Who Represents Palestinians in Jerusalem?

Before 1948, Jerusalem was the urban center of historic Palestine and had long functioned as its capital. From 1948 until 1967, the city was divided: West Jerusalem was seized by Israel and absorbed into its new state in 1948; East Jerusalem was under Jordanian control and remained the center of the wider West Bank with deep connections to Amman, the capital of Jordan. East Jerusalem was the haven for tens of thousands of Palestinians from the area that became West Jerusalem, who were forced out or fled to temporary safety, only to find that Israel banned them from returning (see The West Side Story, Part 4: The Erasure of the New City and Its Transformation into Jewish West Jerusalem).

In 1967, Israel occupied East Jerusalem. Within days, there was unanimous agreement among Israeli officials to expand the boundaries, but what status to grant the residents took longer to decide. A hasty flawed census taken in the days following the war found that 67,995 Palestinians lived in the newly occupied areas.1 In the days that followed, Israel unilaterally extended the city boundaries, expanding the city area from 6 sq km to 71 sq km and unilaterally enfolding 28 Palestinian neighborhoods, refugee camps, and villages into the city and extending Israeli law, jurisdiction, and administration over the newly enlarged area, meaning that by Israeli decree, occupied East Jerusalem would be under Israeli civil law, unlike the remainder of the West Bank, which came under military rule (see What Is Jerusalem?).2 The military occupation and all subsequent unilateral decisions are considered illegal under international law.3

On June 21, the decision was made to confer permanent-residency status on the Palestinians living within the newly expanded municipal boundaries.4 According to Moshe Amirav, an Israeli political scientist who served in various capacities in the Jerusalem municipality, “the designation chosen for this community was ‘non-citizen Arab residents.’”5 The option to apply for citizenship would be left open, but “only to one who requests it,” as Menahem Begin clarified during the cabinet meetings. As Amirav notes, “Begin, of course, [to] understood that, given the choice, the Arabs would not opt for Israeli citizenship, which is exactly why he made his proposal.”6 Critically, under Israeli law as we shall see, unlike citizens, permanent residents cannot vote in national elections.

Today, 56 years later, the majority Palestinians of Jerusalem remain permanent residents, only their numbers have increased to 366,800 as of 2020,7 of whom only an estimated 19,000 (5 percent) are citizens as of 2022.8

Israeli officials make no effort to conceal their attitude toward this large minority in their midst: They see them as an existential threat whose growth is to be curtailed by any and all means, even by excision. For example:

Given that the international status of this city remains unresolved and disputed, and that Israelis and Palestinians have opposing ideas of its present and future fate, the Palestinian residents of East Jerusalem make up a large potential voting bloc that could theoretically participate either within two opposing polities: that of the nation of which they identify as being a part (Palestine) or that of the city of which they are residents (Jerusalem, which is currently under the control of Israel). Viewed as part of their natural demographic cohort of Palestinians in the West Bank, according to 2019 data from the Palestinian Bureau of Statistics (PBS), Palestinian residents of Israeli-defined municipal East Jerusalem (referred to by PBS as J1)9 comprise 9.7 percent of that total Palestinian population in the West Bank (nearly 3 million).10

Viewed as part of East Jerusalem and Israel more generally, by conservative estimates, Palestinian residents of East Jerusalem comprise nearly 40 percent of the population of both East and West Jerusalem combined11 (although only very few live in West Jerusalem, which remains 99 percent Jewish as it has been since it was ethnically cleansed in 1948).12 They outnumber the Palestinians in Israel’s largest Palestinian city, Nazareth, by four times.13

On paper, Palestinians in East Jerusalem have the right to vote on both sides—on the Palestinian side, for national representatives, and on the Israeli side, for local representatives. On the Israeli side too, they pay hundreds of millions of shekels in taxes to the municipality each year,14 so they should be entitled to a voice in how their tax money is spent.

In reality, as this Backgrounder will show, they derive no viable or adequate representation from either of these electoral processes.

Since the interim Oslo Accords were signed in 1993 and 1995, Palestinians in East Jerusalem have had the right to vote in elections for both the Palestinian Legislative Council (PLC) and the Palestinian President (ra’is) of the Palestinian Authority (PA).15 Theoretically this would give them some type of national representation, which they do not get on the Israeli side, as explained below.

Because the Oslo Accords were meant to arrange an “interim” status and the “final” status of Jerusalem was explicitly left to be agreed upon in the future, from the outset, the arrangements for Palestinian residents in the city took on enormous political significance: Their political “belonging” had implications for the future sovereignty of the city.

In fact, the question of Palestinian residents of Jerusalem voting in the Palestinian national elections became a fault line in the Israeli-Palestinian “peace process” and in the Israeli-Palestinian relationship generally. Palestinians see East Jerusalem as their future capital and are adamant that their people living in it should remain part of the larger Palestinian sociopolitical fabric, including participating in free and fair elections to select their national representatives. Israelis see the entirety of Jerusalem, West and East, as the indivisible, indisputable capital of the Jewish state forever, and even the remotest suggestion of Palestinian sovereignty ever taking hold there is forcefully rejected.

Against this contextual framing, the rights and participation of Palestinian Jerusalemites in Palestinian electoral processes can be analyzed.

Article III of the Declaration of Principles on Interim Self-Government Arrangements (Oslo I) that was signed by Israel and the Palestinian Liberation Organization (PLO) on September 13, 1993, contains these clauses on elections:

Annex 1, paragraph 1 of Oslo I, specifies that “Palestinians of Jerusalem who live there will have the right to participate in the election process” for the elected council of the PA.16 Note that this clause did not limit participation only to “Palestinians in East Jerusalem.” However, it did limit it to only to Palestinians currently residing in the city.

The Palestinian General Elections law as amended in 2007 confirms that the right to vote extends to Jerusalemites:

Persons who are listed in the Election Register and at least 18 years old on Election Day have the right to vote.18

Palestinians from East Jerusalem have the legal right to run for the PLC and for the presidency (unlike on the Israeli side). Annex II of the Interim Agreement and the Palestinian Elections Law 15 of 199519 set out the initial requirements, later modified by Palestinian Elections laws. According to the latest law (2007), anyone wishing to run for the PLC must be a resident of the Palestinian territories (noting again that under international law, East Jerusalem is part of the occupied West Bank), but need not reside in the territory he or she is running to represent, which has implications for Jerusalemites.20

Like anyone else, Palestinians from East Jerusalem can run for president as long as they meet the specified criteria.21

Palestine has 16 electoral districts, synonymous with its 16 governorates—11 in the West Bank and 5 in Gaza (see Map 1).22 The Jerusalem district covers the entire governorate of Jerusalem (Muhafazhat al-Quds—see Map 2). This is an area that the Palestinian Central Bureau of Statistics (PCBS) administratively divides into two subdistricts, “Jerusalem J1” and “Jerusalem J2.” J1 comprises Jerusalem as it was before 1967 as well as the parts of the West Bank that Israel annexed to Jerusalem in contravention of international law and included within its unilaterally declared boundaries of the Israeli municipality of Jerusalem (i.e., Israeli-defined East Jerusalem). Under the Oslo Accords, J1 falls outside the Palestinian national jurisdiction and indeed, the PA is banned from operating there (see below). J2 is composed of the parts of the Jerusalem governorate that are not included in J1—basically suburbs of Jerusalem that link Jerusalem to the rest of the West Bank. Electorally, these areas are under the jurisdiction of the PA.

After the Oslo Accords were finalized in 1995, the Palestinians in the occupied West Bank (including East Jerusalem) and Gaza held national elections three times: in 1996 (for president and PLC), 2005 (for president only), and 2006 (for PLC only).

The 1996 elections were the first-ever Palestinian elections and, as such, generated intense interest23 and massive oversight by international observation teams on the ground. Indeed, one scholar observed wryly that they “may have been the most carefully observed and conscientiously scrutinized elections in modern times”24 given the massive attendance of international observation teams on the ground. Despite considerable interference by Israel in the electoral process (detailed below), Palestinians in J1 did participate more in the Palestinian national elections than they typically have in the Jerusalem municipal ones. Indeed, the Jerusalem district was entitled to seven seats in the PLC in 1996 and six in 2006, and Palestinian Jerusalemites ran for them. However, relative to the high participation rates in the rest of Palestine, the turnout within J1 was low—10 percent, 6 percent, and 16 percent in 1996, 2005, and 2006, respectively.25 Part of the reason for this may be that Israeli authorities would only allow a minority of those living in J1 to actually vote in J1; the rest had to travel outside the city to vote in J2. For example, in 1996, only 4,965 voters out of 35,000 registered residents of Jerusalem were allowed to vote in J1.26

However, relative to the high participation rates in the rest of Palestine, the turnout within J1 was low.27

Whether voting rates have been high or low, the participation of Palestinians in Jerusalem in national Palestinian elections is virtually nullified by a wide range of Israeli policies and practices that effectively neuter this vote and its outcome. From the outset, the idea that “democracy” could take root in a territory under harsh military occupation, with all that it implies in terms of the power of the occupying state to dictate control every aspect of the elections and their outcomes—within a setting of checkpoints, walls, permit regime, and absence of basic human rights such as freedom of movement and expression—was a fallacy.

Critically, Oslo I deferred the actual planning of elections to the work of a joint Israeli-Palestinian committee that would negotiate election modalities. The committee’s work was eventually detailed in Annex II, Article 6 of the 1995 Interim Agreement between Israel and the PLO (“Oslo II”), which covered the logistical arrangements for Palestinian Jerusalemites to vote in elections for the PLC and the presidency of the PA.28 As well, at various points throughout the agreement, “joint” Israeli-Palestinian civil affairs committees or subcommittees were given responsibilities for overseeing arrangements related to elections. For example, Israel had the right to review and approve the entire list of registered voters. Also, candidates wishing to campaign in Jerusalem (then and now) must apply for a permit to do so through the Palestinian Central Elections Commission (CEC), which in turn can only obtain them “from the Israeli side in the CAC subcommittee.”29

In reality, this meant (and still means) that all of the most critical aspects of the election process, including how Palestinians in East Jerusalem would participate, were subject to Israeli approval, thereby giving Israel complete control over a vital national activity that is normally determined internally.

Thus, while Palestinian elections and electoral procedures are governed by Palestinian Elections Laws, they cannot be considered “free.”

The following, in brief, highlights some of the ways in which the electoral process was corrupted, depriving Palestinians of their right to freely elect national representation.

Delays

At the outset, it’s worth noting that for each of the three Palestinian elections, prolonged delays deprived the voters of having the proper, timely representation they deserve. And in the case of the current election, that delay has lasted for enough years that a whole new generation has come to voting age: from 2006 to 2023. Such delays are a form of profound disenfranchisement.

Rejection of the very idea

Israel vehemently rejects the idea of Palestinian Jerusalemites participating in Palestinian national elections, because it suggests political alternatives to “Jerusalem as the eternal unified capital of Israel.”

As noted, Israelis see the entirety of Jerusalem, West and East, as the indivisible, indisputable capital of the Jewish state forever, and even the remotest suggestion of Palestinian sovereignty ever taking hold there is wholly rejected.

Accordingly, even from the outset, in the first Palestinian national election in 1996, when Hamas boycotted the elections and before there was a Second Intifada, a Separation Wall, and all the massive deterioration in the Israeli-Palestinian relationship that followed, elections in Israeli-occupied East Jerusalem (J1) were extremely controversial and fraught with problems.

According to the reports of international election observers from the Carter Center, Israel “wanted Palestinians in Jerusalem [i.e., J1] to vote in a manner that suggested they were located outside the area to be represented by the elected body. Therefore, Israel advocated arrangements similar to absentee voting.”30

The final agreement on arrangements for registration and voting in J1 reflected the political tension over the final status for the city. Israel imposed severe limitations on the arrangements for Palestinians to register and vote in East Jerusalem. Indeed, the Interim Agreement (Annex II, Article 6) clearly stipulates that, “A number of Palestinians of Jerusalem will vote in the elections . . .”31 This phrasing suggests a procedure that is largely symbolic, not truly democratic.

Under the Interim Agreement, the PA (and by extension the CEC) was barred from having any jurisdiction in J1, ostensibly because the fate of the city remained to be negotiated. Israel immediately solidified this banning by passing the Law Implementing Agreement on Gaza and Jericho Areas 1994, which took effect on January 1, 1995, stating:

The law likewise bans the Palestine Liberation Organization from operating within the Israeli municipal boundaries of Jerusalem.

Therefore, the CEC (and its temporary agents before its formal establishment in 2002) could not operate within J1, and the CEC office for the governorate of Jerusalem had to be located outside the boundaries of municipal Jerusalem in J2, in Abu Dis.

Interference with elections

A brief survey is provided below of some of the main ways that Israel has interfered with the election process for Palestinians in East Jerusalem over the three election cycles that have occurred.

1. Voter registration

From the outset, Israel insisted on a clause in the Interim Agreement giving it the power to review the name of every registered voter and to compare it against their own Population Registry.33

Israel banned anyone working on behalf of the PA from operating inside J1. As CEC subcontractors opened voter registration offices in J1, Israel rapidly closed them. In 1996, this forced the CEC to oversee voter registration in Abu Dis, which lay in J2 outside the boundaries. Moreover, all the registration materials had to be reprinted, since Israel banned the use of the CEC logo on them.34

By the 2006 election, Israel was banning voter registration in East Jerusalem altogether35 and ominously photocopying the voter registration lists, which instilled fear of reprisals.36

2. Campaigning

In 1996, while candidates who wished to campaign in Jerusalem had to be approved by Israel, at least some campaigning took place and the protocols set by the Oslo Accords were observed, although intimidation posters went up near the poll stations warning Jerusalemites they could lose their legal status and with it, the right to residency if they voted in Palestinian elections.37

A major damper on the 1996 election process was Israel’s assassination of Yahya Ayyash in Gaza on January 5,38 during the campaign period before the January 20 election, and subsequent closure of the West Bank and Gaza on January 8. A New York Times report from January 10 described the fallout:

A Hamas candidate in Gaza elaborated, “The assassination buried the joy and pleasure of the election. How can I talk about a civil society, about a rule of law, now? I have to speak of revenge.”40

By 2005, Israel was essentially banning campaigning in East Jerusalem and using both direct and indirect means to stop it, including preventing candidates from entering the city and moving freely by refusing permits, as well as summoning those who put up a campaign poster in the city for a Shin Bet interrogation.41 Rallies were not permitted.

According to the EU Election Observation Mission, “the Israeli authorities were adamant at a meeting with Palestinian negotiators attended by the EUEOM that candidates were not permitted to have any campaign offices whatsoever in Jerusalem. In reality candidates therefore had to use surrogate offices of their related party or supporters in order to be able to conduct any campaign activity.”42

In the run-up to the 2005 elections, campaigning candidates such as Mustafa Barghouti were repeatedly arrested when they tried to campaign in East Jerusalem. Reporting from Jerusalem in December 2004, Conal Urquhart wrote in the Guardian:

In 2006, with Hamas on the ballot, the Separation Wall under construction, and the permits regime fully entrenched, the suppression escalated. Israel at first declared it would ban voting altogether with Hamas on the ballot, then allowed a limited window of campaigning while arresting candidates and their supporters in a massive wave of arrests and banning the flag and other symbols.44 Thus, campaigning in 2006 was particularly hindered.

3. Voting

From the beginning in 1996, arrangements for the vote to be held in East Jerusalem were the subject of enormous scrutiny. Israel was adamant that the arrangements should indicate an “absentee voting” situation—a “postal ballot” being “mailed back” to the homeland. Ballot boxes were located in a handful of post offices, and voting took place alongside routine postal business. As CEC personnel were banned, the vote was staffed by postal workers. Even the ballot box was designed to resemble a mailbox. At the end of the day, the votes were transported (“mailed”) by Israeli authorities to a CEC office outside the municipal boundaries for vote counting.45

Hundreds of Israeli police were sent to surround the post offices, and in some cases they videotaped voters as they arrived.46 They also in some years photocopied the lists of all who had voted at the end of the day and confiscated them, sparking fears. 47

Moreover, less than one-fifth of eligible voters in J1 were even allowed the privilege of voting inside J1.48 The rest had to leave the city to polling stations in J2,49 which by 2005 entailed crossing the Separation Wall, and occasionally were stopped by closed checkpoints.

By 2005–6, without any voter registration process, voters also showed up to vote with no reliable way to confirm their eligibility.50

The many international observers who monitored these elections, including US President Jimmy Carter, were all unanimous in their harsh criticism of the integrity of the voting process in East Jerusalem in particular, as opposed to a relatively orderly process that took place outside the city, under the auspices of the CEC.51

As just one example, the Carter Center observation team wrote in its final report:

And:

Forceful removal of elected officials from power

Israeli interference with Palestinians’ right to elect their own representatives has not been limited to the election process itself. Indeed, Israel has not hesitated to detain, imprison, and deport Palestinian elected officials, including legislators, before, during, and after elections, and even long after their expulsion from the city. Full detail on such activities is beyond the scope of this Backgrounder, so we will suffice with some examples.

Most notably related to the January 2006 elections, in which Hamas had decided to participate, during the campaign season the previous fall, in late September 2005, long before the election, Israel launched a campaign of arrest in which 450 members of the Change and Reform (Hamas-affiliated) List, most of whom were involved in one way or another in the PLC elections, were detained. Many were kept in administrative detention for varying periods.55 These included elected representatives of Jerusalem, such as Wael Husseini,56 a party member of the Change and Reform Party, who was in fact subsequently elected while in prison.57

On January 15, only hours after Israel agreed to let Palestinians in East Jerusalem participate in the election and just 10 days before the January 25 election date, Israeli police raided an East Jerusalem office they claimed was being used by Hamas and arrested four people. Shortly afterward, police arrested six more Hamas members as they prepared to hold a press conference in the Old City of Jerusalem.58

Among the arrested men was Mohammad Abu Teir, a Jerusalem resident who was the number two on the Hamas list after Ismail Haniyeh and had recently completed a 30-year prison term.

As it turned out, on January 25, Hamas won the election decisively (see Map 3), even within East Jerusalem where four out of six seats in the district were won by candidates from the Change and Reform List, and the other two by Christians, but only because of a quota requirement. The four Hamas members elected to represent Jerusalem were Ibrahim Abu-Salem, Mohammad Totah, Wael Husseini, and Ahmad Attoun.59 Each received 14,000 votes.60

This was a result that Israel could not tolerate, especially in Jerusalem.

The Hamas government was sworn in on March 29. On May 28, four Palestinian government officials, three duly and freely elected parliamentarians (two representing Jerusalem) and one minister, who were also Jerusalem (J1) residents were informed in a letter from Israeli Interior Minister Roni Bar-On that they must resign from the PLC or face having their Jerusalem permanent-resident status revoked.61 Revocation of status, an extreme measure for a Jerusalemite, would mean expulsion from the city (or assured arrest); loss of property including their homes; separation from their families (who cannot move with them without losing their own status); loss of status for any minor children under 16 listed on their IDs and consequently splitting of families; loss of insurance and other residency benefits; severance from health care; and statelessness, since they did not hold citizenship from any other country.62 This notice opened a prolonged chapter during which the four did their utmost to resist the revocations.63

When it finally deigned to tackle the case over a decade later in 2018, the Israeli High Court of Justice ruled that then Interior Minister Roni Bar-On had exceeded his authority by rescinding the men’s status. However, the court froze the ruling for six months, which provided the government a window of six months to pass a new law that could justify revoking their status.64 On March 6, 2018, the government did just that, passing a law that allowed the interior minister to revoke permanent residency in three situations, including “disloyalty” to the state, and to deport anyone whose residency has been revoked.65 The government then applied the law (retroactively) to justify revoking the Jerusalem residency of the four government officials, all Jerusalemites, some of whose families had lived in the city for centuries.66 On April 29, 2018, Interior Minister Aryeh Deri ordered their permanent deportation from the city.67

In summary, another way in which Palestinians who live in East Jerusalem are deprived of representation is that Israel does not hesitate to ”remove” any elected officials that are not to its liking.

Regardless of the agreement on or implementation of the logistics of elections, Oslo II, which was signed on September 28, 1995, defined the jurisdiction of the PLC as covering the West Bank and Gaza Strip “except for issues that will be negotiated in the final status negotiations: Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis, and powers and responsibilities not transferred to the Council.” This excluded the PA from operating within East Jerusalem. With the time horizon defined in the agreement (to commence negotiations on final-status issues as of May 4, 1996, and to complete the “transitional period” not exceeding five years from May 4, 1994, i.e., May 4, 1999), this must have seemed reasonable at the time. Today, 30 years later, this particular clause has had a devastating effect on Palestinians in East Jerusalem, completely neutering their right to national representation and rendering it meaningless. If they do manage to vote, Israeli law strictly forbids the PLC from acting on their behalf in any capacity, so Palestinians’ votes are useless.

Moreover, Israel has been intensifying its opposition to any and all types of PA involvement within the Jerusalem municipal boundaries. These days, even a mere lecture or cultural gathering sponsored by the PA is subject to being raided and shut down.68 In June 2019, Israel’s Minister of Public Security Gilad Erdan introduced a new bill that would criminalize PA activity and anyone who supported it, punishable by three years’ imprisonment. The law would apply to “anyone who in funding, hosting events or assisting the PA (Palestinian Authority) in eastern Jerusalem.”69

That being the case, it is fairly immaterial whether Palestinians in East Jerusalem have the right to “vote” or not.

This analysis has shown that Israel’s willingness to allow even token electoral participation by Palestinians in Jerusalem shrank with every new election. In the years since 2006, massive changes to the political and geographical landscape have occurred, including the completion of the Separation Wall, the construction of new settlements, and the further fragmentation of the Jerusalem governorate along with the entire occupied West Bank.

More significantly, the changes in US policy under the Trump administration radically shifted the balance of power in the city in Israel’s favor. Most notable is the 2017 declaration by the US that Jerusalem is the capital of Israel, creating the appearance of granting Israel (in Israel’s eyes, but not under international law) permanent sovereignty over the whole city. But also, the virtual termination of relations with the PA (and vice versa) and various forms of support for Palestinians—including, presumably the willingness to underwrite costs associated with the election and its monitoring as had been the case in previous years—have emboldened Israel to expand its efforts to impose sovereignty by force with impunity. Indeed, the participation of Palestinians in East Jerusalem in previous Palestinian elections was largely due to the pressure and intervention of US presidents including Bill Clinton in 1996 and George W. Bush in 2006 (not to mention the active participation on the ground of former US president Jimmy Carter). But US policy has tilted drastically, as crystallized by the announcement in February 2020 of Trump’s “vision for peace,” which clearly presumes Israeli sovereignty over Jerusalem with the capital of Palestine in Abu Dis, outside and beyond the Israeli municipal boundaries and Separation Wall (but inside J2). It’s now hard to imagine that the US would agree to fund such elections as it did in the past.70

Meanwhile, Israel’s current right-wing government will not allow any such political activity. Indeed, in recent years, Israel has moved ever more aggressively to outlaw and terminate any PA involvement within East Jerusalem—shutting institutions including television and radio stations,71 detaining senior PA officials,72 banning PA-sponsored events or events with any PA involvement (including coronavirus clinics)73—even proposing laws that would criminalize it by a three-year jail term.74 As one Fatah sympathizer told the Jerusalem Post in December 2019, “Israel has been waging war on the Palestinians in Jerusalem . . . If the Israelis are not allowing us to hold a soccer match on the pretext that it’s sponsored by the Palestinian Authority, does anyone really believe they will allow us to participate in Palestinian elections?”75 When the PA officially requested in December 2019 that Israel allow Palestinians in East Jerusalem to participate in new Palestinian elections in 2020, Israel officially decided to ignore the request.76 In a speech on January 1, 2020, aired at a Fatah rally in the Gaza Strip, PA President Mahmoud Abbas reiterated: “We will not hold elections without Jerusalem being at their heart, meaning that every Jerusalem resident will vote from the very heart of East Jerusalem.”77 That determination notwithstanding, all of these changed dynamics make the possibility that Palestinians in East Jerusalem ever participate meaningfully in Palestinian elections and freely choose their own national representation extremely remote for the foreseeable future.

Part 2 examines the question of representation for Palestinian Jerusalemites through Israeli political bodies.