Legal Aspects and Socioeconomic Realities

Usama Halabi – Lawyer , Jerusalem

I will talk about the question of Jerusalem and International law, the question of Jerusalem and Israeli internal law, and the question of Jerusalem and the peace process. Here I would like to refer to the DoP (Declaration of Principles) of 13^th of September 1993, and the relevant articles and clauses it contains. If time permits, I will then discuss regional agreements such as the Israeli Jordanian agreement. Finally, I will talk about the legal status of the Palestinians in Jerusalem, including the issues of health, education and planning.

I am not a historian; I am a lawyer who has been working in Jerusalem, and I will be speaking from my own legal perspective. The question of Jerusalem is still open. In 1947, UN General Assembly resolution 181 declared that Jerusalem would be given a special status, Corpus Seperatum, which means that it is divided into two states; the Arab State and the Jewish State. The boundaries for this separation were to be from the north almost to the current Israeli municipal boundaries. This resolution was not implemented, but was then used by the Israelis to give legitimacy to their claims. Then the 1948 war started, which the Palestinians lost. In 1948 a de facto division of the city was made. The western part of Jerusalem fell under Israeli control, and the eastern part under Jordanian control. I am using the word control because I do not want to examine the details of the legitimacy of each side in controlling that area. Legally speaking, this situation continued until 1967.

In 1967 Israel occupied the eastern part of Jerusalem, completed on June 7^th. On June 25^th the Israeli government decided to come out with a legal cover for its political decision, and declared the annexation of Jerusalem. If you look into the books enacted by the parliament, you will not find the word "annexation" in any context. At that time, Israel wanted to show the world that its aim was not to annex the city, but to provide the people with needed services. The wording used states that Israeli "jurisdiction" and "administration" will be extended to cover that area. After 33 years, however, it is clear that the meaning behind this rhetoric was really annexation and nothing else.

To this day some people still say that the act was not annexation, but the legal fact is that 72 km² were annexed. This was done by enacting two main laws. One of them enabled the Israeli government to extend its administration to the new occupied area. The other law enabled the minister of Interior affairs to extend municipal boundaries. This law applies to any municipality, and Jerusalem was not specified, but this law led to the enacting of two new orders, which extended the Jerusalem boundaries to cover these 72 km². It was just a matter of technique. Based on this decision, Israel was able to determine the number of people staying in this new annexed area, and entitled them to ID card which, since that time, have indicated residency rights rather than citizenship. The decision was political, and reflected the Israeli desire to acquire as much land with the least Arab population as possible.

Therefore, the people in the annexed areas were given residency status. In order to keep this status according to the Israeli law, an individual has to be living in Jerusalem, and cannot leave the city for any extended period of time, which I will define in a bit. In this way, Israel annexed East Jerusalem and the surrounding area.

The reaction of International Law:

Israelis claim that they fought the war of 1967 in self-defense. Therefore, they would continue to control the land that they consequently occupied until a peace treaty was signed. They also added that their claim to Jerusalem and the West Bank was more sound than either the Jordanian or the Palestinian claims, because there was a missing revisionair, which means that there was no rightful party to whom the territory could be returned. They did not recognize Jordanian control in either the West Bank or in East Jerusalem, and as there was no counterpart Palestinian state, the Israelis took this as another reason for continuing to control these areas.

The position of the United Nations resolutions , whether from the Security Council or the General Assembly, clearly state that all of Israel's actions have violated its policy. Its hold over the city of Jerusalem is not accepted, and even the reality of the situation is not a basis for a legitimate, legal or accepted claim to sovereignty over the city. Israel continued to ignore such declarations. In 1980 the Israeli government enacted what is known as the basic law, which substitutes for a constitution, stating that Jerusalem is the Capital of Israel. The first article of this law provides that “United Jerusalem is the capital of Israel”, and then they added the words “undivided” and “eternal”. Again the reaction of International law was, as before, to declare this unacceptable. Most of the remaining embassies moved to Tel-Aviv, as the International community did not even recognize the Israeli claim over East Jerusalem.

International law does not recognize one-sided annexation, even if we accept the argument that Israel acted in self defense (which is actually disputed). Self defense does not legitimize occupation. Furthermore, Israel is certainly not acting in self-defense by maintaining the occupation for more than 30 years. Therefore, international law holds that if any area is occupied, the sovereignty is not lost but rather suspended for a while, and always continues to be the right and entitlement of the people of the occupied area. It is only the control and administration that pass from the occupied party to the occupier. Sovereignty can not be determined by one side, which is in this case Israel.

The International Law position does not accept Israel's claim to superior rights in the city, or for being the party that liberated the city from the administration of the enemy. Israel responded to this International condemnation by building new settlements. In 1968 thousands of dunums were confiscated by the Israeli government according to Israeli laws, some of which were held over from the Mandate period. Because the laws of 1967 give Israel the 'right' to extend municipal borders by order, and the order designated Jerusalem, all the laws and jurisdictions that existed in Israel became applicable in those areas. For example, the “absentee property law” is also applicable in East Jerusalem, and was used to confiscate lands that the Israelis claimed were “absentee property”, meaning that the owner was not in the city, either living in the West Bank or in another country. As an illustration, the Israeli government confiscated 24,000 dunums of Palestinian land on which it built all the “new Jewish neighborhoods”, or rather, settlements. Israeli law stipulates that such land is to be put to use serving "public interest", which ought to include the interests of both Arabs and Jews, but in reality these 24,000 dunums confiscated between 1968 and the early 1970’s served only Jewish interest.

Altogether, 34-38 thousand dunums of land were confiscated in varying ways, there are currently more than 200,000 Jews living in the areas occupied in 1967. There are now more Jews than Palestinians in the occupied areas of the city, due to the policy maintained by the Israeli government and the municipality from the very beginning, which strove to freeze the Jewish-Arab ration in all of greater Jerusalem at 72% Jewish 28% Palestinian. Although Palestinians have a higher birth rate, the city as a whole is still more than 70% Jewish.

The question is, what is to be done with the Jews currently living in the occupied areas of Jerusalem? If there should be a Palestinian state then, as Mr. Faisal Husseini said, these Jews would be Israeli citizens living in the Palestinian state. Or, as I am hearing nowadays about the Jordan river valley, maybe some of the land, which would be under the Palestinian sovereignty, would be leased to the Israelis for a defined period of time. This would not affect the issue of sovereignty, but would be a pragmatic way to deal with the 200,000 people living in 14 neighborhoods. Another option would be to permit exchanges or compensation involving Palestinian property in west Jerusalem. I do not think that Israel will allow thousands of Palestinians to come back to Western Jerusalem, however, even though their legal claim is quite strong.

The Israeli Palestinian Peace Process and the Issue of East Jerusalem

The DoP left the issue of Jerusalem, as well as refugees, borders and security, to be settled in the final status negotiations. Palestinians consider even having the issue of Jerusalem on the agenda for negotiation a victory, because for many years Israelis refused to tolerate any discussion of the issue. Also, there is no clause in the DoP to preserve the status quo, because even this term is unclear. Many important changes on the ground have taken place over the last seven years, most importantly the continued construction of new settlements such as Har Homa and Abu Ghneim Mount.

Residency

Jerusalem residents are allowed to stay in the city, but have to be present and have to prove that their center of life is in the city. A woman who is married to someone from the West Bank, or anyone else who does not carry a Jerusalem ID card faces many obstacles in registering her children as Jerusalem residents. First of all, she has to prove that her husband agrees to this, because it is assumed that the husband will decide where the family lives. Therefore, she has to prove that the family is living in Jerusalem by collecting all the documents that prove that the family is paying taxes, electricity, phone bills, water, etc.

Since 1967, the Israeli government had maintained what they called the “Open bridges policy”, meaning that the bridges of the Jordanian valley were open in order to ease the situation of the people living in the West Bank and East Jerusalem, to avoid any explosion, to allow them to continue their family relations and to make a living outside Israel, so that Israel's economic burden would be reduced. In 1995, the Israeli Ministry of Interior Affairs suddenly reversed this policy without any explanation. Palestinian residents of Jerusalem had to obtain an exit permit to cross into Jordan or a "Lasse Passe" to depart from the Ben-Gurion airport, and upon their return many found that the Israelis had confiscated their right of residency, including their right to have health insurance and other social rights. Many of the families whose right of residency has been cancelled have decided to stay in Jerusalem illegally.

Part of the Israeli policy is to drive Palestinians from the city by preventing them from improving their quality of life. Some 40-50 thousand Jerusalem residents have been forced to do just that, and are now living in suburbs such as Izarriyya, Abu Dis and Ar-Ram, rather than in the city itself. These people are then denied their social rights and allowances from the National Insurance Institute, and are faced with the problem of losing their ID card as well. According to Israeli law, Jerusalemites lose their right of residency by:

1. Obtaining a passport from another country (not by birth).
2. Have a permanent residency right in another country.
3. Living outside the country for more than seven years. These seven year do not even have to be continuos, and returning to Jerusalem for the summer or for short visits does not count. Living in another country also includes living in the West Bank. Jerusalemites who live in the West Bank and have not maintained a strong relation with Jerusalem, such as having their children educated in the city, face a real danger of losing their right of residence, even if they do not leave the country. Simply moving to Ramallah, for example, will ensure one's loss of residency rights.

The issue of residence is, in my opinion, the fundamental problem affecting day to day life of the Jerusalemite people. While Israel has been investing in the western part of Jerusalem or in the newly constructed Jewish neighborhoods, they have not invested in the Arab neighborhoods of the eastern part. This is not just a claim, but is admitted by the municipality itself. They do not use the term 'discrimination', but rather speak of a huge gap in housing, education and services provided. 

For example Ha'aretz newspaper reported that the Israeli association for civil rights is just preparing a petition to the supreme court against the municipality, because there are only five medical centers dealing with newborn children in East Jerusalem, compared with 32 in West Jerusalem. Out of the 6509 Arab babies born each year only 2503 receive this service, while it is enjoyed by all Jewish newborn babies.

Participant: Can you explain why people living in Jerusalem are not allowed to hold a passport from another country?

There is a very important distinction here between citizens and residents. People who are Israeli citizens are illegible to hold the Israeli passport, but they are also allowed to have as many passports as they want. Residents of Israel, including the Palestinians living in East Jerusalem, they are not allowed to obtain or hold another passport except the Jordanian passport, which is accepted for political reasons.. When Israel occupied East Jerusalem they decided not to grant the people citizenship but rather to declare them residents, thereby subject to the “entrance to Israel” law of 1952.

Participant: Are you a Palestinian living in Israel?

I was born in Israel. I am a Palestinian, but since I was born on land that is neither in the West Bank, Gaza nor Jerusalem, I was eligible by birth to be a citizen of Israel. Should I be a Jerusalemite who wants to obtain Israeli citizenship, I would have to fulfill six cumulative conditions, with the final decision in the hands of the Minister of Interior. I would also have to declare that I am faithful to the state of Israel, which would then make me eligible to vote for the parliament.

Participant: Could you please explain more about the term “Arab Israelis”.

Arab Israelis are Palestinians who remained in their land after the 1948 war and consequently became citizens of Israel. They are Arabs living in Israel, but they belong to the Palestinian nation. The Israeli government refuses to recognize this fact, however, and use the terms "Arab Minorities", "minorities" or “Israeli Arabs”, but never the term “Palestinian”.

Participant: We in the World Council of Churches based our principles on International Law…  (question not clear).

There are two different regimes involved: the United Nations Regime and the Oslo Regime. The United Nations regime includes the General Assembly, the Security Council resolutions and the United Nation charter. When Iraq invaded Kuwait, the United Nations very quickly employed title seven of its charter and establish a special military forces under the leadership of the United States, England and other states to liberate Kuwait. The UN has had 33 years to organize a similar operation to liberate Palestine from the occupation of 1967 and to force Israel to respect UN resolutions, yet has failed to do so.

During the Persian Gulf War, the United States used its strength and influence to direct the United Nations regime on a course that suited the US's interest. This was not the case in Palestine, however. With the beginning of the Oslo regime, the United States took the issue of Palestine and of Jerusalem from the United Nations Agenda and shifted it to a smaller agenda; the Palestinian – Israeli negotiations or the 'Peace Process'. In many ways this weakened the Palestinian position, for the language of the DoP is very vague, and does not state clearly that the legitimate rights of each party include the right to self determination. The DoP mentions UN resolutions 338 and 242 but not resolutions 194 or 181, which are being brushed aside and forgotten. Therefore I think that the establishment of a regime parallel to the United Nations weakened the Palestinian position and enhanced the position of the Israelis.

As for the resemblance to the apartheid system in South Africa, this is true. There are books that deal with this resemblance, especially with regard to land policy. Israel uses land laws and planning as a political tool, and has simply been clever enough to make the world believe that it is not against a solution. 

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