23
Jerusalem and International Law
Jerusalem has been identified as the key to a peaceful solution of the Arab-Israeli conflict. Yet the status of Jerusalem has been so controversial that the practice has been to agree to disagree and to keep it off the agenda lest it ruin what little incentive for agreement might exist on less critical matters. Despite this practice, one day the issue of Jerusalem will have to be addressed in all its complexities. With each passing year the future status of Jerusalem demands consideration with ever greater urgency. The Latter-day Saints may see in this situation a fulfillment of Zechariah's prophecy: "And in that day will I make Jerusalem a burdensome stone for all people" (Zech. 12:3). It is instructive to examine the status of Jerusalem from the perspective of modern international law in light of the ever-present political realities, but in the final analysis, no one seriously believes that the controversy over Jerusalem will be settled in an international court of justice.
International Law and Historical Rights
The controversy over Jerusalem did not have its beginning in 1967 nor for that matter in 1947 or 1948. The decisive date in recent history might arguably be 1840. In that year the Egyptian forces under Ibrahim Pasha retreated from Syria and Palestine, and the Turks once again took control of the area.
Before its withdrawal, Egypt had opened Palestine, including Jerusalem, to Western interests; by supporting the Ottomans' return, the West extracted certain far-reaching concessions. For example, every European power was allowed to open a consulate in Jerusalem, and many Christian denominations were allowed to construct churches and monasteries that had heretofore been forbidden to them. This change opened the door to Europeans' acquiring land not only for churches and monasteries but also for hospitals, hospices, and other charitable institutions. These concessions to Western interests placed a certain constraint on the exercise of Ottoman sovereignty over Jerusalem.
In 1855, the outbreak of the Crimean War emphasized the special international status of Jerusalem in the eyes of the West. The war had its roots, in part, in interdenominational strife among Christians over rights to the Church of the Holy Sepulchre in Jerusalem. Russia supported the Russian Orthodox Church, and France took the side of the Roman Catholic Church. The treaty of 1856 that brought the war to a close legitimized the status of the European powers in Jerusalem and established an interdenominational status quo over the Holy Sepulchre. Between the end of the Crimean War and the beginning of World War I, many new churches were constructed in Jerusalem, all under the protection of various foreign consulates.
The end of World War I brought the fall of the Ottoman Empire and with it the special status attained by Jerusalem. The League of Nations appointed Great Britain as the mandatory power over Palestine. The British Mandate was to safeguard the special international status of Jerusalem's churches with their links to the various foreign consulates, preserve existing rights to the holy places, and form a special commission to look into the question of rights with regard to the holy places. 1 In fact, the Commission was never formed, but it is noteworthy that the provision existed.
During the British Mandate the churches in Jerusalem were granted a special tax exemption. By itself that might not seem so extraordinary, but it resulted from international agreements before the Mandate that Britain was bound to honor. It was a reflection of international forces at work, both political and religious, seeking to preserve their respective interests. In 1947, when the League's successor, the United Nations, passed a resolution calling for an international Jerusalem, it was acknowledging an international status that had previously existed.
When the war ended in 1949, and Israel and Jordan divided the spoils in Jerusalem, neither was interested in the internationalization of the city. In what has to be a classic development in international law as it relates to a single city, both Israel and Jordan acknowledged the right of the American, British, French, Belgian, Italian, Turkish, and Spanish consulates in Jerusalem to function without accreditation to any government and with no connection to their respective embassies in Jerusalem, Tel Aviv, or Amman. Furthermore, the tax and customs exemptions continued, as did the special status quo related to the religious sites.
The Legal Status of the Holy Places: The Status Quo
While law is technically an instrument for resolving conflict, in the case of the holy places in Jerusalem, it appears to be less applicable. Part of the problem is that religious precepts by their very nature reject compromise. An individual may waive personal interests, but no individual may waive rights on behalf of his God. In disputes over holy places, the principal litigant—in this case God—is absent, as it were, and is represented by mortals who, rightly or wrongly, believe that they are not at liberty to yield anything on his behalf. Therein lies the crux of the problem with Jerusalem. Additionally, a secular state with a religiously mixed population must be neutral in religious matters. That requires the state to be both liberal and tolerant—a position that satisfies no one. 2
The status quo (or prevailing status) 3 seeks to maintain the status of the holy places as they were during the Ottoman period. Authority for maintaining the status quo is found in a British Order in Council from the mandatory period, dated 1924. 4 Although of questionable legal validity, for primarily political reasons this status quo is recognized as binding to this day. This status is particularly useful for those wishing to hide behind it, who can raise their arms in a helpless gesture, suggesting any intervention in a religious dispute is out of their hands.
In fact, it is very difficult to define what legal rights, if any, derive from the status quo. It is simply an outdated edict that countenances no change. The rationale for the Order in Council may have suited the times, but it is a blatantly discriminatory document at the present. It is prejudicial in that it ignores religious equality; it denies to one religious community what it allows to another. Furthermore, it is a nontolerant document in the face of new developments. For example, the Palestine Order in Council of 1931, which bases its decrees on the status quo, severely limits Jewish prayers at the Western Wall and determines that Christians cannot hold services in the Room of the Last Supper.
In 1967, the government of Israel passed the Protection of the Holy Places Law, 5 which guarantees freedom of access to sacred places by all who deem them holy and protects such places from desecration. It raises the question: Does this law contradict the provisions of the status quo, which does limit access to certain sites? For example, to allow Muslims and Christians access to the area around the Dome of the Rock is a form of desecration to religious Jews because of the sanctity of the site to them. Jews themselves will not even set foot on the Mount.
The logical procedure to reverse matters prejudicial to the interests of a given community is to apply to the courts for ruling. In the matter of the holy places, however, the Palestine Order in Council of 1924 determined that the political arm of the governing authority, not the judicial, should decide all such matters. So as things now stand, the government of Israel and not the courts decides all noncriminal disputes connected with the holy places.
The problem of jurisdiction has arisen several times with regard to criminal acts. In each case, the defense has argued that under the Order in Council of 1924 the courts have no jurisdiction to hear the matter. The judges have been divided. In 1977 the Jerusalem District Court determined that the matter before the court affected a holy place and directed that it be brought before the Minister of Religious Affairs. 6 On the other hand, the Beersheba District Court determined by majority vote that it did possess jurisdiction to hear a matter involving a holy place because the dispute involved a criminal act that lay within the purview of the court. 7
There is such a maze of opinion on this question of jurisdiction that the matter was brought before the Israeli High Court for a ruling. 8 Two of the five judges argued that the Order in Council was no longer in effect and that the courts have full jurisdiction. Two other judges argued that the Order in Council was still in force. A fifth judge found that the Order in Council denying jurisdiction remains in effect subject to the provisions of the Protection of the Holy Places Law. In other words, if the Order in Council conflicts with the Protection Law, the Order in Council is repealed. Thus the courts can hear both civil and criminal disputes affecting free access to the holy places and their desecration because they are matters within the purview of the Protection Law, but the courts may not hear other disputes affecting the holy places—for example, the rights claimed by the various religious communities in relation to these holy sites.
As antiquated as the principle of status quo is, it continues to play an important role in the political and religious complexities of Jerusalem. It allows the government a certain freedom where political realities are concerned that might not be so readily available through the courts. On the other hand, this selective exclusion of jurisdiction remains confusing and bodes ill for the future in dealing with highly sensitive religious matters. This fact is well documented in the case of the single most troublesome issue in Jerusalem: The Temple Mount, or Haram esh-Sharif.
The Temple Mount: A Study of Convoluted Jurisdictions
Anciently the Jews were enjoined to make pilgrimage to Jerusalem and offer sacrifice three times a year—Passover, Shavuot, and Succoth. These spring, summer, and fall festivities are observed even today as holidays in Israel. Although most Israelis relax at home or on the beaches, the observant visit the synagogues and many keep the tradition of going up to Jerusalem. Anyone making a special effort to visit Jerusalem on such occasions would not fail to visit the Western Wall of the ancient Temple Mount, either to worship or to observe others doing so.
In the week of 8 October 1990, during the festivities of Succoth (better known in English as the Feast of Tabernacles), an organization called the Faithful of the Temple Mount, a small group of activists seeking to establish a permanent Jewish presence on the Temple Mount, announced their plans to lay the cornerstone of a future Jewish temple. The Arab Palestinians objected angrily to what they interpreted as a threat to the sacred shrines of Islam.
This dispute has its modern roots in the 1967 Six-Day War, during which the Israeli military overran Arab East Jerusalem and the Old City, including the Temple Mount. Jubilation, if not euphoria, seized Jews worldwide upon learning that for the first time in nearly 2,000 years Judaism's most sacred site, their ancient Temple Mount, was once again in Jewish hands. Both secular and religious leaders among the Israelis vowed that whatever political compromises were made in the future, Israel would never withdraw from East Jerusalem and the Old City. Shortly afterward, on 28 June 1967, Israel announced the reunification of the city and declared Jerusalem its eternal capital.
The Arab Palestinian communities throughout Israel and the occupied territories, with the backing of Islamic states from Morocco to Indonesia, objected violently, angry that Islam's third most sacred shrine in all the world, next to Mecca and Medina, had fallen under Israeli control. On the site known to Jews and Christians as the Temple Mount but revered by Muslims as the Haram esh-Sharif, "the Noble Sanctuary," Abraham brought Ishmael (not Isaac, as believed by Jews and Christians) to offer as a sacrifice. It was also from here that the Prophet Muhammad ascended into heaven on his mighty steed, al-Buraq. And to venerate the site where these sacred events took place, a magnificent shrine was first built in A.D. 691. Furthermore, Jerusalem had been an Arab and an Islamic city for centuries.
Not only did the Islamic world object to Israel's actions in annexing Arab Jerusalem but so did the United States and Great Britain. The major powers publicly deplored Israel's unilateral move and declared that they would not recognize its validity. The overwhelming international opposition to Israel's edict was reflected in the United Nations when on 4 July 1967, a resolution was passed 99 to 0, condemning Israel's actions with regard to Jerusalem and calling upon Israel to "rescind all measures already taken" and to desist from taking any further action to "alter the status of Jerusalem." 9
Israel essentially ignored international public opinion and calmly asserted its right to what it regarded as historically a Jewish city. Out of concern for the historical and spiritual traditions of others, however, Israel would assure the universal, pluralistic character of the city and the protection of the holy places. Partly because of international pressure and partly because of interest in community harmony, the government of Israel, while affirming Israel's sovereignty over the whole of Jerusalem, announced that the Temple Mount would be controlled by the Muslims and that access by non-Muslim pilgrims and visitors to the site be allowed only when it did not interfere with Muslim prayers and holy days.
In the meantime, the chief rabbinate in Israel shocked the more secular elements of the Jewish population—the principle was already well known by religious Jews—with the warning: "Entrance to the area of the Temple Mount is forbidden to everyone by Jewish Law owing to the sacredness of the place." This seemingly extreme position reflected an attitude dating back to Maimonides, a great Jewish sage of the twelfth century, who maintained that because of uncertainty about the location of the Holy of Holies, entrance to which was restricted on pain of death (except for the high priest once a year on Yom Kippur), Jews should stay off the Temple Mount altogether. Although it has been challenged from time to time, this belief is held to be correct by most rabbis in Israel and abroad.
At present, the Israeli government cooperates with Muslim authorities to permit nearly everyone to visit the Temple Mount, but because of Muslim sensitivity about this sacred site, the government supports Muslim demands that Jews not be allowed to pray there. These actions are dictated by the quasi-legal status quo. The policy dealing with religious sites seeks to distinguish between religious rights and secular authority—a sort of separation of church and state, as it were, in which all religious communities enjoy a degree of autonomy and equal status. To allow Jews to establish a physical presence on the Temple Mount or even to start a tradition of daily prayers there would be direct contravention of the status quo and would inevitably result in political unrest and worse.
Jewish nationalists, mostly religious adherents of the organization called the Faithful of the Temple Mount, charge that the Temple Mount, Judaism's most sacred site, is desecrated by the Muslim Dome of the Rock and the al-Aqsa Mosque and that the government of Israel is acting illegally in denying Jews the right to worship there. Although the organization has not gone so far as to call for the destruction of the mosques, it does demand the right to establish a permanent Jewish presence there. This fringe group is numerically weak, but it has powerful supporters in the Israeli government and enough outside backing to have established a serious lobby in Israel's parliament, the Knesset.
Unrelenting pressure by the Faithful of the Temple Mount and a curious assortment of their allies (including many Christian fundamentalists), brought the matter to the Israeli High Court in March 1976. The court determined that the matter was not justiciable because it was a political and not a legal matter. It did distinguish between the right of access to a holy place, guaranteed by the Protection of Holy Places Law, and the right to worship there. The High Court noted that the latter comes under the jurisdiction of the government, not the courts; the government could refuse to permit Jewish prayers on the Temple Mount if it suspected they might lead to a disturbance of the peace.
Undaunted, the Faithful of the Temple Mount, in October 1993, again during the festivities of Succoth, attempted to haul a three-and-a-half ton stone up to the Temple Mount. The stone was reportedly quarried to be the cornerstone of the Third Temple. Once again violence erupted, for Muslims interpreted the act as an effort not just to gain a permanent Jewish presence on Haram esh-Sharif but to begin a movement that would ultimately end with the destruction of their sacred mosque and shrine believed to stand on or near the site of the previous two temples. Timely intervention by the Israeli police prevented serious trouble.
The temple activists, nevertheless, remain resolute in their determination to get a foothold on the Temple Mount, even though they are frustrated by the refusal of successive Israeli governments to allow Jews to pray on the Mount; a reluctance of the courts to get involved in what the courts see as a political decision; the Muslim leaders' determination to preserve the site as a Muslim holy place; and the edict of the chief rabbinate forbidding Jews to go onto the Temple Mount.
Members of the Faithful of the Temple Mount, once again hoping to force the issue and demonstrate wide popular support for their cause, on 1 October 1993 called upon the people of Israel to give a Jewish, national, and Zionist answer to Judaism's enemies and above all to Saddam Hussein and Yasser Arafat. The plan was to lay a symbolic cornerstone of the Third Temple at some location on the Temple Mount.
On 4 October, the Arab Palestinian newspaper Al Fajr warned on its front page that "Jewish extremists intend to march on Al Aqsa mosque on Monday, October 8th." Arab Palestinians were encouraged to demonstrate to the Israelis that they wouldn't be allowed to violate the areas holy to Islam. Jerusalem municipal authorities, seeing the potential for trouble and in keeping with established policy to prevent desecration of a holy site, denied the temple activists authorization to carry out their plans. Outraged, the leadership of the Temple group appealed to the Israeli High Court for an injunction that would allow the group to hold their ceremony.
The activists were prohibited from "laying the cornerstone," but they were told they could go up "in pairs with a police escort," which they ultimately did, defiantly waving Israeli flags, according to news reports. Of course, that was a highly provocative act that the Arab Palestinians would not countenance. They were ready with stores of bottles, stones, and other such missiles to deter the Jewish activists. Whatever the catalyst and no matter who did what first, the results were serious casualties to both sides.
Because Israeli nationalist objectives in Jerusalem are mixed with Jewish religious aspirations, to which is added Christian Fundamentalist political, financial, and moral support, some strange alliances are brought to light. Added to that is Muslim unwillingness to countenance even the slightest change to the present status quo with regard to Islam's sacred sites in Jerusalem. The matter of Jerusalem, with its Temple Mount, or Haram esh-Sharif, portends future conflict between Judaism and Islam, between the Arab Palestinians and the Israelis.
The Juridical Status of East Jerusalem: Israel's Position
With the termination of the British Mandate over Palestine in 1948 and the nonimplementation of the United Nations resolution that would have partitioned the land and internationalized Jerusalem, the newly founded State of Israel claimed to be the "successor state" over certain occupied territories, including West Jerusalem. Theories of internationalizing Jerusalem had been overtaken by facts on the ground. Prime Minister David Ben-Gurion made it clear that "for historical, political and religious reasons, the State of Israel could not accept the establishment of an international regime for the city of Jerusalem." 10 Because Jerusalem was a divided city held by Israel and Jordan respectively until 1967, and because neither was willing to compromise on the matter, internationalization became a moot point.
In the course of the 1967 Six-Day War, Israel occupied the whole of Jerusalem and subsequently extended Israel's law, jurisdiction, and administration to all parts of Jerusalem. Some claim that by this action Israel in effect illegally annexed East Jerusalem. 11 Israel, however, takes the position that there is no need to annex areas that before 1948 constituted part of British Mandate Palestine. Israel does not regard itself as an occupying power nor does it acknowledge claims by Arab states in the area to exercise any sovereign rights over areas occupied by Israel.
The Israeli government maintains that the Israeli Defense Forces "liberated from foreign yoke" the areas in question, including East Jerusalem. Furthermore, Israel holds that under international law it is entitled to undertake "an open act of sovereignty" in areas under the de facto control of the State. 12 In other words, because no sovereign power could show better title to the land in question than could Israel, the territory occupied by it in the war defaulted to Israel. This position is clarified as follows: "Any law applying to the whole of the State of Israel shall be deemed to apply to the whole of the area including both the area of the State of Israel and any part of Palestine which the Minister of Defence has defined by proclamation as being held by the Defence Army of Israel." 13
This position is in keeping with the one maintained by Israel that the territory held by the sovereign State of Israel was not delineated by a resolution of the Security Council but in accord with the outcome of the War of Independence. That belief is borne out by a statement made by David Ben-Gurion: "The Government is not bound to the resolution of November 28; the Foreign Minister has explained more than once . . . that the areas under our control (that is, areas beyond the Partition Plan borders) have been liberated from the enemy by the Israel Defence Forces." 14
This concept has a useful application with regard to Jerusalem, namely, that the government of Israel has never held that the areas of Mandatory Palestine, ceded to Israel, are "occupied territories," which would require "annexation" to become part of the sovereign territory of Israel. 15
Israel takes the position that with the termination of the British Mandate, the nonimplementation of the United Nations resolutions to internationalize Jerusalem, the de facto occupation and political control of East and West Jerusalem by Israel, and the absence of a stronger claim to Jerusalem by any other state in the area, suggest that Israel can show better title than any other state. According to Yehuda Blum's classical treatise on the juridical status of Jerusalem, this may be sufficient under international law to make Israel's possession of Jerusalem virtually indistinguishable from an absolute title. 16
Despite Israel's Basic Law 17 of 30 July 1980, which identifies Jerusalem as the "complete and united" capital of Israel and "the seat of the President of the State, the Knesset, the Government, and the Supreme Court," Israel claims that it introduced no change to the status of the city but simply reaffirmed previously passed laws and regulations.
Most states, uncomfortable with Israel's unilateral actions, continue to locate their embassies in Tel Aviv. Israel, incensed by such "political discrimination," maintains that it is her sovereign, fundamental right to choose the location of her capital and the fact that so many states refuse to accord Jerusalem the status of capital has no legal bearing on the issue.
The Juridical Status of East Jerusalem:The Arab Palestinian Position
Arab Palestinians believe that first and foremost Jerusalem is an Arab city, a city in which everyone enjoyed "absolute freedom to practice the religion of his choice. From time immemorial, the believer has been able to go there to worship his God in the Temple or Sanctuary which Arab sovereignty has preserved intact for centuries." 18 Embittered by the failure of the international community to intervene, the Arabs describe the modern history of Jerusalem as that of an Arab city torn from its legitimate sovereign, unjustly endowed in 1947 with an international status, cut asunder in 1948 by Zionist aggression, and finally illegally annexed in 1967 by the Zionist entity called Israel.They ask how an international body such as the United Nations could impose on an Arab city, with a clearly defined sovereign (the Arab nation), some form of international status without first having negotiated with them a treaty allowing such action. In fact, they point out, the United Nations partition plan of 1947 that would have internationalized the city was not implemented because of the war launched by the Zionist aggressors. The result of the war was a de facto partition, not a legal partition, of the city by military force, so there could be no derogation of sovereignty over the city and the Arabs remain the legitimate sovereign.
According to the Arabs, a devious plan of deception was suddenly revealed to the world when in 1967 Israel militarily overran the whole of Jerusalem and in a fit of unabashed exhilaration, Israel's chief chaplain divulged: "A people recovers its capital; a capital recovers its people; never shall they be separated again." 19 Clearly the military and political overthrow of Jerusalem had been Israel's intention all along.
Israel then proceeded to cement its ill-gained territory in a declaration proclaiming Jerusalem the undivided, eternal capital of the Jewish state. This blatant act was carried out in the full knowledge that the Arab Palestinian peoples would never, could never, acquiesce in such an unjust usurpation of a great Arab city sacred to all Islam. In flagrant disregard for international public opinion and unmoved by the fact that few nations have recognized Israel's unilateral action by moving their embassies to Jerusalem, the Jewish state surged ahead in its judaization of the whole of the city. One Arab legal authority, Henry Cattan, writes: "In addition to the annexation of Jerusalem, Israel took several other measures in the city which were contrary to international law, to the Geneva Conventions of 1949 and to UN resolutions. These measures included the deportation of persons, the dynamiting and razing of Arab homes, and the confiscation and expropriation of Arab property." 20
Arab Palestinians charge that Israel has long been involved with the forced replacement of Arab Christians and Muslims in Jerusalem with Jews to change the demography of the city. As a result of these changes, especially since 1948, three-quarters of Jerusalem's population is now Jewish, but because this change has largely come about through illegal means—that is, the forcible dispossession of the Arab inhabitants—Israel cannot be allowed to use the population issue as a factor in determining legal rights. 21
As for land ownership, Cattan points out, the Jews owned about one-third of the built-up property in Jerusalem before the end of the mandate in 1948, but their ownership of land in greater Jerusalem never exceeded 2 percent. Since 1948, and especially after the annexation of Jerusalem in 1967, the Israelis have systematically expropriated Arab properties in an effort to make it appear to the world that Jerusalem is a Jewish city. 22
These population and land issues are well documented. The Security Council focused on these very issues, warning Israel to desist from its attempts to change the status of Jerusalem. On 25 September 1971 the Council resolved "in the clearest possible terms that all legislative and administrative actions taken by Israel to change the status of Jerusalem, including the expropriation of land and properties, the transfer of populations and legislation aimed at the incorporation of the occupied section are totally invalid and cannot change that status." 23
The United Nations and World Public Opinion Regarding Jerusalem
After the 1948-49 war that resulted in a divided city, the United Nations, frustrated by Israel's and Jordan's unwillingness to accede to their demands, remained virtually silent over the matter of Jerusalem until the 1967 Six-Day War. Then several resolutions were passed, all critical of Israel's actions with regard to the city.
The following resolution is representative of many resolutions passed by the General Assembly and the Security Council regarding Jerusalem and Israel's attempts to change the status of the city:
The General Assembly,
Deeply concerned at the situation prevailing in Jerusalem as a result of the measures taken by Israel to change the status of the City,
1. Considers that these measures are invalid;
2. Calls upon Israel to rescind all measures already taken and to desist forthwith from taking any action which would alter the status of Jerusalem;
Requests the Secretary-General to report to the General Assembly and the Security Council on the situation and on the implementation of the present resolution not later than one week from its adoption. 24
Israel felt justified in its position on Jerusalem and ignored the resolution, which prompted another one ten days later. This resolution noted with "deepest regret" Israel's refusal to comply with the earlier resolution and "deplored" Israel's failure to implement its provisions. 25 The Security Council, alarmed by Israel's disregard for international public opinion and, more specifically, for the General Assembly resolutions, passed its own resolution. The pertinent parts of that resolution read:
The Security Council,
Noting that since the adoption of the above mentioned resolutions, Israel has taken further measures and actions in contravention of these resolutions . . .
Reaffirming that the acquisition of territory by military conquest is inadmissible,
1. Deplores the failure of Israel to comply with the General Assembly resolutions mentioned above;
2. Considers that all legislative and administrative measures and actions taken by Israel, including expropriation of land and properties thereon, which tend to change the legal status of Jerusalem are invalid and cannot change that status;
3. Urgently calls upon Israel to rescind all such measures already taken and to desist forthwith from taking any further action which tends to change the status of Jerusalem. 26
Frustrated, if not outraged, by Israel's actions in Jerusalem and determined that such actions would have no bearing on the ultimate status of the city, both the General Assembly and the Security Council passed resolutions representative of international public opinion. Such resolutions are deemed by many legal scholars to bear the weight of international law, and if so, Israel ignores them at her jeopardy. Each year stronger, more forcefully worded resolutions have been passed but seemingly to no avail.
On 21 August 1969, the al-Aqsa mosque in Jerusalem was extensively damaged by arson. The perpetrator, a Christian fundamentalist who claimed to have been called of God to clear the area for a future temple, was quickly tried and imprisoned. The Security Council passed yet another resolution noting that "the execrable act of desecration and profanation of the Holy al-Aqsa Mosque emphasizes the immediate necessity of Israel's desisting from action in violation of [UN] resolutions." It further called upon Israel to "scrupulously observe the provisions of the Geneva Conventions and international law governing military occupation and to refrain from causing any hindrance to the discharge of the established functions of the Supreme Moslem Council of Jerusalem." 27
It is noteworthy that as of the date of this resolution, 15 September 1969, the Security Council referred to Israel's presence in Jerusalem as one of a military occupant. The reference to the Geneva Conventions and international law governing military occupation also represented a collective opinion that Israel could not act unilaterally to change the status of Jerusalem. In other words, Israel's proclamation that Jerusalem was the united, eternal capital of Israel was regarded by the Muslim world and most nations in the United Nations as null and void.
Israel's presence in the whole of Jerusalem has been accorded de facto recognition by most states pending an ultimate resolution. Some states have elected to give it de jure recognition and, accordingly, have moved their embassies from Tel Aviv to Jerusalem. Still other states, especially those hostile to Israel, refuse to recognize any right at all.
Unanswered Questions
There remain unanswered questions relating to international law and Jerusalem that are difficult to deal with. In some cases the passing of time, political compromise, or mediation or arbitration provide answers; some matters simply go unresolved. What legal rights accrue from "memory"? What weight should be given to conquest? Does long and continuous possession confer title? What weight should be given to ethnic majorities? What is the effect of a United Nations resolution in international law? These and other matters have an important bearing on the future of Jerusalem. Although they have been addressed by legal scholars, there is little international consensus on the findings, particularly among the belligerents involved in the case.
Perhaps more questions have been raised about international law and Jerusalem than have been answered. It is not likely that the issue of Jerusalem will be solved in the courts, but neither will a solution be found in politics. Perhaps a combination of the two will take us a few modest steps forward in the seemingly eternal search for peace.
Notes
^1. Mandate for Palestine, Article 13: "All responsibility in connection with the Holy Places and religious buildings or sites in Palestine, including that of preserving existing rights and securing free access to the Holy Places, religious buildings and sites and the free exercise of worship, while ensuring the requirements for public order and decorum, is assumed by the Mandatory, who shall be responsible solely to the League of Nations in all matters connected herewith . . . "
Article 14: "A special Commission shall be appointed by the Mandatory to study, define and determine the rights and claims in connexion with the Holy Places and the rights and claims relating to the different religious communities in Palestine. . . ." Cust, Status Quo in the Holy Places, 65.
^2. Ahimeir, Jerusalem, Aspects of Law, iv-v.
^3. See Cust, Status Quo in the Holy Places, 65.
^4. "Palestine (Holy Places) Order in Council at the Court of Buckingham Palace. The 25th day of July, 1924. . . .
"(1) This Order may be cited as 'The Palestine (Holy Places) Order in Council, 1924.'
"(2) Notwithstanding anything to the contrary in the Palestine Order in Council, 1922, or in any Ordinance or law in Palestine, no cause or matter in connection with the Holy Places or religious buildings or sites in Palestine or the rights or claims relating to the different religious communities in Palestine shall be heard or determined by any Court in Palestine." Emphasis added. Cust, Status Quo in the Holy Places, 65.
^5. "Protection of the Holy Places Law, 5727-1967"
"1. The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.
"2. (a) Whosoever desecrates or otherwise violates a Holy Place shall be liable to imprisonment for a term of seven years.
"(b) Whosoever does anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places shall be liable to imprisonment for a term of five years.
"3. This Law shall add to, and not derogate from, any other law." Ahimeir, Jerusalem, Aspects of Law, 50-51.
^6. The State of Israel v. Hanan (1977) P.M. (1) 392.
^7. The State of Israel v. Freedman (unpublished). See Ahimeir, Jerusalem, Aspects of Law, vii.
^8. HaHugim Ha Leumi'im v. Minister of Police (1970) 24 P.D. (2) 141.
^9. U.N. General Assembly Official Record 2253, 4 July 1967.
^10. Kollek, Washington Institute Policy Papers, 24.
^11. See Islamic Council of Europe, Jerusalem, 210-57.
^12. Divrei Ha Knesset (Parliamentary Records), vol. 49, col. 2420; Ahimeir, Jerusalem, Aspects of Law, xxiv.
^13. Area of Jurisdiction and Powers ordinance, 5708-1948, Section 1; emphasis added. See Ahimeir, Jerusalem, Aspects of Law, 51.
^14. Meeting 26 of the Provisional State Council, vol. A, 19 (Hebrew), as cited in Yehuda Zvi Blum, "The Juridical Status of East Jerusalem," xxv. See Ahimeir, Jerusalem, Aspects of Law.
^15. Ahimeir, Jerusalem, Aspects of Law.
^16. Ahimeir, Jerusalem, Aspects of Law, 153.
^17. "Basic Law: Jerusalem the Capital of Israel, Adopted by the Knesset on July 30, 1980:
"1. Jerusalem, complete and united, is the capital of Israel.
"2. Jerusalem is the seat of the President of the State, the Knesset, the Government, and the Supreme Court.
"3. The holy places shall be protected from desecration and any other violation, and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.
"4. (a) The Government will be diligent in the development and the prosperity of Jerusalem and the well-being of its inhabitants by allocating special resources, including a special annual grant to the Jerusalem municipality (the capital grant), with the approval of the Knesset Finance Committee.
"(b) Jerusalem shall be granted special priorities in the activities of state institutions, for the financial, economic and other aspects of development of Jerusalem.
"(c) The Government shall set up a special body or bodies to implement this paragraph."
^20. Cattan, Palestine in International Law, 139.
^21. Cattan, Palestine in International Law, 141.
^22. Cattan, Palestine in International Law, 141.
^23. Security Council resolution 298 of 25 September 1971.
^24. General Assembly Resolution 2253 (ES-V), 4 July 1967.
^25. UN Resolution 2254 (ES-V), 14 July 1967.