With Israel proclaiming that Jerusalem belongs to them what is the legality of these claims from the international law point of view? what does history tell us about Palestine? what is the International community stance on these claims?

Seven Questions on Jerusalem and the International Law

 

Dr. Said Talal Aldahshan

 

Q.1: “Israelis” proclaim that they have historic right on Jerusalem city, is that historic right considered a method to acquire sovereignty over territory in the International law? And how does this relate to acquisitive prescription (sovereignty transfer)?

To answer this question, we must ask whether the historical right is the event of establishment, the event of stability or the rule.

It is well known that the one who established the city of (Jebus) are Jebusites and they are Arabic tribes came from Arabia in 2600 B.C and it is well recognized that the Arabian Jebusy king (MilekSadeq) had met prophet Abraham peace be upon him and presented to him wine and bread, and that was around 1900 B.C, the Jebusy king was named the peace king and the city of Jerusalem was named in his era the city of (peace), therefore Arabs established the city even before prophet Abraham came from about 700 years.

As for stability, Jews did not continue to settle in the city as compared to Arabs, from the beginning they all moved to Egypt in the time of Jacob and Joseph peace be upon them, then they returned from Egypt after an absence and entered Palestine in the era of David peace be upon him, about 1000 B.C., all that happened and Jews did not have any entity in Palestine, then prophet David peace be upon him established a state in Palestine independently and inherited by Suleiman peace be upon him, and the first entity of Jews in Palestine came about 1600 years after it was founded by the Arabs.

As for the rule, there were small monarchies that ruled a city or something of a similar size, and there were big empires, which had no demarcated borders however its borders were considered were its army reach, and thus small monarchies entered under the rule of that empire, as a kind of autonomy under different conditions of loyalty and tax payment to the big empires. The map of its influence for these monarchies has been constantly changing, according to the stampede of the great empires and their wars. For record, many empires and monarchies have succumbed to the rule of Jerusalem, were it reached (19) from Assyrians, Babylonians, Chaldeans, Persians, Pharaohs, Greeks, Anbat, Romans until Omar bin al-khattab Islamic conquest in (638) and remained under Islamic rule until it have been signed under the British occupation in 1917, other than the period in which Crusaders ruled from 1099 to 1187. During its 4,600-year history, Jerusalem was not ruled by Jews except for 518 separated years which it was under the influence of external powers and was ruled independently only 73 years by the time of David and Suleiman, peace be upon them.

The reality is that no international legal scholar has included the historic right among the methods of acquiring sovereignty over territory, which it consists of main methods (effective occupation, accretion) and transferable methods from one country to another (prescription, cession, conquest), and there is no existence for what called historic right as a method of acquiring sovereignty over territories, however if Jews proclaimed that they acquired sovereignty over Jerusalem via transfer, then prescription (sovereignty transfer) has three conditions (1) The territory belong to another state(2) for a prolonged period of time (3) without protest or other contest by the original sovereign, the Jews rule over Jerusalem hadn’t acquire any of these conditions

Q.2: What’s the legal status of the British occupation over Jerusalem as part of Palestine in 1917-1948? Is the mandate memorandum released by the League of Nations in 1922 grants territorial sovereignty for Britain over Palestine?

On December 9, 1917, British General Allenby, had won a decisive victory against the Ottoman forces in Palestine, and occupied the city of Jerusalem, thus ending the Arabian and Islamic sovereignty over it which lasted 13 centuries. Britain attempted to infuse some legitimacy on its presence in Palestine at multiple occasions, first San Remo conference 1920 the attendants determined that Great Britain would claim mandates for their administration over Palestine and Iraq, then Britain constructed the mandate memorandum, passed it under the Balfour Declaration and presented it to the League of Nations which had then endorse it in 1922/7/22 and entered into force in 1923/12/29.

The Mandate memorandum is a dangerous document, through it Britain tried to deny the character of occupation from itself, and make itself sound more legal via (acting as the Council of the family and the minor inheritance) and it regulated the country and the laws to deny Palestine for the Jews, whereas, article (2) provided that the mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, article (7) provided that the administration of Palestine shall be responsible for enacting a nationality law. There shall be included in this law provisions framed so as to facilitate the acquisition of Palestinian citizenship and article (11) provided that the administration may arrange with the Jewish agency mentioned in article 4 to construct or operate.

Article (22) provided that English, Arabic and Hebrew shall be the official languages of Palestine. Britain also appointed the first high commissioner for Palestine (Herbert Samuel), who confiscated Arab land on the basis of the land ownership act of 1920 and followed by a draft of the expropriation of land ordinance 1926.

All of this means legitimizing Israel’s Jewish presence in Palestine, facilitating Jewish immigration, citizenship acquisition, and recognition of their political entities. It also contributed to a fundamental imbalance in the demographic and geographical composition of Palestine and the city of Jerusalem, in which their proportion rose.

Q.3: The Israelis claim that Balfour deceleration gave them the right on Palestine as they are the sovereignty and therefore have the right to act so what is the legitimacy of Balfour Declaration? Is it an international legal work? Does the declaration yield its legal implications especially if it contradicts with the peremptory norms of international law?

On November 2, 1917, Foreign Secretary Arthur James Balfour writes an important letter to Britain’s illustrious Jewish citizen, Rothschild expressing the British government’s support for a Jewish homeland in Palestine, according to the mandate system created Britain was entrusted with administration of Palestine and had the right to act this way, Britain gave this promise to Jews, and this mean in their point of view as recognition for the Jews to establish a national home land for them in Palestine. To acknowledge the legitimacy of this declaration some matters in the international law must be discussed first: 

First: On the formal side, the promise is not considered an international legal act, which is two types: 1- acts between two or more international persons, and Jews were not a state, so the declaration is between two states (Britain, a sect, not a state) and therefore not an international act issued by two international people or more. Acts of one international person, whose legal effects are produced only if preceded or followed by international will from other international persons directly involved in the subject, and neither the Ottoman nor any Arab State has adopted or accepted the Balfour Declaration, nor the Palestinians themselves. The promise was categorically rejected by all those involved.

Second: regardless of the form, any international legal act and to yield its legal effects must be: 1- eligibil to issue it 2- without a defect in the administration 3- its subject matter be possible and legitimate.

Britain had not occupied Palestine on 2 November 1917, at the time of its declaration and had not been authorized by the League of Nations to mandate, which gave Britain administration legitimacy and way to assist the population to govern itself, and thus there was no legal capacity. It also involves cheating by Britain when it promised the Arabs, if they assist them in defeating the Ottoman empire they would grant them Arabic state and it involves fraud when the promise mentiones “without prejudice to the civil and religious rights of non-Jewish communities” that they are majority while they are only deluded and they did not exceed 7% of the total population.

Therefore, the statement was legally dead, it was not an international act and characterized for its illegitimacy for it’s not possible to implement, as well as administrative flaws (fraud and cheating).

Q.4: Israel also claims that it has taken international legitimacy to establish its own entity from the United Nations partition resolution, which divided Palestine into two states, one Jewish and the other Arab, so does the United Nations have the right to decide on partition? What is the relationship with standards of justice and equity?

On 29 November 1947, the UN General Assembly divided resolution 181 (II) recommending the partition of Palestine into two states, one Arab and one Jewish. The first question is how competent the UN is to issue a partition resolution. Some international law scholars say it is not competent to do so; first, it has no sovereignty or a real authority over Palestine and therefore it did not have to grant property, if somebody said that it inherited the League of Nations, it is countered, as the League of Nations resolution did not provide for the United Nations to be dissolved.

As well as the United Nations have strayed from its field of competence (regulation and supervision), in addition, the resolution came breaking through the norms of justice and fairness. Jews, after all illegal migrations in the time of the British mandate, made up one-third of the Palestinian population, were granted 57% of Palestine’s land, while the two-thirds of the population was given only 43%. Thus, this leads us to say that the partition decision is invalid not because the United Nations is not competent but because it is beyond its competence, and that the standards of justice and fairness are not followed.

Q.5 what is the nature of Jordanian sovereignty over East Jerusalem during 1948-1967 and what is the nature of Israeli sovereignty over West Jerusalem since 1948?

After Jordan took control of East Jerusalem, it declared annexing it with the rest of the West Bank in April 1950, following a Palestinian conference held in Jericho city in December 1948, calling for the Palestinian Jordanian unity, then the Jordanian parliament approved it on the 13th of the same month. What is Jordanian rule on the West Bank, including East Jerusalem, is it a legitimate sovereignty or an occupation?

Of course, it was not an occupation, as the Jordanian forces came in response to the Palestinian demand, and the Jordanian and Palestinian people are one, sharing the same blood, so it’s difficult to describe it as occupation. Arab countries' opposition to the resolution was because they were worried that this may lead to the division of the Palestinian cause. Thus, the Arab League Council issued its decision in April 1950, considering that Jordan's annexation of the West Bank is a temporary measure free of all features of occupation and fragmentation of Palestine and that after its liberation, it would be handed over to its owners to govern them as they wanted.

As for the Israeli sovereignty over western Jerusalem, it came in violation of what was approved by the partition resolution that put Jerusalem under a special international sovereignty. Israel surprised the world by declaring on 11 December 1948 that Jerusalem (West) was its capital, moved its ministries to it, and the Knesset passed the "order of the abandoned areas" Act (12) of 1948, and then the Absentee money Act of 1950, to seize Palestinian money, land, and property, which accounts for about 80% of the area of West Jerusalem. The international community, however, rejected all the measures mentioned, did not recognize Jerusalem as Israel's capital, maintained its special legal status, and all countries were called upon not to recognize this or to transfer their embassies to Jerusalem.

If Israel justified some (fake) legitimacy on the basis of the partition decision to declare its state, the resolution gave no sovereignty over Jerusalem, which was supposed to be under private international sovereignty. Israel's de facto sovereignty over Jerusalem has never been abrogated and accepted by its indigenous people, who have gone to resist it in all ways. Thus, the Israeli presence in West Jerusalem is illegal, and the world has not recognized it and prevented it from making any changes in it, even when accepting its membership, it was required to recognize partition resolution 181 and refugee return resolution 194.

It is also important to note that the United Nations resolution (303) which was issued on 9/12/1949 have significant indications, which emphasized on placing Jerusalem under permanent international system, noting that this resolution was issued after seven months of Israel accession to the united nations, which means the withstand of international community with the situation in Jerusalem and considering Israeli presence in West of Jerusalem since 1948 is de facto rather than legitimate, has no international legal capacity and has no legal basis of sovereignty.

Q.6: What is the legitimacy of the Israeli presence in East Jerusalem since 1967 and how legitimate have the measures taken since then?

There is no dispute in international law that Israel's seizure of East Jerusalem and the entire territory of the West Bank and Gaza Strip is an occupation and that its presence is through the use of armed force as a result of the 1967 war, contrary to the well-established principle of international law: The inadmissibility of the acquisition of territory by force. It has been emphasized in dozens of international conventions and resolutions, including Hague Convention 1907 and the Geneva Convention of 1949.

The United Nations organs have left no chance but to affirm this principle. International law is therefore clear here and confirms the illegality of Israel's sovereignty over East Jerusalem and that its existence is only the presence of an occupying Power and must withdraw from it in accordance with the norms of international law.

All Israeli actions in the city are therefore (confiscation of land, settlement, Judaization and violation of Jerusalemites' rights) is null and void, has no effect on international law, does not alter the international legal status of the occupied territories, and Israel has all the obligations under the Fourth Geneva Convention of 1949 for the protection of civilians under occupation.

Q.7: What is the legal status of the American recognition of Jerusalem as the united capital of the State of Israel and its transfer to Jerusalem? What is the impact of this on international law?

• On 30 July 1980, the Israeli Knesset passed a law to annex, consolidate and consider Jerusalem as the capital of Israel, and considered the Palestinian population permanent residents and extended its legal and administrative mandate over the entire territory of East Jerusalem.
• In August 1980, the Security Council adopted resolutions 465 and 467, which condemned Israeli law of annexing Jerusalem as a violation of international law and the 1949 Geneva Convention, and considered that the legislative and administrative measures taken by Israel to alter the character of Jerusalem as null and void. Other States members of the United Nations have demanded the withdrawal of their diplomatic missions from the city of Jerusalem.
• On 13 October 1995, the US Congress recognized Jerusalem as the United capital of Israel, and approved the transfer of the US embassy from Tel Aviv to Jerusalem, this was at the time of President Bill Clinton, and according to article 2 of the law, it is the prerogative of the US President to postpone the transfer of the embassy for (6) renewable months, and American Presidents have remained (Bill Clinton - Bush Jr. - Obama) postponing the US decision to move the embassy every six months until the current president (Donald Trump) came.
• On 6/12/2017 the US president signed the decision to recognize Jerusalem as Israel's united capital and to transfer the US embassy to it, and on 14/05/2018 the US embassy was moved to Jerusalem.
• The decision, as well as the specialists and interested persons know, is contrary to international law, to the Geneva Convention of 1949, which is contrary to the advisory opinion of the International Court of Justice of 2004, which considers East Jerusalem an occupied territory, i.e. diplomatic missions may not be transferred to it by international law. It is also contrary to Security Council resolutions and to UN General Assembly resolution, as well as to the Charter of the United Nations, which prohibits the occupation of the territory of others by force or threat thereof, including, but not limited to, Security Council resolutions 465+467/1980 following the annexation of Jerusalem by Israel; The Security Council condemned this measure and considered it "a violation of international law and has no effect on the continued application of the Geneva Convention in 1949, and that the legislative and administrative measures and provisions taken by Israel aimed at changing the character and status of the city of Jerusalem are null and void and without legal effect, and need to be immediately abolished and not recognized. Other members of the United Nations that have established diplomatic missions in Jerusalem are required to withdraw these missions from the Holy City.
• The decision is therefore non-existent and has no legal value, has no legal effect, and Palestine can go to the International Court of Justice and demand a return to the situation, compensation and reparation.