The Holy City in Human Dimensions
| DOI | 10.1177/016934410802600203 |
| Author | Yehezkel Lein |
| Date | 01 June 2008 |
| Published date | 01 June 2008 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 26/2, 199–233, 2008.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 199
THE HOLY CITY IN HUMAN DIMENSIONS
e Partition of Jerusalem and
the Right to Social Security
Y L*
Abstract
In the failed nal -status negotiations that Israel and the Palestinian Authorit y held in
2000, the sides reached agreement on the main parameters of a solution on the question
of Jerusal em. However, both sides ignored the fact that according to these parameters,
East Jerusalem Palestinians would be denied almost comple tely their social security
entitlements under the Israe li social security system. is articl e argues that, regardless
of what will be agreed in any future agreement, according to international human rights
law, Israel would continue to bear at least so me responsibility for ensur ing the right to
social secur ity of Palestinian Jerusalemites, even though they live outside its ter ritory.
Moreover, a sweeping denial of social security benets would also be deemed a violation
of the right of property unde r Israeli constitutional law.
1. INTRODUCTION
Jerusalem has been at the heart of t he Israeli-Palestinian con ict, at least since Israel
annexed the east ern part of t he city in 1967. Isr aeli governments have for decades
declared that ‘united Jerusalem is the eternal capital of Israel’. Meanwhile, Palestinia n
leaders have consistently claimed that a peac e agre ement is not feasible unless it
provides for the establishment of a Palest inian State, with East Jerus alem its capital.
In the fra mework of the peace process between Israel and the PLO that led to
the signing of the Declaration of Pr inciples, in September 1993, Jerusa lem was listed
as one of the permanent-status i ssues to be dea lt with in the last stage.1 Final-status
* e author served a s Head of the Research Depa rtment at B’Tselem, the Israe li Information Center
on Huma n Rights in t he Occupied Territories. e author is grate ful to Andrew Shacknove a nd
Aeyal Gross for th eir insightfu l comments to this essay.
1 Israeli-Palestine Liberation Org anization, ‘Declaration of Principles on Interim Self-Government
Arrangement s’, A rticle 5(2), 13 September 1993, Inter national Legal Mate rials, Vol. 32, 1993,
p. 1525.
Yehezkel Lein
200 Intersentia
negotiations were initially held in July 2000 in Camp David, but the sides f ailed to
reach agreement.
Despite the overall failure of the nal-status negotiat ions, t he sides ma naged
during their ta lks to agree upon the ma in parameters of a deal on the que stion of
Jerusalem: the Pa lestinian St ate would be granted sovereignty over the Palestinian
neighbourhoods in East Jerusalem, and in exchange, the Palestinians would recognise
Israel’s a nnexation of the Jewish settlements (‘neighbourhoods’ in Israeli parlance)
that have been established i n East Jerusalem since 1967.2 e same formula is
apparently the basis for the new round of nal-st atus negotiations between Israel and
the Palestini ans, initiated in November 2007 at the Annapol is summit.3
However, one particular problem likely to emerge from an arrangement based
on the Camp David parameters has be en, and still is, consistently ig nored by the
parties: East Jerusalem Palestinians would lose a lmost tota lly t heir entitlement to
social security benets they had acquired, or a re in the process of acqu iring, under
the Israel i social security sy stem. is ent itlement arose by virtue of their status as
residents of Israel, and as a result of the compulsor y contributions they made over
the years . According to Israeli social security laws, the National Insu rance Institute
(NII), wh ich is the body responsible for implementing t he legislation, sh all not pay
any benet to a person residing outside Israel for more than si x consecutive months.4
To illustrate the problem: a 60-year-old man who made social security contributions
for more than 30 years, wou ld nd, if the agreement is implemented, that h is right to
receive an old-age pen sion from the NII upon reti rement has been revoked; a couple
with young children, bot h of whom are working and mak ing their NII contributions,
would lose their family allowance, on which they relied to help bear the expenses
inherent in raising their chi ldren; a woman living in a Palesti nian community in East
Jerusalem who continued to work in West Jerusalem a er the partition and was later
red from her job would nd that she is not entitled to u nemployment benets.
ese situations are u njust for three interrelated reasons. First, while the ru le
denying socia l security benets to persons living abroad may be justied in the case
2 Klein, Menachem, Shatter ing A Taboo: e Contacts Towards A Permanent Status Ag reement In
Jerusalem 1994–2001, Jerusalem I nsitute of Israel S tudies, Jerusa lem, 2001, pp. 43–56 (in Hebrew);
Ben Ami , Shlomo, A Front Without A Regard: A Voyage To e Bou ndaries Of e Peace Process,
Miskal, Tel Aviv, 2004, Chapters 9–11 (in Hebrew). At the time of the Camp David sum mit,
Shlomo Ben Ami was M inister of Foreign Aa irs and head of the Israeli dele gation at Camp David.
According to bot h authors, the main issue that prevented the sides from reaching a n agreement on
the question of Jer usalem involved sovereig nty over the Temple Mount/Haram A l-Sharif.
3 Israel’s Vic e Pr emier Haim Ramon, for example, decla red recently that ‘Israel has an interest
to get recognition of a ll of Jerusalem’s Jewish ne ighborhoods, and to hand ove r control of Arab
neighborhoods to the Palest inians. W hen we speak of a diplomatic hori zon, these a re the subjects
we are referring to’; Jeru salem Post, 7 October 2 007.
4 National Insuranc e Law (Consolidated Version), Section 324, Seer Hachukim , Vol. 1522, 1995, p.
210 (hereinaer: National Insur ance Law). For a more d etailed ana lysis of this provision, see infra
section 1.2.
e Partition of Jer usalem and the R ight to Social Secu rity
Netherlands Q uarterly of Human R ights, Vol. 26/2 (2008) 201
of p ersons who, for whatever reason, em igrated, t his justic ation is not applicable
here, in that the persons being denied bene ts did not move one meter from t he city
and the hous e in which they lived prior to the ch ange of authorities. In fact, it is the
state, and not the individua l, that ‘emigrated’.
Second, neither of the sides in the peace process has asked the opinion of the
residents of the area being negotiated. e legitimacy of the negotiators, on both sides,
stems from the elected governments t hey represent, which are supposed to reect the
will of t he majority. However, Palestinia n Jerusalemites have an a mbiguous status in
both the Palestinian a nd Israeli societies, so their voice is hardly heard, even in this
loose sense.5
ird, given the weak institutional and economic infrastruc ture of the cu rrent
Palestinia n Authority (PA), a comprehensive social securit y system is not likely
to emerge in the statehood era. Several stud ies dealing with the bui lding of social
security institutions in a future Palestinia n State agree that only a modest system
providing primarily old-age pensions could be economical ly viable.6 erefore, the
loss of NII entitlements would not be oset by inclusion in a fai rly similar system in
the Palestini an State.
But would denial of social security benets in these cas es raise a human rights
issue? Should not the provision of such benets be le to the discretion of the State s,
without the burden of international c onstraints?
e main goal of a social secur ity system is to provide individuals with an income
in situations i n which they are una ble to earn a livi ng, or their income is i nsucient
to cover their basic needs. As suc h, it serves as an essential tool for States to g uaranty
that no person is compelle d to live i n humiliating conditions. In addition, as stated
by the U N Committee on Economic, Social a nd Cultural R ights, ‘the ri ght to social
security plays an import ant role in supporting the realization of many of the rights in
the Covenant [on Economic, Social and Cu ltural Rights]…’7
e enjoyment of social security is thus intrinsic ally linked to human dignity. e
Universal Declaration of Human Rights (UDHR), adopted in 1948, recognises the right
to social security and reects the internationa l community’s acknowledgement of this
link.8 In subsequent years, the human right to social security was enshrined in several
5 On the one hand, Palestinia n Jerusalemites lack Isr aeli citizenship, and a re thus not entitled to vote
in Isr aeli nation al elect ions (see infra se ction 2). On the other hand, a lthough t hey are formally
allowed to vote i n the elections to t he Palestini an Legislative C ouncil due to the s evere restrictions
stipulated i n the Israel-Palest inian agreeme nts, only a smal l minority is able to exercise its rig ht to
vote.
6 Sayre, W. and Olmsted, J., ‘Structurin g a Pension Scheme for a Future Palestinia n State’, in: Cobham,
D. and Kanafa ni, N. (eds), e Economics of Palestine ; Economic Policy and Instit utional Reform for
a Viable Palestin ian State, Routledge, London , 2004, pp. 143–171.
7 UN, Commit tee on Economic, Social and Cultural Rights, General Comment 19, ‘e Right to
Social Sec urity (Article 9)’, UN Doc. E/C .12/GC/19, 4 February 2008.
8 Universal Declarat ion of Human Rights, A rticles 22 and 25, GA Res. 217A, p. 71, UN GAOR, 3rd
session, 1st plen. mtg., U N Doc. A/810, 12 December 1948.
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