Legal Divergences Between the European Union and Israel with Regard to Jerusalem

, September 5, 2007

“A number of major political divergences of view between the European Union and Israel also find their expression in legal positions. One such issue concerns the legality of Israeli neighborhoods in East Jerusalem. The EU stance was spelled out in the Venice Declaration of 1980, which demanded the creation of a Palestinian state to which Israel was at that time opposed. The declaration was issued at a time when the announced aim of the Palestine Liberation Organization was to destroy Israel. The declaration said, with reference to Jerusalem, that the European Community ‘will not accept any unilateral initiative designed to change the status of Jerusalem.'”

Ruth Lapidoth is professor emeritus of the Hebrew University and professor at the Academic Division of the College of Management, specializing in international law. She was legal adviser to the Israeli Foreign Ministry and is a recipient of the Israel Prize, the country’s most prestigious award.

The Settlements

As far as the settlements are concerned, Lapidoth stresses that the Europeans, UN organs, the International Court of Justice, and the Palestinians consider that these violate the Fourth 1949 Geneva Convention, which states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Lapidoth points out that both the plain meaning of the words and the legislative history of this provision of the convention do not support this interpretation. This text was adopted after World War II to prevent the mass transfer of civilians against their will in order to replace the population of an occupied territory. It was aimed at the forceful transfer of civilians practiced by the Germans during World War II.

“This provision does not deal with the voluntary movement of individuals who do not displace local inhabitants.” In an essay, Lapidoth wrote:

In the various agreements concluded in the framework of the Oslo process, the settlements have not been declared illegal nor has their dismantlement been requested. These texts have left the issue of the settlements to the permanent status negotiations. One may hope that bona fide negotiations will lead to a rational and pragmatic compromise.

Lapidoth also noted that some settlements in the West Bank “were actually located on land which before 1948 had belonged to Jews who were expelled from those places by the Arabs in the 1947-48 war. Most settlements were established for security reasons, according to spokesmen of the government.”[1]

The Status of Jerusalem

“One of the most sensitive and painful issues in the relationship between Israel and Europe concerns the status of Jerusalem. European governments have on many occasions shown a biased attitude toward Israel. For instance, after the Oslo Agreements the Palestinians, in violation of these, set up a political representation in East Jerusalem at Orient House. The Europeans insisted that their representatives pay an official visit to the place. It was later closed by Israel.”

Lapidoth has written about this biased EU attitude:

“Several times the EU has urged the parties to refrain from activities which prejudge the outcome of the permanent status negotiations. Has the EU itself lived up to this principle? Let us examine the “Orient House” affair. This building served as headquarters for Mr. Faisal Husseini, the PLO’s representative in Jerusalem. The house served as a centre for various administrative, political and quasi-political activities. Mr. Husseini even received and briefed foreign diplomats in these premises. Israel claimed that these activities contravened the commitments undertaken by the Palestinians in the 1993 Declaration of Principles and in the 1995 Interim Agreement namely, that the offices of the Palestinian authority “shall be located in areas under Palestinian territorial jurisdiction” in the West Bank and the Gaza strip. “

This activity in the Orient House no doubt was intended to prejudge the outcome of the permanent status negotiations. Nevertheless, the EU supported this activity by insisting that its emissaries pay a visit to the place and hold there official talks with Mr. Faisal Husseini.[2]

Lapidoth continues: “The EU’s attitude was not only against Israel’s wishes but also contrary to the Oslo Agreements. It is possible that the Israeli-Palestinian dispute on this matter would not have reached such intensity were it not for the inflammatory attitude of the EU.

“In 1996, Israel celebrated the three-thousand-year anniversary of King David and the foundation of the city. This was mainly a tourism event. The Europeans refused to come to the celebrations because they claimed they were held in a part of Jerusalem that was in dispute. The EU stated that nothing should be undertaken that could prejudice the outcome of the permanent status negotiations. The Europeans’ visits to Orient House were not less prejudicial to the permanent status, but there the Europeans did visit because it served the interests of the Palestinians.”

An Exchange of Letters

“In 1999, at the time of the dispute over the visits to Orient House, there was an exchange of letters between the then foreign minister Ariel Sharon and the EU. Germany at the time held the presidency of the EU. Its ambassador to Israel wrote a note to the Foreign Ministry that according to the EU opinion, Jerusalem is a corpus separatum as foreseen in UN General Assembly Resolution 181 of 1947.

“The German ambassador claimed this was ‘in strict accordance with international law.’ The 1947 resolution was, however, only a recommendation with no binding effect. In Resolution 181 the General Assembly recommended the establishment of an Arab state, a Jewish state, and a special entity of Jerusalem. The resolution received the consent of the national leadership of the Jewish community of Palestine. The Arabs rejected it and started to attack Jewish towns and villages including the Jewish quarters of Jerusalem.

“If the ambassador meant that Resolution 181 was binding, he was not convincing. There was no obligation under international law to accept and implement the corpus separatum regime. It would only have become binding if the two parties had agreed to it.

“The resolution defined Jerusalem as a huge area. It is much larger than what Israel annexed in 1967. It also includes, for instance, Bethlehem.”

Applicability of Israeli Law

“Over the years several legal cases have arisen in European courts that are relevant to the status of Jerusalem. No country has so far recognized Israeli sovereignty in either West or East Jerusalem. With regard to West Jerusalem, the European states have de facto accepted the applicability of Israeli law.

“An interesting situation arose in Israel in 1952. The driver of the Belgian consul-general had killed a Mr. Shababo in a road accident in West Jerusalem. When the heirs of Mr. Shababo took the consul-general, his driver, and the consulate to court, they claimed that the Israeli court had no jurisdiction even though the incident had occurred in West Jerusalem. Judge Witkon, who sat on the bench, rejected their objections and said West Jerusalem was part of Israel. The armistice line established by the 1949 Armistice Agreement between Israel and Jordan had left West Jerusalem under Israeli control.

“Another famous case was that of Yossele Schumacher. This young ultra-Orthodox boy was abducted in the 1960s by his father from Jerusalem to the United Kingdom. The British court applied the law in force in West Jerusalem, i.e., Israeli law. Interestingly, foreign states have not claimed that the law of occupation should apply to West Jerusalem.”

East Jerusalem

“The situation with respect to East Jerusalem is very different. From 1948 to 1967, Jerusalem was divided between Israel and Jordan. This was in accordance with the 1949 General Armistice Agreement. In 1967, Jordan started a war against Israel attacking it in Jerusalem. Israel defeated the Jordanians and conquered the areas under Jordanian control.

“After the end of the hostilities of the Six Day War in 1967, Israel adopted several enactments saying that henceforth Israeli law, jurisdiction, and administration would apply in East Jerusalem. The United Nations objected to this.

“According to the EU, the UN, and the U.S. administration, East Jerusalem is occupied territory. Therefore it is subject to the rules of the Fourth 1949 Geneva Convention concerning civilians in times of war. One amusing aspect of the European attitude concerns the Regency Hotel, formerly the Hyatt Hotel on Mount Scopus in Jerusalem. It is partly built in an area where there was an Israeli enclave from 1949 to 1967 and partly outside it. When official European representatives come to the hotel they go only into those parts located on land that belonged to this enclave.

“The U.S. Congress is so far the only institution that has recognized Israeli rule over East Jerusalem. In 1995, it adopted the Jerusalem Embassy Act. According to this statute the U.S. administration had to move the country’s embassy from Tel Aviv to Jerusalem by 1999. If they failed to comply, then Congress would cut some funds from the budget of the State Department.

“The U.S. president managed to include in this law a small proviso that says its application can be postponed each time for six months if the president declares that this is in the interests of U.S. security. Since then, every six months the president makes such a declaration. In that law Congress has said very clearly that united Jerusalem should be recognized as Israel’s capital.”

An Unclear Status

“Many rather ill-defined situations result from the unclear status of East Jerusalem. In 1980, Israel adopted the Basic Law: Jerusalem Capital of Israel. This law reconfirmed the unification of the city and its status as capital. It also reiterated the protection of the holy places.

“Thereafter the Security Council adopted Resolution 478, which condemns Israel and says the law is illegal. They said all foreign embassies had to leave Jerusalem, which they did. By 1982 Costa Rica and in 1984 El Salvador came back and established embassies in West Jerusalem. In 2006, both countries decided to move their embassy to Tel Aviv.

“An example of this ill-defined situation is the status of foreign consulates in Jerusalem. According to international law, a consul can fulfill his functions only once he gets an exequatur from the country where he is to serve. The exequatur means that the government allows this person to fulfill his consular functions. The consuls stationed in Jerusalem do not apply for an exequatur because their countries don’t want to recognize Israeli sovereignty over West or East Jerusalem.

“Despite the fact that they have not submitted their letters of appointment, Israel grants them consular privileges. Officially they do not have any contacts with the Israeli Foreign Ministry other than the Department of Ceremonies. When I was legal adviser to the Foreign Ministry, I was, for instance, not allowed to go to their receptions.

“The nonsubmittal of letters of appointment is against the 1963 multilateral Convention on Consular Relations, which has not been ratified by Israel. We have ratified the Convention on Diplomatic Relations, which poses no similar problems because diplomats are appointed for the whole country whereas consuls may be appointed for a specific area.

“Many of these foreign consuls in Jerusalem are in practice representatives to the Palestinians and mainly deal with matters concerning them. Sometimes they cause complications because some of them refuse to accept that they are subordinate to the embassy of their country in Israel.”

Notes

[1] Ruth Lapidoth, “Israel and the Palestinians: Some Legal Issues,” Jerusalem Institute for Israel Studies, 2003.

[2] Ruth Lapidoth, “The EU, Jerusalem and the Peace Process,” in Claus Dieter Classen, Armin Dittman, Frank Fechner, Ulrich M. Gassner, and Michael Kilian,eds., In einem vereinten Europa dem Frieden der Welt zu dienen: Festschrift für Prof. T. Oppermann (Berlin: Duncker & Humblot , 2001). [German]

– RUTH LAPIDOTH is a Fellow of the Jerusalem Center for Public Affairs, Professor Emeritus of International Law at the Hebrew University of Jerusalem, and Professor at the Law School of the College of Management. Her books include The Arab-Israel Conflict and Its Resolution: Selected Documents (1992), The Jerusalem Question and Its Resolution: Selected Documents (1994), Autonomy: Flexible Solutions to Ethnic Conflicts (1997), and The Old City of Jerusalem (2002). She is also the author of “Legal Aspects of the Palestinian Refugee Question,” Jerusalem Viewpoints No. 485 (September 2002). In 2000 she received the “Prominent Woman in International Law Award” from the WILIG group of the American Society of International Law.