah Kaminker, "Planning and Housing Issues in East Jerusalem;' a report prepared for the Society of St. Yves, in response to High Court Petition 1091/94, June 1994.
8. Ha'aretz newspaper, May 2, 1995.
9. H.C. 282/88 Mubarak Awad vs. Prime Minister of Israel et. al. 42 Supreme Court Decisions, at 224.
10. Published in Sefer Ha-Hukkim, No. 11, 15 EluJ, 5712 (September 5, 1952), p. 354.
11. Mubarak Awad, supra note 12, at 430.
12. Ibid., at 431.
13. Ibid., at 433.
14. H.c. 7023/94 Fathiya Shiqaqi vs. Minister of Interior (unpublished).
15. Supra note 17, at 3.
16. See H.C. 7952/96 Fares Bustani vs. Minister of Interior et al. (unpublished). In its decision issued in December 1996, the Court said the petitioner is living with his wife and children (all holding Israeli IDs) in Amman, has been working there for three years and, thus, his center of life is in Jordan. The Court added that summer (even yearly) visits of the petitioner to Jerusalem do not change the fact that his center of life is not in Israel, Le., Jerusalem.
17. See "The Trap Is Closing on Palestinian Jerusalemites;' Memorandum No.1 /96, Alternative Information Center, Jerusalem, 1996.
18. See "Action Alert" Issued by the Alternative Information Center, Jerusalem, March 30, 1996.
19. The letter was sent to advocate Lea Tsemel and the writer has a copy in his files.
20. A 14-km-long road which will connect the Jerusalem-Bethlehem road in the south with the settlement of Pisgat Ze'ev in the north.
21. A new Jewish settlement of 65,000 housing units, to be built in what is known as Jabal Abu Ghneim, southeast of the Palestinian village of Sur Baher.
22. In 1995, at least 74 administrative demolition orders were issued against Palestinian houses.








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