As the spiritual home to three major religions, Jerusalem is one of the most contested cities in the world. Heavily populated and remarkably diverse, a “united Jerusalem” should not be taken for granted. Various armed conflicts and the altered statuses they brought leaves ample room to maneuver around the respective legal claims.
Claims sprout in every facet of the conflict. Questioning sovereignty over east Jerusalem in particular epitomizes this collision, between complex domestic entanglement and public international law.
Historically, the British Mandate for Palestine was committed to the “establishment in Palestine of a national home for the Jewish people”. This was famously followed by UN Resolution 181 which envisioned a “Special Regime of the City of Jerusalem [which] shall be established as a corpus separatum and shall be administered by the United Nations.” A useful starting point but considered “stillborn”, these junctions are more contextual than binding.
In the aftermath of the 1948 War of Independence, the 1949 Armistice (Green) line was drawn and it remains the catalyst of today’s legal conflict. Although the Armistice Agreement stipulates that the Green line should not be “interpreted as prejudicing, in any sense, an ultimate political settlement between the Parties” and that “no military or political advantage should be gained under the truce ordered by the Security Council”, the line has been given the status of a quasi border, which serves mostly as a political measuring stick rather than a legally recognizable border.
Israel’s view on east Jerusalem is that it is part of Israel. Included in Israeli national law and Jerusalem municipal law in particular, the whole of Jerusalem including east Jerusalem is considered to be part of Israel’s undivided capital.
On the other hand, the international community has condemned Israel’s annexation of east Jerusalem every step of the way, as expressed in a number of UN Resolutions. Most notably, Resolution 242 (1967) emphasizes “the inadmissibility of the acquisition of territory by war” and calls for the “withdrawal of Israeli armed forces from territory occupied in the recent conflict”. More pointedly, Security Council Resolution 476 (1980) re-emphasizes that “any actions taken by Israel which purport to alter the character and status of Jerusalem have no legal validity”.
Sovereignty arguments follow by both sides, stretching deep into the selective construal of facts. This allows a certain flexibility when determining sovereignty. In general, Israeli advocates say that east Jerusalem is under Israeli control because the 1967 war was defensive in nature, and that the Armistice (Green) line was not a recognizable border, allowing Israel to lawfully fill the sovereignty vacuum in east Jerusalem.
Palestinian sovereignty arguments are mostly responsive. Stronger arguments are presented (and accepted) by evoking the right to self determination. Claims are put forward that Israeli presence in east Jerusalem infringes upon the Palestinians right to self determination. Multiple UN Resolutions “affirm the right of the Palestinian people to self-determination, without external interference”.
This line of reasoning was confirmed in the ICJ’s 2004 decision on the Separation Barrier. The court fell short of explicitly defining borders and thus did not say that the Jewish suburbs in east Jerusalem were illegal per se. Rather, the court phrased its decision by saying that the wall “severely impedes the exercise by the Palestinian people of their right of self-determination”.
The ICJ also responded to the self-defense argument, noting that the “route of the wall is designed to change the demographic composition of…east Jerusalem…by reinforcing Israeli settlements illegally established on occupied Palestinian territory… constituting a violation of the legal principle prohibiting the acquisition of territory by the use of force”.
Debates and disputations on east Jerusalem have led to countless proposals. Any respectable middle-east expert has a formula for peace with a cleverly thought out resolution for the Jerusalem dilemma. Most suggestions propose a divided city where each side is responsible for the governance of their respective territory, as put forward in the Clinton plan. Under such a proposal, what is Palestinian will come under the territory of the new capital al-Kuds and what is Jewish will remain under Israeli control.
Although Jerusalem’s mayor, Nir Barkat, is committed to keeping Jerusalem united, the decision to divide the city is largely in the hands of the “peace process” which considers both domestic interests and international law alike.
While there are disagreements at every historical intersection, where every nuance leads down a road arriving at an opposing position, great strides towards reconciliation have been made. It emerged that the Palestinians have largely accepted that Jewish suburbs in east Jerusalem will remain under Israeli control (except Har Homa, as it was built after Oslo). The question that remains, is what will happen to the Palestinian populated areas of east Jerusalem.
Will Jerusalem remain united? Only time will tell.