Jerusalem is most sacred to three monotheistic religions and a symbol for millions of believers around the world who consider it their “spiritual capital”. The Holy City’s significance goes beyond the question of borders, a reality that should be considered a priority in every negotiation for a political solution. These observations of Tomasz Grysa, Permanent Observer for the Holy See, before the United Nations rightly captures the significance of the Holy City.
The history of Palestine is a complex one. Before World War I it was part of the Ottoman Empire with predominantly Muslim population, but after the extinguishment of the Empire, as part of the arrangement a class “A” Mandate for Palestine was entrusted to Great Britain by the League of Nations.
In its Advisory Opinion on the International Status of South-West Africa (ICJ, 1950), the ICJ observed that Mandates are created in the interest of the inhabitants of the territory, and of humanity in general, as an international institution with an international object – a sacred trust of civilization. Two principles were considered to be of paramount importance: the principle of non-annexation and the principle that the well-being and development of peoples, who are not yet able to govern themselves, formed ‘a sacred trust of civilization’.
Jewish people had started migrating to Palestine from late nineteenth century to make it their homeland. The British after getting the mandate allowed Jewish migration into Palestine as a result of which the Jewish population started swelling resulting in increased tensions with the local population. During the holocaust period more Jews settled in Palestine. After the end of World War II, the United Kingdom evacuated the mandated territory in 1948.
The General Assembly in 1947 had adopted resolution 181 (II) on the future government of Palestine recommending the adoption and implementation of a Plan of Partition between two independent States, one Arab and the other Jewish along with the creation of a special international régime for the City of Jerusalem. The City of Jerusalem was to be established as a corpus separatum under a special international regime to be administered by the United Nations.
The Trusteeship Council was designated to discharge the responsibilities of the Administering Authority on behalf of the United Nations. Many safeguards and protections were inbuilt in the proposed scheme. Holy Places and religious buildings or sites were to be preserved and no act to be permitted which might in any way impair their sacred character. Existing rights in respect of Holy Places and religious buildings or sites were not to be denied or impaired. Both Arabic and Hebrew languages were to be the official languages of the city.
Representatives of the Arab and Jewish States were to be accredited to the Governor of the City and charged with the protection of the interests of their States and nationals in connection with the international administration of the City. No discrimination on the grounds of race, religion, language or sex could be made between the residents of the city. The duration of the special regime was to be in the first instance a period of ten years and the residents were then free to express by means of a referendum their wishes as to possible modification of the regime of the City.
Though Israel accepted the plan and declared its independence in 1948, the Arab world and the Arab population of Palestine rejected it terming it unfair. Subsequently, armed hostilities erupted between Israel and Arab States and as a consequence the Plan of Partition could not be implemented. Israel took control of a large portion of the land earmarked for the Palestine State including West Jerusalem. The Security Council passed a resolution calling upon the parties to cease hostilities and to establish an armistice in all sectors of Palestine. General armistice agreements were concluded in 1949 between Israel and opposing countries.
In 1967, another war erupted. After the Six-Day War in 1967, Israel acquired control over the West Bank and East Jerusalem and the territory of Gaza. Thus, all the territories which had constituted Palestine under British Mandate were now occupied by Israel. Strongly disapproving the blatant use of force and capture of territories, the Security Council unanimously adopted resolution 242 (1967) calling for immediate withdrawal of Israel’s armed forces from the territories captured recently.
Article 2, paragraph 4, of the United Nations Charter emphatically declares that all States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations. The General Assembly in its resolution 2625, “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States” declared that every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.
Any such threat or use of force would constitute a violation of International law and the Charter. It was categorically held that force can never be employed as a means of settling international issues. Further all States have the bounden duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States. Again, the State has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect.
Resolution 298 (1971) further deplored the failure of Israel to respect the previous resolutions adopted by the United Nations concerning measures and actions by Israel purporting to affect the status of the City of Jerusalem and declared the legislative and administrative actions taken by Israel to change the status of the City of Jerusalem, including expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section, to be totally invalid and incapable of changing the status.
The same resolution further called upon Israel to rescind all previous measures and actions and to take no further steps in the occupied section of Jerusalem which could purport to change the status of the City or which would prejudice the rights of the inhabitants and the interests of the international community.
On 30 July 1980, the Israeli parliament passed a ‘Basic Law’ by which it established the city of Jerusalem ‘complete and united’ as the capital of Israel. The enactment of the “basic law” by Israel has been held to be in complete violation of International law. All legislative and administrative measures taken by Israel which have altered or purport to alter the character and status of Jerusalem city, as well as the “basic law” on Jerusalem, were declared null and void. The United Nations decided not to recognize this “basic law” and such other actions by Israel that sought to alter the character and status of Jerusalem and called upon all those States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City.
A permanent solution through negotiation has been tried for many decades. By the Oslo Accords of 1993-1995, the Palestine Liberation Organization and the State of Israel formally recognised each other and further committed to the peace talks and agreed on a progressive handover of certain Palestinian-populated areas in the West Bank to the Palestinian National Authority.
As per the 1995 Interim Agreement, the West Bank was divided into three administrative divisions: Area A where civil and security control was to be administered by the Palestinian National Authority; Area B where civil control would be of Palestinian National Authority but security control would be Israeli-Palestinian and Area C where all civil as well as security control was to be administered by Israel. Further negotiations included the Camp David Summit of 2000 and the 2002-2003 Road Map for Peace but a permanent solution has eluded parties.
Israel even started constructing a wall separating Israel and the West Bank in early 2000. The ICJ was called upon by the General Assembly of the United Nations on the legality of the Israel West Bank wall. The question referred to the World Court was: What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?
It was contended by some members that the World Court should not exercise its jurisdiction as the subject-matter of the question posed by the General Assembly was an integral part of the wider Israeli-Palestinian dispute concerning questions of terrorism, security, borders, settlements, Jerusalem and other related matters. But the court observed that the consent of the parties to a dispute, the basis of the Court’s jurisdiction in contentious cases, is not required in regard to advisory proceedings even if the Request for an Opinion relates to a legal question actually pending between the States. It observed that the Court’s reply is only of an advisory character and has no binding force. Thus, no state can prevent the giving of an Advisory Opinion which the United Nations considered to be desirable in order to obtain enlightenment as to the course of action it should take.
The Court in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ, 2004) observed that the territories occupied by Israel have been subject to its territorial jurisdiction as the occupying Power and hence Israel was bound by the provisions of the International Covenant on Economic, Social and Cultural Rights. Thus, Israel was further under an obligation not to raise any obstacle to the exercise of certain rights in the fields where competence has been transferred to Palestinian authorities.
The World Court held that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) had been established in breach of international law. It concluded that the Construction of the wall severely impeded the exercise by the Palestinian people of their right to self-determination and was a breach of Israel’s obligation to respect the right. Construction of the wall was thus held to be in breach of International Law.
In 1995, United States passed an Act titled ‘Jerusalem Embassy Act of 1995’ to provide for the relocation of the United States Embassy in Israel to Jerusalem. It declared that each sovereign nation, under international law and custom, may designate its own capital and since 1950, the city of Jerusalem has been the capital of the State of Israel and also the city of Jerusalem is the seat of Israel’s President, Parliament, and Supreme Court, and the site of numerous government ministries and social and cultural institutions, hence Jerusalem should be recognized as the capital of Israel and the United States Embassy should be established there. But successive United States Presidents have suspended the operation of the Act.
President Trump’s recent announcement recognising Jerusalem as the capital of Israel and moving of the US embassy to the Holy City has led the international community protest against such move.
During an emergency meeting the General Assembly voted to ask nations not to establish diplomatic missions in the city of Jerusalem. By a recorded vote of 128 in favour to nine against with 35 abstentions, the GA adopted the resolution “Status of Jerusalem”, by which it declared “null and void” any actions intended to alter Jerusalem’s character, status or demographic composition.
The status of Jerusalem is one of the core issues in the Israeli-Palestine conflict. The international community wants a permanent solution through negotiation. Many states strongly believe that a two-State solution with East Jerusalem being the capital of the future Palestine State is the only realistic way to realise permanent peace and security in the region.
The writers are Mumbai-based advocates and legal consultants.