Defending Israel’s legal rights to Jerusalem

Defending Israel’s legal rights to Jerusalem

Dore Gold

In modern history, nations are measured not by their military strength or economic performance alone, but by their inner conviction about the justice of their cause. Forty-four years ago, at the end of the 1967 Six-Day War, when Israeli paratroopers reached the Western Wall and their commander, Motta Gur, announced “Har Habyit Beyadainu” (“the Temple Mount is in our hands”), there was no doubt over the fact that Israel had waged a just war. Overseas, Israel’s representatives in the 
1960s and 1970s, like Abba Eban and Chaim Herzog, reiterated Israel’s rights to Jerusalem before 
the world community, which may not have always supported them, but at least understood Israel’s 
determination to defend them.


But something has happened since those days. While the arguments they used are still relevant today, they have been forgotten in many quarters. Therefore, Jerusalem is in a paradoxical situation. While Israel has legal rights to retain a united city as its capital, there is a sense that its claim is being challenged more than ever. Indeed, there are multiple arguments being sounded as to why 
Israel should acquiesce to Jerusalem’s re-division. 


What makes this particularly troubling is that Jerusalem, in the words of the British historian Sir Martin Gilbert, has always been seen as a “microcosm” of Jewish historical rights.


In 70 CE when the Jewish people lost their national sovereignty to the Roman Empire, it was the fall of Jerusalem that marked the end of the Jewish state. Conversely, when the Jewish people restored their majority in Jerusalem in the mid-nineteenth century, they did so before reaching a majority in any other 
part of their ancestral homeland. Indeed, their movement for the revival of a Jewish state was called 
“Zionism,” exemplifying the centrality of Jerusalem for the overall Jewish national movement.98  Jerusalem, in short, has been the focal point of the idea of Jewish national self-determination. Ernst Frankenstein, a British-based authority on international law in the inter-war period, made the case for arguing the legal rights of the Jewish people to restore their homeland by stating that they never relinquished title to their land after the Roman conquests. For that to have happened, the Romans and their Byzantine successors would have had to be in “continuous and undisturbed possession” 
of the land with no claims being voiced. Yet Jewish resistance movements continued for centuries, 
most of which were aimed at liberating Jerusalem.


From the standpoint of international law, the fact that the Jewish people never renounced their historic connection to their ancestral homeland provided the basis for their assertion of their historical rights.


This came to be understood by those who wrote about the Jewish legal claim to the Land of Israel, as a whole. In the Blackstone Memorial, which was signed by Chief Justice of the U.S. Supreme Court Melville Fuller, university presidents, and members of Congress before it was submitted to President Benjamin Harrison in 1891, Palestine is characterized as “an inalienable possession” of the Jewish people “from which they were expelled by force.”


 In short, they did not voluntarily abandon their land or forget their rights. This was most fervently expressed through centuries of lamentation for Jerusalem’s destruction and their constant prayer for its restoration.  Jerusalem was the focal point for the historical connection of the Jewish people to the Land of Israel.

For the rest of this great paper, go to  www1.biu.ac.il/File/dore%20gold.doc