What About the Occupation of the Western Wall?

Noah Pollak
Contentions/Commentary
24 November 09

I’m having a hard time understanding the thinking behind the Obama administration’s decision to criticize construction in the Jerusalem neighborhood of Gilo. The administration seems to have decided that Gilo is a settlement, and the international press is of course helping the cause by falsely reporting that Gilo is in (Arab) East Jerusalem. As Maurice Ostroff points out in a must-read Jerusalem Post piece:

The reality is that Gilo is very different than the outposts in the West Bank. It is not in east Jerusalem as widely reported. It is a Jerusalem neighborhood with a population of around 40,000. The ground was bought by Jews before WWII and settled in 1971 in south west Jerusalem opposite Mount Gilo within the municipal borders. There is no inference whatsoever that it rests on Arab land.

Gilo is one of several neighborhoods that sit on land occupied by Jordan from 1948-1967, after the withdrawal of the British Mandate. This border is called the Green Line, and it

refers only to the 1949 Armistice lines established after the 1948 Arab-Israeli War. … Nor is it fixed, as explained by Justice Stephen M. Schwebel, who spent 19 years as a judge of the International Court of Justice at The Hague, including three years as President. He wrote “…modifications of the 1949 armistice lines among those States within former Palestinian territory are lawful (if not necessarily desirable), whether those modifications are, in Secretary Rogers’s words, “insubstantial alterations required for mutual security” or more substantial alterations — such as recognition of Israeli sovereignty over the whole of Jerusalem.” …

The Palestinians never had sovereignty over the West Bank nor east Jerusalem and Justice Schwebel concluded that since Jordan, the prior holder of these territories had seized that territory unlawfully in 1948, Israel which subsequently took that territory in the lawful exercise of self-defense in 1967, has better title to it. Jordan’s illegal annexation of the West Bank and east Jerusalem in 1948 was recognized only by Britain and Pakistan and Jordan now makes no claim to it.

In terms of international law, between 1948 and 1967 this territory was terra nullius, or “land belonging to no one” over which sovereignty may be acquired through occupation. The concept of terra nullius is well recognized in international law.

Getting back to the Obama administration: what is the principle behind the critique of construction in Gilo? There are many parts of Jerusalem that share its standing. Those places include the Jewish Quarter of the Old City and the Western Wall, both of which, like Gilo, were controlled by Jordan during the twenty years between the founding of the state and the Six Day War.

Is the Jewish Quarter a settlement? Is the Western Wall occupied? Is Israeli construction in them inimical to the peace process? Someone should ask these questions of Robert Gibbs at the next press conference. By the administration’s Gilo logic, the answer to all three would have to be yes.

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