Preliminary Remarks

The Jerusalem question cannot be dealt with in isolation from the Palestine problem, which is essentially an issue of the right to self-determination of peoples, as enshrined in the United Nations Charter (Article 1[2]).[1] The corpus separatum approach, dating back to the “partition resolution” of the United Nations General Assembly,[2] is legally unfounded.[3]

The status quo in Jerusalem, as in the entire Palestine, is the result of a long and continuous series (a) of injustices inflicted on the native people of Palestine, particularly since the surrender of Jerusalem to British forces on 9 December 1917 and the end of the Ottoman Empire, and (b) of accumulated violations of international law[4] since that date. However, ex injuria jus non oritur. Otherwise, colonial domination over peoples in distant countries could still be justified today. Continued and persistent violations of international norms, adding one transgression upon another, do not necessarily correct a legally deficient situation, i. e. do not create legal rights.

 

(I) Colonial legacy prior to World War II

We shall first give a brief overview of events in terms of international law (since the termination of Ottoman rule in Palestine upon the end of World War I),[5] and from there proceed to an analysis of the legal facts pertaining to the present situation.[6]

In the period up to World War I, the Palestinians were subjects of the Ottoman Empire. According to the Ottoman Constitution of 1876, they did possess equal civil and political rights with the Turks,[7] including the right to elect representatives to the Parliament (Chamber of Deputies) of the Empire.[8]

As regards the subsequent developments, in particular the decisions taken by European powers that determined the status of formerly Ottoman territories, it is important to note that the Ottoman Empire, upon the termination of its rule over Arab lands, did never transfer sovereignty to the victors of World War I, namely the “Principal Allied Powers.” The Treaty of Sèvres (1920),[9] which would have included such a provision,[10] did not enter into force. The Treaty of Lausanne of 24 July 1923 (which entered into force in 1924, i. e. after the end of the Ottoman Empire) included Turkey’s renunciation of “all rights and title whatsoever” over the territories “outside the frontiers laid down in the present Treaty,” but not in favor of any other power(s); instead, the respective Article 16 contained the important proviso that “the future of these territories” will “be settled by the parties concerned,” a formulation that can only be meaningfully interpreted as to include the people that inhabited the respective territories at the time of Turkey’s abdication of her sovereign rights.[11]

Nonetheless, the people of Palestine were subjected to an effectively colonial régime that denied them the rights they should have enjoyed under the terms of the Treaty of Lausanne. Furthermore, the “British Mandate for Palestine” that followed Ottoman rule violated the very principles of the definition of “mandate” in the Covenant of the League of Nations, incorporated in the Treaty of Versailles, which was the only, though in itself dubious, legal basis for the British administration in Palestine. Article 22 of the Covenant stipulates that the “well-being and development” of peoples of territories that “have ceased to be under the sovereignty of the States which formerly governed them […] form a sacred trust of civilization.” This formulation would have required of the then international community (the member states of the League of Nations) to respect the civil and political rights of the people of Palestine and to assist them, through the mandate, in the development of social, economic and political structures that would eventually have enabled the Palestinians, in the language of Article 22, “to stand by themselves.”

In spite of this solemn commitment, the framework and regulations for the Palestine Mandate, entrusted to Britain in 1923 by decision of the Council of the League of Nations,[12] violated the very principles of this “sacred trust of civilization” and prejudiced the political developments in Palestine in a manner that curtailed the concerned people’s political rights. In actual fact, the “British Mandate for Palestine” was tantamount to an outright negation of the Palestinian people’s right to self-determination. Its Preamble explicitly states the Mandatory Power’s (Britain’s) responsibility “for putting into effect” the declaration which the British government had itself made earlier “in favour of the establishment in Palestine of a national home for the Jewish people.” This was a reference to the so-called “Balfour Declaration,” a letter signed by British Foreign Secretary Arthur James Balfour on 2 November 1917 on behalf of the British government, in which he confirmed that Britain viewed “with favour the establishment in Palestine of a national home for the Jewish people,” and pledged that the government “will use their best endeavours to facilitate the achievement of this object.”[13] Article 2 of the Mandate unambiguously states that “[t]he Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid out in the Preamble …”

Through these provisions, the League of Nations was also implementing the resolution of the “San Remo conference” of the “Principal Allied Powers,” the victors of World War I (Britain, France, Italy, Japan), of 25 April 1920. Under item (b) and by reference to Article 22 of the Covenant of the League of Nations, the resolution entrusted the administration of Palestine to a Mandatory who “will be responsible for putting into effect” the Balfour Declaration of 1917, a formulation that was eventually incorporated into the wording of the British Mandate. It is worthy of note that this formulation of the San Remo resolution was also used in Article 95 of the stillborn Treaty of Sèvres, Article 97 of which further stipulated that “Turkey hereby undertakes, in accordance with the provisions of Article 132, to accept any decisions which may be taken in relation to the questions dealt with in this Section.” This Article would have required Turkey (i. e. the Ottoman Empire) to renounce all rights and title “in favour of the Principal Allied Powers” and “to recognise and conform to the measures which may be taken now or in the future by the Principal Allied Powers.” For the proper legal evaluation of the British Mandate it is extremely important to be aware of the fact that Turkey’s abdication of her sovereign rights in favour of the “Principal Allied Powers” was initially understood to be the basis for the mandatory régimes in the former Ottoman territories in the Arab world. In reality, those powers considered themselves entitled to establish a mandatory régime in Palestine by virtue of a transfer of sovereignty that never occurred (because the respective treaty never entered into force). The (peace) Treaty of Lausanne that superseded the Treaty of Sèvres (and that contained no provisions for mandates) entered into force on 5 September 1924, i. e. after the League of Nations had entrusted Britain with the Mandate in Palestine.

Whatever the legal shortcomings (in terms of international treaty law) and inconsistencies of the arrangements finally enacted under the auspices of the League of Nations may have been, the “Mandate for Palestine” effectively curtailed Palestinian rights, and in the most basic sense. The denial of self-determination was the cardinal sin committed by the self-appointed guardians of peoples’ rights in the post-Ottoman order. The “tutelage” over the Palestinian people (according to the terminology of Article 22 of the Covenant of the League of Nations), as interpreted in the Mandate for Palestine, has set in motion a process that led away from independence, instead of promoting it, and that undermined the professed (implicit) goal of the League’s mandatory régime to assist peoples “to stand by themselves.”[14]

Although the architects of the post-Ottoman colonial order were well aware of this commitment, the contradiction between idea (the definition of “mandate” in the Covenant of the League of Nations) and reality (the actual intentions of the victorious powers that resulted in the wording of the British Mandate, enacted by the League) was rarely admitted. In a Memorandum of 11 August 1919, addressed to Lord Curzon, the British Foreign Secretary, Lord Balfour frankly stated: “The contradiction between the letters of the Covenant and the policy of the Allies is even more flagrant in the case of the ‘independent nation’ of Palestine […]. For in Palestine we do not propose to even go through the form of consulting the wishes of the present inhabitants of the country …”[15]

Furthermore, since the period of the war, the British had given contradictory promises to Arabs and Jews concerning the allocation of territories as well as the future status of the territories that were eventually given to one or the other side. In a letter dated 24 October 1915, Sir Henry McMahon, the British High Commissioner in Cairo, had, “in the name of the Government of Great Britain,” assured Husain Ibn Ali, the Sherif of Mecca, that “Great Britain is prepared to recognise and support the independence of the Arabs in all the regions within the limits demanded by the Sherif of Mecca.”[16] He only excluded from this pledge the “districts of Mersina and Alexandretta and portions of Syria lying to the west of the districts of Damascus, Homs, Hama and Aleppo.”[17] Since Palestine is situated to the south of these districts, it was meant to be included. (The exception was meant to exclude from the pledge territory which now is Lebanon.) It is to be recalled that Sherif Husain, in a letter to McMahon dated 14 July 1915, had demanded “the independence of Arab countries, bounded […] on the west by the Red Sea, the Mediterranean Sea up to Mersina.”[18] In view of these facts, Lord Curzon, the British Foreign Secretary, former Vice-Roy of India, admitted that Palestine was promised to the Arabs. On 5 December 1918 he stated in a Cabinet meeting: “If we deal with our commitments, there is first the general pledge to Hussein in October 1915, under which Palestine was included in the areas as to which Great Britain pledged itself that they should be Arab and independent in the future …”[19]

Apparently aware that this pledge was in no way compatible with the commitment of the Balfour Declaration, Sir Winston Churchill, in his capacity as Secretary of State for the Colonies, tried to reinterpret the Balfour Declaration so as to alleviate concerns on both sides of the ethnic divide. In a rather ambiguous and misleading “White Paper” that was obviously meant to please both sides, he rejected, with an Arab audience in mind, “exaggerated interpretations of the meaning of the Declaration” and emphasized that its terms “do not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a home should be founded in Palestine [emphases added].”[20] At the same time, he affirmed – with a Jewish audience in mind – that the Balfour Declaration “is not susceptible of change,” reminding the concerned public that it was “reaffirmed” by the Conference of the Principal and Allied Powers at San Remo (1920) and in the Treaty of Sèvres (1920) – whereby he could not know at the time (June 1922) that the latter would never enter into force. In legal terms, however, the importance of this fact should not be underestimated since it means the total lack of legitimization of the decisions that were subsequently taken in the name of the “abdicating” sovereign in Palestine. Furthermore, in spite of Churchill’s diplomatic maneuvering and word splitting, it cannot be denied that the foundation of a Jewish homeland in Palestine could only mean partition of the territory.

These well-documented and undeniable historical facts make it obvious that the problem of Palestine and Jerusalem, intractable as it seems until the present day, is part of the legacy of the colonial era. The outright denial of the right of self-determination to the Palestinian people was at the origin of the problem after the end of the Ottoman era. The text of the Mandate (which we have referred to above) cannot be interpreted in any other way. Britain, the major colonial power at the time, was, as “advanced nation” (Article 22 of the Covenant of the League of Nations), entrusted with a Mandate in Palestine that included a legally worded commitment “for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home.”[21] It goes without saying that this “obligation” – which Britain, in a self-serving manner, had succeeded to introduce into the Mandate – prejudiced the determination of the future status of Palestine and Jerusalem, and in fact precluded the meaningful exercise of their political rights by the Palestinians (since it limited the options and, thus, predetermined in a substantial sense the possible outcome of political developments).

It should not surprise us that, in such a framework, Jewish immigration into Palestine was strongly encouraged and, especially in the course of World War II, the concept of “population transfer” was propagated as a means to create an ethnically homogeneous territory for the promised “homeland.”[22] Joseph B. Schechtman, author of the authoritative work “European Population Transfers, 1939-1945,”[23] referred to Palestine as “a classic case for quick, decisive transfer action [sic!] as the only constructive method of solving the basic problem and preventing extremely dangerous developments.”[24] His approach corresponds with an earlier statement of Chaim Weizmann, President of the World Zionist Organization, who, in a meeting of Hadassah leaders on 3 April 1941, had expressed the view that “after this war the whole problem of exchanges of population will not be such a taboo subject as it has before.” He continued: “It is going on now and probably will become part and parcel of the future settlement.”[25]

(II) Colonial legacy after World War II

The colonial legacy since the end of the Ottoman Empire, with the ominous precedent of World War II policies, was reflected, and in a sense culminated, in the so-called “partition resolution” of the United Nations General Assembly upon the termination of the British Mandate (which was a unilateral decision by the British themselves).

Resolution 181 (II) (“Future government of Palestine”), adopted on 29 November 1947, is at variance with international law in different important respects:

(a)                If interpreted as legal basis for the existence of the State of Israel and an eventual Arab state in Palestine, it was ultra vires. According to Article 10 of the UN Charter, the General Assembly can only make “recommendations” to the member states and/or to the Security Council, and in the exercise of this modest right it is tied to the Security Council.[26] When it adopted the resolution, the General Assembly was aware of this statutory limitation and merely “recommended” to the United Kingdom “as the mandatory Power for Palestine,” and to all other member states, the partition of Palestine. It “requested” the Security Council to “implement” the “Plan of Partition with Economic Union” and to determine as threat to the peace or breach of the peace under Article 39 of the UN Charter any attempt “to alter by force the settlement envisaged by this resolution.” It cannot be overlooked that the Assembly, by suggesting (in a rather construed way) measures under Chapter VII of the UN Charter, was seeking enforcement for a decision it had no power to adopt.[27] It is worthy of note that no such action has ever been taken by the Security Council. In legal terms, Security Council action on the basis of Chapter VII – to enforce the partition resolution or, more precisely, implement the Assembly’s “partition plan” – would also have been ultra vires since the Council cannot act as proxy in the exercise of a people’s right to self-determination; such action would be a blatant abuse of the Council’s coercive powers under Chapter VII.

(b)               The resolution of the General Assembly (Part III/A) was also ultra vires in regard to the “special international régime” envisaged in the partition plan for the City of Jerusalem as corpus separatum, and the designation of the United Nations Trusteeship Council as “Administering Authority on behalf of the United Nations.” In actual fact, however, due to the armed conflict triggered by this resolution, Jerusalem was never established as a separate territory, but divided among the warring parties.

(c)                The resolution meant the negation of the Palestinian people’s right to self-determination by the very organization that was supposed to uphold that right as one of its “Purposes” (Article 1[2] of the Charter). A legally correct procedure – that was in conformity with United Nations principles – would have had to be radically different: Upon termination of the British Mandate, the people in the territory should either have been entitled to vote in a referendum on the future status of the entire Palestine, or the mandate should have been transferred to a UN trusteeship régime (according to Chapter XII of the UN Charter) with the goal of securing independence at a later stage, i. e. in the sense of preserving the rights of the population of Palestine, not abrogating them.

(d)               Not only did the UN General Assembly lack the necessary legal authority to partition Palestine (should resolution 181[II] actually be interpreted in that sense), a territory can only be partitioned or attributed to newly created states by decision of the territorial sovereign. It is to be recalled that, in the course of the renunciation of sovereign rights by the Ottoman Empire, those rights were not transferred to the Principal Allied Powers, or the League of Nations collectively. These countries were, thus, not in any way entitled to practice the tutelage which they were exercising under Article 22 of the Charter of the League of Nations in such a way as to curtail, even negate, the Palestinians’ right to self-determination, namely through a mandatory régime which implied the implementation of the Balfour Declaration and eventually ended in the partition resolution of 1947 (which incorporated the very rationale of that Declaration).

 The subsequent General Assembly resolution 194 (III) of 11 December 1948 was equally ultra vires insofar as it “resolved” that the “Jerusalem area” (including the city and the surrounding villages) “should be accorded special and separate treatment from the rest of Palestine” and should be placed under effective United Nations control, envisaging “a permanent international regime for the Jerusalem area” (Paragraph 8). This can only be seen as an arrogation of powers by the General Assembly, a body which possesses no authority whatsoever as “territorial sovereign” – neither under the UN Charter nor under general international law.

This also applies to General Assembly resolution 303 (IV) of 9 December 1949 which restated, “in relation to Jerusalem,” that the city should be placed under international regime and be established as corpus separatum,” administered by the United Nations, and which designated the Trusteeship Council to undertake the respective measures (Paragraph 1). At the same time, the General Assembly “confirmed” the geographical boundaries of Jerusalem and surroundings as they had been laid out in the “partition resolution.”

Accordingly, the Trusteeship Council, at its eighty-first meeting on 4 April 1950, adopted the “Statute for the City of Jerusalem.” It is a special irony that though it reads like a “Magna Carta” of the rights of the citizens and residents of Jerusalem it has never entered into force. In statutory terms, the General Assembly had no authority anyway to enact such measures through the Trusteeship Council, and the Security Council did actually not enforce those measures by way of a Chapter VII resolution, a step that would also have been ultra vires under the UN Charter (since neither Council nor Assembly can act as territorial sovereign).

It is important to be aware of the legal limits of United Nations action in this particular case since the Security Council, in the meantime, has resorted to a practice of using Chapter VII resolutions for purposes that go far beyond the scope of Article 39, and directly impact on the jus cogens domain of the sovereign rights of nations.[28]

In strictly legal terms, the partition resolution of the General Assembly and all subsequent measures by the Assembly and the Trusteeship Council have remained dead letter. They were not at the origin and have never been part of an accepted legal régime in Palestine. The State of Israel was created subsequent to the partition resolution, but not on the basis of it. Resolution 181 (II) would have provided for the simultaneous (or parallel) creation of two sovereign entities, a Jewish and an Arab state; for the establishment of Jerusalem as corpus separatum under UN auspices; and for a demarcation of borders between the two entities that would have been different from the area Israel claimed as its territory in the course of the events of 1948/1949.[29]

For a comprehensive evaluation of the evolution of the Palestine and Jerusalem dispute, one also has to be aware of a fundamental legal issue that relates to the renunciation of the League of Nations Mandate by Britain in 1948:

The mandate régime had not brought about the independence of Palestine (which was meant to be the basic rationale of a League of Nations Mandate under Article 22 of the Covenant of the League). It had, to the contrary, curtailed Palestinian national rights in favour of the preparation of measures for the establishment of a Jewish “national home.” The territory should thus have been handed over to the United Nations Organization under the trusteeship provisions of Chapter XIII of the UN Charter. This would have been necessary so as not to further prejudice Palestinian rights (in the entire Palestine including Jerusalem). These regulations, should they ever have been enacted, would have been based on the objective to promote the “progressive development towards self-government or independence” (according to Article 76 of the UN Charter), a process which, however, was not allowed to begin – in total neglect of the United Nations’ lofty principle of “self-determination of peoples” (Article 1[2]).

It is worthy to note that, at the time, the United States delegation in the UN favoured, according to a statement delivered in the Security Council on 19 March 1948, a “temporary trusteeship for Palestine […] to maintain the peace and to afford the Jews and Arabs of Palestine, who must live together, further opportunity to reach an agreement regarding the future government of the country …”[30] With the unilateral declaration of independence by Israel – as a consequence, though not legal result, of General Assembly resolution 181 (II) – this opportunity was missed.

 

(III) The role of the Security Council

In view of the legal vacuum that resulted from the actions of incompetent bodies or governments since the end of Ottoman rule in Palestine, a general observation on the role of the UN Security Council seems appropriate. The Council has not used its enforcement powers under Chapter VII to enact the General Assembly resolutions (or more precisely, implement its recommendations) concerning the partition of Palestine and a special international status for Jerusalem, nor has it taken coercive measures to bring to an end the occupation of Palestinian territory since 1967 and to force Israel to abrogate the annexation of specific Arab territories (namely Jerusalem and the Golan).

This has resulted in a continued situation of lawlessness – due to the initial unilateral declaration of independence (1948) and the subsequent further occupation and annexation of territory. It also has undermined the legitimacy of the United Nations Organization, and the international rule of law as such. The Council has done effectively nothing to enforce its own resolutions calling for the withdrawal of Israel from occupied territories (242[1967] and 338[1973] respectively).[31]

The Security Council practice concerning the question of Palestine, including Jerusalem, preceding and following the creation of the State of Israel in 1948, has been characterized by a consistent pattern of appeals, affirmations and threats short of enforcement measures.

The Council was, inter alia,

–        “calling upon” concerned parties to suggest or take measures for the implementation of the partition resolution of the General Assembly (resolutions 42[1948],[32] 44[1948],[33] 49[1948]);[34]

–        threatening to “reconsider” the situation in Palestine “with a view to action under Chapter VII” (Resolution 50[1948]);[35]

–        “determining” that the situation in Palestine “constitutes a threat to the peace within the meaning of Article 39 of the Charter of the United Nations,” but again merely mentioning coercive measures as a possibility, without ever acting (Resolution 54[1948]);[36] and

–        “affirming” that “withdrawal of Israel armed forces from territories occupied in the recent conflict” is a “principle” that is required for the establishment of just and lasting peace ([242]1967).[37]

It is to be noted, however, that the Security Council has not been able to act decisively and make true its threats of Chapter VII action due to the veto that would have been used by at least one permanent member. The paralysis of the Council as enforcer of its own and General Assembly resolutions in Palestine is due to the procedural provision of Article 27(3) of the UN Charter; it does not necessarily reflect a lack of political will of the majority of member states.[38]

Another aspect that highlights the Council’s “imposed” (or structural) lack of determination concerning the enforcement of the law in Palestine is the vagueness of the English text of Security Council Resolution 242 (1967) that uses the phrase “withdrawal […] from territories occupied in the recent conflict” – without the article “the” before “territories.”[39] This wording has been considered, by some, as an invitation to the occupying power to choose the territories from which it may withdraw; this has complicated the legal situation concerning Jerusalem in particular.[40]

 

(IV) The status of Jerusalem post-1948 and post-1967

The ambiguity and lacking enforcement mechanism of Resolution 242 are indeed evidence of the legal vacuum in which facts have been created “on the ground” since the end of Ottoman rule, and since the partition resolution of the United Nations in particular. As we have explained earlier, the corpus separatum “recommendation” of the General Assembly[41] – which apparently was considered as sufficient basis for the Trusteeship Council to adopt a “Statute for the City of Jerusalem” – was ultra vires, and was anyway never realized. The warring parties occupied the territory in the course of the armed confrontation following Israel’s unilateral declaration of independence in 1948, and the details were set out in the Armistice Agreement with Jordan of 3 April 1949.

Well aware of the Security Council’s (structural) inability to undertake coercive measures concerning Palestine, and Jerusalem in particular, the State of Israel took the drastic step to “unite” the divided city on its own terms by annexing the Eastern part, which it had occupied in the course of the 1967 war.[42] Paragraph 6 of the 1980 annexation law explicitly excludes any form of internationalization of the Holy City: “No authority [of the Israeli State] … may be transferred either permanently or for an allotted period of time to a foreign body.” It is obvious that it was the special status of Jerusalem, as perceived by the occupying power exclusively in terms of the Jewish tradition, that prompted this provocative unilateral act – in open defiance of the Security Council’s earlier (1967, 1973) calls for withdrawal.

The Security Council resolutions that were prompted by this act have remained empty threats and non-consequential angry condemnations because, unlike so many resolutions on Arab matters (such as those related to the Gulf conflict of 1990/1991[43] or the Lockerbie dispute[44]), they were not based on Chapter VII of the United Nations Charter. When it comes to the use of its coercive powers, the Security Council undeniably has followed a policy of double standards.

Resolution 476 (1980) of 30 June 1980 declared that all Israeli measures aimed at changing the status of the “Holy City of Jerusalem” have no legal validity (Paragraph 3), and threatened further measures in accordance with the UN Charter “to secure the full implementation of the present resolution” (Paragraph 6). In actual fact, no such measures have ever been taken by the Council. Resolution 478 (1980) of 20 August 1980 determined that Israel’s “Basic Law” on Jerusalem “constitutes a violation of international law” (Paragraph 2) and stated that all Israeli measures to alter the character and status of the Holy City of Jerusalem “are null and void and must be rescinded forthwith” (Paragraph 3). Again, no measures have ever been taken, over a period of 30 years, to enforce this resolution.

The illegality of the Israeli annexation of East Jerusalem has again become obvious in the “referendum law” adopted by the Israeli Knesset on 22 November 2010. According to that unilateral measure “at the meta-level” (in relation to the actual annexation by means of the “Basic Law”), either a 2/3 majority in the Knesset or a national referendum is required in order for Israel to give up, as part of a future peace deal, any annexed territory. It goes without saying that this provision openly contradicts one of the basic norms of international law according to which the acquisition of territory by force – as in the case of Arab Jerusalem’s occupation in 1967 and annexation in 1980 – is inadmissible, and all measures and legal claims resulting from such an illegal act are null and void. The “referendum law” is, thus, without object since Israel is not entitled to take any decision whatsoever on the legal status of occupied Jerusalem (or any other occupied or annexed territory for that matter). As occupying power, it is bound by the provisions of the Fourth Geneva Convention of 1949. It can in no way act as territorial sovereign.

 

(V) Conclusion: Law of force versus the force of law

The laws and international resolutions that relate to the status of Jerusalem, which we have briefly referred to above, highlight what may be characterized as disparity between law and politics, or idea and reality, in a most dramatic manner. The legal principles are clear and unambiguous as regards the inadmissibility of the occupation and annexation of Arab Jerusalem (the Holy City of Jerusalem). The law, however, may not be enforceable for the foreseeable future. The only international body with coercive powers – the United Nations Security Council – has been paralyzed since the very beginning of the conflict because of the veto of at least one permanent member.

The situation is characterized by a complex dilemma between the “rule of law” and the “law of force.” Upon the end of Turkish rule, Jerusalem had become part of the territory of the British Mandate for Palestine. Upon the termination of the Mandate, a special international status was declared for Jerusalem, but without the involvement of the people concerned – and this status has never been implemented. In actual fact, the Holy City has been subjected to an occupation régime and subsequently become the victim of a usurpation of sovereignty by the occupant. The resulting dilemma can best be described by way of juxtaposition of the facts “on the ground,” created by realpolitik, including violent means, and the legal principles that underlie the Charter of the United Nations Organization:

(A)              The law of force has determined the course of events ever since the end of Ottoman rule in Palestine. The people directly concerned – who are referred to in the Treaty of Lausanne[45] – were never allowed to exercise their right of self-determination. This has been evident in numerous actions and decisions of non-Palestinian (non-Arab) parties such as:

§         Part of the Palestinian territory was promised to another people – in fact to people residing outside Palestine.[46]

§         Consequently, foreign immigration into Palestine was encouraged by the mandatory power during the League of Nations period.

§         The territory was – illegally – partitioned in a plan that nonetheless was never implemented according to its own provisions. One of the two states envisaged in the plan eventually emerged with a territory much larger than specified in it, and the regulations, attached to that plan, for an international status of Jerusalem remained dead letter.

§         In 1948/1949 and 1967 respectively, additional territories of the original mandated area (Palestine) were seized, and some were later annexed by Israel.

§         Up to the present day, settlements are being established on illegally held (occupied or annexed) territory and systematic measures are being undertaken to change the status of Jerusalem (including its demographic composition).

§         All these measures were and are being undertaken in constant defiance of United Nations resolutions that call for the withdrawal from occupied territories and declare the annexation of conquered land null and void.

§         In the latest step in this escalation of illegal acts in Palestine and vis-à-vis the Palestinians, the occupying power has aimed to subject any decision about the future status of annexed land – in Arab Jerusalem – to the domestic political process, namely by conditioning the return of annexed territories on the consent of the Israeli electorate (according to specific voting requirements set out in the “referendum law” of 22 November 2010).

(B)              In the face of all these transgressions and unilateral acts or arrogations of rights – that exemplify the law of force, or a policy of faits accomplis, the United Nations Organization, in particular the Security Council, has constantly propagated the rule of law; but the world organization has been effectively prevented to use its powers (namely the provisions laid out in Articles 41 and 42 of the Charter) to enforce the law.

Notwithstanding the resulting state of legal limbo, or international anarchy, the people of Palestine possess the inalienable right to decide the future status of Palestine, in particular of the territories occupied or annexed since 1967, and to establish, at a time of their choosing, the State of Palestine with Jerusalem as its capital. In the exercise of their right to self-determination they are legally independent of decisions by those international bodies that, up to the present moment, have proven to be incapable or unwilling to enforce the international rule of law in Palestine, and that have anyway no right to substitute the rights of the territorial sovereign.[47]

Ex injuria jus non oritur: violations of the law do not create legal title. The state of injustice resulting from the continued occupation of Palestinian territory and the annexation of Jerusalem, and the systemic paralysis[48] of the United Nations Organization in all matters related to Palestine entitle the Arab people of Palestine to defend themselves and to undertake appropriate and necessary measures, in conformity with international law and the United Nations Charter, to realize their inalienable rights – a step which they should have been enabled to undertake on the basis of the mandate régime of the League of Nations after the end of Ottoman rule.

Despite its name, the UN General Assembly’s “Committee on the Exercise of the Inalienable Rights of the Palestinian People” has not been able to redress this situation in the several decades of its existence.[49] For statutory reasons, it can only emphasize, but not enforce, those rights while the Security Council would be able to enforce them, but will not make use of its prerogative for political reasons.

In regard to Jerusalem, “inalienable rights” means the entitlement of the Palestinian people to decide, without outside interference or tutelage, the future status of Arab Jerusalem, including the Holy City, with special guarantees for the rights of all religious communities of the three monotheistic faiths.[50] The international régime that was envisaged by the General Assembly of the United Nations in 1947 never materialized. The status quo is essentially the result of an illegal use of force. The annexation, following the occupation in 1967, is null and void. It is obvious that, in this “legal vacuum,” an internationally accepted legal status can only be established by the legitimate inhabitants of Palestine on the basis of the exercise of their right to self-determination. This will include the full restoration of the Arab character of the now occupied and annexed city.

It is important to emphasize that, in terms of modern international law, the Arab people of Palestine not only enjoys the right of self-determination (as all other peoples do),[51] but that it also has the right to resist foreign occupation[52] and to take measures against the continued annexation of East Jerusalem. Furthermore, absent action by the Security Council, Arab or other concerned states may undertake collective measures such as those adopted in 1973, within the limits of international law, to bring about the implementation of United Nations resolutions concerning Palestine.

After almost a century of false and contradictory promises to the Arab people of Palestine, of empty proclamations and appeals, of urgent calls of the international community that were not heeded, demands that were not met, and of resolutions that were never enforced, it seems appropriate, upon the conclusion of this analysis, to make a point of principle:

Norms of law are defined by their being linked to coercive measures (sanctions, punishment) in case of non-compliance.[53] Accordingly, norms that lack enforcement mechanisms are mere moral principles or “requests.” If the UN member states are indeed committed to the Charter of the United Nations, with its affirmation of the international rule of law, it is in their vital interest that coercive measures be taken to enforce, in Palestine, the fundamental norm of the non-admissibility of acquisition of territory by force (as affirmed, inter alia, in Security Council Resolution 242[1967]). If, as we have explained, the Council is paralyzed because of the special voting provision of Article 27(3) of the UN Charter, concerned member states, first and foremost those from the region, have the right to take measures of their own. Another General Assembly resolution on the basis of “Uniting for Peace,” in addition to the earlier resolutions,[54] will not bring tangible results either because nothing can do away with the statutory fact that the Assembly can only make recommendations.

Only decisive measures, not recommendations or appeals, will enable the people concerned to reverse the catastrophic course of events that has been determined by the law of force in Palestine since the era of the First World War.

 ***