Jerusalem's legal status in terms of international law is a subject of dispute among experts in international law in Israel and abroad. International law articulates different means by which countries can obtain sovereignty over a particular territory. However, the regular legal principles in this field do not offer a clear answer to the question of sovereignty over Jerusalem.

 

The coincidence of historical circumstances in Jerusalem is so special that no "traditional" way of acquiring territory is appropriate for clarifying Jerusalem's unique case. The main disagreement involving Jerusalem concerns the rights of Israel over East Jerusalem, whereas there is greater agreement over the situation of West Jerusalem. Although there is no international de jure recognition of Israeli sovereignty, there is recognition of Israel's control over Jerusalem and of the applicability of Israeli jurisdiction in the west.

 

As for East Jerusalem –three primary approaches have been presented regarding its legal standing: 1) Israel is sovereign over this part of the city; 2) sovereignty is in the hands of the Palestinian people; 3) Jordan is sovereign over the Eastern part of the city, and Israel's control of it is as a "conquering power".

 

1) Israel is sovereign: according to this approach, with the termination of the British Mandate over Israel a vacuum was created that it was possible to fill only by legal action. Jordan did not acquire legal rights over the city because she conquered it by an aggressive act in 1948, an act that contradicted international law. The annexation of East Jerusalem (together with parts of the West Bank) to the Kingdom of Jordan in 1950 was not in accordance with international rules and therefore lacks any validity. Jordan attacked Israel in the Six-Day War, again in contradiction to international law, thereby rendering to Israel the right to disavow the armistice agreements and to seize East Jerusalem as part of its self-defense. Israel's holding of East Jerusalem since the Six-Day War is legal, and in such a way Israel has filled the vacuum of sovereignty that existed since the end of the British Mandate. This approach has most notably been presented in the work of the British jurist Eliyahu Lauterpacht. The jurist Stephen Schwebel and Yehuda Blum also claim that Israel is the legal sovereign in this area, but they examine the legal status of Jerusalem after 1967 and compare the rights of Israel and Jordan, reaching the conclusion that Israel obtained sovereignty over the area because its right is relatively greater.

 

2) Sovereignty to the Palestinian people: the Palestinain jurist Henry Khatan claims that sovereignty over all of the land of Israel, including Jerusalem, already belonged with the people of Palestine during the period of the British Mandate, and that did not change, even after the decision to partition Palestine, the War of Independence, the annexation of the West Bank to Jordan in 1950, and the Six-Day War. Khatan asserts that the attempts of Israel to annex East Jerusalem after the Six-Day War were illegal and that the institutions of the U.N. declared that many times. International Law does not permit the transfer of territory acquired through the use of force, and the nations of the world refused to recognize the annexation of East Jerusalem to Israel (and prior, the Jordanian annexation).

 

The American jurists Thomas and Sally Mallison also claim that sovereignty over East Jerusalem must be granted to the Palestinian people. In their opinion, the Palestinian people must be granted the right to self-determination, which includes the right to sovereignty. The partition decision, which in their opinion is still binding, allows for the realization of self-determination of both the Palestinian people and the Jewish people. In their opinion a Palestinian state should be established in the areas of the Mandate that are beyond the borders of the pre-1967 State of Israel, with a few adjustments, and East Jerusalem should be part of the Palestinian state.

 

3) Jordanian sovereignty: In a series of articles the Israeli jurist Yoram Dinstein explained that during the Six-Day War Israel acted in legitimate self-defense, and that as part of this captured East Jerusalem. With that, he claims that conquest as part of a war does not grant a country ownership over territory conquered. In his opinion, as long as a condition of occupation exists within a state of war (even if there is an armistice) control is in the hands of Israel. This approach led Dinstein to the conclusion that Jordan is sovereign over East Jerusalem (in his opinion, the West Bank and Jerusalem were legally annexed in 1950, as an act of self-determination by request of the local rulers). On July 31, 1988 King Hussein declared the renunciation of the legal and administrative ties of Jordan to the West Bank (including Jerusalem). This declaration did not change Dinstein's stand. Yet it would seem that since the signing of the peace agreement between Israel and Jordan in 1994, and Jordan's declaration that it no longer demands the return of East Jerusalem, the government of Jordan no longer claims sovereignty over this part of the city.

 

 

With the end of the Six-Day War, Israel took a number of legal steps that resulted in the extension of Israeli law, jurisdiction and administration over East Jerusalem (see also the application of the law, jurisdiction, and administration of the state of Israel in "United Jerusalem" and the response of the United Nations' institutions, June 1967, in this chapter). The legal significance of these legal actions was discussed in a number of legal decisions in Israeli courts and the conclusion stemming from them is that East Jerusalem is today a part of the territory of the state of Israel.

 

A first hint of this trend can be found in a casual remark made by Judge Agranat in response to an appeal to the Supreme Court made by Ben Dov against the Minister of Religion, in the court's capacity as a high court of justice (1968). From his comments it was possible to conclude that the court saw East Jerusalem as part of the state of Israel.

 

The question of the status of East Jerusalem also arose in a more clear-cut manner in the decision of the High Court of Justice regarding Gonzales vs. the Court of the Greek Orthodox Church. This decision dealt with the matter of the Church's Court, which is situated in East Jerusalem, and its authority to settle a last will and testament despite the existing statutes of Israeli inheritance law. Israel's High Court overruled the Church Court, and in a separate opinion, Judge Halevy articulate his opinion that as of the end of June, 1967, when new legislation regarding Jerusalem was passed, "United Jerusalem is an inseparable part of the State of Israel".

 

In the year 1970 the Supreme Court gave its most important decision regarding the status of the East Jerusalem according to Israeli law, in the case of Ravidi and Maches v. the Military Court of Hebron. The two appellants, who ran an antique store in East Jerusalem, had been charged for having exported antiquities without a permit from the West Bank to Jerusalem. The primary question that was raised before the court was whether East Jerusalem is in fact considered "abroad" from the West Bank. If so, the "export" of antiquities was in contradiction of the law. And indeed, the Court determined that the complaint against the appellants was legitimate, and that East Jerusalem is "abroad" from the West Bank. Judge Cohen determined that East Jerusalem was annexed to Israel and is part of the territory of the state of Israel. This decision became the subject of conflicting articles by Yoram Dinstein and Yehuda Blum (see also, "the legal status of Jerusalem in international law" in this chapter).

 

From the standpoint of Israeli law it is clear that East Jerusalem has become, for all intents and purposes, part of the territory of the State of Israel. The laws of East Jerusalem are not different in any significant way from those of West Jerusalem. This stance was re-confirmed in the Jerusalem regional court in a decision in 1989 in the case of the "Government Legal Adviser v. Joel Ben Benjamin Davis". In this case the court was asked to extradite Davis to the United States, on the basis of an extradition agreement between the two countries. Article one of the agreement states that the two countries will extradite people found "in the territory of the other country". Davis' representative claimed that the extradition agreement did not apply to his client because he lived in the Old City, in East Jerusalem. It was there that he was located and arrested, and from there the warrant for his extradition was issued. Judge Tzemach rejected this claim because both the U.S. and Israel agreed that the agreement between them applied to Davis in East Jerusalem. The Judge based his understanding of the U.S. position from the fact that the claim for extradition explicitly cited Davis' address in the Old City, and the Israeli position based on previously (aforementioned) decisions by Israel regarding the status of Israeli law in Jerusalem. Judge Tzemach asserted that not only national law, but also its jurisdiction and administration apply to East Jerusalem. As a result, the territory of East Jerusalem is to be considered the territory of Israel. This decision was further reinforced by the Supreme Court in the decision of Judge Menachem Elon, in the case of the "The Temple Mount Faithful v. the Government Legal Adviser" in 1993 (Supreme Court 4184/90), in which it was emphasized that the laws of the State of Israel apply to the Temple Mount (and to Jerusalem as a whole).

 

It is worthy of note that in addition to the laws that were passed at the end of June 1967 the Knesset adopted in 1968 and 1970 another law that determines the transfer of the Jordanian jurisdiction to Israeli jurisdiction. The law for legal and administrative arrangements established statutes for the continuation of activities for companies, cooperatives, and partnerships; for licenses for particular professions; for patent and other rights; for building rights; for the appointment of civil servants; and for the continued work of courts of law and property rights from the Jordanian General Guardian to that of Israel. The law also deals with questions of property absenteeism and releases the holy places in East Jerusalem from the status of absenteeism beginning from the time of the declaration regarding the application of Israel law. Furthermore, assets in East Jerusalem owned by East Jerusalem residents were released from absentee status.

 

Despite these firm legal decisions, Israeli policy since 1967 has been to avoid full application of Israeli law to East Jerusalem. In many fields, such as the registration of firms and businesses and the education system, the laws and statutes of Israel have not been fully administered.

 

 

In 1949, after Israel's War of Independence, Israel and Jordan signed an armistice agreement. According to the agreement, the Eastern quarters of Jerusalem were to be under the control of Jordan, and the Western quarters were to be under the control of Israel. At the end of 1949, then Prime Minister of Israel David Ben-Gurion declared that Jerusalem was the capital of the State of Israel, and the Knesset confirmed this declaration. In 1967, after the Six-Day War in which Israel captured the Eastern quarters of Jerusalem, the Knesset passed a law granting the government the right to extend the law, administration, and jurisdiction of Israel over these quarters, and the government so acted. At the same time the jurisdiction of the municipality of Jerusalem was extended.

 

13 years later, in 1980, the Knesset passed "Basic Law: Jerusalem, the Capital of Israel". The law asserted that "the whole of united Jerusalem is the capital of Israel". In addition it was determined that "Jerusalem is the seat of the President of Israel, the Knesset, the government, and the Supreme Court". In a third clause the protection of the holy places was guaranteed: "the holy places will be protected from desecration and any other damage that may affect the free access of all religious people to the places holy to them, or their feelings towards these places" – this, in a wording similar to that already declared in the 1967 law on the protection of the holy places. The fourth clause required the government to strive to develop Jerusalem.

 

In the opinion of the Security Council of the United Nations (decision 478 from August 20, 1980), the Israeli law contradicted international law. The law aroused fury among the members of the council, which harshly condemned Israel for passing it. In the opinion of the Security Council, the Eastern neighborhoods of Jerusalem are occupied territory. In addition, the Security Council called on foreign nations to remove their embassies form Jerusalem: in response, 13 foreign embassies did so. In 1982 the Embassy of Costa Rica returned its embassy to Jerusalem, and in 1984 El Salvador moved its embassy back as well.

 

The Basic Law: Jerusalem, Capital of Israel, did not initially specify a mechanism for ensuring the law – that is, it was not articulated whether a simple majority would be sufficient to change it. This situation was later altered in two stages.

 

In January 1999 the Knesset passed a law regarding the territory over which Israeli law, jurisdiction, and administration applied (this area of course included Jerusalem). The law determined that a government decision affecting the application of Israeli law, jurisdiction, or administration will require the approval of an absolute majority of the members of Knesset as well as a public referendum (following the passage of a law setting the requirements for a referendum).

 

The second stage of ensuring the basic law began in November 2000. At this time the Knesset passed an amendment to the basic law. The amendment states that, "no authority related to Jerusalem that is now held by the State of Israel or the Jerusalem Municipality will be transferred to any foreign body, national or otherwise, either temporarily or permanently." For this law the territory of Jerusalem was specifically defined as all the territory comprising Jerusalem after the Six-Day War. Furthermore, the amendment stated that the law could not be changed without the majority confirmation required for altering a basic law – that is, a majority of 61 members of Knesset.

 

According to a list prepared for the U.N. in 1949, there were at the time 30 important holy places in Jerusalem, apart from which there were many synagogues, mosques, churches, and monasteries. Many of those places were concentrated in the Old City and in the historic basin of the Old City, that is areas adjacent to the Old City and also filled with holy sites, such as Mount. Zion and the Mount of Olives. The places holy to a particular ethnic or religious group were not necessarily to be found in the area associated with the given group. For example, the Via Dolorosa (the path that Jesus followed carrying the cross), holy to Christians, passes through the Moslem Quarter.

 

It is worthy of note that these places are holy to many millions of Jews, Christians, and Moslems that do not live in the region. Further: most of the sites are considered holy due to important events that occurred at them. The historical truth or validity of the events is not the determining factor; the beliefs of the faithful and the followers regarding the events in these places, are.

 

Two primary questions arising from the issue of the holy places are: what is a holy place? And what is its status? The question of defining a holy place is important due to the fact that special statutes apply to them, and special protection is granted them. In fact today there is no clear definition of a holy place, either in international law or in Israeli law. In the past various bodies prepared lists of the holy places in Israel in general and in Jerusalem in particular, but none of them has ever won any formal recognition. In the absence of a legal definition, the Supreme Court asserted that the term must be left flexible, based to a large extent on the views of the relevant group or site. Stemming from this, historical and geographic changes may bring about the narrowing or widening of the physical defines of a holy site. It may also result in a huge growth in the number of holy places, which is an undesirable result given the special legal attributes of such a place.

 

Not surprisingly, then, the according to research published in the year 2000, there are now claims of 326 holy places in Jerusalem! It is important to restrict the unreasonable growth in the number of holy places, and to prevent their abuse for political purposes.

 

As for the status of the holy places, Israel decreed together with its independence (as part of its declaration of independence) in 1948 that it guaranteed it would "protect the holy places of all religions". Although the declaration itself is not legally binding, it was recognized as part of the foundation of the nation, and on its basis the Supreme Court interpreted the other laws. Its importance increased in 1992 when the Basic Law: Human Dignity and Liberty was passed, which stated "Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel." The general guarantee in the Declaration of Independence was made more specific and given greater validity by the law for the protection of holy places, approved by the Knesset in 1967 after the Six-Day War. Following this war Israel acquired control over territories that encompassed many important holy places, including the Old City of Jerusalem. The law for the protection of the holy places determined that "the holy places will be protected from desecration and any other damage that may affect the free access of all religious people to the places holy to them, or their feelings towards these places". The legislation reiterated these guarantees in the Basic Law: Jerusalem, Capital of Israel, that was approved by the Knesset in 1980. The law for the protection of the holy places set severe punishments for any one violating it. The penal code of 1977 was also intended to protect "places of worship" and "places used for prayer." Other directives regarding the protection of holy places are scattered among specific laws, such as the statute for mining of 1925, the building and planning law of 1965, and the antiquities law of 1978. Special regulations apply to some of the Christian holy places, because of the historic status quo agreements (see also the entry on status quo in this chapter). Worthy of mention is also the protective rules regarding Jewish holy places, of 1981, that set rules for behavior in particular Jewish sites.

 

In the peace agreement signed between Israel and Jordan in 1994, Israel promised to respect Jordan's special role in terms of the Moslem holy places of Jerusalem, both in the present and in any future negotiations between Israel and the Palestinians for a permanent peace agreement. Yet as late as 1993, then Foreign Minister Shimon Peres sent a letter to the Norwegian Foreign Minister in which he promised that Israel will view activities of Palestinian institutions in East Jerusalem in a positive light, including in places holy to Christianity and Islam ( see also the entry on the message of Foreign Minister Shimon Peres to his Norwegian colleague, Jorgen Holst, chapter 5).

 

Israeli courts are authorized to hear claims based on the law for the protection of holy places, but if the discussion concerns substantive rights in a holy place, the matter becomes an issue for governmental decision, on the basis of "the King's decree to the Palestinian (Land of Israel) Council (holy places) " of 1924. In fact, the King's decree simply asserted that the courts were not authorized to rule on such issues, and did not articulate who was authorized to do so in their stead. However, it has been accepted that the authority lies with the government.

 

It is the practice of Israel's government to leave the management of the holy places in the hands of the ethnic or religious groups that deems the place holy. This practice is problematic in cases where a particular place is holy to more than one group (a notable example is the Holy Mount, which is sacred both to Jews and to Moslems). The state also extends financial support for the maintenance and preservation of the sites. Tax exemptions of various kinds are also granted.