Ernst Frankenstein, a
British-based authority on international law in the inter-war period, made the
case for arguing the legal rights of the Jewish people to restore their
homeland by stating that they never relinquished title to their land after the
Roman conquests. For that to have happened, the Romans and their Byzantine
successors would have had to be in “continuous and undisturbed possession” of
the land with no claims being voiced. Yet Jewish resistance movements continued
for centuries, most of which were aimed at liberating Jerusalem.2
From the standpoint of
international law, the fact that the Jewish people never renounced their
historic connection to their ancestral homeland provided the basis for their
assertion of their historical rights.3 This came to be understood by those who
wrote about the Jewish legal claim to the Land of Israel , as a whole. In the Blackstone Memorial, which was
signed by Chief Justice of the U.S. Supreme Court Melville Fuller, university
presidents, and members of Congress before it was submitted to President
Benjamin Harrison in 1891, Palestine
is characterized as “an inalienable possession” of the Jewish people “from
which they were expelled by force.”4 In short, they did not voluntarily
abandon their land or forget their rights. is was most fervently expressed
through centuries of lamentation for Jerusalem ’s destruction and their constant prayer for its
restoration.
Jerusalem was the focal point for the historical connection of
the Jewish people to the Land of Israel .
That is why it is essential
to understand Israel ’s rights in Jerusalem , as they were known once before.
That is also why it is necessary to identify the arguments that have been employed in recent years with the aim of eroding those rights, and the conviction that once underpinned them, in order to protectJerusalem for future generations. In addition to the historical
rights of the Jewish people to Jerusalem that were voiced in the nineteenth century, and were
just brie y reviewed, there is a whole new layer of legal rights that Israel acquired in modern times that need to be fully
elaborated upon.
That is also why it is necessary to identify the arguments that have been employed in recent years with the aim of eroding those rights, and the conviction that once underpinned them, in order to protect
MODERN SOURCES OF ISRAEL ’S INTERNATIONAL RIGHTS IN JERUSALEM
In 1970, three years after
the 1967 Six-Day War, an article appearing in the most prestigious
international legal periodical, The American Journal of International Law,
touched directly on the question of Israel’s rights in Jerusalem.5 It became a
critical reference point for Israeli ambassadors speaking at the UN in the
immediate decades that followed and also found its way into their speeches. The
article was written by an important, but not yet well-known, legal scholar
named Stephen Schwebel. In the years that followed, Schwebel’s stature would
grow immensely with his appointment as the legal advisor of the U.S. Department
of State, and then finally when he became the President of the International
Court of Justice in the
Hague . In
retrospect, his legal opinions mattered and were worth considering very
carefully.
Schwebel wrote his article,
which was entitled “What Weight to Conquest,” in response to a statement by
then Secretary of State William Rogers that Israel was only entitled to “insubstantial alterations” in
the pre-1967 lines. The Nixon administration had also hardened U.S. policy on Jerusalem as reacted in its statements and voting patterns in
the UN Security Council. Schwebel strongly disagreed with this approach: he
wrote that the pre-war lines were not sacrosanct, for the 1967 lines were not
an international border. Formally, they were only armistice lines from 1949. As
he noted, the armistice agreement itself did not preclude the territorial
claims of the parties beyond those lines. Significantly, he explained that when
territories are captured in a war, the circumstances surrounding the outbreak
of the conflict directly affect the legal rights of the two sides, upon its
termination.
Two facts from 1967 stood out
that influenced his thinking:
First, Israel had acted in the Six-Day War in the lawful exercise
of its right of self-defense. Those familiar with the events that led to its
outbreak recall that Egypt was the party responsible for the initiation of
hostilities, through a series of steps that included the closure of the Straits
of Tiran to Israeli shipping and the proclamation of a blockade on Eilat, an
act that Foreign Minister Abba Eban would characterize as the ring of the first
shot of the war. Along Israel ’s eastern front, Jordan ’s artillery had opened fire and re-pounding civilian
neighborhoods in Jerusalem , despite repeated warnings issued by Israel .
Given this background, Israel had not captured territory as a result of aggression,
but rather because it had come under armed attack. In fact, the Soviet Union
had tried to have Israel labeled as the aggressor in the UN Security Council on
June 14, 1967, and then in the UN General Assembly on July 4, 1967. But Moscow completely failed. At the Security Council it was
outvoted 11-4. Meanwhile at the General Assembly, 88 states voted against or
abstained on the first vote of a proposed Soviet draft (only 32 states
supported it). It was patently clear to the majority of UN members that Israel had waged a defensive war.6
A second element in Schwebel’s
thinking was the fact Jordan ’s claim to legal title over the territories it had
lost to Israel in the Six-Day War was very problematic. The
Jordanian invasion of the West
Bank – and Jerusalem – nineteen years earlier in 1948 had been unlawful.
As a result, Jordan did not gain legal rights in the years that followed, given
the legal principle, that Schwebel stressed, according to which no right can be
born of an unlawful act (ex injuria jus non oritur). It should not have come as
a surprise that Jordan ’s claim to sovereignty over the West Bank was not recognized by anyone, except for Pakistan and Britain . Even the British would not recognize the Jordanian
claim in Jerusalem itself.
Thus, by comparing Jordan ’s illegal invasion of the West Bank to Israel ’s legal exercise of its right of self-defense,
Schwebel concluded that “Israel has better title” in the territory of what once was
the Palestine Mandate than either of the Arab states with which it had been at
war. He specifically stated that Israel had better legal title to “the whole of Jerusalem .”
Schwebel makes reference to
UN Security Council Resolution 242 from November 22, 1967 , which over the years would become the main source
for all of Israel ’s peace e orts, from the 1979 Egyptian Israeli Treaty
of Peace to the 1993 Oslo Accords. In its famous withdrawal clause, Resolution
242 did not call for a full withdrawal of Israeli forces from all the
territories it captured in the Six-Day War. ere was no e ort to re-establish
the status quo ante, which, as noted earlier, was the product of a previous act
of aggression by Arab armies in 1948.
As the U.S. ambassador to the UN in 1967, Arthur Goldberg,
pointed out in 1980, Resolution 242 did not even mention Jerusalem “and this omission was deliberate.” Goldberg made
the point, reacting the policy of the Johnson administration for whom he
served, that he never described Jerusalem as “occupied territory,” though this
changed under President Nixon.7 What Goldberg wrote about Resolution 242 had
added weight, given the fact that he previously had served as a Justice on the
U.S. Supreme Court.
Indeed, among the leading
jurists in international law and diplomacy, Schwebel was clearly not alone. He
was joined by Julius Stone, the great Australian legal scholar, who reached the
same conclusions. He added that UN General Assembly Resolution 181 from 1947
(also known as the Partition Plan) did not undermine Israel ’s subsequent claims in Jerusalem . True, Resolution 181 envisioned that Jerusalem and its environs would become a corpus separatum, or
a separate international entity. But Resolution 181 was only a recommendation
of the General Assembly. It was rejected by the Arab states forcibly, who
invaded the nascent State of Israel in 1948.
Ultimately, the UN’s corpus separatum
never came into being in any case. The UN did not protect the Jewish population
of Jerusalem from invading Arab armies. Given this history, it was
not surprising that Israel’s first prime minister, David Ben-Gurion, announced
on December 3, 1949, that Revolution 181’s references to Jerusalem were “null
and void,” thereby anticipating Stone’s legal analysis years later.8
There was also Prof. Elihu
Lauterpacht of Cambridge University , who for a time served as legal advisor of Australia and as a judge ad hoc of the International Court of
Justice in The Hague .
Lauterpacht argued thatIsrael ’s reunification of Jerusalem in 1967 was legally valid. 9 He explained that the
last state which had sovereignty over Jerusalem was the Ottoman Empire ,
which ruled it from 1517 to 1917.
Lauterpacht argued that
After the First World War,
the Ottoman Empire formally renounced its sovereignty over Jerusalem as well as all its former territories south of what
became modern Turkey in the Treaty of Sevres from 1920. is renunciation was confirmed by
the Turkish Republic as well in the Treaty of Lausanne of 1923. According
to Lauterpacht, the rights of sovereignty in Jerusalem were vested with the Principal Allied and Associated
Powers, which transferred them to the League of Nations .
But with the dissolution of
the League of Nations , the British withdrawal from Mandatory Palestine, and
the failure of the UN to create a corpus separatum or a special international
regime for Jerusalem , as had been intended according to the 1947 Partition
Plan, Lauterpacht concluded that sovereignty had been put in suspense or in
abeyance. In other words, by 1948 there was what he called “a vacancy of
sovereignty” in Jerusalem .
It might be asked if the
acceptance by the pre-state Jewish Agency of Resolution 181 constituted a
conscious renunciation of Jewish claims to Jerusalem back in 1947. However, according to the resolution,
the duration of the special international regime for Jerusalem would be “in the first instance for a period of ten
years.” The resolution envisioned a referendum of the residents of the city at
that point in which they would express “their wishes as to possible
modifications of the regime of the city.”10 The Jewish leadership interpreted
the corpus separatum as an interim arrangement that could be replaced. They
believed that Jewish residents could opt for citizenship in the Jewish state in
the meantime. Moreover, they hoped that the referendum would lead to the corpus
seperatum being joined to the State of Israel after ten years. 11
Who then could acquire
sovereign rights in Jerusalem given the “vacancy of sovereignty” that Lauterpacht
described? Certainly, the UN could not assume a role, given what happened to
Resolution 181. Lauterpacht’s answer was that Israel filled “the vacancy in sovereignty” in areas where
the Israel Defense Forces had to operate in order to save Jerusalem ’s Jewish population from destruction or ethnic
cleansing. The same principle applied again in 1967, when Jordanian forces
opened fire on Israeli neighborhoods and the Israel Defense Forces entered the
eastern parts of Jerusalem , including its Old City , in self-defense.
A fourth legal authority to
contribute to this debate over the legal rights of Israel was Prof. Eugene Rostow, the former dean of Yale Law School and Undersecretary of State for Political Affairs in
the Johnson administration. Rostow’s point of departure for analyzing the issue
of Israel ’s rights was that the Mandate for Palestine , which specifically referred to “the historic
connection of the Jewish people with Palestine ” providing “the grounds for reconstituting their
national home in that country.”
These rights applied to Jerusalem as well, for the Mandate did not separate Jerusalem from the other territory that was to become part of
the Jewish national home.
Rostow contrasts the other League of Nations mandates with the mandate for Palestine . Whereas the mandates for Iraq , Syria , and Lebanon served as trusts for the indigenous populations, the
language of the Palestine Mandate was entirely different. It supported the
national rights of the Jewish people while protecting only the civil and
religious rights of the non-Jewish communities in British Mandatory
Palestine.12 It should be added that the Palestine Mandate was a legal
instrument in the form of a binding international treaty between the League of
Nations, on the one hand, and Britain as the mandatory power, on the other.
Rostow argued that the
mandate was not terminated in 1947. He explained that Jewish legal rights to a
national home in this territory, which were embedded in British Mandatory
Palestine, survived the dissolution of the League of Nations and were preserved
by the United Nations in Article 80 of the UN Charter.13 Clearly, after
considering Rostow’s arguments, Israel was well-positioned to assert its rights
in Jerusalem and fill “the vacancy of sovereignty” that Lauterpacht had
described.
As Professor Stephen
Schwebel, former judge on the Hague ’s
International Court of Justice notes:
The Palestinian claim to
sovereignty over east Jerusalem under the principle of self-determination of peoples
cannot supersede the Jewish right to self-determination in Jerusalem . While Arabs constituted an ethnic majority only in
the artificial entity of “East
Jerusalem ” created by Jordan ’s illegal division of the city, the armistice lines
forming this artificial entity were never intended to determine the borders of,
or political sovereignty over, the city. Moreover, Jews constituted the
majority ethnic group in unified Jerusalem both in the century before Jordan ’s invasion, and since 1967 (the exception being
during Jordan ’s illegal occupation).
Sir Elihu Lauterpacht, an
international legal expert, scholar and director emeritus of the Lauterpacht
Centre for International Law at the University of Cambridge , details the legal justification for Israel ’s sovereignty in east Jerusalem . According to the scholar, “Jordan’s occupation of
the Old City-and indeed of the whole of the area west of the Jordan river
entirely lacked legal justification” and was simply a “de facto occupation
protected by the Armistice Agreement.” This occupation ended as a result of
“legitimate measures” of self defense by Israel , thereby opening the way for Israel as “a lawful occupant” to fill a sovereignty vacuum
left by Britain ’s withdrawal from the territory in 1948.
furthermore:
A state acting in lawful
exercise of its right of self-defense may seize and occupy foreign territory as
long as such seizure and occupation are necessary to its self-defense……Where
the prior holder of territory had seized that territory unlawfully, the state
which subsequently takes that territory in the lawful exercise of self-defense
has, against that prior holder, better title.
As Schwebel explains, “Jordan ’s seizure [in 1948] and subsequent annexation of the West Bank and the old city of Jerusalem were unlawful,” arising as they did from an
aggressive act. Jordan therefore had no valid title to east Jerusalem . When Jordanian forces attacked Jerusalem in 1967, Israeli forces, acting in self defense,
repelled Jordanian forces from territory Jordan was illegitimately occupying. Schwebel maintains that
in comparison to Jordan , “Israeli title in old (east) Jerusalem is superior.” And in comparison to the UN, which
never asserted sovereignty over Jerusalem and allowed its recommendation of a corpus separatum
to lapse and die, he sees Israel ’s claim to Jerusalem as similarly superior.
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