Jerusalem: A Shared Capital?

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This text was last updated in December 2017

The legal status of Jerusalem is highly contested among legal experts, international organizations and politicians. There exists no generally applicable legal document that clarifies the status of the city. Israelis and Palestinians alike have been claiming the city in its entirety or parts of it. In 2017, US-President Donald Trump polarized the debate even further when he recognized Jerusalem as Israel’s capital.

During the Israeli-Palestinian negotiations, Jerusalem has always been identified as one of the central questions that will be resolved in “final status negotiations”. Consequently, the Oslo Accords of the 1990s did not introduce new clarifications regarding Jerusalem. Hence, neither the negotiations nor international treaties are containing legally binding provisions that clarify the status of the city.

United Nations Partition Plan of 1947

The first international proposition to resolve the Israeli-Palestinian conflict dates back to the final years of the British Mandate. In 1947, the General Assembly of the UN passed resolution 181. The resolution included a partition plan that sought to create a Jewish and an Arab state, alongside Jerusalem as a separate entity under international trusteeship. This neutral Corpus Separatum was planned to cover an enlarged territory, including Abu Dis in the East, Bethlehem in the South, Ein Karem in the West and Shufat in the North, thus aiming to safeguard the access to holy sites for Muslims, Jews and Christians.

Resolution 181 was never implemented and instead the first Israeli-Arab war erupted. Israel defended its independence, while Egypt and Jordan took control of the Gaza Strip and the West Bank (including East Jerusalem). Jordan subsequently annexed East Jerusalem in 1950.

Having been passed by the General Assembly and not the Security Council, resolution 181 is not a legally binding document. Despite its purely declarative character, the resolution has developed political weight, as indicated by a number of later UN resolutions that build upon it. If resolution 181 was to be considered as the benchmark for international law, then all administrative and legal activities by Israel in Jerusalem, including its Western part, would have to be considered illegal. Deciding to follow this argumentation one would then need to clarify whether the international status applies to the city in its boundaries at the time of the partition plan in 1947 or its current territory that was enlarged after the Six-Day War in 1967. Between 1947 and 1967, Jerusalem was divided into an Israeli controlled West Jerusalem, while Jordan was responsible for East Jerusalem.

Consequences of the Six-Day War

During the Six-Day War in 1967, Israel conquered the Syrian Golan Heights alongside the territories that Palestinians nowadays claim for their own future state: the Gaza Strip and the West Bank. During the war, East Jerusalem came under Israeli control as well. The conquest of the old city of Jerusalem meant for Israel that it now had direct access to the Western Wall of the Second Temple. Jerusalem’s boundaries were extended eastwards by 64 km², thus incorporating 28 additional Palestinian villages into the territory of the city.

Palestinians living in East Jerusalem at that time were given a Permanent Residency or Jerusalem ID, allowing them political participation on the municipal level and granting them social rights. However, this ID can be revoked at any time based on political or legal decisions. Palestinian residents of East Jerusalem with these papers are thus until today no Israeli citizens.

In 1980, the Knesset passed the Basic Law: “Jerusalem, Capital of Israel” and declared Jerusalem, including the areas of occupied East Jerusalem, to be Israel’s “eternal and indivisible capital”. 13 years after the military occupation of East Jerusalem, Israel had annexed this part of the city and subsequently began to apply Israeli civil law. This is in stark contrast to the international community, which continues to consider East Jerusalem as occupied territory that make the application of international law necessary. The international community rejected the Jerusalem law, including in Security Council resolution 476 and 478. Until December 2017, no state recognized Jerusalem as the capital of Israel.

Adaptations in International Law

Based on these developments, the international community regards Jerusalem as de facto divided into a Palestinian East Jerusalem and a Jewish-Israeli West Jerusalem. This position attained a quasi-legal status through state behaviour and customary law. Both the European Union and the United Nations consider East Jerusalem as occupied territory. Organizations that follow this argumentation envision a Two-State Solution with Jerusalem as the shared capital for Israelis and Palestinians. At the same time these organizations maintain that the conflicting parties need to clarify the finals status of Jerusalem in direct negotiations.

Legal Realities of International Law

Since the early 1950s, the international community has been accepting the application of Israeli law in West Jerusalem. The demand to internationalize the whole city is not raised any longer. The United Nations and the European Union are therefore only denouncing activities (factual, legal, or administrative) that are carried out by Israel in East Jerusalem. In its various resolutions that cover issues such as settlement activities in East Jerusalem, the Security Council and the General Assembly referred to violations of humanitarian law (especially the Fourth Geneva Convention) and not to the concept of the Corpus Separatum or the partition plan of 1947. The International Court of Justice (ICJ) included East Jerusalem in its advisory opinion on the “Legal Consequences of the Construction of a Wall in the occupied Palestinian Territory”, referring to the IV Hague Convention (1907) and the Fourth Geneva Convention (1949) that are both applicable in occupied territories.

A strong consensus prevails within the international community that Israel’s administrative and legal activities are at least in East Jerusalem illegal. Taking the factual partition of the city as a basis, all Israeli activities in East Jerusalem are illegal since they take place in occupied (Palestinian) territory and hence violate in particular the Fourth Geneva Convention. However, when arguing with the legal implications of resolution 181 and its partition plan, differentiations have to be introduced: if the envisioned Corpus Separatum of resolution 181 is interpreted as applying to Jerusalem in its current boundaries, then Israel’s activities in the city as a whole are in violation of the partition plan. However, if the Corpus Separatum is interpreted as applying to Jerusalem in its smaller boundaries of 1947, then all Israeli activities in this smaller area are in violation of the partition plan, while its activities in the occupied territories of 1967 are in violation of humanitarian law, in particular the Fourth Geneva Convention.

Positions of the Conflicting Parties

Israel considers resolution 181 a legally nonbinding proposal that never materialized. It furthermore argues that no legally binding international treaty regarding the “internationalization” of the city exists, and that a status of Jerusalem as Corpus Separatum cannot be inferred from international customary law. At the same time, Israel does not consider East Jerusalem to be occupied territory and instead infers a right to the whole of Jerusalem based on the 3000 years of Jewish history as well as on the assumption that Jerusalem had prior been without a sovereign. Prime Minister Benjamin Netanyahu has emphasized repeatedly that he would not accept a partition of Jerusalem.

This position is neither shared by the international community nor by the Palestinians. The Palestinian Negotiators demand East Jerusalem (consisting of the areas east of the armistice line of 1947, also known as “Green Line”) as capital for a future Palestinian state. This demand also includes the historic Old City of Jerusalem with its Christian, Jewish and Muslim holy sites. During a KAS event in 2017, Palestinian President Mahmud Abbas expressed his support for free access to the holy sites for believers of all faiths.

The first direct negotiations between Israelis and Palestinians regarding Jerusalem took place at Camp David in 2000. Both parties agreed that the internationalization of the city in line with resolution 181 is off the table. Even a partition was considered possible by the Israeli side during negotiations in 2001 in the Egyptian city of Taba. However, no final agreement was reached. An earlier proposal by then president Bill Clinton that envisioned a partition of Jerusalem along the lines of demographic majorities had to be discarded because of settlement activities and their profound impact on the demographic composition of the former Palestinian neighborhoods.

New U.S. position regarding Jerusalem

President Donald Trump announced on December 06, 2017, that the USA will recognize Jerusalem as capital of Israel and that the Jerusalem Embassy Act of 1995 will be implemented. This act called for more than 20 years to transfer the U.S. embassy from Tel Aviv to Jerusalem. All former US presidents opted to postpone the implementation of this decree in order not to jeopardize the peace process. Officially, the presidents justified the delay of the embassy transfer with security concerns.

The Foreign Ministers of the Arab League condemned Trump’s decision during an emergency meeting on December 10, claiming that it is a danger for peace and in violation of international law. A few the days later, the Organization of Islamic Cooperation (OIC) also criticized the decision during a special meeting in Istanbul that was attended by more than 20 out of its 57 its member states. In their final statement, they recognized a Palestinian State with East Jerusalem as capital. They called upon the international community to follow their lead and accused the US-President of an illegal and irresponsible decision. To this day, ten members of the OIC have still not recognized Israel as a state.

Federica Mogherini, the High Representative of the European Union for Foreign Affairs and Security Policy, clarified at the day of Trump’s announcement that the European Union still holds on to a two-state-solution and resolution 478. The resolution, passed in 1980 by the United Nations Security Council with only the U.S. abstaining, declared the Israeli Basic Law on Jerusalem and the subsequent de jure annexation of East Jerusalem as null and void.

On 18 December 2017, the Security Council gathered for a special meeting. An Egyptian draft resolution called for a reversal of Trump’s decision and for the continued compliance with all former resolutions. This was meant to prevent any further actions that could hinder a two-state-solution. While 14 members of the Security Council voted in favor of the draft, a veto by the US eventually blocked the resolution.

Three days later, the General Assembly of the United Nations held a special meeting to discuss the U.S. decision regarding Jerusalem’s status. A resolution was brought to the vote that demanded compliance with former resolutions concerning the status of Jerusalem. It furthermore called upon all states not to relocate their diplomatic missions to Jerusalem. The text was passed with a broad majority (128 yes, 9 no, 35 abstentions). Germany voted in favor of this resolution. The Federal Foreign Office stated that “the status of Jerusalem must be determined in talks between the two parties. A solution should not be imposed from the outside.”

Palestinian Realities today

300,000 Palestinians and about 220,000 Jewish settlers live nowadays in East Jerusalem. Life for Palestinians is precarious for legal and socioeconomic reasons. As mentioned above, their ID can be revoked for political and legal reasons. Since 1980, this has happened in approximately 14,500 cases. Palestinians have to prove that Jerusalem is their center of life in order to maintain their status. This status is not automatically transferred to family members. As a result, around 10,000 Palestinian children live in Jerusalem without any legal status. The economic situation that causes many families to live in poverty further aggravates the situation and makes it difficult for Palestinians to maintain their presence in the city. While they pay the same taxes as Jewish-Israeli residents of West Jerusalem, Palestinians complain that the city does not sufficiently invest in their communities. There is a shortage of more than 2,500 class rooms in the Palestinian parts of Jerusalem, a situation that leads to high school drop-out rates among Palestinian students.

The situation was further complicated through the construction of the separation barriers since 2002. 142km of this wall are located in and around Jerusalem. The barrier also separates Palestinian neighborhoods from the rest of Jerusalem. An estimated 50.000 Palestinian holders of a Jerusalem ID live beyond the wall.

''Ilona-Margarita Stettner (Orginal) and Marc Frings (Revision)’’

Sources:

• http://news.bbc.co.uk/2/hi/middle_east/295001.stm

• http://www.mfa.gov.il

• https://www.tagesschau.de/us-embassy-101.html

• https://www.theguardian.com/world/2017/dec/10/trump-jerusalem-arab-league-dangerous-violation-international-law

• http://www.zeit.de/politik/ausland/2017-12/oic-ost-jerusalem-hauptstadt-palaestina-anerkennung

• https://www.welt.de/politik/ausland/article171723956/USA-legen-Veto-gegen-Jerusalem-Resolution-im-Sicherheitsrat-ein.html

• https://eeas.europa.eu/headquarters/headquarters-homepage/36910/statement-hrvp-federica-mogherini-announcement-us-president-trump-jerusalem_en

• International Court of Justice „Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”, Advisory Opinion, 2004

• John Quigley, „The Legal Status of Jerusalem Under International Law”; The Turkish Year Book vol. 24; S.11 – 23

• Raoul Jacobs, „Mandat und Treuhand im Völkerrecht“, Universitätsverlag Göttingen 2004; S. 181 ff

• Michael Dumper: Jerusalem, in: Joel Peters/David Newman (Hg.): The Routledge Handbook on the Israeli-Palestinian Conflict

• UN General Assembly resolution 181 (II) of 29 November 1947

• UN General Assembly resolution 194 (III) of 11 December 1948

• UN Security Council Resolution 252 (1968)

Altstadt

Contact person

Marc Frings

Head of the KAS office Palestinian Territories

Marc Frings
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