Israeli Measures in the Jerusalem Area in Response to Palestinian Terrorism –
Legal Aspects

August 10, 2001

Following a series of terrorist atrocities, including the bombing of a Jerusalem pizza restaurant killing 15 and injuring over 130, children, men, and women, and the continued failure of the Palestinian side to take any practical measures to comply with its obligation to prevent such terrorism, Israel has undertaken a number of defensive measures in the Jerusalem area.

Contrary to Palestinian allegations that Israel is "reoccupying" the territories, no territory has been reoccupied. Rather, these very specific measures are intended to prevent certain buildings from being used for terrorist activity, and to encourage the Palestinian leadership to act in accordance with its obligations under the Israeli-Palestinian Agreements. As detailed below, Israel’s measures are in full compliance with these agreements, and with Israel’s right of self defense under international law.

The measures taken relate to the District Governor’s Compound in Abu Dis, and to the Orient House in Jerusalem.

District Governor’s Compound in Abu Dis

Israeli forces have taken control of the District Governor’s Compound and a number of adjacent buildings which have been serving as headquarters for Palestinian security organs, including Force 17, Palestinian Police, Intelligence branches, and so on.

These Palestinian forces have been organizing and instigating terrorist activities. In doing so, they have failed to comply with their obligations under Israeli Palestinian agreements (including, among many others: "combating terrorism and violence, and preventing incitement to violence", Interim Agreement Annex I, Article IV.1.f; and making known "its policy of zero tolerance for terror and violence", Wye River Memorandum II.A.1). Moreover, they have violated the cardinal Palestinian undertaking to "renounce the use of terrorism and other acts of violence" and "resolve all outstanding issues through negotiation" (letter from Yasser Arafat to Yitzchak Rabin, September 9, 1993). Finally, the decision of the Palestinian leadership to reject negotiations and to adopt a strategy of terrorism, flouts the first recommendation of the Mitchell Commission Report, calling on the parties to "immediately implement an unconditional cessation of violence".

In taking control of buildings used for terrorist activity, Israel has been acting in full compliance with its agreed responsibilities under the Israel-Palestinian agreements. Under these agreements, the areas in question are designation as Area B and C. In Area B the Palestinian Police have responsibility for public order for Palestinians, but all other security responsibilities, including counter-terrorism, are Israeli responsibilities (Interim Agreement, Annex I, Article V.3). In Area C all security responsibilities, including those for public order, rest with Israel (Interim Agreement, Annex I, Article V).

The Interim Agreement provides that Israel has the right to take security measures in these areas, and even more so, that it is required to do so where necessary to protect Israelis. Article XII states explicitly that Israel has the responsibility for overall security of Israelis and Settlements, and will have all the powers to take the steps necessary to meet this responsibility (emphasis added)

In addition to its rights and obligations under the Israeli-Palestinian agreements, Israel has also acted in accordance with established principles of international law, including most particularly the principle of self-defense. Indeed it is hard to imagine a case in which the right of a state to take measures to defend itself and its citizens from immediate attack could be more manifest.

Accordingly the steps taken by Israel to ensure that the Abu Dis buildings are not used to coordinate and perpetrate acts of terror are permitted – and indeed required – by the Israeli-Palestinian agreements and international law.

Orient House

Israel has responded to prevent the operation of Palestinian Authority offices in the Orient House in Jerusalem in direct violation of the Israeli-Palestinian agreements.

Palestinian allegations of "reoccupation" in this regard are unfounded, since the Israeli-Palestinian agreements specifically provide that Jerusalem is excluded from Palestinian jurisdiction (Interim Agreement, Article XVII.1)

Moreover, the Interim Agreement states that all PA offices can only be located in areas under Palestinian territorial jurisdiction in the West Bank and Gaza Strip (Interim Agreement Article I.7). However, notwithstanding this provision, "official" Palestinian offices have been located in the Orient House despite repeated Palestinian undertakings to the contrary (e.g. "Exercise of the Palestinian governmental activity, and location of Palestinian governmental offices, will be as specified in the Interim Agreement", Note for the Record attached to Hebron Protocol).

In addition to violating the agreed arrangements regarding the location of Palestinian offices, the frequent meetings held at the Orient House between Palestinian official and foreign diplomats also violate the general prohibition on the exercise of foreign relations contained in Article IX of the Interim Agreement.

In should be emphasized that Israel has no objection to the presence of legitimate Palestinian institutions serving the needs of the Palestinian population of Jerusalem. Indeed, a letter confirming this position was sent by Foreign Minister Peres to Norwegian Foreign Minister Holst in 1993. This letter, however, clearly referred only to the "economic, social, educational, and cultural" institutions of the local population, and did not countenance either political activity, or other activities on behalf of the Palestinian Authority. Neither this letter nor any other Israeli statement of support for local Palestinian institutions can serve to justify breaches of explicit and agreed obligations.