Jerusalem: Past, Present, Future

John Quigley is President’s Club Professor in Law at the Ohio State University. His books include Palestine and Israel: A Challenge to Justice (Duke University Press, 1990).

Finding a proper status for Jerusalem has turned out to be one of the thorniest issues standing in the way of a Palestinian–Israeli peace. A number of possible arrangements have been proposed by the two parties, and by outsiders. Among the possibilities are: Jerusalem as an Israeli city, Jerusalem as a Palestinian city, a division of the city east–west, a unified city under joint sovereignty. Each of these possibilities, as well as others, holds attraction in some measure but difficulties as well. A major impediment to arriving at an appropriate solution for Jerusalem is that different parties approach the issue from different analyses of the city’s past, and how that might shape its future.

 

This article reviews what the author finds to be relevant considerations in the life of Jerusalem as a city. Although the article arrives at a preferred solution, it places primary emphasis on the issues that need to be considered before any solution is proposed. An issue often overlooked in making proposals about Jerusalem’s future status is that of its population, which has undergone wild fluctuations as result of eviction and settlement. One aim of this article is to redress that imbalance and to assert the centrality, in determining Jerusalem’s future, of the question of who has a right to live there.

Jerusalem’s Past

The principal consideration in determining rights in territory is occupation and control. International courts faced with disputes over territory have typically addressed these issues. If a distant island is claimed by two states, each tries to show acts of dominion and control as evidence of its rights. That principle applies to Palestine, and to Jerusalem in particular. With Jerusalem, to be sure, one finds mentioned the attraction the city holds for adherents of the three major monotheistic religious faiths. That aspect of Jerusalem is, however, secondary to more concrete facts relating to who has occupied Jerusalem, and for how long.

 

Into the late nineteenth century, the population of Jerusalem was overwhelmingly Arab. As the Zionist movement gained momentum at the end of the century, most Jews migrating from Europe settled in urban areas, and by 1900 Jews made up half of Jerusalem’s population, even though they were still under 10 per cent in Palestine as a whole. The large wave of Jewish migration while Great Britain administered Palestine in the inter-war period gave Jews a majority in Jerusalem, but even then most of the land remained in Arab ownership. In November 1947, after Great Britain announced its intent to withdraw from Palestine, the United Nations General Assembly, in its Resolution 181, recommended dividing Palestine into two states. The General Assembly suggested that Jerusalem be a separate entity, part of neither state, but administered by the UN Trusteeship Council.

 

The Jewish Agency, which represented the Jews of Palestine, welcomed the partition proposal, as it would have meant a Jewish state in the bulk of Palestine’s territory, even though Jews were a minority. The Arab community, which sought instead a single state of Palestine, quickly expressed its disapproval of partition by staging commercial strikes in Jerusalem. In response, the Irgun, a Zionist military organisation, attacked the Arabs of Jerusalem. “For three days, from 11th to 13th December [1947],” wrote Irgun leader, and future prime minister of Israel, Menachem Begin, in his memoirs, the Irgun “hammered at concentrations of rioters and their offensive bases.” By “rioters”, Begin meant the demonstrators. By “offensive bases”, he meant Arab villages. Of this period Begin wrote, “We attacked again and again in Jerusalem.”¹

 

The Haganah, which was the military unit of the Jewish Agency, also attacked the Arabs. As reported in the New York Times of 7 January 1948, the Haganah detonated a bomb in a hotel in an Arab neighbourhood in West Jerusalem, killing twenty-six persons, in an act the British government called a “dastardly and wholesale murder of innocent people”. The Haganah launched rockets into Arab neighbourhoods in Jerusalem, with the apparent aim of frightening Arab residents into fleeing. As Palestinians began to evacuate Jerusalem, David Ben-Gurion, the Jewish Agency leader and future first prime minister of Israel, expressed his delight. In “many Arab districts” of West Jerusalem, he said in February 1948, “one sees not one Arab. I do not assume that this will change”.²

 

As reported in the New York Times of 10 April 1948, the Irgun and Lehi, another Zionist military unit, captured the village of Deir Yassin on the western outskirts of Jerusalem and then killed 250 civilians. The Irgun, as reported by a British journalist, drove survivors through the streets of Jerusalem in trucks, in an apparent demonstration to Jerusalem’s Arabs of what the rest of them could expect.³ The Haganah operated loudspeaker vans in Jerusalem, announcing in Arabic, “unless you leave your homes, the fate of Deir Yassin will be your fate.” By late 1948, the Arab population of Jerusalem, which at the start of the year stood at sixty-five thousand, was under four thousand.

 

After the Jewish Agency declared Jewish statehood in May 1948, Israeli and Jordanian forces fought to a standstill in Jerusalem, leaving the city split east and west. Jerusalem was declared to be Israel’s capital, but foreign governments refused to move their embassies from Tel Aviv. The United Nations was quick to deal with the issue of the displaced Palestinian Arabs. Recognising that an overall political settlement might take time, the UN General Assembly, by Resolution 194, demanded that Israel repatriate the Palestinian Arabs. United States delegate Dean Rusk expressed the predominant view when he told the UN General Assembly that “these unfortunate people”, by which he meant the displaced Palestinian Arabs, “should not be made pawns in the negotiations for a final settlement”.⁴

 

Under international law, the inhabitants of territory that changes hands gain automatically the nationality of a new sovereign, unless they decide not to accept it. The UN General Assembly recognised this proposition in relation to the displaced Palestinian Arabs by calling for their repatriation to Israel. Despite that call, Israel said that it would not consider repatriation in isolation from the political issues between it and its Arab neighbours. In 1952, Israel adopted legislation on nationality that excluded anyone who was absent during and following the period of hostilities that led to the establishment of Israel. That legislation was unlawful, under accepted international principles. Israel is under an obligation to recognise as its nationals all who held Palestine nationality at the time of Israel’s formation, including Palestine nationals who were absent.

 

In 1967, Israel captured East Jerusalem by force of arms. This military action came during a period of tension between Israel and its Arab neighbours. Israel invaded Egypt, which led Jordan to come to Egypt’s aid, which led Israel to occupy eastern Palestine (the West Bank of the Jordan River), including the eastern sector of Jerusalem. Israel claimed that it started the military action with Egypt to pre-empt an anticipated Egyptian invasion, but senior Israeli officials said later that they had not expected Egypt to attack. The UN Security Council, by Resolution 242, said that Israel must withdraw.

 

As Israel occupied East Jerusalem in 1967, the UN Secretary-General received “persistent reports of acts of intimidation by Israeli armed forces and of Israeli attempts to suggest to the population by loud-speakers mounted on cars, that they might be better off on the East Bank (Jordan)”.⁵ The New York Times reported on 12 June 2024 that Israeli aircraft bombed UN-maintained Palestinian refugee camps just east of Jerusalem, frightening sixty thousand Palestinian Arabs to flee into Jordan. The Times found a “pattern of expulsion” of civilians by Israeli troops.

 

The international community viewed East Jerusalem as being held by Israel in belligerent occupation, as expressed most clearly in the Security Council’s Resolution 465 of 1980. Such wartime occupation yields no sovereignty. Israel quickly began to change the legal status of East Jerusalem to make it part of Israel. The Knesset, Israel’s parliament, without formally claiming sovereignty, decided to apply Israeli law to East Jerusalem. The government then expanded the borders of East Jerusalem to include a substantial sector of the West Bank that had never been part of Jerusalem, and merged the newly expanded East Jerusalem with West Jerusalem to form a single administrative unit.

 

At the United Nations, Israel claimed that these enactments did not amount to a claim of sovereignty over East Jerusalem, but that they were taken for reasons of administrative efficiency and to ensure the protection of holy sites in the city. The UN Security Council, however, by Resolution 252 of 1968, condemned Israel for, in effect, annexing East Jerusalem. In 1980, Israel’s Knesset openly claimed sovereignty in East Jerusalem by legislating that “Jerusalem, complete and united” was “the capital of Israel”. The UN Security Council, by Resolution 478, found this law, like the 1967 measures, to be unlawful, as an attempted annexation of territory under belligerent occupation.

 

Israel also incurred the ire of the international community by sending its own citizens to live in East Jerusalem. Both there and at other sites in the West Bank, it built settlements and encouraged Israelis to move into them with the lure of low-cost housing. The United Nations repeatedly condemned this activity as a violation of the obligations of a belligerent occupant. An occupant is absolutely forbidden to change the character of territory it occupies by inserting its own citizens. The Security Council even condemned countries (by implication the United States) that funded Israel, since such funding allowed Israel to spend money to build settlements. In Resolution 465 of 1980, the Security Council asked states “not to provide Israel with any assistance to be used specifically in connexion with settlements in the occupied territories”.

 

The UN General Assembly saw a link between the settlements and efforts by Israel to retain the territory permanently. Focusing, like the Security Council, on outside funding to Israel, it asked states, in its Resolution 35/122C of 1980, “to avoid actions, including those in the field of aid, which might be used by Israel in its pursuit of the policies of annexation and colonization”.

Jerusalem’s Present

To date, the international community considers the status of Jerusalem to be unresolved. The UN recommendation of 1947 that the city have an international status has never been formally rescinded, but as a recommendation never acted upon it carries little weight today. Even though Israel has controlled West Jerusalem since 1948, other states have refused to recognise it as part of Israel. To date, foreign states maintain their embassies in Tel Aviv, even though Israel does not consider it to be its capital.

 

Israel has not stated clearly a basis for its claim to sovereignty in Jerusalem. Israel’s claim to any of the territory it has held since 1948 is based primarily on the UN partition proposal of 1947, which Israel takes, somewhat dubiously, as recognising a right for a Jewish state in Palestine. But that proposal, as indicated, called for Jerusalem to have an international status and thus does not give Israel an argument for its sovereignty. Israel appears to premise its claim to sovereignty primarily on the fact of its occupation since 1948. Sometimes it has also adverted to ancient title, based on the Hebrew kingdom of the first millennium bce. The 1948 Declaration of the Establishment of the State of Israel, issued by the Jewish Agency, referred, in addition to the UN General Assembly resolution, to “our natural and historic right” to the territory. However, ancient title carries little weight in law, since most parts of the planet were occupied by other groups in ancient times.

 

The prime consideration in determining sovereignty is lengthy occupation and control, and on this score the Palestinian Arabs have the weightier argument. Israel’s strongest argument for sovereignty over the territory it occupied in 1948 is that Israel was subsequently recognised as a state. However, as regards West Jerusalem the international community has taken the view, first, that it ought to have an international status, and later, that its status was yet to be resolved. There has been no international acquiescence in Israel’s claim to sovereignty in West Jerusalem.

 

Some have viewed UN Security Council Resolution 242 of 1967 as implicitly recognising West Jerusalem as Israeli, because the resolution calls on Israel to withdraw from territories it occupied in 1967 but does not require it to withdraw from territories it occupied in 1948. Thus, according to this view, Resolution 242 acknowledges Israel’s claim to the territory it occupied in 1948. That analysis is faulty, however. Resolution 242 did not address itself to the issue of Jerusalem. Resolution 242 was focused on the then recent occupation by Israel of the Gaza Strip and the West Bank, and therefore called on Israel to withdraw from those territories. Resolution 242, only a few paragraphs in length, made no attempt to deal with the many outstanding political and territorial issues involved in the Arab–Israeli conflict. Moreover, after 1967, foreign states, as before, refused to move their embassies to Jerusalem, even to West Jerusalem. This refusal bespoke their continuing refusal to recognise any part of Jerusalem as being under Israel’s sovereignty.

 

Jews did, assuredly, come to be the majority population of Jerusalem by mid-century, yet this was as a result of recent immigration, and Arabs continued to own most of the land. An influx that leads to a shift in the population balance of a city hardly requires a change in sovereignty. If Los Angeles is populated predominantly by persons of Mexican origin, that fact gives Mexico no claim of sovereignty.

 

The Palestinian Arab claim to Jerusalem is founded on the Arabs’ longtime status as the majority population of Palestine. On that basis, the Palestinians claim sovereignty over all of Palestine, including Jerusalem. The Palestinians descend from the most ancient population of Palestine, the Canaanites, who predate even the Hebrew kingdom of the first millennium bce. Although political control changed hands many times through history, this population, which was Arabised by the Arab conquest of the seventh century ce, remained into the twentieth century.

 

The low numbers of Palestinian Arabs in West Jerusalem today are a result of their being forced out in 1948. Israel has refused to repatriate them, despite their persistent demand. Arab houses, including mansions in the more affluent formerly Arab neighbourhoods, are today occupied by Israeli Jews.

 

Until 1988, Jordan claimed sovereignty in East Jerusalem. But its assertion of sovereignty of 1950 was provisional, made specifically conditional on possible reassertion by the Palestinian Arabs of their rights in Palestine. In 1988, the Palestine National Council declared a Palestinian state. The Palestine National Council, in its Declaration of Independence, proclaimed “the establishment of the State of Palestine on our Palestinian territory with its capital Jerusalem”. In the wake of this action, King Hussein of Jordan said, “We respect the wish of the PLO [Palestine Liberation Organisation] for an independent Palestinian state” and he renounced Jordan’s claim to the West Bank, including East Jerusalem.

 

Israel continues to claim East Jerusalem and says it does not hold it only by way of belligerent occupation. It got into a controversy with the United Nations on the point in 1990, after a shooting incident in East Jerusalem in which Israeli police killed seventeen Palestinians. The UN Security Council, by its Resolution 672, asked the UN Secretary-General to propose appropriate measures in response. The Secretary-General proposed sending investigators to find out what had happened. Israel objected, on the grounds that East Jerusalem was part of its sovereign territory, and that the United Nations had no right to send investigators without its permission. It told the Secretary-General that “Jerusalem is not, in any part, ‘occupied territory’; it is the sovereign capital of the State of Israel. Therefore, there is no room for any involvement on the part of the United Nations in any matter relating to Jerusalem”.⁶ The Security Council backed off sending investigators but, in follow-up Resolution 673, expressed its “alarm” at Israel’s view that East Jerusalem was not occupied territory.

 

Israel has complicated matters further by inserting thousands of its own citizens into East Jerusalem as settlers. Beginning in 1967, the Israeli government confiscated land and constructed housing that was offered to Jews for residential purposes. This phenomenon continued even after Israel and the PLO agreed, in their 1993 Declaration of Principles, to resolve the status of Jerusalem in subsequent negotiations. An Israeli civil rights organisation charged that Israel’s policy was to create “a demographic and geographic reality that will pre-empt every future effort to question Israeli sovereignty in East Jerusalem”.⁷

 

The United Nations found the land confiscation and housing construction to violate the terms Israel had reached with the PLO, and also the rules of belligerent occupation. At its 3,538th meeting in 1995, the UN Security Council nearly condemned Israel for announcing it would expropriate more land in East Jerusalem to build housing for Jews, but the United States vetoed the draft resolution. At that meeting of the Security Council, Britain’s delegate said Israel should “refrain from taking actions which seek to change the status quo on this most sensitive of all issues before the conclusion of the final-status negotiations”. Delegates of Russia, Indonesia, Italy and France all complained that the 1995 land seizures were intended to pre-empt the Palestinian claim of sovereignty in East Jerusalem.

 

The United States explained, in vetoing this and subsequent draft Security Council resolutions on settlement construction in East Jerusalem, that it did so because it thought that any such resolutions on the issues then under bilateral negotiations might interfere with those negotiations. Thus, its vetoes did not reflect disagreement with the contents of the draft resolutions.

 

In 1997, Israel announced another construction plan for East Jerusalem, involving 6,500 units of housing for Jews in the Jebel Abu Ghneim neighbourhood, which Israel planned to rename Har Homa. At the 3,747th meeting of the UN Security Council, European states sponsored a resolution to condemn this plan as illegal and a “major obstacle to peace”. Again, the United States vetoed, prompting the UN General Assembly to take up the same draft resolution and to adopt it as Resolution 51/223.

 

When Israel actually began the Har Homa construction, the Security Council, at its 3,756th meeting, nearly adopted yet another draft resolution calling on it to stop, but again the United States vetoed. This veto prompted the UN General Assembly to convoke a special session at which it adopted Resolution ES-10/2, reiterating its condemnation of the Har Homa construction and asking states to refrain from giving aid to Israel that might be used for that purpose.

 

By mid-1997 Israel was still building the Har Homa settlement, so the General Assembly reopened its special session and adopted Resolution ES-10/3, condemning Israel for ignoring its prior resolutions about Har Homa and asking states signatory to the Geneva Civilians Convention to hold a conference to find ways to stop Israel from committing this violation of the rules of belligerent occupation. By 1997, Israel’s aggressive settlement policy in East Jerusalem saw the number of Jews living there exceed the number of Arabs.

 

This shift in the population balance was also due, in part, to administrative policies Israel adopted to exclude resident Arabs. Israel has considered the Palestinian Arabs of East Jerusalem permanent residents of Israel, a status Israel construed to mean that residency rights were defeasible if an individual took up residence abroad. From 1967, Israel had not allowed the return of Palestinian Arabs who happened to be out of the country at the time of the 1967 hostilities. It also terminated the residency rights of thousands of Palestinian Arabs of Jerusalem who, after 1967, went abroad to work or study. After occupying East Jerusalem in 1967, Israel offered Israeli citizenship to East Jerusalemites, but few accepted. On the rationale that an East Jerusalemite who did not opt for Israeli citizenship is only a “permanent resident”, Israel considered that such a person who transfers his or her “centre of life” abroad loses the status of “permanent resident” of Israel and thus has no right to reside in East Jerusalem. These regulations, as applied to East Jerusalemites, violate the law of belligerent occupation, under which an occupant must respect the status of the inhabitants it finds.

Jerusalem’s Future

In thinking about Jerusalem’s future, consideration must be given not only to the issue of control and sovereignty, but to that of the city’s citizens, present and displaced. In West Jerusalem, one finds few Arabs, because of the ethnic cleansing that took place in 1948. In East Jerusalem, one finds a slight Jewish majority as result of the illegal settlement construction. The issue of the status of these people is to some degree separate from that of sovereignty. Whatever arrangements are made regarding sovereignty, the status of these people will need to be resolved. Will the displaced Palestinians be repatriated? Will they be restored to their properties? If so, what of the Israeli Jews who have occupied their houses?

 

Complicating the matter still further, the right of individuals to reside in their homeland is protected internationally as a human right. The attachment of an individual to territory, as protected under international law, is not affected by a change in sovereignty. Thus, the right of repatriation of displaced Arab Jerusalemites exists apart from what may be decided between the governments of Israel and Palestine.

 

This issue should, of course, be addressed by the governments, as is typically done in treaties over territory. Treaties ceding territory from one state to another typically give the inhabitants the right to opt for the nationality of the state taking over the territory. Following hostilities that have generated an outflow of population, the international community has insisted on repatriation of the displaced. In the Bosnia settlement of 1995, for example, a prime plank was the repatriation of the displaced, regardless of their ethnicity.

 

If the governments of Israel and Palestine were to fail to deal with the issue, it would remain open, and the disaffected could press their claims against the appropriate government, or before international human rights enforcement organs. Israel is in continuing violation of international law for excluding the displaced Palestinian Arabs of Jerusalem.

 

As for Israel’s settlers in East Jerusalem, their presence constitutes a violation by Israel of its obligations as a belligerent occupant. As such, the collective right of the Palestinian Arabs to their territory is adversely affected. The Palestinian Arabs have a right to the removal of the Israeli settlers. The settlers have no right to reside in East Jerusalem and should be withdrawn immediately, but in any event as part of a final settlement of Jerusalem’s status.

 

There is precedent for such a removal in the Camp David agreement that Israel reached with Egypt in 1978. Israel had occupied the Sinai Peninsula during the 1967 hostilities, and after 1967 Israelis moved into the Sinai as settlers. At Camp David, Israel agreed to withdraw from the Sinai and to remove its settlers.

 

As for Israel’s settlers in West Jerusalem, their presence, too, is problematic. They entered in the wake of ethnic cleansing and occupied the houses of the displaced. Their position thus differs little from that of Bosnians who took over the houses of displaced Bosnians of different sub-groups. A practical problem arises, however, as these Jews have been in occupation for much longer a time than have the Jews who settled in East Jerusalem. The Jews who settled in West Jerusalem need not be removed, but their rights to specific properties must yield to the rights of the displaced owners.

 

The situation of the people—both the displaced Palestinian Arabs, and the Israeli settlers—may well be more difficult to resolve than the status of the city. The status of the city can, to some extent, be obfuscated by political formulae. The situation of the people—who returns, who stays and who leaves—is an issue of facts on the ground.

 

East Jerusalem is properly deemed by the international community to be under Israel’s belligerent occupation, and in Resolution 242 of 1967, the UN Security Council called on Israel to withdraw from the territories it had occupied. The only ambiguity in Resolution 242 concerns the exact location of the boundary to which Israel is to withdraw, but on no reading of Resolution 242 would Israel be entitled to take East Jerusalem.

 

As for West Jerusalem, there, too, the Palestinian side has the better claim. West Jerusalem was part of Palestine, and Israel has no basis on which to claim it. The international community has been consistent since 1948 in declining to recognise Israel’s claim to West Jerusalem.

 

If Jerusalem’s status is to be settled on the basis of accepted legal principles regarding sovereignty, the Palestinians should get the city. Their historic claim is sound, based on the occupation of Palestine by a predominantly Palestinian Arab population for many centuries.

 

The proper settlement for the status of Jerusalem is that it is a Palestinian city, to be inhabited by those who currently reside there, except for the settlers. Jerusalem should, properly, be part of the state of Palestine, rather than of the state of Israel. The Palestinian Arabs have far greater claim, based on accepted international principles.

 

This proposal is not one that is mooted by political observers anxious for a solution to the Palestinian–Israeli conflict, as it seems out of keeping with present-day political reality. Because of the major funding and political support it receives from the United States, Israel is in a position to insist on its desired solutions to a greater degree than is the Palestinian side. While the Israeli side has vociferously asserted Jerusalem as an Israeli city to be its preferred option, the Palestinian side has refrained from asserting Jerusalem as a Palestinian city to be its preferred option, not because it finds it inappropriate, but because in its situation of weakness it does not want to be viewed as insisting on a politically unrealistic solution. Instead, the Palestinian side has limited itself to insisting on East Jerusalem only as adhering to the Palestine state. It has also indicated a willingness to consider the option of shared sovereignty over the entire city.

 

Despite these very real political considerations, in dealing with such weighty issues one must take a long view and base one’s analysis on principle. Otherwise, a solution that is politically feasible today may in the end turn out to be ephemeral. Even if the option of Jerusalem as a Palestinian city is not the one that is ultimately reached, the considerations underlying its appropriateness should guide the international community in its approach to the issue of Jerusalem. Clearly, the option of Jerusalem as an Israeli city must be rejected. That option, more than any other, violates accepted principles of practice regarding sovereignty over territory.

 

As the past several years have demonstrated, appropriate solutions are unlikely to be found by Israel and Palestine negotiating in isolation. The international community must play a role to ensure that solutions accord with principle, and that any agreement does not simply create new problems for future generations. The international community has shown an accurate understanding of the status of Jerusalem by the refusal of countries to locate embassies there, even in the western sector. Only the international community’s strong involvement, grounded in international principle, can ensure a proper status for Jerusalem.

 

In 2002, efforts were made to convoke an international conference, either to replace the failing bilateral negotiations, or to give them new life. Some such initiative is appropriate and necessary. In the context of such a conference, the considerations relevant to devising Jerusalem’s future status could be analysed. Such a methodology would hold greater chance of success than simply trying to choose a solution that is least objectionable to the two parties. To revert, finally, to a major theme of this article, whatever territorial disposition is found is not the end of the matter: an agreement about Jerusalem must also include detailed provisions about the status of present and former Jerusalemites. Their status must be determined in accordance with accepted principles relating to the attachment of individuals to territory.

Endnotes

1. Menachem Begin, The Revolt (London: W. H. Allen, 1951), pp. 337–8.

 

2. See Benny Morris, The Birth of the Palestinian Refugee Problem, 1947–1949 (Cambridge: Cambridge University Press, 1987), p. 52.

 

3. Harry Levin, I Saw the Battle of Jerusalem (New York: Schocken Books, 1950), p. 37.

 

4. UN General Assembly Official Records, 3d Session, Part I, Committee 1, Summary Records of Meetings 21 September–8 December 1948 909, UN Document A/C.1/SR.226 (1948).

 

5. Report of the Secretary-General under General Assembly Resolution 2252 (ES-V) and Security Council Resolution 237, UN General Assembly Official Records, 5th emergency special session, UN Document A/6797 (1967).

 

6. Report submitted to the Security Council by the Secretary-General in accordance with Resolution 672, para. 3, UN Document S/21919 (1990).

 

7. B’Tselem, “A Policy of Discrimination: Land Expropriation, Planning and Building in East Jerusalem” (1995).