Jerusalem Capital of Israel MODERN SOURCES OF ISRAEL’S INTERNATIONAL RIGHTS IN JERUSALEM

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2. Jerusalem

   Capital of Israel

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.

The Allied powers assigned in 1920 the Mandate for Jewish Palestine to the Jewish people, which became an international law that is in affect in perpetuity and the U.N. or any other power cannot change it. The British were a trustee for the Jewish people until they were able to set up the Jewish government.

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.

CONCLUSIONS

Prior to the granting of the Mandate for Palestine to Great Britain by the League of Nations, 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.

Link to 1925 Waqf Temple Mount Guide noting that the First and Second Jewish Temples were located on the Temple Mount

For Jews, the Temple Mount is the holiest place in the world. The Jewish connection to Jerusalem and the Temple Mount originates in the biblical narrative, as it is said to be the location of the binding of Isaac.[2] The Talmud, Judaism’s supreme canonical text, says that the foundation stone on the Temple Mount is the location from which the world was created.[3] In Samuel II 24:18-25, King David bought the bedrock for the Temple from Araunah the Jebusite. Subsequently, Solomon, David’s son, used the bedrock to build the First Temple.[4] Solomon’s Temple was eventually destroyed by Nebuchadnezzar II of Babylon in 586 BCE.

Link to 1925 Waqf Temple Mount Guide noting that the First and Second Jewish Temples were located on the Temple Mount

For Jews, the Temple Mount is the holiest place in the world.

Following the destruction of Jerusalem and Solomon’s Temple, many Jews were sent into exile. However, under the Persian King Cyrus, the Jews were allowed to return and began to rebuild the Temple. The Second Temple was completed in 516 BCE and expanded by King Herod in 19 BCE. In 70 CE, the Roman Empire, led by Emperor Titus, laid siege to Jerusalem and destroyed the Second Temple. Jews have maintained an unbreakable connection to Jerusalem, and the Temple Mount since that time.

Today, Jews follow a number of different customs in remembrance of their fallen Temple. When Jews pray, they pray toward Jerusalem. Within the daily liturgy, there are numerous calls for the rebuilding of Jerusalem and the Temple. During the week, after meals, Jews recite a grace, which includes the recitation of Psalm 137 (“If I forget thee, O Jerusalem…”).[5] At the end of a wedding ceremony, the groom breaks a glass, which signifies the Jewish people’s continued mourning over the Temple’s destruction. In addition, many have the custom of leaving a wall in their home unfinished in remembrance of the destruction. All of these customs play a significant part in the Jewish connection to Jerusalem and the Temple Mount, which former Israeli Prime Minister Ehud Olmert stated “represents the purist expression of all that Jews prayed for, dreamed of, cried for, and died for in the two thousand years since the destruction of the Second Temple.”[6] In addition to the customs and ideology, the Jewish connection to the Land of Israel and Jerusalem is internationally recognized.[7]

ISLAMIC LITERATURE AND THE TEMPLE MOUNT

Classic Islamic literature also recognizes the existence of a Jewish Temple and its importance to Judaism. This makes Palestinian Temple Denial all the more puzzling.

In Sura 17:1 of the Koran, the “Farthest Mosque” is called the al-masjid al-Aqsa. The Tafsir al-Jalalayn,[8] a well-respected Sunni exegesis of the Koran from the 15th and 16th centuries, notes that the “Farthest Mosque” is a reference to the Bayt al-Maqdis of Jerusalem.[9] In Hebrew, the Jewish Temple is often referred to as the Beyt Ha-Miqdash, nearly identical to the Arabic term. In the commentary of Abdullah Ibn Omar al-Baydawi, who authored several prominent theological works in the 13th century, the masjid is referred to as the Bayt al-Maqdis because during Muhammad’s time no mosque existed in Jerusalem.[10] Koranic historian and commentator, Abu Jafar Muhammad al-Tabari, who chronicled the seventh century Muslim conquest of Jerusalem, wrote that one day when Umar finished praying, he went to the place where “the Romans buried the Temple [bayt al-maqdis] at the time of the sons of Israel.”[11] In addition, eleventh century historian Muhammad Ibn Ahmad al-Maqdisi and fourteenth century Iranian religious scholar Hamdallah al-Mustawfi acknowledged that the al-Aqsa Mosque was built on top of Solomon’s Temple.[12]

This is a small sample of the Islamic literature attesting to the Jewish connection to the Temple Mount. Innumerable other writings from other faiths attest to this fact, as well.

Link to 1925 Waqf Temple Mount Guide noting that the First and Second Jewish Temples were located on the Temple Mount

http://www.templeinstitute.org/1925-wakf-temple-mount-guide.pdf

For Jews, the Temple Mount is the holiest place in the world.

Following the destruction of Jerusalem and Solomon’s Temple, many Jews were sent into exile. However, under the Persian King Cyrus, the Jews were allowed to return and began to rebuild the Temple. The Second Temple was completed in 516 BCE and expanded by King Herod in 19 BCE. In 70 CE, the Roman Empire, led by Emperor Titus, laid siege to Jerusalem and destroyed the Second Temple. Jews have maintained an unbreakable connection to Jerusalem, and the Temple Mount since that time.

Today, Jews follow a number of different customs in remembrance of their fallen Temple. When Jews pray, they pray toward Jerusalem. Within the daily liturgy, there are numerous calls for the rebuilding of Jerusalem and the Temple. During the week, after meals, Jews recite a grace, which includes the recitation of Psalm 137 (“If I forget thee, O Jerusalem…”).[5] At the end of a wedding ceremony, the groom breaks a glass, which signifies the Jewish people’s continued mourning over the Temple’s destruction. In addition, many have the custom of leaving a wall in their home unfinished in remembrance of the destruction. All of these customs play a significant part in the Jewish connection to Jerusalem and the Temple Mount, which former Israeli Prime Minister Ehud Olmert stated “represents the purist expression of all that Jews prayed for, dreamed of, cried for, and died for in the two thousand years since the destruction of the Second Temple.”[6] In addition to the customs and ideology, the Jewish connection to the Land of Israel and Jerusalem is internationally recognized.[7]

ISLAMIC LITERATURE AND THE TEMPLE MOUNT

Classic Islamic literature also recognizes the existence of a Jewish Temple and its importance to Judaism. This makes Palestinian Temple Denial all the more puzzling.

In Sura 17:1 of the Koran, the “Farthest Mosque” is called the al-masjid al-Aqsa. The Tafsir al-Jalalayn,[8] a well-respected Sunni exegesis of the Koran from the 15th and 16th centuries, notes that the “Farthest Mosque” is a reference to the Bayt al-Maqdis of Jerusalem.[9] In Hebrew, the Jewish Temple is often referred to as the Beyt Ha-Miqdash, nearly identical to the Arabic term. In the commentary of Abdullah Ibn Omar al-Baydawi, who authored several prominent theological works in the 13th century, the masjid is referred to as the Bayt al-Maqdis because during Muhammad’s time no mosque existed in Jerusalem.[10] Koranic historian and commentator, Abu Jafar Muhammad al-Tabari, who chronicled the seventh century Muslim conquest of Jerusalem, wrote that one day when Umar finished praying, he went to the place where “the Romans buried the Temple [bayt al-maqdis] at the time of the sons of Israel.”[11] In addition, eleventh century historian Muhammad Ibn Ahmad al-Maqdisi and fourteenth century Iranian religious scholar Hamdallah al-Mustawfi acknowledged that the al-Aqsa Mosque was built on top of Solomon’s Temple.[12]

This is a small sample of the Islamic literature attesting to the Jewish connection to the Temple Mount. Innumerable other writings from other faiths attest to this fact, as well.

Link to 1925 Waqf Temple Mount Guide noting that the First and Second Jewish Temples were located on the Temple Mount

http://www.templeinstitute.org/1925-wakf-temple-mount-guide.pdf

It is interesting to note, that Jordan is a country that never existed in history before WWI and nobody is contesting its legitimacy or territorial sovereignty and control. The same powers that established 21 Arab States plus Jordan after WWI, established the State of Israel based on the Balfour Declaration and the San Remo Treaty of 1920 which was confirmed by the 1920 Treaty of Sevres..

On the other hand, Israel and its Jewish people have over 4,000 years of history.

Many nations and people are questioning Israel’s control of its liberated territory. No one is mentioning that the Arab countries had ejected about a million Jewish people and their children from their countries, confiscated their assets, businesses, homes and Real estate, over 650,00 Jewish people and their children of these expelled Jewish people were resettled in Greater Israel. The Land the Arab countries confiscated from the Jewish people 120,400 sq. km. or 75,000 sq. miles, which is over 5-6 times the size of Israel, and its value today is the trillions of dollars.

Transfer the Arab-Palestinians to the Jewish owned land in Arab countries is a good solution.

Let the 21 Arab countries resettle the Arab Palestinians in the land they confiscated from the Jews which is 5-6 times the size of Israel (120,440 sq. km.). Provide them with funds they confiscated from the million Jewish people they expelled and let them build an economy, This will benefit both the Arab-Palestinians and the hosting countries, The other alternative is relocate the Arab-Palestinians to Jordan, (originally land allocated for the Jewish people) which is already 80% Arab-Palestinians, and give them funds to relocate and build an economy. This will solve the Arab-Palestinians refugee problem once and for all. It will also reduce hostility and strife in the region.