No one expected the opinion of the Hague Court to be sympathetic to the State of Israel, which has been fighting a terrorist organization amidst a civilian area for nine months. As long as the opinion is based on solid legal sources, it is difficult to challenge the court's decisions. However, Israel must speak out clearly and loudly about the historical inaccuracies presented in that opinion.
This is especially true regarding the inclusion of Jerusalem, particularly the eastern part of the city, in the same legal-discursive space as Judea and Samaria and the Gaza Strip. The International Court based its rulings on the partition plan that promised an Arab state for the Arab residents under the British Mandate. The basis for the discussion was the partition plan, and if so, it was appropriate to exclude, or at least explain why there was no exclusion on Jerusalem.
According to the partition plan, Jerusalem was intended to be an international city, but the court treats it as just another part of the territories on which the Arab state was to be established (Clause 78): "In terms of its territorial scope, question (a) relates to the 'occupied Palestinian territory since 1967,' including the West Bank, East Jerusalem, and the Gaza Strip... The court recalls that legally, the occupied Palestinian territory constitutes a single territorial unit whose unity, continuity, and integrity must be preserved and respected... Therefore, all references in this opinion to the occupied Palestinian territory are references to this single territorial unit."
This is not mere legal semantics. The fact that Jerusalem was an international city according to the partition plan has significant implications for the question of whether Israel's annexation in 1967 is legal. The international court is divided regarding the status of Jerusalem and Judea and Samaria - whether they are defined as occupied territories or if the doctrine of "uti possidetis juris" applies, meaning "as you possess under law." In international law, this doctrine means that when a new state emerges from a former state, it inherits the official boundaries of the state from which it was born. When several states emerge from a former state, each inherits the territory of the official district in which it was established. This doctrine is the basis for Europe's and most countries' claims that Crimea belongs to Ukraine and not Russia.
The minority opinion in the case is that the doctrine of "uti possidetis juris" applies to the case of Israel and the Palestinians, and therefore the claim of occupation by Israel does not hold, as the State of Israel inherited the territory of the British Mandate, including Jerusalem and Judea and Samaria. Even if one does not accept the minority opinion regarding all the territories of Judea and Samaria, the "uti possidetis juris" doctrine certainly applies to Jerusalem, which was not designated to be part of any state—making its annexation to the State of Israel a completely different and legal case according to international law.
The complete disregard of the minority opinion in the court's decision indicates a document serving an agenda - drawing the arrows and then drawing the target around them. Israel would do well to legally challenge this opinion - first by clarifying the biased discussion reflected in the non-exclusion of Jerusalem as an independent area according to the partition plan, then secondly with the help of international law that supports the State of Israel.
The author is the CEO of "This is Jerusalem."
