On 6th December 2017, the Office of the Press Secretary, White House issued the text of the speech of the US President Trump, in which he said:
“We finally acknowledge the obvious: that Jerusalem is Israel’s capital. This is nothing more, or less, than a recognition of reality. It is also the right thing to do. It’s something that has to be done.”
Building his stance on legal reasoning by referring to the Jerusalem Embassy Act, 1995 (a US law), he declared the recognition of Jerusalem as the capital of Israel. Besides challenging the established international legal order, the announcement reversed 70 years of the bipartisan foreign policy of the US. No doubt, it was imminently agitated at the United Nations Security Council, where on 8th December 2017, Nikki Haley, the US Permanent Representative to the United Nations tried to confound the policy by stating that ‘the United States had not taken a position on boundaries or borders, which would still be decided by Israel and the Palestinians’. There is a good reason to understand the legalese of the matter as the problem is as legal as political and is likely to affect foreign policies of many countries including Pakistan.
Henry Cattan (1906-1992), a noted Palestinian jurist, provided a very useful outline of Jerusalem, which is conceptual and as well as comprehensive, he stated:
“Founded by the Canaanites around 1800 B.C., captured by David eight centuries later, destroyed by the Babylonians in 587 B.C., Jerusalem was then successively occupied by the Persians, the Greeks, the Romans (both pagan and Christian), the Arabs and the Turks. It is unique among the cities of the world because of its association with the three monotheistic religions, which have their Holy Places within its precincts. As a result, it is of profound religious and spiritual significance to a billion Christians, seven hundred million Muslims and fourteen million Jews. All three ruled the city at one time or another: the Jews for almost five centuries in biblical times, the Christians for over four hundred years in the fourth to the seventh and the twelfth centuries, and the Muslims (Arabs and Turks) for twelve centuries from 638 until 1917 continuously, with the exception of the period when the city was the capital of the Latin Kingdom of Jerusalem.”
The historical outline, for the purposes of international law, shows that:
- The Muslims populated the city from 638 to 1917;
- The city is historically important and religiously unique due to Holy Places that attract the Christians, the Muslims and the Jews alike. The uniqueness of the city was preserved through different legal mechanisms.
The intertwined nature of the issue of Jerusalem with the Arabs-Israel conflict required nuanced analysis. The following is the array of issues:
The State of Palestine
In the era of modern nation-states, the starting point about the creation of the state of Palestine is the end of the Turkish/Ottoman Empire. Legally, it has its origins in Article 22 of the Covenant of the League of Nations that read:
“Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized 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 of the selection of the Mandatory.”
Resultantly, five new states came into being namely Iraq, Syria, Lebanon, Palestine, and Transjordan. From the viewpoint of the international law, the state of Palestine is a product of history and customary international law and only its provisional recognition was captured through Article 22 of the Covenant of the League of Nations, which quintessentially was an international legal treaty. At that time, there was no separate question of Jerusalem before the international community. The later international law developments included the criteria of statehood comprising defined territory, a permanent population, government, and capacity to conduct international relations as provided by the Convention of Montevideo Convention on the Rights and Duties of the States, 1933; Palestine met the criteria of international law.
The Three Legal Entities
Israel, in the era of modern nation-states, owed its origins to Balfour Declaration of 1917, which was no more than a public statement favoring the establishment of a ‘national home’ for the Jewish people in Palestine. From the point of view of international law, the Declaration by Britain had no legal value; no rights could be created on the basis of the Declaration. Later, Britain has entrusted the role of a Mandatory Power under Article 22 of the Covenant of the League of Nations, which fact again did not empower the Mandatory Power to confer rights to create a state within an established state of Palestine. From the point of view of international law, the questions of the creation of the state of Israel and internationalization of the city of Jerusalem emerged after the Second World War. After the Second World War, the United Nations Organization was established through its Charter in 1945 and succeeded in the obligations of the League of Nations. One of the succeeded obligations was with respect to the continuation of mandates, in which, inter alia, the question of Britain’s Mandatory Power in relation to Palestine also came before the United Nations.
Founded by the Canaanites around 1800 B.C., captured by David eight centuries later, destroyed by the Babylonians in 587 B.C., Jerusalem as then successively occupied by the Persians, the Greeks, the Romans (both pagan and Christian), the Arabs and the Turks.
The six-day Arab-Israel War of 1967 altered the legal landscape of the Arab- Israel conflict.
The legal story begins hereafter insomuch as a special session of the United Nations General Assembly was requested by Britain, on the nudging of the United States to facilitate the immigration of Jews to Palestine. An important point worth noting is that the special session was held on 28th April 1947 and authorized the constitution of United Nations Special Committee on Palestine (UNSCOP). The UNSCOP prepared a Report, in which a Plan of Partition with Economic Union (POP) was proposed. The UNSCOP’s Plan of Partition with Economic Union (POP) was later on endorsed and annexed with the General Assembly’s Resolution 18l. The POP was clearly not a legally binding treaty, but its endorsement by the UNGA provided it some degree of legality. The relevant salient features of the POP, for our discussion, are: (a) It ended the mandate of Britain on Palestine; (b) It provided for the independence of three legal entities:
(1) The Arab State; (2) The Jewish State; and (3) The Special International Regime for the City of Jerusalem. The indication of the Special International Regime for the City of Jerusalem in Para 3 of Part I (A) of the POP as annexed to UNGA Resolution 181 clearly shows that Jerusalem did get different treatment. The different and unique treatment was further qualified by declaring Jerusalem as corpus separatum in the same document. The scholars on the subject style the development as the internationalization of Jerusalem. Thereafter, in 1948, parts of Jerusalem were occupied by Jordan and Israel, but the special and unique internationalization of Jerusalem was kept intact by UNGA Resolutions 194 and 303.
Occupation by Israel
They thus applied the Fourth Geneva Convention applicable to the Protection of Civilian Persons in Time of War, 1949 to Israel and specifically relied on Article 49(6) of the Convention that states:
“The occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
The addition of application of international humanitarian law regime to the UN-sanctioned three legal entities Plan of Partition, however, did not change the legal status of Jerusalem, which was guarded by the international community carefully.
The latest testament to this careful diplomatic and balanced approach of the international community was the UNSC Resolution 2234 of 2016. The UNSC Resolution 2234 reaffirmed as many as 10 UNSC Resolutions since 1967 (UNSC Resolutions 242(1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002). 1515 (2003), and 1850 (2008)) and, inter alia, stated that the UNSC:
- Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace;
- Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations; Jerusalem, therefore, warranted separate treatment and the international law on the point based on the international consent channelized through the UN system could not be arbitrarily set aside, more so because the US had consented to its development.
The six-day Arab-Israel War of 1967 altered the legal landscape of the Arab- Israel conflict.
The Municipal Law versus the International Law
The municipal law of the US is at best ambiguous on the issue of powers to make foreign policy; within the four corners of the US Constitution, the primacy of the office of the President in foreign policy making against the role of the Congress has been subjected of much debate. More often than not, ambivalence occupies this debate. In this context, the Jerusalem Embassy Act, 1995 invocation to justify abandonment of the international law does not hold any substance. Notwithstanding this opaqueness in the US legal system, the question is what can a state invoke its municipal law to abrogate its international legal obligations emanating out of its consent proffered at international fora? Academically, the UNGA and UNSC resolutions where plenipotentiaries of the US gave their express consent be treated as having legal value at par with an international legal instrument of the nature of an international treaty; if that be the case, Article 27 of the Vienna Convention on the Law of Treaties, 1969 provides that the internal law cannot be invoked to justify failure to perform a treaty.
The stance of the US has put the international legal order at peril; the idealism of the yesteryears is giving way to realpolitik, which is both immoral and amoral. The net and imminent result of the actions of the US are likely to roll back all that was achieved legally by Israel as the determining factor will be the force and not the law. Unfortunately, the language of extremism is the force and not the law, therefore, the only conclusion is that extremism begets extremism.
- Cattan, Henry, The Status of Jerusalem Under International Law and Under the United Nations Resolutions. (http://www.palestine- studies.org/jps/fulltext/38683)
- Meetings Coverage of the United Nations Security Council (SC/13111) dated 8th December 2017. (https://www.un.org/press/en/2017/sc13111.doc.htm)
- Historical documents related to Question of Palestine and the UN. (https://unispal.un.org/DPA/DPR/unispal.nsf/UNSCOP?OpenView).
- United Nations General Assembly Resolutions 181 (1947) and 303 (1949).
- United Nations Security Council Resolutions 242 (1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002). 1515 (2003), and 1850 (2008).
- The United Nations Charter
- The Covenant of the League of Nations
Shahunur Akter is Lecturer in Law at the Khwaja Yunus Ali University.