HAS ISRAEL 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 Jerusalem 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 Benjamin Netanyahu 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 East Jerusalem 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 annexation. action which is counter to Israel's exclusive sovereignty ova the city. From this point of view, the Netanyahu-Likud 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,Hebron. 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 dead sea' 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 Palestinians. Regardless in 1%7 or in 1980, when the Knesset 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 Israelis 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 Levi Eshkol 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. 35 ~ ~ ~~ MIDDLEEAST POLICY, VOL. V, No. 1, JANUARY 1997 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 Green Line Third, clear imposition of Israeli that art now included within the Israeli sovereignty on part of the Land of Israel 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 territories 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 Muslims 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 Palestine 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.