Defending Israel's
Legal Rights to Jerusalem
1967
In modern history, nations
are measured not by their military strength or economic performance alone, but
by their inner conviction about the justice of their cause. Forty-four years
ago, at the end of the 1967 Six-Day War, when Israeli paratroopers reached the
Western Wall and their commander, Motta Gur, announced “Har Habyit Beyadainu”
(“The Temple Mount is in our hands”), there was no doubt over the fact that
Israel had waged a just war. Overseas, Israel’s representatives in the 1960s and 1970s, like Abba
Eban and Chaim Herzog, reiterated Israel’s rights to Jerusalem before the world community, which may not have always
supported them, but at least understood Israel’s determination to defend them.
But something has happened
since those days. While the arguments they used are still relevant today, they
have been forgotten in many quarters. Therefore, Jerusalem is in a paradoxical situation. While Israel has legal rights to retain a united city as its capital,
there is a sense that its claim is being challenged more than ever. Indeed,
there are multiple arguments being sounded as to why Israel should acquiesce to Jerusalem’s re-division.
What makes this particularly
troubling is that Jerusalem, in the words of the British historian Sir 1 Martin Gilbert, has always been seen as a “microcosm”
of Jewish historical rights. In 70 CE when the Jewish people lost their
national sovereignty to the Roman
Empire, it was the fall of Jerusalem that marked the end of the Jewish state. Conversely,
when the Jewish people restored their majority in Jerusalem in the mid-nineteenth century, they did so before
reaching a majority in any other part of their ancestral homeland. Indeed,
their movement for the revival of a Jewish state was called
“Zionism,” exemplifying the
centrality of Jerusalem for the overall Jewish national movement.
Jerusalem, in short, has been the focal point of the idea of
Jewish national self-determination. 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. This 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
protect Jerusalem 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 briefly reviewed, there is a whole new layer of legal rights that Israel acquired in modern times that need to be fully
elaborated upon.
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 reflected 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 firing of the first
shot of the war. Along Israel’s eastern front, Jordan’s artillery had opened pre-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 efforts, 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. There was no effort 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, reflecting 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 that Israel’s reunification of Jerusalem in 1967 was legally valid. He explained 9 that the
last state which had sovereignty over Jerusalem was the Ottoman Empire,
which ruled it from 1517 to 1917.
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. This 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 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 12 British Mandatory Palestine. 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.
WHY DO ALL THESE LEGAL
OPINIONS MATTER?
There will be those who will
ask: What is the significance of all these legal opinions by various scholars?
Why do they matter? Are they important for establishing Israel’s legal claims in Jerusalem? International law is not like domestic law – there
is no global government that adopts legislation. So what then determines what
is legal and what is illegal? Of course there are treaties and international custom.
The Statute of the International Court of Justice in the Hague (ICJ) specifically describes “the teachings of the
most highly qualified publicists of the various nations” (Article 38) as one of
the four sources of international law upon which international courts are to
rely.
In short, what the leading
experts of international law wrote after the 1967 Six-Day War matters. When it
came to defending Israel’s rights to Jerusalem, their writings were extremely clear. Israel had rightful claims to be sovereign in Jerusalem. Of course that does not preclude the UN General
Assembly cannot legally reject Israel’s argument and denying its legal rights. Moreover, if
one compares the relative authority of what the intellectual giants of
international law wrote after the Six-Day War to non-binding resolutions of the
UN General Assembly, then the writings of Schwebel and
Lauterpacht win hands-down.
In the years that followed, Israel’s rights to preserving a united Jerusalem became axiomatic. In 1990, both houses of the U.S.
Congress adopted Senate Concurrent Resolution 106, which acknowledged that “Jerusalem is and should remain the capital of Israel.” It expressed its support for Jerusalem remaining “an undivided city.” It acknowledged that
since Jerusalem’s unification under Israel, religious freedom had been guaranteed. More Congressional
resolutions to this effect on Jerusalem were adopted in 1992 and 1995. Israel’s legal rights to Jerusalem were not even an issue. Moreover, those rights were
not just theoretical. They had strong political backing.
THE EFFORTS TO ERODE ISRAEL’S RIGHTS
However, this discussion
about the legality of Israel’s claims to a united Jerusalem raises a fundamental question. If Israel’s legal case is so strong, why is Israel’s back against the wall in the diplomatic struggle
over Jerusalem today? What happened? What has eroded Israel’s standing on this issue? Was this change caused by
skillful Palestinian diplomacy or by a shifting Israeli consensus – or both?
The defense of Israel’s rights in Jerusalem today requires first and foremost an answer to this
question.
What is undeniable is that in
the last seventeen years a number of key misconceptions about Jerusalem took hold in the highest diplomatic circles in the
West as well as in the international media. Some misconceptions were the
product of misinformation. Others were the result of deliberate efforts to
misrepresent what happened in past negotiations and to mislead the public.
Regardless of their source, these misconceptions provided the political
ammunition to those who sought to erode and undermine Israel’s standing in
Jerusalem, forcing it to consider concessions that were unthinkable twenty
years ago. Israeli foreign policy had managed to protect Jerusalem for decades, but the diplomatic armor that it had
employed began to crack from a determined political assault that followed.
1. DISTORTING ISRAEL’S STANCE: THE GROWING IMPRESSION
IN THE 1990's THAT ISRAEL WAS PREPARED TO CONCEDE EASTERN JERUSALEM
When Israel signed the Oslo Agreements in 1993, for the first time
since 1967 it agreed to make Jerusalem an issue for future negotiations. That did not mean
that Prime Minister Yitzhak Rabin planned to divide Jerusalem. But Palestinian leaders celebrated Israel’s acquiescence at the time to putting Jerusalem on the negotiating table.
Nabil Shaath, a Palestinian
minister and negotiator, commented at the time: "The Israelis up to this
agreement never accepted that the final status of Jerusalem be on the agenda of the permanent status
negotiations.” Faisal al-Husseini, who became a minister without portfolio for
Jerusalem Affairs in the Palestinian
Authority, also remarked: “In the Oslo Accords it was established that the
status of Jerusalem is open to negotiations on the final arrangement, and
the moment you say yes to negotiations, you are ready for a compromise.” Rabin,
it should be stated, did not accept this position. To his credit, on October 5, 1995, one month before he was assassinated, he detailed to
the Knesset his vision for a permanent status arrangement with the
Palestinians, in which he stated: “First and foremost, united Jerusalem, which will include both Ma’ale Adumim and Givat
Ze’ev – as the capital of Israel, under Israeli sovereignty, while preserving the
rights of the members of the other faiths, Christianity and Islam, to freedom
of access and freedom of worship in their holy places, according to their
customs and beliefs.” In short, Rabin, who had agreed to the Oslo Agreements
two years earlier, firmly opposed
the re-division of Jerusalem. In fact,
Rabin had a completely different scenario for handling the question of Jerusalem. He secretly negotiated with Jordan what became known as the 1994 Washington Declaration,
recognizing the traditional role of the Hashemites as the custodians of the
Muslim shrines on the Temple Mount. This Israeli recognition
of Jordan’s role in the Islamic sites was incorporated into the
Israeli-Jordanian Treaty of Peace.
The Jordanian role in Jerusalem envisioned by Rabin had nothing to do with dividing
sovereignty, but was supposed to be confined to strictly religious functions.
Its practicability was dependent on Jordan’s resolve to maintain this role, despite Palestinian
encroachments. Yet regardless of the clarity of Rabin’s position, there was a
growing perception that Israel was preparing itself to make concessions over
sovereignty that Rabin never intended.
2. THE MYTHOLOGY OF BACKCHANNEL CONTACTS: BUILDING THE
CASE IN THE WEST THAT THERE WAS A WORKABLE FORMULA FOR DIVIDING JERUSALEM
With Jerusalem defined as an issue for future negotiations, there
has been an entire intellectual industry that has been busy trying to prove
that an Israeli-Palestinian deal on Jerusalem is doable. Take, for instance, what is known as the
Beilin-Abu Mazen aka Mahmoud Abbas understandings from October 31, 1995. The idea put forward in those backchannel contacts
was that the Palestinians would obtain a capital in the village of Abu Dis, outside of Jerusalem’s municipal borders, as defined by Israel, but inside
the area that was defined as
the county of Jerusalem (muhafiz) under Jordan.
These negotiations were
hailed worldwide for their creativity in the most important print media outlets
from the New York Times to Ha’aretz. It is interesting to look back and see how
the New York Times reported them on August 1, 1996; it wrote, “the Palestinians had dropped demands to
establish their capital in East
Jerusalem.” The newspaper reported additionally later on
in the article that there would be future negotiations on sovereignty over East Jerusalem, but few noticed this fine print.
In time, Israelis gained the
impression that there was a painless formula that could be used for resolving
Israeli-Palestinian differences over this extremely difficult subject. Thomas Friedman was also convinced and wrote
on September
22, 1997, that a possible
final settlement deal on Jerusalem
“had been worked out” based on a Palestinian capital in Abu Dis. In his
memoirs, Dennis Ross writes that the Beilin-Abu Mazen aka Mahmoud Abbas understandings
proved “that even the most existential issues could be resolved.”
But was this true? What few
knew at the time was that the Palestinian leadership never viewed Abu Dis as an
acceptable alternative to its claims to Jerusalem, but rather as a forward position that it would
obtain on an interim basis, so that it could increase its hold on its true
objective: the Old City of Jerusalem. Moreover, there was the question of the
exact status of these understandings. The fact of the matter was that Abu Mazen
aka Mahmoud Abbas never signed the 1995 document. Neither Rabin nor Peres
approved of its contents. Yasser Arafat called the unsigned Beilin-Abu Mazen aka
Mahmoud Abbas exchanges “a basis for further negotiations.”
In typical fashion, Arafat
managed to pocket the Israeli concessions without undertaking any firm Palestinian
commitments himself. More importantly, he managed to pull Israel into a detailed negotiation over Jerusalem, which would set it down the road of more concessions
in the future. By May 1999, Abu Mazen aka Mahmoud Abbas appeared on Palestinian
Television and disassociated himself completely from the record of his
backchannel contacts. He declared: “there is no document, no agreement, 14 and
no nothing.” Nonetheless, the legacy of these backchannel contacts red up the
imaginations of Israeli and American negotiators years later, who confidently went
to Camp David in July 2000 with the expectation that they just might resolve
the Israeli-Palestinian conflict, especially the dispute over Jerusalem.
Even after negotiations
failed, the myth of bridgeable differences over Jerusalem persisted. After the Camp David summit adjourned in July 2000, Israelis and Palestinians subsequently
met in Taba at the end of the year.
At the end of the Taba talks,
Israel’s foreign minister, Shlomo Ben Ami, was interviewed
on Israel Radio and asserted that the parties had “never been so close to
reaching an agreement.” The Israeli interviewer then asked Muhammad Dahlan, the
Gaza security chief, if indeed the parties had never been
so close. Dahlan replied in Hebrew slang: “Kharta barta” (baloney). Ben Ami’s
Palestinian counterpart, Abu Ala, was more diplomatic than Dahlan but did not differ
with his conclusions: “Now that the ambiguity has been removed, there has never
before been a clearer gap in the positions of the two sides.”15
In fact, in the European
Union summaries of the Taba talks, Ambassador Miguel Moratinos revealed that Israel and the Palestinians could not even agree over who
had sovereignty over the Western Wall. To this day, the belief persists that a
deal over Jerusalem is possible. While this myth is based on
misconceptions about the history of Israeli-Palestinian diplomacy, it still
feeds misinformed policymakers worldwide.
3. CREATING QUASILEGALITY FROM THE PAST DIPLOMATIC
RECORD: IS ISRAEL SOMEHOW
BOUND TO DIVIDE JERUSALEM BECAUSE IT
WAS PROPOSED IN PAST NEGOTIATIONS?
The failed negotiations over Jerusalem, while not producing any signed agreements,
nonetheless badly eroded Israel’s claims for successive governments. e diplomatic
experiment that former Prime Minister Ehud Barak attempted was based on a rule
that was supposed to reassure the Israeli side: “nothing is agreed until
everything is agreed.” This approach assumed that if Barak wanted to test the
Palestinian side with an idea for dividing Jerusalem, it would be removed from the negotiating table if no
overall agreement was reached.
In this spirit, when
President Bill Clinton put forward his famous “parameters” for a peace
settlement at the White House on December 23, 2000, which contained a proposal for dividing Jerusalem along ethno-religious lines, he stipulated:
"These are my ideas. If they are not accepted, they are off the table,
they go with me when I leave office.”
This was not just a theoretical commitment, for Clinton refused to go along with initiatives to take his
parameters to the UN Security Council and lock future Israeli governments into
the concessions that they would have required, through a new 16 UN Security
Council resolution.
At the heart of Clinton’s proposal was an idea that sounded simple but would
have been disastrous for Jerusalem:
"The general principle is that Arab areas are Palestinian and Jewish ones
are Israeli. This would apply to the Old City as well.” In practice, if Jerusalem was a checkerboard of Jewish and Palestinian squares,
Clinton’s idea would have put each square under a different
sovereignty. It was no wonder that the Israeli security establishment
completely rejected Clinton’s plan. At the end of December 2000, Israel’s chief of staff, Lt.-Gen. Shaul Mofaz, told the
Barak government: "The
Clinton bridging proposal is inconsistent with Israel’s security interests and if it will be accepted, it
will threaten the security of the state.”17
He specifically warned that the Clinton Plan would turn Jewish
neighborhoods in Jerusalem into enclaves within Palestinian sovereign territory
that would be hard to defend.
Mofaz was not only speaking
for himself, but for the entire general staff of the IDF. These conclusions
were not a secret; they appeared in the headlines of a Friday Yediot Ahronot.
Nonetheless, the people of Israel could be comforted that the State of Israel was not
legally bound in any way to the Clinton Parameters, which had been so strongly
condemned by the heads of the IDF.
Unfortunately, these
formalities turned out to be a total fiction.
True, in 2001, the Bush administration informed the Sharon government that the Clinton Parameters were indeed
off the table. But many former Clinton officials kept them alive behind the scenes. They
began using the refrain that “we all know what the outline of a solution is
supposed to look like. That outline included the re-division of Jerusalem. These ideas were not supported by the elected
government of Israel, under Prime Minister Ariel Sharon. The Bush administration did not
advocate them either. These ideas survived, however, in well-funded research
institutes and think tanks inside Washington’s capital
beltway. For example, appearing
at the Council on Foreign Relations in June 2003, President Clinton’s national
security advisor, Sandy Berger, typified this approach when he said: “I believe
that the contours that we were talking about at Camp David and that later were put out in the Clinton plan in December, and then later [were] even further
developed in Taba are ultimately the contours that we will embrace.” These
ideas also re-surfaced in the 2003 Geneva Initiative, which did not represent
the official positions of the Israeli government, but nonetheless kept alive
the idea that Jerusalem was to be divided. The mantra that “we all know what
the outline of a solution is supposed to be” turned out to be extremely
problematic. What was the underlying assumption behind these statements? How do
we all know? How can anyone make this assertion with any degree of certainty?
Did Israel sign anything? Did it obligate itself to make
concessions on Jerusalem? Instead of asking why Arab-Israeli diplomacy failed
during the later 1990s, conducting a reassessment, and coming up with a
different approach, former officials dug in deeper into the ideas that had been
raised in Camp David and Taba, and tried to enshrine them – including on
the issue of Jerusalem. It seemed that there was a shared interest by those
who engaged in this activity in binding Israel to the diplomatic
record of failed negotiations
and to the concessions of previous Israeli governments.
What happened in the course
of time was that these proposals seeped back from Washington think tanks and research institutes through the back
door to the official level. It was a natural though highly problematic process.
There were conferences, seminars, and brown-bag lunches held in private Washington offices where former officials mingled with their
successors. The veterans of the diplomacy of the 1990s briefed new politicians
coming to Washington, as well. Presidential candidates also sought advice
for their future positions, and the record of Camp David and Taba
became the new conventional
wisdom that was bantered about, without much thought. What emerged was a kind
of inevitability that foreign policy experts shared that Jerusalem would have to be divided and Israel’s historic rights to a united city were simply
forgotten.
Palestinian negotiators
contributed to this process. After the U.S. elections in 2008, they presented a summary of their
past negotiations with Prime Minister Olmert to the incoming Obama foreign
policy team. Secretary of State Condoleezza Rice summarized this material in an
11-page document presented to President Obama. Was this a signed
Israeli-Palestinian agreement? No. But it was followed by Palestinian claims
that negotiations needed to be resumed where they last broke off, as though a
new Israeli government had to accept the concessions of its predecessor,
including on the issue of Jerusalem.
For example, in a U.S.-Palestinian meeting on September 16, 2009, Saeb
Erekat asked: “Why not
‘resume’ negotiations where parties left off?' David Hale, the deputy to U.S.
Middle East envoy George Mitchell, appropriately responded: “We prefer
‘re-launch’ since there was 18 no agreement – nothing is agreed until
everything is agreed.”
4. THE JEWISH PEOPLE AS COLONIALIST LATECOMERS TO JERUSALEM
The most ubiquitous argument
used against Israel’s claims in Jerusalem contends that the Jewish people are an alien presence
and at best late-comers to the Holy City. Professor Walid Khalidi, one of the most prominent
and articulate Palestinian historians, spoke before a UN committee convened to
consider the question of Jerusalem
on November 30, 2009.
Unfortunately, he started out with this feature of the Palestinian narrative.
He placed Israel’s control of Jerusalem right in the middle of the struggle between Islam and
the West. The effort by Israel to re-unify Jerusalem, he explained,
was a “latter-day Western
crusade by proxy.” Jewish immigration and colonization emanated from Zionism,
which he characterized as a “Russian nationalist movement.”19
Khalidi’s narrative left out
the simple truth that the Jewish people actually restored their clear-cut
majority in Jerusalem not in 1948 or in 1967 but in 1863, according to British
consular records.20 Prussia’s consulate was reporting a Jewish plurality
already in 1845, when the Jews constituted the largest religious group in Jerusalem. This transformation in Jerusalem occurred well before the arrival of the British Empire in the First World War and the issuing of the Balfour
Declaration. It even preceded the actions of Theodore Herzl and the First
Zionist Congress. Indeed, in 1914 on the eve of the First World War there were
45,000 Jews in Jerusalem out of a total population of 65,000.21
The Jewish majority in Jerusalem reflected the simple fact that the Jewish people had
been streaming back to their ancient capital for centuries, despite the dangers
to their physical well-being that this entailed and the discriminatory taxes
imposed by the Ottoman Empire on its non-Muslim subjects. In the mid-nineteenth
century, Baghdad and Damascus were Arab cities, but Jerusalem was already a Jewish city. A careful reading of the
Mandate document in fact indicates that the British and the League of Nations were fully cognizant that the Jewish rights they
acknowledged were not created
with the advent of the First
World War. The Mandate itself referred to a pre-existing Jewish claim by
specifically basing itself on the “historical connection of the Jewish people
with Palestine.”
This historical connection is
precisely what Palestinian spokesmen have been determined to refute and
challenge. In order to reinforce the image of the Palestinian Arabs as the
authentic native population of Jerusalem, former PLO Chairman Yasser Arafat added another
twist. In his UN speech, Khalidi traces Islamic claims to Jerusalem to the year 638, when the second caliph, Umar bin
al-Khattab, came out of the Arabian
Peninsula and captured it
from the Byzantine Empire. But Arafat tied Palestinian historical claims to the
Jebusites that ruled Jerusalem before King David made it the capital of ancient Israel. Arafat said his ancestors were Canaanite kings.
Moreover,
he rejected all ancient
Jewish connections to Jerusalem by even denying the very existence of the
Temple, when he argued over the future of Jerusalem with President Bill Clinton
at the Camp David negotiations in July 2000.22
It is too bad that during his many trips to Rome to meet with the
Italian government, Arafat never stopped at the Arch of Titus where he could
have seen the menorah and the vessels of the Temple that he claimed did not exist.
This doctrine of Temple denial in the Palestinian narrative has spread like
wildfire in recent years. It has been used by Palestinian leaders from Saeb
Erakat to Nabil Shaath. PLO Chairman Mahmoud Abbas has also adopted them. When
Palestinian Prime Minister Salam Fayyad spoke at the UN General Assembly in
November 2008 and devoted his remarks to Jerusalem, it was glaringly noticeable that he spoke about
Christian and Muslim links to the city without mentioning a single word about
Jewish ties to Jerusalem. Unfortunately, Western audiences have often bought
uncritically into much of this false narrative which was devised to erode Israel’s rights. For example, Time magazine described the Temple Mount in October 2003 as a place “where Jews believe
Solomon and Herod built the First and Second Temples (emphasis added).” The Temple was no longer a fact of history but part of an
Israeli narrative. It might have existed or maybe it didn’t exist. With this
doubt embedded, academia began to slip as well. The prestigious University of Chicago Press published a work by Nadia Abu
El Haj calling the Temples a “national-historical tale.” She subsequently taught
at Barnard College. The irony of this revisionist history is that the Temple is very much part of the history of traditional Islam.
The great commentators of the Quran acknowledged the Temple, like al-Jalalayn, who sought to interpret the famous
verse about Muhammad’s night journey that opens Sura 17, “Glory to him who made
His servant go by night from the Sacred Mosque to the Farther Mosque.” The Sacred
Mosque was in Mecca, but what did the “Farther Mosque” refer to? Their answer
was that the Farther Mosque was Beit al-Maqdis, which means the Temple, and sounds just like the Hebrew 23 term, Beit Hamikdash.
That also became the Arabic term for Jerusalem. The Palestinians’ use of Temple denial to undermine Israel’s claims to Jerusalem not only flew in the face of archaeology and recorded
history, it ironically negated their own Islamic tradition.
ISRAELI PUBLIC OPINION AND JERUSALEM
Despite the proliferation of
misconceptions about Jerusalem, and the questions that have arisen about
Israel’s diplomatic stance in past years, the Israeli public, in fact, had not
lost faith in Jerusalem, despite articles that assert the Israeli consensus no
longer insists on an undivided city.24 The efforts to erode public support have
not succeeded. According to a poll conducted for the Jerusalem Center for Public Affairs and released on June 6, 2011, by Dahaf Research under the direction of Dr. Mina
Tzemach, the Israeli public still backs keeping Jerusalem united. When asked how important is preserving a
united Jerusalem in the framework of a peace agreement, 69 percent
answered very important,
while 16 percent said important. That means 85 percent of the Israeli public
still believes a united Jerusalem
should be preserved.
When asked about particular
sites in Jerusalem, the results of the poll are very revealing.
Responding to different possible concessions in the peace process, 62 percent
said that they absolutely would not agree to a solution by which Israel would turn over the Temple Mount to the Palestinians, while Israel keeps the Western Wall. That was one of the scenarios
for the Old City in the Clinton Parameters. Approximately 13 percent
said they tend to disagree with such a proposal. Putting these numbers
together, 75 percent of Israelis who were asked, opposed giving up the Temple Mount as part of a peace settlement, even if Israel gets to keep the Western Wall.
THE IMPORTANCE OF PROTECTING JERUSALEM’S HOLY
SITES
This data illustrates that
the people of Israel are attached to their holy sites in Jerusalem and understand what could happen to them if Israel were to concede them. These positions undoubtedly
have been affected by Israel’s own experiences. In 1948, after all, the Arab
Legion took over the Jewish Quarter and began to systematically destroy or
desecrate 55 synagogues and study halls, like the great Porat Yosef Yeshiva.
The Old City’s Jewish population was ethnically cleansed. The Yohanan
Ben Zakai Synagogues became stables for the mules of the Old City’s Arab residents. Meanwhile, the Jewish people were
denied access to the Western Wall and their other holy sites from 1948 through
1967.
In modern times it is equally
clear what would happen to religious sites if the Palestinians obtained control
of the Old City. Under the Oslo Agreements, the Palestinian Authority
was given responsibility for Jewish holy sites in the territories under its
jurisdiction. On October 7, 2000, Joseph’s Tomb in Nablus came under attack by a Palestinian mob that included
Palestinian civilians and security forces. Hebrew texts were trashed, while the
mob tried to dismantle the stones of the tomb with crow bars and pipes. They also
cracked the tomb’s dome as well. In April 2011, Israelis
received another reminder
about how the Palestinians fail to fulfill their responsibilities at holy
sites, when Palestinian security personnel murdered Ben Yosef Livnat, who had
visited Joseph’s Tomb with a group of Breslover Chasidim. These events have
reinforced Israeli concerns about who will protect the holy sites.
Christian sites have also
been attacked under Palestinian rule. On April 2, 2002, a joint Fattah-Hamas force of thirteen terrorists
entered the Church of the Nativity in Bethlehem and held the clergy as hostages for thirty-nine days.
Generally, over the last decade and a half, holy sites have lost much of their
traditional immunity and have come under attack by radical Islamic groups. This
trend began when 2,000-year-old Buddhist statues in Afghanistan’s Bamiyan Valley were blown up by the Taliban. This act was ultimately
supported by Yusuf Qaradawi, the spiritual leader of the Muslim Brotherhood,
which is the parent organization of Hamas. These attacks on non-Muslim
religious sites have since
spread from Pakistan to Iraq and most recently to Egypt, under the banner of radical Islam.
Internationalization is not
an answer for Jerusalem either. In 1947, internationalization, in accordance
with UN General Assembly Resolution 181, was proposed but was unworkable and
ultimately failed. Jerusalem was invaded by three Arab armies. The only force that
protected 100,000 Jews in Jerusalem
from certain destruction were the forces of Israel. The UN did not lift a finger in 1948 against the
threat that was posed to Jerusalem.
There is no basis for thinking that an international body, containing members
with conflicting interests, would be any more effective in the future than the
UN was in 1948.
In short, Israel’s own history, as well as more recent events,
illustrates what is at stake in Jerusalem. Were Israel to agree to a re-division of Jerusalem, losing control of the Old City, the security of its holy sites would undoubtedly be
put in jeopardy. What Israeli diplomacy must make clear is that only a free and
democratic Israel will protect Jerusalem for all faiths.
Keeping Jerusalem open for all faiths is a historical responsibility of
the State of Israel. Yet, Jerusalem
has been at the heart of a great internal debate in Israel and the Jewish world more broadly. Many with a more
particularistic orientation understand its reunification in 1967 as part of the
national renewal of a people who had faced centuries of exile and even
attempted genocide just a few decades earlier. It was where the Jews first restored
a clear-cut majority back in 1863 at a time when the world began to recall and
recognize their historical rights and title. Jerusalem was the meeting point between the nation’s ancient history
and its modern revival.
Others with a more
universalistic view make a priority of integrating the modern State of Israel
with the world community by using Jerusalem as a bargaining chip in a peace process presently
under the auspices of the EU, Russia, the UN, and the U.S. In fact, the elaborate international ceremonies of
world leaders orchestrated around the signing of each peace accord in the 1990s
were intended to remind Israelis that their international acceptance, as well
as the normalization of their relations with their Arab neighbors, was tied to
this very diplomatic process.
The clash between the
particularistic instincts inside Israel and its universalistic hopes has been at the heart of
the country’s political debate for forty years. Jerusalem, however, is where these two national instincts
converge, for by protecting Jerusalem
under Israeli sovereignty, the State of Israel also serves a universal mission
of keeping the holy city truly free and accessible for peoples of all faiths.
Particularists will have to understand that there are other religious groups
with a stake in the future of the Holy City, while universalists will have to
internalize that they have a great national legacy worth protecting for the
world and that conceding it would condemn it to total uncertainty at best.
CONCLUSIONS
Prior to the granting of the
Mandate for Palestine to Great Britain by the League
of Nations, to institute the
dictates of The San Remo Treaty of 1920, there were many proposals to restore
the Jewish people to their ancestral homeland. From Napoleon Bonaparte’s
proclamation in 1799 to Theodore Roosevelt’s writings in 1918, the idea of the
historical rights of the Jewish people to their ancient homeland was linked to
their rights to Jerusalem. Israel’s first president, Chaim Weitzman, quoted in this
context the Archbishop of Canterbury during a debate in the late 1930s in the
British House of Lords, saying:
It seems to me extremely
difficult to justify fulfilling the ideals of Zionism by excluding them from
any place in Zion. How is it possible for us not to sympathize in this
matter with the Jews? We all remember their age long resolve, lament and
longing: “If I forget thee, 0 Jerusalem, let my right 25 hand forget her cunning.” They
cannot forget Jerusalem.
Thus the return to Eretz
Yisrael (the Land of Israel)
and the restoration of Jerusalem became understood in the West as inseparable
aspirations. What struck legal experts writing in this period was the fact that
the Jewish people never renounced those rights and indeed acted upon them
through prayer, fasting, and pilgrimage. In the diplomacy of modern Israel, that refusal continued in one form or another,
especially after the Six-Day War. Significantly, these rights were backed by
some of the most important authorities on international law.
In the years of the
Arab-Israeli peace process, proposals were raised and considered for the
re-division of Jerusalem, but no binding agreements were actually reached and
brought to the Knesset for ratification Israeli opinion remained firm about the
rights of the Jewish people to retain their united capital under the
sovereignty of Israel. The recognition of those rights in the future by the international
community will depend on Israel demonstrating that it alone will protect the Holy City for all faiths. This is a standard which Israel has met in the past and will undoubtedly continue to
meet in the future.
NOTES
* This essay is an expanded version of an address given on June 6, 2011, for the Ingeborg
Rennert Center
for Jerusalem Studies.
1 Martin Gilbert, “Jerusalem:
A Microcosm of Jewish Rights,” Israel
at 60: Confronting the Rising Challenge to Its Historical and Legal
Rights (Jerusalem:
Jerusalem Center
for Public Affairs, 2009), p. 22.
2 William Foxwell Albright, et al., Palestine: A Study of
Jewish, Arab and British Policies, Esco Foundation (New Haven: Yale University
Press, 1947), vol. 1, p. 229. Ernst Frankenstein, Justice for My People: The
Jewish Case (London: Nicholson & Watson, 1943), p. 88.The historical record
in fact shows Jewish resistance continued with major armed revolts in 115
against Trajan, 135 against Hadrian, 351 against Gallus, and 614, when the Jews
joined the Persians to fight Roman rule. See S. Safarai,
“The Era of the Mishnah and Talmud,” in H.H. Ben-Sasson (ed.), A History of the
Jewish People (Cambridge: Harvard University Press, 1976), pp. 330-363.
3 J. Stoyanovsky, The Mandate for Palestine:
A Contribution to the Theory and Practice of International Mandates (London:
Longman, Green and Co., 1928), p. 65.
4 Ibid., p. 241.
5 Stephen M. Schwebel, “What Weight to Conquest?” American
Journal of International Law (1970):344-347.
6 John Norton Moore (ed.), The Arab-Israel Conflict Volume
IV: The Difficult Search for Peace (1975-1988), Part One (Princeton: Princeton
University Press, 1991), p. 815.
7 Arthur Goldberg, Letter to the Editor, New York Times, March 6, 1980.
8 “Letter of March 25, 1999, to the UN Security-General from
the PLO Observer Concerning UN General Assembly Resolution 181,” United Nations
Document A/53/879, S/1999/334, March 24, 1999.
9 Elihu Lauterpacht, Jerusalem
and the Holy Places (London: Anglo-Israel Association, 1968).
10 “United National General Assembly Resolution 181, November 29, 1947,” The Avalon
Project at Yale Law
School,
http://www.yale.edu/lawweb/avalon/un/res181.htm
11 Larry Kleter, “The Sovereignty of Jerusalem
in International Law,” Columbia
Journal of Transnational Law, Vol. 20, 1981, p. 350.
12 Eugene V.
Rostow, Correspondence, American Journal of International Law, July 1990.
13 Eugene V.
Rostow, “The Future of Palestine,”
McNair Paper 24 (Washington: National Defense University, 1993), p. 10.
14 Yael Yehoshua, “Abu Mazen: A Politica Profile,"
Special Report No. 15, MEMRI – The Middle East Media Research Institute, April
29, 2003, http://www.memri.org/report/en/0/0/0/0/0/0/856.htm.
15 “Palestinian Reports on the Taba Negotiations,” MEMRI
Special Dispatches, No. 184, February
7, 2001, http://www.memri.org/report/en/0/0/0/0/0/0/419.htm.
16 There have been reports that Foreign Minister Shlomo Ben
Ami hoped to enshrine the concessions he offered on Jerusalem
at the UN Security Council. He admits in his Hebrew memoirs that the U.S.
Ambassador to the UN, Richard Holbrooke, warned him that the UN should only be
used to endorse an agreement that would be achieved in the future, but it
should not mandate the solution. See Shlomo Ben Ami, A Front without a
Rearguard: A Voyage to the Boundaries of the Peace Process
(Tel Aviv: Yediot Books, 2004) [in Hebrew], p. 309.
17 Yediot Ahronot, December
29, 2000.
18 “Meeting Minutes: Saeb Erekat and David Hale,” Aljazeera
Transparency Unit, http://www.ajtransparency.com/les/4835.pdf.
19 See Walid Khalidi, “Control of Jerusalem,”
http://www.youtube.com/watch?v=3x8BM0ry1nM&feature=BFa&list=PL001B57CA
656A0C49&index=1.
For the classic presentation of the Palestinian legal case on Jerusalem,
see Henry Cattan, Jerusalem (London:
Saqi Books, 2000).
20 For the actual British cable, see Dore Gold, The Fight
for Jerusalem: Radical Islam, the
West, and the Future of the Holy City
(Washington: Regnery, 2007), pp.
290-291.
21 Martin Gilbert, “Jerusalem:
A Tale of One City,”
New Republic, November 14, 1994.
22 Ibid., pp. 11-13.
23 Ibid., p. 17.
24 James Carroll, “Netanyahu’s Extremist Mistake,” Boston
Globe, June 6, 2011.
25 Regarding Napoleon’s declaration to restore Jerusalem
to the Jewish people, see Albright, et al., Volume 1, Page 2. Teddy Roosevelt’s
ideas about starting a Zionist state around Jerusalem
appear in Michael B. Oren, Power, Faith and Fantasy: American in the Middle
East 1776 to Present (New York:
W. W. Norton, 2007), p. 359. President Weitzman's address from December 1, 1948, in which he quotes
the Archbishop of Canterbury, may be found at http://www.mfa.gov.il/MFA/Foreign+Relations/Israels+Foreign+Relations+since+1947/1947-1974/3+Israel+Claims+Jerusalem-+Address+by+President+We.htm
Pics.
During 1948 synagogues and religious academies come under
attack in the Old City of Jerusalem and are shelled by the artillery of the
Arab Legion. Here, the Porat Yosef Yeshiva is destroyed. (Phillip John, Getty
Images, 1948)
Palestinians stand atop the biblical Tomb of Joseph in the West
Bank town of Nablus, October 7, 2000. Palestinian gunmen
and civilians stormed the Israeli enclave, trashing Hebrew texts and setting
re to the holy site in a show of triumph just hours after Israeli troops
evacuated the site. (AP Photo/Lefteris Pitarakis)
Black smoke billows over the Church of the Nativity compound
in the West Bank town of Bethlehem
on April 11, 2002, after the
church was seized by a joint unit of Fattah and Hamas. e clergy were taken
hostage and the interior was desecrated. (AP Photo/Peter Dejong)
Jewish refugees stream out of the Old City of Jerusalem in
1948 escaping the invading Arab Legion.
(Phillip John, 1948)
