The Holy Places and Jerusalem

Eli E. Hertz
March 23, 2010

Jerusalem, it seems, is at the physical center of the Arab-Israeli conflict. In fact, two distinct issues exist: the issue of Jerusalem and the issue of the Holy Places.

Sir Elihu Lauterpacht, a former judge ad hoc on the bench of the International Court of Justice and a renowned and respected scholar of international law at Cambridge University, has said: "Not only are the two problems separate; they are also quite distinct in nature from one another. So far as the Holy Places are concerned, the question is for the most part one of assuring respect for the existing interests of the three religions and of providing the necessary guarantees of freedom of access, worship, and religious administration. Questions of this nature are only marginally an issue between Israel and her neighbors and their solution should not complicate the peace negotiations."

"As far as the City of Jerusalem itself is concerned, the question is one of establishing an effective administration of the City which can protect the rights of the various elements of its permanent population - Christian, Arab and Jewish - and ensure the governmental stability and physical security which are essential requirements for the city of the Holy Places. "

Internationalization of Jerusalem

Judge, Sir Elihu Lauterpacht underscored in his investigation of the legal issues surrounding the status of Jerusalem and the Holy Places that the notion of internationalizing Jerusalem was not part of the original international mandate:

"Nothing was said in the Mandate about the internationalization of Jerusalem. Indeed Jerusalem as such is not mentioned, - though the Holy Places are. And this in itself is a fact of relevance now. For it shows that in 1922 there was no inclination to identify the question of the Holy Places with that of the internationalization of Jerusalem"

Arab leaders, including Palestinians, have sought to justify their right to Jerusalem by distorting the meaning of United Nations resolutions that apply to the city. UN Resolution 181, for example, adopted by the General Assembly in 1947, recommended turning Jerusalem and its environs into an international city, or corpus separatum. However, Arab spokesmen conveniently ignore the fact that Resolution 181 was a non-binding recommendation. Professor Julius Stone, one of the 20th century's best-known authorities in Jurisprudence and international law, notes that Resolution 181 "lacked binding force" from the outset, since it required acceptance by all parties concerned:

"While the State of Israel did for her part express willingness to accept it, the other states concerned both rejected it and took up arms unlawfully against it."

Judge Lauterpacht wrote in 1968 about the new conditions that had arisen since 1948 with regard to the original thoughts of internationalization of Jerusalem:

"-The Arab States rejected the Partition Plan and the proposal for the internationalization of Jerusalem.

-The Arab States physically opposed the implementation of the General Assembly Resolution. They sought by force of arms to expel the Jewish inhabitants of Jerusalem and to achieve sole occupation of the City.

-In the event, Jordan obtained control only of the Eastern part of the City, including the Walled City.

-While Jordan permitted reasonably free access to Christian Holy Places, it denied the Jews any access to the Jewish Holy Places. This was a fundamental departure from the tradition of freedom of religious worship in the Holy Land, which had evolved over centuries. It was also a clear violation of the undertaking given by Jordan in the Armistice Agreement concluded with Israel on 3rd April, 1949.

Article VIII of this Agreement called for the establishment of a Special Committee of Israeli and Jordanian representatives to formulate agreed plans on certain matters "which, in any case, shall include the following, on which agreement in principle already exists ... free access to the Holy Places and cultural institutions and use of the Cemetery on the Mount of Olives."

-The U.N. displayed no concern over the discrimination thus practiced against persons of the Jewish faith.

-The U.N. accepted as tolerable the unsupervised control of the Old City of Jerusalem by Jordanian forces

- notwithstanding the fact that the presence of Jordanian forces west of the Jordan River was entirely lacking in any legal justification.

-During the period 1948-1952 the General Assembly gradually came to accept that the plan for the territorial internationalization of Jerusalem had been quite overtaken by events. From 1952 to the present time virtually nothing more has been heard of the idea in the General Assembly.

On 5th June, 1967, Jordan deliberately overthrew the Armistice Agreement by attacking the Israeli-held part of Jerusalem. There was no question of this Jordanian action being a reaction to any Israeli attack. It took place notwithstanding explicit Israeli assurances, conveyed to King Hussein through the U.N. Commander, that if Jordan did not attack Israel, Israel would not attack Jordan. Although the charge of aggression is freely made against Israel in relation to the Six-Day War the fact remains that the two attempts made in the General Assembly in June-July 1967 to secure the condemnation of Israel as an aggressor failed. A clear and striking majority of the members of the U.N. voted against the proposition that Israel was an aggressor."

Today, Israel has reunited Jerusalem and provided unrestricted freedom of religion. Access of all faiths to the Holy Places in the unified City of Peace is assured. Judge, Sir Elihu Lauterpacht confirmed this:

"Moslems have enjoyed, under Israeli control, the very freedom which Jews were denied during Jordanian occupation."

Lastly, it should be noted: If UN Resolution 181 (The Partition Plan) was valid today (which it is not), then so would be the provision in Part III-D of UN Resolution 181 that stipulates that after 10 years, the city's international status could be subject to a referendum of all Jerusalemites regarding a change in the status of the city - a decision that today, as in the past, would have been made by the city's decisive majority - The Jewish people.
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