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The Palestinian Right to Jerusalem Is an International Law that Cannot Be Taken Away

Position Paper: A Grant of Recognition from those who do not own to those who do not deserve

The Palestinian Centre for Human Rights (PCHR), December 7, 2017

Baflour Declaration Recurs
In a dangerous precedent that violates the international law, on Wednesday, the US President, Donald Trump, declared that Jerusalem is the capital of Israel and the American Embassy will be removed to it, signing an order of this.  The Palestinian Center for Human Rights (PCHR) condemns the irresponsible statements by the US President and emphasizes that Jerusalem’s legal status as part of the occupied Palestinian territory (oPt) codified in the international law according to the resolutions adopted by the UN and International Court of Justice (ICJ) and recognition of an overwhelming majority of the world’s States. 154 States voted in favor of recognizing the state of Palestine on the territory occupied in 1967, including Jerusalem.

PCHR believes that the declaration represents granting recognition from those who do not own to those who do not deserve as if the history repeats itself to bring out a new “Balfour Declaration in the centennial of the old declaration but by an American tongue this time.  PCHR stresses that the Palestinian right to Jerusalem is an international law that cannot be changed by political statements and measures, adding that the declaration convicts its issuer, making him a criminal at the international level and a big shame to the free world.

PCHR emphasizes that Trump’s declaration explicitly violates the international law, Security Council Resolutions, and Geneva Conventions, and constitutes two crimes.  The first crime is a crime of aggression against the Palestinian State as the declaration supports and upholds the annexation of lands using force.  The second crime is a war crime as the declaration is considered as a complicity in the Israeli settlement activity in the West Bank, including Jerusalem.

In his comment, Lawyer Raji Sourani, PCHR’s Director, said that, “This decision is an explicit call for imposing the rule of jungle and de facto policy in addition to completely flouting the international law and UN’s role… This declaration also gives political legitimacy for the Israeli crimes and affects the history, present and future of the Palestinian people.”

This development came in light of the current US administration’s systematic policy of denying the Palestinians’ right to self-determination and attempting to close down the Palestinian cause.  This policy started with supporting the settlement expansion, which was explicitly expressed by the American administration in many events, through being deliberately silent to condemn it or through frankly speaking that settlements belong to Israel and denying they are an occupied territory. In addition, the huge pressures practiced by the US on the UN Bodies, Intentional Criminal Court (ICC) and the Palestinian leadership to deprive the Palestinians of resorting to the International Justice.  This was a position expressed by the US Ambassador to the UN, Nikki Haley, when she said that, “the days of Israel bashing at the UN are over.”  And finally, the Us Administration’s aggression on the Palestinian territory came to end practically the Peace efforts and the two-state solution.

It should be mentioned that 13 States had embassies in Jerusalem until 1970s without recognizing Jerusalem as the capital of Israel.  However, the US was not among those States as it only had a Consulate in Jerusalem that refers to the US Embassy in Tel Aviv.  Those 13 States then moved their embassies from Jerusalem to other cities in Israel, especially following the Security Council’s Resolutions No. 476 and 478, which both condemn Israel’s attempted annexation of Jerusalem.

It is noteworthy that the US Congress recognized Jerusalem as the capital of Israel in 1995, and the US President recommended in his decision at that time to issue an official declaration to move the US Embassy to Jerusalem.  Since then, the US Presidents continued to delay the embassy move until today when the US President Trump dared to issue the declaration in violation of the international law and disregard for the international peace and life of many innocents that would be endangered due to provoking feelings of millions of Muslims and Christians around the world.

Explicit Violation of UN Resolutions

The Security Council issued 12 resolutions that emphasize Jerusalem is a territory occupied by the Israeli authorities.  Eight of them stipulate that all measures and changes in the legal status of the city are not lawful and the Israeli forces shall be withdrawn from it.  The four other resolutions call upon Israel to withdraw from the territories occupied in 1967, including Jerusalem. The first of them was the Security Council’s Resolution 242.

Of those resolutions directly relevant to Jerusalem is the Security Council’s Resolution 476 in 1980 that Calls upon Israel to withdraw from the occupied territory, including Jerusalem, emphasizing any change to the status and character of Jerusalem has no legal validity.

In the same year, Resolution 478 was adopted to condemn Israel’s Basic Law which declared Jerusalem to be Israel’s “complete and united” capital, constituting a violation of international law and not affecting the continued application of the Geneva Convention on the City as an occupied territory.  The Resolution also condemned all legislative and administrative measures and actions taken by Israel which have altered or purport to alter the character and status of Jerusalem are null and void and must be rescinded forthwith.

One of the latest and most prominent resolutions condemning settlements in the oPt, including Jerusalem, was Resolution 2334 in 2016, which states that Israeli settlement activity constitutes a “flagrant violation” of international law and has “no legal validity” in addition to undermining the peace process and two-state solution.  The Resolution also calls upon all States to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.  It is noteworthy that this Resolution passed in a 14–0 vote by members of the UN Security Council with the US abstention.  This Resolution is considered the fifth of its kind affirming and condemns Israel’s commission of the settlement activity crime.

In its Advisory Opinion on the Annexation wall in 2004, the ICJ affirms that the Gaza Strip and West Bank, including Jerusalem, are occupied territories according to the international law.  On this basis, the ICJ’s Resolution came to affirm that the wall has no legal validity as it cuts off parts of the Palestinian territory.

The General Assembly also adopted many resolutions affirming that Israel has no right to Jerusalem as it is an occupying power. The first of these resolutions was Resolution 303 in 1949, which condemns Israel’s declaration of Jerusalem as its capital.

following the Israeli Six Day War in 1967 on the Arab countries and occupying part of them, including the Gaza Strip and West Bank, The General Assembly adopted Resolution 2253 which denounces the application of the Israeli Law in East Jerusalem.  Following this, Resolution 1536 was adopted in 1981 to consider any change to the status of Jerusalem is illegal.

The UNESCO also adopted many resolutions relevant to the status of Jerusalem and al-Aqsa Mosque.  The latest was in 2016 affirming that al-Aqsa Mosque/ Al-Haram Al-Sharif is an Islamic heritage, including the Buraq Plaza (Western Wall), and Jewish people has no right to it. The Resolution also condemns all Israeli changes and encroachments in the archeological sites there, considering al-Aqsa Mosque as an integral part of the internationally protected human heritage.

Aggression and Complicity in War Crime:

The US Declaration of Jerusalem as the capital of Israel is a flagrant violation of the International humanitarian Law (IHL) and a clear complicity in a crime of aggression, which directly threatens the international peace and security.  This declaration also provokes the religious feelings of millions of Muslims and Christians around the world, not only in Palestine, and that was clear from the international reaction.

The crime of aggression violates the UN Charter, which prohibits the annexation of others’ lands using force and considers it as one of the bases that allow the intervention of the Security Council under Chapter (7) of the Charter to restore international peace and security. This crime is also considered as one of these crimes that falls within the Jurisdiction of the ICC even if its term has not entered into force yet.

The settlement activity crime is considered as a war crime codified in Article (49) of the Fourth Geneva Convention and Article (8), paragraph (8) of  the Rome Statute of the ICC.

According to this, the US is complicit with Israel in the settlement activity crime. Thus, the ICC has the right to prosecute the US officials responsible for this declaration, particularly President Trump. It should be noted that the settlements file is one of the files into which the ICC has been conducting preliminary investigations since June 2014.

Destruction of the Global System that Protects Humanity

The US decision undermines the international law and the UN and sets a dangerous precedent when a State like the US violates the Security Council’s resolutions and international law.

Thus, President Trump undermines the efforts that started after the end of the Second World War to replace resorting to force with resorting to law, and the world has gone a long and important way to this. This world that prevented the occurrence of a Third World War, and the UN was one of its main means in addition to the promotion and respect for the international law, including the IHL.

The US Declaration, which violates all the International humanitarian laws, along with all the policies that support, cover and legitimate the Israeli violations of the international law in the oPt puts the whole world before important inquiries: does the UN still have real effectiveness with regard to restoring international peace and security?!.. Does the international law that Protects humanity and peoples’ rights have any consideration?!.. Have the International bodies protecting humanity become completely powerless and a weapon in the hands of the powerful states to intervene in the affairs of the weak states?!

The US is no Longer a Mediator in the Peace Process, but Rather Undermines it

The US has always been an unfair mediator and uncommitted to the international law in the peace process in the Middle East. It has continued to claim, as in today’s speech, that its violation of the international law and using the Veto Power for dozens of times to prevent the adoption of any decision against the Israeli violations by the Security Council, not even a condemnation, in order to protect the peace process.

This declaration came to show the ugly face of the American administration and its false allegations. The resolutions of the Security Council and the General Assembly relevant to Palestine have been always confirming that: any prejudice to the legal status of Jerusalem or any change in it would undermine the peace process and threatens the two-state solution. Here comes the American President’s declaration to end any opportunity for the peace process and the two-state solution and deny the Palestinians’ right to self-determination.

The UN Secretary General confirmed that the US President’s declaration undermines the peace process, emphasizing that the whole borders issue, particularly those related to Jerusalem, shall be left for the two parties to find a solution through negotiations. This statement was followed by several others by States’ presidents stressing on the same content.

PCHR stresses that the Palestinian cause shall not enter in the frame of political bargains, emphasizing that the international law and resolutions define the borders of the Palestinian State. PCHR also emphasizes that any negotiations should be limited to how to implement what was stipulated in the international law in a way that guarantees peace for everyone.

Confronting the American Step

PCHR calls upon all Palestinians, the peace-loving states of the world, international organizations, and all activists and free people of the world to unite in order to prevent this crime. To achieve this,

  1. PCHR Calls upon the ICC to list the US President Trump among those accused of committing a settlement activity crime in the oPt in the files referred to the ICC regarding the settlement activity crime;
  2. The Palestinian leadership shall resort to the Security Council to condemn the declaration of President Trump in order to reveal the US anti-peace position and demand the Palestinian people’s right to self-determination;
  3. The Palestinian leadership shall resort to the General Assembly and work with the peace-loving states of the world to use the Special Mechanism of “Union for Peace” to avoid the US Veto in the Security Council and condemn the US declaration, rendering it null and void, and take necessary procedures to confront it;
  4. The Palestinian leadership shall call for an urgent meeting with the High Contracting Parties to the Geneva Conventions for drafting a statement to condemn the American position and ensure the application of the Geneva Conventions in the oPt in 1967, including Jerusalem, and work on obliging the US to abide by these Conventions as it is one of the High Contracting Parties;
  5. Calls upon the European Union to condemn the American Decision for violating the international law and directly threatening the international peace and security;
  6. Calls upon the American Civil Society and the free people of the world to move and pressurize the US President to save the world peace and spare the world a religious war due to the irresponsible behaviors of the American President; and
  7. Calls upon the Arab States and Islamic world to take decisive steps to force the US President’s administration to withdraw the declaration and strop the encroachment on the Islamic and Christian holy places.