After the Six Day War in 1967, Israel was in full control of historic Palestine, as well as the Syrian Golan Heights and the Egyptian Sinai. While the Sinai was returned years later, the West Bank (including East Jerusalem), Gaza and the Golan Heights remained under Israel’s military control. Since then, Israel’s violations have been extensively documented by the United Nations and NGOs. Indeed, the UN General Assembly has voted annually on a resolution calling on Israel to abide by its obligations under international law, including withdrawing from the Occupied Territories and enabling the return and compensation of refugees from 1948. While United States President Donald Trump’s December 6 announcement of US recognition of occupied Jerusalem as the capital of Israel was received with denouncement from the international community, what legal implications does this recognition have? Does it change the status of occupied Jerusalem? For this, we need to understand the status of occupied Jerusalem under Israeli law, and what this means under international law.
Legal History of Jerusalem since 1967
Occupied East Jerusalem is part of the West Bank, and hence Occupied Territory under international law. However, in 1980, Israel passed a law (the “basic law” on Jerusalem) referring to a ‘complete and united’ Jerusalem — essentially annexing what is recognised as Occupied Territories, which is illegal under international law. Nevertheless, Israel has been undertaking a slow ethnic cleansing of occupied East Jerusalem to empty it of its Palestinian inhabitants, while subjecting those still residing there to severe discrimination. Israel classifies Palestinians living in occupied East Jerusalem as “permanent residents”, meaning that their residency permits can be easily revoked. Since 1967, more than 14,000 Palestinian residents of occupied East Jerusalem have had their residency permits revoked. Moreover, between 2004 and 2016, 685 homes were demolished, leaving over 2,500 Palestinians homeless. Applications of buildings permits are frequently rejected, so Palestinians are enables to build new homes. Moreover, Israel does not allow West Bank residents to visit occupied Jerusalem except with a specific permit, which is rarely given. Furthermore, Israel has been building colonies in the West Bank through the expropriation of Palestinian land as well as house demolitions. As of 2017, there were 125 illegal Israeli colonies in the West Bank and 100 ‘outposts’, which are colonies built without official Israeli authorisation, including a colonist population of more than 547,000. More than 200,000 colonists live in occupied East Jerusalem.
International Law and Jerusalem
Even before Israel annexed Jerusalem under its national laws, the UN Security Council (UNSC), “Condemn[ed] in the strongest terms all measures taken to change the status of the city of Jerusalem” (Security Council Resolution 267 of 1969). The significance of UNSC Resolutions is that, according to the UN Charter, UN members agree “to accept and carry out the decisions of the Security Council”.
Israel’s subsequent annexation of East Jerusalem was rejected by the international community and was again condemned by the UNSC — which, as we know, includes the United States — in Resolution 478 of 20 August 1980, which: Determine[d] that all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the recent “basic law” on [occupied] Jerusalem, are null and void and must be rescinded forthwith.
Since then, there have been numerous UNSC Resolutions that have recognised occupied East Jerusalem as Occupied Territories, and condemned Israel’s actions in it. The latest was in UNSC Resolution 2334 of December 23, 2016, which condemns colonies built in “Palestinian territories occupied since 1967, including East Jerusalem”.
Israel’s actions in the West Bank, including occupied East Jerusalem may amount to war crimes under the Geneva Conventions (the Geneva Conventions regulate armed conflict and ensure the protection of those not taking part in hostilities), which form the foundation of international humanitarian law (the laws of war). Israel has stated that the Geneva Conventions do not apply to the Occupied Territories, but according to the International Court of Justice (ICJ) — the highest court in the world — in its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Territories, the Fourth Geneva Convention does apply to the Occupied Territories, which means that Israel has to fulfil its obligations under the Convention. The relevant clause is in Article 49 of the Fourth Geneva Convention, which prohibits individual or mass forcible transfer of civilians. In its illegal annexation of East Jerusalem and occupation of the rest of the West Bank, Israel has both, forcibly removed Palestinians as well as moved its own civilian population to the Occupied Territories.
Moreover, ICJ stated that Israel’s construction of the wall, which surrounds occupied East Jerusalem and annexes parts of the West Bank, interferes with the Palestinians’ right to self-determination. It stated that: The Court notes that Israel is first obliged to comply with the international obligations it has breached by the construction of the wall in the Occupied Territory. Consequently, Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law ...
It is also for all states, while respecting the UN Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise of rights to self-determination by the Palestinian people is brought to an end.
This paragraph reminds the international community that all States are under obligation to ensure that the regime arising as a result of the wall, which helps to annex East Jerusalem, should be brought to an end. Thus, America’s announcement not only violates the ICJ’s Advisory Opinion, the UN Charter, UNSC Resolutions, and international law in general, but it also gives political legitimacy to a manifestly illegal situation, which has severe and disastrous effects upon those living under an illegitimate and violent regime. Israel has not shied away from violating the rights of Palestinian East Jerusalem residents since 1967, and this action will further encourage it to continue to do so, perhaps in an even more blatant way.
Consequences and options
While the US announcement does not change the status of occupied Jerusalem under international law, it does have the political effect of further emboldening Israel. One of the purposes of the UN is to “bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations, which might lead to a breach of the peace”, (Article 1, UN Charter). At an emergency session of the UN General Assembly on December 21, 2017, a resolution which declared “null and void” any action intended to alter occupied Jerusalem’s character, status or demographic composition was passed with a majority of 128 member-states voting in favour. This is a good step signalling the world’s disapproval at Trump’s illegal decision. Additionally, the UN General Assembly could — and should — take a vote to recognise occupied Jerusalem as the capital of Palestine. This, like the vote to accept Palestine as a state, would help symbolically and show that no other state will move its embassy to occupied Jerusalem.
Unfortunately, the UN leaves the job of ensuring peace and taking concrete actions towards achieving that end to the UNSC, which includes the US. Few states will choose to act in a decisive way, such as sanctions, against the US or Israel, and any rebuke from the UN General Assembly or individual states would not be assumed to have an effect on the actions of the US. Unfortunately, those ultimately affected are those who are living under occupation and those who continue to be denied the right to return to their homes. A bigger question is whether international law can ever be useful when more powerful states use and abuse it as they deem fit?
International law provides a standard that the actions of states can be held against, even if, ultimately, it is unenforceable when those violating the laws are powerful states or their allies. In the absence of any state willing to take concrete actions against these steps, civil society must step in. The Boycott, Divestment, and Sanctions (BDS) movement is a Palestinian-led movement that originated in the Occupied Territories. BDS calls for using these non-violent means to make Israel comply with its obligations under international law. It is something that all citizens around the world can take part in. There is much research on those companies that profit from Israel’s occupation and a boycott is one way to ensure that these big companies do not invest in Israel’s occupation.
At this point, when powerful world leaders have further entrenched their commitment to the violation of people’s rights, BDS is what we have.
Jinan Bastaki is assistant professor of International Law at United Arab Emirates University.