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the Question of Palestine
Geneva, 29 August - 7 September 1983
II. Jerusalem under the British Mandate
III. The international regime for Jerusalem under the partition resolution
IV. The de facto division of Jerusalem, 1948
V. Reaffirmations of the principle of the internationalization of Jerusalem
VI. The proposals of the Conciliation Commission for Palestine for an international regime for Jerusalem
VII. The Trusteeship Council's draft statutes for Jerusalem
VIII. The interregnum in Jerusalem, 1950-1967
IX The effects of the 1967 war on the status of Jerusalem
X. Security Council actions in relation to Jerusalem
XI. Jerusalem and the rights of the Palestinian People
Notes and references
* Paper prepared for the International Conference on the Question of Palestine by a consultant, at the request of the Preparatory Committee.
The earliest known people of Palestine were the Canaanites among whom, according to Jewish, Christian and Moslem tradition, Abraham came from Ur. His descendants followed Moses from captivity in Egypt, and after their return, the Jewish tribes were united in about 1000 B.C. under David, who conquered Jerusalem from the Jebusites. His son, the great Solomon, built the first Temple of Jerusalem on Mount Moriah.
Solomon's death was followed by the division of the kingdom into two - Israel and Judah, Jerusalem being the capital of the latter. Early in the eighth century B.C., Israel was destroyed by the Assyrians and the Israelites carried away as captives. In 587 B.C., Nebuchadnezzar destroyed Jerusalem and the Temple of Solomon, carrying the inhabitants of Judah into captivity in Babylon. Afte Cyrus' conquest of Babylon, the Jews returned to Palestine and rebuilt the Temple of Jerusalem circa 530 B.C.
In 332 B.C., the Macedonians conquered Palestine. A Jewish uprising led to the destruction of the second Temple circa 170 B.C. A partial reappearance of Jewish rule was ended by the Roman conquest in 63 B.C. Under Roman suzerainty . Herod became king of Judea in 40 B.C., rebuilding the Temple in Jerusalem a second time. From 70 A.D., Titus ruled Palestine, sacking Jerusalem and destroying the Temple, of which only the Western Wall survived. In 135 A.D., Hadrian expelled the Jews from Palestine into the Diaspora.
From circa 400 A.D., Palestine was ruled by the Byzantine Empire until the Islamic Faith (spread) in 637 A.D., the Caliph Omar entering Jerusalem in 638. Arab Moslem rule remained until 1517, with only a brief interruption lasting between 1099 and 1187 when the Crusaders conquered it. It was in 1187 that Salah-El-Din the Great returned Jerusalem to Moslem rule and it so remained for eight centuries, becoming part of the Ottoman Empire in 1517.
The history of rule over Jerusalem shows sharply differing attitudes of the rulers towards religions other than their own. The Babylonians, Macedonians and Romans destroyed the Jewish Temples. Hadrian forbade Jews to enter Jerusalem, but eventually they were able to perform an annual pilgrimage to Jerusalem to continue the tradition of worshipping at the ruins of the Temples. After the Moslem Faith (spread), eventually Jews were allowed to return to Jerusalem and to establish their synagogues. Although Moslem holy places were built on Mount Moriah and the site called the Haram Al-Sherif, becoming one of the three most holy places in Islam, the Jews were permitted to worship at the Western Wall. The Crusaders at first dealt with the Jews harshly, but later showed more tolerance for Judaism. After the Moslem reconquest in 1187, Salah-El-Din allowed Jews to return to Palestine and gave them freedom of worship. Moslem rule over Palestine and Jerusalem lasted nearly 13 centuries, except for the Christian interregnum. It was ended by the British occupation in 1917, and the subsequent status of Palestine as a League of Nations Mandate.*
"All responsibility in connexion with the Holy Places ... including that of preserving existing rights and of securing free access ... is assumed by the Mandatory who shall be responsible solely to the League of Nations ... nothing in this Mandate shall be construed as conferring upon the Mandatory authority to interfere with the fabric or the management of purely Moslem sacred shrines, the immunities of which are guaranteed."
Article 14 read:
"A Special Commission shall be appointed by the Mandatory to study, define and determine the rights and claims in connexion with the Holy Places and the rights and claims relating to the different religious communities in Palestine."
Within a few years the increase in the Jewish population through mass immigration had resulted in political tensions in Palestine between the Arabs and Jews, part of which was friction between the Jews and Moslem Arabs which soon developed over the Holy Places in Jerusalem.
In 1929 there was a serious outbreak of violence over the Western Wall (or the wailing Wall) of the ruins of the ancient Jewish Temples, the holiest site for Jewish worship, situated in the Haram Al-Sherif, for Moslems the holiest place in Jerusalem. An international commission appointed under article 14 of the Mandate the approval of the Council of the League of Nations investigated the claims of the two religious communities in Jerusalem.
„.. * This historical background is extracted from the report of an international commission appointed in 1930 with the approval of the League of Nations (see note 1 under "Notes and references").
Its award on the fundamental question of religious rights was:
"To the Moslems belong the sole ownership of and the sole proprietary right to the Western Wall, seeing that it forms an integral part of the, Haram-al-Sherif area ...
"To the Moslems there also belongs the ownership of the Pavement in front of the Moghrabi (Moroccan) Quarter opposite the Wall ...
"Such appurtenances of worship ... as the Jews may be entitled to place near the Wall either in conformity with the present Verdict or by agreement come to between the Parties shall under no circumstances be considered as, or have the effect of, establishing for them any sort of proprietary right to the Wall or to the adjacent Pavement." 1/
Thus the League of Nations Mandate's reference to "existing rights", presumably meaning the customary rights that had prevailed under the Ottoman Empire, was elaborated by the International Commission.
In its report the Commission noted that in presenting their case for the right of worship at the Western Wall, the Jews "do not claim any property right to the Wall". Its award prescribed certain subsidiary entitlements and obligations for both religious communities. This was made into law on 8 June 1931, 2/ and remained law until the end of the Mandate.
The massive immigration under the Zionist Organization's policies was swelled by European Jews seeking refuge from Nazi persecution. The augmented Jewish proportion of Palestine's population brought mounting Jewish-Arab hostility which culminated in the Palestinian rebellion of 1937-1939.
The Royal Commission of enquiry commenting on Jewish-Arab animosity, stated, inter alia.
"... Nor is the conflict in its essence an interracial conflict, arising from any old instinctive antipathy of Arabs towards Jews. There was little or no friction ... between Arabs and Jews in the rest of the Arab world until the strife in Palestine ... [where] ... there is no common ground between them. The Arab community is predominantly Asian in character, the Jewish community predominantly European ..."3/
Citing "the force of circumstance", the Royal Commission proposed the partition of Palestine into an Arab State and a Jewish State. In view of the sanctity of Jerusalem and Bethlehem to all three faiths,, the Commission held the Holy Places to be, in words taken from the League's Covenant, "a sacred trust of civilization". It proposed that a Jerusalem-Bethlehem enclave encompassing all the Holy Places, with a corridor to the sea terminating at Jaffa, be endowed with an international status under a new mandate subject to the League's supervision. 4/ (See map at annex I.)
This first plan for the partition of Palestine and the internationalization of Jerusalem was superseded by political and military events. After the Second World War, great Britain declared it was unable to resolve the conflict in Palestine and brought the problem to the United Nations.
A large number of Jewish immigrants had settled in a new expanded western sector of Jerusalem, the ancient eastern sector, including the walled city, remaining predominantly Arab. The United Nations Special Committee on Palestine (UNSCOP), appointed by the General Assembly to present proposals on Palestine, estimated there were about 100,000 Jews and 105,000 Arabs (and others) in Jerusalem 5/
Because of the special position of Jerusalem, UNSCOP unanimously recommended that the sanctity of the Holy Places be guaranteed by special provisions, and that existing rights" in Palestine be preserved:
"A. The sacred character of the Holy Places shall be preserved and access to the Holy Places for the purposes of worship and pilgrimage shall be ensured in accordance with existing rights ...
"B. Existing rights in Palestine of the several religious communities shall neither be impaired nor denied;
"D. Specific stipulations concerning the Holy Places ... and the rights of religious communities shall be inserted in the constitution or constitutions of any independent Palestinian State or States which may be created." 6/
The minority report recommended an independent, unified, federal State in Palestine. Jerusalem, which would have separate municipalities for the Arab and Jewish sectors, was to be its capital. Elaborating the unanimous recommendation cited above, the minority report proposed a functional form of internationalization;
"In the interest of preserving, protecting and caring for Holy Places ... in Jerusalem, Bethlehem, Nazareth and elsewhere in Palestine, a permanent international body for the supervision and protection of the Holy Places in Palestine shall be created ... by the United Nations ...". 7/
The majority report recommended the partition of Palestine into an Arab State and a Jewish State, and the territorial internationalization of the Jerusalem area as an international enclave in the Arab State in Palestine (see maps at annexes II and III). These recommendations were approved by the General Assembly in its resolution 181 (II) on 29 November 1947. Often referred to as the "partition resolution", it envisaged a demilitarized Jerusalem as a corpus separatum under the aegis of the United Nations Trusteeship Council, which would draft a statute o Jerusalem and appoint a Governor. A legislature would be elected by universal adult suffrage. The Statute would remain in force for 10 years, and then be re-examined by the Trusteeship Council, with citizen participation through a referendum.
The principal clauses relating to Jerusalem read;
"The City of Jerusalem shall be established as a corpus separatum under a special international regime and shall be administered by the United Nations ... Trusteeship Council ...
"The Trusteeship Council shall ...elaborate and approve a detailed Statute of the City...
"... A Governor of the City of Jerusalem shall be appointed by the Trusteeship Council and shall be responsible to it.
"... The City of Jerusalem shall be demilitarized; its neutrality shall be declared and preserved ...
"...the Governor shall organize a special police force of adequate the members of which shall be recruited outside of Palestine ..
"... A Legislative Council, elected by adult residents of the city irrespective of nationality on the basis of universal and secret suffrage and proportional representation, shall have powers of legislation and taxation. No legislative measures shall, however, conflict or interfere with the provisions which will be set forth in the Statute of the City ...
"... The Statute shall provide for the establishment of an independent judiciary system, including a court of appeal. All the inhabitants of the City shall be subject to it.
"... Holy Places (a) Existing rights in respect of Holy Places and religious buildings or sites shall not be denied or impaired. (b) Free access to the Holy Places and religious buildings or sites and the free exercise of worship shall be secured in conformity with existing rights ...".
The principle of upholding "existing rights" in the Holy Places thus was maintained in the partition resolution.
Other articles stipulated that the provisions cited above
"... shall be under the guarantee of the United Nations, and no modification shall be made in them without the assent of the General Assembly ...
"Any dispute relating ... to this declaration ... shall be referred, at the request of either party, to the International Court of Justice, unless the parties agree to another mode of settlement".
The Arab States and the Arab Higher Committee for Palestine, however, rejected the resolution, on the grounds that the United Nations was exceeding its competence by proposing the partitioning of Palestine.* The Zionist Organization, which had insisted that a Jewish State should be established in Palestine in its entirety, reluctantly accepted the partition formula. The plan was never fully implemented.
This division of Jerusalem was confirmed by an Israel-Jordan cease-fire agreement of 30 November 1948 (which allowed convoys to an Israeli contingent in occupation of Mount Scopus in the Jordanian sector).
The de facto division of the city was further formalized by an Israel-Jordan Armistice Agreement of 3 April 1949. This agreement had no effect on the partition resolution's provisions for the internationalization of Jerusalem.
* For further elaboration on the basis of the Arab position on the partition plan, consult The Origins and Evolution of. the Palestine Problem, Part II (United Nations Publication, Sales No. E.78.1.20)t pp. 33-36.
Both the Israel-Jordan agreements were concluded through the United Nations Mediator for Palestine, appointed by the General Assembly. The first Mediator Count Bernadotte, before his assassination by an Israeli terrorist group, had reiterated the importance of internationalization.
"The City of Jerusalem ... should be treated separately and should be placed under effective United Nations control with maximum feasible local autonomy for the Arab and Jewish communities, with full safeguards for the protection of the Holy Places and sites, and free access to them, and for religious freedom." 8/
Another General Assembly resolution, 194 (III) of 11 December 1948, again, reaffirmed the principles of internationalization and "existing rights", resolving;
"... that Holy Places - including Nazareth - religious buildings and sites in Palestine should be protected and free access to them assured, in: accordance with existing rights and historical practice} ..."
The resolution established a Conciliation Commission for Palestine (CCP), which was instructed, inter alia.
"... to present to the fourth regular session of the General Assembly detailed proposals for a permanent international regime for the Jerusalem area which will provide for the maximum local autonomy for distinctive groups consistent with the special international status of the Jerusalem area ..."
The resolution contained far-reaching provisions for the wider Palestine issue, and the Arab States did not accept it. Israel, on the other hand, also ignored the United Nations resolution and moved to absorb into its jurisdiction that part of Jerusalem it had occupied. In September 1948 the Israeli Supreme Court was established in New Jerusalem} in February 1949 the Knesset assembled and the President took the oath of office in he city.
Israel's intentions towards Jerusalem became a major focus of the United Nations discussion on Israel's application for membership.
The representative of Israel gave an assurance that.
"The Government of Israel advocated the establishment by the United Nations of an international regime for Jerusalem concerned exclusively with the control and protection of Holy Places, and would cooperate with such a, regime.
"It would also agree to place under international control Holy Places in parts of its territory outside Jerusalem, and supported the suggestion that guarantees would be given for the protection of the Holy Places in Palestine and for free access thereto." 9/
Delegates, however, raised sharp questions on a statement in a report from the conciliation Commission for Palestine that on the subject of Jerusalem the Israeli Prime Minister had declared that.
"For historical, political and religious reasons, the State of Israel could not accept the establishment of an international regime for the city of Jerusalem." 10/
The representative of Israel said that this statement had been taken out of context and that in actual fact Israel would.
"make proposals [to] the General Assembly for defining the future juridical status of Jerusalem ... [which] would differentiate between the powers of an international regime with respect to the Holy Places and the aspiration of the Government of Israel to become recognized as the sovereign authority in Jerusalem ..." 11/
Israel's assurances in regard of the implementation of General Assembly resolutions 181 (II) and 194 (III) were specifically mentioned in the General Assembly's resolution admitting Israel to: the United Nations. 12/ It is relevant to note that Israel gave these assurances even though both resolutions had not been accepted by the Arab States, and it can therefore be argued that Israel's ranees were not contingent on reciprocal Arab action. Between them these resolutions maintained the principle of the internationalization of Jerusalem and the maintenance of "existing rights" and historical practice.
Nevertheless, the Knesset proclaimed Jerusalem the capital of Israel on 23 January 1950 and by 1951 Israeli ministries had moved into the New City.
Jordan also took steps to extend its jurisdiction to the West Bank and the Old City in Jerusalem despite the disapproval of the Arab League. 13/
VI. The proposals of the Conciliation Commission for Palestine for an international regime for Jerusalem
"The United Nations was continuing its efforts to establish an international regime in Jerusalem. The Conciliation Commission for Palestine (CCP) established by resolution 194 (III), composed of representatives of France, Turkey and the United States of America, set up a Special Committee on Jerusalem. Discussions with Arab and Israeli authorities brought indications that the Arab countries, notwithstanding their initial rejection of resolutions 181 (II) and 194 (III), supported the principle of the internationalization of the city of Jerusalem, but that this was no longer acceptable to Israel. The CCP reported;
"During the Commission's conversations in Beirut with the Arab delegations, the latter showed themselves, in general, prepared to accept the Principle of an international regime for the Jerusalem area, on condition that the United Nations should be in a position to offer the necessary guarantees regarding the stability and permanence of such a regime.
"From the beginning, however, the Government of Israel, while recognizing that the Commission was bound by General Assembly resolution 194 (III), declared itself unable to accept the establishment of an international regime for the city of Jerusalem) it did, however, accept without reservation an international regime for, or the international control of, the Holy Places in the City. 14/
Faced with these positions and the de facto partition of Jerusalem, where the original United Nations aim of territorial internationalization faced resistance ,the CCP inclined toward the idea of a limited internationalization of only the Holy Places, as proposed by Israel. Though the principle was akin to that presented in the UNSCOP minority report, a critical differentiation was that this earlier plan envisaged a united Palestine with Jerusalem as its capital, while the CCP sought to apply it in a partitioned Palestine and a divided Jerusalem. Unlike the Trusteeship Council, which had been charged solely with drafting a statute for an internationalized Jerusalem, the CCP's mandate covered the wider Palestine issue. In its discussions with the CCP Israel had made clear its desire to annex all the additional area it had occupied during the 1948 war, with the additional incorporation of the Gaza strip, while disclaiming any such intentions towards the West Bank. 15/ These demands, although rejected by the Arab States, presented the CCP with a situation where the actual line of control between Israel and Jordan in Palestine ran through Jerusalem, and the CCP's proposals for the city seemed to conform to this situation. A CCP report summarized its proposals, detailed in a draft Instrument, as follows:
"The principal aim of the draft Instrument was to reconcile the requirement of the General Assembly for 'maximum local autonomy in Jerusalem with the interests of the international community in a special status for the City. To this end, the draft Instrument provided that the Jerusalem area should be divided into an Arab and a Jewish zone, within which the local authorities were empowered to deal with all matters not of international concern. These were specifically reserved to the authority of the United Nations Commissioner.
"The United Nations Commissioner, to be appointed by and responsible to the General Assembly, was charged with ensuring the protection of and free access to the Holy Places) supervising the permanent demilitarization and neutralization of the Jerusalem area; and ensuring the protection of human rights and of the rights of distinctive groups. The draft Instrument provided for the establishment of a General Council, composed of representatives from the Arab and Jewish zones, and presided over by the Commissioner, to co-ordinate matters of common interest to the two parts of the City. The Council would in practice have only advisory and consultative functions with the authorities of the Arab and Jewish zones of the City. The draft Instrument also provided for an international tribunal and a mixed tribunal, which were not, however, designed to function as substitutes for the judicial organization already established in the two zones. The international tribunal, would ensure that the provisions of the plan were respected by the United Nations authorities in Jerusalem and by the authorities of the two parts of the area the mixed tribunal would ensure impartial treatment for Arabs called to justice in the Jewish part of the Jerusalem area or for Jews called to justice in the Arab part, eventualities which would be likely to occur when normal intercourse between the two parts and visits and pilgrimages to the Holy Places situated on either side of the demarcation line were resumed. The draft instrument also contained detailed provisions for the protection of, and free access to, the Holy Places, religious buildings and sites inside the Jerusalem area and authorized the United Nations Commissioner to supervise the "implementation of undertakings which might be made by the States concerned regarding Holy Places, religious buildings and sites of Palestine situated outside the Jerusalem area. 16/
These CCP proposals, giving the appearance of conforming to a fait accompli of a divided Jerusalem, brought reactions strong enough to lead the CCP to issue an explanatory statement. 17/ This failed to remove the impression that the proposals would consolidate the division of Jerusalem. In effect, the General Assembly's requirement that Jerusalem be a corpus separatum under an international regime was net. The CCP proposals were not debated in the General Assembly and, in effect lapsed.
The Council had prepared, in April 1948, a draft statute for the nationalization of Jerusalem, 18/ but the actuality of the situation had made impossible any consideration of the implementation of the Council's proposals. In December 1949 the General Assembly, referring to its two previous major resolutions, reiterated the principle of the internationalization of Jerusalem and requested the Trusteeship Council to finalize a statute, specifying that the Council "shall not allow any actions taken by any interested government or governments to divert it from adopting and implementing the statute of Jerusalem". 19/ Israel, by then a United Nations member, voted against this resolution, its assurances regarding the principle of internationalization notwithstanding.
The Trusteeship Council invited views from Israel and Jordan, which were summarized as follows:
"The representative of the Hashemite Kingdom of Jordan stated that his Government desired to reiterate ... that it would not discuss any plan for the internationalization of Jerusalem. The representative of Israel stated that, while opposed to the internationalization of the Jerusalem area proposed in the draft Statute, his Government remained willing to accept the principle of direct United Nations responsibility for the Holy Places, to participate in discussions on the form and content of a Statute for the Holy Places, and to accept binding declarations or agreements ensuring religious freedom and full liberty for the pursuit of religious education and the protection of religious institutions." 20/
On 4 April 1950 the Council approved a statute 21/ still conforming to the territorial internationalization plan of the partition resolution of 29 November 1947. Jordan, still not a United Nations Member, refused further comment and Israel maintained that, in the changed circumstances since that resolution, it would accept an international regime only for the Holy Places within the Walled City and its immediate environs. 22/
Faced with this situation the Trusteeship Council's proposals lapsed for all practical purposes.
The General Assembly had reaffirmed the principle of the maintenance of "existing rights" and of an internationalized corpus separatum status for Jerusalem, despite its de facto division between Israeli occupation and Jordan. The ultimate determination of the status of the city was unaffected by the Israel-Jordan armistice agreement of 1949. The change in the position of the Arab States (in the CCP talks) to accept the internationalization of Jerusalem had little effect on Israel's determination to hold its territorial gains in the city These developments combined to prolong the partition of Jerusalem.
After Israel declared Jerusalem its capital, the Old City being part of the West Bank was united with Jordan in accordance with the Act of Unity of 24 April 1950. However, the Jordanian legislation indicated that this move did not prejudice the final settlement of the Palestine issue. 23/ In 1955 Jordan became a Member of the United Nations.
The division of Jerusalem from 1950 to 1967 between two hostile States, in place of the internationalization called for by the General Assembly, brought certain consequences.
The armistice agreement between Israel and Jordan included the principle free access to the Holy Places, for which detailed arrangements were to be finalized by a special committee. The Arab Governments issued the following statement.
"The Governments of Egypt, the Hashemite Kingdom of Jordan, Lebanon and Syria undertake to guarantee freedom of access to the Holy Places, to religious buildings and sites situated in the territory placed under their authority by the final settlement of the Palestine problem, or pending that settlement, in the territory at present occupied by them under Armistice Agreements, and pursuant to this undertaking will guarantee rights of entry and of transit to ministers of religion, pilgrims and visitors, without distinction as to nationality or faith, subject only to considerations of national security, all the above in conformity with the status quo prior to 14 May 1948." 24/
However, in the discussions conducted by the Conciliation Commission for Palestine, territorial questions became directly linked with the question of the return of refugees, and the failure to resolve one led to the inability to resolve the other. The CCP's efforts to mediate the impasse were fruitless.
As the division of Jerusalem became protracted, and its two parts became progressively more integrated into two hostile countries, the political barriers consolidated. The psychological rift also deepened as an essentially Arab society continued its traditions in East Jerusalem, while West Jerusalem progressively became more Europeanized.
United Nations efforts to secure the internationalization of Jerusalem faded after 1950, and the international acquiescence in the status quo of a divided Jerusalem was ended by the Israeli occupation of East Jerusalem in 1967. (See map at annex IV.)
The immediate extension, through legislative measures, of Israeli jurisdiction to "Eretz Israel" and to the newly occupied parts of the city 26/ confirmed this intent of annexation. Possession was further consolidated by more concrete measures, in particular the razing of the historic Haghrabi quarter before the Wailing Wall to construct a plaza.
Israel's failure to respond to United Nations demands to refrain from consolidating its seizure of Jerusalem brought further evidence of Israel's intentions. Israel refused to accept the Security Council's resolution that the Geneva Conventions of 1949 were applicable in areas under military occupation. 27/ Israel's refusal to heed two resolutions of the General Assembly specifically directed to the status of Jerusalem left little doubt of Israeli intent of annexation.
Resolution 2253 (ES-V) of 4 July 1967 read:
"The General Assembly,
"Deeply concerned at the situation prevailing in Jerusalem as a result of the measures taken by Israel to change the status of the City,
"1. Considers that these measures are invalid;
"2. Calls upon Israel to rescind all measures already taken and to desist forthwith from taking any action which would alter the status of Jerusalem."
Resolution 2254 (ES-V) of 14 July 1967 read:
"Taking note with the deepest regret and concern of the non-compliance by Israel with resolution 2253 (ES-V),
"1. Deplores the failure of Israel to implement General Assembly resolution 2253 (ES-V);
"2. Reiterates its call to Israel in that resolution to rescind all measures already taken and to desist forthwith from taking any action which would alter the status of Jerusalem;
"3. Requests the Secretary-General to report to the Security Council the General Assembly on the situation and on the implementation of the present resolution."
The references in these resolutions to "the status of Jerusalem" could mean only the status defined in the fundamental General Assembly resolution on the partition of Palestine, i.e., a corpus separatum under an international regime.
Both resolutions had received overwhelming support, with no dissent, 28/ but were ignored by Israel, which moved its Supreme Court to East Jerusalem, among other measures to extend Israeli law to the newly occupied territories.
The Secretary-General's report was based on information gathered by his Personal Representative in Jerusalem, Ambassador Thalmann of Switzerland, whose' terms of reference were limited only to obtaining information. Excerpts from the report presented in September 1967 describe Israeli aims;
"33. In the numerous conversations which the Personal Representative had with Israel leaders, including the Prime Minister and the Minister for Foreign Affairs, it was made 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 statutory bases for this had already been created, and the administrative authorities had started to apply Israel laws and regulations in those parts of the city ...
"35. The Israel authorities stated unequivocally that the process of integration was irreversible and not negotiable." 29/
"The Security Council,
"Recalling General Assembly resolutions 2253 (ES-V) of 4 July 1967 and 2254 (ES-V) of 14 July 1967,
"Noting that since the adoption of the above-mentioned resolutions Israel has taken further measures and actions in contravention of those resolutions,
"Bearing in mind the need to work for a just and lasting peace,
"Reaffirming that acquisition of territory by military conquest is ^'inadmissible,
"1. Deplores the failure of Israel to comply with the General Assembly and resolutions mentioned above;
"2. Considers that all legislative and administrative measures and actions taken by Israel, including expropriation of land and properties thereon, which tend to change the legal status of Jerusalem are invalid and cannot change that status;
"3. Urgently calls upon Israel to rescind all such measures already taken and desist forthwith from taking any further action which tends to change the status of Jerusalem;".
Resolution 267 (1969) of 3 July 1969 reads
"Noting that since the adoption of the above-mentioned resolutions Israel has taken further measures tending to change the status of the City of Jerusalem,
"Reaffirming the established principle that acquisition of territory by military conquest is inadmissible,
"1. Reaffirms its resolution 252 (1968);
"2. Deplores the failure of Israel to show any regard to the resolutions of the General Assembly and the Security Council mentioned above;
"3. Censures in the strongest terms all measures taken to change the status of the City of Jerusalem;
"4. Confirms that all legislative and administrative measures and actions taken by Israel which purport to alter the status of Jerusalem, including expropriation of land and properties thereon, are invalid and cannot change that status;
"5. Urgently calls once more upon Israel to rescind forthwith all measures taken by it which may tend to change the status of the City of Jerusalem, and in future to refrain from all actions likely to have such an effect;
"6. Requests Israel to inform the Security Council without any further delay of its intentions with regard to the implementation of the provisions of the present resolution;
These references to "the legal status of Jerusalem" by the Security Council again could mean only the status of the internationalized corpus separatum defined in the partition resolution, thus maintaining the validity of this status.
Following the outbreak of a major fire in August 1969, evidently by arson, in the Al-Aqsa Mosque, one of the holiest places in Islam, the Security Council the strong step of condemning Israel for flouting United Nations resolutions on Jerusalem. Resolution 271 (1969) of 15 September 1969 reads;
"Grieved at the extensive damage caused by arson to the Holy Al-Aqsa Mosque in Jerusalem on 21 August 1969 under the military occupation of Israel,
"Mindful of the consequent loss to human culture,
"Having heard the statements made before the Council reflecting the universal outrage caused by the act of sacrilege in one of the most venerated shrines of mankind,
"Recalling its resolutions ... and the earlier General Assembly resolutions ... concerning measures and actions by Israel affecting the status of the City of Jerusalem,
"1. Reaffirms its resolutions 252 (1968) and 267 (1969);
"2. Recognizes that any act of destruction or profanation of the Holy Places, religious buildings and sites in Jerusalem or any encouragement of, or connivance at, any such act may seriously endanger international peace and security;
"3. Determines that the execrable act of desecration and profanation of the Holy Al-Aqsa Mosque emphasizes the immediate necessity of Israel's desisting from acting in violation of the aforesaid resolutions and rescinding forthwith all measures and actions taken by it designed to alter the status of Jerusalem;
"4. Calls upon Israel scrupulously to observe the provisions of the Geneva Conventions and international law governing military occupation and to refrain from causing any hindrance to the discharge of the established functions of the Supreme Moslem Council of Jerusalem, including any co-operation that Council may desire from countries with predominantly Moslem population and from Moslem communities in relation to its plans for the maintenance and repair of the Islamic Holy Places in Jerusalem;
"5. Condemns the failure of Israel to comply with the aforementioned resolutions and calls upon it to implement forthwith the provisions of these resolutions ..."
Yet another Security Council resolution reaffirmed the earlier resolutions on the status of Jerusalem, and declared Israeli actions and legislation in respect of Jerusalem totally invalid". Resolution 298 (1971) of 25 September 1971 reads in part:
"Recalling its resolutions ... and the earlier General Assembly resolutions concerning measures and action by Israel designed to change the status of the Israeli-occupied section of Jerusalem,
"Having considered the letter of the Permanent Representative of Jordan on the situation in Jerusalem and the reports of the Secretary-General, and having heard the statements of the parties concerned on the question,
"Reaffirming the principle that acquisition of territory by military conquest is inadmissible,
"Noting with concern the non-compliance by Israel with the above-mentioned meetings,
"Noting with concern also that since the adoption of the above-mentioned resolutions Israel has taken further measures designed to change the status and character of the occupied section of Jerusalem;
"2. Deplores the failure of Israel to respect the previous resolutions adopted by the United Nations concerning measures and actions by Israel purporting to affect the status of the City of Jerusalem;
"3. Confirms in the clearest possible terms that all legislative and administrative actions taken by Israel to change the status of the city of Jerusalem, including expropriation of land and properties/ transfer of population and legislation aimed at the incorporation of the occupied section, are totally invalid and cannot change that status;
"4. Urgently calls upon Israel to rescind all previous measures and actions and to take no further steps in the occupied section of Jerusalem which may purport to change the status of the City or which would prejudice the rights of the inhabitants and the interests of the international community, or a just and lasting peace."
The sweeping language of this resolution appears to confirm an intent to maintain the status of Jerusalem as a corpus separatum.
Israel's official reaction to this resolution clearly reflected its intention regarding the status of Jerusalem:
"The Government of Israel considers that there was no justification whatever for raising the issue of Jerusalem in the Security Council, nor for the resolution adopted. The Government of Israel will not enter into any discussion with any political organ on the basis of this resolution. Israel's policy on Jerusalem will remain unchanged. Israel will continue to ensure the development of the city for the benefit of all its inhabitants, the respect of the religious rights of all communities, and the scrupulous protection of the Holy Places of all faiths and the freedom of access to them. This policy has contributed to the development of fruitful relations between all sections of the population." 30/
Bearing in mind the specific status of Jerusalem and the need for protection and preservation of the unique and spiritual dimension of the Holy Places in Jerusalem, in June 1980, in reaction to proposed legislative action taken by Israel to make a united Jerusalem its capital, the Security Council considered the status of Jerusalem and adopted resolution 476 (1980), by which the Security Council deplored the persistence of Israel, in changing the physical character, demographic composition, institutional structure and the status of the Holy City. The Security Council was gravely concerned at the legislative steps initiated in the Israeli Knesset with the aim of changing the character and the status of Jerusalem. Operative paragraphs of the resolution read as follows:
"1. Reaffirms the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem;
"2. Strongly deplores the continued refusal of Israel, the occupying Power, to comply with the relevant resolutions of the Security Council and the General Assembly;
"3. Reconfirms that all legislative and administrative measures and actions is taken by Israel, the occupying Power, which purport to alter the character and status of the Holy City of Jerusalem have no legal validity and constitute a flagrant violation of the Fourth Geneva Convention relative to the protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;
"4. Reiterates that all such measures which have altered the geographic, demographic and historical character and status of the Holy City of Jerusalem are null and void and must be rescinded in compliance with the relevant resolutions of the Security Council;
"5. Urgently calls on Israel, the occupying Power, to abide by this and previous Security Council resolutions and to desist forthwith from persisting in the policy and measures affecting the character and status of the Holy City of Jerusalem;
6. Reaffirms its determination in the event of non-compliance by Israel with this resolution, to examine practical ways and means in accordance with relevant provisions of the Charter of the United Nations to secure the full implementation of this resolution."
After the enactment of the "Basic Law" by Israel, the Security Council adopted resolution 478 (1980). In this resolution, the Security Council called upon those States that had established diplomatic missions in Jerusalem to withdraw their missions from the Holy City. As a result, 13 countries withdrew their missions from Jerusalem.
Resolution 478 (1980) reads in part:
"The Security Council, "Recalling its resolution 476 (1980),
"Reaffirming again that the acquisition of territory by force is inadmissible,
"Deeply concerned over the enactment of a 'basic law' in the Israeli Knesset proclaiming a change in the character and status of the Holy City of Jerusalem, with its implications for peace and security,
"Noting that Israel has not complied with resolution 476 (1980),
"Reaffirming its determination to examine practical ways and means, accordance with the relevant provisions of the Charter of the United Nations to secure the full implementation of its resolution 476 (1980), in the event of non-compliance by Israel,
"1. Censures in the strongest terms the enactment by Israel of the "basic law" on Jerusalem and the refusal to comply with relevant Security; Council resolutions;
"2. Affirms that the enactment of the "basic law" by Israel constitutes a violation of international law and does not affect the continued application of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, in the Palestinian and other Arab territories occupied since June 1967, including Jerusalem;
"3. Determines that all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the recent 'basic law' on Jerusalem, are null and void and must be rescinded forthwith;
"4. Affirms also that this action constitutes a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;
"5. Decides not to recognize the "basic law" and such other actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem and calls upon;
"(a) All Member States to accept this decision;
"(b) Those States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City;".
United Nations resolutions since 1969, emanating mainly from the General Assembly, have been in terms dealing with the wider Middle East situation arising out of the continued Israeli occupation of Arab territories since June 1967, 31/ basing themselves on provisions of Security Council resolution 242 (1967).
The mission of the Secretary-General's Special Representative, appointed in compliance with Security Council resolution 242 (1967) to negotiate a Middle East agreement, was deeply concerned with the status of Jerusalem as one of the most fundamental questions in the Middle East dispute, and its failure left the issue unresolved.
In resolution 35/169 E, of 15 December 1980, the General Assembly also censured in the strongest terms the enactment by Israel of the "Basic Law" on Jerusalem which constituted a violation of International Law and did not affect the continued application of the Geneva Convention of 1949 in the Palestinian and other Arab territories occupied since June 1967, including Jerusalem. The General Assembly further determined that all legislative and administrative measures and actions taken by Israel, which altered or purported to alter the character and status of Jerusalem, particularly the "Basic Law" and the proclamation of Jerusalem as the capital of Israel, were null and void and must be rescinded forthwith.
The operative paragraphs of resolution 35/169 E read:
"1. Censures in the strongest terms the enactment by Israel of the 'Basic Law' on Jerusalem;
"2. Affirms that the enactment of the 'Basic Law' by Israel constitutes a violation of international law and does not affect the continued application of the Geneva Convention relative to the Protection of Civilian Persons in time of War, of 12 August 1949, in the Palestinian and other Arab territories occupied since June 1967, including Jerusalem;
"3. Determines that all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and, in particular, the recent 'Basic Law' on Jerusalem and the proclamation of Jerusalem as the capital of Israel, are null and void and must be rescinded forthwith;
"4. Affirms also that this action constitutes a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;
"5. Decides not to recognize that 'Basic Law' and such other actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem and calls upon all States, specialized agencies and other International organizations to comply with the present resolution and other relevant resolutions and urges them not to conduct any business which is not in conformity with the provisions of the present resolution and the other relevant resolutions."
In resolution 36/120 E of 10 December 1981, the General Assembly deplored the persistence of Israel in changing the physical character, the demographic composition, the institutional structure and the status of the Holy City of Jerusalem. It determined once again that all legislative and administrative measures and actions taken by Israel, which have altered or purport to alter the character and status- of the Holy City of Jerusalem, and, in particular, the so-called "Basic Law" and the proclamation of Jerusalem as the capital of Israel, were null and void and must be rescinded forthwith.
Despite the fact that the United Nations had condemned these actions and declared such actions null and void, Israel has persisted in its policy of establishing settlements in the occupied Palestinian and other Arab territories, including Jerusalem. It annexed the Holy City, and has proceeded with the enlargement of the municipal boundaries of the Holy City by the incorporation of considerable areas of considerable areas of land. By the end of 1982 Israel, in pursuance of the construction of settlements, has established 26 such settlements in the areas bounded by the city/district of Jerusalem. Moreover, hundreds of buildings have been expropriated thus rendering homeless at least 6,500 inhabitants.
Since 1967, Israelis have committed various acts of desecration against both Muslim and Christian Holy Places.
For example, Israeli attacks on the Haram Al-Sherif of the Al-Aqsa Mosque and the Dome of the Bock also began during the latter part of 1967, by early 1968 excavation work around the Al-Aqsa Mosque from the West and South, which, as a result of the extension of the excavations through a tunnel, penetrated underneath the Mosque and later by attempts of infiltration, on the pretext of holding prayers in the Mosque while the real purpose has been to impose the Jewish fait accompli on the Haram Al-Sherif. Assaults have also been carried out by setting fire to the Mosque on 21 August 1969 and through armed intrusion in April 1982 and the attempt to blow up the Mosque in March 1983.
The Committee on the Exercise of the Inalienable Rights of the Palestinian People in 1976 considered the question of the status of Jerusalem. In its report, it stated;
"The members of the Committee stressed the special significance of the city of Jerusalem and its holy shrines to three major religions of the world - Islam, Judaism and Christianity. The international status of the city of Jerusalem, as provided for in General Assembly resolution 181 (II), was| recalled.
"A suggestion was made that the administration of the city of Jerusalem should consist of two main organs: (a) a 45-member legislative body in which the three main religious communities of the city would be equally represented, (b) an executive organ led by a United Nations commissioner appointed by the Secretary-General with the consent of the Security Council.
"Several delegations were of the view that the question of the city of Jerusalem was beyond the mandate of the Committee. According to one view; during the first phase of the proposed programmes of implementation of the' inalienable rights of the Palestinian people, Jerusalem should be restored to the situation which had prevailed before the war of June 1967. Its future status could be considered after the establishment of an independent Palestinian entity.
"It was felt in the Committee that any solution of the delicate problem of Jerusalem should be sought within the framework of the inalienable rights of the Palestinian people and the religious characteristics of the city..."32/
The committee thus appears to take the view that the question of the future status of Jerusalem would have to be approached in the framework of an overall Middle East settlement, in which the establishment of an independent Palestinian entity would be a central element.
(a) During the period 1950-1967, despite the international acquiescence in the division of the City of Jerusalem, the General Assembly continued to uphold the principle of the internationalization of Jerusalem as a corpus separatum in terms of its resolutions 181 (II) and 194 (III).
(b) The resolutions of the General Assembly and Security Council in relation to Jerusalem following the occupation of the entire city of Jerusalem by Israel in June 1967 also maintained this original principle of internationalization. Further, they required Israel to withdraw from territories occupied during the conflict, and to rescind all measures taken, as well as to refrain from taking further measures, to alter the status of Jerusalem. Thus, it would appear that the United Nations since 1947 has maintained the principle that the legal status of Jerusalem is that of a corpus separatum under an international regime.
(c) Israel's rejection of these resolutions, which have declared its actions and legislation in Jerusalem invalid and illegal, in no way deprives the resolutions of their own validity.
(d) Israel's actions and legislation have not been acquiesced in by the majority of the international community. This was reflected in the action of 13 countries, who withdrew their missions from Jerusalem following the adoption of resolution 478 (1980).
(e) The question of the status of Jerusalem can be finally resolved only in the context of a general Middle East settlement, which would need to take into account the General Assembly's resolutions on the rights of the Palestinian people.
These factors, inter alia, would be of importance in the resolution of the status of the City of Jerusalem and of the Holy Places.
1/ British Government; Report of the Commission appointed by His Majesty's Government in the United Kingdom of Great Britain and Northern Ireland, with the approval of the Council of the League of Nations, to determine the rights and claims of Moslems and Jews in connection with the Western or Wailing Wall at Jerusalem, (London, H.M.S.0., 1931) p. 57. (Note; The members of the Commission were from Sweden, Switzerland and the Netherlands).
2/ Palestine Government; Official Gazette of the Government of Palestine, Jerusalem, 8 June 1931.
3/ British Government; Palestine Royal Commission.- Report Cmd. 5479. (London, H. M.S. 0. , 1937) pp. 131, 370.
4/ Ibid., pp. 381-382.
5/ United Nations.* Official Records of the General Assembly, Second Session, Supplement No. 11 (A/364, UNSCOP report), vol. I, p. 54.
6/ Ibid. , p. 44. 7/ Ibid., p. 63.
8/ Official Records of the General Assembly, Third Session, Supplement, No. 11 (A/648, Progress report of the United Nations Mediator on Palestine), p. 18.
9/ Official Records of the General Assembly, Third Session, Part II, Ad Hoc Political Committee, 45th meeting, p. 236.
10/ Ibid., 46th meeting, p. 254.
12/ General Assembly resolution 273 (III) of 11 May 1949.
13/ On 24 April 1950 a general election was held to choose a new Jordanian Parliament with equal representation from the East and the West Banks. Both houses of the Parliament meeting in Amman adopted a resolution formally uniting the Hashemite Kingdom of Jordan and those areas of Arab Palestine where the Arab legion had entered during the war with Israel and which had remained under Jordanian control since the armistice between Israel and Jordan. Article 2 of the resolution provides. "Emphasis on the preservation of the complete Arab rights in Palestine and on the defence of those rights with all the legitimate means, with full justice and with no prejudice to the final settlement of its just cause within the framework of the national aspirations, Arab co-operation and international justice.'
14/ Official Records of the General Assembly, Fifth Session, Supplement 18 (A/1367/Rev. 1) p. 10.
15/ Ibid., pp. 19-20.
16/ Ibid., pp. 10-11. The detailed instrument appears in document A/973.
17/ Document A/973 Add.I.
18/ Document T/118/Rev.2 of 31 April 1948.
19/ General Assembly resolution 303 (IV) of 4 December 1949.
20/ Official Records of the General Assembly, Fifth Session, Supplement No. 9 A/1286; Question of an international regime for the Jerusalem area and protection if the Holy Places) p. 2.
21/ Ibid., p. 19.
22/ Ibid., pp. 2, 32-33.
23/ New York Times, 25 April 1950.
24/ Document S/PV.2126, 14 March 1979, pp. 33-35.
25/ General Dayan. Facts on File, vol. XXVII, 7 June 1967.
26/ The Law and Administration Ordinance (Amendment No. 11) Law, 5727-1967 and the Municipalities Ordinance (Amendment No. 6) Law 5727.
27/ Security Council resolution 237 (1967) of 14 June 1967.
28/ Resolution 2253 (ES-V): 99 votes in favour, 0 against, 20 abstentions; resolution 2254 (ES-V) 99 votes in favour, 0 against, 18 abstentions.
29/ Document S/8146, 12 September 1967, (Report of the Secretary-General under General Assembly resolution 2254 (ES-V) relating to Jerusalem), paras. 26, 27, 33, 35.
30/ Government of Israel.- press release of 28 September 1971.
31/ These include Security Council resolution 338 (1973) of 22 October 1973 and the following General Assembly resolutions; 2628 (XXV) of 7 December 1970, 2799 (XXVI) of 13 December 1971, 2949 (XXVII) of 8 December 1972, 3414 (XXX) of 5 December 1975, 31/61 of 9 December 1976, 32/20 of 25 November 1977, 33/29 of 7 November 1978. The status of the inhabitants of East Jerusalem is also referred to in the General Assembly resolutions since 1970 approving the reports of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the population of the Occupied Territories.
32/ United Nations: Official Records of the General Assembly, Thirty-first Session, Supplement No. 35 (A/31/35) p. 8.