Palestinians claim East Jerusalem as the capital of their future state, basing their arguments on misinterpreted and irrelevant legal acts.
[dropcap]T[/dropcap]he question of legal right to sovereignty over East Jerusalem has been disputed among the parties involved and international actors since the establishment of the State of Israel. The UN General Assembly foresaw the internationalization of the Holy City in Resolution 181 in order to prevent any conflicts between Jews and Arabs and marginalize any claims of both sides. The reality however took a different course after the War of Independence in which Jerusalem became divided into two parts: Israeli in the west, and Jordanian in the east. The Six Day War in 1967 gave a chance for reunification of the city; Israel expanded the municipal area of the city by 28 surrounding Arab villages’ land and by doing so declared the annexation of East Jerusalem and treated it as an integral part of Israel proper. Consequently in 1980, the Israeli parliament passed its Basic Law, in which it reiterated the legal status of Jerusalem within Israeli jurisprudence as the undivided capital of Israel and the place of residence for Israeli governmental and other state institutions.
No country around the world has recognized any part of Jerusalem as the capital of Israel and no country around the world recognized the annexation of East Jerusalem to Israel. Palestinians claim East Jerusalem as the future capital of their state and vehemently oppose Israeli claims to East Jerusalem. The UN Security Council response to the ‘Jerusalem Law’ was Resolution 478 which called the aforementioned law “null and void” and this resolution has been complied with and agreed upon by a majority of states. The last countries to move their embassies to Tel Aviv were Costa Rica and El Salvador in 2006.
East Jerusalem is home to 428,304 people, constituting 59,5% of Jerusalem’s population, from which 181,457 are Jewish, 229,004 are Muslim and 13,638 are Christian. Obviously, both Muslim and Christian population are predominantly Palestinian, thus constituting a majority. The Arab residents are not, however, given an automatic Israeli citizenship but a permanent residence card and right to vote in municipal elections. Israeli citizenship can be obtained by an application and swearing loyalty to the State of Israel.
Israel holds a de facto sovereignty over East Jerusalem. The city, from Pisgat Ze’ev and the Mount of Olives to Ein Kerem, it has a unified infrastructure system – roads, sewage system, electricity and gas pipelines – and an open access for all the residents to welfare services, healthcare etc.
As stated by the Israeli Ministry of Foreign Affairs, Jerusalem has never been as significant for other nations as for the Jews. Israelis argue that their right to sovereignty over the entirety of Jerusalem is rooted in 3000 years history of Jewish affiliation to the city as their capital. Israel has also guaranteed a peaceful administration of the city. Since its takeover of East Jerusalem in 1967, freedom of access was granted to the holy sites to the pilgrims of all the religions, and the government maintained good relations with the administrative bodies of the holy sites, something that was lacking during the Jordanian rule of the Old City (under which the Jewish quarter was destroyed, Christians had a very limited access to the Holy Sepulcher and only Muslims could visit the Temple Mount without any restrictions).
International law experts such as Steven Schwebel, Eli Lanterpacht or Yehuda Blum provide more concrete legal arguments for Israel for her claims. According to those experts, Israel has much better claims to sovereignty over East Jerusalem, since the Six Day War that Israel won was a defensive war on her part and therefore the territories, which were acquired in this war, do not fall under the category of an unlawful occupation. Jordan has rescinded its claims to the West Bank in the Peace Treaty of 1994 and therefore there is no other claimant who could outweigh Israeli claims to the city. As for Palestinians, they have never in history formed a separate state and presented a sense of Palestinian nationhood and only recently did they claim Jerusalem for their capital, whereas Jews, since the establishment of the city by King David, did. Following those arguments, Israeli side claims that the status of Jerusalem is non-negotiable and Israel holds exclusive sovereignty over the city.
The Palestinian position concerning East Jerusalem is quite simple. East Jerusalem is a subject to Resolution 242 and therefore Israel must withdraw from this area as well as from all the areas conquered in 1967. The whole of Jerusalem, including the Western part, is a subject to negotiations on the Final Status as stated in the Declaration of Principles signed both by PA and Israel in 1993. Palestinians also claim that Jerusalem should be an open city without any restrictions on movement whatsoever, and claims that upon the return of East Jerusalem to Palestinian state as its capital, such a state will guarantee free access to the holy sites to the believers of all faiths. Furthermore, Palestinians claim the vital importance of Jerusalem for Palestine as the most important city of the West Bank, a connecting point between the northern and southern part of Palestinian Occupied Territories. Palestinians point to Jerusalem as the only and natural place for the capital of future Palestinian state and clearly indicate the illegality of not only Israeli occupation of the West Bank, but the annexation of East Jerusalem and even its presence in West Jerusalem.
As far as the world public opinion is considered, the stance of the main actors – US, EU and the UN – do not differ greatly. American statements clearly indicate the need for regulating the status of the city in direct negotiations between Israel and PA. As for the EU, on March 1st 1999 the German ambassador in Israel, Theodor Wallau, wrote to Ariel Sharon, confirming “the long standing view” of European Union, which considers the status of Jerusalem in accordance with the UN General Assembly Resolution 181 of 1947, i.e. as an international zone. In 2009 the Council of the European Union called in its statement for Jerusalem to become the capital of both states – Israeli and future Palestinian one.
The UN Secretary General, irrespective of who was holding the post, followed the policies adopted by the Security Council and General Assembly. The statement by Ban Ki-Moon confirmed the UN demands for the negotiations of the status of Jerusalem and indicated the need for division of the city and the end of Israeli occupation.
Relevance of the Resolution 181/1947 and Israel – Jordan Armistice agreement
The United Nations General Assembly Resolution 181 of 1947, in which the states agreed upon partitioning the territory of former British Mandate of Palestine into Jewish and Arab states, included the internationalization of the Greater Jerusalem area as well. Jewish representatives accepted the plan, since it was the first legal international act legitimizing the existence of Israel, however the Arab countries expressed their vehement opposition to the resolution and rejected it outright. The plan did not work out since the Arab states invaded Israel after the British evacuation and the armistice agreements with Egypt, Jordan and Syria formed new borders, which did not reflect in any sense the borders of the partition plan. The borders of 1949 Armistice line were, in accordance with the armistice agreement with Jordan, solely a military arrangement as stated in Article II, clause 2 of the agreement, void of any political implications:
“It is also recognised 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.”
It is therefore legitimate to argue, that neither Jordan nor Israel recognized each other’s sovereignty over any part of Jerusalem, leaving its status subject to final negotiations. Nevertheless, the territory of Israel drawn by the armistice lines, which existed between 1949 and 1967 became internationally recognized as Israel proper. In those years, merely a few countries recognized West Jerusalem as Israel’s capital. As it was mentioned before, EU considers Jerusalem an international zone in accordance with the Resolution 181, and claims to change its stance only upon a mutually agreed status between Palestinian Authority and Israel. It seems that the international community is willing to recognize Israel’s sovereignty over West Jerusalem, as agreed between Jordan and Israel in 1949.
Relevance of the resolution no. 242/1967 and the Israel-Jordan Peace Treaty
The Six Day War expanded Israeli territory into West Bank, with East Jerusalem falling under its control. The UN Security Council Resolution 242 issued the same year reads:
Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:
- Withdrawal of Israeli armed forces from territories occupied in the recent conflict;
-Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force
The Arab side argues, in contradiction to the real meaning of the resolution, that Israel has to withdraw from all the territories, acquired in the 1967 war. However, even the author of the resolution, Lord Caradon, representative of the UK to UNSC stressed that firstly borders have to be mutually agreed and only then Israel is to withdraw to “secured and recognized borders”, hence it implies the status of East Jerusalem as pending the final agreement between Israel and Jordan. The final agreement was already signed in 1994 in the form of a peace treaty between those two states. Although the treaty stipulates Jordanian recognition of the borders of Israel “without any prejudice to the territories of West Bank”, the treaty fulfills all the conditions presented in Resolution 242.
The resolution does not mention Palestinians in any of its paragraphs or does not demand the establishment of independent Palestinian state with Jerusalem as its capital. The PA’s argument that Israel acts in breach of the Resolution 242 by annexing East Jerusalem is therefore void; Israel and Jordan already fulfilled the requirements of the 242 – they agreed upon the borders and therefore Israel’s sovereignty over East Jerusalem, in the context of 242, is definitely and legally substantiated.
Jerusalem law and Resolution 478
It is not, however, Resolution 242 that puts Israel’s sovereignty in East Jerusalem at odds. In 1980, The Israeli Knesset passed a Basic Law, commonly referred to as Jerusalem law, which states that Jerusalem, undivided and complete, is the capital of Israel. The international public opinion did not accept this motion and the same year UNSC passed a Resolution 478, which called the Jerusalem law “void and null”, followed by a recommendation of moving the embassies outside Jerusalem. Today all countries comply with it. One could argue that Israel-Jordan Peace Treaty has made the Resolution 478 expired, but clearly none of the countries perceives it that way.
Although the international community clearly sees Israel’s claim over East Jerusalem as void and illegal, some universal legal and technical aspects of it have to be taken into consideration, if the subject is supposed to be examined in a purely non-politicized fashion. It has been stated numerous times, that the international law is focused on stability and it’s main purpose is to reduce the implications of change in the balance of power. The demanded division of Jerusalem, which advocates stability, is obviously not an option. Jerusalem has been administered peacefully for the last 40 years. The Arab rioters fighting with Israeli police do not really count, since numerous examples can be given drawing upon Europe or USA, where severe riots broke out, but there was no one to question the sovereignty of those states over the riot areas.
The most important consideration is the fact that the division of the city is abnormal and unnatural. The international community sought the reunification of Berlin as soon as possible. The division of Lefkosa/Nikosia in Cyprus is still unacceptable. Dividing the city is also hard to implement because of the topography and unified infrastructure of Jerusalem – the Jewish neighbourhoods are mixed with the Arab ones and splitting all of the city’s infrastructural systems would paralyze both parts of the city.
In sum, it is a general international consensus that creates a legal basis for state’s actions; if then, from day 1, a majority of countries did not recognize Israel’s sovereignty over West Jerusalem, it is hard to argue that Israel holds sovereignty also over East Jerusalem, despite its concrete and strong legal arguments. Palestinians claim East Jerusalem as the capital of their future state, basing their arguments on misinterpreted and irrelevant legal acts. Israelis claim sovereignty over all of Jerusalem in accordance with the international law. Despite this, none of the countries around the world will accept Israeli sovereignty over East Jerusalem, until it is negotiated in the Final Status agreement. In the light of all of the aspects, facts and legal documents presented, it is right, in this author’s opinion, to say that the status of Jerusalem is unregulated and none of the parties holds a de jure sovereignty over East Jerusalem.