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WRITTEN STATEMENT
submitted by the Republic of Türkiye
to
the International Court of Justice
regarding
the request of the United Nations General Assembly for an advisory opinion from the International Court of Justice on the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including the East Jerusalem
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I. INTRODUCTION
The question of Palestine has reached a point that calls for active engagement from international community. While Israeli occupation of the Palestinian territory turned into annexation in reality, there is growing frustration not only on the Palestinian side but also among the international community.
The Middle East Peace Process which was designed towards a just and lasting two-state solution, seems to be shelved. There has been no initiative to ensure implementation of the past agreements signed between the Israeli and Palestinian sides for too long. The State of Palestine is confronted with extremely severe economic conditions which compound adverse effects of the unilateral actions by Israel in the Occupied Palestinian Territory, including East Jerusalem.
Lack of strong political will or even interest among the international community to address the root causes of the conflict creates a sense of injustice on the Palestinians. International community needs to step in effectively to help sort out the Israel-Palestine conflict in accordance with international law.
The purpose of the United Nations is to maintain international peace and security. As long as the Israel-Palestine conflict remains unresolved, the expectations from the United Nations to address it in a decisive manner will continue.
Despite the resolutions that the UN Security Council has adopted up until now regarding the Israel-Palestine conflict (242 (1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002), 1515 (2003) and 1850 (2008), 2334 (2016)), the facts on the ground have not changed. Day in and day out, Israel’s unlawful unilateral actions, that are considered null and void in many of the UN resolutions, are taking root on the ground, putting the two-state vision in jeopardy.
As a matter of fact, unlawful settlement activity has intensified to the extent that it is now extremely difficult to mention the contiguity of the Occupied Palestinian Territory. Transfer of Israeli population in the form of settlements has been changing the demographic composition of the Occupied Palestinian Territory each day. Demolitions of houses of Palestinian people as well as forcible evacuations accompany unlawful settlements. These acts continue with the support of the Israeli security forces.
Türkiye believes that there is no alternative to a peace process for reaching a just, lasting and comprehensive settlement, and therefore suggests that parties to the conflict should remain focused on this path.
Türkiye has always been a staunch supporter of the Middle East Peace Process towards a just and lasting two-state solution. Türkiye believes that the two-state vision provided for in previous agreements based on pre-1967 lines should continue to be the shared objective of the
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international community. The current situation in the Israeli-Palestinian conflict is not sustainable.
Türkiye understands the circumstances surrounding the efforts by the State of Palestine seeking justice through international organizations and international courts.
The United Nations General Assembly adopted resolution A/RES/77/247 on 30 December 2022, requesting the International Court of Justice (ICJ) to render an advisory opinion, based on Article 96 of the Charter of the United Nations and Article 65 of the Statute of the ICJ, on the following questions:
(a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?
(b) How do the policies and practices of Israel referred to in paragraph 18 (a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?
This written statement is provided pursuant to the Court’s Order of 6 February 2023 in accordance with Article 66 paragraph 2 of the Statute of the International Court of Justice.
The scope of the questions put to the ICJ is undoubtedly wider, but the written statement by Türkiye will focus on the historical status quo in the holy places within the broader context of the status of Jerusalem. Republic of Türkiye wishes to confirm that this written statement does not affect its position on any other issues unrelated to the current request of the General Assembly for an advisory opinion of the Court.
Located in East Jerusalem, Al-Aqsa Mosque compound (or Haram al-Sharif, hereinafter used interchangebly) is one of the three holiest sites for Muslims around the world.
Türkiye is of the opinion that historical status quo in Haram Al-Sharif should be observed and breaches of the said status quo must be ended. As recently as 4 April 2023, Israeli security forces stormed the Al-Aqsa Mosque, beat up worshippers and detained hundreds of them altogether during the month of Ramadan. This kind of brutal practice is becoming commonplace.
While Muslim worshippers face the treatment above, Israeli security forces continue their stormings in Haram Al-Sharif to provide shelter for the Jews who enter the compound in breach of the status quo.
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II. BACKGROUND A. The Status Quo Arrangement of the Holy Places in Jerusalem Al-Aqsa Mosque compound (or Haram Al-Sharif) is the name of the space and land that is surrounded by walls on all four sides with a total area of more than 144.000 m². The compound includes the Al-Aqsa Mosque, the Dome of the Rock and all of the buildings, courtyards, walls and environs above and beneath the ground. The status quo at the holy places in Jerusalem, including in Al-Aqsa compound, was established by Ottoman Sultans through their firmans (imperial orders). These firmans were issued due to the recurring disagreements between Christian rites regarding their claims on Christian holy places. For example, the purpose of the firman, published by Sultan Abdülmecid I of the Ottoman Empire in 1852, was to “describe and endorse the status quo existing between the Greek and Latin churches with regard to ownership of and prayer rights at the Christian holy sites in Jerusalem.” The Treaty of Paris (1852) between Great Britain, France, the Ottoman Empire, Sardinia and Russia, in the Article 9, refers to this firman and recognize it internationally, “His Imperial Majesty the Sultan having, in his constant solicitude for the welfare of his subjects, issued a Firman, which, while ameliorating their condition without distinction of Religion or of Race, records his generous intentions towards the Christian population of his Empire, and wishing to give a further proof of his sentiments in that respect, has resolved to communicate to the Contracting Parties the said Firman, emanating spontaneously from his Sovereign will.” Likewise, in the Treaty of Berlin (1878) between the Ottoman Empire, Great Britain, Austria-Hungary, France, Germany, Italy, Russia, Article 62 states that “… it is well understood that no alterations can be made in the status quo in the Holy Places….” not only presenting international recognition of the Status Quo in the holy places, but also extending the Status Quo to include all holy sites under the Ottoman rule. By the imperial orders of the Ottoman Sultans, Haram Al-Sharif was a holy shrine used exclusively by Muslims. Therefore, this was the status quo established in Haram Al-Sharif in its entirety including all its buildings and environs.
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Following the Ottoman era, the League of Nations placed Palestine under British Mandate. Article 13 of the Mandate for Palestine reads:
‘All responsibility in connection with the Holy Places and religious buildings or sites in Palestine, including that of preserving existing rights and of securing free access to the Holy Places, religious buildings and sites and free exercise of worship, while ensuring the requirements of public order and decorum, is assumed by the Mandatory, who shall be responsible solely to the League of Nations in all matters connected herewith, .... nothing in this mandate shall be construed as conferring upon the Mandatory authority to intervene with the fabric or the management of purely sacred shrines, the immunities of which are guaranteed.’
The British Inquiry Commission (December 1930), with the approval of the Council of the League of Nations, determined the rights and claims of Moslems and Jews in connection with the Western Wall at Jerusalem. The report stated that,
“That the ownership of the Wall as well as the possession of it and of those parts of its surroundings belong to the Moslems and that the Wall itself, as an integral part of Al-Haram-Esh-Sharif area, is Moslem property. ... it has emerged that the pavement in front of the Wall, …, is also Muslim property.”
thereby upholding the status quo in the Muslim holy site. Haram Al-Sharif, considered sacred by Muslims around the world, has been a Muslim shrine belonging to Muslims only.
This represents the historical status which forms the basis for the assessment of the legal consequences of Israeli violations and provocations against the holy sites after the occupation in 1967.
B. Occupation of the Palestinian territories and annexation of Jerusalem by Israel
By the resolution 181 of 29 November 1947, the General Assembly adopted the Plan of Partition that provided for independent Arab and Jewish states in Palestine where the mandate for Palestine would be ended no later than 1 August 1948.
The plan placed Jerusalem under international regime. The United Nations Trusteeship Council was authorized for that purpose. However, as the result of the already known developments, the State of Israel was proclaimed on 14 May 1948, one day before the official termination of the British mandate in Palestine. The ensuing conflict resulted in Israel controlling more territory than under the Plan of Partition. An armistice line known also as “green line” came into being.
On 5 June 1967, Israel launched a military offensive and, as far as Occupied Palestinian Territories are concerned, occupied Gaza Strip and the West Bank, including East Jerusalem as well. In the following period, several UN Security Council Resolutions (242 (1967), 252 (1968), 267 (1969), 298 (1971)) and UN General Assembly Resolutions affirmed that acquisition of territory by military conquest is inadmissible under the international law and “confirmed that all legislative and administrative measures and actions taken by Israel which
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purport to alter the status of Jerusalem, including expropriation of lands and properties thereon, are invalid and cannot change that status.”
Furthermore, the UN Security Council “censured in the strongest terms all measures taken to change the status of the City of Jerusalem”.
UN General Assembly in its resolution 2253 (ES-V) of 4 July 1967 also considered measures taken by Israel to change the status of the City of Jerusalem invalid and called upon Israel to rescind all measures already taken and to desist forthwith from taking any action which would alter the status of Jerusalem. UN General Assembly resolution 2254 (ES-V) of 14 July 1967 reiterated this call.
On 30 July 1980 Israeli Knesset adopted “Basic-Law: Jerusalem the Capital of Israel” proclaiming “The complete and united Jerusalem is the capital of Israel.”, which asserts a clear change into the character and status of the city of Jerusalem.
The UN Security Council Resolution 478 (1980) affirmed that:
“the enactment of the "basic law" by Israel constitutes a violation of international law” and “Determines that all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the recent "basic law" on Jerusalem, are null and void and must be rescinded forthwith”
UN Security Council also
“censured in the strongest terms the enactment by Israel of the “basic law” on Jerusalem and the refusal to comply with relevant Security Council resolutions”;
“determined that all legislative and administrative measures taken by Israel, the occupying power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the recent “basic law” on Jerusalem, are null and void and must be rescinded fortwith”;
and furthermore,
“decided not to recognize the “basic law” and such other actions by Israel that, as a result of this law, seek to alter character and status of Jerusalem…”.
The Council of Ministers of the Republic of Türkiye declared that Türkiye would not accept this fait accompli in any way whatsoever and recalled its Chargé d'Affaires in Tel Aviv for consultations on 31 July 1980. This step was followed by the decision to close Turkish Consulate General in Jerusalem on 28 August 1980.
In the same vein, the UN General Assembly in several resolutions regarding the adoption of “basic law” expressed its strong rejection of any changes to the status of Jerusalem.
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“(a) Not to recognize any changes to the pre-1967 borders, including with regard to Jerusalem, other than those agreed by the parties through negotiations, including by ensuring that agreements with Israel do not imply recognition of Israeli sovereignty over the territories occupied by Israel in 1967;
(b) To distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”
Türkiye
Türkiye is deeply concerned by the Türkiye rejects
ers’ access to it
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’s holy sites.
In 1982, UNESCO’s World Heritage Committee decided to inscribe the Old City of Ministry of Foreign Affairs of the Republic of Türkiye dated 5 April 2023, Türkiye Türkiye believes that this kind of attacks against worshippers in al . Therefore, Türki . Israeli authorities have limited Palestinians’ access to Aqsa’s administration belongs to Muslim
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recognized Jordan's role in managing the Jerusalem holy sites. According to the 2013 Agreement: “C.to administer the Islamic Holy Sites and to maintain them so as to (i) respect and preserve their religious status and significance; (ii) reaffirm the proper identity and sacred character of the Holy Sites; and (iii) respect and preserve their historical, cultural and artistic significance and their physical fabric” 1994 Jordan-Israel Peace Treaty also acknowledges the role of the Hashemite Kingdom of Jordan in Jerusalem’s Holy Sites. Article 9 of the Jordan-Israel Peace Treaty of October 26th, 1994 stipulates that: “Israel respects the present special role of the Hashemite Kingdom of Jordan in Muslim holy shrines in Jerusalem”.
In 2016, UNESCO passed one of its most important resolutions regarding Al-Aqsa Mosque. The resolution strongly condemned Israel’s escalating aggression and illegal measures against the Al-Aqsa waqf and its personnel - including guards, religious figures, and Muslim worshippers generally - called for the restoration of access for Muslims to their holy site, and demanded that Israel respect the historical status quo and immediately cease attacks and abuses that inflame tensions. Although the Waqf should be responsible for the access into Al-Aqsa, in the current situation, Israeli occupation forces control all entrances into the compound, stationing, as mentioned above, inside the compound. Mr. Itamar Ben-Gvir, Israel's National Security Minister, stormed Al Aqsa Mosque compound on 3 January 2023 and this led to the convening of an emergency meeting of the UN Security Council about Al-Aqsa Mosque on 5 January 2023. Khaled Khiari, Assistant Secretary-General for Middle East, Asia and the Pacific at the UN Secretariat, in his address to the Security Council members in the aftermath of Israeli Minister of National Security Mr. Itamar Ben-Gvir’s 3 January storming of Al-Aqsa, stated that the visit is seen as particularly inflammatory given the Minister’s past advocacy for changes to the status quo and also noted that this was the first visit to the site by an Israeli minister since 2017, he added that the visit was sharply condemned by the Palestinian Authority and others as a provocation while Israel’s Prime Minister as well as senior Government officials emphasized commitment to upholding the status quo. In the background of the actions of some members of the Israeli government, at the 9263rd meeting of the Security Council (20 February 2023), the President of the Security Council once more reiterated its call for, inter alia, preserving the status quo at the holy sites in Jerusalem:
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“The Security Council calls for upholding unchanged the historic status quo at the holy sites in Jerusalem in word and in practice, and emphasizes in this regard the special role of the Hashemite Kingdom of Jordan.” In total disregard of the international calls for upholding the historical status quo at the holy sites in Jerusalem, Israeli Minister of National Security Mr. Itamar Ben-Gvir stormed the Haram Al-Sharif for a second time in his capacity as Minister on 21 May 2023 after which, referring to Haram Al-Sharif, he said “it should be said that the police are doing a wonderful job here and once again prove who owns it in Jerusalem. … we are the owners of Jerusalem and the whole land of Israel.” Several resolutions of the United Nations Human Rights Council also expressed grave concern at the restrictions imposed by Israel that impede the access of Christian and Muslim worshippers to holy sites in Occupied Palestinian Territory, including East Jerusalem. Human Rights Council Resolutions demanded Israel, the occupying power, cease all illegal actions in the Occupied Palestinian Territory, including East Jerusalem, including excavations in and around religious and historic sites and all other unilateral measures aimed at altering the character, status and demographic composition of the territory as a whole, all of which have, inter alia, a grave and detrimental impact on the human rights of the Palestinian people and the prospects for a just and peaceful settlement. On various occasions, Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, spoke out against the restriction of access of Palestinian worshippers to the Al-Aqsa Mosque compound, condemned the violent incursions by Israeli forces into Haram Al-Sharif and the attacks on Palestinian worshippers at Al-Aqsa Mosque as well as calling out the attempts to erase the Palestinian character of what is left of Palestinian ancestral land, and the conversion or closure of sites representing Palestinian cultural, political and religious identity. The UN High Commissioner for Human Rights also highlighted these issues. iii) Excavations and Maintenance The Jerusalem Islamic Waqf is the only organ which is entitled to administering, maintaining and preserving the Al-Aqsa Mosque and its facilities. In this respect, excavations and maintenance can only be carried out by the Waqf. Nevertheless, Israel has conducted many illegal and unauthorized excavations. The United Nations Educational, Scientific and Cultural Organization (UNESCO), in its numerous decisions, reiterated its call on Israel to end its illegal actions in the holy sites.
The relevant parts of the UNESCO resolution1 of 2016 are submitted below:
1 Decision 40 COM 7A.13 Old City of Jerusalem and its Walls (site proposed by Jordan) (C 148 rev)
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“Deeply concerned by the Israeli illegal archeological excavations and works conducted by the Israeli occupation authorities and settler groups in the Old City of Jerusalem and on both sides of its Walls and the failure of Israel to cease such harmful interventions, requests Israel to timely stop all such activities, in conformity with its obligations under the provisions of related UNESCO Conventions and recommendations;
Regrets the damage caused by the Israeli security forces on 30th October 2014 to the historic Gates and windows of the Qibli Mosque inside Al-Aqsa Mosque/ Al-Haram Al-Sharif, which is a Muslim holy site of worship and an integral part of a World Heritage Site;
Calls on Israel to stop the closure of Al-Rahmah Gate building, one of Al-Aqsa Mosque / Al-Haram Al-Sharif gates, and to allow all necessary renovation works thereof, in order to fix damage caused by the weather conditions;
Also calls on Israel to facilitate the immediate execution of all 19 Hashemite restoration projects in and around Al-Aqsa Mosque/Al Haram Al-Sharif;
Deplores the damaging effect of the Jerusalem Light rail (tram line) at few meters from the Walls of the Old City of Jerusalem which severely affect the visual integrity and the authentic character of the site and requests Israel to restore the original character of the site in conformity with its obligations under the provisions of related UNESCO Conventions and recommendations;
Also deplores the Israeli plan to build a two-line cable car system in East Jerusalem, the construction of the so called “Liba House” project in the Old City of Jerusalem, the demolition and new construction of the so-called Strauss Building, and the project of the Western Wall elevator, the digging of a Mamluk structure beneath the Western Wall, the excavations and construction of new levels underneath the Western Wall, and urges Israel to renounce to the above mentioned projects in conformity with its obligations under the provisions of related UNESCO Conventions and recommendations as well as UNESCO Decisions particularly the World Heritage Committee decision 37 COM 7A.26, 38 COM 7A.4 and 39 COM 7A.27 and to provide the World Heritage Centre with all related documentation in particular the documentation concerning the historic remains found at the above mentioned projects;
Expresses its deep concern regarding the initially approved plan for the so called “Kedem Center” a visitors centre near the southern wall of Al-Aqsa Mosque/Al-Haram Al-Sharif, which severally affects the visual integrity and the authentic character of the site and requests Israel to return the remains and to provide the relevant documentation thereof as well as to restore the original character of the site;
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Requests the Israeli authorities to allow unrestricted access of the competent national authorities including the Jordanian Waqf experts to safeguard the Old City of Jerusalem and both sides of its Walls;
…
Further regrets the damage by Israel, of the historic ceramics atop of the main gates of the Dome of the Rock and the damage of the historic gates and windows of the Qibli Mosque inside Al-Aqsa Mosque/Al-Haram Al-Sharif as well as the damage of Umayyad, Ottoman and Mamluk remains of the site of Mughrabi Gate Pathway and reaffirms, in this regard, the necessity to respect and safeguard the integrity, authenticity and cultural heritage of Al-Aqsa Mosque /Al-Haram Al-Sharif, as reflected in the Status Quo, as a Muslim Holy Site of worship and as an integral part of a World Cultural Heritage site;
…
Expresses its growing concern regarding the continuous, intrusive archeological demolitions and excavations in and around the Mughrabi Gate Ascent, and the latest excavation works conducted at the beginning of May 2015 at the Western Wall of Al-Aqsa Mosque/ Al-Haram Al-Sharif, and calls on Israel to stop such intrusive archeological demolitions and excavations, respect the Status Quo, and enable the Jordanian Waqf experts as a part of the competent authorities to maintain and safeguard the site in accordance with the relevant provisions of the UNESCO Conventions and Recommendations;” Access to and protection of places of worship and holy sites as well as excavations beneath and around Al-Aqsa Mosque have also long been subject of concern and recommendations of several UN human rights treaty bodies.
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III. CONCLUSIONS
The scope of the United Nations Security Council resolutions regarding the Israel-Palestine conflict and status of Jerusalem is of course wider than the focus of this submission. Measures by Israel aimed at altering the demographic composition, character and status of the occupied Palestinian territory, including East Jerusalem, includes, inter alia, construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international law and the relevant UN General Assembly and Security Council resolutions.
As there is extensive coverage of the issues in the UN resolutions as well as statements made by member and permanent observer states and international organizations, Türkiye would like to refer thereto to avoid repetitions except expressing that these unilateral acts and measures aimed at changing the status and character of the Occupied Palestinian Territory, including East Jerusalem, constitute breach of international law and must be unconditionally and immediately rescinded.
In light of the preceding and recalling the relevant resolutions of the United Nations General Assembly and Security Council, the Republic of Türkiye respectfully calls upon the International Court of Justice to declare the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, are illegal under international law. Israel should restore the historical status quo in the holy places in Jerusalem permanently.
The Republic of Türkiye reiterates its firm support to a negotiated two-state solution based on the UN resolutions and to the establishment of an independent, sovereign and contiguous State of Palestine on the pre-5 June 1967 lines, with East Jerusalem as its capital.
On Behalf Of The Republic of Türkiye
Pınar Gülün Kayseri
Minister-Counsellor and Charge d’Affaires a.i. of the Embassy of the Republic of Türkiye to
The Kingdom of the Netherlands
Written statement of Türkiye