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Max Planck Encyclopedia of Public International Law [MPEPIL]

Jerusalem

Ruth Lapidoth

Subject(s):
Self-defence — Recognition — Sovereignty — Self-determination — Trust territory and mandate

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Background

Jerusalem is the largest city in Israel, with an area of 126.3 square kilometres, and 804,355 inhabitants (at the end of 2011): 281,144 Muslims, 14,674 Christians, 508,537 Jews and others (Minorities, International Protection). About a third of the Jews in Jerusalem are very religious. Jerusalem is situated at the crossroads between Israel proper and the West Bank (Israel, Occupied Territories).

In at least three respects Jerusalem differs from most other places: the city is holy to adherents of three religions, it is the subject of conflicting national claims by two peoples, and its population is heterogeneous to a considerable degree. These characteristics require some elaboration.

In the city one finds Holy Places of Christianity, since according to Christian tradition Jesus was active in various locations in Jerusalem. In Jerusalem he also died and came back to life at the Holy Sepulchre and later ascended to heaven from the Mount of Olives. Under the Islamic tradition, the Al-Aksa Mosque and the Dome of the Rock as well as the Temple Mount (Haram al Sharif) on which they are situated are Holy Places, due to Muhammad’s nocturnal visit. Muslims believe that the Al-Aksa Mosque is the Farthest Mosque mentioned in the Koran. For the Jewish people the whole city is holy, in particular the Temple Mount (Har Habayit), because of the divine presence (the Shechinah), and because the two Jewish temples stood there.

It has been argued that some of the events which are associated by the various religions with Jerusalem could not, from a historical point of view, have actually occurred. However, religious faith deserves respect, and historical accuracy is not relevant in this regard. Unfortunately, religious belief in the sanctity of certain sites in Jerusalem has been exploited by various individuals, State[s] and institutions in order to achieve political goals.

As for the national aspect, according to Israeli law united Jerusalem is the capital of the State of Israel, but the Palestinians also have adopted a law which claims the city, and declares it their capital.

Turning to the heterogeneous nature of the population, it is sufficient to stroll through the streets of the city to realize that it indeed consists of a mosaic of many different communities. Thus, members of some 40 different religious or ethnic groups live in Jerusalem.

These features may explain why there are so many different opinions concerning the legal status of the city, and why it is such a thorny problem in the peace process.

B.  Some Legally Relevant Landmarks in the History of Jerusalem

In 1517, soon after the end of the Middle Ages, Jerusalem, together with the rest of Palestine, came under Ottoman rule for a period of 400 years. Since 1830, the first time a census was taken, the majority of the city’s population has been Jewish—at first merely a relative majority but subsequently an absolute one.

The Holy Places in the city have often been a source of conflicts. In the 18th and 19th centuries, a bitter controversy arose when certain European countries extended their protection over various Christian communities in Palestine and over the places that were holy to them. In order to regulate the status of the various communities at the Holy Places, the Ottoman government promulgated a number of edicts (firmans), the most important one being that of 1852. The 1852 edict concerned certain Christian Holy Places and determined the powers and rights of the various denominations regarding those places. This arrangement became generally known as the status quo and has been applied in Jerusalem to the Church of the Holy Sepulchre and its dependencies, the Deir al-Sultan, the Sanctuary of the Ascension (on the Mount of Olives), the Tomb of the Virgin Mary (near Gethsemane), and in Bethlehem to the Church of the Nativity, the Milk Grotto, and the Shepherds’ Field. The status quo obtained international recognition at the 1856 Conference of Paris after the Crimean War (1853–56) (Paris Peace Treaty [1856]) and by Art LXII (7) Treaty between Austria-Hungary, France, Germany, Great Britain, Italy, Russia and Turkey for the Settlement of Affairs in the East ([adopted 13 July 1878, entered into force 3 August 1878] 153 CTS 171; Berlin Congress [1878]). It has also been reconfirmed by Art 4 Fundamental Agreement between the Holy See and the State of Israel ([adopted 30 December 1993, entered into force 10 March 1994] [1994] 33 ILM 153), as well as by Art 4 Basic Agreement between the Holy See and the Palestine Liberation Organization.

10  Neither the Balfour Declaration made by Great Britain in 1917 nor the terms of the British mandate for Palestine (Mandates) drafted by the Council of the League of Nations referred to Jerusalem (see also Decolonization: British Territories). The terms of the mandate, however, did address the Holy Places. The Mandatory Power was requested to preserve existing rights in those places and to ensure free access and worship, subject to requirements of public order and decorum. According to Art 14 British Mandate for Palestine a special commission was to be established by the Mandatory Power with the approval of the Council of the League of Nations, that would study, define and determine the various rights and claims in connection with the Holy Places. The special commission was never established because of lack of agreement among the powers about its composition and procedure. Shortly after the mandate came into force, Great Britain adopted the Palestine (Holy Places) Order in Council of 1924, under which, according to Art 2, ‘no cause or matter in connection with the Holy Places or religious buildings or sites or the rights or claims relating to the different religious communities in Palestine shall be heard or determined by any court in Palestine’. Although the text did not say so explicitly, these matters were to be handled by the British High Commissioner (today the Prime Minister of Israel). This law is still partly in force in Israel.

11  In 1947, after World War II, Britain asked the United Nations General Assembly to consider the Palestinian question, and on 29 November 1947, the General Assembly adopted its famous resolution 181(II) on the future government of Palestine. Part III of that resolution dealt with Jerusalem. The General Assembly recommended the establishment of a ‘corpus separatum under a special international regime’ (at Part III A). The United Nations Trusteeship Council (United Nations Trusteeship System) and a governor appointed by it would administer the corpus separatum. In the economic sphere, the General Assembly recommended the establishment of an economic union between Jerusalem and the Jewish and Arab States that were to be established in Palestine.

12  The General Assembly resolution received the consent of the national leadership of the Jewish community of Palestine, but the Arabs categorically rejected it and immediately initiated attacks on Jewish towns and villages, including the Jewish neighbourhoods in Jerusalem (Arab-Israeli Conflict).

13  On 14 May 1948, when the British mandate over Palestine was about to end, representatives of the Jewish community in Palestine adopted the Declaration of the Establishment of the State of Israel which does not mention Jerusalem, but it declares that Israel ‘will safeguard the Holy Places of all religions’ (at 4). Immediately after the establishment of the State, the armies of five Arab States—Egypt, Jordan, Iraq, Lebanon and Syria—invaded Israel (see also Middle East). The armies of Jordan—or Transjordan as it was then called—and Egypt operated in the Jerusalem region. The battle for Jerusalem was fierce, in part because, for a time, the Jewish areas were cut off from the coastal plain. The battle for the Old City ended with the surrender of the Jewish quarter to the forces of the Transjordanian Arab legion on 28 May 1948.

14  On 7 July 1948, even before the fighting abated, Jordan and Israel reached a special agreement under the auspices of the UN regarding the Jewish enclave on Mount Scopus (UNSC ‘Letter Dated 14 May 1953, from the Chief of Staff of the United Nations Truce Supervision Organization in Palestine to the Secretary-General, Transmitting a Report to the Security Council’ [25 May 1953] SCOR 8th Year Supp for April, May and June 1953, 28). The parties agreed to neutralize this area as well as the adjoining area of the Augusta Victoria hospital, which was under Jordanian control, and to assign these areas to UN protection.

15  When the fighting ended, Jordanian forces were in control of the eastern parts of the city, whereas the western sector was under Israeli control. In November 1948, a truce came into force throughout the city, and on 3 April 1949 Jordan and Israel signed the Hashemite Jordan Kingdom-Israel General Armistice Agreement ([adopted and entered into force 3 April 1949] 42 UNTS 303; Armistice).

16  A proclamation made by the Israeli Minister of Defence on 2 August 1948, and Sec. 1 Area of Jurisdiction and Powers Ordinance, 5708–1948 applied Israeli law to west Jerusalem. That ordinance provided that the law in force in the State of Israel shall also apply to any part of Palestine that the Minister of Defence would designate by proclamation as under occupation of the Israel Defence Forces.

17  At the end of 1949, following the renewed debate on Jerusalem in the UN General Assembly, Prime Minister David Ben-Gurion of Israel announced in the Knesset (Israel’s parliament) that Jerusalem was an ‘inseparable part of the State of Israel’ and its ‘Eternal Capital’ (Record of the Knesset Proceedings, December 1949 vol 3 220–26 and 281–87). The Knesset approved this position.

18  In 1948 and 1949, a conference of dignitaries from areas conquered by Jordan in 1948 convened in Jericho. The participants expressed their wish to be part of Jordan, and consequently the king of Jordan and the Jordanian parliament proclaimed the annexation (or unification, in their words) of the West Bank, including east Jerusalem, to the kingdom.

19  During the years 1948–52, a number of debates took place at the UN on the future of Jerusalem, and the UN Trusteeship Council prepared a draft statute for the city, but from 1952 until the Six Day War in 1967, no significant debates occurred.

20  When the Six Day War broke out (between Israel and Egypt, Syria and Jordan), Jordan attacked west Jerusalem, despite Israel’s commitment transmitted via the UN and the United States of America (‘US’) that if Jordan refrained from attacking Israel, Israel would not attack Jordan. A few days later, Israel Defence Forces recovered the area taken by the Jordanian army (Government House, formerly the seat of the British High Commissioner) and expelled the Jordanian army from east Jerusalem and the West Bank. Opinions have differed between Israeli (and most Western) lawyers on the one hand and Arab lawyers on the other as to which party was the aggressor in the Six Day War.

21  Soon after the fighting ceased, Israel sought to include east Jerusalem under its jurisdiction. The Knesset passed the Law and Administration Ordinance (Amendment No 11) Law, 5727–1967, Sec. 1 of which authorizes the government to apply the law, jurisdiction, and administration of Israel to areas formerly part of mandatory Palestine. Similarly, the Municipalities Ordinance (Amendment No. 6) Law, 5727–1967 authorized the extension of the municipal boundaries where Israel’s jurisdiction had been applied in accordance with the above amendment. The government of Israel issued an appropriate order to apply Israeli law to the eastern sector of Jerusalem, which was also included within the jurisdiction of the Jerusalem municipality. Israeli law and administrators, however, have granted east Jerusalemites certain facilities by establishing special arrangements, inter alia, by virtue of the Legal and Administrative Matters (Regulation) Law [Consolidated Version] of 1970. The most conspicuous example of the differences between the principles applied in Israel and in east Jerusalem is the system of education. Schools in the eastern neighbourhoods have taught the Jordanian curriculum and later switched to the Palestinian one. (It seems that in recent years, some of the schools in east Jerusalem offer both curricula.)

22  The Palestinian residents of east Jerusalem have the status of permanent residents of Israel—a status which confers upon them the right to have an Israeli identity card and to enjoy the social benefits under Israeli law, namely, social security and national health insurance. They may freely move around Israel and work anywhere. The status of permanent resident can be withdrawn if the person settles in another country, or has not visited Jerusalem for seven years, without a plausible reason.

23  As to Israeli citizenship, it has not been imposed on the residents of east Jerusalem, but they can acquire it by applying for it in accordance with the rules of naturalization. So far, however, only a small number of residents of the eastern sector of the city have applied for Israeli citizenship. In recent years the numbers have grown. The participation in elections for the municipality is not limited to citizens of Israel, and hence the permanent residents of the eastern sector may vote in the municipal election. So far only few have actually cast their votes (see also for the subject of voting paras 33 and 57 below).

24  Israel has increased the municipal boundaries of Jerusalem to extend from Atarot in the north to a point not far from Rachel’s Tomb in the south, and from Ein Kerem in the west to the eastern slopes of Mount Scopus.

25  Various UN bodies have sharply criticized the measures Israel has taken in east Jerusalem. Did these acts constitute annexation of the eastern parts of Jerusalem? In July 1967, then-Minister of Foreign Affairs Abba Eban informed the United Nations Secretary-General in writing that these acts did not constitute annexation but only administrative and municipal integration (UNSC ‘Report of the Secretary-General on Measures Taken by Israel to Change the Status of the City of Jerusalem’ [10 July 1967] SCOR 22nd Year Supp for July, August and September 1967, 73). Israel’s Supreme Court, however, has held, at first somewhat hesitantly, in a number of decisions that under Israeli law the eastern sectors of Jerusalem had become a part of the State of Israel.

26  Immediately after the fighting in Jerusalem ended in June 1967, Prime Minister Levi Eshkol convened the spiritual leaders of various communities and reassured them of Israel’s intention to protect all Holy Places and to permit free worship. A few days later, the Knesset passed the Protection of Holy Places Law, 5727–1967, which ensures protection of the Holy Places against desecration as well as freedom of access thereto (at Sec. 1). Soon after Israel acquired control of east Jerusalem including the Old City, the government returned the administration of the Temple Mount to the Muslim authorities (the Waqf).

27  United Nations Security Council Resolutions 242 of 22 November 1967 and 338 of 22 October 1973, did not mention Jerusalem. Nor did Jerusalem feature in the Framework for Peace in the Middle East agreed at Camp David (‘Camp David Accords’; Camp David Accords [1978]) between Israel and Egypt because of fundamental differences of opinion between the parties on the issue. Each of the participants in the Camp David conference, however, stated its position in a letter sent to the other via the US President. Prime Minister Menachem Begin of Israel stated that, in accordance with legislation from 1967, ‘Jerusalem is one city, indivisible, the Capital of the State of Israel’. President Anwar Sadat of Egypt, on the other hand, stated that ‘Arab Jerusalem is an integral part of the West Bank, … and should be under Arab sovereignty’ (at paras 1 and 2). President Sadat determined that ‘[e]ssential functions in the City should be undivided, and a joint municipal council composed of an equal number of Arab and Israeli members can supervise the carrying out of these functions’. He added that ‘in this way, the City shall be undivided’ (at para. 7; on the letter by US President Carter, see below, para. 50).

28  In 1980, the Knesset adopted a new law concerning Jerusalem—the Basic Law: Jerusalem, Capital of Israel. This law states in Sec. 1 that ‘Jerusalem, complete and united, is the capital of Israel’, and in Sec. 2 that it is ‘the seat of the President of the State, the Knesset, the Government, and the Supreme Court’. In Sec.3, it states further that the Holy Places shall be protected and in Sec. 4 that the government and other authorities have to provide for the development and prosperity of Jerusalem. In fact, the contents of the law do not include any new principles. Originally its provisions were not entrenched, but in November 2000 two entrenched sections were added to the statute: the transfer of any powers, whether permanently or provisionally, concerning Jerusalem in its 1967 boundaries, requires the consent of a majority of the members of the Knesset (namely, 61). This provision relates to any power entrusted by Israeli law to the government or to the municipality of Jerusalem. The new restrictions were adopted because the Knesset wished to make sure that then Prime Minister Ehud Barak would not reach an agreement with the Palestinians against the will of the majority in the Knesset. In this context one should also mention a law of 1999 which deals with areas to which Israeli law, jurisdiction and administration apply. A resolution by the government to end such application in a certain area requires the approval of the Knesset by a majority of 61 members, and a referendum. The rules on referenda under this provision were laid down by the Knesset in 2010. The relevant 2010 law also provides that if the approval was given by 80 members of the Knesset, there is no need for a referendum (the Knesset has 120 members). The adoption of the 1980 law aroused resentment in the international community. The UN Security Council condemned it in Resolution 478 (1980) as ‘a violation of international law’ (at para. 2) and called on Member States with embassies situated in Jerusalem to withdraw them from the city. Thirteen embassies left the city following that resolution. In 1982 the embassy of Costa Rica returned to west Jerusalem, followed in 1984 by that of El Salvador. However, in 2006 they too were removed.

29  It was also in the summer of 1980 that the European Community (at that time including only nine members) adopted its Venice Declaration on the Middle East, which provided with regard to Jerusalem in para. 8:

‘The Nine recognize the special importance of the role played by the question of Jerusalem for all the parties concerned. The Nine stress that they will not accept any unilateral initiative designed to change the status of Jerusalem and that any agreement on the city’s status should guarantee freedom of access for everyone to the Holy Places’ ([1980] 13/6 BullCE 10).

30  In the early 1980s, Jordan requested to register the Old City and its walls in the World Heritage List, established under the UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage ([adopted 16 November 1972, entered into force 17 December 1975] 1037 UNTS 151; Common Heritage of Mankind; Cultural Property; United Nations Educational, Scientific and Cultural Organization [UNESCO]). Although by that time Jordan was no longer in control of the Old City, its request was granted. In the following year the Old City was registered also in the list of sites in danger (see also United Nations, Specialized Agencies).

31  Jerusalem was not on the agenda of the Madrid Conference on Peace in the Middle East of 1991. It was dealt with to a certain extent in the 1993 Declaration of Principles on Interim Self-Government Arrangements, the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, and in the Treaty of Peace between The State of Israel and The Hashemite Kingdom of Jordan (‘1994 Israel-Jordan Peace Treaty’) of 1994—to be discussed in para. 60 below.

32  In 1995 the US Congress adopted the Jerusalem Embassy Act. This statute called for the recognition of united Jerusalem as the capital of Israel, and requested the Administration to move the US embassy from Tel Aviv to Jerusalem by 1999. The provision foresees budgetary consequences in case of non-compliance. However, the US President was authorized to delay the implementation of this statute by periods of six months if in his opinion it ‘is necessary for the national security interests of the United States’ (at Sec. 7 (a) (1)). So far (2013) the President has consistently used this power of suspension. Opinions among US lawyers differ on whether or not this statute conforms to the division of powers between Congress and the President. A similar controversy relates to Sec. 404 Consolidated Appropriations Act, 2004, that ordered the US consul in Jerusalem to register American children born in Jerusalem as born in ‘Jerusalem, Israel’ if the parents so wish. So far the consul has refused to comply with this order, and he continues to register them as born in ‘Jerusalem’. This controversy is still now the subject of court proceedings in the US.

33  In 1996 the Palestinians of east Jerusalem were permitted to vote for the Ra’ees and for the Legislative Council of the Palestinian Authority. They also participated in the vote for the Palestinian Ra’ees in 2005 and for the Palestinian Legislative Council in 2006 (see on this subject also under para. 57 below).

34  The attitude of the Palestinian Legislative Council was expressed in the Law on the Capital of Jerusalem, to be discussed below.

In 2002 the government of Israel decided to construct a security fence between Israel and the West Bank in order to prevent the infiltration of terrorists into the country, and in 2003 it was decided to establish such a barrier also around Jerusalem. In principle, the barrier was intended to surround the municipal area of Jerusalem, but in a few locations there is a slight deviation. In certain areas, with a dense population, a wall has been built instead of a fence because a wall takes up less space. The fence and the wall have a considerable number of gates for people and for goods. The barrier has reduced the number of infiltrations by terrorists, but it has caused economic, personal, and legal problems.

In its 2004 Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory), the International Court of Justice stated, that wherever the fence or the wall is situated beyond the 1949 armistice lines, it is illegal. On the other hand, Israel’s Supreme Court has been of the opinion that in principle the barrier is lawful, but in certain parts it has to be moved to another location in order to avoid disproportional hardship on the population. In certain locations the Supreme Court decided that the gates and the passage through them have to be improved. In the Jerusalem area too, the courts have intervened on similar grounds.

C.  Opinions on the Legal Status of Jerusalem

35  Many statesmen as well as experts in international law have expressed their opinions on the status of Jerusalem. This chapter reproduces only opinions on the lex lata. (For the summary of various proposals de lege ferenda, see M Hirsch, D Housen-Couriel and R Lapidoth 25–144.) Only the most representative ones are presented here, and I only state those opinions, without analyzing the pros and cons. Because the western parts of Jerusalem have not changed significantly since 1949, opinions on their status can be analyzed without a temporal division. The eastern sectors changed hands, however, in 1967, and therefore it may be useful to divide the discussion accordingly.

36  There have been four basic opinions on west Jerusalem. According to the first, Israel lawfully acquired sovereignty in 1948. When Britain left the area, a vacuum of sovereignty ensued that could be validly filled only by a lawful action. Because Israel acquired control of west Jerusalem in 1948 by a lawful act of self-defence, it was entitled to fill that vacuum and thus became the lawful sovereign (eg Lauterpacht).

37  Under a second opinion, sovereignty over Jerusalem has been suspended until a comprehensive settlement is agreed on (Prince Hassan Bin Talal 24–27).

38  According to the third theory, the Palestinian Arab people have had and still have legal sovereignty over the whole of Palestine, including Jerusalem, since the mandatory period (Cattan 64).

39  Proponents of the fourth opinion have maintained that the status of Jerusalem is still subject to the UN General Assembly resolution of 1947, which recommended the establishment of a corpus separatum under a special international regime and administered by the UN (Cassese 13).

40  Most foreign States have not adopted a clear-cut policy on the status of west Jerusalem. Although their approaches differ, certain similarities emerge with regard to basic questions. Foreign States were not prepared to recognize the legality of Jordanian or Israeli rule over zones of Jerusalem under their respective control. One manifestation of this attitude has been that foreign consuls stationed in the city have refused to apply to Jordan or Israel for exequatur - permission to carry out their functions in the city. The refusal to recognize Israeli rule over the western sector was apparent for example in the civil case Heirs of Shababo v Roger Heilen and others ([District Court of Jerusalem] [1953] 20 ILR 391). In that case, a driver of the Belgian consulate in Jerusalem had been involved in a road accident that caused the death of Mr Shababo. Family members of the deceased sued the driver, the consulate, and the consul general, claiming damages. The incident was the subject of several judgments of the Jerusalem District Court. In the first hearing, the driver and his principals challenged the jurisdiction of the Israeli courts over the accident because it had taken place in Jerusalem. The court dismissed that argument.

41  Despite this non-recognition of Israeli sovereignty, most States have nevertheless accepted the de facto applicability of Israeli law, and none has so far demanded that the laws of occupation, including the Geneva Convention relative to the Protection of Civilian Persons in Time of War ([adopted 12 August 1949, entered into force 21 October 1950] 75 UNTS 287) (‘1949 Geneva Convention IV’; see also Geneva Conventions I—IV [1949]; Humanitarian Law, International; Occupation, Belligerent), be applied. The European Union (‘EU’) supports the idea that Jerusalem is still subject to the corpus separatum status. Thus in 1999 the Ambassador in Israel of the Federal Republic of Germany—at that time holding the presidency of the EU—wrote in a diplomatic note: ‘ … The EU reaffirms its known position concerning the specific status of Jerusalem as a corpus separatum … ’.

42  There have also been four main opinions on the status of east Jerusalem for the period 1949–67 (the time it was under Jordanian rule). According to the first opinion, during that time the area was under a vacuum of sovereignty: Great Britain had abandoned the area, but Jordan could not fill this gap because it had occupied east Jerusalem by an illegal act of aggression (Lauterpacht 46–48).

43  Under a second theory, similar to the parallel one concerning west Jerusalem, the Palestinian Arab people have had and continue to have title to ‘legal sovereignty’ over the whole of Palestine, including east and west Jerusalem (Cattan 64).

44  A third opinion recognized Jordanian sovereignty over east Jerusalem, derived from the exercise of the right of self-determination by the inhabitants, in view of their wishes expressed by the resolutions that the notables adopted in Jericho in 1948 and 1949 (Dinstein 300).

45  Finally, proponents of the fourth opinion have claimed that the corpus separatum solution still applies to both east and west Jerusalem (Cassese 13).

46  How did the changes that occurred in 1967 influence these opinions? Under the first opinion, the vacuum of sovereignty existed until Israel occupied east Jerusalem by a lawful act of self-defence and thus was entitled to fill the gap (Lauterpacht 46–48). Under a slightly different interpretation, Israel has the strongest relative title to the area in the absence of a lawful ‘sovereign reversioner’ because of Jordan’s lack of valid sovereignty (Blum [1968] 279).

47  The Six Day War did not have any effect on the opinion according to which the Palestinian Arab people have legal sovereignty over the whole of Palestine, irrespective of the factual situation (Cattan 73).

48  If Jordan acquired sovereignty over east Jerusalem by virtue of the principle of self-determination, Israel has been a belligerent (Belligerency) occupant in those sectors. If, as the Arab States claim, Israel was an aggressor in 1967, it has been an illegal occupant, but since Israel has occupied the area in an act of self-defence, it has been a lawful occupant (Dinstein 300). The corpus separatum theory was not affected by the war (Cassese 13).

49  In practical terms, the international community has not recognized the sovereignty of either Jordan (in the past) or Israel at any point. Moreover, since 1967, the UN, including the UN Security Council, has repeatedly stated that east Jerusalem is occupied territory subject to the 1949 Geneva Convention IV.

50  The attitude of the US administration was expressed, inter alia, in the context of the Camp David Accords of 1978 in a letter sent by President Carter to both Egypt and Israel. The President wrote that the position of the US remained as stated by Ambassador Arthur Goldberg at the UN General Assembly in 1967 and subsequently by Ambassador Charles Yost in the UN Security Council in 1969. There is, however, a difference between the speeches of the two ambassadors. Although they both emphasized that the actions of Israel in Jerusalem were merely provisional and that the problem of the city’s future should be settled by negotiations, Ambassador Yost added that east Jerusalem was occupied territory to which the 1949 Geneva Convention IV applied. This position, however, did not prevent the US from asking Israel to extradite a person who lived in the eastern sector of the city, although the Convention on Extradition between Israel and the United States of America ([adopted 10 December 1962, entered into force 5 December 1963] 484 ILM 283) applies, according to Art I, only to persons ‘found in [their] territories’ (see also Extradition). The US Congress has adopted an attitude quite different from that of the administration, as shown above (para. 32).

51  The attitude of the European Union can be inferred from the Venice Declaration on the Middle East and the Note of the German Ambassador of 1999 (paras 29, 41).

52  The International Court of Justice, in its 2004 Israeli Wall Advisory Opinion spoke of east Jerusalem as ‘occupied Palestinian territory’ (at [2004] ICJ Rep 136 para. 78).

53  The Israeli courts, on the other hand, have held, at first somewhat hesitantly, that the eastern sectors of Jerusalem have become part of the State of Israel. One of the earlier cases on this question is Ruidi and Maches v Military Court of Hebron. This case involved antiquities dealers from Hebron who transferred antiquities from Hebron to east Jerusalem without first obtaining an export licence, as required by the Jordanian antiquities law that applies on the West Bank—including Hebron. One of the questions dealt with in the hearings in the Supreme Court concerned the status of east Jerusalem at the critical date namely, whether it was abroad vis-à-vis the West Bank. The majority of the Court expressed the opinion that east Jerusalem had become part of Israel and hence was abroad with regard to Hebron.

54  Perhaps the most comprehensive discussion of the status of Jerusalem under Israel law as well as under Jewish law is included in Justice Menachem Elon’s judgment in the case of The Temple Mount Faithful Association v Attorney General, decided in 1993. In this case, the petitioners requested the Supreme Court sitting as the High Court of Justice to order the Attorney General and various other Israeli authorities to prosecute the Waqf (Muslim religious trust) for having undertaken on the Temple Mount certain works without the necessary permit. The High Court decided not to interfere with the discretion of the relevant authorities. In reaching its conclusion, the court emphasized that the Temple Mount is part of the territory of the State of Israel and that the sovereignty of the state extends over unified Jerusalem in general and over the Temple Mount in particular. Hence, all laws of Israel apply to the Temple Mount, including those laws guaranteeing freedom of religion, right of access to, and protection against desecration of the Holy Places. Nevertheless, despite this principle, the Supreme Court has abstained in several cases from the full implementation of Israeli law on the Temple Mount because of the religious and political sensitivities involved (see also Religion or Belief, Freedom of, International Protection).

55  As stated at para. 28, under the 2000 amendment to the Basic Law: Jerusalem Capital of Israel of 1980, any change in the area of Jerusalem and any transfer of powers require the consent of an absolute majority of the members of the Knesset.

56  The attitude of the Palestinians was expressed inter alia in 1988 and 2002. When the Palestine Liberation Organization (PLO) proclaimed in November 1988 the establishment of a Palestinian State, it asserted that Jerusalem was its capital. In October 2002 the Palestinian Legislative Council adopted the Law on the Capital, which stipulates, in Sec. 1, that Jerusalem is the capital of the Palestinian State, the main seat of its three branches of government. According to Sec. 2, the State of Palestine is the sovereign of Jerusalem and of its Holy Places. Sec. 4 stipulates that any statute or agreement that diminishes the rights of the Palestinian State in Jerusalem is invalid. Under the terms of Sec. 5 this statute can be amended only with the consent of two-thirds of the members of the Palestinian Legislative Council.

D.  Jerusalem and the Recent Stages of the Peace Process

57  In 1993, the PLO and Israel conducted secret negotiations (Negotiations, Secret) near Oslo, Norway. As a result, certain letters were exchanged, and the 1993 Declaration of Principles on Interim Self-Government Arrangements was initialled at Oslo and later signed in Washington, DC on 13 September 1993. This text constituted a turning point in the attitude of the two parties on the question of Jerusalem. The parties agreed that Jerusalem would not be included in the interim self-government arrangements—a concession by the Palestinians. Israel, on the other hand, conceded (in Arts 4, 5 (3), and Agreed Minutes to the 1993 Declaration of Principles), that Jerusalem would be one of the subjects to be dealt with in the framework of the negotiations on the ‘permanent status’ to start in 1996. In addition, it was agreed that ‘Palestinians of Jerusalem who live there will have the right to participate in the election process’ (1993 Declaration of Principles Annex 1 para. 1) for the Interim Self-Government Authority for the West Bank and Gaza.

58  These provisions have raised several issues, eg what are the confines of Jerusalem? Who is a Palestinian? What criteria should be used to determine whether he or she ‘lives there’? Do the Jerusalemites have only the active right to vote, or also the right to be elected? Where should they vote? Most of these questions were solved by several additional documents: the Israeli–Palestinian Interim Agreement on the West Bank and the Gaza Strip of 1995, Annex II, the Agreement on the Initial Registration Canvass of 1995, and the Palestinian Elections Law of 1995. The elections took place on 20 January 1996, under international supervision. Most of the Jerusalemites voted in Abu-Dees—a village just beyond the municipal borders of the city, within the Palestinian constituency of Jerusalem. Only a few voted in post offices in east Jerusalem.

59  About a month after the signing of the Declaration of Principles, in October 1993, Israel Foreign Minister Shimon Peres sent a letter concerning Palestinian institutions in east Jerusalem to the foreign minister of Norway, Johan Jurgen Holst. The letter was kept secret for some time, and its discovery aroused much criticism in Israel. According to this letter, ‘[a]ll the Palestinian institutions of East Jerusalem, including the economic, social, educational, cultural, and the holy Christian and Moslem places, are performing an essential task for the Palestinian population’ and ‘will be preserved’ (Lapidoth ‘Jerusalem—Some Jurisprudential Aspects’ 681). The meaning of this text and its effect raise difficult questions of interpretation.

60  Once the ice was broken between Israel and the Palestinians, the road was open for progress in the negotiations between Israel and Jordan. First, on 14 September 1993, a ‘Common Agenda’ was agreed upon, then, on 25 July 1994, a joint declaration was adopted and on 26 October 1994, the 1994 Israel–Jordan peace treaty was concluded. This treaty includes inter alia, in Art. 9 (2), a commitment by Israel ‘to respect the present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem’ and, according to the same article, ‘[w]hen negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines’. According to some press reports, in 1996 Jordan promised to transfer the custody of the Holy Places to the Palestinians once the latter acquire control of the city in the framework of the permanent status to be negotiated later. On 31 March 2013, Abdullah II King of Jordan and Mahmoud Abbas, the head of the Palestinian Authority, signed an agreement according to which the Hashemite king of Jordan will be the guardian of the Muslim Holy Places in Jerusalem.

61  In the wake of the improved relations with the Palestinians and with Jordan, several other countries have established or re-established diplomatic relations with Israel. Of particular interest in this regard is the normalization of relations between Israel and the Holy See, foreseen by the Fundamental Agreement between the Holy See and the State of Israel (see above, para. 9). This document does not deal expressly with Jerusalem, but some of its provisions are relevant to the city, eg the commitment to favour Christian pilgrimage to the Holy Land, and the right of the Catholic Church to establish schools and to carry out its charitable function. In Art. 4 the parties affirmed their ‘continuing commitment to maintain and respect the “status quo” in the Christian Holy Places to which it [the status quo] applies’—a reference to the status quo established in the 18th and 19th centuries by the Ottoman Empire in order to regulate the rights of various competing Christian churches at certain Holy Places in Jerusalem and Bethlehem.

62  The negotiations on the permanent status started in May 1996, but were suspended after a few hours. They were resumed in 1999 and led to the July 2000 Camp David Summit. These intensive negotiations failed to a large extent because of disagreement over the future of Jerusalem, in particular over the Old City and the Temple Mount. Some of the Palestinian leaders, including Arafat, even claimed that there had never been a Jewish Temple on the Temple Mount. Neither did the January 2001 meeting in Taba lead to a breakthrough, nor the intensive negotiations in 2007.

63  Since then, several proposals have been drafted concerning the search for a resolution to the Israel-Palestinian dispute including Jerusalem—eg President Clinton in 2000; Ayalon-Nusseibeh in 2002; the Arab States Peace Initiative in 2003; Beilin-Abed Rabbo by means of the ‘Geneva initiative’ in 2003—but so far none has been adopted by the parties. On the other hand, the 2003 Road Map, sponsored by the US, Russia, the UN, and the EU, has been accepted by the parties. It foresees that the conflict should be resolved in stages. With regard to Jerusalem, it states that in the third stage, the parties should negotiate and reach an agreement that includes a resolution of the status of Jerusalem that takes into account the political and religious concerns of both sides, and protects the religious interests of Jews, Christians, and Muslims worldwide. Unfortunately, however, so far the implementation of the Road Map has not progressed much. Moreover, the Hamas movement which has won the elections to the Palestinian Legislative Council in 2006, and since 2005 is in full control of the Gaza Strip, has so far distanced itself from previous commitments of the Palestinian Authority, although under international law every new government has to comply with commitments of its predecessors.

E.  Concluding Remarks

64  Although the Jerusalem question is basically a political one, legal aspects are also relevant for several reasons. First, some of the questions are in fact of a legal nature. Second, the parties base their claims on legal arguments. And third, when a compromise is reached, it will be included in a document of a legal nature.

65  When looking for a solution to the dispute about Jerusalem, one has to take account of various aspects: the symbolic and religious significance of the city, its heterogeneity, as well as its geographical location. A compromise has to deal with very difficult matters, eg sovereignty (should it be divided, or shared, or suspended, or cooperative, or functional, or belong to God?); borders (should the borders of the city be redrawn, or should it be enlarged so that it can include both an Israeli and a Palestinian capital?); Holy Places (their definition and their status); municipal structure; planning and conservation; economics; security; possible international involvement; infrastructure; settlement of disputes; relations with the adjoining areas (how to preserve the close relationship with the surrounding areas in matters of culture and economics, irrespective of political borders), etc. Difficult questions which require much thinking.

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