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Jerusalem: an Analysis of Legal Claims and Political Realities

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Jerusalem: an Analysis of Legal Claims and Political Realities JERUSALEM: AN ANALYSIS OF LEGAL CLAIMS AND POLITICAL REALITIES MICHAEL EISNER* Table of Contents I. INTRODUCTION .............................. 221 II. BACKGROUND .............................. 222 A. World War I to World War II ................... 223 B. World War II and the Creation of a Jewish State ....... 225 C. 1948 to 1967 .............................. 229 D. The 1967 War ............................ 232 E. The 1973 War ............................ 235 F. 1973 to Present ............................. 235 III. LEGAL TITLE IN JERUSALEM ..................... 238 A. East Jerusalem ............................ 241 B. West Jerusalem ............................. 250 C. The Walled City ............................. 257 IV. TOWARD A SOLUTION .......................... 260 A. Political Realities .......................... 260 B. The Alternatives ........................... 268 V. CONCLUSION ............................... 275 I. INTRODUCTION Over the course of the last century, in the territory of Israel, two distinct peoples, Jews and Palestinians, have been locked in a fierce struggle of competing nationalisms. It is a struggle for survival, focused on the acquisition and control of land. More than any part of that land, the City of Jerusalem has remained the focal point of Palestinian and Israeli national aspirations. Both peoples look to Jerusalem for a profound and spiritual connection to their cultural and historical roots. This connection has made sovereignty and control over the City a powerful symbol of national redemption for both Israelis and Palestinians. On September 13, 1993, Palestinians and Israelis took a step toward compromise and co-existence. In signing a Declaration of Principles on Interim Self-Government Arrangements, Israeli Prime Minister Yitzhak Rabin and Chairman of the Palestine Liberation Organization Yasir Arafat Attorney-Adviser, U.S. Department of State; J.D., Yale Law School, 1991; B.A., Yale College, 1987. This article was researched, written and accepted for publication before Mr. Eisner joined the Department of State on November 15, 1993. He made no substantive changes after that date. Wisconsin InternationalLaw Journal recognized the existence of the other side and pledged their peoples toward a compromise of their respective claims. The future direction, depth, and details of this compromise with respect to the critical issues will determine whether or not it will lead to lasting peace. Perhaps the most critical of these issues is the question of Jerusalem. Israel has staked a claim to a unified City under its jurisdiction. The Palestinians and Arabs demand sovereign rights in East Jerusalem and the Walled City. This article will analyze the legal issues and political realities underlying each side's claims in Jerusalem. In facilitating a negotiated settlement, international law not only must mediate conflicting legal claims, but also must bend to accommodate the unavoidable political realities. In this process, the minimal demands of each side will hopefully become compatible as a negotiated settlement evolves toward a lasting peace. Part II of the article provides an overview of the Palestinian-Israeli struggle, with a focus on the issue of Jerusalem. Part III analyzes and evaluates both sides' legal claims of sovereignty over the three sections of Jerusalem: East Jerusalem, West Jerusalem, and the Walled City. Part IV explores the political realities that must be addressed in any settlement and provides alternative models for the resolution of the conflicting claims. The article concludes with a recommended solution that seeks to harmonize the legal claims with the political realities. II. BACKGROUND To a great extent, legal rights and legitimacy derive from the history of a struggle.1 Depending on the perspective of the writer, historical accounts can legitimize and justify Israel's sovereignty in West and East Jerusalem or delegitimize and challenge Israel's very right to exist. As a result, historians and jurists on both sides of the struggle frequently attempt to manipulate the facts to meet a particular legal theory. As far as possible, this article will attempt to use history only to provide background for the legal claims and not to propagate the views of either side. An overview of the Palestinian-Jewish struggle since the end of Ottoman rule in 1917, with a focus on Jerusalem and on particular events that led to the current situation, will help put the legal issues with respect to Jerusalem in their proper historical and political context. I See Lea Brilmayer, Secession and Self-Determination: A TerritorialInterpretation, 16 YALE J. INT'L L. 177, 189 (1991). Vol. 12, No. 2 Jerusalem:Legal Claims and Political Realities 223 A. World War I to World War II The Ottoman Turks conquered Palestine in 1517 and ruled it for 400 years, until British forces conquered the territory, including Jerusalem, during World War I2 In November 1917, as Britain was consolidating its control over Palestine, the British Foreign Office issued a letter, signed by the Foreign Secretary and approved by the British cabinet, that raised Jewish hopes for the creation of a state in Palestine. The letter, which became known as the Balfour Declaration, stated: His Majesty's Government view with favor the establishment in Palestine of a national home for the Jewish people, and will use their best endeavors to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by the Jews in any other country.3 The Declaration did not explain what it meant by a "national home," or what geographical boundaries the "home" would encompass. 4 The legal status of the Balfour Declaration was enhanced by it's incorporation into the League of Nations Mandate for Palestine in 1922. The Council of the League of Nations approved the Mandate for Palestine, classifying the Mandate as group A, designed for "communities that have reached a stage of development where their existence as independent nations can be provisionally recognized, subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to 2 See HENRY CATTAN, THE PALESTINE QUESTION 7 (1988). Turkey formally ceded control over Jerusalem and all of Palestine to Great Britain in the Treaty of Lausanne in 1923. Treaty of Peace between the Allied Powers and Turkey, July 24, 1923, 28 L.N.T.S. 11. ' Balfour Declaration, Letter from James Balfour to Lord Rothschild (Nov. 2, 1917), in THE ISRAEL-ARAB READER 17, 18 (Walter Laqueur & Barry Rubin eds., 1985) [hereinafter THE ISRAEL- ARAB READER]. 4 Whatever its exact meaning, the Balfour Declaration became a focal point for Zionist aspirations and Arab attacks. To this day, the Declaration remains a source of historical controversy for Arabs and Israelis. One pro-Palestinian commentator called the document a "void, morally wicked and politically mischievous declaration." CATTAN, supra note 2, at 13. Despite the commentator's unlegal language, he goes on to make a convincing legal argument concerning the illegitimacy of the Declaration: [T]he Balfour declaration was also void because the British government, a foreign power in regard to Palestine, did not possess, nor had it ever possessed, any sovereignty, right of disposition, or jurisdiction over Palestine, that enabled it to grant any rights, be they political or territorial, to an alien people over the territory of Palestine. A donor cannot give away what he does not own. Id. at 14. Wisconsin InternationalLaw Journal stand alone." 5 The Principal allied powers "also agreed that the Mandatory should be responsible for putting into effect the Declaration made on November 2nd, 1917, by the Government of His Britannic Majesty" .6 The Mandate went on to recognize "the historical connexion of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country. ,7 The Mandate's commitment to a Jewish "national home" encouraged Jews to immigrate to Palestine in great numbers! During the 24 years of the British Mandate, the Jewish population in Palestine grew from 83,790 in 1922 (or roughly 12% of the population) to 608,225 in 1946 (or roughly 33% of the population).' The rise of Hitler in Germany also provided a powerful impetus for Jewish immigration to Palestine, which, at least until 1939, remained one of the few areas admitting Jewish refugees. In the face of rising Jewish immigration, the Arabs began a campaign of resistance against the British Mandate in 1936.10 Demanding a prohibition of Jewish immigration, a ban of land transfers from Arabs to Jews, and an end to the British Mandate, the Arab campaign soon became a full-scale revolt against British rule.11 In response to this revolt, the British created a Royal Commission to study the roots of the conflict and to propose a solution. One year later, in 1937, the Peel Commission recommended a partition of Palestine into Jewish and Arab states. The Commission found "no common ground" between the Jewish and Arab communities engaged in "an irrepressible conflict," and recommended partition as the best alternative to end the conflict. 2 The Commission's proposal called for a continuation of the British Mandate over Jerusalem, Bethlehem, Nazareth, a corridor to 5ALLAN GERSON, ISRAEL, THE WEST BANK, AND INTERNATIONAL LAW 42 (1978). The Council of the League of Nations,
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