by Francis A. Boyle
(The author served as Legal Adviser to the Palestinian
Delegation to the Middle East peace Negotiations from 1991 to 1993.
The viewpoints expressed here are his own.)
The self-styled Final
Status negotiations between the Palestinians and the Israelis have now
begun in earnest. Many categorical statements have emanated from the
Israeli side about the yet-to-be-negotiated final status of Jerusalem.
A brief review of the historical record can shed some light upon
Jerusalem's currently disputed status, and thus point the way towards
an ultimate solution for this Holy City.
On September 25, 1971,
then-Ambassador George Bush, speaking as U.S. Representative to the
United Nations, delivered a formal Statement on Jerusalem
before the U.N. Security Council explaining the official position of
the United States government with respect to the City of Jerusalem.
Therein, Ambassador Bush specifically endorsed and repeated a 1969
statement made before the Security Council by his predecessor, Charles
Yost, criticizing Israeli occupation policies in East Jerusalem in the
following terms: "The expropriation or confiscation of land, the
construction of housing on such land, the demolition or confiscation
of buildings, including those having historic or religious
significance, and the application of Israeli law to occupied portions
of the city are detrimental to our common interests in the city."
Ambassador Bush then reaffirmed Yost's prior statement that the United
States government considers East Jerusalem to be "occupied
territory and thereby subject to the provisions of international law
governing the rights and obligations of an occupying power."
Succinctly put, these latter obligations can be found in the Fourth
Geneva Convention of 1949, which expanded upon and improved--but did
not displace--the 1907 Hague Regulations on Land Warfare. The United
States government is a party to both the Fourth Geneva Convention and
the Hague Regulations, and Israel is bound by the terms of both
treaties as well.
Ambassador Bush then
concluded his 1971 Statement as follows:
We regret Israel's
failure to acknowledge its obligations under the Fourth Geneva
Convention as well as its actions which are contrary to the letter
and spirit of this Convention. We are distressed that the actions
of Israel in the occupied portion of Jerusalem give rise to
understandable concern that the eventual disposition of the
occupied section of Jerusalem may be prejudiced. The Report of the
Secretary General on the Work of the Organization, 1970-71,
reflects the concern of many Governments over changes in the face
of this city. We have on a number of occasions discussed this
matter with the Government of Israel, stressing the need to take
more fully into account the sensitivities and concerns of others.
Unfortunately, the response of the Government of Israel has been
disappointing. All of us
understand...that Jerusalem has a very special place in the Judaic
tradition, one which has great meaning for Jews throughout the
world. At the same time Jerusalem holds a special place in the
hearts of many millions of Christians and Moslems throughout the
world. In this regard, I want to state clearly that we believe
Israel's respect for the Holy Places has indeed been exemplary.
But an Israeli occupation policy made up of unilaterally
determined practices cannot help promote a just and lasting peace
any more than that cause was served by the status quo in Jerusalem
prior to June 1967 which, I want to make clear, we did not like
and we do not advocate reestablishing.
Ambassador Bush's 1971 Statement
has always represented the United States government's official
position on the numerous illegalities surrounding Israel's annexation
and occupation of East Jerusalem since 1967. For similar reasons, the
United States government has never recognized Israel's annexation of
West Jerusalem as valid or lawful either. That is why the U.S. Embassy
to Israel still remains in Tel Aviv, not Jerusalem.
Both Bush's 1971 Statement
and similar comments he made as President in 1990 are fully consistent
with and indeed required by Article 1 of the Fourth Geneva Convention,
which requires the United States government not only to respect but
also to ensure respect for the terms of this Convention by other
parties such as Israel "in all circumstances." As treaties,
both the Fourth Geneva Convention and the Hague Regulations are deemed
to be the "supreme Law of the Land" by Article VI of the
United States Constitution. Contrary to the public suggestions made by
the U.S. Israel-lobby and its supporters, the United States government
must support the vigorous application of the international laws of
belligerent occupation to produce the termination of all illegal
Israeli practices in East Jerusalem (including settlers and
settlements), as well as in the West Bank and Gaza Strip, together
with the Golan Heights and southern Lebanon.
The 1947 United Nations
Partition Plan for the Mandate of Palestine called for the creation of
an international trusteeship for the City of Jerusalem, that would be
administered as a corpus separatum apart from both the Jewish
state and the Arab state contemplated therein. Today, however, it
would not be necessary to go so far as to establish a separate United
Nations trusteeship for the City of Jerusalem alone under Chapter XII
of the U.N. Charter. Rather, all that would need to be done is for the
Israeli army to withdraw from the City of Jerusalem and a United
Nations peacekeeping force to be substituted in its place. This U.N.
force would maintain security within the City of Jerusalem while the
provision of basic services to all the inhabitants could be enhanced.
The simple substitution of
a U.N. peacekeeping force for the Israeli army would have the virtue
of allowing both Israel and Palestine to continue making whatever
claims to sovereignty they want with respect to the City of Jerusalem.
Thus, Israel could continue to maintain that Jerusalem is the
sovereign territory of Israel, its united capital, and shall remain as
such, one and undivided, forever. The Israeli Knesset could remain
where it is as a capital district, and the Israeli flag could be flown
anywhere throughout the City of Jerusalem.
Likewise, the State of
Palestine could maintain that Jerusalem is its sovereign territory and
capital. Palestine would be entitled to construct a parliament
building and capital district within East Jerusalem, perhaps on the
Mount of Olives. The Palestinian flag could also be flown anywhere
within the territorial confines of the City of Jerusalem. Both Israel
and Palestine would be entitled to maintain ceremonial honor guards,
perhaps armed with revolvers, at their respective capital districts.
But no armed troops from either Israel or Palestine would be permitted
The residents of Jerusalem
would be citizens of either Israel, or Palestine, or both, depending
upon the respective nationality laws of the two states involved.
Residents of Jerusalem would be issued a United Nations identity card
to that effect, which would give them and only them the right to
reside within the City of Jerusalem. Nevertheless, all citizens of the
State of Palestine would be entitled to enter Jerusalem through U.N.
checkpoints at the eastern limits of the city. Likewise, all citizens
of the State of Israel would be entitled to enter Jerusalem at U.N.
checkpoints located at the western limits of the city. Yet, mutual
rights of access for their respective citizens to the two States
through Jerusalem would be subject to whatever arrangements could be
negotiated between the government of Israel and the government of
Palestine as part of an overall peace settlement.
In addition, both Israel
and Palestine would have to provide assurances to the United Nations
that religious visitors and foreign tourists would be allowed access
through their respective territories in order to visit the Holy Sites
in the City of Jerusalem. Some type of U.N. transit visa issued by the
U.N. peacekeeping force should be deemed to be sufficient for this
purpose by both governments. Of course this right of transit could not
be exercised in a manner deleterious to the security interests of the
Thus, Jerusalem would
become a free, open, and undivided city for visitation and worship by
people of all faiths from around the world. Neither Israel nor
Palestine would have to surrender whatever rights, claims, or titles
they might assert to the City. Security would be maintained by the
United Nations peacekeeping force. And the City of Jerusalem would
remain subject to this U.N. regime for the indefinite future.
If a comprehensive Middle
East peace settlement were to be negotiated along these lines, then it
would be perfectly appropriate under international law for the United
States government to move its Israeli Embassy from Tel Aviv to
Jerusalem. There the U.S. Embassy could be simultaneously accredited
to the State of Palestine as well as to the State of Israel. The same
could be done by all other states in the international community. The
presence of these embassies in Jerusalem under such circumstances
would permit both Israel and Palestine to claim that the entire
international community has now recognized Jerusalem as its capital.
There are many other
historical precedents that could be drawn upon to produce a mutually
acceptable arrangement for Jerusalem: e.g., the Free City of Danzig,
the Vatican City State, the District of Columbia, etc. So determining
the final status of the City of Jerusalem is not and has never been an
insuperable obstacle to obtaining a comprehensive Middle East peace
settlement. If the will for peace is there on the part of the Israeli
government, then creative lawyers on each side can devise an artful
arrangement for the City of Jerusalem that would allow both Peoples to
claim victory while achieving peace.
Mr. Francis A. Boyle is a Professor
in International Law. He wrote above viewpoints on November 12, 1999
- by the same author: