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Home , Dore Gold, East Jerusalem, Geula, Golan Heights Law, Jerusalem District

HAS ANNEXED EASTJERUSALEM?

IanS. Lustick

Dr. Lustick hpro$ssor ofpolitical science at the University of Pennsyhania

rI-1 he Israel-PLO agreement in Oslo government's repeated and categorical refusal permitted a delay before the parties to consider compromises on the fitture of would begin negotiations over expanded East suggests that he may 1 "permanent-statusissues"- wish to enjoy the benefits of appearing to take including settlements, boundaries, rehgees and the peace process seriously while insuring its Jerusalem. That delay, until the beginning of failure with an unyielding position on the key the third year of the "interim period," ended in issue of Jerusalem. May 1996 when the permanent-status Indeed on no issue has the Netanyahu negotiations were formally begun. Shortly government been more explicit about its afterward was elected, opposition to compromise than with respect to replacing Shimon Peres as IsraeFs prime the fitm of expanded East Jmsalem. Its minister and putting those negotiations on official guidelines read as follows: hold. Many wonder whether the tangled dispute over details of Israeli redeployment Jerusalem, the capital of Israel, is one city, hmHebron and provocative Israeli moves in whole and united, and will remain forever signal the new government's under Israel's soverei gnty....?he government determination to stonewall the pea& p"cess will thwart any artempt to undermine the while expanding settlements and de facto unity of Jerusalem, and will prevent any . action which is counter to Israel's exclusive ova the city. From this point of view, the Netanyahu- government is doing to the In a study of the Jerusalem question published Oslo negotiating process what the Begin-Likud shortly before the 1996 election, top Netanyahu government did to the 1979-8 1 autonomy foreign-policy adviser Dore Gold argued that negotiations and what the Shamir-Lhd even if a compromise might be possible, government did the to post-Madrid talks. involving a Palestinian capital in Ah-Dis and Prime Minister Netanyahu officially denies this additional neighbohoods of East Jerusalem, is his policy. He has repeatedly expressed his Israel should do everything it can to prevent commitment to the successhl completion of such an outcome, relying on unilateral actions the process and has demonshated his peace of Judaiion and American diplomatic readiness to find some way to implement an support to consolidate permanent Israeli Israeli redeployment in, if not h,. control, not only of expanded East Jerusalem, it is on the question of Jerusalem But that but of a large Jerusalem metropolitan region Netanyahu's sincerity will really be His tested. and of a sbip of land connecting the Jerusalem

34 LuSncK: HAS ISRAEL ANNEXEDEAST JERUSALEM?

metropolitan region to the northem edge of the measures it implemented in 1967.' In fact, this ' did not occur. As I shall show, even the Eshkol Such rhetoric, and such grandiose schemes government itself, in the last such official about the future of Jerusalem have been a announcement ever made by an Israeli staple of Israeli politics for years, camouflaging government on the subject, declared that the the very real divisions and disputes within measures taken to expand the jurisdiction of the Israel about how to govern andor share the city Israeli municipality of Jerusalem did nor entail and its environs? But regardless of the annexation ofthe 71 square kilometers catechisms on Jerusalem that the Israeli involved and were only implemented as an right-wing has lately tried to force all Israeli administrative convenience for the city's Arab politicians to recite, and the premature closm inhabitants and in order to protect the holy of the question they wish to achieve, the firture places. Nonetheless, the widely held view, of expanded East Jerusalem is, in a legally and both in Israel and outside it., is that the State of politically binding way, subject to negotiation Israel actually annexed East Jerusalem-either between Israel and the . Regardless in 1%7 or in 1980, when the of what happens in Hebron, and even if they promulgated the hicLow: Jemdem. are delayed until the election of a new Cqital ojlraehd has hlly asserted its government in Israel, Ismeli-Palestinian sovereignty there. This mistaken impression negotiations will resume their forward unnecessarily complicates an already tangled momentum only after an agreement that the problem and tends to obscure available legal, fimye of "al-Quds,"if not 'Yerushalayim," will political and administrative options for the be a central item on the agenda of those ciws htu~that otherwise might well be negotiations. Once those permanent-status capable of gamering significant support among negotiations, or negotiations about the both and Palestinians. In this essay I negotiations, begin, it will quickly become seek to clarifL the exact administxative and apparent how much the problems associated political status of expanded East Jerusalem with the issue of Jerusalem have been clouded within the hrudi legal framework. and complicated by misconceptions so basic To be sure, there are Israeli jurists and that few have even thought to examine them. scholars who maintain that annexation has One such misconception is the mistaken been accomplished. Their arguments are weak claim, asserted by many, including Dore Gold and often calculated to create the political and in his 1995 publication on Jerusalem, that the legal reality that they implicitly admit does not government "annexed" East now exist. From virtually any international Jenrsalem by the legal and administrative legal perspective, according to prima hie considemtion of the relevant documents and laws inside of Israel, consistent with the claims implicit in the behavior of Israeli politicians and 'Dore Gold, Jerusalem (Tel-Aviv: Jafee Center for based on the explicit judgment of leading Strategic Studies, 1995), Final Status Issues Series, Israeli judges and legal scholars, neither NO.7, pp. 27-28 and 36-43. annexation nor the extension of sovereignty 2 On this point see Ian S. Lustick, "The Fetish of that attaches to annexation, has occurred. Jerusalem: A Hegemonic Analysis," in fsrael in Comparative Perspective: Challenging the Conventional Wisdom, Michael N. Barnett, ed. (Albany: SUNY Press. 1996), pp. 143-172. 'Gold, Jerusalem, op. cit.pp. 5-7.

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First let us carehlly consider what was admit the right of annexation, even following a done in 1967 and what the government of war of self-defense, unless agreed upon as part Israel thought and annound that it had done of a peace settlement with mpect to the areas across the Third, clear imposition of Israeli that art now included within the Israeli sovereignty on part of the municipality of Jerusalem. Although the occupied during the June war, but not all of it, Eshkol government wanted to treat East would have raised ideological and political Jerusalem differenty fhm other difficulties with those in Israel who favored occupied during the June fighting, and imposing Israeli sovereignty on all parts of the although it is clear that the govemment wanted Land of Israel under the state's control. Finally, to establish the basis for permanent Israeli of course, outright annexation of expanded East control there, its desire to avoid publicly Jerusalem would have made it impossible, or at announcingthat factwasalsoappamlt least more awkward, to have not also imposed There were four primary reasons for this Israeli cihhipon its Arab inhabitants. reluctance. First, Rather than expand Ismel did not want a the borders of the state co*ntation with the ...outright annexation of ofIsraelpersewhat world community Israeli leaders chose to over this issue. expanded East Jerusalem do was to expand the Because of the would have made it municipal borders of one religious and impossible, or at least more Israeli city, Jerusalem. 1 vnbolic awkward, to have not also This was accomplished of the city to by the following series andChristians, imposed Israeli citizenship of actions, no one of because of the on its Arab inhabitants. which contained the historical role played word "annexation" there by many of the (sipwch)or great powers, and because Israeli officials had "sovereignty" (ribomd). declared during the war that 1-1 Fkt, on June 27,1967, the Knesset passed no territorial ambitions but sought only peace, it an amendment to the "Law and was fdthat a confuwltationover Israeli Administration Ordinance" that was published annexation of the city would trigger a firestMm in the official Gazette on September 22,1948. of opposition that would deprive Israel of the As it stood before this amendment, that international goodwill it enjoyed after the war Ordinance declared that all laws applying and would need in post-war bargaining over within the State of Israel would apply to "any peace agreements. part of which the minister of defence !kond, Israel seemed uncomfortable with has defined by proclamation as being held by the international legal implications of the Defence Amy of Israel." The 1%7 annexation. Its subsequent defense of the amendment to this ordinance reads as follows: actions it did take emphasized their codonnity with the requirements and In the Law and Ahinidration ordinance, expectations of intemational law, in particular 1948, the following Section shall be insated the Hague Regulations of 1907, which did not aRersectimIIA: IIB. Tbe Law,jurisdiction and adminismion of

36 LUSTICK:HAS ISRAEL ANNEXEDEAST JERUSALEM?

the state shall apply many area of& The third crucial measure taken was Yisrael designated by the government by publication on June 28,1967, by the interior order. minister, of the following declaration:

'Ihree things are changed here. First, it is In accordance with my powers under not the minister of defense that is specifically paragraph 8 of the Municipal Corporations and solely named as having the power to make Ordinance [i.e. that amendmenf passed the day the neceSSary declaration; it is "the before, and descn'bed above], I declare as government" Second, no specific importance follows: is attached to the defense minister's designation 1. The Boundaries of the Jerusalem of an area as "being held by the Defence Army Municipal Corporation will be the inclusion of of Israel." Third, the larger area within which the am descrii in the Annex [this "Annex" this power is capable of being exercised is was ahpagelist of latitudinal and longitudinal points descriiing the current, but within "Eretz Yisrael" rather than "Palestine" (a never peexisting, municipal border in the provision of some semantic but no operative north, =& and =uW. significance). 2.'lhisdeclarationshailberefdtoas This amendment thereby made it possible 'The JdemDeclaration" (extension of the for the minister of defense to consider some boundaries of the municipal corporatiOn), 1967.' parts of the Land of Israel (Gaza or the larger , for example) as held by the Israeli The immediate explanation for these army but without Israeli law in force, while measum offered by the Israeli government other areas (i.e. the 71 square kilometers of emphasized what it characterized as the expanded East Jenrsalem), also held by the practical requirements of the inhabitants of the army, could be designated, by "government affected area-a rationale directly in keeping order," as areas wherein Israeli law could be ' with the logic and requirements of the Hague enforced. Regulations, which permit no change in the A second Knesset action, also taken on permanent status of belligerently occupied June 27,1967, was to amend the "Municipal but do permit and require the occupier Corporations Ordinance" by inserting a to assume responsibility for the basic needs of paragraph which would add to the powers of the inhabitants. An official government press the interior minister to act, "at his discretion release, dated June 28,1967, read (in part) as and without holding an inqu by...."The power foll0ws:J added by this law allowed the interior minister to "enlarge, by proclamation, the area of a In order to +I any possible phcular municipal coqxdon by the misunderstanding the Foreign h4msb-y inclusion of an area designated by order under section of the Law and Administration IIB 'On June 27, 1967, the Knesset also passed the Ordinance, 1948. [referring to the above- "Protection of Holy Places Law." Like the other described amendment to that law]." It is two laws, this law does not mention Jerusalem. Its sigruficant to note that although this law also main purpose was to make desecration of a holy gave the Interior Ministry the right to appoint place or interference with free access to a holy place municipal councilors hmamong the inhab (anywhere where Israeli law was in force) punishable by substantial prison terms. itants, there was no mention of whether these Three more paragraphs dealt with protection of the inhabiits would need to be Israeli citizens. Holy Places.

37 MIDDLEEAST POLICY, VOL. V, No. 1, JANUARY 1997

spokesman khred tonight that the basic Law, immediately have reverted to the'Israeli purpose of the ordinance concerning the fusion government's office of the Custodian of of the J&m municipal areas is to provide Absentee Property. It took many acts of full municipal and social seavices to all administrative discretion, and a law passed in inhabitants of the city. The hion of the August 1968, to alleviate some of these municipal services will ensure that no social inequalityandkgaldiffmcesinrespbdof absurdities. Services, wekand education enjoyed by all Many anomalies remained, however. One inhabitants of Jerusalem will exist From now important anomaly was the Education on all residents will be in aposition to receive all Minisby's abandonment of its efforts to the services normally extended by the enforce Israeli curricula on Arab schools in municipality such as water, electricity, public expanded East Jerusalem, permitting them healfh,welfare,education,etc.' instead to continue using Jordanian curricula and testing anangements. lhis is a precedent From a practical point of view, however, it of some importance now, as discussions was precisely the passage of these sweeping pdconcerning the PNA's authority over laws and adminstrative declarations that publioschool education in expanded East caused problems. Many in the government Jerusalem. It is also worth noting that the understood very well how many difficulties problem posed by the reW of Arab would be created by an actual attempt to businessmen and profaionals in expanded sepamte East Jerusalem hmthe West Bank. East Jerusalem to apply for Israeli licenses and In September 1967, the Ministerial Committee permits was "solved" by recognizing Jordanian for Jen~salemAffairs decided "not to establish permits and licenses as valid without requiring a banier between the West Bank and individuals involved to make application to the Jerusalem" since it was acknowledged that "it Israeli authorities.' It is most significant that is impossible to ignore the historic connection this same procedure, which turned virtually all of Arab Jedemto its periphery."' Even in the territories made part of Israel in inside enlarged Jerusalem itself, add 1948,1949 and 1950 into Israeli citizens, was enforcement of the law would create an not adopted toward the Arabs of expanded East impossible situation. Had the full scope of Jerusalem. According to , Israeli law really been imposed on the Israel's leading specialist on intemational law as inhabitants of the designated area, then any it pe& to such matters, a distinctive element activities performed within it that required any of annexation of territory is that citizenship is sort of Isrileli pennit or license (practicing automatically imposed upon the territory's medicine or law, constructjon,operation of inhabitants without their application or businesses, driving motor vehicles, etc.) would request9 have been proscribed. Not only that, but all In this context it is worth noting the promowned by inhabitants of the area specific manner in which the Arabs of the would, by the terms of the Absentee Roperty

~~ ~

'Uri Stendal. The Arabs in Israel: Behveen Hammer 6Again, it is worth noting that the wording of both and Anvil (Hebrew) (Jerusalem: Academon, 1992). the laws passed and the explanation offered says .331-32. nothing about the citizenship status of the 'Cited by Nathan Krystall in "Urgent Issues of inhabitants of the affected area. Palestinian Residency in Jerusalem," Alternative 7Huuretz, August I, 1991. (emphasis added) Information Center, Jerusalem, October 1993, p. 3.

38 -~~ ~~ ~ ~~ ~~ ~ LUSTICK:HAS ISRAEL ANNEXEDEAST JERUSALEM?

Little Triangle, bansferred by agreement with difficulties of the Arab inhabitants of the city Transjordan to Israeli jurisdiction on June 1, who otherwise would be severely 1949, were made Israeli citizens. This was a inconvenienced by the difficulties they would case of expansion of the borders of the state, encounter in gaining access to necessary which Israeli courts explicitly described as services. Secrekuy-General U Thant then "annexation." Under the terms of the requested Israel's reply to the resolution. Nationality Law of 1952 the 30,000 Arabs who According to Eban, the official reply that he lived in the Little Triangle were made citizens prepared was drafted with assistance from of the state by virtue of having been registered Minister of Religious Main Zerah Warhaflig on March 1,1952, as inhabitants under the and Minister-without-Portfolio Menachem Registration of Inhabitants Ordinance of 1949. Begin. Delivered to the U.N. Secretary In other words, these individuals became General on July 10,1967, the letter repeated citizens of Israel without applying for Eban's earlier disclaimers, arguing that criticism naturalization, simply by virtue of having been of the steps Israel had taken was based on a registered as inhabitants of territory that had findamental misunderstanding: been annexed to the state. Now, in fact, a census was canied out of the inhabitants of 'Ihe term "annexation," is out of place. ?he expanded East Jerusalem. On June 26,1967 a meaSureS adopted related to the integration of quick and rather inaccurate registration was Jerusalem in the administrative and municipal spheres furnish a legal basis for the done of the Arab population in the area of what and pmte-ction of the Holy Places.'" was to be added to the Israeli municipality. But those registered in the census received Despite its official position, successive Israeli identity cards describing them, not as governments in Israel have tried, in their citizens, but as "Permanent Residents." To policies and propaganda, to create the obtain citizenship, these Arabs have had to impression that the fate of Jerusalem has been apply for it through the normal naturalization sealed-that politically and legally and in every channels available to any non-Jew in the world other respect the portions of the municipality who might wish to apply for Israeli citizenship. In this specific mpt, at least, Israel did I0Letter of Israel's foreign minister, . to abide by the official declarations made by the the U.N. secretary-general concerning General government, in 1967 and again in 1968, that Assembly Resolution 2253 (ES-V), July 10, 1967, GAOR. 5th Emergency Special Session, 1967, expanded East Jeruasalem had nor been I(N6753 or S/8052); reprinted in The Jerusalem annexed. This explanation was officially Question and its Resolution: Selected Documents advanced by Minister of Foreign Affairs Abba (Dordrecht: Martinus Nijhoff Publishers, 1994) Eban, who made the first and last formal Israeli Ruth Lapidoth and Moshe Hirsch, eds., p. 172. See declaration concerning the putative also Abba Eban. Abba Eban: An Autobiography (New York: Random House, 1977). p. 442; and "annexation" of enlarged East Jerusalem. In his Ruth Lapidoth, "Jerusalem--Legaland Political speeches during and prior to the U.N. General Background," Israel Government Internet Gopher Assembly resolution of July 4, I967 (which Information Client, vol. 2.0 16 (September i994). declared Israel's ads in the city invalid), Eban Lapidoth's characterization of the argument in asserted that in their intent and their effect these Eban's letter is that the measures taken in "did not constitute annexation. but only ads had been implemented in order to ease the administrative and municipal integration."

39 MIDDLEEAST POLICY, VOL. V, No. 1, JANUARY 1997

over the Green Line a~ as much a part of the As in 1967, neither the word "annexation" country as any other district This is not the (sipuach)nor "sovereignty" (ribonut) were place to detail or evaluate the success of these used. The consensus of legal scholars is that efforts, or the arguments of those who claim this action added nothing to the legal or that in many if not most respects the city is administrative circumstance of the city," divided between Arabs and as deeply as it although, especially at the time, its passage was has ever been since 1948." It is clear though, considered to have political importance and that a fundamental lack of confidence on this sparked a vigorous protest reaction from the point is what mlted in Knesset passage of the world community. As was meof the somewhat bizarre "Basic Law: Jerusalem, legislation and administrative measures taken Capital of Israel" in 1980. in June 1967, the Basic Law-Jerusalem of 1980 This legislation began as a private bill neither proclaimed Israeli sovereignty in or advanced by Cohen, who left over the city nor used the term "annexation." Menachem Begds Herut party in protest Added to the reasons for this avoidance in 1967 against the Camp Davidaccords. In her was the promise the Israeli govemment made original version, the Bill declared that ''the to the at the time of the Camp integrityandunityofgreaterJetusalan David 8ccoTds to refiain fiom advancing or (YemMayim rub) in its boundaries ah implementing claims to sovereignty in parts of the Six-Day War shall not be violated." Had the land of Israel acwthe Green Line before this clause been allowed to main within the the completion of the transitional period of "full bill as passed into law, the legislation would at autonomy" and befm the end of negotiations least have had some operative meaning. The on the final settlement Evidence that the Begin clause, however, was dropped after the fifst government, even after passage of this law, reading of the bill. As passed by the Israeli understood that Israel had yet to fully annex parliament, the relevant clause of the Basic this city and that it did not have a claim to Law reads as follows: "Jerusalem, complete sovereignty which could be defended before and united, is the capital of Israel." the International Court of Justice, is its decision As is apparent, the law, insofar as it relates to withdraw its attempt in October 1980 to take to the status of the city, is strictly declarative in over the Palestinian-owned East Jerusalem nature (and redundant, since action taken in Electric Corporation. According to press 1949hadalreadyestablishedJerusalemas reports, officials believed that the move would Israel's capital). Although 'Yerushalayim"is interfere with the continuing process of referred to as "complete and united" (.&ern establishing "the future status of Jdmas a and meuchedet), boundaries are not specified. unified city under fbll Israeli sovereignty."" Above all, it has been the judgments of the Israeli Supreme and arguments made by II court On one important aspect of this question, Israeli jurists in the process of making those regarding the boundaries of Jerusalem, see Ian S. Lustick, "Reinventing JeNsakm," Foreign Policy, ~~ No. 93 (Winter 1993/94), pp. 41-59. On the pervasiveness of Arab-Jewish segregation in the "According to Lapidoth, the Basic Law "contains Jerusalem municipality see Michael Romann and no innovation but merely repeats matters previously Alex Weingrod, Living Together Separuiety: Arabs laid down." "Jerusalem-Legal and Political and Jews in ConfemporaryJerusalem (Princeton: Background," op. cit. Princeton Univ. Press, 1991) "Muariv, October 20, 1980.

40 LUSTICK:HAS ISRAEL ANNEXED EAST JERUSALEM?

judgments that meal the complexity of which ruled against the dealer. It is not the expanded East Jerusalem's status in Israeli law. ruling, however, but the basis of the ruling and What emerges fi-om these judgments and the the reasoning presented that ~JEof interest. strained and awkward reasoning contained in Justice Vitkon noted that "large and some of them is that these 7 1 square kilometers important questions can arise in this matter" exist in a kind of Israeli legal limbo. This status but that the Court should and would avoid was created to obviate the need for formal them in its decision. He rejected the deputy announcements of annexation or sovereignty, attorney general's argument that the but a status destabilized by legal principles that imposition by Israel of its laws and require such announcements, imposition of administration on East Jerusalem was citizenhip, and/or international recognition in equivalent to annexation. He also criticized the order for questions of sovereignty to be military government for not asking the definitively answered. Although the court had govemment for a formal determination about briefly observed in a 1968 case, Wisvs. whether East Jerusalem had been made a part Tribunal of the Greek Orthodox Church, that of the State of Israel or not. In any event, the actions taken in June 1%7 had established Vitkon reasoned that since East Jerusalem was "United Jerusalem" as "an integral part of "de fxto" outside the jurisdiction governing Israel," what that meant legally was left Hebron, the Jordanian law could be applied. unresolved. The best-known and most Thus he was pleased to be able to decide the commonly cited opportunity the Israeli case without deciding whether East Jerusalem Supreme Court had to speak clearly on this had indeed been annexed to Israel or made a matter came in 1969 when an unusual case part of the State of Israel." (Ruidi vs. Hebron Military Tribunal) came Justice Haim Cohen, in his opinion, before it on appeal. Although it has been sh'essed that neither the Supreme Court of inhycited to prove the opposite of the Israel nor the military government could make conclusions it contains, the reasoning in this a determination as to whether East Jerusalem case and its outcome are strong evidence for had been annexed or who was sovereign there. my interpretation of the legal situation in the That, he stressed, was a political problem. He context of which the Israeli government asserted that his judgment against the appellant remains extremely reluctant to make or test any official claim to have annexed expanded East was not a judicial determination in the Jerusalem to the State of Israel. exlmndhy political question we have Ruidi was an Arab antiquities dealer who delineated, and does not constitute our transferred antiquities hmHebron to his store autt~orizatjonregadmg a judicial in East Jerusalem. The military government charged him with breaking the Jordanian law against expodng antiquities "out of the "For an example of how this decision has been cited incorrectly, to the effect that Ruidi did country" since, in view of the military establish that enlarged East Jerusalem had been government, East Jenrsalem was no longer in annexed to the State of Israel, see Devorah the same country as Hebron. Ruidi's lawyen Housen-Couriel and Moshc Hirsch, East Jerusalem successfblly demanded a restraining order and the Elections to Be held in , , and against the military government The military Gaza, in Accordance with the Israeli Peace Initiative of May 1989, Background Paper #8 then brought the matter to the Supreme Corn (Jerusalem: Jerusalem Institute for Israel Studies, 1992). p. 2 (Hebrew).

41 MIDDLEEAST POLICY, VOL. V, No. 1, JANUARY1997

determinationoftheHebrmmihrycourfbut so, but that Yehuda Blum's criticism of his wasbasedonly on the huthat the appellants position and the midentandings thus agreedth East Jerusalem hadbeenannexedto created required a response." Blum's argument the State of hael and that HebFon had notbetn for Israeli sovereignty over all of the West annexed, tfiere being M need to mention that Bank rested on the claim that the 1949 such an agreement has no bearing outside this armistice line, least on eastem specific case and this appllant'' a! Israel's frontier, was not a real border, thus Israel could In his authoritative analysis of this case, assert sovereignty in that area (including in Yoram Dinstein noted the ironic fact that here, expanded East Jerusalem) without invoking legal formulas of annexation that would as in other for4 the Arabs have generally been conhdict . Dinstein argued the ones to exaggerate the meaning of Israel's Israel had the armistice line actions and declarations, to interpret them as that recognized having constituted the "annexation" of East with (including the line in Jerusalem) as a border state had recognized rhe Jerusalem, whereas Israel itself has always and that each refrained hmmaking this ~1aim.I~Dinstein soven3gnty of the other acm that line. He argued that it was a pity that the problem of also ssessed that it was dangerous to abandon the armistice line was a border East Jerusalem's legal status had ever been the position that because the other candidate was 1947 allowed to arise, since Israel was on very weak only the partition lines. Dinstein concluded by ground and had not in fact annexed the tenitory noting legally Israel could not in question. Dinstein draws attention to the fact that and formally successfilly assert had not asserted) its that the Knesset explicdy chose not to use the (and sovereignty over East Jenrsalem or its annexation law of 1948 to change the status of annexation of it and stemly wamed expanded Jerusalem hnoccupied tenitory to against making any kind of formal declmtion of a part of the State of Israel. annexation sovereignty over East Jdem. In a subsequent article, Dinstein or On the other he recommended Israel emphasized that he was reluctant @discuss the hand, that Jerusalem issue and thought it all in all an pdto settle the area massively, consider its extremely bad thing for him to be forced to do rule of the area ''¥u'' (enough for us) and hope that eventually the "StaMe of limitations" would nm out, and Israeli annexation could be

IS established and recognized. The appellant had argued that since the military Two 1988 also shed light the government had been charged with enforcing the casa on laws operative in the West Bank on June 7, 1967, actual legal status of enlarged East Jerusalem, and since that date preceded Israel's decrees hmthe Israeli pespective, as well as on the regarding expanded East Jerusalem. that for thr role which some justices see their reason, the antiquities dealer had not transferred the interpretations as playing in the movement of antiquities "out of the country." In his comment in the case, Justice Y. Kahan notes that the measures that status fiom de fact0 Ismli control to full taken by the government of Israel in June 1967 wm and recognized annexation and sovereignty. not annexation, although they were "not inconsistent , a Palestinian activist hEast with the conlcusion that the legislative intent... was Jenrsakm, had emigratedtothe United States to authorize the government to annex ...." Thus Kahan makes it clear that in order to annex enlarged East Jerusalem another legal action by the State of Israel would be required. 16Hapraklit,1971, Vol. 27, 5-1 1. 17Hapraklit.1971. Vol. 27, 519-522.

42 LUSTICK:HAS ISRAEL ANNEXEDEAST JERUSALEM?

and then returned to East Jerusalem. He lived the trend of the legislation is to bring about there on a tourist visa that the government sync-on between the law, etc., of the refused to extend. He appealed the deportation State on the one hand and East Jerusalem and order issued against him to the Supreme Court- its inhabitants on the other hand. The purpose The Court rejected Awad's argument that East of interpretation is to give effect to this trend as far as possible and to find a basis for it in the Jerusalem's special status precluded the statutory language." application to him of the law under which he was being deported. In its explanation of the It is the obvious need for this judicial case the court quoted hmthe amended law activism to achieve a legal status of and Administration Ordinance of June 1967 to annexation and sovereignty via layers of the effect that the state's "law, jurisdiction and (mis)interpretation which speaks most clearly administration" had been extended to enlarged about the East Jerusalem. "East bdamental absence ______~ ~ Jerusalem," continued of an act of the court, "was unified ... the still authoritative annexation or of an with the rest of the city. proclamation was the act extending Israeli lhis is the significance government of Israel's reply sovereignty over of the annexation of to the U.N. secretary-general enlarged East East Jerusalem to the Jerusalem. State and its becoming in July 1967, which explicitly In a subsequent an ink@ part thereof denied that Israeli actions in case, handled by the (see Kazidi [sic] vs. Military Tribunal of expanded East Jerusalem constituted annexation. Court, the High Hebron)."" As I have Court's reasoning explained, this is a was, in fact, blatantly erroneous use abandoned in favor ofthe Ruidijudgment, employment by ofa position that reflects more honestly and justices of such a citation is explained by a consistently the Ruidi decision. Yoel Davis, a subsequent passage in the Awad judgment in hgitive justice who was which the court observes that arrested in East Jerusalem's , sought to resist an extradition order by claiming that he was not arrested on sovereign Israeli temtory "Mubarak Awad vs. Yitzchak Shamir, H.C. 282/88, and therefore could not be extradited under the translated in The Jerusalem Question and its terns of the Exbadition Convention between Resolution: Selected Documents Ruth Lapidoth. the United States and Israel. In his judgment and Moshe Hirsch, eds. (Dordrecht: Martinus Nijhoff Publishers, 1994). p. 532. "Kuidi" is an Davis's Judge yaacov erroneously transliterated reference to the "Ruidi" did not reject the claim that )ktJerusalem had case, a mistransliteration which built upon an error not brought under Israeli sovereignty, but the court itself made by referring, in its 1988 ruling. that Israel did exert de facto to "Kauidi" instead of "Ruidi"(see above). A more control of the which was all was important error, as I have shown, is the citation of area, that this case, here by the Court itself, as a basis for claiming that the actions taken in 1967 had effected the annexation of enlarged East Jerusalem to the State of Israel. 19 Ibid., p. 533 (emphasis added).

43 MIDDLEEAST POLICY, VOL. V, No. 1, JANUARY 1997

required under the terms of the convention. To against criticism in the Israeli parliament that it be sure, he went on to cite the Ruidi and constituted "annexation" and for that mn Hanzalis cases as a basis for rejecting Davis's was a dangerous afhtto the world argument that "East Jerusalem was not part of community, the prime minister responded in a the temtory of the State of Israel," but he manner more or less identical to the language studiously avoided concluding that Israel had used by Eban in his official response to the either "annexed" or extended its "sovereignty" U.N. resolution condemning Israeli measures in to the East Jerusalem in 1967: You," Begin said fiom the Knesset podium, "use the word CONCLUSION annexation, but I am not using it"z' There has never been an official act that In the Israeli debate that rages over the has declared expanded East Jerusalem as firture of the , few argue that the having been annexed by the State of Istael. Golan Heights Law actually established Israeli Though politicians have referred to it as part of sovereignty there. By conbast, almost no one the tenitory over which Israel is sovereign, argues tha! Israel is not sovereign over the there has in fact never been an official westem or the northern . Those declaration of Israel's sovereignty over this areas were transformed from "occupied area. As far as official statements go, the still territories" to parts of the sovereign State of authoritative pmlamation was the government Israel, not by a declaration but by the of Israel's reply to the U.N. secretaty-general in imposition of both Isrcreli citizenship and law July 1967, which explicitly denied that Israeli upon all inhabitants of those territories and by actions in expanded East Jerusalem constituted international agreement to Israel's boundaries as annexation. In this co~e~ti~nit is also delimited by the armistice lines of 1949. important to note that the law which extended Absent the imposition of Israeli citizenship on Israeli administration and jurisdiction to the the Arab inhabitants of enlarged East Golan Heights in 198 1 used exactly *e same Jerusalem, absent a treaty with either Jordan or language as that contained in the ordinance the Palestinians that recognizes Israeli used to make the same extension of Israeli law sovereignty over enlarged East Jerusalem, and to enlarged East Jerusalem. When Prime absent broad international agreement to Minister Begin defended the Golan Heights bill permanent Israel rule of that area, the absence of official Israeli declarations of sovereignty or annexation with respect to expanded East 20 Attorney General vs. Davis, District Court of Jenrsalem is of great legal significance. Jerusalem. October 10, 1988, The Jerusalem To perfom a genuine act of annexation, Question and its Resolution: Selected Documents, i.e., to actually extend Israeli sovereignty to op. cit. p. 537. It is somewhat humerous to note that expanded East Jerusalem, Israel would, under the Ruidi case is referred to, again inaccurately, as be "Bravidi" in this judgment. The transliteration and international legal practice and to citation errors I have noted, by producing mythical precedents such as "Bravidi"and "Kazidi." in addition to the flagrant misconstruction of the substance of the Ruidi decision in the Awad ruling, "Live Radio Broadcast, December 14, 1981. may have helped strengthen illusions that the High Jerusalem Domestic Service. transcribed by the Court has ruled repeatedly and on separate Foreign Broadcast Information Service. Daily occasions regarding the supposedly settled nature of Report: Near Earl and Afiica, December 15. 198 I, Israel's legal regime in expanded East Jerusalem. p. 110.

44 ~ ~~ LUSTICK:HAS ISRAEL ANNEXEDEAST JERUSALEM?

consistent with both official policies and with change the boundary of the Israeli municipality Israeli constiMiona1 history, have to do what it of Jerusalem? did in 1948 with respect to the western Galilee The point of this essay is not to argue that and the northern Negev. Another model of legal niceties determine political outcomes. annexation that might be even more Nor am I claiming that there is one and only appropriate would be that followed in 1949 one possible meaning to terns like with respect to the incorporation of the Little "annexation"or "sovereignty." I simply wish Triangle into the State of Israel under the terms to show that from an Israeli perspective the of the Armistice Agreement of I949 between legal and political status of expanded East Israel and Transjordan or, more recently, the Jerusalem is not the settled and deeply model of annexation implicit in the embedded constiMional question that most Israel-Jordan peace treaty, which changed assume it is. These legal and political facts, Israel's sovereign borders by ceding territories combined with polls that show substantial to Jordan in the Naha~aydBaqura area and in flexibility in public opinion on both sideP, can the Arava (south of the Dead Sea). These assist serious negotiators to construct a transfers of territory from the sovereignty of mutually satisfying set of arrangements for one country or people to another were both sharing the partly overlapping, partly sepatate accomplished as parts of internationally districts of Jewish and Arab Jerusalem. recognized peace agreements ratified by the Israeli parliament and are now very widely accepted as legally and politically binding. While changing the boundary of Israeli jurisdiction in the Golan or in expanded East Jerusalem will, politically, be a much more 22 Indeed precisely this kind of order was issued, difficult maneuver and may well entail without much fanfare, in 1993, changing referenda, votes of nmnfidence in the Jerusalem's municipal border in the west and the south (regarding ). Knesset or even special elections, the legal "For recent polls showing many and even most requirements for such adjustments are much ready to accept Palestinian rule over less weighty than those associated with the various portions ofenlarged east jenrsalem see ceding of sovereign Israeli temtory to Jordan in Elihu Katz, Shlomit Levy, and Jerome M. Seigal. The Status ofJerusalem in the Eyes of Israeli Jews the Naharyim and Arava In the case of areas. (College Park, : Center for International East Jerusalem, all that is needed is a simple and Security Studies at the University of Maryland, adminisbative order by the Interior Ministry to 1997)

45