Nadav Shragai (Institute for Contemporary Affairs-Jerusalem Center for Public Affairs)
An imbalanced EU position paper on Jerusalem written in December 2008, and recently leaked to the media, completely ignores Israel's historical and legal rights to its capital.
The EU attack refers primarily to the City of David, located just beyond Jerusalem's Old City walls, an area identified by archaeologists and historians as the location of King David's capital some 3,000 years ago. Archaeological excavations took place there during Ottoman rule, as well as under the ensuing British Mandatory rule, and they have continued under Israeli rule as well. About 20 years ago a wave of new, illegal construction by Palestinians began on the site, causing significant and sometimes irreversible damage to the antiquities there. The Jerusalem municipality intends to offer the delinquent residents generous compensation and alternative land in the city.
Jerusalem has had a Jewish majority for the last 150 years - at least since 1864. Israel's position in Jerusalem under international law derives from the Palestine Mandate, where the League of Nations recognized "the historical tie between the Jewish people and Palestine," and called "for the establishment of a national home for the Jewish people in Palestine."
The 1949 Armistice Agreement between Israel and Jordan did not fix the final boundaries between the parties, but only the lines of military separation at the close of the 1948 war. At the demand of the Arab side, the Armistice Agreement stipulated that it did not serve to predetermine the rights of any party in the final resolution of conflict. In other words, upon the outbreak of the Six-Day War, the 1967 lines enjoyed no diplomatic status.
In 1967, Israel agreed to allow the Muslim Waqf to manage the Temple Mount area, with a view toward preventing inter-religious conflict at one of the world's most sensitive sites. This was a huge concession on Israel's part that has never been properly recognized. By doing so, Israel has underscored its intention to assure freedom of access to members of all faiths at all of the holy sites in Jerusalem.
An internal European Union position paper on Jerusalem prepared in December 2008 by the EU ambassadors in Tel Aviv was leaked to the media in March 2009 by the Israeli Committee Against House Demolitions.1 The "EU Heads of Mission Report on East Jerusalem" accuses the Israeli government of "actively pursuing the illegal annexation" of East Jerusalem, noting that Israeli actions "in East Jerusalem will only make eventual Israeli concessions on Jerusalem much harder."2 The report states, "there are currently around 190,000 Israeli settlers living inside East Jerusalem, in addition to around 96,000 in settlements around Jerusalem, the majority living in large settlement blocks such as Givat Ze'ev, the Etzion bloc and Ma'ale Adumim."3
Yet this biased and one-sided document ignores Israel's longstanding legal, national and historical rights to its own capital city. The document also displays an utter disregard of the vast empirical evidence that attests to the 3,000-year-old link between Jerusalem and the Jewish people. With its holy places, the Old City, the region of the Holy Basin and the Temple Mount, the State of Israel - as the state of the Jewish people - has exercised its rights in the city in accordance with the principles of law and natural justice, and has sought to anchor the city's status as Israel's united capital.
The City of David - An Historical Treasure
The EU attack on Israeli activities in Jerusalem refers primarily to the City of David - also known as the Arab village of Silwan - located just south of the Old City walls. The City of David is the area identified by archaeologists and historians as the location of King David's capital some 3,000 years ago. David's son Solomon established the First Temple on the summit of Mount Moriah, where Isaac was bound for sacrifice, a location known today as the Temple Mount.
Archaeological excavations in the City of David took place during Ottoman rule, as well as under the ensuing British Mandatory rule, and have continued under Israeli rule as well, unearthing discoveries of Jewish life and artifacts from various ancient periods. Work at the site has received high praise and vast esteem from throughout the world archaeological community.
Israel has been accused of digging under Palestinian homes and thus endangering them. Yet this argument is a distortion. While part of the supervised excavations do indeed take place under homes, Israel has excavated in the very same way under the houses of Jewish residents in the Jewish Quarter, endangering no one.
Adjacent to the City of David is an area called the King's Garden, described in the books of Nehemiah and Ecclesiastes, as well as in many other historical sources. Scholars, visitors and pilgrims have attributed the area to King David and Solomon. About twenty years ago the Jerusalem municipality repaired a drainage problem at the site after it would turn into a swamp each winter, providing a breeding ground for mosquitoes and other pests.
New Palestinian Construction Spreads Over an Archaeological Site
Israel's resolution of the drainage problem brought in its wake a wave of new, illegal construction by Palestinians on the site. While Palestinian Arab residents in Jerusalem can obtain building permits like the city's Jewish residents, the eastern part of Jerusalem has been afflicted with large-scale construction often undertaken without any building license.4 This construction often occurs on land zoned for public use (i.e., clinics or parks or, as in this case, an archeological site). In response to the illegal construction in the City of David, the Jerusalem municipality issued demolition orders for 88 structures. Testifying a year ago at the Knesset, the director general of the Israel Antiquities Authority, Joshua Dorfman, estimated that the illegal construction did significant and sometimes irreversible damage to the antiquities at the site. However, only a number of isolated demolitions were carried out.
The Jerusalem municipality is insisting today on carrying out these orders, but given the sensitivity of the issue and international criticism, it intends to offer the delinquent residents generous compensation that includes land at an alternative site in the city. The residents, supported by ideological groups and the Palestinian Authority, have opposed this offer and are engaged in a campaign of incitement against the state's authorities and their attempts to enforce the law. However, after extensive deliberations, the municipal planning committee in early March turned down a plan submitted by the residents to "whitewash" the illegal construction at the site.
As Jerusalem Mayor Nir Barkat explained, "This is one of the most strategic sites in the city, on an international level, which must be an open public area....I would like to see what [New York Mayor Michael] Bloomberg would say about illegal building in Central Park. Would he give up Central Park because there is illegal building there?"5
The Jewish Return to the City of David
An additional issue that has served as a pretext for attacks on Israel is renewed Jewish residency in the City of David itself. Scores of Jewish families now live in this area in houses legally purchased at great cost from former Arab residents. No one forced Arab owners to sell properties to Jews and earn substantial profits. The sales were made by individuals acting of their own free will and in many cases were even documented on video, in order to refute the litany of complaints that were subsequently made by politically motivated groups.
In fact renewed Jewish settlement in the City of David rests on empirical Jewish historic, religious, and cultural ties to the area. Relations between the Jewish and Palestinian residents of the neighborhood are reasonably warm as long as political elements remain uninvolved and do not incite the Palestinian residents. Police sources testify that ever since the Jews began moving into the area, crime and nationalist incidents there have declined sharply.
The EU's Problematic Policy Shift on Jerusalem
The recent EU report was not issued in a diplomatic vacuum. Rather, it is the latest manifestation of a problematic shift in EU policy on Jerusalem that began in 1999. The German ambassador to Israel at the time, whose country served as rotating President of the EU, proposed re-dividing Jerusalem by reviving UN Resolution 181 of 1947, that had been drafted before Israel was invaded by the neighboring Arab states in the 1948 war of independence. In fact, Resolution 181 had not proposed that Jerusalem be divided, but rather that it should be internationalized, becoming a corpus separatum - a proposal declared by Israel's first prime minister, David Ben-Gurion, to be "null and void."6
The diplomatic resurrection of the idea of denying Israeli sovereignty over its united capital also energized the longstanding Palestinian denial of any Jewish connection to Jerusalem. Palestinian negotiator Ahmed Qurie stated at the time in the official Palestinian Authority newspaper Al- Ayam, "The (EU's) letter asserts that Jerusalem in both of its parts - the Western and the Eastern - is a land under occupation."7
Israeli Rights in Jerusalem
According to the new EU document, "The EU policy on Jerusalem is based on the principles set out in UN Security Council Resolution 242." However, Resolution 242, drafted in the aftermath of Israel's defensive Six-Day War in June 1967 and unanimously approved by the Security Council on November 22, 1967, does not mention Jerusalem at all. Moreover, the operative clauses of the resolution never insisted on total withdrawal to the pre-1967 lines, but only on withdrawal from "territories" to "secure and recognized boundaries." The U.S. ambassador to the United Nations in 1967, Arthur Goldberg, wrote retrospectively: "I never described Jerusalem as an occupied area....Resolution 242 does not refer to Jerusalem in any way whatsoever, and this omission was deliberate."8
In this context, it should be recalled that between 1948 and 1967 during the period of Jordanian rule in Jerusalem, in contravention of its international legal obligations, Jordan refused to allow Jews access to the Western Wall, the Mount of Olives, and additional places sacred to Jews under its control. Over 50 synagogues in the Jewish Quarter of the Old City were either destroyed or desecrated, and hundreds of tombstones in the most important Jewish cemetery in the world on the Mount of Olives were desecrated and smashed. The reunification of Jerusalem by Israel in June 1967 restored freedom of religion and worship to all residents of the city - Jews, Muslims and Christians alike.
The European Union report on Jerusalem also ignores the historical progression of Jewish rights and seniority in the city. Jerusalem has had a Jewish majority for the last 150 years - at least since 1864. Israel's position in Jerusalem under international law derives from the Palestine Mandate, where the League of Nations, the repository of international legitimacy prior to the establishment of the United Nations, recognized "the historical tie between the Jewish people and Palestine," and called "for the establishment of a national home for the Jewish people in Palestine." The League of Nations did not distinguish between Jewish rights in Jerusalem and their rights in other areas of Palestine.
Israel's Knesset established Jerusalem as the capital of the State of Israel in 1950. The Armistice Agreement between Israel and Jordan, signed a year earlier, did not fix the final boundaries between the parties, but only the lines of military separation at the close of the 1948 war. At the demand of the Arab side, the armistice agreement included a clause that stipulated that nothing in this agreement would predetermine the rights of any party with regard to the final resolution of the outstanding issues through peaceful means. In other words, upon the outbreak of the Six-Day War, the 1967 armistice lines enjoyed no legal or diplomatic status.
On June 5, 1967, Israeli Prime Minister Levi Eshkol sent a message to Jordan's King Hussein saying that Israel would not attack Jordan unless it initiated hostilities. Nevertheless, Jordan launched an attack on Israel along the municipal boundary line in Jerusalem. With the liberation of the Old City of Jerusalem in the course of the Six-Day War, Israel's Knesset applied Israeli law, jurisdiction, and authority to the eastern part of the city.
At the same time, in a concession unprecedented in modern international diplomatic history that has never been properly recognized, Israel agreed to allow the Muslim Waqf to manage the Temple Mount area, with a view toward preventing inter-religious conflict at one of the world's most sensitive sites. By doing so, Israel underscored its intention to assure freedom of access to members of all faiths at all of the holy sites in Jerusalem.
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Notes
1. Rory McCarthy, "Israel Annexing East Jerusalem, Says EU," Guardian (UK), 7 March 2009.
2. "EU Heads of Mission Report on East Jerusalem," EU Observer, 8 March 2009, http://euobserver.com/9/27736
3. Ibid.
4. Justus Reid Weiner, Illegal Construction in Jerusalem: A Variation on an Alarming Global Phenomenon (Jerusalem: Jerusalem Center for Public Affairs, 2003).
5. Etgar Lefkovits, "Barkat May Relocate Silwan Residents," Jerusalem Post, 19 March 2009,
http://www.jpost.com/servlet/Satellite?cid=1237461629053&pagename=JPost%2FJPArticle%2FShowFull
6. Dore Gold, The Fight for Jerusalem: Radical Islam, the West, and the Future of the Holy City (Washington: Regnery, 2007), pp. 193-4.
7. Ibid.
8. Gold, p. 174.
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Nadav Shragai is the author of Jerusalem: The Dangers of Division - An Alternative to Separation from the Arab Neighborhoods (Jerusalem Center for Public Affairs, 2008), At the Crossroads, the Story of the Tomb of Rachel (Jerusalem Studies, 2005); The Mount of Contention, the Struggle for the Temple Mount, Jews and Muslims, Religion and Politics since 1967 (Keter, 1995); and "Jerusalem Is Not the Problem, It Is the Solution," in Mister Prime Minister: Jerusalem, ed. Moshe Amirav (Carmel and the Florsheimer Institute, 2005). He has been writing for the Israeli daily newspaper Ha'aretz since 1983.
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