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The Demilitarization of Mount Scopus: A Regime That Was

Published online by Cambridge University Press:  12 February 2016

Theodor Meron
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Under the armistice régime, now a matter of history, a peculiar legal situation prevailed in Jerusalem, for no less than four distinct régimes of demilitarization could be found in the city: the Mount Scopus régime, the régime of the Government House Area, the régime of no-man's-land, and the régime of the limitation of military forces and equipment on both sides of the demarcation lines. The object of this article is to examine one of these régimes, that which obtained on Mount Scopus.

Today, the situation in Jerusalem is, of course, drastically changed, both with respect to the régime of the City as a whole, and with respect to Mount Scopus. The Jordanian attack of June 1967 resulted in a unification of this strife-torn city. Mount Scopus, for so long separated from Western Jerusalem, its humanitarian and cultural activities so long paralyzed, is slowly returning to life. The present study, which may be of interest to students of international law and relations, is of historical value only and does not relate to the current situation.

The method followed will be that of a pragmatic case study. In view of the special circumstances surrounding the establishment of the Mount Scopus Demilitarized Zone, a comparative, deductive or theoretical approach would be of limited usefulness. A special effort has been made to use primary rather than secondary sources. The writer has had the opportunity to consult the diplomatic archives of the Government of Israel.

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Articles
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Israel Law Review , Volume 3 , Issue 4 , October 1968 , pp. 501 - 525
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1968

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References

1 In his report to the Secretary-General, Major-General Von Horn, Chief-of-Staff of the United Nations Truce Supervision Organization (hereinafter referred to as U.N.T.S.O.) described the topography of the Mount Scopus Demilitarized Zone as follows: “The Demilitarized Zone … extends for approximately 2000 meters on dominating ground running from north to south, about one kilometre north-east of the Old City of Jerusalem. It includes the areas designated as Hadassah Hospital, Hebrew University, Augusta Victoria [Hospital] and the village of Issawiya…. An extension from the main feature, running for approximately 500–600 meters in an east-north-easterly direction from the Hebrew University buildings, is known as Ras es Sullam (Salomons' Garden) …. The village of Issawiya is situated on high ground on another extension from the main feature at the north of the latter, also extending to the east-north-east, some 500 meters to the north of Salomons' Garden, from which it is separated by a valley.” U.N. Doc. S/4030 at 48, 7 June 1958. See also Meron, , “Public International Law Problems of the Jurisdiction of the State of Israel” (1961), 88 Journal du Droit International 987Google Scholar. Concerning the political attitudes of certain countries with regard to Jerusalem, see Mohn, , “Jerusalem and the United Nations”, International Concilliation No. 464 (Carnegie Endowment for International Peace) (October 1950)Google Scholar. Cf. Israel and the United Nations, National Studies on International Organization, Chap. 5 (Carnegie Endowment for International Peace) (1956)Google Scholar. Lauterpacht (Elihu), Jerusalem and the Holy Places (London, 1968)Google Scholar.

2 See Kippes, , Der Skopus-Berg in Jerusalem, Ein Beitrag zur Lehre von den Exklaven (A Dissertation submitted to the Julius-Maximilians University, Wurzburg) (1959)Google Scholar.

3 2 Oppenheim, International Law, 244, note 1 (7th ed., Lauterpacht, 1952)Google Scholar.

4 Ibid. For a more detailed discussion of the difference, see Erich, “La Question des Zones Démilitarisées” (1929) 26(i) Hague Academy, Recueil des Cours 591, at 600–04Google Scholar.

5 Handbuch des Völkerrechts, Zweite Abteilung—Neutralization, Befriedung, Entmilitarisierung 369 (1933)Google Scholar.

6 In Strupp-Schlochauer, , Wörterbuch des Völkerrechts 341 (1960)Google Scholar. See also Basdevant, , Dictionnaire de la Terminologie du Droit International 647–48 (Sirey, 1960)Google Scholar.

7 Op. cit. at 601.

8 Oppenheim, op. cit.

9 Erich, op. cit., at 601. See also Spears, , “Demilitarized Zones and European Security” in (1925) 87 The Advocate of Peace, 472–73Google Scholar.

10 Erich, op. cit., at 601. See the Projet de Réglement général des zones démilitarisées, proposed by the 23rd Conference of the Inter-Parliamentary Union, held in Ottawa in 1926, ibid., 613–14.

11 See e.g. Spears, op. cit., at 476.

12 Disarmament 295 (1926).

13 Introductory Note to the Model of Collective Treaties of Mutual Assistance and of Collective and Bilateral Treaties of Non-Aggression, drawn up by the Committee on Arbitration and Security. Report of the Third Committee of the League of Nations to the Assembly of the League (Rapporteur M. N. Politis) A.86(1) 1928 (IX) Annex 3, at 27.

14 U.N. Doc. S/801.

15 See General Assembly Resolution No. 186 (S–II), 14 May 1948.

16 The Truce Commission was established under the Security Council Resolution of 23 April 1948 (U.N. Doc. S/727), and was composed of representatives of those members of the Security Council which had career consular officers in Jerusalem. Belgium, France and the United States of America, Syria having indicated that it was not prepared to serve.

17 This resolution noted Israel's acceptance and the Arab States' rejection of prolongation of the truce and determined that the situation in Palestine “constitutes a threat to the peace within the meaning of Article 39 of the Charter”.

18 24 February 1949, 42 United Nations Treaty Series (hereinafter referred to as U.N.T.S.) 251. See, in general, Rosenne, , Israel's Armistice Agreements with the Arab States (1951)Google Scholar; Brook, , The United Nations and the Arab-Israel Armistice System (1964)Google Scholar; Bar-Yaacov, , The Israel-Syrian Armistice, Problems of Implementation 1949–1966 (1967)Google Scholar.

19 23 March 1949, 42 U.N.T.S. 287.

20 3 April 1949, 42 U.N.T.S. 303.

21 20 July 1949, 42 U.N.T.S. 327.

22 U.N. Doc. S/1025, para. 25.

23 Text in U.N. Doc. S/3015, 14 May 1953. This Agreement will be referred to hereinafter as the Demilitarization Agreement.

24 Hereinafter referred to as G.A.A.s.

25 For this Dr. Bunche was awarded the Nobel Peace Prize.

26 Thus, the Israel-Jordan G.A.A. states, in fine: “Done at Rhodes … in the presence of the United Nations Acting Mediator on Palestine and the United Nations Chief-of-Staff of the Truce Supervision Organization.” Underneath appear the signatures of the representatives of Israel and Jordan.

27 The special powers of the United Nations under art. V of the Israel-Syrian G.A.A. should, however, be mentioned. This article established an important Demilitarized Zone on the Israel-Syrian armistice lines. In addition to various specific powers granted to him by that article, the Chairman of the Mixed Armistice Commission was to be also “responsible for ensuring the full implementation of this article”. (Art V, para. 5 (c)). This was a very broad responsibility.

28 See e.g., Israel-Jordan G.A.A., art. XII.

29 Para. 6. See, in general, arts. 51, 53 and 57 of the Draft Articles on the Law of Treaties, prepared by the International Law Commission, G.A.O.R., Twenty-first session, Supp. No. 9. The Agreement said nothing about the credentials of the signatories, nor about the need for ratification. Compare with the Preambles to the G.A.A.s which referred to the appointment of “representatives empowered to negotiate and conclude an Armistice Agreement”. It may be noted that both Israel and Jordan subsequently regarded the Demilitarization Agreement as valid, and no questions about the full powers of the signatories have ever been raised.

30 The provisions relating to the outer limits of the Demilitarized Zone, and the division of the Zone into Israel and Jordanian sections are discussed below.

31 Para. 2.

32 Para. 3.

33 Similarly, the Chairman of the Israel-Syrian Mixed Armistice Commission established under the Israel-Syrian G.A.A. was empowered to authorize “the employment of limited numbers of locally recruited civilian police in the [demilitarized] zone”. Art. V, para. 5(e).

34 Para. 3. According to the Flag Code adopted by the Secretary-General in accordance with the General Assembly Resolution 167(II) of 20 October 1947, the United Nations flag may be flown not only from property occupied by the United Nations, but may be used “by any unit acting on behalf of the United Nations such as any Committee or Commission or other entity established by the United Nations, in such circumstances not covered in this Code as may become necessary in the interests of the United Nations”. Para. 4(2). According to the Flag Regulations issued by the Secretary-General unde r the above Resolution, “When the United Nations Flag is displayed with one or more other flags, all flags so diplayed should be displayed on the same level and should be of approximately equal size”. General Provisions, para. 1(c). The United Nations Flag Code and Regulations, as amended 11 November 1952, published by the United Nations, Jan, 1958.

35 Para. 4.

36 Ibid.

37 Ibid.

38 Ibid.

39 Para. 2.

40 Ibid.

41 Para. 3.

42 Para. 5.

43 U.N. Doc. S/902.

44 See Preamble. This “direction” was apparently based on the authority granted the United Nations by the Demilitarization Agreement to control the access to the Demilitarized Zone. It is clear that the Senior Observer could not have directed but only urged Israel and Jordan to conclude this (interpretation) agreement.

45 Para. 1.

46 Para. 4.

47 Ibid.

48 Para. 4.

49 Para. 4(e).

50 Para. 5(d).

51 From unpublished materials in the files of the Israel Ministry for Foreign Affairs.

52 Memorandum submitted to the Secretary-General by the U.N.T.S.O. Chief-of-Staff (General Burns) concerning complaints by Israel of non-compliance by Jordan with the provisions of art. VIII of the G.A.A. U.N. Doc. S/3596, Annex VI, 9 May 1956.

53 U.N. Doc. S/1907.

54 U.N. Doc. S/3596, n. 52 above.

55 Ibid.

56 Report of the U.N.T.S.O. Acting Chief-of-Staff (Colonel Leary), U.N. Doc. S/3913, para. 7, 31 Oct. 1957.

57 U.N. Doc. S/3596, n. 52 above.

58 U.N. Doc. S/3913, para. 7, 31 Oct. 1957.

59 Ibid.

60 U.N. Doc. S/3913, n. 58 above, para. 11.

61 Letter of the U.N.T.S.O. Chief-of-Staff (General Riley) addressed to the Secretary-General, U.N. Doc. S/2388, para. 28, 3 Nov. 1951.

62 While the United Nations was a Party to the Demilitarization Agreement, it may be observed, in passing, that the Agreement itself used the word “Party” only in relation to Israel and Jordan, while the United Nations was referred to simply as “United Nations”. Thus, the “United Nations” agreed to limit the population of the village of Issawiya, to which no additions were to be made “except by agreement of both parties”. Para. 4.

63 U.N. Doc. S/2388, n. 61 above, para. 29. See also the letter of General Riley of 30 October 1952, addressed to the Secretary-General, U.N. Doc. S/2833, para. 36.

64 See also U.N. Press Release No. SG/635, 5 Dec. 1957, issued concerning the Secretary-General's visit to Israel and Jordan in December 1957.

65 Published as U.N. Press Release No. SG/653, 18 Jan. 1958.

66 See also U.N. Press Release No. SG/635, 5 Dec. 1957.

67 See last sentence in sub-para, (b).

68 Thus, Mr. Andrew Cordier visited Mount Scopus in 1958 as a specially designated representative of the Secretary-General (U.N. Doc. S/4030/Add. 1 at 2, 28 July 1958). However, the Spinelli-Rikhye Mission was not undertaken within the framework of the Urrutia Agreement but was of a more general scope. The Secretary-General's announcement of 25 February 1965 concerning the Report of the Mission points out that “The Mission was instructed to study the situation on both sides of the [Armistice Line] and to consult with the two Governments about the causes and nature of the recent incidents and about means of avoiding recurrence of them”. (U.N. Press Release No. SG/SM/257, PAL/968). See also U.N. Press Release No. SG/A/20, 30 Jan. 1965, about the appointment by the Secretary-General of a special mission “to study Jordan-Israel border incidents”.

69 This was apparent from Dr. Urrutia's opening sentence: “I have noted that in the course of the negotiations the two Governments concerned explained to me their position in the following terms”.

70 Art. 2 para. 1 (a). See Report of the International Law Commission on the work of its eighteenth session. U.N. General Assembly, 21st Sess., Official Records, Supp. No. 9 (1966).

71 Para. 1.

72 See art. VII and Annex II.

73 The date of 8 July, rather than 7 July, seems to have been mentioned because while the Agreement itself was hastily drafted (on an envelope!) on 7 July, it was ready for signature, in typed form, and actually signed on 8 July.

74 Report “on the Firing Incident on 26 May 1958”, addressed to the Secretary-General, U.N. Doc. S/4030, para. 80, 7 June 1958. See also para. 86. Regarding other difficulties which have arisen as a result of the map controversy, see ibid., paras. 28, 83, 84, 90, 91. See also the Report of the U.N.T.S.O. Chief-of-Staff (General Burns) addressed to the Secretary-General, U.N. Doc. S/3632, Annex I at 6, 3 Aug. 1956.

75 Statement in the Knesset on 28 May 1958: 24 Divrei HaKnesset 1926.

76 For a similar reference by the Israel Foreign Minister, see U.N. Doc. S/4030, n. 74 above, para. 89.

77 It may be observed that U.N.T.S.O. considered private ownership as a relevant factor in the delimitation of areas of unrestricted Israel civilian activity in the Demilitarized Zone established by art. V of the Israel-Syrian G.A.A.

78 Neither did the first truce agreement of 16 June refer to Mount Scopus (Text in U.N. Doc. S/845, 21 June 1948), but the 16 June map showed the Jewish-held area on Mount Scopus (including Issawiya) and the surrounding no-man's-land.

79 Para. 1.

80 U.N. Doc. S/1025, para. 25, 16 Sept. 1948.

81 Para. 2.

82 Para. 4.

83 Para. 3.

84 Para. 4.

85 Ibid.

86 Repor t of the U.N.T.S.O. Chief-of-Staff (General Riley) to the Secretary-General, U.N. Doc. S/3015, para. 3, 14 May 1953. General Riley adds that the “Jewish section” includes the Hadassah Hospital and the Hebrew University (idem para. 4) as well as the British Memorial War Cemetery, ibid, paras. 6–7.

87 See further below, pp. 522–24.

88 See the letter addressed by the Acting Director-General of the Israel Foreign Ministry to General Riley, dated 16 June 1953, and transmitted by the latter to the Secretary-General by cablegram dated 19 June 1953, U.N. Doc. S/3040.

89 Para. 4.

90 Ibid.

91 On 1 May 1950, the United Nations Refugee Welfare Agency, which had been advised by the U.N.T.S.O. that the operation of the Hospital was not authorized under the terms of the 7 July 1948 Agreement, took over the operation of the Hospital, with the understanding that Israel could at any time require the disestablishment of the Hospital. Unpublished materials in the files at the Israel Foreign Ministry.

92 U.N. Doc. S/3015, n. 86 above, para. 12.

93 U.N. Doc. S/3040, n. 88 above, para. 4. Many protests on this subject were addressed by the Israel Foreign Ministry to the U.N.T.S.O. in diplomatic correspondence which has not been published.

94 U.N. Press Release No. SG/653, 18 Jan. 1958.

95 Para. 4.

96 U.N. Doc. S/3015, n. 86 above, para 9.

97 Ibid, paras. 9–10.

98 U.N. Doc. S/3040, n. 88 above, para. 3.

99 U.N. Doc. S/3015, n. 86 above, para. 9. It may be observed that the argument, sometimes made by Israel representatives, that the words “present population“ etc. were merely put in as a façcon de parler, was not accepted by the U.N.T.S.O.

100 Para. 4.

101 The Israel thesis that the Shaltiel-el Tel Agreement related to 150 persons rested particularly on two contemporary United Nations documents (unpublished): (a) On 14 October 1948, Commander Trieste of the United Nations issued the following order: “150 Arab civilians unarmed are allowed to stay in the Issawiya village.” (b) In response to an Israel complaint of 12 October 1948 that the population of Issawiya exceeded the 150 persons who were allowed to return to the village, the Senior Observer, Jerusalem (Arab side), in a formal report submitted to the “Senior Observer, Jerusalem”, stated that the investigation carried out by Commander Sutherland showed that “apparently, a number of refugees are being cared for throughout the village, and [the population of the village] has increased since the originally estimated 150. The problem of refugees is acute, and it would be needlessly heartless to expel any…”.

102 Para. 4.

103 Para. 2.

104 Plan for the Mount Scopus Convoy, para. 5(b).

105 Thus, General Riley stated in his report to the Secretary-General of 14 May 1953 that when need arose to destroy the mines remaining in the British Memorial War Cemetery, which formed part of the Jewish section, he “requested the Jordan representative to authorize a demining team of ten Israeli soldiers to proceed to Mount Scopus”. U.N. Doc. S/3015, n. 86 above, para. 7. This authorization was requested probably as soldiers were involved. The Jordan representative refused to agree.

106 The sovereign rights of Israel over its section, except for the area between the lines of the 7 July map and the 21 July map, were not questioned by the United Nations. Thus, the U.N.T.S.O. Chief-of-Staff, General Von Horn, stated that “the question of existence or non-existence of sovereign rights in the area between the ‘7 July’ and ‘21 July’ lines, which has become a burning question, could be left in abeyance until further agrement”. Ergo, the question of sovereignty was clearly within the smaller limits of the 21 July map. U.N. Doc. S/4030, n. 74 above, para. 93 (e).