Of course resolution of the East Jerusalem – and the wider Israeli-Palestinian – issue relies on political as well as legal consensus. I never meant to venture that international legal consensus and the prescriptions it espouses provide grounds for a definitive end to the conflict.

What I contend is that, because the international political and international legal consensuses are essentially the same they should be relied upon as fundamental grounds for a negotiated peace between Israel and Palestine. I think that you would also agree on this point. What is not given due mention, however, is that Palestinian consensus – even the official position of Hamas – is in complete accord with the international political and legal consensus. (a letter dated June 3rd 2009 to President Obama affirms this position of Hamas).
The political arena, like the legal arena, is less contentious than you make it out to be. If the Palestinian actors are sincere in their respect for the international consensus (admittedly a significant ‘if’) then there exists not tripartite balance of interests between Israel, Palestine and the international community but instead Israeli (and American) opposition to an international consensus that has been voiced both in the legal and political arena.

While, the questions you bring up under domestic Israeli law are interesting, I feel that your reply addresses my sentiment towards them very accurately. While domestic legal considerations are worthy of contemplation in this case, they are so not because of any merit or usefulness they would bring to the larger debate but because of the truly unique nature of Israeli political and legal action regarding East Jerusalem and the Palestinians more generally. Apart from such an analysis Israeli domestic questions (for me at least) are of very little practical importance because many of the SC’s opinions run in direct contravention of international law.

very respectfully,
Laurence Farmer

While you are of course right that there is no equivocation in international consensus on the status of Jerusalem as occupied territory (to be governed by conventions pertaining to such), this remains a political designation and not a legal one (despite its many legal implications). It is accepted as a starting point in many General Assembly and Security Council resolutions, and even in the ICJ opinion that you referenced, but the ICJ has never examined or passed judgment on reasons why Israeli annexation of East Jerusalem would or wouldn’t be legal. Nor has it ever ruled on which party has a stronger legal claim to the territory.

I am not by any means arguing that it is wrong for the international community to designate East Jerusalem as occupied territory or to demand that the laws pertaining to belligerent occupation apply there. Rather, I am urging people not to fall into the trap of viewing this designation as an unambiguous legal matter as opposed to a political one. The balancing of the competing (Israeli, Palestinian, international) claims to Jerusalem simply cannot be made within the legal sphere, as you seem to suggest it can, but requires a political solution that is based on – among many other things – international consensus and the various domestic considerations I alluded to. I couldn’t disagree more strongly with your assertion that under international law East Jerusalem is undisputedly Palestinian land (it never belonged to nor was allocated to a Palestinian polity), although I do support the political consensus that affirms it should be.

The legal questions that I attempt to address are largely from a domestic Israeli perspective: under Israeli law, is East Jerusalem occupied territory, annexed territory, or something else altogether? As I’ve attempted to show, this is far from clear, and Israeli legislation and jurisprudence provides mixed indications. Former Israeli Supreme Court President Aharon Barak said in the aftermath of the 2004 ICJ decision that “the ICJ regards East Jerusalem as occupied territory, while we do not”; well if that’s the case, what does Israel consider to be the legal status of East Jerusalem, and what implications if any does this have on Israel’s construction there? Even if you consider these questions to be of little practical importance, they may still be worthy of contemplation.

These are but two off-the-cusp examples in a long list of similar UN initiatives. Also of note is the unanimity of human rights organizations on the issue, which conforms to the above UN resolutions.

Complexities only exist to the extent that illegal Israeli settlement building has anchored permanent populations to land that is Palestinian. Such complexities are further compounded by the Supreme Court’s acquiescent treatment. The illegal settlements have solidified an Israeli presence in East Jerusalem and consequently created seemingly insurmountable impediments to conforming with UNSC resolution 242. These complexities are due to intentional Israeli defiance of international law.

What is perhaps most concerning about framing this issue as so legally complex is that it tacitly condones the status quo and likewise confounds steps for profound and necessary change. Because East Jerusalem is such a core issue, a lasting Palestinian-Israeli peace can only be achieved once this issue is resolved. I propose that the best way forward is not through artificially complicating the legal issues involved but to acknowledge the profound international consensus and what it prescribes.