The American Embassy in Jerusalem between international law and history
On 14 May 2018, the US and Israeli officials celebrated the historic relocation of the American Embassy from Tel Aviv to Jerusalem. For the Israelis, this was a glorious day, a step forward in recognizing their rights over Jerusalem, while for the Palestinians, this was the bloodiest day in Gaza since the 2014 war as 58 Palestinian demonstrators lost their lives and more than 2,400 people were injured by the Israeli military who were using both barrages of tear gas as well as armed forces against civilian protesters.
This created an unprecedented contrast between the formality and happiness of the celebration in Jerusalem and the horrific acts of violence taking place barely 40 miles away along the border fence with Gaza. Meanwhile, plenty of human rights experts have asked Israel to stop using excessive force against Palestinian protesters and Amnesty International accused Israel of violating international law.
However, this was not unexpected since both parties have similar claims over the Holy City of Jerusalem and the peace process was stopped in 2014 when the Israeli government decided to continue the construction of colonies in its illegally occupied territories according to international law.
The fear of the conflict is also the reason why both previous American administrations and the governments of most American allies insisted to establish the status of Jerusalem through a peace agreement between the Palestinians and the Israelis before any decision of relocation is made.
But, the roots of the conflict go way back in history, and to really understand the demands of each party we need to address them more thoroughly.
According to the Bible, the Jews were the first to populate Palestine and continued to do so until the Roman conquest in 135 AC. However, in the 7th Century, the territories were conquered by the Arabs, and the population was mostly, but not entirely, Islamized. The Ottoman Empire ruled over what we call today Palestine and by the late 19th Century, the population was mostly composed of Muslims with 87% from the entire population, Christians with 10%, while only 3% were Jewish.
Ottoman Palestine was once a peaceful place for children and adults to learn and celebrate both Muslim, Christian, and Jewish celebrations while sharing the knowledge of all religions with one another. However, the equilibrium was crushed by the First World War and its unfair outcome which is the reason why today we are dealing with one of the biggest crises in the Middle East.
The British army achieved victory in WW1 and along with other things, they occupied the entire territory of Palestine. The League of Nations formally awarded Britain a mandate over Palestine in 1922 and a colony was established in order to govern the land. But only a few months before the victory, the British government promised the “establishment in Palestine of a national home for the Jewish people”, hoping to gain financial support from the Zionists Jews. Of course, they kept their promise. By the end of 1939, the Jewish population increased by over 320,000 people in the territory that was once known as Ottoman Palestine.
This growing population of Jews concentrated highly on buying land from Palestine absentee and evicting Palestinian farmers who were living and working there. The idea behind the strategy to purchase as much land as possible was that by controlling both land and labor they hoped to create a more secure community within Palestine, but these outcomes only heated the tensions between Arabs and Jews.
After several Arab revolts and the Hebron massacre, the British issued a paper in 1939, limiting the immigration of Jews in Palestine, denying the formation of a Jewish state, and calling for a joint Arab and Jewish state in Palestine within 10 years. However, this plan did not please anyone. On one hand, the Jewish were prohibited from their right to immigrate, especially at a time when they really needed to escape the persecutions in Europe, while the Palestinians were not going to wait 10 years to have a country.
After World War 2, tensions resumed and the British government realized that colonies like Palestine were far more problematic than assumed, handing over the issue of Palestine to the newly formed international organization, United Nations.
In November 1947, United Nations General Assembly adopted Resolution 181 which called for the partition of Palestine into 2 separate states almost equal in size, while the city of Jerusalem, where Jews, Muslims, and Christians all have holy sites, was to become a special international zone.
United Nations General Assembly Resolution 181 — PART III: ”The City of Jerusalem shall be established as a corpus separatum under a special international regime and shall be administered by the United Nations”.
However, this document was not legally binding, but it is highly important to discuss it since its provisions were mentioned again by other important UN Security Council Resolutions which can legally binding.
The Security Council is the only United Nations body with the authority to issue binding resolutions to member states.
Under Chapter VII of the UN Charter, in situations involving ”threats to the peace, breaches of the peace, or acts of aggression”, the Council has the power to take action, including the use of armed forces, in order to preserve international peace and security.
Under Chapter VI of the UN Charter, the Council is able to issue resolutions with the legal value of recommendations, but the state members have the obligation to consider and examine in good faith the recommendatory provisions. This obligation derives from the role that the entire international community has assigned to the Security Council in ensuring international peace and security.
The plan was drafted so to please everyone: the Jewish people will be giving a country, and the Palestinian Muslims will be achieving independence. The Jews initially accepted the plan, and in May 1948, after the English troops withdrew from Palestine, proclaimed the state of Israel.
The newly independent Arab states saw this plan as a deceitful European method to steal more land and create more colonies. Therefore, they declared war on Israel with the purpose of establishing a unified Arab Palestine. The Israelis won and occupied way more land than it was initially drafted by the UN. Over 700,000 Palestinians fled their homes and became refugees in the surrounding Arab countries. For the Jewish people, it was the beginning of a new era, but for the Palestinians, it was a nightmare, as they became stateless. Following the negotiations held between Israeli, Jordan, and Egypt, Jordan controlled and later annexed the West Bank (named so because it’s West to the Jordan River) and the Old City of Jerusalem, while Egypt gained control over the Gaza strip. By 1949, the Israelis were already controlling 78% of the Palestinian territory.
In May 1949, Israel became a member state in the United Nations as a parliamentary republic, and the idea of a Palestinian state was completely erased since the territory was technically split between Israel, Jordan, and Egypt. Thus, the Palestinian problem became the responsibility of the Arab states.
For 18 years nothing changed territorially, and then, in 1967, Israel and several Arab states went to war again. Historically, this conflict is known as the “Six-days War” and was started by Israel attacking Egypt due to the Tiran Strait naval blockade. However, Israel won and gained control over the West Bank (from Jordan), the Gaza Strip, the Sinai Peninsula (from Egypt), and the Golan Heights (from Syria).
In this context, the United Nations Security Council, through Resolution 242, requested the removal of the Israeli troops from the newly occupied territories, highlighting the basic framework for achieving peace by recognizing the rights of both Palestinians and Israelis. But the resolution was not implemented and, while the other Arab states gradually made peace with Israel, the war had been transformed into a conflict only between the Israelis and the Palestinians.
Only 3 years before the war, in the Eastern part of Israel, a political and paramilitary organization for the Palestinian Arabs, named The Palestine Liberation Organization, was established. The organization was divided between the Fatah Movement, the Popular Front for the Liberation of Palestine, The Democratic Front for the Liberation of Palestine, and other Palestinian factions.
As the Israeli government started to establish Jewish settlements in East Jerusalem, West Bank, and the Gaza strip, those settlements being illegal according to international law (by Resolution 242), the Palestinians have begun to respond using both non-violent approaches and terrorist attacks. By the late 1980s, after years of frustration, Palestinians launched the first Intifada (which is the Arabic word for “uprising”), at first, only by using boycotts of Israeli products and services and refusing to pay taxes, but the real flames started when the Israeli troops interfered directly to crackdown the protesters. Moreover, the first Intifada saw the founding of Hamas, an extremist group formed in the Gaza strip, who considered the PLO no longer suitable to represent the Palestinian people due to their “secular” approaches and “compromise minds”.
Starting with the early 90s, many peace negotiations attempts were undertaken and, finally, in 1993 the first real attempt to bring peace between the 2 parties occurred in Washington, in the presence of the Palestinian president of the PLO, Yasser Arafat, the Israeli Prime Minister, Yitzhak Rabin, and the American president, Bill Clinton.
The Oslo Accords established the Palestinian Authority, finally giving Palestinians a little bit of freedom to govern themselves in certain areas. But the Israeli government was undermined and the extremist group Hamas gained even more support.
Then in September 2000, Prime Minister Candidate Ariel Sharon made a bold move by leading a group of 1000 armed guards to the Temple Mount in the Old City of Jerusalem. For the Muslims, the place is known as the Al-Aqsa Mosque, and it’s the third-holiest site in Islam, behind only the Kaaba in Mecca and the Prophet’s Mosque in Medina. This event provoked a massive protest and it eventually broke out into a much more violent Second Intifada (2000–2005), in which more than 3000 Palestinians and 1000 Israelis lost their lives.
In 2005, Israel withdraws from Gaza, and Hamas gains control over the territory after winning the election. They decided to split from the Palestinian Authority through a short civil war, dividing Gaza from the West Bank. In response, Israel transforms Gaza into a suffocating place where unemployment rose up to 40% and deep poverty is a daily issue. In the past ten years, Hamas has frequently launched rocket attacks into Israel, and Israel has responded with extremely violent invasions of Palestinian territories that have seen thousands of Palestinians killed.
Regarding international law, many relevant UN Security Council resolutions have been drafted ever since the first establishment of illegal colonies in the occupied Palestinian Territory.
Therefore, Resolution 252 (1968) mentions that “all legislative and administrative measures and actions were taken by Israel, including expropriation of land and properties thereon, which tend to change the legal status of Jerusalem are invalid and cannot change that status” and urges Israel to refrain from any action that can change the legal status of Jerusalem.
Also, Resolution 476 (1980) reiterates that “all legislative and administrative measures and actions were taken by Israel, the occupying Power, which purports to alter the character and status of the Holy City of Jerusalem have no legal validity and constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East”.
In the subject of the recently established American embassy in Jerusalem, Resolution 478 (1980) represents a significant international legal document. Thus, the resolution calls upon “those states that established diplomatic missions at Jerusalem to withdraw such missions from the Holy City”, reaffirming that “all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the recent “basic law” on Jerusalem, are null and void and must be rescinded forthwith”.
The most recent international legal document drafted by the UN Security Council was adopted on December 23, 2016. Resolution 2334 (2016) condemns “all measures aimed at altering the demographic composition, character, and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction, and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions”.
This resolution triggered a wave of comments regarding the legal effects of the UN Security Council decision. Some say the resolution is not mandatory since the text does not explicitly reference Chapter VII of the UN Charter. But, the truth is, the obligation to comply with the decisions of the Security Council, contained in Article 24 and 25 of the Charter, is not only limited to the Council acting in the exercise of its Chapter VII. To determine whether a particular provision of a Security Council resolution is legally binding on member states, we have to carefully analyze the specific language used within the resolution to establish the Council’s intent to create a legally binding obligation. This problem was previously addressed by the International Court of Justice in its 1971 Namibia advisory opinion, in Paragraphs 108–114. Therefore, the Court stated that:
“It has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. It is not possible to find in the Charter any support for this view. . . It has also be contended that the relevant Security Council resolutions are couched in exhortatory rather than mandatory language and that, therefore, they do not purport to impose any legal duty on any State nor to affect any right of any State. The language of a resolution of the Security Council should be carefully analyzed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council. (Para 113–114)”
The problem now is to determine which words will indicate the Council’s intent to create binding obligations. Most experts consider the words used in this resolution, such as “calls upon”, “reaffirms”, “underlines”, and “stresses” as an indication of non-legal obligations for the UN member states or for the addressee of the resolution. However, in the text appears another important word, which is “demand”. And interestingly enough, this word has been used in the past by the Security Council to impose its obligations independently existing in international law or newly created for an addressee, in contexts in which there does not exist a relevant obligation elsewhere in international law.
Nevertheless, even if we can’t be sure what the Council meant by adding the word “demand” in its operative Paragraph 2 of Resolution 2334, we do know from Namibia advisory opinion that the words used by the Council do matter for establishing legally binding obligations, and even if the resolution doesn’t refer explicitly to Chapter VII, its provisions can still be legally binding as UN members have the obligation to act in good faith with the United Nations’ legal documents.
As it can be seen in the paragraphs describing the painful history of each population, there is little political will for peace on both sides. Both parties claim to be responding to the provocation of the other, but no one really understands the whole narrative. To Palestine, the Palestinian people have been denied systematically a state even before the formation of Israel, and now they live under military occupation. To Israel, the Jewish people were promised their own homeland and they are certainly not the first state to consolidate and expand their territory through military victory.
However, in this conflicting environment, no one really knows what is going to happen next, but one thing is for sure: For both Palestinians and Israelis to live together peacefully, they need to understand and accept the right and legitimacy of each to exist.
