In the course of its vehement condemnation of Israeli settlements, UN Security Council resolution 2334, passed on December 23, 2016, refers three times to “Palestinian territory occupied since 1967, including East Jerusalem.” To some, the phrase may appear not only innocuous, but self-evident. In fact it is saddled with a load of historical assumption, and requires a little cool picking apart.
In the first instance, the wording of 2334 makes it clear that the idea of the City of Jerusalem as a so-called corpus separatum, namely international territory – a concept inherent in the original UN partition plan for post-Mandate Palestine – has been abandoned by the Security Council. But contradictions abound in international thinking about the Israel-Palestinian situation. Incongruously the UN as a whole, like the European Union, still clings to the concept of an internationalized Jerusalem while at the same time asserting its support for the incompatible objective of “a viable state of Palestine in the West Bank, including East Jerusalem.” It must be one or the other; it cannot be both – and the Security Council at least appears consistent.
The idea of an internationalized Jerusalem was set out in General Assembly resolution 181 (II), passed on November 29, 1947: “The City of Jerusalem shall be established as a corpus separatum under a special international regime and shall be administered by the United Nations.” It was restated after the 1948 Arab–Israeli War in resolution 303(IV) of 1949, and again reiterated in a 1979 report prepared under the guidance of the UN’s Committee on the Exercise of the Inalienable Rights of the Palestinian People. It has never been countermanded, though as a practical proposition it is surely obsolete. There has never been any agreement, treaty, or international understanding which applies the corpus separatum concept to Jerusalem.
The idea was part and parcel of the UN’s original partition plan for Mandate Palestine. At the moment the British government surrendered its mandate, the territory then known as “Palestine” – except for the area designated for the Jewish state, which had come into existence on the previous day – ceased to belong to any sovereign nation. In the subsequent Arab-Israel war Jordanian forces seized East Jerusalem, while Israel gained control of West Jerusalem. In 1949, the Israeli government declared Jerusalem to be the capital of the new state.
It was during the 1967 Six Day War that Israel captured East Jerusalem from the Jordanian army. The Security Council’s purpose in asserting that East Jerusalem is occupied Palestinian territory is to reaffirm, as it has done on a variety of occasions in the past, that it regards as invalid Israel’s Jerusalem Law of July 1980 declaring the whole city to be the unified capital of Israel.
As for possible changes to the pre-Six Day War lines regarding Jerusalem, these are many and various. Several have been discussed down to fine detail during past intensive negotiations. They include redrawing the boundaries of the city and its environs to carve out a new Arab municipality of Al-Quds (the so-called “Clinton Parameters”), leaving the city unified but under joint Israeli-Arab administration (the “open city” concept of the 1999-2001 final status negotiations), and the “divided city”, or separation barrier, proposed in the joint Israeli-Palestinian Geneva Initiative of 2003.
The Old City of Jerusalem presents its own problems, and various models are similarly afloat, including so-called “territorial sovereignty” (ie divided Israeli-Arab control), a “special regime” (a united Old City under special management), and hybrid versions of these.
The main problem with resolution 2334 is that it seeks to modify Security Council Resolution 242, the accepted and agreed basis for the Arab-Israel peace process. Adopted by the Security Council in the immediate aftermath of the Six Day War in June 1967, resolution 242 became the cornerstone of Middle East diplomatic efforts to solve the Arab-Israel dispute. 242 accepted that the armistice line boundaries after the 1948 Arab-Israel war, which remained in place up to the outbreak of the Six Day War in 1967, were merely where the two armies happened to be placed when hostilities ceased in 1948, and were far from satisfactory as defensible international borders. In fact, Article II of the Armistice with Jordan explicitly specified that the agreement did not compromise any future territorial claims of the parties, since it had been “dictated exclusively by military considerations.” Accordingly resolution 242 required the creation of new “secure and recognized” boundaries, and did not call for a full withdrawal from all the territories that Israel captured in the Six Day War.
Resolution 2334 runs counter to 242 by explicitly establishing the 1967 pre-war boundaries as the borders of a Palestinian state, only subject to any possible future agreement. Those boundaries refer back to a city of Jerusalem divided between Israeli and Jordanian occupation. The dividing line ran south past the Mandelbaum Gate and skirted the Old City wall, thus incorporating the Old City within East Jerusalem.
Right up until 1967 Jordanian snipers were positioned along the City Line, frequently shooting at citizens and other targets on the Israeli side of the city. Jordan’s commitment in the 1949 Armistice Agreement to allow free access of Jews to the holy sites, such as the Western Wall and the cemetery on the Mount of Olives, was not honored. Synagogues, cemeteries and the area adjacent to the Western Wall were desecrated. Israel understandably has no desire to recreate the conditions that gave rise to this situation – which explains why much of the Israeli media objects to the idea of pre-determining the borders of a putative Palestinian state to include an East Jerusalem occupied for 19 years by the Jordanian army.
A further interesting point. To declare, as resolution 2334 does, that East Jerusalem is Palestinian territory carries with it an obvious corollary – namely that West Jerusalem is an integral part of sovereign Israel. The Security Council therefore, by implication, removes any objection to states locating their embassies within that part of the city. In the light of resolution 2334, the furore raised in certain circles by US President Donald Trump’s declared intention to relocate the American embassy to Jerusalem seems otiose.
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