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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.2 No.2 1995 / Our Jerusalem

Focus

The Legal Status of Jerusalem

A flagrant violation of international law, tolerated by the international community.

     by Jonathan Kuttab

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.








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