Whose Capital is Jerusalem?

Who Owns Jerusalem – Whose Capital is it?

Jerusalem is perhaps the most contested city in the world, and the question ‘Who owns Jerusalem?’ is much debated. Who’s capital is it? The international community (the UN, the US and the EU) maintains that Jerusalem should be the capital of two states: Israel and Palestine, link

Jerusalem must be the capital of both Israel and Palestine [UN Secretary-General Ban Ki-moon, 28 October 2009]
As far as the US government is concerned, Jerusalem is not a part of Israel [US Supreme Court, June 2015]

Clearly, there is confusion and political correctness in the western nations, and not even America or the UN can find a political solution to the Jerusalem problem. This impasse is foretold in end-time prophecy:

I will make Jerusalem a very heavy stone for all the peoples; all who would heave it away will be cut in pieces (Zech 12.2,3)

In contrast to the western view, Israel argues that Jerusalem is the capital of the Jewish State. Israel’s strong case is based on the historical connection of the Jews to Israel, Bible prophecy, and the actual legal position based upon the 1920 San Remo Resolution, the 1922 League of Nations Mandate, and Article 80 of the UN Charter. Consequently, Israel proclaimed Jerusalem to be her capital shortly after the declaration of the State of Israel in 1948:

Whereas with establishment of the State of Israel, Jerusalem once more becomes the capital
[ Knesset, 1950 ]

The Status of Jerusalem in International Law

who owns Jerusalem

Jerusalem Old City. Image: Chmouel GFDL, CC-BY-SA-3.0, Wikimedia Commons

The 1947 UN Resolution 181, although it called for Jerusalem to be an international city (‘corpus separatum’), never held any force under international law because it was rejected by the Arab side. Today there are frequent International/Palestinian calls based on the 1967 UN Resolution 242 for Israel to withdraw from ‘occupied land’ and return to the ‘pre-1967’ borders – a reference to the so-called 1949 Armistice Green Line which divided Jerusalem. Specifically, these so-called ‘borders’ of Israel did not embrace East Jerusalem. But such calls are inconsistent with the true legal position. Drafters of Resolution 242 made it quite clear that the 1949 Armistice Green Line is not Israel’s legal border:

  • The armistice lines of 1948 were intended to be temporary … this, or course, was particularly true of Jerusalem. At no time … did I refer to East Jerusalem as occupied territory [Arthur Goldberg, a drafter of UN Resolution 242]
  • It would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial [Lord Caradon, British Ambassador, a drafter of UN resolution 242]
  • The armistice agreements of 1949 expressly preserved the territorial claims of all parties and did not purport to establish definitive boundaries between them [Prof. Judge Schwebel, former President of the International Court of Justice]

Jordan occupied both East Jerusalem and the West Bank during the 1948-49 war and only gained these areas via war and the Green Line of the UN armistice. These areas had never formally been allocated to Jordan and so were strictly unallocated Palestine Mandate territory. Later, between 1949 and 1967 Jordan simply attempted illegal annexation of this newly gained territory, but then in 1988 Jordan formally renounced any claim to the West Bank and East Jerusalem. Eminent legal scholars, such as Prof. Eugene Rostow therefore maintain that Israeli settlers have as much right to live in the West Bank as non-Jews. He states:

Under international law, neither Jordan nor the Palestinian Arab people of the West Bank and the Gaza Strip have a substantial claim to the sovereign possession of the occupied territories. The West Bank should be considered ‘unallocated territory’

The Israeli Government follows this argument and denies that the occupation of the West Bank is illegal on the grounds that the land was not previously occupied lawfully by any other state.

So on the question ‘Who owns Jerusalem?’ we have to go back to solid legal ground: the 1920 San Remo Resolution, the 1922 British Mandate for Palestine (ratified by 51 members of the League of Nations) and Article 80 of the UN Charter (which enshrines all obligations of the League of Nations), link. Essentially, all this states that the Jewish homeland includes the Gaza strip and the Golan Heights, plus Judea and Samaria, today’s ‘West Bank’. After spending twenty years investigating the legal aspects of Jerusalem’s sovereignty, international human rights lawyer Jacques Gautier concludes:

According to international law, Israel has a well-founded claim to sovereignty over Jerusalem, including its Old City [Dr Jacques Gautier, author ‘Sovereignty over the Old City of Jerusalem’, link]

Gautier maintains that, under Article 80 and the 1922 Mandate, Jerusalem cannot be divided and that Jews still have the legal right to settle anywhere in mandated land i.e. west of the Jordan.