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Transfer of U.S. Embassy to Jerusalem Statement of the President of the International Progress Organization
Vienna, 30 May 2018/P/RE/26917c-is
The decision of President Donald Trump, in implementation of the US Congress
“Jerusalem Embassy Act of 1995,” to move the United States Embassy to
Jerusalem is at variance with the principles and policies of the United
Nations and undermines the US Administration’s self-declared aim to broker
lasting peace between Israelis and Palestinians.
The facts are obvious. After the Arab-Israeli war of 1948/1949, Jerusalem
was divided along armistice lines drawn between Israel and Jordan, with West
Jerusalem as part of Israel and East Jerusalem being ruled by the Hashemite
Kingdom of Jordan. A small portion of the territory –
in the area between the western and southern parts of the Walls of Jerusalem
and Musrara
– was left as no man’s land.
After the war of 1967, this portion of the territory and Arab Jerusalem east
of the armistice line became occupied territory where the provisions of the
Fourth Geneva Convention of 1949 apply, prohibiting any alteration of the
status of the territory seized by force. Since after the establishment of
the State of Israel a number of embassies from Latin American countries plus
the Netherlands were located in Israeli West Jerusalem. This changed after
30 July 1980 when the Israeli Knesset passed the Basic Law entitled
“Jerusalem, Capital of Israel.” The law declares “Jerusalem, complete and
united,” i.e. including Arab East Jerusalem with the site of
Haram al-Sharif, as
the capital of Israel. This legislative step was tantamount to
annexation, a point
made abundantly clear by subsequent Israeli governments. Accordingly, the
Guidelines of the Government of Israel, 1996, then as now headed by Benjamin
Netanyahu, stipulated that “Jerusalem, the capital of Israel, is one city,
whole and united, and will remain forever under Israel’s sovereignty.”
In view of these facts, President Trump’s
decision may well be seen as creating a precedent in terms of recognizing
Israeli claims of sovereignty over Arab East Jerusalem. His formulation, “I
have determined that it is time to officially recognize Jerusalem as the
capital of Israel,” points in that direction. He did not say “West
Jerusalem” (referring to the status quo ante before the 1967 seizure of the
Arab part of the city) nor did he mention “East Jerusalem” as capital of a
future Arab State. Apart from this probably deliberate ambiguity, the caveat
in the President’s solemn Proclamation of 6 December 2017 – “We are not
taking a position on any final status issues, including the specific
boundaries of the Israeli sovereignty in Jerusalem, in the resolution of
contested borders” – is not consistent with the logic of the actual move
from Tel Aviv to Jerusalem. Under the Israeli Basic Law, the city, West and
East, is one undivided
territorial entity
where Israeli law exclusively applies. As always in international
realpolitik, what counts are the facts on the ground, not the words.
Exactly the above-mentioned fact – that West and East Jerusalem cannot
anymore be conceptually separated under effective Israeli control and
legislation – was the reason why the UN Security Council insisted right
after the Knesset decision of 1980 that all “States that have established
diplomatic missions at Jerusalem” should withdraw their missions from the
city, a formulation that also means West Jerusalem. (Resolution 478 [1980]
of 15 November 1980, adopted by 14 votes to none, with the abstention of the
United States) As a result, the concerned countries relocated their
embassies back to Tel Aviv.
In strictly legal terms, Israel has made any future negotiations about final
status issues and delimitation of borders (mentioned in the US President’s
Proclamation) almost impossible. This follows from two Amendments of the
Basic Law of 1980, providing that “no authority that is stipulated in the
law of the State of Israel or of the Jerusalem Municipality may be
transferred either permanently or for an allotted period of time to a
foreign body” (Amendment 1), and that any future amendment to the Law
requires a supermajority of 80 out of 120 votes in the Knesset in order to
decide over rescinding sovereignty over any area of unified Jerusalem
(Amendment 2). This means that any final status negotiations between
Israelis and Palestinians over Jerusalem, hinted at by President Trump and
the US State Department, have become a distant dream.
The UN Security Council has made the legal issues crystal clear. In
resolution 476 (1980) of 30 June 1980, the Council reaffirmed the basic
principle of international law that “acquisition of territory by force is
inadmissible” and reiterated that all measures which alter the “geographic,
demographic and historical character and the status of the Holy City
of
Jerusalem are null and void and must be rescinded” in compliance with
relevant resolutions of the Council. In resolution 478 (1980) of 20 August
1980 the Council reiterated this position and further decided “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.” There is one basic problem, however. The above and all other resolutions in matters of Israeli occupation or annexation, though mostly adopted by an overwhelming majority of member states (14 votes out of 15), lack any enforcement mechanisms because they are – due to the threat of a US veto – not based on Chapter VII of the UN Charter. This has also been the case with the most comprehensive resolution so far, 2334 (2016) of 23 December 2016. As regards the general legal framework concerning the Jerusalem dispute it must also be stated that the UN General Assembly’s “Partition Plan” of 1947 – that provided for a special international status of Jerusalem as corpus separatum – is, in strictly legal terms, of the nature of a recommendation. This has further added to the ambiguity of debates over the status of the city.
Concerning the actual relocation of the US Embassy to Jerusalem – on 14 May
2018, a date with huge symbolic importance, coinciding with the day when
Israel declared independence 70 years ago, the basic issues in terms of
international law can be summed up as follows:
* In view of the Knesset Basic Law of 1980, effectively annexing Arab East
Jerusalem and stipulating the municipality boundaries as one indivisible
entity of West and East Jerusalem, the United States decision, by
implication, ignores one of the foundational principles of modern
international law, namely the inadmissibility of the acquisition of
territory by force.
* Consequently, the decision is at variance with relevant Security Council
resolutions on Jerusalem, in particular 476 (1980) and 478 (1980),
especially the latter resolution’s Paragraph 5(b). The fact that these
resolutions are not based on Chapter VII, and thus without enforcement
mechanisms, does not make the Israeli annexation legal nor does it make the
move of a foreign embassy to a municipal area that Israel considers as
undivided and under its permanent sovereignty (with occupied, now annexed,
East Jerusalem as integral part) a non-prejudicial administrative measure,
as President Trump appears to suggest.
* Furthermore, as regards the actual new location, the US Embassy – in the
Arnona neighborhood of Jerusalem – is partly situated in the above-mentioned
“No Man’s Land” between the armistice lines of 1949, i.e. in technically
occupied territory (which was not part of West Jerusalem under the pre-1967
borders).
* In more general terms it must further be stated that, under modern
international law as established after the two World Wars, claims of
territorial sovereignty cannot be derived from religious sources or
revelation, whether Jewish, Muslim or Christian. The issue of Jerusalem is
undoubtedly also one of the protection of equal rights of the three
monotheistic religions, but on the basis of the secular norms of human
rights, in particular freedom of religion. This means that territorial
issues can only be negotiated between the parties on the basis of generally
recognized norms of international law, not by reference to religious claims
of sovereignty – from whichever side.
The questions of international legality cannot be
separated from those of politics and peace in a wider sense. By his
unilateral decision (though in implementation of a Law of the US Congress),
the President of the United States has not cut the Gordian knot of the
Jerusalem conundrum, finally opening up new chances for a – so far elusive –
“peace process,” as was suggested by some commentators. If anything, he has
taken the United States out of the Middle Eastern equation and has
effectively relinquished the role of honest broker – or mediator – between
Israelis and Palestinians. Should a hope of “peace by diktat” have guided
his decision, it may ultimately prove to be one of the numerous
miscalculations of
realpolitik in the long history of
relations between states.
END/International Progress Organization/News Release/Transfer of U.S. Embassy to Jerusalem/2018-05-30/P/RE/26917c-is |