In 1995, and against all reasonable legal counsel, the US legislature passed the “Jerusalem Embassy Act”. The Act ordered the administration to move the US Embassy in Israel to Israeli occupied Jerusalem.
Every six months since the passing of the Act, US presidents re-issued directives to postpone the move for another six months so as “to protect the national security interests of the United States". On Tuesday December 5 President Trump decided to no longer block the enforcement of Bill Clinton’s 1995 Jerusalem Embassy Act.
Two nations claim Jerusalem as their capital city
Israel Prime Minister David Ben-Gurion in 1949 proclaimed in the Knesset (Israel's parliament) that Jerusalem was an "inseparable part of the State of Israel" and its ‘eternal capital’. The 1980 “Basic Law: Jerusalem, Capital of Israel” states in section 1 that "Jerusalem, complete and united, is the capital of Israel", and in section 2 that it is "the seat of the President of the State, the Knesset, the Government, and the Supreme Court".
Similarly, in October 2002 the Palestinian Legislative Council adopted the Law on the Capital, which stipulates, in section 1, that Jerusalem is the capital of the Palestinian state and the main seat of its three branches of government.
The conflicting claims to Jerusalem, by both Israel and Palestine, are irreconcilable and result in a reciprocal denial of statehood. Statehood is the most fundamental concept of international law. It is made up of the notions of territory, the population and the effective authority and control over both by a government that is seated in a state’s capital city. This explains why every peace initiative concerning the Israel – Palestine conflict, including the so-called Camp David Summit in 2000, eventually failed over the question of the legal status of Jerusalem.
Besides the conflicting claims of sovereignty, Jerusalem is considered holy by the adherents of the World’s three major monotheistic and therefore kindred religions, Christianity, Islam and Judaism. Jesus died and came back to life at the Holy Sepulchre and later ascended to heaven from the Mount of Olives. The Al-Aqsa Mosque and the Dome of the Rock as well as the Temple Mount (Haram al Sharif) on which they are situated, are Holy Places of Islam. For the Jewish people the entire 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.
The paramount religious importance of Jerusalem led to the proclamation of the Ottoman Firman of 1852, over one and half centuries ago. According to this edict, even the feared Ottoman Empire accorded special protection to the holy places, and the three religious denominations were given special powers and rights thereto. This regime received international recognition in the 1856 Treaty of Paris, followed by further recognition in the 1878 Congress of Berlin.
When the Ottoman Empire was carved up by the Anglo-French Sykes Picot Agreement as a consequence of World War I, Jerusalem was placed under global international jurisdiction, by way of a League of Nations mandate, and the administration of this mandate was entrusted to Great Britain. The mandate was a similar tutelage arrangement as the League of Nations mandate for South West Africa (now Namibia). The mandate in respect of Namibia was a Class C mandate, whilst the mandate in respect of Palestine was a Class A mandate. The difference in terms of article 22 was that Class C referred to communities that were ‘best administered under the laws of the Mandatory as integral portions of its territory’, whereas Class A mandates applied to communities that were considered to ‘... have reached a stage of development where their existence as independent nations can be provisionally recognised subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory.’ The mandated power was bound by an international law obligation towards the League of Nations and all its member states, to act only in the presumed best interests of the communities concerned, on the basis of a ‘sacred trust’.
Great Britain betrayed the terms of the Palestine Mandate when it opportunistically allowed for the unilateral declaration of the establishment of an Israeli state on mandate territory on 14 May 1948 and the tragically unresolved status of Jerusalem today is the consequence of Britain’s duplicity in 1948.
CURRENT LEGAL QUALIFICATIONS
Just before the unilateral declaration of an Israeli state in May 1948, the United Nations as the successor organisation of the League of Nations, through the UN General Assembly, passed Resolution 181 (III) of 29 November 1947 proposing an internationalisation of Jerusalem by placing the city under a special regime denominated Corpus Separatum to be administered by the UN. UN GA Resolution 181 (III) became known as the Partition Plan. It envisaged the creation of two states (one Jewish and one Palestinian) with Jerusalem as an internationalised zone to be administered by the United Nations with the Trusteeship Council being designated as administrator over the city. However, Israel rejected the retention of a special status for Jerusalem as early as 1950 by declaring Jerusalem the capital city of Israel. In 1967, Israel succeeded in establishing military occupation and control over the entire Jerusalem following the Six Day War.
Four alternative interpretations
The first view, prominently defended by Lauterpach, suggests that Israel, in 1948, would have acquired lawful sovereignty over Jerusalem as the earlier abandonment of the territory by Britain created a ‘vacuum’, or a sort of terra nulliusthat was free for anyone to appropriate. Under these circumstances, whilst acting in self-defence against a presumed threat from other states in the region, the new state of Israel would have been entitled to occupy and incorporateJerusalem.
A second interpretation, as proposed by Prince Hassan Bin Talal, reasons that in the absence of any international consensus, no effective incorporation of Jerusalem can be assumed and sovereignty over Jerusalem remains suspended until a comprehensive settlement agreement can be reached.
Thirdly, according to Cattan and many others, the Arab People of Palestine have, since the termination of the Palestine Mandate, never lost and still enjoy legal sovereignty over the whole of their territory, including Jerusalem.
The fourth formal legal view, as defended by the eminent scholar Cassese, holds that the status of Jerusalem is still subject to the UN General Assembly resolution of 1947, which recommended the establishment of a corpus separatumunder a special international regime administered by the UN. Cassese, argues that there is no evidence to show that after 1952 the UN ever endorsed Israeli sovereignty over Jerusalem. He states that: ‘UN silence on the question between 1952 and 1967 cannot amount to acquiescence of a legal title...it can only mean that the world organisation accepted and acquiesced in de facto control of Jerusalem by Jordan and Israel.’ He further suggests that mere silence does not convert de facto authority into fully-fledged sovereignty, and one should not assume that the UN expressed its consent on such a complex and explosive matter by keeping silent. Cassese also notes the actions of a number of the member states, all pointing to the fact that the UN did not express its consent on the issue of sovereignty. This view, most importantly, is supported by the European Union. In 1999 the Ambassador to 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…’.
International state practice regarding Jerusalem is less ambiguous than might appear. The international community has at no point recognised the sovereignty of either Palestine or Israel over Jerusalem. Moreover, since 1967, the UN including the UN Security Council, has repeatedly stated that East Jerusalem is an occupied territory subject to the 1949 Geneva Convention IV. In 1980 when Jordan requested that the Old City and its walls be entered on the World Heritage List, this request was granted.
Even Israel itself has acted with some ambiguity, at least in respect of East Jerusalem by allowing, for instance, in 1996 and again in 2005 and 2006, for a vote by Palestinian residents for the Ra’ees and for the Legislative Council of the Palestine Authority.
Finally, the all-important 2004 Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory determined that East Jerusalem is ‘occupied Palestinian territory’.
THE UN AS TRUSTEE OF THE RESIDUAL JERUSALEM MANDATE
During his several interventions at the last summit of the League of Arab States in Sirte on 27 March 2010, UN Secretary General, Ban Ki-moon, summarised and reiterated what the United Nations have upheld since 1947, namely, that the international community and the United Nations remain seized with the responsibility for Jerusalem, and in particular support the Arab Peace Initiative of 2002. Specifically, Ban Ki-moon stated at the Opening Session on 27 March 2010:
Jerusalem’s significance to all must be respected and it should emerge from negotiations as the capital of two states’.
The noble idea of a condominium where two sovereign states would share one and the same capital, was never a realistic prospect. However, the remark by Secretary General Ban Ki-moon is a reminder of the determination of the World neither to endorse nor to acquiesce in the forceful and unilateral positions and acts embarked upon by Israel.
State practice is the driver of all international legal norms. The establishment in 1975 of the United Nation’s General Assembly Committee on the Exercise of the Inalienable Rights of the Palestine People (UNISPAL) is part of such state practice. So are the over sixty years of refusal by the international community to recognise conflicting and exclusionary claims to statehood and the status of Jerusalem as a capital city, or establish a diplomatic mission in the Holy City.
THE FUTURE JERUSALEM MANDATE
The rejection of state practice and of the UN responsibility for Jerusalem by the most recent decision of President Trump to hoist an American flag in the Holy City, recalls the wisdom of the original and historic guarantees embodied in the Ottoman Edict of 1852, granted and upheld by what is today Turkey.
Whilst the conflicting parties cannot agree on an overall Israeli – Palestine settlement, the Ottoman guarantees could be restated. A new Treaty of Neutrality for Jerusalem could institute the city as an independent body corporate under international (treaty) , protected by the Arab League, the United Nations, and Turkey as the historic and regional protectorate power. The Treaty could immediately satisfy the existential need of Israel to achieve full and unconditional recognition of its existence and statehood, in return for an internationally guaranteed freedom of the Holy City of Jerusalem.
America’s current “war on terror” has turned the nations of Iraq, Libya, Syria and the Yemen into wastelands. There is a global moral and international law imperative to spare Jerusalem the same fate. The world must say no to an extension of America’s "War on Terror" to the Holy City of Jerusalem.
* Dr André Thomashausen is Professor Emeritus of International Law of the University of South Africa.
** The views expressed here are not necessarily those of Independent Media.