Disentangling politics and law in East Jerusalem

Israeli construction in East Jerusalem is nothing new; since 1967, when Israel conquered the territory along with the rest of what had come to be known as the West Bank from neighbouring Jordan and extended Israeli administration over the entire city, Israel has settled close to 200,000 of its Jewish citizens in Jerusalem’s eastern sector (which has an Arab population of approximately 230,000).[1] Due to the acceleration of Israeli construction in recent months and renewed political will within the US administration to aggressively advance the Israeli-Palestinian peace process, East Jerusalem construction has increasingly become a source of tension between Israel and its Western allies and a focal point of media attention.

The status of Jerusalem is one of the most contentious issues in the Middle East and has no clear-cut solution. I would not presume to offer one. I will, however, attempt to disentangle and analyze some of the various legal and political considerations that are implicated in Israel’s construction in East Jerusalem.

Historical overview

Faced with rising internecine conflict between Jews and Arabs in Mandatory Palestine and the incompatible nationalist aspirations of both groups, Britain in 1947 placed the question of Palestine before the United Nations. The UN General Assembly proposed to partition Palestine (Resolution 181) into two sovereign states, with Jerusalem a corpus separatum to be administered by an international regime under the control of the UN. This proposal was never implemented; during the course of the first Arab-Israeli war of 1947-49, the western half of Jerusalem wound up under the control of Israel and the eastern half under that of Transjordan. This status quo persisted for 18 years.

In the 1967 Six Day War, Israel conquered the West Bank, including East Jerusalem. Though it never formally annexed the territory, Israel expanded the municipal boundaries of Israeli Jerusalem and declared the united city its capital, to be administered by Israeli civilian law. The expansion of Jerusalem’s borders incorporated not only the Jordanian municipality of Jerusalem but also land from surrounding Arab villages comprising close to one and a half times the size of Israeli and Jordanian Jerusalem combined.[2] This de facto territorial annexation was never recognized by the international community and was declared to contravene international law, inter alia, in UN General Assembly Resolution 2253 and UN Security Council Resolution 478 (both of which passed unopposed).

Political issues

The question of recognizing Israeli sovereignty over East Jerusalem is largely a political one. While an analysis of this question should – and indeed must – involve a discussion of relevant international law, it may nevertheless be useful to first discuss some of the unique overarching political considerations.

Recognition of Jerusalem as a political issue to be decided by the parties through negotiations

Under article V(3) of the 1993 Declaration of Principles (Oslo), Israel and the PLO agreed to determine the permanent status of Jerusalem in bilateral negotiations by 1999. Although peace talks collapsed before such an agreement was concluded, both the Israeli and Palestinian official positions recognize an ongoing commitment to negotiate the status of Jerusalem on the basis of Oslo.[3] This suggests: 1) that notwithstanding any international legal opinions on the status of Jerusalem, a final agreement will be concluded on the basis of a political agreement between Israel and the Palestinian Authority; 2) both Israel and the PA can be expected to make concessions from their starting positions on Jerusalem; and 3) neither Israel nor the PA should undertake any actions that will prejudge negotiations on the permanent status of Jerusalem.

The Jewish connection to Jerusalem

The Israeli claim to all of Jerusalem is rooted in the perception of continuity between the present-day state of Israel and the Biblical Israelite polity, whose King David is said to have first conquered the city and made it his capital over 3000 years ago. Once the site of the Jewish Temple, religious Jews have for two millennia prayed toward Jerusalem thrice daily, lamented its destruction in their rituals, and aspired to make it their home. For the last 150 years, Jews have constituted a demographic majority in the city.[4] Jerusalem is also a holy city to Muslims and Christians and a focal point of Palestinian culture, and numerous Israeli, Palestinian, and international declarations have affirmed the importance of guaranteeing freedom of worship and access to all.

The feasibility of dividing the city

Except for the 19 years in which Jordan occupied East Jerusalem, the city was never politically or physically divided. Israel celebrates the re-unification of the city as a victory in itself. The Israeli government and the PA, as well as the international community, have all emphasized that the city should never again be physically partitioned as it was between 1948 and 1967, and that its religious sites should be open to all.

Ambiguity regarding the borders of Jerusalem

Israel more than doubled the size of what were formerly Jerusalem’s municipal boundaries in 1967. It did so largely at the expense of neighbouring villages’ farmland and the division of suburbs and towns. Special funds are allocated each year to develop and expand the city, and virtually all expansion has taken place eastward on conquered land. The international community rejects any unilateral deviations from the 1967 borders. Many of East Jerusalem’s outlying Arab neighbourhoods are disconnected from the city centre and do not receive municipal services. It is unclear whether in the future such areas will or should be considered a part of Jerusalem.

Legal issues

The legal status of the West Bank (excluding East Jerusalem) as territory under military occupation is rather uncontentious; it is recognized as such both by the entirety of the international community and by the Israeli Supreme Court.[5] In contrast, while the entirety of the international community views East Jerusalem as being similarly under belligerent occupation, Israel’s executive, legislative, and judicial branches tend to treat East Jerusalem as a part of Israel.[6]

So the questions arise: On what basis should East Jerusalem be divided from the rest of the West Bank? Has Israel annexed East Jerusalem? If so, is that annexation legal under international law? And what obligations do international and domestic law impose on the Israeli government with respect to the administration of Jerusalem?

On the one hand, Part III(A) of Resolution 181 provides a prima facie basis for treating Jerusalem in its entirety as a separate entity from the rest of the West Bank, and gives credence to Netanyahu’s claim that the question of Jerusalem is not tied to the establishment of a Palestinian state. On the other hand, this clause is considered by Israel to have no binding authority[7] and, in the face of international consensus to the contrary, it is difficult to see any other legal basis on which to draw a distinction between the territories. UNSC Resolution 242, which emphasizes the inadmissibility of acquiring territory by war, draws no distinction between East Jerusalem and the other territories captured (other resolutions, such as UNSC Resolution 465, explicitly include Jerusalem). It does not seem compelling to argue, as Netanyahu seems to do, that East Jerusalem should be treated differently than the other territories simply because the Israeli government considers it to be more holy.

If we accept that there is some legitimate basis on which to distinguish between East Jerusalem and the rest of the West Bank (either based on Resolution 181 or any of the political factors discussed above), we must then ask whether it has been annexed by Israel either de facto or de jure. This is not an easy question to answer. Following its conquest of the territory, Israel explicitly denied that its actions in expanding Jerusalem’s municipal boundaries and applying Israeli law to the whole city constituted annexation.[8] Yet, as early as 1970 Supreme Court jurisprudence shows East Jerusalem having been treated as a part of Israel.[9] In 1980, the Israeli parliament adopted the Basic Law: Jerusalem, which legislatively entrenched “complete and united” Jerusalem as Israel’s capital – yet refrained from using words like annexation, sovereignty, or borders.[10] UNSC Resolution 478 nevertheless declared that law to be “null and void,” and no country maintains its embassy in Jerusalem. At Taba in 2001, Israel agreed that Jerusalem could be the capital of both Israel and Palestine, with Palestinian sovereignty over Muslim holy sites. As recently as last week however, Netanyahu reiterated his government’s position that Jerusalem is the “eternal capital of Israel”, that it will never again be divided, and that it is no different from Tel Aviv.[11] To be sure, the Israeli position on annexation of or sovereignty over Jerusalem is murky at best, and Professor Ian Lustick argues compellingly that Israeli annexation or extension of full sovereignty has never occurred.[12]

International consensus is split between whether Jerusalem should be the shared capital of Israel and Palestine or placed under some form of international administrative control. If Israeli annexation did occur then it is certain that the move was not recognized by any other country, though this does not make it ipso facto illegal either by virtue of the UN Charter or article 47 of the Fourth Geneva Convention. One possible argument for the legality of Israeli annexation is that since Jerusalem was never under the sovereignty of a Palestinian state, nor ever supposed to be under the sovereignty of such (according to Resolution 181), and since Israel acquired Jerusalem from Jordan, whose sovereignty was never recognized, in an (arguably) lawful act of self-defense and (again arguably) never acquiesced to its internationalization, Israel has just as much of a claim to it as anyone else. Especially if it can show that it is the best-placed party to uphold the principles of non-discrimination and free access to holy places which form the basis of Resolution 181 part III.

If, in the alternative, Israeli annexation never occurred to begin with (as Lustick argues), and the territory of East Jerusalem is undisputedly under belligerent occupation, then there would be little doubt that article 49 of the Fourth Geneva Convention and article 52 of the annex to the Hague IV Convention should apply. These articles respectively declare it illegal for the occupier to transfer part of its civilian population into the occupied territory and to expropriate land for any purpose other than military necessity.

As alluded to earlier, without appealing to public international legal instruments it could still be argued that Israeli annexation of East Jerusalem is precluded by its treaty commitments under Oslo, namely the obligation to negotiate the final status of Jerusalem with the PA. As indicated above, this obligation implies a duty on the part of Israel not to prejudge the outcome of negotiations, and an openness to territorial concessions. Even if the Israeli government considered Oslo to no longer be binding upon it, it will surely recognize that these duties are prerequisite to its many other standing commitments to seek peace with its neighbours.

Ironically, though many of Israel’s legal arguments in defense of its actions in East Jerusalem rely implicitly on provisions contained in Resolution 181, Israeli acceptance of this resolution would suggest acceptance of some sort of international regime for the administration of Jerusalem – which Israel has adamantly refused to consider. Some argue that Israel’s admission to UN membership was explicitly made conditional on its acceptance of Resolution 181.[13] Others argue that the legitimacy of Israel’s existence derives not from any UN resolution but rather from the assertion of independence by its people and as such, barring explicit acceptance by the state of Resolution 181, the General Assembly resolution has no binding force.[14] It should be noted in response that the pre-state government of Israel did in fact accept Resolution 181. In either case, it would seem inconsistent for Israel to accept the authority of some parts of the resolution and not that of others.

Turning away from international law for a moment, it is also worth briefly considering whether Israel’s actions in East Jerusalem comply with domestic Israeli law. Israel’s Declaration of Independence guarantees the development of the country for all of its inhabitants and equal social and political rights irrespective of religion, race, or sex. Israel’s Basic Law: Human Dignity and Liberty guarantees the state’s protection of every person’s dignity, property, and freedom from deportation. The government expropriation of more than 30% of East Jerusalem’s land for the building of Jewish-only neighbourhoods[15] and severe discrimination in citizenship/residency status (resulting in a policy of “quiet deportation”)[16] and resource allocation (Jewish neighbourhoods of Jerusalem receive approximately 5 times more resources per capita than Arab neighbourhoods)[17] raise a number of concerns with regard to the government’s compliance with these legislative provisions.

Further Israeli clarification of its legal position on Jerusalem would certainly be helpful. As to the legitimacy (I hesitate to use the word legality) of current Israeli construction in East Jerusalem, I again emphasize that there is no clear-cut answer. Such a determination depends on numerous extra-legal factors and requires a more thorough analysis of international law, international consensus, Israeli law, Israeli political consensus, and the parameters of the peace process than I’ve been able to provide here – though I hope I’ve succeeded in identifying and demarcating many of the relevant issues and considerations.

[1] http://www.jiis.org.il/imageBank/File/shnaton_2006/shnaton_C1005_2005.pdf

[2] http://news.bbc.co.uk/2/shared/spl/hi/middle_east/03/v3_israel_palestinians/maps/html/1967_and_now.stm

[3] Israeli Ministry of Foreign Affairs – http://www.mfa.gov.il/MFA/MFAArchive/1990_1999/1999/3/The+Status+of+Jerusalem.htm at para. 26; Palestinian Authority Ministry of Information – http://web.archive.org/web/20060212195415/http://www.minfo.gov.ps/permenant/English/Jerusalem/Pal_Official.htm at item no. 2.

[4] http://www.cbs.gov.il/hodaot2006n/11_06_106b.pdf

[5] Beit Sourik Village Council v. The Government of Israel (2004) at para. 23; http://elyon1.court.gov.il/files_eng/04/560/020/a28/04020560.a28.pdf

[6] See for example Ruidi and Maches v. Military Court of Hebron, cited in The Jerusalem Question and its Resolution by Lapidoth and Hirsch (1994) at p. xxiv – http://books.google.com/books?id=e93JIwTBjHgC&q=supreme+court#v=snippet&q=supreme%20court&f=false

[7] http://www.mfa.gov.il/MFA/MFAArchive/1990_1999/1999/3/The+Status+of+Jerusalem.htm at IV(A)

[8] Lapidoth and Hirsch, supra note 6 at p. xxiv.

[9] Ibid.

[10] In 2000, Israel passed an amendment stipulating that the Basic Law applies to Jerusalem’s borders as expanded in 1967 (apparently excluding the subsequent expansions).

[11] http://news.xinhuanet.com/english2010/world/2010-03/25/c_13223561.htm

[12] http://www.highbeam.com/doc/1G1-19163708.html

[13] Henry Cattan, The Palestine Question (1988) at p. 87 – http://books.google.com/books?id=LQcOAAAAQAAJ&pg=PA87&lpg=PA87&dq=&source=web&ots=NVRHecD-kT&sig=6i2uStTtoN_HlM8Xa2IsaPB7is0&hl=en&sa=X&oi=book_result&resnum=4&ct=result#v=onepage&q=&f=false

[14] Julius Stone, “International Law and the Arab-Israeli Conflict” at p. 11 – http://www.aijac.org.au/resources/reports/international_law.pdf

[15] http://www.ir-amim.org.il/Eng/?CategoryID=289

[16] http://www.btselem.org/english/Jerusalem/Revocation_of_Residency.asp

[17] http://www.btselem.org/english/Jerusalem/Infrastructure_and_Services.asp