Posted by: Prof. Malvina Halberstam, Esq.
May 23, 2017
Source

Moving the US Embassy from Tel Aviv to Jerusalem: An Analysis and Discussion of U.S., Israeli and International Law

In a few weeks Israel will celebrate the 50th anniversary of the reunification of Jerusalem. Israel captured East Jerusalem, including the Old City and Har Habayit, on June 7, 1967, from Jordan — then Transjordan — which had seized it in 1948, when it and six other Arab States attacked Israel. For weeks before the war, Arab states threatened to annihilate Israel. Here are a few examples:

Syrian Defense Minister Hafez Assad, May 20, 1967:

“Syria’s forces are ready … . [T]he time has come to enter into a battle of annihilation.”

Gamal Abdel Nasser, President of Egypt, May 27, 1967:

Our basic objective will be the destruction of Israel. The Arab people want to fight. . . . The mining of Sharm el Sheikh is a confrontation with Israel. Adopting this measure obligates us to be ready to embark on a general war with Israel.”

Nasser, May, 30, 1967, after signing a defense pact with Jordan’s King Hussein:

“The armies of Egypt, Jordan, Syria and Lebanon are poised on the borders of Israel . . . .[S]tanding behind us are the armies of Iraq, Algeria, Kuwait, Sudan and the whole Arab nation. … [T]he critical hour has arrived. We have reached the stage of serious action and not declarations.”

Yemeni Foreign Minister Salam:

“We want war. War is the only way to settle the problem of Israel. The Arabs are ready.”

King Hussein of Jordan, after signing the pact with Egypt, May 30, 1967:

“All of the Arab armies now surround Israel. The UAR, Iraq, Syria, Jordan, Yemen, Lebanon, Algeria, Sudan, and Kuwait. … There is no difference between one Arab people and another, no difference between one Arab army and another.”

President Abdel Rahman Aref of Iraq, May 31, 1967:

“The existence of Israel is an error which must be rectified. This is our opportunity to wipe out the ignominy which has been with us since 1948. Our goal is clear – to wipe Israel off the map.

Nasser, June 2, 1967:

“We are now ready to confront Israel.”

Jews around the world feared the imminent destruction of Israel. So palpable was the fear, with the Shoa still fresh in people’s minds, that many people emptied their savings accounts to help Israel financially. Then, miraculously, in six days, Israel not only rebuffed its attackers, but also captured Yehudah, Shomron, and the part of Jerusalem that had been illegally seized by Jordan.

There was another miracle, in addition to the military miracle. Desperately wanting to avoid a war on two fronts, Israel appealed to Jordan, in a message conveyed through the U.N., not to join Egypt in attacking Israel, and promised that if Jordan did not join Egypt, Israel would not attack Jordan. Jordan rejected Israel’s request. Had Jordan agreed, Israel would not have attacked Jordan and would not have captured Jerusalem. Sometimes what seems to be bad in the moment, turns out to be good in the long run.

As is well known, Jerusalem was first established as the capital of a Jewish State by King David over 3,000 years ago. Although Jerusalem was captured by the Roman Empire some two thousand years ago and has been ruled by a number of states and empires since then, amazingly , Jerusalem was never the capital of any other state. It has had a Jewish majority since 1830 and was formally re-established as the capital of a Jewish state in 1950.

The Knesset resolution, adopted January 23, 1950, stated, “[w]ith the creation of a Jewish state, Jerusalem again became its capital” (emphasis added). David Ben Gurion, one of the founding fathers of Israel and its first Prime Minister, argued against the adoption of a proposed resolution declaring Jerusalem to be the capital of Israel, prospectively, and persuaded the Knesset to adopt the resolution quoted above. Ben Gurion stated, “[for the State of Israel there has always been and always will be one capital only -Jerusalem the eternal. Thus it was 3,000 years ago – and thus it will be, we believe, until the end of time.”

In a fitting tribute to the celebration of the 3000th anniversary of King David’s establishing Jerusalem as the capital, Senators Dole and Kyl introduced a Bill — the “Dole-Kyl Bill”  —  to move the U.S. Embassy in Israel from Tel Aviv to Jerusalem. The Dole-Kyl Bill was adopted, with some amendments, on October 24, 1995, by a vote of 93 to 5 in the Senate, and a vote of 374 to 37 in the House of Representatives, and became law on November 8, 1995.

I was privileged to play a very small part in its adoption. The Bill was introduced by Senators Dole and Kyle when Dole was running for President. President Clinton was opposed to the Bill and got the Justice Department to write a memorandum that it was unconstitutional. Douglas Feith, who was working with Senator Kyle and, I believe, played a major role in drafting the Bill, called me and asked me to review the Bill and, if I thought it was constitutional, to write an article to that effect. I wrote an article, which was published in the Legal Times, Oct. 9, 1995, and reprinted in the Congressional record, Oct. 10, 1995.

The law, to be cited as the Jerusalem Embassy Act of 1995 (“Act”), lists a number of Congressional findings, including that:

(1) Each sovereign nation, under international law and custom, may designate its own capital.

(2) Since 1950, the city of Jerusalem has been the capital of the State of Israel.

(3) The city of Jerusalem is the seat of Israel’s President, Parliament, and Supreme Court, and the site of numerous government ministries and social and cultural institutions.

(4) The city of Jerusalem is the spiritual center of Judaism… .

(5) From 1948–1967, Jerusalem was a divided city and Israeli citizens of all faiths as well as Jewish citizens of all states were denied access to holy sites in the area controlled by Jordan.

(6) In 1967, the city of Jerusalem was reunited during the conflict known as the Six Day War.

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(15) The United States maintains its embassy in the functioning capital of every country except in the case of our democratic friend and strategic ally, the State of Israel.

(16) The United States conducts official meetings and other business in the city of Jerusalem in de facto recognition of its status as the capital of Israel.

A “Statement of the Policy of the United States” provides:

(1) Jerusalem should remain an undivided city … ; (2) Jerusalem should be recognized as the capital of the State of Israel; and (3) the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999.

To ensure compliance, Congress relied on the power of the purse. Section 3(b) provides:

Not more than 50 percent of the funds appropriated to the Department of State for fiscal year 1999 for ‘‘Acquisition and Maintenance of Buildings Abroad’’ may be obligated until the Secretary of State determines and reports to Congress that the United States Embassy in Jerusalem has officially opened.

The Jerusalem Embassy Act requires the Secretary of State to submit detailed reports every six months on the action taken by the State Department to implement it, requires that the Embassy be established in Jerusalem no later than May 31, 1999, and imposes significant monetary sanctions if the State Department fails to comply. Yet, more than 20 years since its adoption and 18 years after the deadline for opening of the U.S. Embassy in Jerusalem, it has still not been opened. How did that happen?

When President Clinton realized that the Bill had a veto-proof majority, he agreed not to veto it in exchange for a six month waiver provision. An Amendment was added to the Bill which permits the President to

suspend the limitation set forth in section 3(b) for a period of six months if he determines and reports to Congress in advance that such suspension is necessary to protect the national security interests of the United States (emphasis added).

It further permits the President to

 suspend such limitation for an additional six month period at the end of any period during which the suspension is in effect under this subsection if the President determines and reports to Congress in advance of the additional suspension that the additional suspension is necessary to protect the national security interests of the United States (emphasis added).

After the waiver had been invoked a few time, the Senate held hearings in which Senator Dole made very clear that the intent was to permit a waiver once or twice, not permanently. Nevertheless, the waiver has been invoked by every President every six months.

During the campaign, President Trump promised several times to move the embassy to Jerusalem. It remains to be seen whether he too will invoke the waiver when it expires at the end of May, or will take steps to move the Embassy. At the AIPAC Conference, Vice President Pence said that President Trump is giving “serious consideration” to moving the embassy to Jerusalem.

Opponents of the move say that moving the embassy would violate international law. Would it? In my view, it would not, notwithstanding the many UN General Assembly and Security Council resolutions condemning Israeli reunification of Jerusalem, application of Israeli law to all of Jerusalem, and legislation making Jerusalem the capital of Israel.

Application of Israeli Law to all of Jerusalem

On June 27, 1967, the Knesset adopted several laws that had the effect of extending application of Israeli law to East Jerusalem. One week later, the UN General Assembly adopted Resolution 2253 (July 4, 1967). It states, in part,

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 any action which would alter the status of Jerusalem;

Ten days later, on July 14, 1967, it adopted Resolution 2254, which:

  1. Deplores the failure of Israel to implement General Assembly resolution 2253;

and

  1. Reiterates its call to Israel in that resolution to rescind all measures already taken and to desist forthwith from taking any action which would alter the status of Jerusalem

Ten months later, on May 21, 1968, the Security Council adopted Resolution 252. It states:

The Security Council,

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  1. Deplores the failure of Israel to comply with the General Assembly resolutions mentioned above;
  2. Considers that all legislative and administrative measures and actions taken by Israel … which tend to change the legal status of Jerusalem are invalid and cannot change that status;
  3. 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.

A year later, on July 3, 1969, the Security Council adopted Resolution 267. It states:

The Security Council,

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  1. Reaffirms its resolution 252 (1968);

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  1. Censures in the strongest terms all measures taken to change the status of the City of Jerusalem;
  2. Confirms that all legislative and administrative measures and actions taken by Israel which purport to alter the status of Jerusalem…are invalid and cannot change that status;
  3. Urgently calls once more upon Israel to rescind forthwith all measures taken by it which may tend to change the status of the City of Jerusalem, and in future to refrain from all actions likely to have such an effect;

Making United Jerusalem the Capital of Israel

On July 30, 1980, the Knesset adopted a law titled “Basic Law: Jerusalem, Capital of Israel.” It states:

  1. Jerusalem, complete and united, is the capital of Israel.
  2. Jerusalem is the seat of the President of the State, the Knesset, the Government and the Supreme Court.
  3. The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of different religions to the places sacred to them or their feeling towards those places.

Three weeks later, on August 20, 1980, the Security Council adopted Resolution 478, which states:

The Security Council,

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Deeply concerned over the enactment of a “basic law” in the Israeli Knesset proclaiming a change in the character and status of the Holy City of Jerusalem…

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  1. 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 … ;

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  1. 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 and calls upon:

(a) All Member States to accept this decision;

and, most on point, calls upon

(b) Those States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City…

Just a few months ago, on December 23, 2016, the Security Council adopted Resolution 2334, in which it

  1. Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law…;
  2. Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem…;
  3. Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations;

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  1. Calls upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.

Notwithstanding these and other resolutions by the General Assembly and Security Council, moving the US Embassy to Jerusalem would not violate international law. The UN Charter does not give the General Assembly the authority to adopt binding resolutions. Its resolutions are recommendations which States are free to accept or reject. The Security Council does have the authority to adopt resolutions that are legally binding. However, only resolutions adopted under Chapter VII of the Charter are binding. None of these resolutions were adopted under Chapter VII, and are, therefore, not binding. Moreover, these resolutions refer to East Jerusalem. The embassy can be — and the general expectation is that it would be — located in West Jerusalem. Thus, none of these resolutions have any bearing on it.

In considering how much weight the recommendations of the General Assembly and Security Council should be given, it’s worth noting that no such resolutions were adopted in the 19 years that Jordan held Jerusalem. And, unlike Israel, not only did Jordan deny free access to holy sites, it destroyed 57 synagogues and desecrated the Mount of Olives cemetery, using its grave stones to build roads and even latrines. Yet, the General Assembly and Security Council remained silent.

Various Arab leaders have warned President Trump of dire consequences if he moves the Embassy. Palestine Media Watch [PMW] has posted a list of 25, culled from many more. For example:

The PA’s Prime Minister Hamdallah warned that it would lead to

“An explosion of the security situation in the entire region.” (Official PA daily Al-Hayat Al-Jadida, Jan. 12, 2017).

Hanna Issa, Secretary General of the PA Islamic-Christian Council for Jerusalem and Fatah Revolutionary Council member, said:

“This is a dangerous situation that threatens the nation and turns the war into a religious war. … Trump’s statements about transferring the embassy… mean the annexation of East Jerusalem and declaring it the ‘capital of Israel.’” (Official PA daily Al-Hayat Al-Jadida, Jan. 14, 2017)

Fatah Revolutionary Council member Raed Radwan said:

“Transferring the American embassy from Tel Aviv to Jerusalem… is a type of aggression towards the Palestinian people, its holy places, and its principles, and an explicit declaration that the American embassy sides with the Israeli occupation.” (Official PA daily Al-Hayat Al-Jadida, Jan. 11, 2017)

The official PA daily reported:

“The Fatah Movement said that if the American embassy is transferred to East Jerusalem … the gates of hell will open in the region and in the world. … [T]his will prevent any chance of peace and stability in the region.

Terrible as these are, they are mild compared to the statements made by Arab states in the UN General Assembly when it was considering the partition plan, or by Arab leaders in the days preceding the 1967 war. In any event, the United States should not make its decision based on Arab threats.

Ironically, several states including the US, have consulates in Jerusalem that function as embassies to the Palestinian Authority. Nobody seems to object to these on the ground that the status of Jerusalem has not been decided.

New Bills have been introduced in the House and the Senate to require that the Embassy be moved to Jerusalem. Although the two differ, in general they provide that:

It should be the policy of the United States to recognize Jerusalem as the undivided capital of the State of Israel, both de jure and de facto

and that,

the President should immediately implement the provisions of the Jerusalem Embassy Act of 1995 (Public Law 104–45) and begin the process of relocating the United States Embassy in Israel to Jerusalem

and amend the Jerusalem Embassy Act of 1995 by deleting the waiver provision.

As of [date], the House Bill was still in a committee, and there has been no action on the Senate Bill.

            The Heritage Foundation, a prestigious conservative think tank, stated in a recently issued report:

President Trump’s commitment to move the U.S. embassy from Tel Aviv to Jerusalem would correct a historic anomaly … . However, moving the embassy could ignite protests, riots, and anti-American backlashes among Palestinians, Arabs, and Muslims.

It recommends that the embassy be moved to Jerusalem, but that the US should explain that the move does not change other aspects of U.S. policy. The report states:

The U.S. should make it clear that the borders and final status of Jerusalem should be determined through negotiations; that the embassy move would not preclude a Palestinian state; that the U.S. consulate-general in Jerusalem would continue to function as the u.S. representative to the Palestinian authority; and that no changes would be made in the status of Muslim holy sites, which would continue to be administered by Jordan.

[Arutz Sheva, Mar. 29, 2017]

Malvina Halberstam is a professor of law at the Benjamin N. Cardozo School of Law, Y.U. She served as Counselor on International Law  in the U.S. Department of State, Office of the Legal Adviser.

This is one of four lectures presented April 15-18, 2017,  at the Lake Las Vegas Westin in Henderson Nevada. The material may not be reproduced , in whole or in part, without the author’s written permission, but may be quoted with appropriate attribution.