What is the legal status of Jerusalem according to international law

For centuries the Christian and Muslim faiths have recognized that the city of Jerusalem was the capital of the kingdom of David, the place where the first Jewish Temple was destroyed by the Babylonians, the place where the second Jewish Temple was destroyed by the Romans, the epicenter of Jewish faith, the place toward which all Jews around the world are praying 3 times a day.

These are facts and history; but is that enough to give to Israel and the Jewish people a legal claim to Jerusalem according to international law?

This is a point to address solely from the legal point of view, away from religious perspective and political pollution.

Some elements of international law to acknowledge

What is international law? The sources of international law are treaties, customary law, general principles of law, doctrine, judicial decisions and binding decisions of international organizations. In case of conflict between states, a recognized body of the UN, the ICJ (International Court of Justice) is given authority to judge, honestly and equitably, the case when brought before it by the parties; the UN members are supposed to accept the judgement. Therefore, being acquainted with the rules of international law is of paramount importance. Here are some relevant ones that will help assess the legal status of Jerusalem.

International law acknowledges that:

– the Mandates created by the Council of the League of Nations pursuant to the Covenant are binding,

– resolutions of the General Assembly (UNGAs) of the UN are not binding, they are merely politically motivated recommendations,

– Advisory Opinions of the International Court of Justice (ICJ) are advisory recommendations, they are not legally binding. Decisions of the ICJ are binding when two UN states are bringing their case before the ICJ.

– resolution of the Security Council (UNSCs) made under Chapter VI are not decisions but recommendations; they are politically motivated, they do not necessary reflect a true and accurate statement of international law,

– resolutions of the Security Council made under Chapter VII are legally binding, all UN states are supposed to comply with,

– customary international law recognizes the doctrine of ‘uti possidetis iuris’. This means that the borders of new states emerging from Mandates or colonies are established on the basis of the territorial frontiers existing at the time of independence. The newly created entity has a legal claim of sovereignty over the whole territorial entity,

– customary international law recognizes the inadmissibility of acquisition of territory by aggressive war,

– cease-fire lines agreed upon armistice agreements have legal value, however, they are not determining permanent international boundaries.

Applying international law to assess the legal status of Jerusalem

Between 1517 and 1919, the Ottoman Empire was the legal sovereign of Jerusalem. The Ottomans lost WWI to the Allies; they signed treaties (Versailles 1919, Lausanne 1923) in which they renounced their property rights. On the Arab speaking lands under previous Ottoman rule, the League of Nations created 3 legal entities called Mandates to help governing these territories and becoming modern states. The Mandates of Syria and Mesopotamia were devoted to the benefit of the indigenous peoples. In contrast, the Mandate of Palestine was created to serve as a national home for the Jewish people in ‘recognition to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country’ (Preamble of the Mandate for Palestine).

On July 24, 1922 the Mandate of Palestine was voted; according to international law, the League of Nations gave a legal right for ‘close settlement by Jews’ on a territory that included all West and East to the Jordan river (including present Jordan kingdom). However, art. 25 of the Palestine Mandate gave power to the UK to prevent Jewish settlement on the Eastern side of the Jordan river. On September 16, 1922, the UK used this privilege; 78% from the pristine Mandate territory was legally detached and gifted to the Arab Hashemite grand-father of King Hussein from Mecca (a foreigner to the area). An East-Palestine for the Arabs and a West-Palestine for the Jews were created. All West of the Jordan river, including Jerusalem, Judea & Samaria and Gaza remained to the Jews for ‘close settlement’. Arab violence led the UN General Assembly to vote on November 29, 1947 the famous UNGA 181 resolution. This resolution recommended partition of the remaining 22 % of the pristine territory, to be divided into a Jewish and Arab state and Jerusalem to receive international status. From a legal perspective, UNGA 181 and all following UNGAs related to the subject have no legal power. They have no jurisdiction to overcome the previous legal attribution of the territory West to the Jordan river to the Jewish people until it officially renounces it.

On May 14, 1948 the UK ended its Mandate on Palestine and on the next day the independent state of Israel was created. Application of the principle of ‘uti possidetis iuris’ allotted to the newly created state of Israel a legal claim of full sovereignty on the territory of the defunct Palestine Mandate, including Jerusalem and Judea-Samaria. During the War of Independence, the Jordan Legion crossed its international border, conquered the Old City of Jerusalem (ethnic-cleansed it from all Jews) and part of Judea and Samaria. On November 1949, a cease-fire agreement was signed in Rhodes between Israel and Jordan with the Green Line separating the Arab and Jewish forces. This line did not create a new legal reality on the ground; Jordan had no business beyond the Jordan river and was an illegal occupier. Application of the principle of the ‘inadmissibility of the acquisition of territory by aggressive war’ barred Jordan to exercise any legal sovereignty claim on the Old City of Jerusalem and Judea-Samaria.

On June 1967 at the end of the Six Day War, Israel controlled Jerusalem and Judea-Samara. This territory, illegally occupied by Arab Jordan during 19 years, was part of the land attributed by international law to the Jewish people and subsequently to the state of Israel. Thus, Israel is legally entitled to exercise its sovereignty over this territory. Subsequently, there is absolutely no legal need to annex Jerusalem. What is required is only to exercise sovereignty and this is attained by deciding to apply Israeli law.

On November 1967, resolution UNSC 242 was voted, not under Chapter VII. This recommendation ’emphasized the inadmissibility of the acquisition of territory by war’; it ‘affirmed that the fulfillment of UN Charter principles should include the application of the principle of a withdrawal of Israeli armed forces from territories occupied in the recent conflict‘. Which territories did the Israeli armed forces occupy, crossing the international boundaries of neighboring countries?

– Egypt? Yes, Israel occupied Sinai in a defensive war.

– Syria? Yes, Israel occupied the Golan plateau in a defensive war.

– East-Jerusalem belonging to Jordan or any other Arab entity? No, East-Jerusalem did not legally pertain to Jordan because Jordan was the illegal occupier. No other constituted Arab entity had any title on it.

All the following numerous UNSCs, including the last infamous UNSC 2234 of December 2016 are based on UNSC 242. That resolution was not taken under Chapter VII, it is not legally binding and the principle of the ‘inadmissibility of the acquisition of territory by war’ to Jerusalem falls first on Jordan, the illegal occupier of East-Jerusalem between 1949 and 1967. To claim legal sovereignty on all Jerusalem there is no need to invoke arguments like ‘UNSC 242 did not mention a withdrawal from all territories occupied in the recent conflict but from territories, i.e. some territories only, not all of them, or appeal to arguments like ”Jerusalem was acquired during a defensive war’; this legal point should be reserved to Israeli claims on the Golan.

So why is the international community repeating again and again that East-Jerusalem is ‘occupied Palestinian territory since 1967’, that Israel violates international law when exerting its sovereignty over the Old City and the Temple Mount? Why do countries refuse to establish their embassy even in West-Jerusalem? Is Israel’s sovereignty in West-Jerusalem also considered as illegal and violating international law as this was claimed when Australia considered establishing its embassy in West-Jerusalem?

The answer is quite simple.

The ‘international community’ coerced by the oily Arab League and striving to please the blackmailing of the 56 countries of the Organization of Islamic Cooperation (OIC) is still stacked in year 1947, with the Partition plan of resolution UNGA 181 that recommended 1) the creation of a Jewish and an Arab state on the West-Palestine territory dedicated to the close settlement of Jews, 2) to internationalize Jerusalem with a special status of corpus separatum. The international community don’t care that resolution UNGA 181 has absolutely no legal value according to art. 10-15 of the UN Chart. It insists on legality and international law only to shove their political solution down the throat of Israel; a political solution they imagine would solve what they call the ‘Palestine problem’. The so-called international community hides behind legal arguments, but in fact, only politics and blackmail are in action. This is also the reason why UN resolutions are mixing legal and politic arguments in the same breath. The infamous UNSC 2334 is a blatant example; it ‘reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967 (sic), including East-Jerusalem, has no legal validity and constitutes a flagrant violation under international law (the legal argument) and a major obstacle to the achievement of the two-State solution (the political argument) and a just, lasting and comprehensive peace‘ (the Western political illusion). If the legal argument is valid and convincing per se, doesn’t it suffice to put into question the Jewish sovereignty on Jerusalem from the legal perspective, what for is the political argument added? Isn’t it that they are aware their legal argument is void and pointless because you cannot beat a Royal flush (the Mandate resolution of the League of Nations 1922) with a pair of Queens and Kings (UNGAs and UNSCs), even not with an all four Aces (all UNGAs, all UNSCs and the Advisory Opinion of the ICJ)!

Since 1922, no legal event happened in between to strip away the legal rights of the Jewish people and Israel on Jerusalem. Fact is that the UNSC resolutions dealing with Israel often contradicts, breaches and violates international law. Consider the concept of ‘Palestinian territory occupied since 1967′. When whatever a Palestinian entity did exist in 1967 to have its territory occupied? UNSC 242 does not mention such a thing and there is even no remote allusion to it! from where would steam a right for any Arab entity on Jerusalem? from illegal Arab occupation of Jerusalem during 19 years by Arab Jordan and its subsequent ethnic cleansing of the Jews? because some Arabs are living there? while 50 years of Israeli presence buttressed by a legal right have no legal substance? In Jerusalem, Israel never applied the status of belligerent occupation. Discussing application of the Geneva Convention is therefore of no relevance. There are only legal rights for Jewish sovereignty and no legal claim for any Arab entity but political blackmail.

It was only on October 17, 2018, at the European Parliament that Israeli officials first introduced this legal argument in international diplomatic forums, and this effort must continue. The time has come to firmly and unequivocally affirm Israel’s legal rights over all of Jerusalem under international law. Israel should seize the momentum provided by the Trump administration to advance this cause in global forums, ensuring it remains firmly established when a potentially less favorable administration takes office in the future.

Regarding Jerusalem there is no international law but international lie and repeating the fallacious argument of illegality will not whitewash the international lie.

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Readings on this topic can be found at ‘www.thinc.info’, a website of international jurists (thinc., The Hague Initiative for International Cooperation) dedicated to pour a true light on the legal aspects of the Israel-Arab conflict according to international law.