The petitioners decided to present the High Court of Justice (HCJ) with a very unpopular issue: the status of East Jerusalem under international law. There is almost no other issue around which the Israeli public rallies quite like “unified Jerusalem”. The Supreme Court is not a stranger in the land. It too prefers not be perceived as not exalting Jerusalem and celebrating the city-reunited-for-all-eternity. However, as detailed below, the Israeli statute that allowed for the “reunification of Jerusalem” and international law are at odds on this issue, to say the least. So what can be done? Ignore the provisions of international law and even block any possibility of considering it – based on law, of course.
The petitioners are residents of East Jerusalem who were prosecuted in the Jerusalem Court for Local Affairs on charges of illegal construction. In their petition, they argued that the local court lacked jurisdiction with respect to the charges, given that the application of Israeli law to “expanded Jerusalem” was illegal. We explain.
At the end of the 1967 war, Israel annexed about 70,500 dunum of West Bank land to the territory of the City of Jerusalem. The annexed territory consisted of a small area that was the Jordanian city of Jerusalem and land belonging to 28 West Bank villages. This action tripled the size of the city, making it the largest in Israel. The annexed area has come to be known as East Jerusalem. In a speedy legislative maneuver, Israeli law, jurisdiction and administration were applied to this area and the municipal boundaries of Jerusalem were expanded to include it. Thus, in less than 48 hours, in late June 1967, the City of Jerusalem was united and its eastern part was annexed to Israel.
[1]Israel’s actions are inconsistent with international law. A country cannot gain sovereignty over a territory as a result of military occupation. This prohibition stems primarily from the general ban on the use of force, which is now commonly understood to be valid even when a country claims self-defense as the reason for using force.
[2] As detailed below, the international community maintains the position that the West Bank, including East Jerusalem, has been under belligerent occupation ever since the 1967 war. According to Article 43 of The Hague Regulations – accepted by the Supreme Court of Israel as binding, customary international law – the powers of the occupying power are limited to maintaining public order and safety while respecting the laws in force in the occupied territory, unless it is absolutely prevented from doing so. These powers do not extend to annexing the territory and gaining sovereignty over it. As a rule, a transfer of sovereignty may occur only as a result of a peace treaty.
[3] In view of these principles, the reaction of the international community to the application of Israeli law to East Jerusalem was predictable. Despite Israel’s official position at the time, that the application of Israeli law to the occupied territory did not mean that it had been annexed, the UN General Assembly and the UN Security Council denounced the annexation in a series of resolutions and determined that it did not alter Israel’s status as an occupying power in East Jerusalem.
[4]Israel’s parliament, the Knesset, did not stop at the application of Israeli “law, jurisdiction and administration” to East Jerusalem. In 1980, it passed Basic Law: Jerusalem, the Capital of Israel. Section 1 of this basic law establishes that “Jerusalem, complete and united is the capital of Israel”. The enactment of this law removed any doubts about Israel’s intentions and made it clear that it sees East Jerusalem as an inseparable part of the country. The enactment of the basic law also drew harsh criticism from the international community. The Security Council held that the measures taken by Israel to change the status of Jerusalem were illegitimate and invalid, that they contravened the provisions of international law and that they did not change the status of the city as occupied territory, to which international humanitarian law applies. The Security Council called on countries that had diplomatic missions in Jerusalem to remove them from the city.
[5] Countries that had embassies in Jerusalem began pulling them out, and by 2006 no foreign embassies remained in the city.
In its judgment in
Rabah, the Court describes the development of the annexation of Jerusalem since 1967 in much the same way as it is described above, with one significant difference: the Court’s description omits the position of international law and the UN resolutions on the annexation.
In order to avoid addressing the issue of the legality of the annexation under international law altogether, Justice Tova Strasberg-Cohen holds: “Even if I were to accept the supposition that domestic Israeli legislation is inconsistent with customary international law – and I do not accept this supposition as it is baseless – Israeli law trumps international law”.
[6] Justice Strasberg-Cohen subsequently addresses the issue of the absorption of public international law into Israeli law. She repeats a precedent set by the Supreme Court whereby the presumption employed by the courts is that the legislator aspires to have legislation conform to the principles of international law, but when a Knesset law clearly contradicts international law, the presumption loses its value and Israeli domestic law prevails.
[7]This precedent is problematic because it precludes the Court’s intervention specifically in cases where there is a clear contradiction between a Knesset law and the provisions of international law. According to this precedent, the Court cannot instruct the State to act in a manner that is consistent with the obligations it has under the conventions it took upon itself or with the provisions of customary international law, which have gained general, binding recognition from the international community as norms that are designed to promote worthy goals. Conscious of this difficulty, before the courts determined whether or not they should use this “precedent” in any given case, they first thoroughly examined the possibility that Israeli law does conform to the provisions of international law.
[8] The
Rabah court exempts itself from performing this thorough examination and rules, instead, that there is no basis for the presumption that domestic Israeli law contradicts the provisions of customary international law. Why is this presumption baseless? The Court did not find it necessary to explain.
The Court’s analysis elegantly skips over the need to address the question of whether the Israeli statute that enabled the annexation is consistent with international law and goes straight on to cite the precedent regarding the supremacy of Israeli law. This is no coincidence. Addressing this question would have done more than just expose the wide gap between international law and the annexing Israeli law. It would have forced the Court to tackle other questions: If the annexation is, indeed, unlawful under international law, then what law does apply to East Jerusalem? What are the ramifications of this law?
A holding that East Jerusalem is under occupation gives rise to obligations on the part of the occupying power towards the residents of the occupied territory, who, in turn, enjoy the status of protected persons. As stated, the occupying power is obligated to respect the law in force in the occupied territory. Its ability to enact new laws is generally limited to ones intended to meet the needs of the local population. Additionally, the citizens of the occupying power may not settle in the occupied land and the occupying power may not deport the residents of the occupied area out of the territory, nor may it carry out a population transfer within it. The occupying power is also prohibited from demolishing the homes of protected persons, unless there is a military need to do so, and it may not expropriate their property. Moreover, the 4th Geneva Convention expressly stipulates that the full or partial annexation of an occupied territory does not deprive local residents of their Convention rights.
[9] As such, the legality of the actions carried out by the occupying power must be examined vis-à-vis the law of occupation, even when the occupying power claims the annexation is legal.
Each and every one of Israel’s practices in East Jerusalem violates the norms of international law. To date, Israel has had 200,000 of its citizens settle in East Jerusalem. In order to enable this mass population movement, Israel has expropriated more than a third of the annexed territory.
[10] The land was “requisitioned for public use”, but used only for members of the Jewish public. Yet, taking the land was not enough, and Israel applied to East Jerusalem internal legislation that allows seizing property belonging to individuals it defines as “absentees”.
[11] In this manner, many properties inside Palestinian neighborhoods were handed over to settlers, though many of the owners of these properties were never really absent. They simply lived in the part of the West Bank that was not annexed to Israel. Israel used other techniques to displace the Palestinian residents of the annexed area, including applying the Entry into Israel Law and its regulations to them. This measure allowed Israel to revoke the civil status of thousands of East Jerusalem residents and effectively deport them from the annexed area.
[12] These are but a few, representative, examples of the manner in which the annexation, channeled through Israeli law, has led to other violations of international law. Incidentally, these practices have all been upheld by the Supreme Court.
[13] The matter of the petitioners in
Rabah was not exceptional in this context. With the annexation of East Jerusalem, the planning and building laws of the State of Israel were applied to it. Under these laws, construction may take place only in areas that have been appropriately zoned and even then, landowners must obtain a building permit prior to commencing work. Building without a permit is a criminal offense and those convicted of it face house demolitions, heavy fines and in some cases, prison terms.
This is the letter of the law, but matters are not so simple in East Jerusalem. As a general rule, urban planning is meant to provide solutions for residential issues. It is meant to create employment opportunities, develop infrastructure, protect the environment and more. Yet, in East Jerusalem, planning serves another purpose. From the very early stages of the annexation, Israeli policy focused on the “demographic balance” in Jerusalem. In other words, Israel attempted to preserve the “balance” that existed at the time “East Jerusalem” was annexed, when there was a Jewish majority in the united city. This overarching goal laid the foundation for Israel’s policy, examples of which were presented above. Planning was also recruited to serve this purpose. Throughout the occupation, Israel’s planning policy for the Palestinian neighborhoods of Jerusalem has been somewhere between no planning at all and planning that severely limits their development, with the guiding principle being the preservation of the “demographic balance.” The new master plan for the City of Jerusalem, “Jerusalem 2000” specifies “preserving the demographic balance” in the city as a primary goal.
[14] As a result, construction is permitted in a very small part of East Jerusalem, and even in the areas where construction is allowed, East Jerusalem residents are highly unlikely to get a building permit because of the many restrictions imposed by municipal bylaws. The inevitable result of all of the above is large scale illegal building.
This is the context for the many indictments served against residents of East Jerusalem, including the petitioners in
Rabah, for “illegal construction”. The City of Jerusalem, which deliberately limits Palestinians’ ability to build and admits it does so because of demographic considerations, is usually the prosecutor in these cases. The cases are heard by the Jerusalem Court for Local Affairs, which is, in many ways, an arm of the city (including through city funding for part of the judges’ salaries).
[15] The massive fines issued by the judges against individuals who build without permits given under the Building and Planning Law flow into the city’s treasury. The Court for Local Affairs, the respondent in
Rabah, is a central axis in this vicious circle, whose bottom line is a policy of widespread house demolitions in East Jerusalem. As stated, this practice in and of itself contradicts international law, as does its ancillary result: “encouraging” Palestinians residents of East Jerusalem to leave the annexed area.
[16] As this commentary is put to paper, a new bill is up for discussion. This bill seeks to enter into the basic law a clause stating that Jerusalem is the capital of the Jewish people (in addition to its existing definition as capital of Israel). According to the bill’s proponents, its purpose is to further strengthen “unified Jerusalem”.
[17] This type of initiative is entirely unnecessary. The status of “unified Jerusalem”, at least as far as Israeli law is concerned, is stronger than ever. The stance adopted by the Court in
Rabah does not just preclude any possibility of reviewing the legality of the annexation itself; it also precludes reviewing the policies Israel has employed in East Jerusalem over the years through the prism of the law of occupation. In 2002, when the Court issued this judgment, it already had the benefit of a perspective gained by decades of Israeli law applying in East Jerusalem, but it left the Palestinian residents of the city vulnerable to a mechanism of laws, regulations and municipal bylaws designed with the objective of making this population disappear from the city.
Adv. Yotam Ben-HillelThe author is a lawyer and legal researcher on human rights in the Occupied Palestinian Territories. Formerly on staff at HaMoked: Center for the Defence of the Individual.
