Forty-five years ago this week, the Israel Defense Forces liberated the Old City of Jerusalem and re-united Israel’s capital. Today, most of the battles that took place back then are almost a distant memory. Few recall that on the eve of the Six-Day War most of the brigades of Jordanian Army were deployed right next to the Green Line and encircled Jerusalem on three sides. Moreover, an Iraqi expeditionary force was poised to join them across the Jordan River. When the Jordanian artillery opened fire, nearly 6,000 artillery shells fell on Jewish neighborhoods in the western side of Jerusalem, leaving 1,000 Israelis wounded. After multiple warnings to the Jordanians, the IDF finally crossed the 1949 armistice lines and captured the territories from which Israel had been attacked and threatened.
These details still matter forty-five years later. When the rights of the parties that claimed Jerusalem were debated after the Six-Day War, it became necessary to look into the circumstances of how each came to possess the city. Jordan’s capture of Jerusalem in 1948 resulted from what had been described at the time by the U.N. secretary-general, Trygve Lie, as the first case of “armed aggression” since the Second World War. This stood in contrast to how Israel entered the eastern portions Jerusalem in 1967, that came about through what was plainly a war of self-defense. This distinction became glaringly apparent when the Soviet Union failed in its repeated efforts to have Israel branded as “the aggressor” in the Six-Day War first in the Security Council, in June 1967, and then a month later in the General Assembly.
The great American legal scholar, Stephen Schwebel, who would become the President of the International Court of Justice in the Hague, was cognizant of this comparison for he wrote in 1970: “when the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against the prior holder, better title.” Israel had historical rights to Jerusalem that had been embedded in the British Mandate, but that was not part of the international discourse after 1967. Basing himself on the events of the Six-Day War, Schwebel concluded that Israel’s claim to “the whole of Jerusalem” was stronger than that of Jordan’s. His analysis was echoed at the time by his contemporaries like the British expert on international law, Elihu Lauterpacht and the Australian, Julius Stone.
Normally, at the end of modern wars, diplomatic efforts focus on restoring the status quo ante — the pre-war situation on the ground. But there was a serious problem in automatically applying this principle to the situation in Jerusalem, in particular, given the fact that Jordan’s claim to sovereignty had been rejected by the international community, with the exception of Pakistan. Given the total failure of the U.N. in 1948 to dispatch forces to protect Jerusalem, the internationalization clauses in the Partition Plan, were no longer viable either, though they were discussed in U.N. debates into the early 1950s. Prime Minister David Ben-Gurion declared in the Knesset in 1949 that these clauses on the internationalization of Jerusalem were “null and void.”
When the U.N. Security Council met to discuss what would be the principles of a future peace settlement after the Six-Day War, there was a certain degree of ambivalence when the territorial dimension was raised, especially with respect to Jerusalem. The pre-1967 line was not sacrosanct. It was not a recognized international border but only an armistice line that separated the armies at the end of Israel’s War of Independence. Thus when the U.N. Security Council adopted Resolution 242, it refrained from calling on Israel to withdraw from “all the territories” it had captured in the Six-Day War, as the Soviet Union had demanded. Instead, it called for new borders to be drawn that would be “secure and recognized boundaries.” Today, common reference is made to Israel’s rights to defensible borders.
Resolution 242 not only did not call for an Israeli withdrawal to the pre-1967 lines, it did not even refer to Jerusalem either. On March 6, 1980, the U.S. ambassador to the U.N. during these deliberations over Resolution 242, Arthur Goldberg, wrote to the New York Times and explained “Resolution 242 in no way refers to Jerusalem, and this omission was deliberate.” He spoke on the subject on multiple occasions, laying out the original approach taken by the U.S. under President Lyndon Johnson. He explained in his letter that “at no time in these many speeches did I refer to East Jerusalem as occupied territory”. He insisted that “the armistice lines dividing Jerusalem were no longer viable.” Goldberg fully understood the full legal implications of what he was saying. He had served as a justice on the U.S. Supreme Court before his appointment to the U.N..
Since 1988, the Palestinians have argued that they are filling the diplomatic shoes of the Jordanians. However, they have repeatedly sought however to acquire a status in Jerusalem to which they were not automatically entitled. To erode Israel’s legal rights, they began introducing language into U.N. resolutions that spoke about “Occupied Palestinian Territory, including East Jerusalem.” In 1994, the Clinton administration rightfully stood firm against this effort, when the U.S. ambassador to the U.N. Madeleine Albright explained an American veto in the Security Council by saying, “We are today voting against a resolution precisely because it implies that Jerusalem is occupied Palestinian territory.”
The Palestinians’ diplomatic strategy has been based on getting the international community to uncritically adopt their legal terminology. Unfortunately, many Israelis have become resigned to this process and are increasingly unaware of the fact that Israel has historical and legal rights, which are plainly stronger than claims that are voiced by the Arab side to this day. Just this past March, the Palestinians easily pushed through a resolution in the U.N. Human Rights Council in Geneva describing Jerusalem as “Occupied Palestinian territory.” In a period in which the delegitimization of Israel’s rights is at the heart of the agenda of its adversaries, Israeli diplomats must now more than ever speak up and stress the historical truth of what happened forty-five years ago and not let the twisted narrative being sold to the U.N. to take hold.