[News] The Legal Status of Jerusalem

[Anti-Imperialist News]

http://www.addameer.org/publications/legal-status-jerusalem

*The Legal Status of Jerusalem*

December 7,2017
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President Trumps statement last night represents a continuation, or 
potentially culmination, of the Israeli policy of creating ‘facts on the 
ground’. From the American government, it is an official stamp of 
approval for the settlement enterprise, considering that East Jerusalem 
is occupied territory, and a green light for continuing disregard of 
international law. This brief factsheet will present the legal status of 
Jerusalem, and a brief analysis of what this declaration means for the 
future.

/Historical Overview /

As part of the partition plan of 1947, Resolution 181(II) of the UN 
General Assembly (GA), Jerusalem was to be an internationally 
administered zone which did not technically belong to the Palestinian 
state or the Zionist state. It was to be a shared cultural space, 
/corpus separatum/, representing its importance to three Abrhamic 
religions and internationally.

Following the Zionist occupation of West Jerusalem, and the Jordanian 
administration of East Jerusalem, steps were quickly taken to assert 
control over each of the newly taken areas. For the Zionist area, plans 
were made to move their capital to the part of Jerusalem occupied in 
1948. Such plans were finally realized in 1950 with a resolution passed 
by the Occupation Parliament (the Knesset) on 23 January 1950.

Following the war of 1967, the occupation authorities extended the 
municipality boundaries to East Jerusalem, and to land from an 
additional 28 villages. This resulted in an additional 7000 hectares of 
land coming under Jerusalem municipality and, therefore, direct Israeli 
legislative control amounting to /de  facto /annexation. This brought 
tens of thousands of Palestinians under direct legislative control.

On 30 July 1980, the Occupation Parliament passed 'The Jerusalem law'. 
This law changed little in terms of facts on the ground but formalized 
the annexation of Jerusalem by including its mention in the Israeli 
basic law. Much like this law, America’s recognition changes very little 
in regards to actual control over the city.

/The Law/

There are two interlocking aspects of international law defining  the 
status of Jerusalem. This is international humanitarian law (IHL), and 
international practice and norms, as represented in UN General Assembly 
(GA), Security Council (SC) resolutions, and state policy.

As part of GA Resolution 181(II), Jerusalem was to be governed by a 
trustee council for the UN. There was to be the appointment of a 
governor, and the establishment of a legislative council. This 
international regime never eventuated due to the Jordanian 
administration and Israeli occupation of the city.

That said, the inability to implement this regime did not result in an 
international acquiescence in regard to Jerusalem. The lack of 
recognition of Jerusalem as a unified capital by the majority of states, 
and their unwillingness to locate their embassies in the city, 
constituted international practice and norms surrounding its status. 
This practice, coupled with the /opinion juris/ of the International 
Court of Justice on the Apartheid Wall, provides a basis for the 
foundation of a international norm in regard to Jerusalem.

As part of the Israeli occupation, the occupied territory came under the 
regulation of the Fourth Geneva Convention. As an internationally 
recognized occupied territory, it is prohibited to annex East Jerusalem 
under Article 2(4) of the UN charter. Additionally, the extension of 
legislative control to an occupied territory is prohibited under Article 
43 of the Hague Convention, which has the status of international 
customary law, and Article 64 of the Fourth Geneva Convention. In the 
case of Jerusalem, the occupying force has used its legislative 
competence to formalize further policies of forcible transfer of a 
protected population. Such actions are grave violations of international 
humanitarian law, and constitute war crimes.

/Trump’s Declaration/

Trump’s statement regarding recognition, and the movement of the US 
Embassy does not change the status of Jerusalem. Despite the US’ power, 
the change of practice of one state is not sufficient to undermine a 
norm of international law, and is surely not sufficient to negate 
international humanitarian law.

Thus, the only ramifications of the declaration are political. It 
represents the true end of any hope of a Palestinian state with 
territorial continuity, or East Jerusalem as its capital. Most 
importantly, it is a message. It, combined with Trump’s continued 
commitment to the ‘peace process’, is meant to communicate to the 
Palestinian Authority, and people, that the will of the strong is all 
that matters.

-- 
Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 https://freedomarchives.org/
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