3 The Issue of Jerusalem within the Broader Israeli-Palestinian Conflict
In order to analyse the merits of the abovementioned Orders concerning Jerusalem, it is first of all necessary to briefly sketch out the historical process that led the status of this city to become one of the most entangled issues of the broader Israeli-Palestinian conflict.
From the First World War onwards, Jerusalem was subject to British administration as a part of the British Mandate for Palestine. By Resolution 181(ii) of 29 November 1947, the UN General Assembly recommended the partition of Mandatory Palestine into a Jewish State and an Arab State, with Jerusalem to be transformed in a corpus separatum – that is, an international city administered by the United Nations through its Trusteeship Council – and the establishment of an Economic Union of Palestine. The State of Israel declared its independence on 14 May 1948 in accordance with the UN-endorsed partition plan, which was however rejected by the Arab countries. A coalition of such countries immediately launched an unsuccessful armed attack against the newborn Jewish State. At the end of the 1948 war, Israel acquired control of swaths of territory well beyond the initial partition plan, including West Jerusalem. By contrast, Jerusalem’s Eastern sector, which included the Old City, found itself under Jordanian rule like the rest of the so-called West Bank. The armistice lines, collectively known as Green Line, were formalized through a series of armistice agreements. After 1949, Israel began transferring from Tel Aviv to West Jerusalem the bulk of its governmental institutions, including the Parliament (Knesset). On 23 January 1950, the Knesset officially proclaimed West Jerusalem as the capital of Israel.
The city remained split into an Israeli sector and a Jordanian sector divided by a “no-man’s land” until the 1967 Six-Day War, at the end of which Israel acquired control of East Jerusalem as well as the West Bank, the Gaza Strip, the Golan Heights and the Sinai Peninsula. The municipal boundaries of Jerusalem were expanded by Israel to place the whole city under its jurisdiction. On 30 July 1980, the Knesset passed a Basic Law (i.e. a law having quasi-constitutional rank) declaring that “Jerusalem, complete and united, is the capital of Israel”.
The international community widely objected to the de facto annexation of East Jerusalem. Notably, since Resolution s/res/242 (1967), issued at the end of the Six-Day War, the Security Council and the General Assembly have constantly proclaimed two basic principles as regulating the post-conflict assessment between Israel and its neighbours: “withdrawal of Israel armed forces from territories occupied in the recent conflict”; and “the termination of all claims or state belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State […] within secure and recognised boundaries free from threats or acts of force”. Following up on previous acts by the General Assembly on the same point, Security Council Resolution 252 (1968) of 21 May 1968 introduced the concept of invalidity of “all legislative and administrative measures taken by Israel to change the status of Jerusalem”. Israel is consequently called upon to rescind all such measures. The declaration of invalidity does not produce per se constitutional modifications at the domestic level. It is, rather, to be seen as a request to all States not to recognise extraterritorial effects to acts of government adopted by the occupying State in the contested area – a point that will be discussed in greater detail in the following Sections of this article.
Subsequent UN resolutions on Jerusalem have kept referring to the same model: condemnation for all measures and actions which purport to alter the status of the city; invalidity of such measures, including expropriation of land and properties thereon; request to rescind all measures incompatible with Palestinian rights. In sum, they have all recognised that the status of East Jerusalem under international law is presently that of a territory illegally occupied by military conquest. Also, the Security Council specifically censured the adoption by Israel of the aforementioned 1980 Basic Law. By Resolution 478 of 20 August 1980, it stated that the enactment of that Law constituted a violation of international law.
Resolution 478 also called upon “those States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City”, a statement with which, at the time, all States complied. More recently, however, the debate over the status of Jerusalem has been re-ignited by the decision by US President Donald Trump to officially recognise Jerusalem as Israel’s capital and to move the US embassy to Israel from Tel Aviv to Jerusalem. This decision has been overwhelmingly condemned by the international community. In Resolution es-10/19 (2017), adopted with 139 votes in favour, 9 opposed and 35 abstentions, the General Assembly “call[ed] upon all States to refrain from the establishment of diplomatic missions in the Holy City of Jerusalem, pursuant to Council resolution 478 (1980)”. A draft resolution to this effect was tabled at the UN Security Council and received 14 votes in favour, failing to be adopted only due to the US veto. Only a limited number of countries – namely Serbia, Honduras, Guatemala, Vanuatu and Nauru – have followed in the footsteps of the US, recognizing Jerusalem as the capital of Israel and moving their embassies to Jerusalem.
Massimo Iovane, giurista