Many categorical statements have emanated from the Israeli government about the yet-to-be-negotiated final status of Jerusalem. Indeed, Jerusalem was said to have been the stumbling block that led to the breakdown of the Camp David II negotiations in the summer of 2000, though the negotiating situation was far more complicated than that.
A brief review of the historical record can shed some light upon Jerusalem’s legal status, and thus point the way towards an ultimate solution for this most Holy City in the estimation of the three monotheistic faiths: Islam, Judaism, Christianity.
The Legal Status of Jerusalem
On September 25, 1971, then-Ambassador George H.W. Bush, speaking as U.S. Representative to the United Nations, delivered a formal Statement on Jerusalem before the UN Security Council explaining the official position of the United States government with respect to the City of Jerusalem. Therein, Ambassador Bush expressly repeated and endorsed a December 1969 Statement by U.S. Secretary of State William Rogers: “We have made clear repeatedly in the past two and one-half years that we cannot accept unilateral actions by any party to decide the final status of the city.”
Ambassador Bush then specifically repeated and endorsed a 1969 statement made before the Security Council by his predecessor, Charles Yost, criticizing Israeli occupation policies in East Jerusalem in the following terms:
“The expropriation or confiscation of land, the construction of housing on such land, the demolition or confiscation of buildings, including those having historic or religious significance, and the application of Israeli law to occupied portions of the city are detrimental to our common interests in the city.” Ambassador Bush then reaffirmed Yost’s prior statement that the United States government considers East Jerusalem to be “occupied territory and hence subject to the provisions of international law governing the rights and obligations of an occupying Power.”
Succinctly put, these latter obligations can be found in the Fourth Geneva Convention of 1949, which expanded upon and improved—but did not displace—the 1907 Hague Regulations on Land Warfare. The United States government is a party to both the Fourth Geneva Convention and The Hague Regulations, and Israel is bound by the terms of both treaties as well. Previously, Ambassador Yost had continued his 1969 statement in the following language:
…Among the provisions of international law which bind Israel, as they would bind any occupier, are the provisions that the occupier has no right to make changes in laws or in administration other than those which are temporarily necessitated by his security interests, and that an occupier may not confiscate 72 Palestine, Palestinians and International Law or destroy private property. The pattern of behavior authorized under the Geneva Convention of 12 August 1949 and international law is clear: the occupier must maintain the occupied area as intact and unaltered as possible, without interfering with the customary life of the area, and any changes must be necessitated by the immediate needs of the occupation.
I regret to say that the actions of Israel in the occupied portion of Jerusalem present a different picture, one which gives rise to understandable concern that the eventual disposition of East Jerusalem may be prejudiced and that the private rights and activities of the population are already being affected and altered.
My Government regrets and deplores this pattern of activity, and it has so informed the Government of Israel on numerous occasions since June 1967. We have consistently refused to recognize those measures as having anything but a provisional character and do not accept them as affecting the ultimate status of Jerusalem.
Then, Ambassador Bush continued his 1971 Statement as follows:
We regret Israel’s failure to acknowledge its obligations under the fourth Geneva Convention as well as its actions which are contrary to the letter and spirit of this Convention. We are distressed that the actions of Israel in the occupied portion of Jerusalem give rise to understandable concern that the eventual disposition of the occupied section of Jerusalem may be prejudiced. The Report of the Secretary General on the Work of the Organization, 1970-71, reflects the concern of many Governments over changes in the face of that City. We have on a number of occasions discussed this matter with the Government of Israel, stressing the need to take more fully into account the sensitivities and concerns of others. Unfortunately, the response of the Government of Israel has been disappointing.
All of us understand...that Jerusalem has a very special place in the Judaic tradition, one which has great meaning for Jews throughout the world. At the same time Jerusalem holds a special place in the hearts of many millions of Christians and Moslems throughout the world. In this regard, I want to state clearly that we believe Israel’s respect for the Holy Places has indeed been exemplary. But an Israeli occupation policy made up of unilaterally determined practices cannot help promote a just and lasting peace any more than that cause was served by the status quo in Jerusalem prior to June 1967 which,
I want to make clear, we did not like and we do not advocate re-establishing. Ambassador Bush then concluded his 1971 statement on Jerusalem by supporting what would later that day become Security Council Resolution 298
(1971), which provided in its most significant parts as follows:
. . ..
1. The Future Peace of Jerusalem reaffirming the principle that acquisition of territory by military conquest is inadmissible,
2. Deplores the failure of Israel to respect the previous resolutions adopted by the United Nations concerning measures and actions by Israel purporting to affect the status of the City of Jerusalem;
3. Confirms in the clearest possible terms that all legislative and administrative actions taken by Israel to change the status of the City of Jerusalem, including expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section, are totally invalid and cannot change that status;
4. Urgently calls upon Israel to rescind all previous measures and actions and to take no further steps in the occupied section of Jerusalem which may purport to change the status of the City or which would prejudice the rights of the inhabitants and the interests of the international community, or a just and lasting peace;
Security Council Resolution 298 (1971) became yet another violated resolution in “a long Train of Abuses and Usurpations “by Israel that were never enforced by the Security Council.
In any event, the Statements made by Bush and Yost have always represented the United States government’s official position on the numerous illegalities surrounding Israel’s conquest, occupation and illegal annexation of East Jerusalem since 1967. The comments on East Jerusalem that Bush made later in 1990 as U.S. President were to the same effect:
The President. Well, I’m not sure there was equivocation. My position is that the foreign policy of the United States says we do not believe there should be new settlements in the West Bank or in East Jerusalem. And I will conduct that policy as if its firm, which it is, and I will be shaped in whatever decisions we make to see whether people can comply with that policy. And that’s our strongly held view. We think it’s constructive to peace— the peace process—if Israel will follow that view. And so, there are divisions in Israel on this question, incidentally. Parties are divided on it. But this is the position of the United States and I’m not going to change that position.
Yost’s 1969 Statement, Bush’s 1971 Statement, and his 1990 comments are fully consistent with and indeed required by Article 1 of the Fourth Geneva Convention, which requires the United States government not only to respect but also to ensure respect for the terms of this Convention by other parties such as Israel “in all circumstances”.
As treaties, both the Fourth Geneva Convention and the Hague Regulations are deemed to be the “supreme Law of the Land” by Article VI of the United States Constitution. Contrary to the public Palestine, Palestinians and International Law suggestions made in the United States by the Israel Lobby and its supporters, the United States government is under legal obligation to support the vigorous application of the international laws of belligerent occupation to produce the termination of all illegal Israeli practices in Jerusalem as well as in the West Bank and Gaza Strip, together with the Golan Heights—including and especially illegal Israeli settlers and settlements.
The Political Problem of Jerusalem
For similar reasons, the United States government has never recognized Israel’s conquest and annexation of West Jerusalem as valid or lawful, either. That is why the U.S. Embassy to Israel still remains in Tel Aviv, not Jerusalem.
Nevertheless, the pro-Israel lobby in the United States and its beneficiaries in the U.S. Congress have systematically attempted to pressure successive U.S. Presidents into recognizing Jerusalem as the capital of Israel, even though such an act would enflame public opinion throughout the Muslim world—over 57 states and 1 billion people, a sixth of all humanity—against the United States. Such an act of formal diplomatic recognition would be a legal, political and diplomatic disaster that would prevent a peace agreement between Israel and Palestine and thus preclude a comprehensive Middle East peace settlement between Israel and the surrounding Arab states. Perhaps that is the Israel Lobby’s intention.
Undaunted, the U.S. Israel Lobby has continued apace bribing, threatening, and intimidating members of the U.S. Congress and the President to move incrementally towards an awesome “clash of civilizations” between the United States and the Muslim world over Jerusalem as forecast by Harvard’s Samuel Huntington. No point would be served here by reviewing the sordid history of the U.S. Israel Lobby’s efforts to move the U.S. Embassy from Tel Aviv to Jerusalem since that saga has recently been recounted elsewhere. Suffice it to say that the U.S. Israel Lobby procured passage by Congress of the so-called Jerusalem Embassy Act in 1995.7 Among other outrages too numerous to analyze here, section 3 of this statute provided in relevant part as follows:
STATEMENT OF THE POLICY OF THE UNITED STATES
(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.
Article 1, Section 10, Clause 1 of the United States Constitution has historically been interpreted to mean that such acts of diplomatic recognition are to be performed by the President. In deference thereto, Congress employed the word “should” instead of “shall” in the statute.
Nevertheless, in section 3(b) thereof Congress did wield its well-recognized constitutional “power of the purse” to cut State Department funding for “Acquisition and Maintenance of Buildings Abroad” unless and until “the United States Embassy in Jerusalem has officially opened.” But section 7 of the Statute permits the President to waive this fiscal sanction every six months on the grounds that “such suspension is necessary to protect the national security interests of the United States.” So far that is what President Clinton and President Bush Jr. have consistently done.
The Future Peace of Jerusalem
Dissatisfied with Congressional support which, while submissive to Zionist demands, had not yielded changes in actual U.S. policy, the Israel lobby proceeded to procure the passage of an even more strictly tailored piece of legislation that in a nutshell requires the U.S. President to recognize Jerusalem as the capital of Israel on official U.S. government documents, once again upon pain of fiscal sanctions—so-called “paper recognition”.
While President Bush Jr. stated that he will ignore this requirement on the grounds that it is unconstitutional— infringing upon the President’s constitutional power to perform such acts of diplomatic recognition—there was such an uproar throughout the Muslim world over this “paper recognition” of Jerusalem as being the capital of Israel by the United States Congress that the Arab TV Network Al Jazeera invited this author to appear live by satellite on their evening news program for Thursday, 17 October 2002 in order to critique this statute under U.S. constitutional law and under international law, as well as to explain how this statute fits within the overall conduct of U.S. foreign policy toward the Middle East and the Muslim world. In further reinforcement of the deleterious effects that changes in U.S. policy on Jerusalem have on U.S. interests—as opposed to those of Israel—on 29 October 2002 CNN reported that a U.S. diplomat had been murdered the previous day in Amman, Jordan because of this statute’s recognition of Jerusalem as the capital of Israel.
Clearly, it is doubtful that the Israel Lobby will be satisfied with Bush Jr.’s statement that he will ignore Congress’s “paper recognition” of Jerusalem as the capital of Israel. But it is not clear that President Bush Jr. will really honor his pubic commitment to ignore this legislation. The battle for Jerusalem will continue in Washington, DC as well as in the streets of Palestine, Israel, and elsewhere.
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|Allen L. Jasson|