In early 1947, Britain decided it could no longer sustain the Palestine Mandate. Instead of ceding sovereignty to the people as had transpired with the termination of other mandates in the Middle East, London called upon the newly-formed United Nations to determine the political status of Palestine. Although the world body was not yet a global one, as many peoples remained under colonial domination and were thus unrepresented, on 15 May 1947 it established a Special Committee on Palestine (UNSCOP), comprised of representatives from eleven member states that included four from Europe, Australia, Canada, three from Latin America, only two from Asia, and none from Africa to study the matter. UNSCOP then appointed a sub-committee to examine issues relating to Jerusalem and Palestine’s holy sites.
In September 1947, UNSCOP produced a majority report recommending partition with economic union, and a minority one proposing a federal union with Jerusalem as its capital.[i] The majority report laid the basis for UN General Assembly Resolution 181 “Recommending the Partition of Palestine,” adopted on 29 November 1947.[ii] Pursuant to this resolution, and in line with the UNSCOP majority report, neither of the proposed states would exercise sovereignty over or within Jerusalem. Rather, the Holy City and its environs would form a neutral, demilitarized corpus separatum (“separate body”) governed by a “special international regime” to be administered by the UN Trusteeship Council on behalf of the world body. Although distinctly governed, Jerusalem would, in this scheme of things, enjoy open borders with the proposed Arab and Jewish states and be fully integrated with the economic union encompassing the two new states.
Among the main justifications provided for the internationalization of Jerusalem was that maintenance of the peace in the Holy City would be essential to preventing further conflict within and between the proposed Arab and Jewish states, and that, in light of the “unique”[iii] significance of Jerusalem to Christians, Muslims, and Jews the world over, “[d]isturbances in the Holy City would have far-reaching consequences, extending perhaps beyond the frontiers of Palestine.”[iv] As such, UNGA Resolution 181 additionally re-confirmed and vowed to uphold the Status Quo concerning holy sites.
According to Resolution 181’s terms, the special international regime for Jerusalem would govern the city for an initial period of ten years, at which point it would be subject to “re-examination” by the UN Trusteeship Council “in the light of the experience acquired with its functioning,” and amenable to “possible modification” by means of a “referendum” conducted among the city’s residents.[v]
However, conflict erupted within Palestine immediately after the passage of the resolution by the UN General Assembly. The militarily superior Zionist movement, having conquered and ethnically cleansed large swathes of territory allotted to both the Arab state and the Jerusalem corpus separatum resolution prior to the end of the British Mandate, unilaterally proclaimed the establishment of the state of Israel on 14 May 1948, although without declaring its borders then or since. By the conclusion of the ensuing 1948-1949 Arab-Israeli War, Israel occupied most neighborhoods of the New City north and west of the Old City (which subsequently came to be known as West Jerusalem), while Jordanian forces were in possession of all of the Old City and several adjacent neighborhoods to its north and east (since known as East Jerusalem).
Six months after the war erupted, UN General Assembly Resolution 194 of 11 December 1948 resolved to uphold the Status Quo “in accordance with existing rights and historical practice”; re-confirmed that “in view of its association with three world religions, the Jerusalem area … should be accorded special and separate treatment from the rest of Palestine and should be placed under effective United Nations control”; called upon the Security Council “to ensure the demilitarization of Jerusalem at the earliest possible date”; and established the United Nations Conciliation Commission for Palestine (UNCCP) to promote a peaceful settlement of the conflict. This new body, consisting of the United States, Turkey, and France, was instructed to, inter alia, produce “detailed proposals for a permanent international regime for the Jerusalem area which will provide for the maximum local autonomy for distinctive groups consistent with the special international status of the Jerusalem area”.[vi]
With respect to the recently dispossessed residents of Palestine, including those from (West) Jerusalem,[vii] Resolution 194 furthermore resolved thatو
refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible;[viii]
In September 1949, in accordance with its instructions, the UNCCP presented a document tantamount to a constitution for the establishment and governance of a special international regime for Jerusalem. Consistent with the aforementioned resolutions and other provisions, once again confirmed the centrality of upholding the Status Quo, and called for extending the practice that “[n]o form of taxation shall be levied in respect of any Holy Place, religious building or site which was exempt from such taxation on 14 May 1948”.[ix]
The principles enunciated in Resolutions 181 and 194 during the late 1940s form the continuing legal and diplomatic basis for the international community’s collective refusal to recognize the sovereignty of any state over any part of the Holy City. In practice, the United Nations and its member states have taken the position that the conclusion and implementation of a peace treaty endorsed by the international community forms the only acceptable alternative to a corpus separatum and special international regime for Jerusalem. This reflects the longstanding conviction that unilateral assertions of sovereignty over Jerusalem, in addition to being illegal under international law, thwart the search for peace, damage the prospects for religious coexistence within and beyond the region, and thus form an explosive threat to international peace and security. Recognition of such claims in the absence of a peace agreement that resolves the question of Jerusalem and other aspects of the conflict has, in this context, been viewed as willfully pouring oil onto the fire. As such, international rejection of Israel’s assertions of sovereignty regarding Jerusalem precedes its 1967 occupation and annexation of East Jerusalem and has been applied equally to West Jerusalem since 1948.
Cognizant of this solid international consensus and with its application to join the United Nations pending, Israel initially located its seat of government in Tel Aviv. When Israel’s parliament on 23 January 1950 proclaimed (West) Jerusalem as its capital, none of the states that had previously recognized Israel, including its closest international allies, accepted its declaration. In fact, the United States, among others, initially “imposed a boycott” on American officials conducting business there.[x] Similarly, Jordan’s annexation of the West Bank that same year, which included a provision that after Amman, (East) Jerusalem would function as the Kingdom’s “alternative capital”, was largely rejected by the international community. The few states which did recognize Jordanian sovereignty over the West Bank, such as the United Kingdom, specifically excluded East Jerusalem from its terms.[xi] To the extent that states engaged with the Israeli and Jordanian governments in Jerusalem, they explicitly and consistently did so on a de facto rather than de jure basis.
Israel’s 1967 military occupation of East Jerusalem and subsequent annexation as a result of the war it launched on 5 June of that year, threw up an additional set of challenges for the international community. Not only was Israel deemed to be in further violation of the existing global consensus on Jerusalem as detailed above, but its actions in East Jerusalem were additionally judged to be in flagrant violation of the laws of war and international law with respect to the administration of occupied territory. Israel has also repeatedly modified and continuously challenged the Status Quo.[xii]
Among the first actions Israel took in 1967 was to dissolve the East Jerusalem municipal council, absorb its territory into the Israeli municipality of West Jerusalem, and further extend its boundaries through the incorporation of additional West Bank territory. This extension of Israeli law into occupied territory, tantamount to an act of annexation, was immediately and overwhelmingly condemned by General Assembly Resolutions 2253, which termed Israel’s actions “invalid”, called upon it to “rescind” its measures and “to desist forthwith from taking any action which would alter the status of Jerusalem”.[xiii] Similarly, the following year, the Security Council, in Resolution 252, determined that “all legislative and administrative measures and actions taken by Israel … which tend to change the legal status of Jerusalem are invalid and cannot change that status”, and demanded that Israel “rescind all such measures already taken and … desist forthwith from taking any further action which tends to change the status of Jerusalem”.[xiv]
In the decades since 1967, Israel has sought to fundamentally alter the geography and demography of East Jerusalem,[xv] primarily through the systematic establishment and expansion of settlements within and surrounding East Jerusalem in an effort to fragment and encircle the (Palestinian) Arab city. Various United Nations organs, international organizations, and human rights groups have repeatedly condemned its manifold violations of international law, including activities – such as settlement –which, pursuant to the 1949 Fourth Geneva Conventions, are defined as “grave breaches”, the Convention’s equivalent of war crimes.[xvi] More recently, Israel’s conduct has been referred to the International Court of Justice, which issued a landmark ruling in 2004 re-affirming the principle that all measures undertaken by Israel since 1967 to change the character of East Jerusalem have no legal validity and are null and void.[xvii] Israel’s activities have since also been referred to the International Criminal Court in The Hague for evaluation and potential prosecution.
Of particular note are Security Council Resolutions 465 and even more so 478, both adopted in 1980 in response to Israel’s escalating campaign to establish permanent sovereignty over East Jerusalem. Resolution 465, adopted with US concurrence, in relevant part:
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5. Determinesthat all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel's policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;
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6. Strongly deploresthe continuation and persistence of Israel in pursuing those policies and practices and calls upon the Government and people of Israel to rescind those measures, to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem;
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7. Calls upon all States not to provide Israel with any assistance to be used specifically in connexion with settlements in the occupied territories;[xviii]
Resolution 478 -- passed (with a US abstention) in response to the Israeli parliament’s 30 July 1980 adoption of a Basic Law proclaiming that “Jerusalem, complete and united, is the capital of Israel” -- not only “[c]ensures [Israel’s Basic Law] in the strongest possible terms”; it additionally determines:
[A]ll legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the recent "basic law" on Jerusalem, are null and void and must be rescinded forthwith.[xix]
Of crucial importance to the present moment, the resolution further requires “[t]hose States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City”.[xx] In response, the thirteen states which maintained embassies in Jerusalem (none of which recognised Israeli sovereignty over the Holy City), relocated their missions to Tel Aviv.[xxi]
In essence, the origins of the international consensus on Jerusalem pre-date the Arab-Israeli conflict by more than a century. It initially emerged as an initiative by the Ottoman authorities to regulate competing claims over holy sites in Palestine between various Christian denominations and rival European powers who promoted such claims in order to achieve geopolitical advantage, and to a lesser extent between the three Abrahamic faiths. A recognition by the European powers of the capacity of even minor religious altercations in Jerusalem to provoke international conflict led them, during the nineteenth century, to endorse the Status Quo and consecrate it in various international treaties.
The Arab-Israeli conflict subsequently contributed an additional, national dimension that simultaneously expanded the potential for religious strife, this time primarily between Jews on the one hand and Christians and Muslims on the other. The international community, acting through the United Nations, in 1947 responded to the dangers inherent in this reality by proposing to transform Jerusalem into a corpus separatum with a special international regime, and has since consistently rejected unilateral declarations of sovereignty over the Holy City. Formulated with the active participation of the United States, it retains the power of international law as well as longstanding diplomatic convention, and has been adopted by UN member states and regional organizations such as the European Union alike.
Since 1948, the international community has additionally endorsed, and at times actively promoted, a diplomatic resolution of the Arab-Israeli conflict that would entail shared sovereignty over the Holy City. Since 1967, such proposals have generally provided for Israeli sovereignty in West Jerusalem and Arab sovereignty in East Jerusalem in the context of an open city, and with arrangements that guarantee religious access to holy sites.
As the Palestinians became the central Arab protagonists in the conflict after 1967, the international consensus during the 1970s shifted towards adoption of a two-state settlement, in which an independent, sovereign Palestinian state, with its capital in East Jerusalem, would be established on the territories occupied by Israel in 1967 on the basis of mutual recognition with Israel inside its pre-1967 boundaries. Given the national centrality of Jerusalem to the Palestinian people, its religious centrality to the Christians and Muslims of Palestine and the Arab world as a whole, as well as the imperatives of international law regarding the illegitimacy of the acquisition of territory by force, it is considered self-evident that without East Jerusalem Palestinian statehood, and by extension Israeli-Palestinian peace, is essentially a meaningless fiction. Not only is East Jerusalem geographically central to the West Bank and the occupied Palestinian territories, it has since 1967 also been central to the socio-economic, cultural, and political life of the occupied territories. As such, every significant initiative to implement a two-state settlement has emphasised shared sovereignty over Jerusalem, with various proposals to ensure open borders between East and West and freedom of religious access.[xxii]
[i] United Nations, Special Committee on Palestine, Official Records of the Second Session of the General Assembly: Supplement No. 11 (Report to the General Assembly, Volume 1) A/364 (3 September 1947). Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/07175DE9FA2DE563852568D3006E10F3.
[ii] United Nations, General Assembly, Resolution 181 (II). Future government of Palestine A/RES/181 (II) (29 November 1947). Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/7F0AF2BD897689B785256C330061D253.
[iii] Ibid.
[iv] United Nations, Special Committee on Palestine, Official Records of the Second Session of the General Assembly: Supplement No. 11 (Report to the General Assembly, Volume 1) A/364 (3 September 1947), Article VI.G.III.4 Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/07175DE9FA2DE563852568D3006E10F3.
[v] United Nations, General Assembly, Resolution 181 (II), op. cit.
[vi] United Nations, General Assembly, Resolution 194 (III). Palestine – Progress Report of the United Nations Mediator A/RES/194 (III) (11 December 1948), Articles 7 and 8. Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/C758572B78D1CD0085256BCF0077E51A.
[vii] Palestinians in 1948 did not only suffer wholesale expulsion from West Jerusalem. Their very extensive property holdings and other assets were also seized by the new Israeli state. See further Salim Tamari (ed.), Jerusalem 1948: The Arab Neighborhoods and Their Fate in the War (Washington, DC: Institute for Palestine Studies, 1999).
[viii] United Nations, General Assembly, Resolution 194 (III). Palestine – Progress Report of the United Nations Mediator A/RES/194 (III) (11 December 1948), Article 11. Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/C758572B78D1CD0085256BCF0077E51A.
[ix]United Nations, General Assembly, Palestine: Proposals for a Permanent International Regime for the Jerusalem Area: Communication from the United Nations Conciliation Commission
for Palestine to the Secretary-General transmitting the Text of a Draft Instrument A/973 (12 September 1949) Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/5ba47a5c6cef541b802563e000493b8c/426ab77c3c1b506d852563b9007023d8?OpenDocument.
[x] Victor Kattan, “Why US Recognition of Jerusalem Could be Contrary to International Law”, Journal of Palestine Studies XLVII: II (Spring 2018), p. 80.
[xi] Ibid, p. 79.
[xii] See, for example, Michael Dumper, The Politics of Sacred Space: The Old City of Jerusalem in the Middle East Conflict (Boulder, CO: Lynne Reiner, 2002); Wendy Pullan, Maximilian Sternberg et. al, The Struggle for Jerusalem’s Holy Places (London: Routledge, 2013); International Crisis Group, The Status of the Status Quo at Jerusalem’s Holy Esplanade (Washington, DC: ICG, 2015). Available at: https://www.crisisgroup.org/middle-east-north-africa/eastern-mediterranean/israelpalestine/status-status-quo-jerusalem-s-holy-esplanade;
[xiii] United Nations, General Assembly, Resolution 2253 (ES-V) Measures taken by Israel to Change the Status of the City of Jerusalem A/RES/2253 (ES-V) (4 July 1967). Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/A39A906C89D3E98685256C29006D4014
[xiv] United Nations, Security Council, Resolution 252 (1968) of 21 May 1968 S/RES/252 (21 May 1968) Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/46F2803D78A0488E852560C3006023A8. In subsequent years these principles were reconfirmed by, the UN Security Council in inter alia, UNSC 267 (1969); UNSC 271 (1969); UNSC 298 (1971); UNSC 478 (1980); UNSC 672 (1990); UNSC 2334 (2016).
[xv] See, for example, Michael Dumper, The Politics of Jerusalem Since 1967 (New York: Columbia University Press, 1997); Geoffrey Aronson, Creating Facts: Israel, Palestinians, and the West Bank (Washington, DC: Institute for Palestine Studies, 1987).
[xvi] See, for example, Al-Haq, East Jerusalem: Exploiting Instability to Deepen the Occupation (Al-Haq: Ramallah, 2015). Available at: http://www.alhaq.org/publications/publications-index/item/east-jerusalem; Human Rights Watch, “Israel: 50 Years of Occupation Abuses” (4 June 2017), and publications referenced therein. Available at: https://www.hrw.org/news/2017/06/04/israel-50-years-occupation-abuses; Civic Coalition for Palestinian Rights in Jerusalem, Occupied East Jerusalem: Submission to the United Nations Human Rights Council Independent International Commission of Inquiry Investigating All Violations of International Humanitarian Law and International Human Rights Law in the Occupied Palestinian Territory Since 13 June 2014 (31 January 2015). Available at: http://lawcenter.birzeit.edu/lawcenter/attachments/article/1371/COI_Brief_East_Jerusalem_CCPRJ__final_.pdf.
[xvii] International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports (9 July 2004). Available at: http://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf.
[xviii] United Nations, Security Council, Resolution 465 (1980) S/RES/465 (1 March 1980). Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/5AA254A1C8F8B1CB852560E50075D7D5. The United States voted for the resolution, which passed unanimously.
[xix] United Nations, Security Council, Resolution 478 (1980) S/RES/478 (20 August 1980). Available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/DDE590C6FF232007852560DF0065FDDB.
[xx] Ibid.
[xxi] David B. Green, “Trump, Take Note: How Jerusalem Went from Hosting 16 Embassies to Zero”, Haaretz (14 May 2018). Available at: https://www.haaretz.com/israel-news/.premium-trump-take-note-how-jerusalem-went-from-hosting-16-embassies-to-zero-1.5627682.
[xxii] See, for example, Menachem Klein, Jerusalem: The Contested City (London: C. Hurst, 2001)