The Israeli Behavior Toward Al-Aqsa Mosque In The Eyes Of International Law
The violation of the sanctity of the holy sites and the ongoing breaching of the right to freedom of worship has become a major and well-established part of Israeli policy in the occupied Palestinian territories. since the occupation of Jerusalem, Israel has insisted on disturbing the spiritual atmosphere and the inner peace of the holy city, by intimidating the worshipers there. The scene of the attacks on devotees and visitors to the blessed Al-Aqsa Mosque by the Israeli occupation forces is repeated every year without any deterrent or supervision. These violations have affected all groups, the elderly, women, children, and even people with special needs. The Israeli policy of breaking into one of the most sacrosanct places for Muslims provokes the feelings of more than one and a half billion Muslims around the world, it also increases the sensitivity of the situation on the ground in Palestine. This, in turn, may open the door to a possible escalation round whose impact may extend to the whole Palestinian land, just as happened in Ramadan last year, following the settlers’ storming of the Al-Aqsa Mosque. The holy places, with their religious symbolism and civilizational value among different sects and societies, impose on the international community an obligation to formulate laws and rules that would protect these areas and guarantee the freedom of worship in them.
There is no single international treaty concerned with protecting holy places and regulating freedom of worship in them until today, but this has been addressed within various international treaties and conventions, including the Hague Conventions of 1899 and 1907, the Universal Declaration of Human Rights, the four Geneva Conventions of 1949 and the two Additional Protocols of 1977, the European Convention Human Rights 1950 and the Arab Charter on Human Rights issued by the League of Arab States in 1945.
The city of Jerusalem, including the blessed Al-Aqsa Mosque (the first of the two Qiblah and the third of the two holy mosques), has a great status in the Islamic and Arab worlds, and the issue of vandalizing it or attacking worshipers within it provokes the ire of a wide range of Arab and Islamic governments. Based on what we mentioned previously and the importance of Jerusalem and its religious status, this article sheds the light on the legal status of the city of Jerusalem in international law, and then the international agreements that apply to it under the Israeli occupation will be reviewed, Finally, it discusses the issue of Israel’s international responsibility resulting from its storming the blessed Al-Aqsa Mosque.
The legal status of the city of Jerusalem in international law
The Palestinian territories occupied by Israel after the Six-Day War of 1967 are considered occupied territories from the point of view of international law, including East Jerusalem (see Security Council Resolution 242, 2334, Advisory Opinion of the International Court of Justice on the Apartheid Wall of 2004). Consequently, Israel is seen in those territories as an occupying power, and the laws that apply to the occupied Palestinian territories are the four Geneva Conventions of 1949. Israel is a member of the four Geneva Conventions, However, it refuses to apply the Fourth Geneva Convention to the occupied Palestinian territories, including East Jerusalem. Yet, given that the rules of international humanitarian law, including the four Geneva Conventions of 1949, have gained the status of customary international law, this makes them applicable to the occupied Palestinian territories, regardless of the Israeli rejection.
In principle, states in war can suspend part of the implementation of human rights if they are facing an emergency status, but according to the International Committee of the Red Cross, “a State cannot suspend or waive certain fundamental rights that must be respected in all circumstances. These include the right to life, the prohibition of torture and inhuman punishment or treatment, the outlawing of slavery or servitude, the principle of legality and the non-retroactivity of the law, and the right to freedom of thought, conscience, and religion“
Freedom of religion and freedom of access to religious sites are considered among the main human rights that may not be suspended or violated even during the application of the rules of international humanitarian law, therefore violations of freedom of worship in the occupied Palestinian territories are a subject of international human rights law. In sum, both international humanitarian law and international human rights law are applicable to the city of Jerusalem from an international law perspective.
Protection of sanctities, the right to freedom of worship within the framework of international law, and the Israeli behavior towards Jerusalem in this light
The Palestinian inhabitants of the occupied West Bank and Gaza Strip are “Protected Persons” under the Fourth Geneva Convention. They are qualified for extensive protections under the laws of war. Article 27 of the Fourth Geneva Convention regarding the freedom of worship and worshipers states the following:
” [p]rotected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs.”
While Article 56 of the Fourth Hague Convention of 1907 affirmed that the religious sites must be treated as private property. it states: ” The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.” As stated in Article 18 of the Universal Declaration of Human Rights in 1948: “Everyone has the right to freedom of thought, conscience, and religion.”
Moreover, Article 18 of the Universal Declaration of Human Rights in 1948 states that: “Everyone has the right to freedom of thought, conscience, and religion.”
It can be summed up from these three articles that states have a set of commitments in relation to the holy places, namely: providing a Protection of the holy places, the freedom of practicing religious rituals, and the freedom of access to holy places.
Israel violates these three obligations through its policy by keeping attacking worshipers inside the courtyards of the Al-Aqsa Mosque. supplementary to this, the repeated scenes of breaking and sabotaging the mosque’s facilities and property, in addition to preventing a large number of Palestinians from the West Bank and the other occupied territories from reaching Al-Aqsa Mosque to pray there.
The Israeli international responsibility for its violations in Al-Aqsa Mosque
In order to impose international responsibility on a state, a state has to conduct action or omission that results in an internationally wrongful act that violates a rule established in accordance with international law, and this illegal act should be attributable to that state under international law.
The Israeli occupation police have violated its international obligations by attacking the worshipers in Al-Aqsa Mosque, as well as failing to provide protection for these holy places from the breaches and raids of settlers, in addition to preventing a large number of Palestinians in the West Bank and the occupied territories from accessing the holy sites in Jerusalem. All of this violates Israel’s international obligations under the 1907 Hague Conventions, 1949 Geneva, and Article 18 of the Universal Declaration of Human Rights. Therefore, on the one hand, Israel’s responsibility here arises from a wrongful act represented in attacking the worshipers and preventing others from reaching the Al-Aqsa Mosque, and on the other hand, Israel must hold accountable for an omission by not providing the necessary protection to Al-Aqsa Mosque and the holy sites in the face of the settlers’ attacks and raids.
Given that the actions issued by the Israeli occupation police are in accordance with instructions issued by the Israeli executive authority, the actions carried out by the police can be attributed to the Israeli government. Thus, the two main conditions for holding Israel internationally accountable for its wrongful acts were fulfilled. This, in turn, entails an international responsibility on Israel, which is to restore the situation to what it was before (restitution) and to redress the material and moral damage inflicted on the Palestinians as a result of the illegal acts committed by Israel during its storming of the blessed Al-Aqsa Mosque ( compensation, rehabilitation, satisfaction).
By ignoring the application of international law and United Nations resolutions, Israel has always promoted the theory that it is a state above the law, and through this policy, it seeks to complete its occupation of all Palestinian territories and expel Palestinians from them by all means. The scene of the attack on the holy sites and worshipers in Al-Aqsa Mosque is one of the main headings of this approach, which is implemented by Israel in a deliberate and planned manner to put extra pressure on the Palestinian communities living there by creating an inconvenient environment for life, that will eventually push them to leave their lands for the favor of the Jewish settlers.
In light of all this, the international community has a moral and legal responsibility to act urgently and take all necessary measures to stop the continuous Israeli violations of the holy places and put an end to its repeated attacks on worshipers in the city of Jerusalem. The United Nations and its main institutions represented by the General Assembly and the Security Council must take the initiative to adopt legal decisions and measures aimed at deterring Israel from continuing its policy of violating sanctities and attacking worshipers. In this regard also, it is imperative for the Organization of Islamic Cooperation and the League of Arab States to take a more firm stance and issue assertive decisions that enhance the steadfastness of the Palestinians in general and the inhabitants of Jerusalem in particular.