The Status of Jerusalem in International and Israeli Law

Executive Summary

Most member states of the United Nations still refuse to recognize Jerusalem as the united capital of Israel, even though more than 50 years have passed since the city’s unification in 1967.

The United Nations and its member states do not recognize the legality of Israeli sovereignty over Jerusalem for political and religious reasons. They drape their opposition in claims of Israel’s disregard for international law. They claim that Israel’s capture of Jerusalem during a war, when it was taken from Jordan by force, is a violation of the international law forbidding annexation of foreign territory. For that reason they insist that Israel’s rule over Jerusalem is illegal.

This monograph, however, shows that Israel has valid legal status in Jerusalem. Israel gained control of both parts of the city after Jordan and other Arab states declared war upon it in May 1948 and in June 1967 respectively. In doing so, Israel exercised its right to self-defense, which international law recognizes as a legitimate reason for using military force. Moreover, apart from Pakistan, not a single country in the world (including any of the Arab states) recognized the legality of Jordan’s sovereignty over east Jerusalem.

In fact, this rationale led to the recent dramatic developments in the attitude of other countries regarding Jerusalem’s status. In April 2017, Russia recognized west Jerusalem as the capital of Israel and east Jerusalem as the capital of a future Palestinian state. In December 2017, the United States recognized Jerusalem as Israel’s capital. In February 2018, the United States announced that its embassy would be transferred from Tel Aviv to Jerusalem in May 2018. Subsequently, Czech Republic and Guatemala anounced their recognition of Jerusalem as Israel’s captial. Other countries are considering taking similar steps in the future.

Chapter One: The Importance of Jerusalem to Judaism, Christianity, and Islam¹

Due to the great sanctity that Judaism, Christianity, and Islam attribute to Jerusalem, this city has been at the center of the Arab-Israeli conflict for the past 100 years. Jerusalem is sacred to Judaism by virtue of the Temple Mount, which was the site of the three Jewish Temples: the First Temple, built by King Solomon, was dedicated in 960 BCE, and destroyed by the Babylonians in 586 BCE. The Second Temple, built by Jewish exiles returning to Jerusalem from Babylonia, was dedicated in 516 BCE. In the year 20 BCE, King Herod persuaded the Jews to allow him to demolish the Second Temple, which was small and modest, in order to replace it with a large and impressive structure. The Jews agreed; King Herod destroyed the Second Temple, and within one and a half years constructed in its place the largest and most beautiful temple in the world – which was dedicated in 19 BCE.² This was the Third Temple, destroyed by the Romans during the great Jewish revolt in 70 CE.

For Jews, this is the holiest place in the world, since the Divine Presence (Shechinah) rests there forever. According to Jewish tradition, the great stone, now in the Dome of the Rock, was under the “Holy of Holies” in the Jewish Temple. According to the Midrash (Rabbinic literature), this stone was the starting point of Creation. Since God founded the world on this stone, it became known in the Midrash as the “Foundation Stone.” The stone is also considered to be the center of the world. According to Jewish tradition, the Temple Mount is also Mount Moriah, the site of Abraham’s binding of Isaac on the rock.

Jerusalem was the capital of the Kingdom of Israel (during the reigns of King David and King Solomon in 1004 BCE–928 BCE), the capital of the Kingdom of Judah (928-586 BCE), and the capital of the Hasmonean Kingdom (167-63 BCE). Jerusalem was the capital of the Jewish people 1,000 years before it became sacred to Christianity and about 1,700 years before it became sacred to Islam. According to the Bible and the Jewish faith, Jerusalem is the city of choice, where the God of Israel chose to dwell forever on the Temple Mount. Jerusalem is mentioned 656 times in the Bible (and not even once in the Koran!). The Torah requires every Jew to make a pilgrimage to Jerusalem three times a year (on the festivals of Passover, Shavuot, and Sukkot). There is no such commandment in Christianity and Islam. Due to this background, Jerusalem has always been the most important city for the Jewish people, nationally, religiously, and historically.

It was against this background that after being exiled from the Land of Israel by the Babylonians (586 BCE), Jews throughout the world vowed to remember Jerusalem forever until they returned to its holy precincts: “If I forget thee, O Jerusalem, let my right hand forget her cunning…” (Psalms, 137: 5-6). Accordingly, Jews throughout the world yearned for 2,000 years to return to it: “Next year in rebuilt Jerusalem” (in the prayers of the Day of Atonement and at the end of the Passover Seder). In light of its holiness, Jews face the Temple Mount when praying in synagogues everywhere, including in Jerusalem: “Return in mercy to Jerusalem Thine city and dwell there as Thy have promised; speedily establish therein the throne of David Thy servant, and rebuild it, soon in our days, as an everlasting edifice,” (the Amidah prayer, recited three times each day).

For Muslims too, Jerusalem is holy because of the Temple Mount, which they call the “Haram al-Sharif” – the “Noble Sanctuary.” For Muslims, the holiness of the Temple Mount originates from their belief that the Prophet Muhammad rose to heaven from the rock on the Temple Mount (the “Holy of Holies” in the Jewish Temple), met with Allah, and received the commandment to perform five prayers a day, and thereafter returned to Mecca. Muslims also believe that this is the center of the world, the starting point of Creation, and the place of binding. However, according to Muslim tradition, it was not Isaac but Ishmael who was to be sacrificed by Abraham/Ibrahim.

To commemorate the Prophet Muhammad’s ascent to heaven from the rock, as mentioned, they built the Dome of the Rock above this rock and inaugurated it in 691 CE. This structure was not built as a mosque and was never designed for public prayer. Indeed, the building only became a women’s mosque in May 1952, and since then, women have prayed there every Friday.

The Muslims have built five mosques on the Temple Mount: the Dome of the Rock (691 CE), which has been used for the past 30 years as a women’s mosque, the al-Aqsa Mosque (705 CE), the Al-Buraq Mosque (early twentieth century), the al-Aqsa al-Qadim Mosque (August 1989), and the Marwani Mosque (“Solomon’s Stables”) (December 1996). Due to this background, the Temple Mount/Haram al-Sharif is also sacred to Muslims, and for them, this is the third holiest site in the world, after the Holy Kaaba Mosque in Mecca and the Tomb of the Prophet Muhammad in Medina, Saudi Arabia. Therefore, everywhere, even in Jerusalem, Muslims pray with their faces turned toward Mecca.

For Palestinians, the Haram al-Sharif is also a national symbol. Its presence in east Jerusalem is the origin of their demand for the division of the city and the establishment of east Jerusalem as the capital of any future Palestinian state. This is the main reason for the refusal of the Palestinians, the Arab states, and other countries that support them to recognize the legality of the unification of Jerusalem by Israel and the legality of its sovereignty in east Jerusalem. They view this part of the city as “occupied territory,” which in the future should be placed under their sovereignty as their capital city.

Jerusalem and the Temple Mount are also holy to Christianity, primarily because of events in the life of Jesus, which took place in the city. Jesus taught his disciples on the Mount of Olives, and there he prophesied the destruction of Jerusalem. On the Temple Mount, he was apprehended and handed over to the Romans for heresy and attempted rebellion. He was tried and convicted at the Antonia Fortress, near the Temple Mount, and from there he was led along the “Via Dolorosa” to the place of his crucifixion and burial, where the Church of the Holy Sepulcher, the holiest place in the Christian world, was subsequently established. There, he was resurrected on the day following his burial, lived for two weeks, and ascended to heaven from the heights of the Mount of Olives. On Mount Zion, one may find the Cenacle (dining room) – the place of Jesus’ Last Supper (Passover Seder) – from which the Twelve Apostles set out to spread the message of Christianity to the world.

Despite this, the Christian countries, headed by the Vatican, have no political interest in Jerusalem and the Temple Mount and would have been satisfied with special status being accorded to the Holy Places, safeguarded by international guarantees. However, due to the economic and political ties of various countries with the Arab states, and their concern for the fate of the Christian communities in the Palestinian Authority and the Arab states, they too do not recognize the legality of Israel’s rule in east Jerusalem and the unification of the two parts of the city.

With the conquest or liberation of east Jerusalem by Israel in the Six-Day War in June 1967, the Christian and Muslim worlds were shaken both theologically and politically by the imposition of Jewish-Israeli rule over the most sacred places of Christianity and Islam in Jerusalem, particularly the Temple Mount/Haram al-Sharif (the third holiest site in the Muslim world), the Church of the Holy Sepulcher (the holiest site in the Christian world), and more. Consequently, the struggle for the political future of Jerusalem was renewed.

To strengthen Jerusalem from a security, economic, and demographic standpoint, Israel expanded the area of west Jerusalem (38 square kilometers) by incorporating Jordanian Jerusalem (6 square kilometers) and the lands of 28 villages and towns (64.5 square kilometers) in the West Bank of the Jordan River (Judea and Samaria). It also built 13 new Jewish neighborhoods there, applied its jurisdiction, administration, and laws to all of these territories, and called them “east Jerusalem.” The entire extended city was recognized in Basic Law: Jerusalem, Capital of Israel, 5740-1980 as the complete capital of Israel. In November 2000, this law was amended by the insertion of Section 5, which states, for the first time, that the territory of Jerusalem also includes all the areas that were incorporated into its jurisdiction at the end of June 1967. Section 6 was also inserted, stating that no authority within the jurisdiction of Jerusalem could be transferred “to a foreign body, whether political or governmental.” Likewise, Basic Law: Referendum, 5774-2014, stipulates that Israel’s sovereignty over part of its territory should not be waived unless the government has so decided and its decision is ratified by an absolute majority of members of the Knesset as well as in a referendum. It is clear that this provision is intended to make it difficult to partition Jerusalem between Israel and the Palestinians or renounce the sovereignty of Israel in the Golan Heights, in whole or in part.

Jerusalem is the largest city in Israel in terms of area (about 126 square kilometers) and population. Approximately 882,700 people live in Jerusalem today. In east Jerusalem live 327,700 Arabs and 214,600 Jews. The population in the Old City stands at 35,000 of whom 31,340 are Arabs and 3,660 are Jews.³

This is the background of the political, national, historical, religious, and legal struggle between Jews and Muslims and between Israel and the Palestinians, the Arab states, and their supporters regarding the political future of east Jerusalem, in general, and the Temple Mount in particular. Against this backdrop, only some of the countries of the world recognize the legality of Israel’s rule in west Jerusalem, and even this only on a de facto basis. This is apart from Russia, which on April 6, 2017, recognized western Jerusalem as the capital of Israel and eastern Jerusalem as the capital of the future state of Palestine, the United States, which only on December 6, 2017, recognized Jerusalem as the capital of Israel, and the Czech Republic, which on the same day recognized only western Jerusalem as the capital of Israel (as detailed in Chapter 3 below).

However, all other countries reject the legality of Israel’s rule in east Jerusalem, both de facto and de jure, and do not recognize united Jerusalem as the capital of Israel.

For this reason, no country in the world, including those with diplomatic relations with Israel, maintains an embassy in Jerusalem. To support their political position, the United Nations and these countries have developed a legal thesis whereby Jerusalem is “occupied territory,” illegally annexed by Israel from Jordan, in the course of a war with Jordan, contrary to the rules of international law. Therefore, the Palestinians, the Arab states, and the rest of the Muslim countries demand the transfer of east Jerusalem to a sovereign state of Palestine as its capital, should such a state be established in the West Bank after it is handed over by Israel to the Palestinians. As noted, other countries of the world have never recognized the legality of Israel’s rule in “east Jerusalem,” and maintain that its political status be decided only through negotiations between Israel and the Palestinians.

The following article is intended to provide an appropriate legal response to the worldwide repudiation of the legality of the rule of Israel in the whole of Jerusalem and the unification of the city, and completely refute it.

Chapter Two: The Legal Status of West Jerusalem

Section 1: Israel’s gaining control of west Jerusalem and its transformation into the capital of Israel

On November 29, 1947, the UN General Assembly adopted a resolution (the “Partition Plan”) on the future of the rule of Palestine), recommending its partition into two states – Jewish and Arab – with the exception of Jerusalem. In view of the holiness of Jerusalem to the three monotheistic religions, the UN General Assembly recommended that the city (including Bethlehem) be a “separate body” (corpus separatum) with an international administration under the auspices of the United Nations.⁴ The Arabs in the area and in the Arab countries expressed vehement opposition to the General Assembly resolution and on the very day following the adoption of the Partition Plan launched a war to thwart it. Initially, irregular Arab forces and gangs attacked the Jewish towns and villages throughout Eretz Yisrael, but after the declaration of the establishment of the State of Israel on May 14, 1948 (the “Declaration of Independence”), five Arab states invaded Israel with the aim of destroying the infant Jewish state. This was the “War of Liberation” or “War of Independence” of the State of Israel.

On July 7, 1948, Jordan and Israel signed a special agreement under the auspices of the United Nations regarding Mount Scopus. During the fighting, this area had remained a Jewish enclave within the territories occupied by the Jordanian army. The agreement stipulated that the Jewish enclave and the adjacent area of the Augusta Victoria Hospital, which was under the control of the Jordanian army, become a neutral territory under UN protection. The agreement stated that Israeli civilian police would be allowed to guard the humanitarian institutions on the mount (Hadassah Hospital and the Hebrew University), and the guards would be replaced from time to time by a convoy escorted by the United Nations, which would be allowed to pass through the area under Jordanian control.⁵ On November 30, 1948, Col. Moshe Dayan, the Etzioni Brigade commander (the brigade fighting in Jerusalem), and Gen. Abdullah al-Tal, the commander of the Jordanian Legion in Jerusalem, signed a cease-fire agreement marking the Israeli positions with a green wax pencil (hence the name “Green Line”) and the line of the Jordanian positions in a red wax pencil, with a “no man’s land” in between.⁶

On August 22, 1948, al-Tal and Dayan met again to confer on Jerusalem’s no-man’s land (see photograph).

At the end of the war between Israel and Jordan, an armistice agreement was signed between the two countries on April 3, 1949, according to which Jerusalem was divided into two: the western part to be held by Israel and the eastern part to be held by Jordan, adopting the municipal border as determined in the map attached to the “honest truce agreement” referred to above.

The entire Old City, the neighborhoods to its north, and the Mount of Olives were in Jordanian territory. The western part of the city, as well as an enclave on Mount Scopus in the northeast of the city (according to the above agreement), were in the Israeli domain. A UN-controlled demilitarized zone was created in the High Commissioner’s palace area (Armon Hanatziv), and the palace itself became the headquarters for the UN observers. A crossing point between the two parts of the city was established at the Mandelbaum Gate, operated by customs officials and used mainly for the passage of diplomats and UN personnel, as well as the passage of Christian pilgrims on Christmas Day. Every fortnight a convoy of doctors, nurses, university workers, and police guards left for the Israeli enclave on Mount Scopus.

Jerusalem is not mentioned in the Declaration of Independence of May 14, 1948, almost certainly because the Israeli government did not want to officially contradict the Partition resolution (which had designated Jerusalem as an international city) and because of the ambiguity surrounding the borders of the state, which had been declared to be temporary in the Armistice Agreement signed at the end of the War of Independence between Israel and the Arab neighbors that had invaded it during the war.⁷

On August 2, 1949, a proclamation was issued by the IDF in Jerusalem regarding the application of Israeli law to the areas of Jerusalem held by the IDF on the aforementioned date,⁸ i.e., the area of west Jerusalem and other areas as follows:

The area encompassing most of the city of Jerusalem, part of its western suburbs and outskirts, and the roads connecting Jerusalem with the coastal plain, all within the boundaries of the red line marked on the map of Eretz Yisrael signed by me and bearing the date of 26 Tamuz 5708 (August 2, 1948) …

On September 16, 1948, the Provisional Council of State enacted the Areas of Jurisdiction and Powers Ordinance – 5708 – 1948,⁹ stating in Section 1:

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 State of Israel and any part of Palestine which the Minister of Defense has defined by proclamation as being held by the Defence Army of Israel.

Section 3 of the Ordinance gave retroactive effect to the IDF proclamation regarding the application of Israeli law to west Jerusalem.

Israel took a series of steps aimed at demonstrating its rule in west Jerusalem and turning it into the capital of Israel:

• On September 14, 1948, the Supreme Court was transferred to Jerusalem.
• On December 20, 1948, the government decided to transfer its institutions to Jerusalem.
• On December 31, 1948, the Jerusalem City Council was established.
• On January 25, 1949, the residents of Jerusalem participated in the elections to the Constituent Assembly of Israel.¹⁰
• On February 2, 1949, the Military Government Council was dissolved, and the new government, following the Provisional Government, declared west Jerusalem an integral part of the State of Israel.¹¹

Following a debate of the UN General Assembly on the issue of Jerusalem and the Holy Places, on December 5, 1949, Israeli Prime Minister David Ben-Gurion in a special statement to the Knesset, inter alia, declared:

Jewish Jerusalem is an organic and inseparable part of the State of Israel, just as it is an integral part of Jewish history and belief. Jerusalem is the heart of the State of Israel… We cannot conceive that the United Nations will try to tear Jerusalem from Israel or impair the sovereignty of Israel in its Eternal Capital… Had we not been able to withstand the aggressors who rebelled against the U.N., Jewish Jerusalem would have been wiped off the face of the earth, the Jewish population would have been eradicated, and the State of Israel would not have arisen. Thus we are no longer morally bound by the U.N. resolution of November 29, since the U.N. was unable to implement it. In our opinion, the decision of 29 November regarding Jerusalem is null and void.¹²

At the end of the debate, the Speaker of the Knesset stated that “the entire Knesset is united in a declaration that Jerusalem is an inseparable part of the State of Israel, and no foreign rule may be imposed on it in any way.”¹³ In response to another resolution of the UN General Assembly on December 9, 1949, regarding the internationalization of Jerusalem [No. 303 (iv)], a debate was held in the Knesset on December 13, 1949, on “the transfer of the Knesset and the Government to Jerusalem.” In this debate, the Prime Minister declared that “for the State of Israel there has and always will be one capital only – Jerusalem the Eternal. Thus it was 3,000 years ago – and thus it will be, we believe, until the end of time.”¹⁴ At the end of the discussion, the Knesset decided to move its seat from its temporary residence in Tel Aviv to Jerusalem,¹⁵ and as of December 26, 1949, it has only convened there.

On January 23, 1950, the Knesset issued a declaration stating that “with the establishment of the State of Israel, Jerusalem has returned to be its capital.”¹⁶

As an expression of the importance of Jerusalem as the capital of Israel, a series of Basic Laws established that the seat of government, the Knesset, the President, the Supreme Court, and the Israel Bar Association would be located in Jerusalem.¹⁷

Section 2: The status of west Jerusalem in the eyes of the United Nations, the world, and international law

There are four main opinions regarding the status of west Jerusalem in terms of international law.¹⁸ According to the first opinion, held by many Israeli and foreign jurists,¹⁹following the conclusion of the British Mandate in Palestine, a vacuum in sovereignty was created in the area, including Jerusalem – which could only be filled through a legal process. The war waged by the Arabs of Holy Land and the Arab countries against the Jewish state with the aim of thwarting the UN Partition Plan constituted a flagrant violation of the Partition Plan and the rules of international law prohibiting the use of force (Article 2(4) of the UN Charter).

Nonetheless, the UN Charter recognizes two exceptions to the prohibition on the use of force: the use of force under certain circumstances, in accordance with a Security Council resolution (Article 106 of the Charter), and the use of force to realize the natural right to self-defense (Article 51 of the Charter). Therefore, seizure of western Jerusalem constituted the justified exercise by the State of Israel of its natural right to self-defense, and duly filled the vacuum in west Jerusalem with Israeli sovereignty.²⁰

According to the second view, sovereignty over Jerusalem is pending, and it has yet to be determined who is sovereign in the western part of the city. This issue will be determined within the framework of the permanent settlement between Israel and the Arab states.²¹

According to the third view, the Palestinian people have been the legitimate sovereign in west Jerusalem since the period of the British Mandate.²²

According to the fourth view, the status of Jerusalem is as determined by the United Nations Partition Resolution (November 29, 1947), i.e., a “corpus separatum” under international rule, to be administered by the United Nations.²³

Israel, like Jordan, was accepted as a member of the United Nations without committing itself to complying with the UN resolution on the internationalization of Jerusalem.²⁴However, to this day, the United Nations has not recognized even west Jerusalem as the capital of Israel, even though it has long abandoned the plan for the internationalization of the city.²⁵

At present, the entire world, apart from Russia, the United States, and the Czech Republic (details in Chapter 3 below) continue to refuse to officially recognize west Jerusalem as the capital of Israel. Even those countries that have diplomatic relations with Israel only recognize Israeli rule in west Jerusalem on a de facto basis. In practical terms, this position was expressed in the diplomatic boycott imposed in the distant past on west Jerusalem, situating the diplomatic missions of all the countries possessing diplomatic relations with Israel, including the United States, outside Jerusalem, usually in Tel Aviv. (However, the seat of the diplomatic missions of Bolivia and Paraguay are located in Mevasseret Zion near Jerusalem). New ambassadors of these countries were instructed to refrain from submitting their credentials to the President of the State of Israel in Jerusalem, as is customary. Foreign consuls stationed in the city refused to receive an exequator from the Israeli Foreign Ministry in Jerusalem to carry out their duties in the city, as is customary. Other measures included the avoidance of contact with government officials in Jerusalem, refusal to sign international agreements in Jerusalem, absence from official ceremonies in Jerusalem, and more.

Over the years, the diplomatic boycott of Israel weakened, and the number of diplomatic missions based in west Jerusalem reached 18 out of the 38 foreign diplomatic missions in Israel in November 1975. According to international practice, diplomatic missions are usually located in the capital of the host country.²⁶ Thus, it was possible to infer from the location of certain diplomatic missions in Jerusalem that the countries establishing these missions recognized west Jerusalem as the capital of Israel. Nonetheless, all these missions left Jerusalem in 1980, following the enactment of Basic Law: Jerusalem, Capital of Israel, 5740-1980, and after the passage of UN Security Council Resolution 478 in August 1980 (see below).

With time, the diplomatic boycott imposed on west Jerusalem weakened even further and ultimately was abolished. For many years, the leaders and ministers of most countries that maintain diplomatic relations with Israel have been making official visits to west Jerusalem and have met with the President, Prime Minister, and government ministers in Jerusalem. Their ambassadors submit their credentials to the President of Israel at the President’s Residence in Jerusalem and their consuls receive their exequators from the Foreign Ministry in Jerusalem. Various international agreements are signed in west Jerusalem.²⁷ All these developments can be seen as signs of “semi-official” or de facto²⁸ recognition of west Jerusalem as the capital of Israel. No claim has been made to apply the laws of occupation to this part of the city, as is customary in relation to occupied territory, and particularly the Regulations concerning the Laws and Customs of War on Land (annexed to the Fourth Hague Convention) of 1907, and the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War.²⁹

In view of all this, and particularly in light of the Palestinians’ demand that the capital of a future Palestinian state be established exclusively in east Jerusalem, there is no justification, politically and legally, for almost the entire world, apart from Russia, the United States, and the Czech Republic, not to recognize western Jerusalem as the capital of Israel, particularly prior to 1967, before the dispute over the unification of the city and the legality of Israel’s rule in east Jerusalem erupted.

Chapter Three: The Legal Status of East Jerusalem

Section 1: Israel’s gaining control of east Jerusalem and Israeli legislation to protect the unification of the city

On June 5, 1967, the Six-Day War broke out. Early that morning, Israel tried to persuade Jordan not to intervene in the war. At first, it conveyed a message to Jordan via General Odd Bull, head of the UN observers in Jerusalem, and through the U.S. embassy in Amman, Jordan, assuring Jordan that Israel would not attack unless first attacked by Jordan. King Hussein, who believed Egypt’s false reports of the Egyptian army’s victories in battles with Israel, rejected Israel’s promises and that very morning announced on the radio to his people that war had commenced.

Immediately afterward, at about 11:30 am, the Jordanians opened fire with light arms, mortars, and cannon along the entire municipal border of Jerusalem. Jordanian tanks were moved into the West Bank and the hills overlooking Jerusalem, despite assurances given to the Americans by the Jordanians that the American-made armor would not cross the Jordan River. A tank battle took place in Jerusalem on the Tel el-Ful hilltop where King Hussein had begun to build a palace.

During the first day, about 20 residents of Jerusalem were killed by Jordanian fire, and many buildings were damaged, including the Knesset building and several Christian sites: the Dormition Abbey, the Church of St. Peter in Gallicantu, and the Franciscan Monastery on Mount Zion. In response, the IDF returned fire, paralyzing most of the sources of fire. At approximately 1:00 pm, the Jordanians captured Armon Hanatziv and the surrounding area. However, within 40 minutes, an armored unit of the Israel Defense Forces (IDF) captured the High Commissioner’s palace and its surroundings from the Jordanians.

On June 7, 1967 (28 Iyar, 5727), IDF forces broke into the Old City and took control of it, completing the process of Israel gaining possession of Jordanian Jerusalem. At the end of June 1967, Israel applied its law, jurisdiction, and administration to east Jerusalem and unified the two parts of the city:³⁰ On June 27, 1967, the Knesset passed the Law and Administration Ordinance (Amendment No. 11) Law, 5727-1967,³¹ which amended the Ordinance by inserting Section 11B, which states: “The law, jurisdiction, and administration of the state shall extend to any area of Eretz Yisrael designated by the government by order.” By virtue of this section, on June 28, 1967, the government issued the Law and Administration Order (No. 1), 5727-1967,³² which declared that the territory of Eretz Yisrael as described in the schedule to the Order, is “territory in which the law, jurisdiction, and administration of the State apply.” The territory described in this schedule includes the Old City and the eastern and northern neighborhoods of the city, from Atarot in the north to Gilo, near Rachel’s Tomb in the south, and in the east – to the eastern slopes of Mount Scopus.³³

On June 27, 1967, the Knesset passed another law – the Municipalities Ordinance (Amendment No. 6) Law, 5727-1967.³⁴ This law empowered the Minister of the Interior to enlarge the jurisdiction of a particular municipality, in respect of which an order was issued pursuant to the amendment of the Law and Administration Ordinance. Accordingly, by virtue of this law, on June 28, 1967, the Minister of the Interior ordered the expansion of the municipal boundaries of the Jerusalem municipality in accordance with the boundaries set out in the above Law and Administration Order.³⁵

Thus, the municipal area of Jerusalem was extended to the east, north, south, and northwest, and enlarged from 38,100 dunams (prior to unification) to 108,500 dunams. In this way, Jerusalem became the largest city in Israel in terms of area.³⁶ The areas added to Jerusalem were: Jordanian Jerusalem (6,000 dunams) and areas taken from 28 villages in Judea and Samaria (64,500 dunams), within the municipal areas of Bethlehem, Bet-Jala, El Bira, and more. The entire area added to Jerusalem, as described here, has since been called “east Jerusalem.” The added areas were intended to enable the expansion of Jerusalem and the construction of new (Jewish) neighborhoods in the east in order to prevent any attempt to re-divide the city. Unusually, no map whatsoever was appended to the laws and order, and the boundaries of the extended area were described only by imaginary lines between points of reference; moreover, neither the laws nor the order mentioned the name “Jerusalem.”³⁷

The then-foreign minister, Abba Eban, tried to convince the UN Secretary- General, in a letter sent to him on July 10, 1967,³⁸ that no annexation had taken place but that these were merely “administrative measures” designed to benefit all the residents of the city and ensure freedom of worship and freedom of access to the holy places. However, the United Nations was not convinced, and the General Assembly and Security Council reiterated that the measures taken by Israel to unify Jerusalem were illegal and called on Israel to rescind them.³⁹ UN Secretary-General U Thant sent the Swiss diplomat E. Thalmann, as his personal representative in Jerusalem, to examine how the city was being unified in practice. Thalmann visited Jerusalem in August 1967 and met, among others, with the prime minister, the foreign minister, and Muslim and Christian clerics. A report published by the UN Secretary-General,⁴⁰based on Thalmann’s reports, stated that the Israeli authorities had made it clear “beyond any doubt, that Israel was taking every step to place under its sovereignty those parts of the city which were not controlled by Israel before June 1967… The Israeli authorities stated unequivocally that the process of integration was irrevocable and not subject to negotiation.”⁴¹

On January 25, 1999, the Knesset passed the Law and Administration (Revocation of Application of the Law, Jurisdiction, and Administration) Law, 5759-1999.⁴² According to Section 2 of this law:

A government decision, whereby the law, jurisdiction, and administration no longer apply to territory, requires the approval of the Knesset, which shall be given by a majority of its members.

According to Section 3:

A government decision approved by the Knesset, as provided in Section 2, also requires approval in a referendum, to be passed by a majority of the valid votes of the participants in the referendum.

In other words, it will not be possible to relinquish territories to which Israeli law applies, such as east Jerusalem, unless a government’s decision on this matter is approved by a majority of votes, both in the Knesset and in a referendum. However, since this law provides that the section relating to the referendum will apply only when a Basic Law is adopted regulating the referendum in question, and such legislation has not yet been passed, the possibility of holding a referendum remains one on paper only, until the required law is enacted.

In order to enable the practical regulation of a referendum, as required to relinquish Israeli sovereignty in any part of its territory, on March 12, 2014, the Knesset adopted Basic Law: Referendum, 5774 – 2014.⁴³ The law applies to the entire territory of the State of Israel within the boundaries of the “Green Line” (the territory of the State of Israel according to the demarcation lines as set out in the Armistice Agreements with its Arab neighbors signed in 1949 following the War of Independence), as well as east Jerusalem and the Golan Heights.

The main section of this law is Section 1, which provides that should the government decide to sign an agreement that includes a renunciation of its sovereignty over a certain area of the territory of the State of Israel, then the agreement requires the approval of an absolute majority of Knesset members and additional approval in a referendum. According to the law, there is no need to hold a referendum to approve such a renunciation, if the concession agreement has been approved by a majority of 80 members of the Knesset. Section 5 of this law prohibits the amendment of the law save by “a Basic Law adopted by a majority of the Knesset members.” This provision, therefore, rectified the lack of entrenchment of Section 1 of Basic Law: Jerusalem, Capital of Israel, which provides that “Jerusalem, complete and united, is the capital of Israel.”

On July 30, 1980, at the initiative of MK Geula Cohen, Israel demonstrated its determination to defend the status of unified Jerusalem as the capital of Israel, by adopting Basic Law: Jerusalem, Capital of Israel, 5740-1980,⁴⁴ which declares that “Jerusalem, complete and united” is the capital of Israel.⁴⁵

The right-wing parties in Israel considered this measure insufficient, and at the initiative of MK Yehoshua Matza (Likud) and other Knesset members, for the first time expressly entrenched Israel’s sovereignty over Jerusalem and its municipal territory, including the entire area (64,500 dunams) added to it at the end of June 1967, in primary and Basic legislation. They did so on December 7, 2000, by amending Basic Law: Jerusalem, Capital of Israel, 5740-1980,⁴⁶ through the addition of three sections. The first, Section 5, enshrines in the Basic Law the extension of the municipal area of Jerusalem and the application of Israeli laws to the area added to Jerusalem at the end of June 1967.⁴⁷ This section states as follows:

The jurisdiction of Jerusalem includes, as pertaining to this Basic Law, among other things, all of the area that is described in the appendix of the proclamation expanding the borders of municipal Jerusalem beginning 20 Sivan, 5727 (June 28, 1967), as was given according to the Municipalities Ordinance.⁴⁸

The second section added, Section 6, is intended to prohibit in a Basic Law the transfer of any powers in Jerusalem to a foreign body, and states as follows:

No authority that is stipulated in the law of the State of Israel or of the Jerusalem municipality may be transferred either permanently, or for an allotted period of time, to a foreign body, whether political, governmental, or any other similar type of foreign body.

Ostensibly, this provision could be seen to contradict Israel’s commitment to Jordan in Article 9.2 of the peace treaty of October 26, 1994,⁴⁹ to give “high priority to the historic Jordanian role” in the Muslim holy sites in Jerusalem, in negotiations on a final status agreement in Jerusalem. However, a close examination of this section shows that there is no contradiction: Israel did not undertake to give Jordan any authority even in the Muslim holy sites in Jerusalem, but only “When negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines” (see below). With all this, it is an open secret that in reality, and particularly since the peace treaty with Jordan, Jordan is afforded special status on the Temple Mount, and the government of Israel seeks to coordinate all its activities at the site with Jordan. Pursuant to this, a number of decisions by the Israeli government regarding this holy site (holy to Judaism, Christianity, and Islam) have been coordinated with Jordan, such as the ban on Jewish and Arab ministers and MKs entering the Temple Mount, imposed by Prime Minister Netanyahu in October 2015.⁵⁰

The third section that was added, Section 7, states that the two sections mentioned above should not be modified “except by a Basic Law passed by a majority of members of the Knesset.” It is interesting to note that the original Basic Law: Jerusalem, Capital of Israel, did not contain entrenching provisions of any kind. In light of this, an entrenchment provision was established in the new Section 7, as described above. However, it is puzzling that the Knesset enacted an entrenching provision only in respect of Sections 5-6 of the law, and did not see fit to entrench the rest of the original provisions, especially Section 1 of the law, which states that “Jerusalem, complete and united, is the capital of Israel.”

On January 2, 2018, the Knesset reinforced the entrenching provision in Section 7 above by increasing the majority required for amending Sections 5 and 6 of the Law to a special majority of 80 MKs.⁵¹ Likewise, Section 7 itself was entrenched: Whereas under the previous language an ordinary proportionate majority of MKs was sufficient (i.e. a majority of those present at the vote), Section 7 of the Law was amended so that any further amendment now requires a majority of 61 Knesset members, that is, a special and absolute majority. However, the consequence of this is that now it is possible to change the statutory requirement for a majority of 80 MKs, as a condition for relinquishing part of Jerusalem, even by a majority of only 61 MKs.

Section 2: International rejection of the unification of Jerusalem

The unification of Jerusalem, in general, and the legality of Israeli rule in east Jerusalem, in particular, have not been recognized by any country in the world. The United Nations, the European Community, and the Egyptian parliament adopted resolutions rejecting the status of united Jerusalem as the capital of Israel.⁵²

Basic Law: Jerusalem, Capital of Israel, was also harshly criticized by the major UN institutions: On August 20, 1980, the Security Council adopted Resolution 478 almost unanimously – only the United States abstained – condemned the enactment of the law, determined that the law contravened international law and posed a serious obstacle to achieving peace, and stated that it was invalid and void.⁵³ East Jerusalem was defined in the resolution as “occupied territory,” to which the Fourth Geneva Convention of August 1949 relative to the protection of civilians during wartime applied. In this resolution, the Security Council called on all countries with diplomatic embassies in Jerusalem to remove them. The 18 countries, which held such embassies, accepted the decision and moved them out of the city. Following diplomatic pressure on Costa Rica, the latter returned its embassy to Jerusalem in 1982. In 1984, the embassy of El Salvador was also returned to Jerusalem. However, in the summer of 2008, following the Second Lebanon War and in order to improve their relations with the Arab countries, these two countries again withdrew their embassies from Jerusalem. Jerusalem thus became the only capital in the world without a single embassy.

On January 15, 1981, the UN General Assembly also adopted a resolution rejecting the declaration of complete Jerusalem as the capital of Israel and declaring Basic Law: Jerusalem, void.⁵⁴ Since then, on an annual basis, the Assembly has condemned Israel for the measures it has taken to change the status, character, cultural, historical, and religious heritage of Jerusalem, and in particular the Basic Law of Jerusalem and the declaration contained therein, regarding the status of complete Jerusalem as the capital of Israel, and has determined that they are null and void.⁵⁵

The International Court of Justice (ICJ), which is the principal UN judicial institution, issued an advisory opinion to the United Nations General Assembly in 2004,⁵⁶ in which it adopted the UN Security Council resolutions to the effect that east Jerusalem is not under Israeli sovereignty, but rather is “occupied territory” just like the rest of the West Bank (Judea and Samaria) and the Gaza Strip.⁵⁷

Noteworthy in this context is the recent Resolution No. 2334, adopted by the UN Security Council on December 23, 2016. This resolution “excels” in its harsh condemnation of Israel’s “settlement” policy in the territories occupied by Israel in 1967 (the “Six-Day War”) in the West Bank and east Jerusalem, and terms all these areas (including east Jerusalem) “occupied Palestinian territory.” In the resolution, the Security Council condemns “all measures aimed at altering the demographic composition, character, and status of the Palestinian Territory occupied since 1967, including east Jerusalem …” and states that “the settlements established in these territories have no legal validity” and that they constitute a flagrant violation under international law and a major obstacle to achieving a lasting peace based on the twostate solution. (Article 1)

The Council also “underlines that it will not recognize any changes to the 4 June 1967 lines, including in Jerusalem, other than those agreed by the parties through negotiations.” (Article 3 of the resolution) It should be noted that this article appeared here, for the first time, and was not included in previous UN resolutions. In other words, this was the first time that the United Nations had decided that the political future of the territories taken by Israel in June 1967, and the borders of Israel, would be determined solely by negotiation between the parties, the precise identities of which – apart from Israel – were not specified. The resolution was adopted by virtue of Chapter VI of the UN Charter and consequently was not obligatory and did not include the imposition of sanctions on Israel for its violation. The resolution was adopted by a majority of 14 of the 15 Council members and aroused great anger in Israel, since for the first time in many years the United States (under President Obama) had failed to veto such a resolution but merely abstained from voting, thereby enabling the resolution to pass.

Moreover, as a result of U.S. recognition of Jerusalem as the capital of Israel set out in President Trump’s declaration of December 6, 2017, Egypt submitted a draft resolution to the UN Security Council whereby the Security Council:

Stressing that Jerusalem is an issue to be resolved through negotiations, expressing deep regret at recent decisions concerning the status of Jerusalem, affirms that any decisions and actions which purport to have altered the character, status, or demographic composition of the Holy City of Jerusalem have no legal effect, are null and void … and in this regard, calls upon all States to refrain from the establishment of diplomatic missions in the Holy City of Jerusalem….⁵⁸

Even though the name of the United States and its recognition of Jerusalem as the capital of Israel were not mentioned in the draft resolution, it was clear to all that the purpose of the resolution was to express the Security Council’s opposition to the U.S. recognition of Jerusalem as the capital of Israel. Fourteen of the 15 members of the Security Council voted in favor of the Egyptian draft resolution. However, the resolution was vetoed by the United States.⁵⁹

The Palestinians and their supporters did not give up, and Turkey and Yemen rushed to submit an identical resolution to the UN General Assembly, in which no state has a right of veto. The debate on this resolution was held at the UN General Assembly on December 22, 2017. This time, the resolution was adopted by a large majority: Of the 193 UN member states, 128 voted in favor of the resolution; 9 states opposed (Israel, the United States, Guatemala, Honduras, Togo, and four Pacific island states: the Marshall Islands, Micronesia, Nauru, and Palau) and 35 states abstained.⁶⁰

In consequence of these resolutions, today too, though Israel maintains diplomatic relations with 159 countries (out of some 200 recognized countries), none (apart from Russia, the United States, and the Czech Republic) currently officially recognize Jerusalem as the capital of Israel, none maintain an embassy in Jerusalem, and they are represented by 88 embassies, all of which are located outside of Jerusalem.

There are 13 consulates operating in Israel on behalf of 11 countries: four are located outside Jerusalem (the Russian consulate in Haifa, the French consulate in Tel Aviv, the French consulate in Haifa, and the Egyptian consulate in Eilat), and nine consulates are located in Jerusalem (United States, Italy, Belgium, Great Britain, Greece, Spain, France, Sweden, and Turkey).⁶¹

It should be noted that France maintains three separate consulates in Israel: one in Haifa (37 HaGefen Street), one in Tel Aviv (1 Ben Yehuda Street), and one in west Jerusalem (5 Emile Botha St., near the King David Hotel).

The French consulate in Jerusalem operates a Consular Affairs Department and Political Affairs Department.⁶²

The United States maintains a consulate on 18 Agron Street in west Jerusalem. Until about two years ago, the U.S. consulate operated a consular services branch on the Nablus route in east Jerusalem. However, two years ago, the United States transferred its consular branch from east Jerusalem to 14 David Flusser Street in west Jerusalem. In addition, Spain also maintains a consulate in east Jerusalem (32 Machal St. in Sheikh Jarrah). Until two years ago, the Spanish consulate also operated a branch for consular services at 53 Ramban Street in west Jerusalem. However, two years ago, this branch was closed for renovations, which have yet to be completed.⁶³

The Vatican maintains an embassy in Israel, located at 1 Netiv Hamazalot Street in Jaffa-Tel Aviv. The Vatican has no consulate in Jerusalem. However, in east Jerusalem (on the A-Tur road leading to the Mount of Olives), one may find the seat of the Pope’s Apostolic Delegation; this is the title of the representative of the Pope in countries that do not have official diplomatic relations with the Vatican. The Pope’s Apostolic representation in Jerusalem was established on February 11, 1948, by Pope Pius XII, and was responsible for Catholic activities in Israel, Jordan, and Cyprus. Notwithstanding that diplomatic relations between Israel and the Vatican were established on December 30, 1993, and despite the opening of the Vatican’s embassy in Jaffa, as mentioned, the Apostolic Delegation continues to live and work in Jerusalem and the occupied territories in the religious sphere only, by virtue of his status as papal emissary to the local Catholic Church. Accordingly, although the Apostolic delegate should not have diplomatic status in view of his purely religious functions, he does enjoy such status in Israel, as a gesture of respect by Israel towards the Pope, as is customary in international diplomatic practice.⁶⁴

All the foreign consulates operated in Jerusalem before the unification of the city in June 1967, and some were even active in the city during the Ottoman period. Since June 1967, Israel has not permitted any state to open a new consulate in Jerusalem, but only an embassy, in view of its desire to encourage recognition of Jerusalem as the capital of Israel and pursuant to the international diplomatic practice of embassies being located in the capital of the host country.

None of the foreign consulates in Jerusalem have submitted an official request (exequator) to the Israeli Foreign Ministry to recognize them as consulates in view of their desire to refrain from performing an act (i.e., submitting an application to the Foreign Ministry) that would imply recognition by their countries of Jerusalem as capital of the State of Israel – contrary to their stated policy. Nevertheless, as the foreign consulates in Jerusalem are representatives of friendly countries with which Israel maintains diplomatic relations, Israel recognizes them de facto and grants them consular status and documentation under the Vienna Convention on Consular Relations, 1963.⁶⁵

Israel signed the Convention, although it has not ratified it, in light of its refusal to officially recognize the foreign consulates located in Jerusalem that decline to submit an official request to the Israeli Foreign Ministry to recognize them as consulates (exequator). Nevertheless, as explained, Israel recognizes them de facto, and deals with them in accordance with the provisions of the Convention in view of the fact that the Convention reflects customary international law, which, according to the case law, constitutes an integral part of Israeli law in so far as it does not explicitly contradict the law of the State of Israel.⁶⁶

In principle, a consulate (as distinct from a diplomatic mission) deals solely with non-political matters. Article 5 of the Vienna Convention defines thirteen functions of a consulate, the key elements of which are:

1. “protecting in the receiving state the interests of the sending state and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;”
2. “furthering the development of commercial, economic, cultural, and scientific relations between the sending state and the receiving state and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;”
3. issuing passports, visas, and travel documents to nationals of the sending state;
4. providing notarial services, verifying birth certificates, marriage certificates, death certificates, etc.
5. (e) representing or ensuring the representation of the nationals of the sending state in legal proceedings in this receiving state, particularly in cases of detention and arrest.
6. (f) assisting the citizens of the sending state, including the crew of vessels and aircraft registered in the sending state, in cases of distress and emergency.

The foreign consulates in Jerusalem serve the residents of Jerusalem (Jews and Arabs alike), the territories, and Gaza in all the above matters.

By virtue of their status, each consulate enjoys immunity in respect of its premises, while the consul and consular officials enjoy functional immunity (immunity confined to actions performed in the course of their consular duties as opposed to the full immunity enjoyed by diplomatic representatives), freedom of movement in Israel and the territories, diplomatic documentation, exemptions from income tax, customs and social security payments, as well as from VAT returns up to a certain amount.⁶⁷

In all political matters, Israel maintains contact only with the embassies of the countries maintaining diplomatic relations with it.

In contrast, in early June 2014, Australian Foreign Minister Alexander Downer declared in the Australian Parliament that the Australian government does not view east Jerusalem as “occupied territory.”⁶⁸

Moreover, on April 6, 2017, the Russian Foreign Ministry issued an official, historic, and surprising statement whereby Russia recognized west Jerusalem as the capital of the State of Israel and east Jerusalem as the capital of the future Palestinian state. The statement read as follows:

We reaffirm our commitment to the UN-approved principles for a Palestinian-Israeli settlement, which include the status of east Jerusalem as the capital of the future Palestinian state. At the same time, we must state that in this context we view west Jerusalem as the capital of Israel … The concrete parameters of a solution for the entire range of issues regarding the status of Palestinian territories, including Jerusalem, should be coordinated at the direct talks between the parties involved. Using its opportunities as a permanent member of the UN Security Council, a co-sponsor of the peace process, and an active member of the Middle East Quartet of international intermediaries, Russia will continue to provide assistance to the achievement of Israeli-Palestinian agreements. We will focus on ensuring free access to Jerusalem’s holy places for all believers. (The emphasis is mine. S.B.)⁶⁹

For some reason, this surprising historic declaration received no significant attention from any country, including Israel; it failed to provoke any controversy or demonstrations and was not discussed at the United Nations, despite being of no less importance than the United States’ recognition of Jerusalem as the capital of Israel on December 6, 2017 (see further Section 3 below), and perhaps even exceeding it.

As noted, on December 6, 2017, the United States recognized Jerusalem as the capital of Israel (see Section 3 below). It is reasonable to assume that in light of the position of the United States as a superpower and as the leader of the free world, other countries will follow suit and also recognize Jerusalem (or at least the western part of it) as the capital of Israel. Indeed, immediately after President Trump’s statement, Czech President Milos Zeman declared that his country supported President Trump’s declaration that the United States recognized Jerusalem as the capital of Israel and announced that “he is considering transferring our embassy to Jerusalem, and that every country has the right to decide what its capital is.”⁷⁰ Nonetheless, the Czech Foreign Ministry hastened to make it clear that the Czech Republic recognized only west Jerusalem as the capital of Israel.⁷¹

On December 25, 2017, Guatemalan President Jimmy Morales also announced his decision to restore⁷² his country’s embassy to Jerusalem and ordered his country’s foreign ministry to prepare for this without setting a specific date for the transfer of the embassy.⁷³ Although the President of Guatemala did not declare his country’s recognition of Jerusalem as the capital of Israel, such recognition is implicit in his decision, since according to accepted diplomatic practice, a foreign embassy is usually located in the capital of the host country.

Section 3: The U.S. position on the legality of the unification of Jerusalem and the status of east Jerusalem⁷⁴

During the UN General Assembly meeting held on July 14, 1967, the United States announced, through Arthur Goldberg, its ambassador to the United Nations, that it condemned the unification of Jerusalem, did not recognize it, and that the final status of the city would have to be determined by negotiations between the parties within the framework of a comprehensive solution to the Arab-Israeli conflict. In July 1969, in a speech at the Security Council, C. Yost, the U.S. ambassador to the United Nations, even called east Jerusalem “occupied territory” – like the rest of the territories occupied by Israel in the Six-Day War and reiterated that its political status would be determined solely by agreement between the parties concerned.⁷⁵

Subsequently, President Carter attached a letter to the Camp David Agreement (between Israel and Egypt dated September 17, 1978) stating that the U.S. position on Jerusalem remained as stated by its ambassadors to the UN.⁷⁶

Notwithstanding all this, ostensibly until today, only the United States has enacted legislation recognizing Jerusalem as the capital of Israel – doing so within the framework of the Jerusalem Embassy Act of 1995, which was passed by the U.S. Congress on October 24, 1995, and came into effect on November 8, 1995.⁷⁷ Section 3 of this Act states:

1. Jerusalem should remain an undivided city in which the rights of every ethnic and religious group are protected;
2. Jerusalem should be recognized as the capital of the State of Israel; and
3. The United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999.

It appears from the language of this section (the cumulative effect of the first two subsections) that the United States officially recognized unified Jerusalem as the capital of Israel. And indeed, the preamble to the resolution adopted by the two houses of the U.S. Congress on the occasion of the 30th anniversary of the unification of Jerusalem stated that United States’ policy is that “Jerusalem should remain the undivided capital of Israel.”⁷⁸According to the above-mentioned section, the U.S. embassy, located in Tel Aviv, was supposed to move to Jerusalem by May 1999.

The U.S. administration, headed by President Bill Clinton, was vehemently opposed to this legislation. However, the Act was passed with such a large majority (about 90 percent in both Houses of Congress), that it was apparent to the President of the United States that the exercise of his constitutional right to veto it would not prevent its enactment into law by the American Congress in a revote, as required following a presidential veto.⁷⁹ Accordingly, the President did not impose a veto on the Act, and it entered into force. The Act states that the U.S. State Department will be subject to severe financial sanctions in the form of significant cuts in its budget each year until 1999 (at which time half of its budget for the purchase and maintenance of buildings abroad would be frozen) if it failed to meet its obligations pursuant to the law to transfer the U.S. Embassy in Jerusalem by the aforementioned date.

However, under Section 7 of the Act, the President of the United States was granted the authority to postpone the transfer of the embassy to Jerusalem as of October 1, 1998, and to do so every six months, provided that he reported to the Congress that such deferral was necessary “to protect the national security interests of the United States” and specifying his reasons for this decision. Indeed, in a statement issued by the White House immediately after the adoption of the law in the U.S. Congress, President Clinton announced that he intended to use the authority granted by the law to postpone the transfer of the embassy to Jerusalem, even though his attitude to Israel and his position on Jerusalem had not changed. The President reiterated his position that building the U.S. embassy in Jerusalem, at that time, would cause serious damage to the peace process.⁸⁰ Since then, all U.S. presidents have repeatedly used this authority, every six months, to defer the transfer of the U.S. Embassy to Jerusalem. Likewise, on June 1, 2017, the current president, Donald Trump, signed an order deferring the transfer of the U.S. embassy to Jerusalem for six months, in complete contradiction to one of the main promises in his campaign for the U.S. presidency.

Moreover, representatives of the United States, like the representatives of other countries, continue to consistently avoid holding any official meetings in government offices or other Israeli institutions in east Jerusalem or visit east Jerusalem when accompanied by Israeli officials. This policy is inconsistent with the enactment of the “Jerusalem Embassy Act,” according to which the U.S. Congress declared (a declaration unprecedented in any other country) the United States’ recognition of Jerusalem as the undivided capital of Israel.

However, the legal significance of this declaration, as a valid expression of U.S. recognition of Israeli sovereignty in unified Jerusalem, is highly questionable. Respected U.S. jurists believe that the U.S. president (and not Congress) has sole authority under the U.S. Constitution to recognize states, including their capital cities. Accordingly, it is argued that Congress is also not authorized to order the transfer of the U.S. Embassy from Tel Aviv to Jerusalem since the location of the embassy implies recognition of Jerusalem as the capital of Israel, a power exclusively vested in the president.⁸¹ In my opinion, too, this law does not constitute U.S. recognition of Israel’s sovereignty in east Jerusalem or in an undivided Jerusalem as the capital of Israel. It merely declares the desired policy of the United States on this subject, as explicitly noted in the title of Section 3 of the Act: “Statement of the Policy of the United States.”

This is also clearly expressed in the language of the section itself, in the future tense in which it is phrased, and in the description of the desired situation, in contrast to the mere recognition of the present situation: “Jerusalem should remain a united city … and it should be recognized as the capital of the State of Israel.” In other words, the law determines only the desired policy in this regard in the opinion of Congress and does not in itself constitute recognition of a unified Jerusalem as the capital of Israel.

In spite of the official policy of the United States not to recognize Israel’s sovereignty in east Jerusalem, it did recognize that east Jerusalem was an integral part of Jerusalem and under Israeli sovereignty for the purpose of the extradition of an American citizen, Joel Davis, who had been convicted in the United States of committing serious criminal offenses and fled to Israel.

In an extradition hearing in the Jerusalem District Court, counsel for Joel Davis argued that since the extradition treaty between Israel and the United States applied only to the territory of the State of Israel, and the defendant had been arrested in east Jerusalem, which was outside the territory of the State of Israel, at least according to the aforementioned position of the United States, the extradition treaty did not apply to him.

The court rejected this claim and ruled that the United States’ insistence on the extradition request, even though it had learned that Joel Davis had been arrested in east Jerusalem, was “an explicit statement that the extradition treaty applies to a wanted person in east Jerusalem.”⁸²

In other words, in this case, the United States recognized east Jerusalem as part of the territory of the State of Israel.

A decisive legal expression of the United States’ failure to recognize Israeli sovereignty in east Jerusalem was recently given in the U.S. Supreme Court’s ruling of June 8, 2015, in the Menachem Zivotofsky case,⁸³ which occupied the U.S. courts at all levels for about 13 years.

This case concerned a Jewish child born in 2002 in Jerusalem, to a Jewish couple with American citizenship who lived in Jerusalem. Based on the Foreign Relations Authorization Act of 2002 (which defined Jerusalem as the capital of Israel), the child’s mother asked the U.S. embassy in Israel to register in his American passport that he was born in Israel. The embassy officials refused to do so, and Menachem Zivotofsky’s parents filed a lawsuit on his behalf against the U.S. Secretary of State, John Kerry, to register in their son’s passport that he had been born in Israel since Jerusalem was within the territory of the State of Israel and under its sovereignty.

After a 13-year legal campaign, the U.S. Supreme Court handed down its ruling (close to the child’s bar mitzvah) dismissing the parents’ petition. According to this ruling, the 2002 Act was invalid as the President of the United States had exclusive authority to recognize foreign countries, including the territory over which they were sovereign. Therefore, in view of the position of U.S. presidents who refused to recognize Israeli sovereignty in Jerusalem until this matter was settled in peace negotiations, the American administration would not be required to register in an American passport that Jerusalem was within the borders of the State of Israel – contrary to the consistent position of U.S. presidents.

However, a few hours after this writing, on December 6, 2017 there was a dramatic and historic shift in the White House’s policy regarding the status of Jerusalem: Despite the warnings of the European countries, Egypt, Saudi Arabia, and Jordan regarding the “destruction of the political process” and threats made by the Palestinian Authority, Hamas, and Hizbullah regarding “the outbreak of a new intifada,”⁸⁴ U.S. President Donald Trump announced in a special speech at the White House that the United States recognizes Jerusalem as the capital of Israel and that he had instructed the State Department to prepare for the transfer of the U.S. embassy from Tel Aviv to Jerusalem, without setting a date for this move.

The American president stated that the refusal of previous presidents to recognize Jerusalem as the capital of Israel and transfer the U.S. embassy to this city had not advanced the peace process and therefore this policy could not be continued. According to Trump, recognizing Jerusalem as the capital of Israel was in fact

an important step in advancing the peace process and achieving a lasting agreement. Israel is a sovereign state, and like any other country, it has the right to determine its capital … We are not taking a position on the issue of the permanent agreement, including the specific limits of Israeli sovereignty in Jerusalem … These issues depend on the parties.⁸⁵

Yet, it should be noted that the U.S. president refrained from using the words “undivided” or “united” Jerusalem, in accordance with Israeli terminology, and did not address the Palestinians’ demand to establish their capital in east Jerusalem. Additionally, he did not address the current borders of Jerusalem and left them for negotiation between the “parties.”

In other words, this was a sophisticated formulation that referred to the positions of both sides: on the one hand, explicit recognition of Jerusalem as the capital of Israel, and on the other, refraining from using the Israeli language of “unified Jerusalem” or determining the “specific” boundaries of the recognized capital. Put differently, the United States left the door open to negotiations between Israel and the Palestinians as to these borders, thereby displaying willingness on the part of America for the “parties” to negotiate the division of Jerusalem into two capitals, Israeli and Palestinian.

Therefore, in my view, it is strange that none of the countries that objected to the declaration in question paid attention to this statement, which is very similar to the position of the United Nations, the European Union, and the Palestinian Authority. Later in his speech, the president also called on the parties to “maintain the status quo in the holy places in Jerusalem, including the Temple Mount, also known as the Haram al-Sharif.” On January 21, 2018, Vice President of the United States Mike Pence carried out a three-day visit to Israel. In a speech to the Knesset on January 22, 2018, he too declared that “Jerusalem is the capital of Israel,”and announced that President Trump had instructed the State Department to immediately begin preparations for the transfer of the American embassy from Tel Aviv to Jerusalem and that the U.S. embassy would open its doors in Jerusalem “before the end of next year”(2019).⁸⁶

Indeed, the Department of State announced on February 23, 2018 that the U.S. Embassy would officially move to one of the U.S. Consulate’s buildings on May 14, 2018, commemorating Israel’s 70th anniversary.⁸⁷

It is now possible to expect that the U.S. Supreme Court will also give expression to the significant change in the position of the U.S. presidents regarding Jerusalem, and instruct the State Department to register in the American passport of a child born to American citizens in Jerusalem, that he was born in Israel, unlike the ruling in the above Menachem Zivotofsky case.

Section 4: The position of the European Union regarding the status of Jerusalem⁸⁸

Initially, the EU countries, many of which are Catholic, were influenced by the Vatican’s position on these questions:⁸⁹ In 1947-1948, they supported the territorial internationalization of Jerusalem because – in accordance with the Vatican position – they believed it necessary to protect the Holy Places. Afterwards, they differed as to the nature of the desired internationalization: territorial (most of the states), or functional (supported by Holland and Sweden). No EU country recognized the legality of Israel’s rule in west Jerusalem and Jordan’s rule in east Jerusalem. In the 1970s, these countries still considered that the preferred solution was the territorial internationalization of Jerusalem, and they made this explicit in a declaration by the nine European Community member states (the former name of the EU) on November 6, 1973, when they called on Israel to end its rule in east Jerusalem. Since then, they have joined all the decisions of the UN institutions that have repeatedly condemned the occupation of east Jerusalem and the measures taken by Israel to change the legal status of east Jerusalem – and have called on Israel to withdraw from that part of the city.

On November 13, 1980, the nine EU member states published the Venice Declaration, recognizing

the special importance of the role played by the question of Jerusalem for all the parties concerned […] they will not accept any unilateral initiative designed to change the status of Jerusalem. […] Any agreement on the city’s status should guarantee freedom of access for everyone to the holy places.

They also called on Israel to “end the territorial occupation” in effect since 1967. The European Council, which met in Luxembourg in early December 1980, declared that “the Venice Declaration contains the essential elements of a comprehensive, just, and lasting settlement that the parties must achieve through negotiations.”

The EU foreign ministers prepared a comprehensive report on the main problems of the Israeli-Arab conflict, including the Jerusalem problem, and determined that the solution lay in the application of an international regime to the eastern part of the city. In other documents prepared for the Council’s political committee, it was proposed to hand over the Old City of Jerusalem to the administration of a special UN representative for a limited number of years and to replace the Israeli forces in the Old City with international forces. This would guarantee freedom of access to the holy sites, civilian administration of the city, and deferment of the decision regarding the sovereignty of east Jerusalem.

The Old City will be of a similar status to that of the Vatican […] The religious sites outside the Old City will be regarded as having extraterritorial status, similar to a number of churches in Rome outside the Vatican walls.

The EU Council, which met in Dublin, Ireland, in June 1990, issued a statement declaring that:

Israel’s settlement policy in the occupied territories presents a growing obstacle to peace in the region […] Jewish settlements in the territories […] including east Jerusalem, are illegal under international law, [the Council] calls earnestly on the government of Israel not to permit settlements there.

The Council of Ministers of the European Union reiterated on October 1, 1996, that “the European Union views east Jerusalem as subject to the principles set out in Security Council Resolution 242” (inadmissibility of the acquisition of territory by force) and therefore that this part of the city was not subject to Israeli sovereignty; this was occupied territory, to which the Fourth Geneva Convention applied.

In March 1999, it became clear that the European Union did not even recognize Israel’s sovereignty in west Jerusalem, and supported the internationalization of Jerusalem as a whole. In response to Israel’s announcement in February 1999 of its opposition to meetings being held between foreign diplomatic representatives and members of the Palestinian Authority outside the territory of the Palestinian Authority, and particularly in east Jerusalem, the European Union informed the Ministry of Foreign Affairs (March 1, 1999):

We reaffirm our known position on Jerusalem’s special status as a separate body (corpus separatum). This position is compatible with international law. Accordingly, we will continue to hold meetings in Jerusalem.⁹⁰

It should be recalled that the UN General Assembly used the term “corpus separatum” in the Partition Resolution of November 1947 to describe Jerusalem’s special status as an international city.

A large number of additional documents indicate that the internationalization of Jerusalem was the preferred solution of the European Union, whether in respect of the entire city or just the Old City.

Nonetheless the Union will welcome any settlement agreed to by Israel and the Palestinians, and which will guarantee the European and international interests in the city. This position was also expressed in a letter sent by the German ambassador to Israel on behalf of the Union (under the presidency of Germany) to the Israeli Foreign Ministry in March 1999, in response to an Israeli demand for European leaders to stop visiting the Orient House.⁹¹

In the years that followed, however, the European Union abandoned the solution of the internationalization of Jerusalem and adopted a new position under which Jerusalem should be the capital of the State of Israel and the State of Palestine, according to the “vision of two states for two peoples,” and that the final status and borders of Jerusalem should be determined only in negotiations between Israel and the Palestinians. In other words: Jerusalem should be divided into two capitals: west Jerusalem would be the capital of Israel, and east Jerusalem the capital of Palestine. The borders of both capitals would be determined in negotiations between Israel and the Palestinians.

In the annual report of the EU Consuls General in east Jerusalem and Ramallah for 2012, which was published in February 2013, the Israeli government’s policy in east Jerusalem was strongly criticized, and it was determined that the continuation of this policy might thwart the possibility that the city would serve as the capital of both states, and consequently frustrate the two-state solution.⁹² Accordingly, on December 6, 2017, the EU Foreign Minister, Federica Mogherini, announced that the European Union expressed “serious concern” over the intention of U.S. President Donald Trump to recognize Jerusalem as the capital of Israel and continued to adhere to its position that:

the status of Jerusalem must be determined only in negotiations between Israel and the Palestinians on the basis of the two-state principle.⁹³

In another speech by Mogherini on December 7, 2017, she expressed vehement opposition to the U.S. recognition of Jerusalem as the capital of Israel and stressed that:

The EU believes that the only realistic solution to the conflict between Israel and the Palestinians is based on two states, and Jerusalem as the capital of Israel and Palestine.⁹⁴

On December 11, 2017, Israeli Prime Minister Benjamin Netanyahu met with the foreign ministers of 24 of the 28 EU countries in Brussels, the capital of Belgium. The EU foreign minister repeated her opposition to the U.S, recognition of Jerusalem as the capital of Israel, and in response to Netanyahu’s remarks to the effect that he now expected other countries in Europe to transfer their embassies to Jerusalem, Mogherini stated after the visit: “He can keep these expectations for others, because in respect of EU countries this will not happen.”⁹⁵

In contrast, in June 2007, a conference was held in the European Parliament on the occasion of the 40th anniversary of the unification of Jerusalem, organized by the Center for Jewish Communities in Europe, attended by only about 20 out of the 785 members of the European Parliament. Most notable in this event was the statement of the Finnish representative, Hanno Takola: “Jerusalem is united and belongs to Israel.”⁹⁶

Section 5: The Palestinian Authority’s position on the status of Jerusalem

On October 6, 2002, the Palestinian Legislative Council enacted a special law for Jerusalem, namely, the Capital Law, the provisions of which are as follows:⁹⁷

1. Jerusalem is the capital of the Palestinian state and is the main and eternal seat of the three branches of government: the legislature, the executive, and the judiciary.
2. The Palestinian state has sovereignty over Jerusalem and its holy sites, and is responsible for protecting them and guaranteeing freedom of worship and the observance of all religious ceremonies in them.
3. Each year a special part of the general budget will be allocated for the city of Jerusalem, projects and programs will be prepared to encourage public and private investment, and it will remain a special priority development area.
4. Any legislation or agreement derogating from the Palestinian right in Jerusalem or which are contrary to the provisions of this Law shall be deemed null and void.
5. This Law shall not be amended or repealed except by a two-thirds majority of the Legislative Council.
6. All parties concerned shall do everything necessary for the implementation of this Law. This law will be valid from the date of its issue and publication in the Official Gazette.

The law was signed by Yasser Arafat as President of the State of Palestine, as Chairman of the PLO Executive Committee, and as Chairman of the Palestinian Authority.

There is no doubt that the very enactment of this law lacks any legal validity both under the Oslo Accords between Israel and the PLO and under Israeli law. Under the Oslo Accords, Jerusalem is within the borders of the State of Israel and outside the Palestinian self-rule area, which is confined solely to the West Bank of the Jordan River, and in any event, the Palestinian Authority has no authority to legislate laws regarding Jerusalem. The very fact that this law was enacted, and certainly its content, clearly contradicts Israel’s sovereignty in Jerusalem and is incompatible with the Palestinian commitments in the Oslo Accords. Under the Accords, the status of Jerusalem is to be determined only within the framework of future negotiations on a permanent settlement; until then Jerusalem is to remain outside the realm of Palestinian government, and the Palestinian Authority is prohibited from maintaining its institutions there.⁹⁸

Accordingly, the Implementation of the Interim Agreement on the West Bank and the Gaza Strip (Restriction of Activity) Law, 5755-1994,⁹⁹ and the Implementation of the Interim Agreement on the West Bank and the Gaza Strip (Restriction of Activity) (Amendment) Law, 5758-1997,¹⁰⁰

stated that their purpose is to “prevent political or governmental activity in the territory of the State of Israel, without the consent of the Government of Israel, which is incompatible with respect for the sovereignty of the State of Israel by the Palestinian Authority or the PLO.” In addition, Section 97(a) of the Penal Law, 5737-1977,¹⁰¹ states that “if a person commits an act liable to impair the sovereignty of the state with the intention to impair that sovereignty, then he is liable to the death penalty or life imprisonment.” It appears that in Section 4 of the “Law of the Capital,” the Palestinian legislature intended to undermine the validity of Basic Law: Jerusalem, Capital of Israel. However, it is clear that the Palestinian Authority cannot annul the law of the Israeli Knesset in respect of Jerusalem, which is located in the territory of the State of Israel, and outside the Palestinian self-rule area.

Finally, it is noteworthy that the Palestinian law is not limited to east Jerusalem, but refers to the entire city, albeit without defining its territory. Nonetheless, in many declarations issued since then, the PLO and PA leaders have made it clear that their demand to establish their capital in Jerusalem is limited to east Jerusalem alone.¹⁰²

Section 6: The dispute in international law over the legality of Israel’s rule in east Jerusalem

International law experts, as well as Israeli jurists, differ as to the legality of Israel’s measures regarding the unification of Jerusalem in the view of international law.¹⁰³ The main argument against the legality of the unification of Jerusalem is that east Jerusalem is “occupied territory,” which Israel forcibly took from Jordan in the Six-Day War in contravention of the prohibition on the use of force “against the territorial integrity or political independence of any state” in Article 2 (4) of the UN Charter.¹⁰⁴ Accordingly, this prohibition is also noted in most UN resolutions as one of the main reasons for denying the legality of the application of Israel’s control over east Jerusalem.

According to the prevailing view of international law, extension of sovereignty over “occupied territory” can only be achieved when the war is over, and a peace agreement has been signed with the former sovereign state in the territory under discussion or when this state ceases to exist (Debellatio).¹⁰⁵ Pending such agreement, the territory continues to be governed by the law of the former sovereign state, subject to essential legislative modifications, which may be enacted by the military commander in the area in question for security reasons or for the benefit of the local population, as required by the occupation of this area, in accordance with the rules of international law, and in particular: the Hague Regulations of 1907 on the Laws and Customs of War on Land and the Fourth Geneva Convention of 1949 on the Protection of Civilians in Time of War.¹⁰⁶

In this regard, I accept the views of the well-known experts on international law: Professor E. Lauterpacht;¹⁰⁷ Professor S. Schwebel,¹⁰⁸ former President of the International Court of Justice in The Hague; Prof. Y. Blum, the former Israeli Ambassador to the United Nations;¹⁰⁹Professor J. Stone;¹¹⁰ and M. Gruhin.¹¹¹ In their opinion, upon the end of the British Mandate in Palestine, a “sovereignty vacuum” was created in Palestine, including Jerusalem, which could only be filled with legal action. This vacuum was supposed to be filled by the agreed transformation of Jerusalem into an international city in accordance with the UN “Partition Plan” of November 29, 1947. However, the illegal aggression and forcible occupation of east Jerusalem by Jordan in 1948 nullified this decision and as such, failed to give Jordan any rights there. Evidence of this lies in the fact that, apart from Pakistan, no country, including any Arab state, formally recognized the annexation of east Jerusalem to Jordan in April 1950 and the legality of Jordan’s rule there.¹¹²

In other words: according to international law, in order for an area to be considered “occupied territory” of a previous state, the latter must be the legal sovereign in that territory.¹¹³Therefore, in the opinion of the above jurists, since Jordan did not have legal sovereignty in east Jerusalem, Israel’s takeover of this territory in June 1967 did not transform it into “occupied territory,” and the laws of occupation do not apply there.

On the other hand, Israel, unlike Jordan, took control of east Jerusalem in June 1967 as part of legal action in the exercise of its right to self-defense following Jordan’s attack on (Israeli) western Jerusalem. Jordan launched these hostilities despite Israel’s announcement that it had no intention of attacking Jordan and asking Jordan to refrain from attacking Israel. The right to self-defense is recognized in international law,¹¹⁴ as one of the two exceptions to the prohibition on the use of force set out in Article 51 of the Charter of the United Nations. Accordingly, Israel acquired sovereignty over east Jerusalem too in a lawful manner.¹¹⁵

According to international law, it is also possible to acquire sovereignty in an area occupied during wartime by means of a peace agreement signed between the occupying state and the state whose territory has been occupied, and indeed Jordan signed a peace agreement with Israel (on October 26, 1994) without east Jerusalem being restored to it.¹¹⁶ Article 9 of the agreement states that “Israel respects the present special role of the Hashemite Kingdom of Jordan in Muslim holy shrines in Jerusalem. When negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines.” However, it is clear from this provision that Jordan no longer demands the return of east Jerusalem to its sovereignty and is satisfied with Israel’s promise to give “high priority to the Jordanian historic role,” which is confined solely to the Muslim shrines in Jerusalem, “when the final status negotiations” take place in respect of Jerusalem.

Notably, Israel did not undertake to give Jordan control over, nor indeed the right to administer these sites, but only offered “high priority” to the historic Jordanian role in these places, without clarifying the nature of this “role.” Equally, the permanent status of the sites was not promised to Jordan but only negotiations on this issue, and even that not necessarily with Jordan alone.

Accordingly, the wording of the provision may be seen to imply Jordanian concession of east Jerusalem in favor of Israel, as required by the above rules of international law for the purpose of lawful acquisition of sovereignty in this territory.

At the same time, Article 9 of the Peace Treaty between Israel and Jordan states that “Israel respects the present special role” of the Hashemite Kingdom of Jordan in Muslim holy shrines in Jerusalem. In other words, Israel recognizes that Jordan already “possesses” a “role” in these places. The nature of that “role” is not clarified, and it appears that the “role” does not equate to “status.”

There is no doubt that the article in question was cleverly crafted to give expression to the historical, religious, political, and legal interests of both sides in the Muslim holy sites in Jerusalem. The late Prime Minister Yitzhak Rabin revealed that he himself had drafted this provision, and that this formulation expressed a policy of separation between the heavenly Jerusalem and the earthly Jerusalem: earthly Jerusalem would remain in the hands of Israel, while the administration of the Islamic holy sites – heavenly Jerusalem – would be given to the Muslims.¹¹⁷ In Prime Minister Rabin’s words, the “Jerusalem clause” in the agreement with Jordan was nothing new, and “was intended to reflect the existing situation in which the Jordanians are indeed playing a role in the administration of the Islamic holy sites in Jerusalem.”¹¹⁸

Article 9 of the peace agreement was an exact copy of a clause that appeared in the agreement to end the state of armed conflict between Israel and Jordan, signed in Washington on July 25, 1994, which has since been called the “Washington Declaration.” In this declaration, Israel officially recognized – for the first time since its establishment – Jordan’s “special role” in the Muslim holy places in Jerusalem.

Rabin’s words clearly indicate that Israel only recognized Jordan’s religious role or status in the Muslim holy places in Jerusalem, while under the above two agreements, Jordan agreed to this and did not demand more. Israel’s willingness to give Jordan such a “role” or status is consistent with the statements of Prime Minister Rabin and Foreign Minister Shimon Peres, following the peace treaty with Jordan that “Jerusalem is closed from a political point of view and open from a religious point of view.”¹¹⁹ Nonetheless, the continued appointment of all the Waqf employees, including the imams and preachers in the mosques, and the payment of their salaries by the Jordanian Ministry of Religious Endowments, is not purely a matter of religious status. This is particularly true in view of Jordan’s present special status relating to the administration of the Temple Mount (Haram al-Sharif), which is administered by Israel in coordination with Jordan, as seen, for example, in the Israeli government’s decision of October 2015 to prohibit ministers and MKs from entering the Temple Mount,¹²⁰ and the decision to remove the magnometers from the gates of the Temple Mount at the end of July 2017.¹²¹

Official recognition was given to Jordan’s status on the Temple Mount in Para. 13 of the state’s response to the petition submitted in HCJ 6421/16 Circle of Professors for Political and Economic Strength v. The Prime Minister et al:¹²²

In accordance with Article 9 of the peace treaty between Jordan and Israel, Israel respects the present special role of the Hashemite Kingdom of Jordan in the Muslim holy places in Jerusalem. Officials on behalf of the governments of Jordan and Israel are in constant contact regarding what occurs on the Temple Mount, including the activities of the Waqf in the place. For obvious reasons, it is not possible to openly detail the nature of these contacts, which touch upon issues at the heart of the foreign relations of the State of Israel.

In this context, Deputy President of the Supreme Court Elyakim Rubinstein noted, in Para. 10 of the Supreme Court judgment given on March 23, 2017, in the above petition:

I should point out, as the one who headed the Israeli delegation to the peace treaty with Jordan, that this article (which had already appeared in the ‘Washington Declaration’ of July 25, 1994) was drafted uniquely (in an unusual and to some extent exceptional manner) by Prime Minister Yitzhak Rabin, personally. This article was originally intended to give expression to Jordan’s connection to the mosques on the Mount, where the Hashemite dynasty is considered and regards itself as the descendant of the Prophet Muhammad, who visited the place according to Islamic tradition on a miraculous night journey. King Abdullah, grandfather of the late King Hussein, in whose time the peace treaty was signed, and the greatgrandfather of the current king, who bears his name, was also murdered in the presence of his grandson Hussein in a mosque on the Temple Mount, and hence the special emotional bond, and I will not even consider the Jordanian-Palestinian aspects that were also in the background. The article is, as the state wrote in its response, the basis for the Waqf’s involvement. But, of course, within the scope of Israeli law, the legal authority from beginning to end rests with Israel and the Israel Police.

In any case, and in the opinions of the jurists Schwebel and Blum, with which I agree, Israel is at minimum the holder of best “relative right” in Jerusalem,¹²³ as Jordan unlawfully occupied east Jerusalem in 1948, and as Israel conquered this territory from Jordan in June 1967, pursuant to its right to self-defense following Jordan’s attack on Jerusalem.¹²⁴

Since the present area of Jerusalem includes 64.5 square kilometers of land belonging to 28 villages and towns in the West Bank of the Jordan River, one may ask whether these arguments apply to these villages and towns as well. Were they legally incorporated into Israel or are they “occupied territories?”

A thorough and detailed discussion of this question goes beyond the scope of this article.¹²⁵However, in brief, the answer is positive, and essentially can be summarized as follows:

1. Jordan illegally acquired its control of the West Bank of the Jordan River, using force, in the course of a war to thwart the UN Partition Plan. Indeed, the legality of the annexation of the West Bank to Jordan, by declaring it as such on April 28, 1950,¹²⁶ was never recognized by any country in the world (including the Arab countries), apart from Britain and Pakistan.
2. On July 31, 1988, King Hussein of Jordan announced the severing of the Jordanian administrative and judicial link to the West Bank of the Jordan River (except for its continued protection of the Muslim holy places in Jerusalem),¹²⁷ thereby waiving Jordan’s right to return to rule there. Although the waiver was made in favor of the PLO as representative of the Palestinian people, since Jordan’s rule in that territory was not legal, as previously explained, it could not grant the Palestinians any right to rule there.
3. Equally, in the Jordan-Israel peace treaty, there is no Jordanian demand for the return of the West Bank of the Jordan River to its territory, and this too can be seen as a relinquishment of Jordan’s rule there. Nonetheless, this important argument should be qualified, considering Article 3.2 of the agreement in question. This article states that the internationally recognized boundary between Israel and Jordan does not constitute a “prior determination as to the status of any territories that came under Israeli military government control in 1967.” As east Jerusalem includes not only former Jordanian Jerusalem but also 64.5 square kilometers of land and villages in the West Bank of the Jordan River (in Judea and Samaria), it may be argued that the final status of all these territories has not yet been determined!

In any event, even if there is any legal flaw in terms of international law, in the application of Israel’s rule over east Jerusalem in terms of the acquisition of sovereignty there, its right to control the area is the best, even in terms of international law. No other country has such a right or has a right to sovereignty in east Jerusalem (including the territories beyond Jordanian Jerusalem – 64.5 square kilometers) that surpasses Israel’s right there or is even equal to it. This is true a fortiori, with respect to the Palestinian Authority, which did not exist in June 1967 (it was founded only in 1994 pursuant to the Oslo Accords between Israel and the PLO signed on September 13, 1993), and even today it is not a state, according to the criteria established in international law for recognition of the existence of a state.¹²⁸

Section 7: The unification of Jerusalem in the eyes of Israeli law

The Israeli Knesset refrained from using the term “annexation” when it applied Israeli law to the territories that were added to west Jerusalem (64.5 square kilometers in addition to Jordanian Jerusalem), not because this was prohibited under international law, but because it took the legal position that the above territories had been occupied by Jordan and illegally annexed to its territory following an unlawful attack on the State of Israel, designed to thwart its establishment in violation of the UN Partition Resolution (November 29, 1947). Additionally, because Jordanian Jerusalem (six square kilometers) had been illegally occupied by Jordan, contrary to the UN resolution designating this area as part of international Jerusalem under the control of a UN Special Commissioner.

In domestic Israeli law, the Supreme Court has ruled that Israel has lawfully applied its government and laws to east Jerusalem.¹²⁹ In this context, the Supreme Court, sitting as a High Court of Justice, rendered a ruling on January 16, 2002, in a petition regarding the jurisdiction of the Jerusalem Court for Local Affairs to hear matters relating to illegal construction by Palestinians in east Jerusalem.¹³⁰ The petitioners argued that the Israeli courts had no jurisdiction to consider construction in east Jerusalem, as the application of Israeli law to east Jerusalem was illegal by virtue of being inconsistent with customary international law.

The High Court of Justice rejected this claim and the petition, stating that it had no basis, and reiterating that as a matter of Israeli law “State law, jurisdiction, and administration apply to east Jerusalem and were imposed lawfully.” The court added that this internal Israeli legislation was consistent with customary international law, and declared that even if a contradiction did exist between Israeli legislation and customary international law, it was accepted case law that Israeli legislation would override. In the words of the High Court of Justice (per Justice Strasberg-Cohen) on this matter: “Even if I assume that domestic Israeli legislation is inconsistent with customary international law – and I do not hold that this is so, as there is no basis for such an assumption – Israeli law supersedes…”¹³¹

Finally, at the initiative of MK Hanan Porat, on March 26, 1998, the Knesset passed the Jerusalem Day Law, 5758-1998.¹³² According to this law, 28th Iyar, namely, the Hebrew date on which the IDF liberated east Jerusalem during the Six-Day War, was established as a “state holiday,” to be celebrated every year and called “Jerusalem Day.”

Section 8: The Old City as an “Antiquities Site”

The Old City (and its immediate surroundings) was declared on August 30, 1967, to be an “antiquities site”¹³³ by virtue of the Antiquities Ordinance,¹³⁴ which has since been replaced by the Antiquities Law, 5738-1978.¹³⁵ As an “antiquities site,” the Old City enjoys special protection pursuant to the above law, and any activity there (including construction and demolition, alteration or old dismantling an antiquity, and even laying of soil) requires the approval of the Director of the Israel Antiquities Authority, as provided in Section 29(a) of the Law. According to Section 29(c) of the Law, “where an antiquities site is used for religious requirements or devoted to a religious purpose” (such as the Temple Mount), the consent of a special ministerial committee is also required, the members of which include the Minister of Religious Affairs, the Minister of Education and Culture, and the Minister of Justice.

Section 9: The Old City as a World Heritage Site

The Old City also enjoys special status and special protection as a cultural asset of historic and universal importance. On September 11, 1981, the UNESCO World Heritage Committee accepted a Jordanian proposal to include the Old City and its walls, by virtue of Article 11(2) of the Convention concerning the Protection of the World Cultural and Natural Heritage 1972,¹³⁶ (to which Israel is also a signatory),¹³⁷ on the World Heritage List.¹³⁸ The Jordanian proposal attached a list of 220 sites in the Old City with dozens of sites holy to Islam and Christianity, but only one Jewish seminary (the name of which was not mentioned) and one synagogue (the name of which was distorted and is unknown). Nonetheless, in accordance with a recommendation made by ICOMOS (the International Council for Monuments),¹³⁹ as of April 1981, six additional “monuments” were added to the list:¹⁴⁰ the walls of the Temple Mount from the time of King Herod, emphasizing that they include the Wailing Wall, the well-known Jewish name for the Western Wall, “Solomon’s Stables,” which today serves as a mosque called the al-Marwani Prayer Place, the four Jewish synagogues that were restored in the Jewish Quarter of the Old City,¹⁴¹ and the arch sacred to Christianity – Ecce Homo (“Behold the man!”).¹⁴²

This list of sites does not necessarily mean that other sites in the Old City, the names of which are not mentioned, would not enjoy the protection of the above Convention. According to the decision of the UNESCO World Heritage Committee, the protection afforded by the Convention applies to the entire Old City, including all sites located therein.

As the Old City is included in the World Heritage list, Israel, being the governing authority, is obligated “to do all it can, to the utmost of its own resources” in order to protect the Old City and identify and preserve its various sites to ensure its presentation and transmission to future generations. If necessary, Israel is entitled to “international assistance and co-operation, in particular financial, artistic, scientific, and technical” (Article 4 of the Convention). Each state party to the Convention must report to the General Conference of UNESCO on the measures it has taken to implement the provisions of the Convention (Art. 29).

In December 1982, the above Committee decided to accept Jordan’s proposal to register Old Jerusalem and its walls on the list of “World Heritage in Danger” (under Article 11.4 of the Convention), which relates to “cultural and natural heritage as is threatened by serious and specific dangers.” The registration was based on Jordan’s complaint that Israel’s “urban development” plans for the Old City and its environs, the lack of proper maintenance of the monuments, and the masses of tourists visiting there, endangered the Old City and its walls.¹⁴³ It should be noted that the decision was taken even though the UNESCO Director-General’s representative for Jerusalem, Prof. H. Lemire, rejected the facts on which the Jordanian complaint was based.¹⁴⁴

According to Article 13.3 of the Convention, the World Heritage Committee is authorized to determine the nature and extent of the international assistance required for the protection and conservation of natural and cultural assets, in accordance with the purposes of the Convention.

Chapter Four: General Summary

Jerusalem is a unique city, historically, religiously, nationally, and legally, because of its great sanctity in the eyes of Judaism, Christianity, and Islam. It is the holiest city in the world for Judaism, by virtue of the Temple Mount, which was the site of the three Jewish Temples. This is the holiest place in the world for the Jews because, according to their faith, the Shechinah [divine spirit] dwells there forever.

Thus, since its establishment, Jerusalem has been the capital of the Kingdom of Israel, the capital of the Kingdom of Judah, the capital of the Hasmonean Kingdom, and the capital of the State of Israel.

Jerusalem is also sacred to Christianity, mainly because of important events that took place there in the life of Jesus, especially in his last days. Jesus was crucified and buried in the Church of the Holy Sepulcher, and there he was resurrected. It is the holiest place in the world for Christianity. From Jerusalem, the Twelve Apostles set out to spread the message of Christianity around the world.

While Jerusalem was the capital of the Crusader Kingdom for part of the Crusader period (1099-1187 CE), the Christian countries have no political interest of their own in Jerusalem. Nonetheless, due to their economic and political ties with the Arab states, they deny the legality of Israeli rule in east Jerusalem and support the demand of the Palestinians and the Arab states to place east Jerusalem under the sovereignty of the future Palestinian state.

East Jerusalem is also sacred to Islam by virtue of the Temple Mount, which the Muslims call the Haram al-Sharif – the “Noble Sanctuary,” due to Islamic belief that at the end of his night journey from the Kaaba stone at Mecca the Prophet Muhammad landed at the site where the al-Aqsa Mosque was subsequently built. According to Islamic belief, he also ascended from the Foundation Rock located there (the Jewish “Holy of Holies”) to the heavens and received from Allah the five daily prayers that every Muslim is commanded to perform. Commemorating this ascent, the Muslims built the Dome of the Rock on this site, which currently serves as a mosque for women. Based on this belief, at the beginning of the eighth century, Jerusalem was recognized as the third most holy city for Islam, following Mecca and Medina.

Yet, Jerusalem was never a Muslim capital. It was always a neglected city, albeit one of religious importance – during the early Arab period (638–1099 CE), the Ayyubid period (1187-1250), the Mamluk period (1260-1517), the Ottoman period (1517-1917), and during the period of Jordanian rule (1948-1967). It is important to note that from the middle of the nineteenth century until the 1929 riots, Jews constituted an absolute majority of Jerusalem’s population: 45,000 Jews out of an overall population of 65,000.¹⁴⁵

Following the international recognition of the twentieth-century Palestinian claim to a right of self-determination , the Palestinians demanded all the territories conquered by Israel from Jordan in June 1967 for the purpose of creating an independent Palestinian state there and establishing their capital in Jerusalem. This was primarily by virtue of the existence there of the Haram al-Sharif (Temple Mount), which became, in their view, a religious and national symbol.

This is the background to the struggle for control of Jerusalem, and particularly east Jerusalem, between Israel and the Palestinians, which has been continuing for about 100 years. Unlike the Jewish population of Palestine, the Arabs did not agree to the UN Partition Plan of November 29, 1947, according to which the area would be divided into two states, Jewish and Arab, with a separate area of Jerusalem as an international area administered by the United Nations. Instead, they launched a war to thwart this plan. During this war, Jordan conquered the eastern part of Jerusalem, and Israel defended and conquered the western part of the city. Jordan and Israel agreed on the division of Jerusalem between them in the Armistice Agreement of April 3, 1949.

The United Nations accepted the division of Jerusalem between Israel and Jordan, and over the years abandoned the solution of its internationalization. Almost the entire world became accustomed to this, albeit without formally recognizing (except Pakistan) the legality of Jordan’s rule in east Jerusalem and the legality of Israel’s rule in west Jerusalem.

Until the early 1970s, some countries in the world only recognized de facto Israeli rule in west Jerusalem, and 18 of them even established their embassies there as a clear sign of their recognition of west Jerusalem as the capital of Israel.

In early June 1967, Egypt, Syria, and Jordan attacked Israel. The war ended in six days in a crushing victory for Israel. At the beginning of the war, Jordan bombed Jerusalem and even occupied a small part of its territory (the High Commissioner’s Palace). Since Jordan did not heed Israel’s warnings to refrain from fighting against it, Israel conquered Jordanian Jerusalem (six square kilometers) and added to Jerusalem an additional 64.5 square kilometers of the land of 28 villages and towns in the West Bank. It applied its law, administration, and jurisdiction to all these territories under the designation of “east Jerusalem.” Israel hastened to build 13 new neighborhoods inhabited by 214,600 Israelis, compared with about 327,700 Arabs who live in the area of east Jerusalem.

The struggle for the political future of east Jerusalem then renewed, reaching its peak when Israel declared unified Jerusalem as the capital of Israel in a Basic Law of that name in 1980.

The United Nations has determined that Israel’s rule in east Jerusalem is illegal, that all measures taken by Israel to unify the city, and in particular Basic Law: Jerusalem, Capital of Israel, are null and void and that east Jerusalem is “occupied territory,” illegally annexed by Israel from Jordan, following war with Jordan, in breach of international law.

The entire world has accepted this view, and the 18 countries that maintained embassies in west Jerusalem accepted the UN call and removed their embassies from Jerusalem to other places in Israel as a sign of diplomatic protest against the imposition of Israeli rule and laws on east Jerusalem. In addition, foreign countries currently maintain nine consulates in Jerusalem. However, none of them submitted an official request (exequator) to the Israeli Foreign Ministry for recognition as a consulate in view of the desire to avoid performing an act (submitting an application to the Ministry of Foreign Affairs) that would imply their countries’ recognition of Jerusalem as part of the State of Israel, contrary to the policy of these countries. Nevertheless, Israel grants foreign consulates in Jerusalem consular status and documentation under the Vienna Convention on Consular Relations, 1963.

Contrary to the above, this article presents a completely different opinion, held by world-renowned experts in international law, whereby Israel has lawfully acquired sovereignty over both parts of Jerusalem as a matter of international law.

According to this view, at the end of the British Mandate in May 1948, a vacuum was created in sovereignty over Jerusalem that could only be filled by legal action, such as by turning Jerusalem into an international city through acceptance of the UN Partition Resolution of November 29, 1947.

However, in light of the rejection by the Arab states of the UN Partition resolution, and their armed aggression against Israel, aimed at thwarting the implementation of that resolution, which recommended establishment of two states, Jewish and Arab, with Jerusalem as an international city, this vacuum was ultimately filled by the conquest of west Jerusalem by Israel in exercise of its inherent right to self-defense, recognized in international law. Therefore, Israel became the legal sovereign in west Jerusalem.

On the other hand, Jordan was not considered to be the legal sovereign in east Jerusalem, since it occupied the territory during the aforementioned aggressive to thwart implementation of the Partition Resolution. Evidence of this may be found in the fact that no country in the world (including the Arab states), apart from Pakistan, recognized the legality of Jordan’s sovereignty over east Jerusalem.

The same principle is equally applicable to the 64.5 square kilometers of territory attached to Jerusalem at the end of June 1967. Jordanian rule in these territories similarly lacked legality as they had been occupied by Jordan in an aggressive war initiated by the Arab states in order to thwart the UN “Partition Plan” of November 1947. Subsequently, Jordan relinquished its authority there, both with its July 1988 announcement that it was severing its legal and administrative ties to these areas, as well as the fact that it did not demand to restore them from Israel as part of the October 1994 Treaty of Peace between Israel and Jordan.

East Jerusalem cannot be considered “occupied territory.” For such status to be accorded to a particular territory, international law requires that the state whose territory was occupied must have been the legal sovereign of the territory in question. However, as explained, Jordan was not the legal sovereign of east Jerusalem, since it acquired the territory unlawfully, during the course of an aggressive war.

Accordingly, Israel acquired sovereignty in east Jerusalem, and legitimately unified the two parts of the city at the end of June 1967 and later proclaimed united Jerusalem as the capital of Israel in its 1980 Basic Law.

Prof. Schwebel and Prof. Blum have argued, as set out above, that Israel holds the best relative legal right in respect of both parts of Jerusalem, and no other country (including Jordan and the Palestinian Authority), can legally surpass Israel’s right.

Contrary to the position taken by the majority of countries of the world, on April 6, 2016, Russia recognized west Jerusalem as the capital of Israel and concurrently recognized east Jerusalem as the capital of a future Palestinian state.

On December 6, 2017, in a special speech by President Donald Trump, the United States recognized Jerusalem as the capital of Israel. However, the U.S. President refrained from referring to “united Jerusalem” or “undivided Jerusalem,” and stressed that the United States “does not take a position on permanent issues, including the specific borders of Israeli sovereignty in Jerusalem.” In this way, President Trump expressed his acquiescence in negotiations between Israel and the Palestinians regarding the issue of Jerusalem, including the Palestinian desire for two capitals, an Israeli capital and a Palestinian capital. The U.S. president further instructed the State Department to prepare for the transfer of the U.S. embassy from Tel Aviv to Jerusalem, scheduled for Israel’s 70th Independence Day anniversary in May 2018.

Immediately thereafter, the Czech Republic announced its recognition of west Jerusalem as the capital of Israel, and on December 25, 2017, the President of Guatemala announced his decision to return the Guatemalan embassy to Jerusalem, thereby implying Guatemalan recognition of Jerusalem as the capital of Israel, in view of the diplomatic practice of locating the diplomatic mission in the capital of the host country.

* * *

Acknowledgments

I would like to express my gratitude to the Jerusalem Center for Public Affairs, led by Dr. Dore Gold, and the Center’s Director General, Chaya Herskovic, for their readiness to publish my research and all of their dedicated assistance with this project.

I would also like to thank Judge Moshe Drori, vice president of the Jerusalem District Court, and Amb. Alan Baker, former Israeli ambassador to Canada and legal adviser to the Israel Foreign Ministry, who made several important, effective comments on this monograph, contributing to its improvement.

I am extremely grateful to Dr. Adv. Rachel Rimon for her faithful, excellent translation of the monograph into English, and to Lenny Ben-David for his professional, insightful editing.

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Notes