Jerusalem Part II

By Eli E. Hertz

 

2nd part of 2

 

Internationalization of Jerusalem

Judge, Sir Elihu Lauterpacht underscored in his investigation of the legal issues

surrounding the status of Jerusalem and the Holy Places that the notion of

internationalizing Jerusalem was not part of the original international mandate:

"Nothing was said in the Mandate about the internationalization of Jerusalem. Indeed

Jerusalem as such is not mentioned, – though the Holy Places are. And this in itself is a

fact of relevance now. For it shows that in 1922 there was no inclination to identify the

question of the Holy Places with that of the internationalization of Jerusalem."(27)

Arab leaders, including Palestinians, have sought to justify their right to Jerusalem by

distorting the meaning of United Nations resolutions that apply to the city. UN

Resolution 181, for example, adopted by the General Assembly in 1947, recommended

turning Jerusalem and its environs into an international city, or corpus separatum.

However, Arab spokesmen conveniently ignore the fact that Resolution 181 was a nonbinding recommendation.

 

Professor Julius Stone, one of the 20th century's best-known authorities in

Jurisprudence and international law,(28) notes that Resolution 181 "lacked binding force"

from the outset, since it required acceptance by all parties concerned:

"While the State of Israel did for her part express willingness to accept it, the other states

concerned both rejected it and took up arms unlawfully against it."

 

Judge Lauterpacht wrote in 1968 about the new conditions that had arisen since 1948

with regard to the original thoughts of internationalization of Jerusalem:

 

"-The Arab States rejected the Partition Plan and the proposal for the internationalization

of Jerusalem.

"-The Arab States physically opposed the implementation of the General Assembly

Resolution. They sought by force of arms to expel the Jewish inhabitants of Jerusalem

and to achieve sole occupation of the City.

"-In the event, Jordan obtained control only of the Eastern part of the City, including the

Walled City.

"-While Jordan permitted reasonably free access to Christian Holy Places, it denied the

Jews any access to the Jewish Holy Places.(29) This was a fundamental departure from the

tradition of freedom of religious worship in the Holy Land, which had evolved over

centuries. It was also a clear violation of the undertaking given by Jordan in the Armistice

Agreement concluded with Israel on 3rd April, 1949. Article VIII of this Agreement called for the establishment of a Special Committee of Israeli and Jordanian representatives to formulate agreed plans on certain matters "which, in any case, shall include the following, on which agreement in principle already exists... free access to the Holy Places and cultural institutions and use of the Cemetery on the Mount of Olives.

"-The U.N. displayed no concern over the discrimination thus practiced against persons

of the Jewish faith.

"-The U.N. accepted as tolerable the unsupervised control of the Old City of Jerusalem by Jordanian forces - notwithstanding the fact that the presence of Jordanian forces west of the Jordan River was entirely lacking in any legal justification.

"-During the period 1948-1952 the General Assembly gradually came to accept that the

plan for the territorial internationalization of Jerusalem had been quite overtaken by

events. From 1952 to the present time virtually nothing more has been heard of the idea

in the General Assembly.

 

"-On 5th June, 1967, Jordan deliberately overthrew the Armistice Agreement by attacking the Israeli-held part of Jerusalem. There was no question of this Jordanian action being a reaction to any Israeli attack. It took place notwithstanding explicit Israeli assurances, conveyed to King Hussein through the U.N. Commander, that if Jordan did not attack Israel, Israel would not attack Jordan. Although the charge of aggression is freely made against Israel in relation to the Six-Day War the fact remains that the two attempts made in the General Assembly in June-July 1967 to secure the condemnation of Israel as an aggressor failed. A clear and striking majority of the members of the U.N. voted against the proposition that Israel was an aggressor."(30)

 

Today, more than 55 years later, Israel has reunited Jerusalem and provided unrestricted

freedom of religion. Access of all faiths to the Holy Places in the unified City of Peace is

assured. Judge, Sir Elihu Lauterpracht confirm this:

 

"Moslems have enjoyed, under Israeli control, the very freedom which Jews were denied

during Jordanian occupation."(31)

 

Lastly, it should be noted: If UN Resolution 181 was valid today (which it is not), then so

is the provision in Part III-D that stipulates that after 10 years, the city's international

status could be subject to a referendum of all Jerusalemites regarding a change in the

status of the city – a decision that today, as in the past, would have been made by the

city's decisive Jewish majority.

 

The UN and Jerusalem

Both the General Assembly and the Security Council have limited influence on the future

of Jerusalem.

 

Judge Sir Lauterpacht explained in 1968:

"The General Assembly has no power of disposition over Jerusalem and no right to lay

down regulations for the Holy Places. The Security Council, of course, retains its powers

under Chapter VII of the Charter in relation to threats to the peace, breaches of the peace

and acts of aggression, but these powers do not extend to the adoption of any general

position regarding the future of Jerusalem and the Holy Places."

 

Originally, internationalization of Jerusalem was part of a much broader proposal that

the Arab states rejected – both at the UN and 'on the ground,' by:

"a rejection underlined by armed invasion of Palestine by the forces of Egypt, Iraq,

Lebanon, Syria, and Saudi Arabia … aimed at destroying Israel."

The outcome of consistent Arab aggression was best described by Professor, Judge

Schwebel:

"As between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab

neighbors, acting aggressively in 1948 and 1967, on the other, Israel has better title in the

territory of what was Palestine, including the whole of Jerusalem."(32) [italics by author]

Arab leaders point to UN Resolution 242 as a basis for their claim to Jerusalem.

Resolution 242 was adopted after the 1967 War, when Israel captured territory from

Egypt, Jordan, and Syria, after they attacked Israel. However, the resolution never

mentions Jerusalem, nor does UN Resolution 242 call for a full withdrawal from

territory captured but merely a withdrawal to "secure and recognized boundaries" that

are to be negotiated by the parties concerned. Arab Palestinians were not a party to the

resolution.

 

Arthur Goldberg, the former U.S. Ambassador to the UN (in 1967) who helped draft the

resolution, testified in regard to the omission of Jerusalem from Resolution 242:

"I never described Jerusalem as occupied territory. Resolution 242 in no way refers to

Jerusalem and this omission was deliberate."

 

In conclusion of the role the UN and international law may play in determining the

future of Jerusalem, one may again quote Judge Lauterpacht:

"(i) Israel's governmental measures in relation to Jerusalem - both New and Old - are

lawful and valid.

 

"(ii) The future regulation of the Holy Places is a matter to be determined quite separately

from the political administration of Jerusalem. Territorial internationalization of

Jerusalem is dead - but the possibility of functional internationalization is not. The latter

means, in effect, the recognition of the universal interest in the Holy Places situated in

Jerusalem and the adoption of links between Israel and the world community to give

formal expression to that interest."

 

Palestinian Terror in the City of Peace

Palestinian Arabs have concentrated many of their terrorist attacks on Jews in

Jerusalem, hoping to win the city by an onslaught of suicide bombers who will make life

in the City of Peace unbearable. But this is not a new tactic. Arab strategy to turn

Jerusalem into a battleground began in 1920.

Unfortunately, Arab leaders often turn to violence to gain what they were unable to

achieve at the negotiating table. When talks broke down at Camp David in 2000,

Palestinian Arab leaders unleashed the al-Aqsa Intifada, which has amounted to a fullblown guerrilla war against Israel.

 

It began the day before Rosh Hashanah, the Jewish New Year, when Arab mobs hurled

rocks from the Temple Mount onto Jewish worshipers praying at the Western Wall

below. That rock attack turned into a steady campaign of terrorist attacks. As the

priming powder for the Intifada, Palestinian leaders incited Palestinians and Muslims

throughout the world with fables that falsely suggested that Jews began an assault on al-

Aqsa when Ariel Sharon made a half-hour visit to the Temple Mount during tourist

hours.(33) The truth is that Palestinians' plans for warfare had begun immediately after

Arafat walked out of the Camp David talks.

Why do Palestinians focus terrorist attacks on the City of Peace? Because Palestinians

despite their rhetoric fully understand Jerusalem's symbolic and spiritual significance to

Jews.

 

Suicide attacks - on public buses and cafes, malls, and other crowded sites in the heart of

the city - since the 1993 Oslo Accords are designed to make life hell for Jewish

Jerusalemites. Atrocities like the February and March 1996 bombings of two #18 buses

that killed 26 people and the August 2001 bombing of a Sbarro pizzeria (34) that killed 15

(including five members of one family), are part of an ongoing 120-year-old battle for

Jerusalem that Arabs have waged in opposition to Zionism.

 

In April 1920, a three-day rampage by religiously incited anti-Zionist Arab mobs left six

dead and 200 injured in the Jewish Quarter. The attackers gutted synagogues and

yeshivot and ransacked homes. Arabs planted time bombs in public places as far back as

February 1947, when they blasted Ben-Yehuda Street, Jerusalem's main thoroughfare,

leaving 50 dead. This was all done before the establishment of the State of Israel. In the

1950s, Jordanians periodically shot at Jewish neighborhoods from the walls of the Old

City. And after the city was united in 1967, Arabs renewed their battle for the city by

planting bombs in cinemas and supermarkets. The first terrorist attack in that renewed

battle came with the 1968 bombing of Jerusalem's Machane Yehuda, the open market,

that left 12 dead. The plain facts about Palestinians' behavior clearly demonstrates that

they have forfeited any claims – historical, religious or political – to the City of Peace.

 

IN A NUTSHELL

Jerusalem's Jewish connection dates back more than 3,000 years. Even after Jews lost control of the city in 70 CE, a Jewish spiritual and physical bond with Jerusalem remained unbroken, despite 2,000 years of dispersion.

 

Although Islamic dynasties controlled Jerusalem for some 1,300 years, they never once made it the capital of an Arab state. Even Jordan, which controlled part of the city for 19 years, until 1967, refrained from making it its capital. Furthermore, Jerusalem is never mentioned in the Quran, Islam's most holy book.

 

Given the central role Jerusalem plays throughout Jewish history; given Arabs dismal record toward the rights of Jews and Christians in a sensitive, sacred city like Jerusalem; and coupled with the Arabs' horrific record of bringing carnage to the City of Peace; Israel has a legal, historical and moral right to control Jerusalem as its undivided capital. Jerusalem must remain a unified capital under Israel's exclusive sovereignty in order to protect the interests of the Jewish people and as the only guarantee that the interests of all other faiths will be protected.

 

Eli E. Hertz

Copyright - Original materials copyright (c) by the authors.

 

1 "Jerusalem: A Tale of One City" The New Republic, Nov. 14, 1994. (11362) Sir Martin Gilbert is an Honorary

Fellow of Merton College Oxford and the biographer of Winston Churchill. He is the author of the "Jerusalem:

Illustrated History Atlas" (Vallentine Mitchell) and "Jerusalem: Rebirth of the City" (Viking-Penguin).

http://www.mefacts.com/cache/html/wall-ruling_/11362.htm. (11362)

2Ibid.

3Ibid.

4 Psalm 137:5 "If I forget you, Jerusalem , let my right hand"

5See Ken Spiro, "Jerusalem: Jewish and Moslem Claims to the Holy City," at:

http://www.aish.com/Israel/articles/Jerusalem_Jewish_and_Moslem_Claims_to_the_Holy_City.asp. (11341)

6"The eighty thousand Jews in Palestine, fully one-half are living within the walls, or in the twenty-three colonies

just outside the walls, of Jerusalem. This number – forty thousand Jews in Jerusalem - is not an estimate carelessly

made. …" Edwin S. Wallace, Former U.S. Consul "The Jews in Jerusalem" Cosmopolitan magazine (1898; original

pages of article are in possession of the author).

7"JERUSALEM - Whose City?" at:

http://christianactionforisrael.org/whosecity.html. (10744)

8"Dome of the Rock" at:

http://www.sacredsites.com/1st30/domeof.html. (11342)

9See Ken Spiro, "Jerusalem: Jewish and Moslem Claims to the Holy City," at:

http://www.aish.com/Israel/articles/Jerusalem_Jewish_and_Moslem_Claims_to_the_Holy_City.asp. (11341)

10Daniel Pipes, "If I Forget Thee: Does Jerusalem Really Matter to Islam," New Republic, April 28, 1997, at:

http://www.danielpipes.org/article/281. (10746)

11See Ken Spiro, "Jerusalem: Jewish and Moslem Claims to the Holy City," at:

http://www.aish.com/Israel/articles/Jerusalem_Jewish_and_Moslem_Claims_to_the_Holy_City.asp. (11341)

12Daniel Pipes, "If I Forget Thee: Does Jerusalem Really Matter to Islam," New Republic, April 28, 1997, at:

http://www.danielpipes.org/article/281. (10746)

13Ibid.

14See Ken Spiro, "Jerusalem: Jewish and Moslem Claims to the Holy City," at:

http://www.aish.com/Israel/articles/Jerusalem_Jewish_and_Moslem_Claims_to_the_Holy_City.asp. (11341)

15Dore Gold, "Jerusalem in International Diplomacy," Jerusalem Center for Public Affairs, at

http://www.jcpa.org/jcprg10.htm. (10747)

16"Jerusalem: A Tale of One City," The New Republic, Nov. 14, 1994. (11362) Martin Gilbert is an Honorary Fellow

of Merton College Oxford and the biographer of Winston Churchill. He is the author of the "Jerusalem: Illustrated

History Atlas" (Vallentine Mitchell) and "Jerusalem: Rebirth of the City" (Viking-Penguin), at:

http://www.mefacts.com/cache/html/wall-ruling_/11362.htm. (11340)

17Ibid.

18Ibid.

19Dore Gold, "Jerusalem in International Diplomacy." See:

http://www.jcpa.org/jcprg10.htm. (10747)

20For these and more statistics, see "Jerusalem: The City's Development from a Historical Viewpoint," at:

http://www.mfa.gov.il/MFA/MFAArchive/1990_1999/1998/7/Jerusalem-%20The%20Citys%

20Development%20from%20a%20Historica. (10748)

21Rami Yizrael, "The Jewish Quarter in Old Jerusalem in the War of Independence" (in Hebrew), Jerusalem: Ben

Zvi Institute at:

http://ybz.org.il/?ArticleID=71. (11343)

22The Right of Return here refers to Arab demands that Israel allow all the Palestinians who fled in 1948 and left in

1967 – more than four million Arabs by their own estimates – to simply 'overrun' Israel demographically.

23According to Egyptian Minister of Waqfs (religious endowments) Mahmoud Hamdi Zakzouk: "Jews have no

legitimate claim to Al-Buraq Wall," April 28, 2001. The Western Wall, it is claimed, was the 'hitching post' where

the Prophet tied his winged steed in "The Night Journey" before ascending into heaven.

http://www.arabicnews.com/ansub/Daily/Day/010428/2001042829.html. (11344)

24Mark Ami-El, "Destruction of the Temple Mount Antiquities," August 2002, Jerusalem Center for Public Affairs,

August 1, 2002, at:

http://www.jcpa.org/jl/vp483.htm. (11567)

25Dore Gold, "Jerusalem in International Diplomacy." (10747)

26Judge, Sir Elihu Lauterpacht "Jerusalem and the Holy Places," The Anglo-Israel Association, October 1968.

Lauterpracht was Judge ad hoc of the International Court of Justice. He also published Aspects of the

Administration of International Justice (1991). He is the Director, Research Centre for International Law at

Cambridge University, and Member, Arbitration Panel, World Bank Centre for the Settlement of Investment

Disputes.

27Ibid.

© 2008, Eli E. Hertz Page 13 of 13 Jerusalem

28Professor Julius Stone, Israel and Palestine - Assault on the Law of Nations (Johns Hopkins University Press,

1981). This work represented a detailed analysis of the central principles of international law governing the issues

raised by the Arab-Israel conflict. Professor Stone was recognized as one of the twentieth century's leading

authorities on the Law of Nations and one of the world's best-known authorities in both Jurisprudence and

International Law. His 26 major works include the authoritative texts Legal Controls of International Conflict,

Aggression and World Order, The International Court and World Crisis and The Province and Function of Law.

29All citizens of the State of Israel were denied access to the Holy Places under Jordan control.

30Draft resolutions attempted to brand Israel as aggressor and illegal occupier as a result of the 1967 Six-Day War

were all defeated by the UN General Assembly and Security Council.

A/L.519, 19 June 1967, submitted by: the Union of Soviet Socialist Republics

"Israel, in gross violation of the Charter of the United Nations and the universally accepted principles of

international law, has committed a premeditated and previously prepared aggression against the United Arab

Republic, Syria and Jordan …" (emphasis added) at:

http://domino.un.org/unispal.nsf/9a798adbf322aff38525617b006d88d7/2795fff6b58b212c052566cd006e0900!

OpenDocument. (10919)

A/L. 521, 26 June 1967, submitted by: Albania

"Resolutely condemns the Government of Israel for its armed aggression against the United Arab Republic, the

Syrian Arab Republic and Jordan, and for the continuance of the aggression by keeping under its occupation parts

of the territory of these countries;" (emphasis added) at:

http://www.mfa.gov.il/MFA/Foreign%20Relations/Israels%20Foreign%20Relations%20since%201947/1947-

1974/28%20Draft%20Resolution%20by%20Albania%20at%20the%20Emergency%20Se. (10921)

A/L. 522/REV.3*, 3 July 1967, submitted by: Afghanistan, Burundi, Cambodia, Ceylon, Congo

(Brazzaville),Cyprus, Guinea, India, Indonesia, Malaysia, Mali, Pakistan, Senegal, Somalia, United Republic of

Tanzania, Yugoslavia and Zambia.

"Calls upon Israel to withdraw immediately all its forces to the positions they held prior to 5 June 1967" (emphasis

added). At:

http://domino.un.org/unispal.nsf/0/76bf6a75b8482d15052566c6006560d4?OpenDocument. (10918)

A/L.523/Rev.1, 4 July 1967, submitted by: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica,

Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana,

Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Trinidad and Tobago and Venezuela.

"Israel to withdraw all its forces from all the territories (emphasis added) occupied by it as a result of the recent

conflict;" at:

http://domino.un.org/unispal.nsf/9a798adbf322aff38525617b006d88d7/510ef41fac855100052566cd00750ca4!O

penDocument. (10920)

31Judge, Sir Elihu Lauterpracht, "Jerusalem and the Holy Places," p. 11.

32Professor, Judge Schwebel. What Weight to Conquest? in "Justice in International Law", Cambridge University

Press, 1994.

33"What started the al-Aqsa Intifada in September 2000?" at:

http://www.palestinefacts.org/pf_1991to_now_alaqsa_start.php. 10751)

34"Suicide bombing at the Sbarro pizzeria in Jerusalem, August 9, 2001," at:

http://www.mfa.gov.il/mfa/mfaarchive/2000_2009/2000/10/Suicide%20bombing%20at%20the%20Sbarro%20

pizzeria%20in%20Jerusale. (10752)

This document uses extensive links via the Internet. If you experience a broken link, please note the 5 digit number

(xxxxx) at the end of the URL and use it as a Keyword in the Search Box at www.MEfacts.com