By Richard Edmondson
In the
early years of the first century, when Christ was about nine years old, a
Jewish supremacist by the name of Judas the Galilean led a revolt against Rome.
I call him a Jewish supremacist because Judas and his friend, the Pharisee
priest Zadok, preached to their followers that Jews were to abide by no laws other
than those allegedly given them by God. This naturally put them on a collision
course with Rome, and a good bit of the rest of humanity besides, since of
course everyone else was subject to Rome’s laws, so why should the Jews feel
they were any different? Judas’ revolt was handily crushed, as were later
Jewish revolts in 70, 119, and 135 AD (the Romans, with keen insight, knew how
to deal with Jewish supremacism, an art which, alas, has been lost to the
modern world, although perhaps Vladimir Putin will revive it). I only mention
it because it’s a chapter of history worth keeping in mind as we evaluate Mitt
Romney’s recent trip to Israel.
Ah, and
what a trip it was! We of course wouldn’t expect Romney to shed too many tears
for Americans—such as the 34 killed or
171 wounded on the USS Liberty when Israel attacked the ship that day in 1967,
or for young Rachel Corrie, crushed beneath an Israeli bulldozer in 2003. That
would probably be expecting too much. After all, the man has a campaign to run,
and cash has to be raised. Lots of
it. And apparently that aspect of the trip was indeed quite successful. Since
the candidate’s return from Israel, the Romney campaign has produced a new TV commercial that includes footage from his
stay in Jerusalem. Entitled “Cherished Relationship,” the ad takes President
Obama to task over his failure to visit Israel during his presidency and also
for failing to recognize Jerusalem as the Jewish state’s capital. Romney’s vow
to recognize Jerusalem as the capital got quite a bit of news coverage, you’ll
remember, and in fact, if we can judge from the commercial, it would seem that highlighting
the candidate’s position on this issue has become the Romney campaign’s new
strategy—for of course it is the one
issue on which there is a clear difference between he and Obama (there aren’t
many others).
I should
pause here and mention that the leaders of the modern day state of Israel, both
past and present, appear very much to be kindred spirits with Judas the
Galilean, for the Zionist state, as we know, has a long history of violating
international law. In fact, according to one writer, Israel’s blockade of Gaza
violates article 33 of the Fourth Geneva Convention, while its construction of Jewish
settlements in the West Bank violates the Convention’s article 49. In addition,
Israel is in violation of more than 30 UN Security Council resolutions,
including UNSC Resolution 487, which demanded it open its nuclear facilities to
inspection by the International Atomic Energy Authority.
But
perhaps the one area, more so than all others, in which international law violations
have been more persistent, more flagrant and ongoing, would be the Jewish
state’s flaunting of resolutions on the “status of Jerusalem.” The following
comes from the website of the Negotiation Affairs Department of the Palestine Liberation
Organization, and was obviously compiled by someone with a pretty solid
foundation in international law as well as an intimate knowledge of the UN resolutions
that have been adopted over the years on Palestine. It is quite eye opening. What
it shows is the history of UN resolutions dealing with Jerusalem, going all the
way back to the partition of Palestine in 1947 and the adoption of General
Assembly Resolution 181. That resolution set up an Arab state and a Jewish
state—but significantly it designated Jerusalem as a part of neither. Instead,
the city was to become a “corpus separatum”—that is to say, it would be an
international city under administration of the UN with all of its holy sites
protected. But almost immediately Israel violated the resolution, starting in September
of 1948 when it located its Supreme Court in Jerusalem—and as the summary below
shows, violations have proceeded pretty much on an ongoing basis ever since. But
of course Jews should have to obey no laws other than those given by God, and Judas
the Galilean would no doubt be proud as punch of the leaders of “Israel.” In
fact were Judas with us today he might even shake Romney’s hand as a “righteous
Gentile” (though doubtless he would wash his hand afterwards).
- The UN Partition
Resolution (General Assembly Resolution 181) proposed that Jerusalem be
established as a corpus separatum under an international regime to be
administered by the United Nations. Despite the outbreak of hostilities in
1948-49 the United Nations made several attempts to establish the international
regime before giving up in 1951. But the proposal remains “on the table” in the
sense that it remains one option in future negotiations on the status of the
Jerusalem.
- Israel’s
measures to integrate West Jerusalem into Israel and the measures taken by
Israel following the June 1967 war to assert sovereignty over the whole of
Jerusalem have been repeatedly condemned by the United Nations and are of no
legal effect.
- Sovereignty
over the former mandated territory of Palestine was not transferred to the
Mandatory Power during the Mandate but remained in abeyance. Sovereignty over that part of Palestine that
became the State of Israel, with the exception of West Jerusalem, passed to
Israel. Sovereignty over the
remaining mandated territory of Palestine remains in abeyance to be exercised
by the Palestinian people once they have achieved self-determination.
- Israel’s occupation of
West Jerusalem since 1948 has not been recognised de jure, although most states
recognise Israel’s de facto authority over West Jerusalem. The 1949 Israel –
Jordan General Armistice Agreement endorsed the de facto division of the City
but did not affect the legal status of the City.
- Israel
is in belligerent occupation of East Jerusalem. Under international law belligerent
occupation cannot confer title. Furthermore, the principle of
inadmissibility of acquisition of title through force applies and East
Jerusalem is included among the territories occupied in the June 1967 war from
which Israel must withdraw in accordance with UN Security Council Resolution
242.
- It is accepted by the
international community that Jerusalem does have a separate legal status
from Israel and the rest of the Occupied Territories. The precise nature of
that status remains to be settled in the context of a final peace
settlement, or failing that, by the United Nations. In the meantime sovereignty
over the City remains in abeyance.
- Palestine
has a valid claim to sovereignty over the City based on the fact that under the
Ottomans and during the British Mandate, Jerusalem was an integral part of the
territory of Palestine and was its administrative capital. Until Jewish immigration altered the
demographic structure of the City, the majority of its inhabitants were of
Arab origin. Although sovereignty is in abeyance, it will be revived and vest
in the Palestinian State once that state achieves recognition as a sovereign
state.
- The
Israeli claim to sovereignty over Jerusalem has no substance. It has no basis in non-binding UN General
Assembly Resolution 181 since the resolution never envisaged that Jerusalem
would form part of the proposed Jewish State, but a corpus separatum subject to an
international regime. Nor can the Israeli claim that it acted in
self-defence in 1948 and 1967 form the basis for a claim to title.
- A
legal regime dating from the time of the Ottomans, known as the “Status Quo”
governs the Holy Places located in the Old City. Successive occupiers have undertaken to
uphold the regime and the regime has acquired the status of an international
legal obligation binding on existing and future occupiers of that part of the
City.
- The Interim Agreement
did not affect the legal status of Jerusalem.
INTRODUCTION
1. This report addresses the status of
Jerusalem under international law.
2. Jerusalem (Al-Quds
in Arabic) has a deep religious significance for Judaism, Christianity and
Islam. One of the oldest cities in the world, Jerusalem has been at the
crossroads of cultures and civilisations throughout history. Since antiquity,
different peoples and groups have fought innumerable battles for control over
it. Since the nineteenth century, the city has been the object of conflicting
claims by Jews and Palestinian Arabs. These claims have acquired a
political and territorial dimension in addition to the religious one, since
both peoples claim that the city embodies their national identity and right to
self-determination. However, Jerusalem’s religious and historical
significance should not be allowed to color the legal arguments as to the
status of the city in international law.
HISTORY
3. For four hundred years until the First
World War, Palestine was a part of the Ottoman Empire. Following the defeat of that empire,
Palestine was placed in 1922 under a League of Nations Mandate with the United
Kingdom as mandatory power. Jerusalem during the period of the Mandate was
an integral part of the territory of Palestine and was the seat of
administration of the territory. The Mandate gave effect to the Balfour
Declaration of 1917 that supported the establishment in Palestine of a
“national home” for the Jewish people. The Mandate did not contain any
specific provisions relating to Jerusalem, although Articles 13 and 14 of the
Mandate did contain provisions on the Holy Places. Under Article 13, the
United Kingdom assumed full responsibility for the Holy Places, including
preserving “existing rights”, “securing free access” and “free exercise of
worship”, except with regard to the management of purely Muslim sacred shrines,
the immunity of which was guaranteed by the Mandate. Article 14 of the
mandate provided for the establishment of a special commission “to study,
define and determine the rights and claims in connection with the Holy Places
and the rights and claims relating to the different religious communities in
Palestine”. In view of the difficulties in establishing representation by all
religious communities, the commission was never established and responsibility
for the Holy Places remained with the mandatory power that continued the
Ottoman Status Quo governing relations among the various communities.
4. The increase in Jewish immigration to
Palestine caused growing tensions between the two communities and Jerusalem
became a flashpoint of conflict (in 1929 there was a serious outbreak of
violence over access to the Wailing Wall). The security situation
continued to deteriorate. After the Palestinian rising in 1936 that
began in protest against increased Jewish immigration, the United Kingdom
constituted the Palestinian Royal Commission. The Commission concluded
that the Mandate was unworkable and recommended that it be terminated. It
also proposed the partition of Palestine into an Arab State and a Jewish State.
The Commission held the Holy Places to be “a sacred trust of civilization”
and proposed that a Jerusalem-Bethlehem enclave encompassing all the Holy
Places, with a corridor to the sea terminating at Jaffa, remain under British
trusteeship under a new League of Nations Mandate. This first plan for
partition was superseded by political and military events. After the Second
World War the United Kingdom declared that it was unable to resolve the problem
in Palestine and brought the problem to the United Nations.
5. When the matter came before the United
Nations in 1947, the General Assembly appointed a Special Committee on
Palestine. The Committee unanimously recommended that the sacred character
of the Holy Places be guaranteed and that access to the Holy Places be ensured
“in accordance with existing rights”. The Committee submitted two
alternative plans for Palestine. The minority plan envisioned the
establishment of a unified federal state in Palestine with Jerusalem as its
capital with separate municipalities for the Jewish and Arab sectors. It also
recommended the creation of a permanent international regime for the protection
and supervision of the Holy Places in Jerusalem and elsewhere. The majority
plan recommended the partition of Palestine into an Arab State and a Jewish
State, and the territorial internationalisation of the Jerusalem area as an
enclave in the Arab State. It was the latter plan that was approved by
the General Assembly in Resolution 181. The Resolution terminated the
Mandate. It proposed the establishment of Arab and Jewish states in the
territory of Palestine and delineated the boundaries of the two states.
Jerusalem was not
included within the boundaries of the two states. Instead a special regime was
proposed for Jerusalem. The
Resolution provided:
“The City of Jerusalem shall be established as a corpus separatum under a
special international regime and shall be administered by the United Nations.
The Trusteeship Council shall be designated to discharge the responsibilities
of the Administering Authority on behalf of the United Nations”.
The boundaries of the city were defined as including “the present
municipality of Jerusalem plus the surrounding villages and towns, the most
eastern of which shall be Abu Dis; the most southern, Bethlehem; the most
western, Ein Karim (including also the built-up area of Motsa); and the most
northern Shu’fat”. The Assembly requested the Council to elaborate a
statute for the city providing for the appointment of a Governor and
administrative staff, a Legislature, an independent judiciary, citizenship, and
a regime governing the Holy Places and religious buildings and sites.
The Partition Plan and
the international regime for Jerusalem never materialised. After some initial hesitation, the
Zionists declared their willingness to accept the Partition Plan. The Arab League rejected the partition
arguing that the United Nations, particularly with a non-binding General
Assembly Resolution, had no right to allocate 55% of Palestine to a Jewish
state when Jews, most of whom were recent immigrants, represented only a third
of the population and owned less than 7% of the land.
Hostilities broke out
in 1948-49 and Israel occupied West Jerusalem and Jordan occupied East Jerusalem.
The Israel-Jordan General Armistice Agreement of 3 April 1949 effectively
formalised the de facto division of the city.
6. Despite the hostilities, the United Nations
did not give up the objective of internationalisation of the Jerusalem area. In
April 1948 the Trusteeship Council prepared a draft statute for the planned
separate international entity. The General Assembly in Resolution 194
established a three-member Conciliation Commission for Palestine. The
Commission resolved inter alia that “the Jerusalem area, including the
present municipality of Jerusalem plus the surrounding villages and
towns...should be accorded special and separate treatment from the rest of
Palestine and should be placed under effective United Nations control”. The
General Assembly instructed the Commission to come up with detailed proposals
for a permanent international regime for the Jerusalem area and recommendations
concerning the Holy Places. In its periodic reports to the General Assembly,
the Commission reported that the Arab delegations were in general prepared to
accept the principle of an international regime for Jerusalem, subject to
United Nations guarantees regarding its stability and permanence. Israel was
unable to accept this, although it accepted an international regime for, or
international control of, the Holy Places. Nevertheless in April 1950, the
Council adopted a detailed Statute for the City of Jerusalem based on the
provisions contained in Resolution 181. Neither side indicated that they were
prepared to accept the proposed Statute. Following a final effort to mediate
between the parties in 1951 the Commission concluded that the parties’
unwillingness to implement the relevant resolutions and the changes that had
taken place on the ground made it impossible to proceed towards a settlement.
Nevertheless, the proposal remains “on the table”, in the sense that the
proposal, or something like it, remains an option for the negotiations on the
future status of the City.
7. In the meantime, Israel took a number of
measures designed to integrate West Jerusalem into Israel. In September 1948,
the Supreme Court was established in Jerusalem and in February 1949 the Knesset
met in the city. This was followed by the establishment of a number of
Ministries and public services in the City. In 1950 Jerusalem was proclaimed as
the capital of Israel. East Jerusalem was occupied by Israel in the June 1967
war and Israel has adopted a number of measures to unite the two parts of the
city, including the enactment of a law in 1967 applying Israeli civilian law to
East Jerusalem.[1] In 1980 Israel enacted a 'basic law’, which while not
formally annexing East Jerusalem, in practice amounted to annexation by
declaring the united city to be the capital of Israel and the seat of the major
institutions of state. This action was
firmly condemned by the Security Council and General Assembly. The Security
Council in Resolution 478 censured in the strongest terms the enactment of the
Israeli legislation and affirmed that it “constitutes a violation
of international law and does not affect the continued application of the
Geneva Convention relative to the Protection of Civilian Persons in Time of War
of 12 August 1949, in the Palestinian and other Arab territories occupied since
1967, including Jerusalem”. The Council decided “not to recognise the “basic
law” and such other actions by Israel that, as a result of this law, seek to
alter the character and status of Jerusalem”, and called upon all Member States
to accept its decision and upon Member States that had established diplomatic
missions at Jerusalem to withdraw them. This resolution, subsequently
reaffirmed with similar wording, continues to embody the position of the United
Nations and of most Governments on the status of Jerusalem.
The Current Status of
Jerusalem in International Law
8. Consideration of
the legal status of Jerusalem cannot be divorced from consideration of the
status of Palestine as a whole. Prior to the Mandate, sovereignty over Palestine, including
Jerusalem, vested in the Ottomans. The Mandate did not transfer sovereignty to
the Mandatory Power, nor was sovereignty transferred to the League of Nations.
During the time of the Mandate sovereignty was in effect in
abeyance. That situation remained until the establishment of the State of
Israel and her recognition as a state by the international community and her
admission to the United Nations in 1949. Although recognition of Israel implied
recognition of Israeli sovereignty over some area of territory in the former
mandated territory of Palestine, since possession of territory is one of the
criteria for statehood, it did not imply recognition of Israeli sovereignty
over all the territory claimed by Israel. In particular, it did not imply
recognition of the 1949 Armistice boundary lines or sovereignty over West
Jerusalem.
9. The fact that
sovereignty is in abeyance over the remainder of the former mandated territory
of Palestine does not of course mean that there is no one entitled to that sovereignty.
Since Palestine’s provisional independence was recognised in the League of
Nations Mandate and the right of self-determination of the Palestinian people
has been recognised, the “unit of self-determination” comprises that area of
territory. Sovereignty therefore vests in the Palestinian people to be
exercised when they achieve their independence. In the Western Sahara case,
Judge McNair in his separate opinion said: “Sovereignty over a mandated
territory is in abeyance; if and when the inhabitants of the Territory obtain
recognition as an independent state...sovereignty will revive and rest in the
new state”.[2]
10. With regard to Jerusalem, Israel’s
occupation of West Jerusalem in 1948 has not been recognised de jure. The
reason for this is that to do so would be inconsistent with the concept of
Jerusalem as a corpus separatum. Thus at
present there are no states that maintain embassies in Jerusalem.[3]
Some states maintain consular posts in Jerusalem; though such posts are based
on the city’s international status, and no exequatur or other authority for its
establishment is sought or obtained from Israel. Most states, including the
United Kingdom, regard Israel as exercising only de facto authority over West
Jerusalem. Although the 1949 Israel-Jordan General Armistice Agreement endorsed
the de facto division of the City, it did not affect the legal status of
Jerusalem. In particular, Article II expressly provided that the Agreement
should not confer any political or military advantage, that it should not
prejudice the rights, claims or positions of either party and that it was
dictated exclusively by military considerations.
11. As regards East Jerusalem, prior to the
June 1967 war, that part of the City was generally recognised as under the de
facto administration of Jordan. Israel’s occupation of East Jerusalem in the
June 1967 war did not confer any title. This is because of (i) the well-established rule of
international law that belligerent occupation cannot confer title[4] and
(ii) the principle of the inadmissibility of acquisition of territory by force
and the requirement that Israel should withdraw from (the) territories occupied
by it in the June 1967 war as laid down in Security Council Resolution
242. Accordingly sovereignty over East Jerusalem, like the remainder of
Palestine, remains in abeyance.
12. The next question that needs to be
considered is whether Jerusalem has a status different from that of the
Occupied Territories and Israel. Although the UN Partition Plan proposed that Jerusalem should
have the status of a corpus separatum under a special regime to be
administered by the UN, that regime never came into effect. However, it is
clear from the history of United Nations’ efforts to internationalise the City
following the rejection of the Partition Plan that the concept of a corpus
separatum under an international regime for the City lived on. (It
should also be noted that, prior to the de facto occupation of East Jerusalem
by Jordan in 1950, the Arabs also accepted the principle of an international
regime for Jerusalem). Although the proposals for Jerusalem in the UN
Partition Plan were recommendations only and are therefore not legally
binding, there does appear to be a wide measure of agreement that Jerusalem should
continue to be regarded as a corpus separatum (i.e. territory that is legally
distinct from Israel and the rest of the Occupied Territories), even though
the precise nature of the regime that will apply to the City has not been
agreed. It is for this reason that
states have not recognised Israel’s claim to sovereignty over West Jerusalem
and have not established embassies there. The UN General Assembly and Security Council Resolutions subsequent to
General Assembly Resolution 181 speak rather vaguely of the “status of
Jerusalem” without defining precisely what that status is. In
most cases the term is used in the context of condemning Israeli actions
tending to assert Israeli sovereignty over the city and the intention is to
ensure that the status quo (whatever that may be) is not altered.
Nevertheless the phrase must be interpreted in the historical context, in
particular the efforts of the United Nations to establish an international
regime for the City and the widespread acceptance of the corpus separatum
concept.
13. The international
community decisively rejects Israeli claims to sovereignty over the City (East
and West). Nor is it accepted that there is currently any other Power that has
sovereignty over the city.
Sovereignty is in abeyance. There also appears to be a consensus that Jerusalem does have
a status separate from Israel and the rest of the Occupied Territories. The
unsuccessful efforts of the United Nations to broker a solution specific to
Jerusalem, the widespread acceptance of the corpus separatum concept, and the
references in successive UN Resolutions to the “status of Jerusalem” and to the
“Palestinian and Arab territories occupied by Israel since 1967, including
Jerusalem” testify to that. The precise nature of that status is
undetermined. The legal regime that will apply to Jerusalem is a matter that
will need to be settled in the context of the final peace settlement, as
agreed between the two sides in the Declaration of Principles and in the
Interim Agreement. Whether the regime will take the form of a divided city with
each side having sovereignty over its respective half, a condominium, an
international regime as envisaged in the original Partition Plan, or some other
solution, is a matter for negotiation.
The Palestinian Position Regarding Sovereignty
over the City
14. The Palestinian position is that Jerusalem
should be the capital of the State of Palestine. The Declaration of
Independence adopted by the Palestine National Council in 1988 declared “the
establishment of the State of Palestine in the land of Palestine with its
capital at Jerusalem”. In the Palestinian view, that claim necessarily involved
an assertion of sovereignty over the City. The Palestinian position has
received overwhelming support from the Arab and Non-Aligned countries.
The Sixth Conference of Heads of State or Government of
Non-Aligned countries affirmed a number of basic principles for a comprehensive
solution of the Arab-Israeli conflict, including that “the City of Jerusalem is
an integral part of occupied Palestine. It must be evacuated in its entirety
and restored unconditionally to Arab sovereignty”. The Third Islamic summit
conference “the Palestine and Al-Quds al-Sharif session” held in Mecca in
January 1981, stressed “the determination of the Palestinian people to maintain
their eternal right to the Holy City of Al-Quds as the capital of their
homeland Palestine, and the insistence of Muslim Governments and peoples alike
on their eternal right to the Holy City of Al-Quds, in view of the permanent
political, religious, cultural and historical importance of Al-Quds to all
Muslims”, and affirmed “the commitment of Islamic States to liberate Al-Quds to
become the capital of the independent Palestinian State, and to reject any
situation which might infringe on the Arab right to full sovereignty over
Al-Quds”. In their declaration adopted at Fez, Morocco, in September 1982,
If we
adopt “somebody who believes Jews should not have to obey the law” as our
working definition of a Jewish supremacist, then Romney’s position on Jerusalem
alone would seem to qualify him as a Jewish supremacist. But Romney has also
said nothing of the illegal blockade of Gaza, or the ongoing settlement
enterprise in the West Bank, or numerous other law violations by the Israelis,
which would suggest a presumptive acquiescence to Israel’s exemption from the
law in these and possibly many other areas as well.
Also if
we go here, we can read how Casino magnate Shelden Adelson—most likely
Romney’s largest contributor—is pressing the Republican candidate to come out
in favor of a pardon for convicted spy Jonathan Pollard. So far Romney has sidestepped
the issue by saying he can’t make a decision on the matter without access to
all the classified documents, but a pardon for Pollard can perhaps be viewed as
an anticipated outcome of a Romney presidency.
Of
course Romney isn’t the only Jewish supremacist in American politics. We are
cursed to be top-heavy with them. Last year Benjamin Netanyahu gave a speech
before a joint session of Congress during which he received no less than 30 standing ovations (some have said the number was 29, but
there were actually 30. I counted them.). This was after he was introduced by
House Speaker John Boehner, who referred to the Israeli prime minister as “his
excellency.” And of course, Obama has demonstrated his own subservience to
Israel time and time again. None of this will end until the 98 percent of
Americans who aren’t Jewish (and even many of those who are Jewish) realize
that their own best interests lie in immediately severing all ties with the “Jewish
state.”
***************************
Jews and Mormons
Last week I posted an article in which I discussed the apparent close affinity
many members of the Mormon faith have for Jews. It turns out that a Jewish
publication, JewishJournal.com, publishes a regular column entitled Jews and
Mormons that discusses that very topic. The column is authored by Mark
Paredes, a Mormon living in southern California, who says he takes “great
pleasure in knowing that if Israelis could decide the winner of November’s
election, Mitt—the Mormon candidate—would win in a landslide.” Paredes’ post on
Romney’s trip to Israel can be found here and includes a little history on support for the
Zionist cause by various church officials, dating all the way back to 1841 when
an elder of the church, Orson Hyde “dedicated the Land of Israel for the
gathering of the Jewish people.” Today there is an Orson Hyde Memorial Garden
on the Mount of Olives, while Brigham Young University also has a branch in
Jerusalem.
“As more and more Jews and Israelis become familiar with the history of the
LDS-Jewish relations, they will better understand why Mormons feel a special
closeness to them,” said Paredes. “In the case of Mitt, I believe that his
religious beliefs and his strong support for Israel and Jews can’t be
separated; they merely feed off each other.”
River to Sea Uprooted Palestinian
The views expressed in this article are the sole responsibility of the author and do not necessarily reflect those of this Blog!
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