By: Hiba Birat
The USA newly inaugurated president, Donald Trump, has made generous promises to his Israeli allies during his campaign, with a promise of moving the US embassy from Tel-Aviv to Jerusalem on the top of those promises. The promise was made upon a bill presented by number of republican senators. Although Trump has shown reluctance in fulfilling his pledge to the Israeli side, it is essential to stress that this move is catastrophic on all levels. This article is designated to discuss the illegality of such a move.
The Senators’ Bill:
During the 115th Congress, three republican senators: Marco Rubio of Florida, Ted Cruz of Texas, and Dean Heller of Nevada introduced their new Act “Jerusalem Embassy and Recognition.” The act states that America should recognize Jerusalem as the official, eternal and undivided capital of Israel; thus, move its embassy, located currently in Tal Aviv, there.
The act is not new though; this has been preceded with several republican trails and suggestions. In 1995, the Congress did indeed pass a law obligating the government to move the US embassy to Jerusalem and call it the capital of Israel in what was known as “Jerusalem Embassy Act of 1995.”
For two decades American elected presidents have postponed implementing the 1995 act and used their right to a waiver for “security concerns”. This time, however, the American newly elected president, Donald Trump, has pledged to fulfill his promise to Israel and move the embassy. Trump has already taken serious steps towards the move; starting with nominating David Friedman, who is known to be a fierce supporter of Israel and its interests, to be his ambassador to Israel, and not ending with moving Friedman’s residence to Jerusalem unlike his predecessors who kept their residences in Tal Aviv. The Act will be presented before the new administration next May, Trump has a choice either to waive the law, like his predecessors, or to breach international law and consensus and set the whole area in fire by implementing the law. Here is why:
The Effect of Such Move on the Israeli Policies in the Holy City
Israeli’s Basic Law of 1980 clearly states that Jerusalem is the “complete and united capital of Israel.” Successive Israeli governments have acted upon this rule. Under the intention of “Judaisating the holy city”, Israel has been following policies that guarantee the domination of the Israeli presence in the city and thus minimizing the Arab and Palestinian presence.
Israeli settlements have been expanding rapidly on the territories of East Jerusalem, while multiple excuses have been used to revoke Palestinian Jerusalemites residencies. Decisions of home demolitions have been taken under a legal cover of lack of license, hardening the process of family unification for Palestinians, renaming Arab neighborhoods and milestones, restricting Palestinian access to the city facilities and closing their major institutions, raising taxes and fighting the Palestinian economy in the city, launching threats and frequent attacks on Palestinians, supporting violent settlers’ campaigns of insult and provocation, let alone Israel’s policies on Al-Masjed Al-Aqsa and its walls under its scheme of demolishing Al-Aqsa Mosque and building the Temple on its ruins are only examples of the daily struggle that Palestinians have to go through in spite of the International denial of Israel’s control over the city. A major and dangerous step of moving the US embassy to Jerusalem would mean that the US is granting Israel the green line to continue its violations and policies on the grounds that Jerusalem is Israel’s capital that belongs to Jews. A move that comes contrary to the decisions of the UN and the international custom which consider Jerusalem to be a multi-religious city, with the East part of it to be under occupation; therefore, not even one country has its embassy to Israel located in Jerusalem or its west part dominated by Jews.
Jerusalem Status Under International Law
From the first beginnings of the Palestinian- Israeli Conflict, and even decades before that, Jerusalem has been having a special status for both parties and for the international community. The United Nations Partition Plan for Palestine, also Known as Resolution 181, suggested by a UN Special Committee on Palestine and adopted by the UN General Assembly in November 1947 had partied Palestine into two states: a Jewish and an Arab. Jerusalem, however, had been considered as a corpus separatum, or a separated body governed with special political and legal grounds. Resolution 181 declared residents of Jerusalem to be “citizens of the city of Jerusalem” unless they choose the Palestinian or Israeli nationality.
181 declared the end of the British Mandate on Palestine and stated “…On its arrival in Palestine the Commission shall proceed to carry out measures for the establishment of the frontiers of the Arab and Jewish States and the City of Jerusalem in accordance with the general lines of the recommendations of the General Assembly on the partition of Palestine…” the resolution was accepted by Israel but denied by the Arab World; thus, failed to fulfill its rules.
Therefore, Resolution 194 of December 1948 was adopted by the UN General Assembly. 194 sat for the creation of conciliation commission that would be responsible for implementing 181. Among other functions, the commission had been tasked with presenting a “detailed proposals for a permanent international regime for the territory of Jerusalem.”
Paragraphs 8 and 9 of resolution 194 set details for the suggested international regime of Jerusalem; the paragraphs stated “8.[the UNGA] Resolves that, in view of its association with three world religions, the Jerusalem area, including the present municipality of Jerusalem plus the surrounding villages and towns, the most eastern of which shall be Abu Dis; the most southern, Bethlehem; the most western, Ein Karim (including also the built-up area of Motsa); and the most northern, Shu’fat, should be accorded special and separate treatment from the rest of Palestine and should be placed under effective United Nations control Requests the Security Council to take further steps to ensure the demilitarization of Jerusalem at the earliest possible date; [and] Instructs the Conciliation Commission to present to the fourth regular session of the General Assembly detailed proposals for a permanent international regime for the Jerusalem area which will provide for the maximum local autonomy for distinctive groups consistent with the special international status of the Jerusalem area; The Conciliation Commission is authorized to appoint a United Nations representative, who shall co-operate with the local authorities with respect to the interim administration of the Jerusalem area; 9. Resolves that, pending agreement on more detailed arrangements among the Governments and authorities concerned, the freest possible access to Jerusalem by road, rail or air should be accorded to all inhabitants of Palestine; Instructs the Conciliation Commission to report immediately to the Security Council, for appropriate action by that organ, any attempt by any party to impede such access…”
In December 1949, after the commission submitted its reports to the General Assembly, resolution 303 was adopted. The resolution reaffirmed the UN previous decision of declaring Jerusalem as a separated international body under its administration, especially after an Israeli trail to announce a Jewish part of the city as part of the state of Israel. The resolution, further, assigned the Trusteeship Council, a UN organ, to prepare a statute for the city that affirms its special status as an international area.
The council submitted its statute and report to the General Assembly later in 1950. However, the council, at its meeting in June 1950, adopted a resolution stating that its efforts of keeping Jerusalem as an international separated territory have failed due to the lack of cooperation from both the Jordanian and the Israeli governments who were in control at the time. The resolution, however, had new suggestion to the status of the city of Jerusalem. Paragraph 3 of the first annex to the Council’s report suggested that “The territory of Jerusalem would be divided into three parts:
(a) The Israeli zone under the authority and administration of the State of Israel.
(b) The Jordanian zone under the authority and administration of the Hashimite Kingdom of the Jordan.
(c) The “International City” would be placed under the collective sovereignty of the United Nations and administered, under the supervision and responsibility of the Trusteeship Council, by a Governor of the Holy Places appointed by the Council.
Practically the whole of the New City, together with the station and the railway from Jerusalem to Tel-Aviv, would remain under the sovereignty of Israel.
The Arab quarters of the Old City, together with the Haram-el-Sherif, the Wadi-el-Joz and Bab-el-Zahira sections, the American colony, the whole of the Jericho road, the Nablus road to the north of Sheik Jarrah and the Hebron road to the south of Bethlehem would remain under the sovereignty of the Hashimite Kingdom of the Jordan.
The International City consisting of land taken in almost equal parts from the occupation zones defined by the Armistice Agreement between Israel and the Hashimite Kingdom of the Jordan, would include all the Holy Places covered by the status quo of 1757.”
Prior to that, lines were being drawn differently on the ground. After the 1948 war between the Israeli Army and the Armies of the Arab countries (Jordan, Egypt, Syria, and Lebanon), the newly created state and its Arab neighbors went through negotiations and signed “the Armistice Agreement” during which a demarcation line was drawn as the de facto boundaries of Israel, the line was known as “the green line”. The line annexed West Jerusalem to the Israeli state and left the East part of the city, the West Bank, and Gaza Strip to the Palestinian side. Although the green line was considered by the parties, specially the Arab countries, as a temporary line that would never contradict with the Palestinian rights, the international community from that day dealt with the green line as the de facto boundaries of Israel, and called the lands annexed beyond that “occupied territories.” Jerusalem, on the other hand,even with its west part dominated by Jews, was never legally entitled to Israel.
On the 5th of December 1949, the Israeli Prime Minister David Ben-Gurion delivered a statement to the Israeli Keenest stating that “we see fit to state that Jewish Jerusalem is an organic, inseparable part of the State of Israel, just as it is an integral part of Jewish history and belief. Jerusalem is the heart of the State of Israel. We are proud of the fact that Jerusalem is also sacred to other religions, and will gladly provide access to their holy places and enable them to worship as and where they please, cooperating with the U.N. to guarantee this.” The statement, which was succeeded by a similar statement on the 13 of the same month, had also announced that Israel is no longer bound by resolution 181, stating “Had we not been able to withstand the aggressors who rebelled against the U.N., Jewish Jerusalem would have been wiped off the face of the earth, the Jewish population would have been eradicated and the State of Israel would not have arisen. Thus, we are no longer morally bound by the U.N. resolution of November 29, since the U.N. was unable to implement it. In our opinion the decision of 29 November regarding Jerusalem is null and void.”
A lot has changed after the six days war of 1967. Israel has occupied East Jerusalem, the West Bank, Gaza Strip, Golan Heights, and Sinai. A new reality was forced on the cause after that date. International bodies and leadership have been using the term: 1967 borders (the green line) as a new reality that would determine the boundaries of the Palestinian international demands. The United Nations in its subsequent decisions and resolutions will use the same term to point to the lines where the international law apply condemning the Israeli presence in the lands annexed after the 1967 war as an occupation, calling for its withdrawal, and stressing on the applicability of international law tools with the fourth Geneva Convention on the top of them.
The UN hastened to condemn the Israeli policies in Jerusalem during and after the 1967 war. In July 1967, the UN General Assembly adopted resolution 2253 that stated that the General Assembly “Deeply concerned at the situation prevailing in Jerusalem as a result of the measures taken by Israel to change the status of the City, 1. considers that these measures are invalid; 2. Calls upon Israel to rescind all measures already taken and to desist forthwith from taking action which would alter the status of Jerusalem…” and succeeded it with resolution 2254 in the same month condemning Israel’s failure to comply with resolution 2253 and refusal to withdraw from Jerusalem.
In addition to the general resolutions adopted by the UN on the Palestinian question, that would deny the “acquisition of land by force” and consider it a violation of international law and thus call upon the occupying power to withdraw from the occupied territories, such as UNGA resolutions 2628 of 1970, 2727 of 1970, 2851 of 1971, 3092 of 1973, 3240 of 1974, 3414 of 1975, 31/61 of 1976, 32/20 of 1977, 33/29 of 1978, 34/70 of 1979, 35/207 of 1980, 36/226 of 1981, 37/123 of 1982, 38/180 of 1983 and many other, almost yearly, resolutions, in addition to UNSC resolutions 242 of 1967, 258 of 1968, 259 of 1968, 338 of 1973, 446 and 452 of 1979, and many other resolutions ending with 2334 of 2016, the UN had special resolutions on Jerusalem.
UNGA resolution 36/15 adopted in 1981 was specifically designated on Jerusalem. The General Assembly, that referred to Israel as an occupying power and considered Jerusalem as an occupied land that falls within the jurisdiction of the Fourth Geneva Convention 1949, condemned Israel’s policies of excavations and transformations in the city and considered it a grave violation of international law.
Security Council had its special resolutions on Jerusalem as well. Resolution 250 of the 1968 Called upon Israel to refrain from holding the military parade in Jerusalem which is contemplated for 2 May 1968; while resolution 251 of the same year condemning Israel’s non-compliance with the previous resolution. Resolution 252 of 1968, on the other hand, stressed the illegality of acquisition of a territory by military conquest and declared it inadmissible, the resolution stated in its 2nd and 3rd paragraphs that the council “Considers that all legislative and administrative measures and actions taken by Israel, including expropriation of land and properties thereon, which tend to change the legal status of Jerusalem are invalid and cannot change that status; and Urgently calls upon Israel to rescind all such measures already taken and to desist forthwith from taking any further action which tends to change the status of Jerusalem.” Resolutions 267 of 1969 and 298 of 1971 used the same language upon the denial of Israel to comply with the previous resolution. Resolution 271 of 1969 also stressed the same issue but focused more on the Israeli scheme around Al-Aqsa Mosque, the resolution called upon Israel to abide by international law on military occupation and stated that the council “Determines that the execrable act of desecration and profanation of the Holy Al-Aqsa Mosque emphasizes the immediate necessity of Israel’s desisting from acting in violation of the aforesaid resolutions and rescinding forthwith all measures and actions taken by it designed to alter the status of Jerusalem.” Additionally, resolution 465 of 1980 referred to the special status of Jerusalem and condemned the settlements activities in all the occupied territories stating that the council “determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel’s policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East.”
Nonetheless, UNSC resolutions gained a more direct and clear language after 1980. In addition to the persistence of Israel, in changing the physical character, demographic composition, institutional structure and the status of the Holy City of Jerusalem, that year, the Israeli Knesset passed a law called “the Jerusalem Law” or the “Basic Law of Israel.” The very first article of the law read “Jerusalem, complete and united, is the capital of Israel.” Upon this flagrant violation of all UN resolutions and international consensus and custom on the Jerusalem status, resolution 476 of 1980 reaffirmed “the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem,” and stated in paragraphs 3 and 4 that the council “reconfirms that all legislative and administrative measures and actions taken by Israel, the occupying Power, which purport to alter the character and status of the Holy City of Jerusalem have no legal validity and constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East; reiterates that all such measures which have altered the geographic, demographic and historical character and status of the Holy City of Jerusalem are null and void and must be rescinded in compliance with the relevant resolutions of the Security Council.”
Resolution 478 of the same year, which was passed by 14 votes, 0 vetoes and the abstention of the US, refused to recognize the Israeli Basic law and called upon all member states to refrain from acting upon it. Any state that had an embassy in Jerusalem before, moved it immediately to Tal Aviv after passing this resolution which stated that the council “Censures in the strongest terms the enactment by Israel of the “basic law” on Jerusalem and the refusal to comply with relevant Security Council resolutions; 2. Affirms that the enactment of the “basic law” by Israel constitutes a violation of international law and does not affect the continued application of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, in the Palestinian and other Arab territories occupied since June 1967, including Jerusalem; 3. 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; 4. Affirms also that this action constitutes a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East; 5. decides not to recognize the “basic law” and such other actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem.”
The UN judicial organ, International Court of Justice, also referred to Jerusalem as an occupied territory in its legal opinion on the separation wall rendered 2014. This makes it clear that the UN adopts a legal position on the status of Jerusalem as an occupied territory, especially its East side, with not recognizing the west side as legally belonging to Israel, not to say its capital!!
The City of Jerusalem has always had a special status under International Law. The city that went under several occupations, including the British and the Israeli, has been dealt with separately by the United Nations and the International Community due to its sensitive and unique value for all three religions in the area: Islam, Christianity, and Judaism. The most consensual view of the city, however, is the international status.
While Israel claims that Jerusalem as a whole is its united and complete capital, the Palestinian Authority claims that occupied East Jerusalem is the capital of the future Palestinian state with keeping the west side of the city as a key element of final talks and negotiations between the two parties. The International Community, on the other hand, has a different view on the status of Jerusalem. Some of the leading countries, including the European Union, still insist on the international status of the city especially that 181 and 194 were never revoked by the UN. Similarly, Russia is in favor of an international regime governing the city of Jerusalem, with a clear denial of Israel’s policies in the city. The East part of the city is agreed upon as an occupied territory that is subject to the International law especially its humanitarian section. None of the state members to the international community has its embassy in Jerusalem. The US move to relocate its embassy to Jerusalem is a dangerous step that is not only illegal, in violation of the Palestinian right to self-determination, a clear confess and acceptance of a military occupation and an inhuman and illegal policies against Palestinians in the city, but also a shot in the head for all peace efforts and an open call to set the whole area on fire.
Next May, the Jerusalem Act is to be discussed by the Trump Administration, if president Trump does not want to start his presidential term with breaching the international law and consensus; thus, ending the American claim of being the “peace broker” of the Middle East, he should follow the steps of his predecessors and waive the act implementation at least for security concerns.
 The resolution stated “1. Determines that the excavations and transformations of the landscape and of the historical, cultural and religious sites of Jerusalem constitute a flagrant violation of the principles of international law and the relevant provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949;
- Decides that such violations by Israel constitute a serious obstruction to achieving a comprehensive and just peace in the Middle East as well as a threat to international peace and security;
- Demands that Israel desist forthwith from all excavations and transformations of the historical, cultural and religious sites of Jerusalem, particularly beneath and around the Moslem Holy Sanctuary of Al-Haram Al-Sharif (Al Masjid Al Aqsa and the Sacred Dome of the Rock), the structures of which are in danger of collapse;