3. Jerusalem and the Holy Places

The International Court of Justice erroneously assumes that East Jerusalem is occupied Palestinian territory. The Opinion ignores the fact that UN Resolution 181 which recommended turning Jerusalem and its environs into an international city for a limited “period of 10 years” was never consummated; in 1947 all Arab states voted as a bloc against it and kept their promise to defy its implementation by force.

In their ‘concern’ for freedom of movement, the ICJ completely ignores the fact that since September 2000, Palestinians turned the City of Peace into their primary target for suicide bombers, making a barrier to impede movement of terrorists into the heart of the city an imperative.

In 1968 – soon after Israel took control of East Jerusalem in the 1967 Six-Day War – Professor, Judge Sir Elihu Lauterpacht, a renowned expert in International Law, warned against confusing the issue of the Holy Places and the issue of Jerusalem:¹

“Jerusalem, it seems, is at the physical center of the Arab-Israeli conflict. In fact, two distinct issues exist: the issue of Jerusalem and the issue of the Holy Places.

Not only are the two problems separate, they are also quite distinct in nature from one another. So far as the Holy Places are concerned, the question is for the most part one of assuring respect for the existing interests of the three religions and of providing the necessary guarantees of freedom of access, worship, and religious administration. Questions of this nature are only marginally an issue between Israel and her neighbors and their solution should not complicate the peace negotiations. As far as the City of Jerusalem itself is concerned, the question is one of establishing an effective administration of the City which can protect the rights of the various elements of its permanent population – Christian, Arab and Jewish – and ensure the governmental stability and physical security which are essential requirements for the city of the Holy Places.”

The ICJ fixation – Internationalization of Jerusalem.

“Nothing was said in the Mandate [for Palestine] about the internationalization of Jerusalem. Indeed Jerusalem as such is not mentioned, though the Holy Places are. And this in itself is a fact of relevance now. For it shows that in 1922 there was no inclination to identify the question of the Holy Places with that of the internationalization of Jerusalem.”²

Professor Julius Stone notes that Resolution 181 that was rejected by all Arab states, “lacked binding force” from the outset, since it required acceptance by all parties concerned:

“While the state of Israel did for her part express willingness to accept it, _the other states concerned both rejected it and took up arms unlawfully against it.”³

Sir Lauterpacht elaborated in 1968 about the new conditions that had arisen since 1948 with regard to the original thoughts of the internationalization of Jerusalem:

– “The Arab States rejected the Partition Plan and the proposal for the internationalization of Jerusalem.

– “The Arab States physically opposed the implementation of the General Assembly Resolution. They sought by force of arms to expel the Jewish inhabitants of Jerusalem and to achieve sole occupation of the City.

– “In the event, Jordan obtained control only of the Eastern part of the City, including the Walled City.

– “While Jordan permitted reasonably free access to Christian Holy Places, it denied the Jews any access to the Jewish Holy Places. This was a fundamental departure from the tradition of freedom of religious worship in the Holy Land, which had evolved over centuries. It was also a clear violation of the undertaking given by Jordan in the Armistice Agreement concluded with Israel on 3rd April, 1949. Article VIII of this Agreement called for the establishment of a Special Committee of Israeli and Jordanian representatives to formulate agreed plans on certain matters which, in any case, shall include the following, on which agreement in principle already exists ... free access to the Holy Places and cultural institutions and use of the Cemetery on the Mount of Olives.

– “The U.N. displayed no concern over the discrimination thus practiced against persons of the Jewish faith.

– “The U.N. accepted as tolerable the unsupervised control of the Old City of Jerusalem by Jordanian forces – notwithstanding the fact that the presence of Jordanian forces west of the Jordan River was entirely lacking in any legal justification.

– “During the period 1948-1952 the General Assembly gradually came to accept that the plan for the territorial internationalization of Jerusalem had been quite overtaken by events. From 1952 to the present time [1968] virtually nothing more has been heard of the idea in the General Assembly.

“On 5th June, 1967, Jordan deliberately overthrew the Armistice Agreement by attacking the Israeli-held part of Jerusalem. There was no question of this Jordanian action being a reaction to any Israeli attack. It took place _notwithstanding explicit Israeli assurances, conveyed to King Hussein through the U.N. Commander, that if Jordan did not attack Israel, Israel would not attack Jordan. Although the charge of aggression is freely made against Israel in relation to the Six-Day War the fact remains that the two attempts made in the General Assembly in June-July 1967 to secure the condemnation of Israel as an aggressor failed. A clear and striking majority of the members of the U.N. voted against the proposition that Israel was an aggressor.”⁴

Today, more than 57 years later, Israel has reunited Jerusalem and provided unrestricted freedom of religion, with access to the Holy Places in the unified City of Peace assured.

Significant events appear to have escaped the ICJ, which mentioned Jerusalem 54 times in its opinion:

“Moslems have enjoyed, under Israeli control, the very freedom which Jews were denied during Jordanian occupation.”⁵

The UN General Assembly and the Security Council have limited influence on the future of Jerusalem.

Sir Lauterpacht explains:

“(i) The role of the U.N. in relation to the future of Jerusalem and the Holy Places is limited. In particular, the General Assembly has no power of disposition over Jerusalem and no right to lay down regulations for the Holy Places. The Security Council, of course, retains its powers under Chapter VII of the Charter in relation to threats to the peace, breaches of the peace and acts of aggression, but these powers do not extend to the adoption of any general position regarding the future of Jerusalem and the Holy Places.

“(ii)Israel’s governmental measures in relation to Jerusalem – both New and Old – are lawful and valid.”

Originally, internationalization of Jerusalem was part of a much broader proposal [UN Resolution 181] that all the Arab states rejected, both at the UN and ‘on the ground’ – Arab’s rejection by armed invasion of Palestine by the forces of Egypt, Trans-Jordan, Syria, Lebanon, Iraq, and contingents from Saudi Arabia and Yemen … aimed at destroying Israel.

The outcome of consistent Arab aggression was best described by Judge Stephen Schwebel:

“… as between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively in 1948 and 1967, on the other, Israel has better title in the territory of what was Palestine, including the whole of Jerusalem …”⁶ [italics by author].

The Myth of ‘Two Jerusalems,’ an Arab ‘East Jerusalem’ and a Jewish ‘West Jerusalem.’

Jerusalem was never an Arab city; Jews have held a majority in Jerusalem since 1870,⁷ and ‘east-west’ is a geographic, not a political designation. It is no different than claiming the Eastern Shore of Maryland in the U.S. should be a separate political entity from the rest of that state.

Although uniting the city transformed all of Jerusalem into the largest city in Israel and a bustling metropolis, even moderate Palestinian leaders reject the idea of a united city. Their minimal demand for ‘just East Jerusalem’ really means the Jewish holy sites (including the Jewish Quarter and the Western Wall), which Arabs have historically failed to protect, and the transfer to Arabs of neighborhoods that house a significant percentage of Jerusalem’s present-day Jewish population. Most of that city is built on rock-strewn empty land around the city that was in the public domain for the past 38 years. With an overall population of 704,000 (June 2005), separating East Jerusalem and West Jerusalem is as viable and acceptable as the notion of splitting Berlin into two cities again, or separating East Harlem from the rest of Manhattan within New York City.

Jerusalem’s Jewish link: Historic, Religious, Political.

Jerusalem, wrote historian Martin Gilbert,⁸ is not a “‘mere’ capital: It holds the central spiritual and physical place in the history of the Jews as a people.”⁹

For morethan 3,000 years, the Jewish people have looked to Jerusalem as their spiritual, political, and historical capital, even when they did not physically rule over the city. Throughout its long history, Jerusalem has served, and still serves, as the political capital of only one nation – the one belonging to the Jews. Its prominence in Jewish history began in 1004 B.C.E., when King David declared the city the capital of the first Jewish kingdom.¹⁰ David’s successor and son, King Solomon, built the First Temple there, according to the Bible, as a holy place to worship the Almighty. History, however, would not be kind to the Jewish people. Nearly four hundred ten years after King Solomon completed construction of Jerusalem [in 586 B.C.E.], the Babylonians (early ancestors to today’s Iraqis) seized and destroyed the city, forcing the Jews into exile. Fifty years later, the Jews, or Israelites as they were called, were permitted to return after Persia (present-day Iran) conquered Babylon. The Jews’ first order of business was to reclaim Jerusalem as their capital and rebuild the Holy Temple, recorded in history as the Second Temple.

Jerusalem was more than the Jewish kingdom’s political capital. It was a spiritual beacon. During the First and Second Temple periods, Jews throughout the kingdom would travel to Jerusalem three times yearly for the Jewish holy days of Sukkot, Passover, and Shavuot, until the Roman Empire destroyed the Second Temple in 70 C.E. and ended Jewish sovereignty over Jerusalem for the next 1,900 years. Despite that fate, Jews never relinquished their bond to Jerusalem or, for that matter, to Eretz Yisrael – the Land of Israel.

No matter where Jews lived throughout the world for those two millennia, their thoughts and prayers were directed toward Jerusalem. Even today, whether in Israel, the United States, or anywhere else, Jewish ritual practice, holiday celebration and lifecycle events include recognition of Jerusalem as a core element of the Jewish experience. Consider that:

• Jews in prayer always turn toward Jerusalem.
• Arks (the sacred chests) that hold Torah scrolls in synagogues throughout the world face Jerusalem.
• Jews end Passover Seders each year with the words: “Next year in Jerusalem”; the same words are pronounced at the end of Yom Kippur, the most solemn day of the Jewish year.
• A three-week moratorium on weddings in the summer recalls the breaching of the walls of Jerusalem by the Babylonian army in 586 B.C.E. That period culminates in a special day of mourning – Tisha B’Av (the 9th day of the Hebrew month Av) – commemorating the destruction of both the First and Second Temples.
• Jewish wedding ceremonies are joyous occasions marked by sorrow over the loss of Jerusalem. The groom recites a biblical verse from the Babylonian Exile: “If I forget thee, O Jerusalem, let my right hand forget her cunning,” and breaks a glass in commemoration of the destruction of the Temples.

Even body language, often said to tell volumes about a person, reflects the importance of Jerusalem to Jews as a people and, arguably, the lower priority the city holds for Muslims:

• When Jews pray they face Jerusalem; in Jerusalem they pray facing the Temple Mount.
• When Muslims pray, they face Mecca; in Jerusalem they pray with their backs to the city.
• Even at burial, a Muslim face is turned toward Mecca.

Finally, consider the number of times Jerusalem is mentioned in the two religions’ holy books:

• The Old Testament mentions Jerusalem 349 times. Zion, another name for Jerusalem, is mentioned 108 times.¹¹
• The Quran never mentions Jerusalem – not even once.

Even when others controlled Jerusalem, Jews have maintained a physical presence in the city, despite being persecuted and impoverished. Before the advent of modern Zionism in the 1880s, Jews were moved by a form of religious Zionism to live in the Holy Land, settling particularly in four holy cities: Safed, Tiberias, Hebron, and most importantly, Jerusalem. Consequently, Jews constituted a majority of the city’s population for generations. In 1898, “In this City of the Jews, where the Jewish population outnumbers all others three to one …” Jews constituted 75 percent¹² of the Old City population in what Secretary-General Kofi Annan calls East Jerusalem. In 1914, when the Ottoman Turks ruled the city, 45,000 Jews made up a majority of the 65,000 residents. And at the time of Israeli statehood in 1948, 100,000 Jews lived in the city, compared to only 65,000 Arabs.¹³ Prior to unification, Jordanian-controlled East Jerusalem was a mere 6 square kilometers, compared to 38 square kilometers on the ‘Jewish side.’ Arab claims to Jerusalem, a Jewish city by all definitions, reflect a “what’s-mine-is-mine, what’s-yours-is-mine” disingenousness.

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1. Professor, Judge Sir Elihu Lauterpacht, Jerusalem and the Holy Places, Pamphlet No. 19 (London, Anglo-Israel Association, 1968). Professor Elihu Lauterpacht is a highly experienced academic and practitioner in the field of public international law. He has been active as an international litigator, advisor and arbitrator. Among the countries for which he has appeared in land and maritime boundary cases are Bahrain, Chile, El Salvador, Israel, Malta and Namibia. He is an ad hoc Judge of the International Court of Justice, and has been an arbitrator in a number of cases in the International Centre for the Settlement of Investment Disputes and in various other international cases. He is an honorary Professor of the University of Cambridge where he taught for thirty five years, and is the founder and first Director of the Research Centre for International Law. ↑
2. Ibid. ↑
3. Professor Julius Stone (1907-1985), Israel and Palestine, Assault on the Law of Nations, The Johns Hopkins University Press, 1981, p. 127. The late Professor Julius Stone was recognized as one of the twentieth century’s leading authorities on the Law of Nations. His work represents a detailed analysis of the central principles of international law governing the issues raised by the Arab-Israel conflict. He was one of a few scholars to gain outstanding recognition in more than one field, as one of the world’s best-known authorities in both Jurisprudence and International Law. ↑
4. Professor, Judge Sir Elihu Lauterpacht, Jerusalem and the Holy Places, Pamphlet No. 19 (London, Anglo-Israel Association, 1968). ↑
5. Ibid. ↑
6. Professor, Judge Stephen M. Schwebel, What Weight to Conquest? in Justice in International Law, Cambridge University Press, 1994. Judge Schwebel has served on the International Court since 15 January 1981. He was Vice-President of the Court from 1994 to 1997 and has been President from 1997 to 2000. A former Deputy Legal Adviser of the United States Department of State and Burling Professor of International Law at the School of Advanced International Studies of The Johns Hopkins University (Washington). Judge Schwebel is the author of several books and over 150 articles on international law. He is Honorary President of the American Society of International Law.
   Opinions quoted in this critiques are not derived from his position as a judge of the ICJ. ↑
7. For these and more statistics, see “Jerusalem: The City’s Development from a Historical Viewpoint,” at: http://www.mfa.gov.il/MFA/MFAArchive/1990_1999/1998/7/Jerusalem-%20The%20City-s%20Development%20from%20a%20Historica. (10748) ↑
8. Martin Gilbert is an Honorary Fellow of Merton College Oxford and the biographer of Winston Churchill. He is the author of the “Jerusalem: Illustrated History Atlas” (Vallentine Mitchell) and “Jerusalem: Rebirth of the City” (Viking-Penguin). ↑
9. Martin Gilbert, “Jerusalem: A Tale of One City,” The New Republic, Nov. 14 1994. See: http://web.idirect.com/~cic/jerusalem/martinGilbertArticle.htm. (11362) ↑
10. Ibid. ↑
11. See Ken Spiro, “Jerusalem: Jewish and Moslem Claims to the Holy City,” at http://www.aish.com/Israel/articles/ _Jewish_and_Moslem_Claims_to_the_Holy_City.asp. (11341) ↑
12. “The eighty thousand Jews in Palestine, fully one-half are living within the walls, or in the twenty-three colonies just outside the walls, of Jerusalem. This number – forty thousand Jews in Jerusalem – is not an estimate carelessly made …” Edwin S. Wallace, Former U.S. Consul “The Jews in Jerusalem” Cosmopolitan magazine (1898; original pages of article are in possession of the author). ↑
13. “JERUSALEM – Whose City?” at http://christianactionforisrael.org/whosecity.html. (10744) ↑