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Law and Disorder in the Middle East
The Legal Status of Jerusalem: Reportedly, it was the question of Jerusalem that led to the breakdown of the Camp David II negotiations, though the negotiating situation was far more complicated than that. A brief review of the historical record can shed light upon Jerusalem's legal status, and point the way towards an ultimate solution for this city, so revered by three monotheistic faiths. On 25 September 1971, then-Ambassador George H. W. Bush, speaking as U.S. Representative to the United Nations, delivered a formal "Statement on Jerusalem" before the U.N. Security Council explaining the official position of the U.S. government with respect to the city of Jerusalem. Therein, Ambassador Bush specifically endorsed and repeated a 1969 statement made before the Security Council by his predecessor, Charles Yost, criticizing Israeli occupation policies in East Jerusalem in the following terms: The expropriation or confiscation of land, the construction of housing on such land, the demolition or confiscation of buildings, including those having historic or religious significance, and the application of Israeli law to occupied portions of the city are detrimental to our common interests in the city. Ambassador Bush then reaffirmed Yost's prior statement that the United States government considers East Jerusalem to be "occupied territory and thereby subject to the provisions of international law governing the rights and obligations of an occupying power." Succinctly put, these latter obligations can be found in the Fourth Geneva Convention of 1949, which expanded upon and improved --- but did not displace --- the 1907 Hague Regulations on Land Warfare. The United States government is a party to both the Fourth Geneva Convention and the Hague Regulations. Israel is bound by the terms of both treaties as well. Ambassador Bush concluded his 1971 "Statement" as follows: We regret Israel's failure to acknowledge its obligations under the Fourth Geneva Convention as well as its actions which are contrary to the letter and spirit of this Convention. We are distressed that the actions of Israel in the occupied portion of Jerusalem give rise to understandable concern that the eventual disposition of the occupied section of Jerusalem may be prejudiced. The Report of the Secretary General on the Work of the Organization, 1970-71, reflects the concern of many Governments over changes in the face of this city. We have on a number of occasions discussed this matter with the Government of Israel, stressing the need to take more fully into account the sensitivities and concerns of others. Unfortunately, the response of the Government of Israel has been disappointing. All of us understand.that Jerusalem has a very special place in the Judaic tradition, one which has great meaning for Jews throughout the world. At the same time Jerusalem holds a special place in the hearts of many millions of Christian and Moslems through the world. In this regard, I want to state clearly that we believe Israel's respect for the Holy Places has indeed been exemplary. But an Israeli occupation policy made up of unilaterally determined practices cannot help promote a just and lasting peace any more than that cause was served by the status quo in Jerusalem prior to June 1967 which, I want to make clear, we did not like and we do not advocate reestablishing. Ambassador Bush's 1971 "Statement" has always represented the United States government's official position on the numerous illegalities surrounding Israel's occupation and illegal annexation of East Jerusalem since 1967. For similar reasons, the United States government has never recognized Israel's annexation of West Jerusalem as valid or lawful either. That is why the U.S. Embassy to Israel still remains in Tel Aviv, not Jerusalem. Both Bush's 1971 "Statement" and similar comments he later made as President in 1990 are fully consistent with and indeed required by Article 1 of the Fourth Geneva Convention, which requires the United States government not only to respect but also to ensure respect for the terms of this Convention by other parties such as Israel "in all circumstances." As treaties, both the Fourth Geneva Convention and the Hague Regulations are deemed to be the "supreme Law of the Land" by Article VI of the United States Constitution. Contrary to the public suggestions made in the United States by the Israel lobby and its supporters, the United States government must support the vigorous application of the international laws of belligerent occupation to produce the termination of all illegal Israeli practices in Jerusalem as well as in the West Bank and Gaza Strip, together with the Golan Heights, including and especially Israeli settlers and settlements. The 1947 United Nations Partition Plan for the Mandate of Palestine called for the creation of an international trusteeship for the city of Jerusalem, that would be administered as a corpus separatum apart from both the Jewish state and the Arab state contemplated therein. Today, however, it would not be necessary to go so far as to establish a separate United Nations trusteeship for the city of Jerusalem alone under Chapter XII of the U.N. Charter. Rather, all that would need to be done is for the Israeli army to withdraw from Jerusalem and a United Nations peacekeeping force to be substituted in its place. This U.N. force would maintain security within the city while the provision of basic services to all the inhabitants could be enhanced, especially for the Palestinians.
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