By Stephen Franklin
April 23, 2010
Under Israeli law all of Jerusalem is the capital of Israel. Certainly if somebody is on holiday in Israel they do not need to show passports to see the view that was shown in the photograph at issue, which was taken from the Jewish Quarter of Jerusalem. As I will show below it is not just Israeli law that justifies the annexation of Jerusalem.
When Israel came into being the Israeli flag flew in the Jewish Quarter of the Old City of Jerusalem. Jews had lived, as the majority population in the Jewish Quarter of Jerusalem for many centuries. In fact the only periods that that wasn't the case was when occupying powers had forced them out. For centuries Jews have been the largest ethnic group living in Jerusalem and since 1857 they have been in the majority in the city. At that time, and before then, the entire urban population of Jerusalem lived in what is now called "East Jerusalem".
In 1948 the invading Jordanian army (Arab Legion) captured the Jewish Quarter
http://www.rova-yehudi.org.il/en/taarucha.asp (and it was illegally annexed by Jordan in 1950. Unlike Israel, Jordan's only claim to East Jerusalem was that of conquest. The Jews of the Old City were forced out en masse.)
Article 2 paragraph 2 of the 1949 Armistice Agreement between Israel and Jordan http://domino.un.org/unispal.nsf/9a798adbf322aff38525617b006d88d7/f03d55... (the only international agreement that delineated the "green line", which delineated the West Bank and divided Jerusalem until 1967) said:
"It is also recognized that no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations."
The description of East Jerusalem as occupied territory is at very least disputed. It is the 1907 Hague Convention
http://avalon.law.yale.edu/20th_century/hague04.asp#art42 that most legal opponents of Israel quote when justifying referring to East Jerusalem as occupied, whilst they forget that the definition there comes in a section (Chapter 5 Section 3) headed "Military Authority over the Territory of the Hostile State". There is no state of Palestine. Similarly article 2 of the 4th Geneva Convention makes it clear that the provisions relate to territory of a High Contracting Party (i.e. internationally recognised nation state).
The foremost expert on the subject is of the opinion that the annexation of Jerusalem is legal under international law.
The former president of the World Court is of the same opinion http://middleeastfacts.org/content/schwebel/what-weight-to-conquest.htm
The one legal opinion that is quoted against Israel is the World Court case regarding the barrier.
http://www.icj-cij.org/docket/index.php?p1=3&p2=4&code=mwp&case=131&k=5a In that case the World Court was asked by the UNGA to give an advisory opinion in the matter. In an advisory opinion parties that are concerned provide relevant documents to the court and the judges declare their opinion in open court. In this instance this is not what happened. The court turned the matter into a case in which both sides were invited to present witnesses and to have barristers cross examine each others witnesses. This was in specific breach of Article 34 Paragraph 1 of the Statute of the Court.
http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0 "Only states may be parties in cases before the Court." Israel thought that the court was making a mockery of itself and chose not to take part in the proceedings.
Accordingly an advisory opinion was given based purely on the Palestinian perspective that was not worth the paper it was written on in terms of the enlightenment it gave as to the real legal situation.
The Palestine Authority (PA) shows images of Jerusalem in its “Tourism in Palestine” web site.
http://www.travelpalestine.ps/site/index.php At the top of the page there are a series of images shown in rotation, one of which shows West Jerusalem as seen from the east.
The PA is not a state. Its authority is derived from the Oslo Accords of September 13th 1993.
The status of Jerusalem was left to be decided in the permanent status negotiations, which ended in deadlock at Taba in 2001 without an agreement. At Taba and Camp David the talks failed on the issue of refugees and the Temple Mount. It was agreed that the Western Wall Plaza, shown in the "contentious" advertisement would remain a part of Israel if the other issues were resolved.
The Palestine Authority therefore, as of yet, has no authority within Jerusalem. All the pictures of Jerusalem, or any part of it, imply that they fall within the area of the Palestine Authority and are therefore misleading. That is not to suggest that their advertisement should be banned (assuming it is not only viewed online), just that if theirs is legitimate then the banned Israeli advertisement is even more so.
Incidentally the Italian Government advertises the Vatican Museum
(http://www.italiantourism.com/vatican.html), which is in the Vatican, which is a state in its own right, as if it were a part of the Italian state (and had done for many years). Israel has no objection to that but notices that the ASA hasn't either. It seems that Israel and Italy are treated differently.
In short it would seem to me the ASA decision to ban the Israel advertisement showing the Western Wall was a mistake and it would be the right thing to do to reverse that decision.