On December 6th, President Trump announced his decision to officially recognize Jerusalem as the capital of Israel and to instruct the State Department to begin the process of relocating the U.S. Embassy from Tel Aviv to Jerusalem. Two days later, at a special meeting of the United Nations Security Council, the other 14 members of the Council, including U.S. allies such as France, the United Kingdom and Italy, ganged up on the United States to condemn President Trump’s decision. Allies and adversaries of the U.S., one after the other, claimed that President Trump’s decision had defied international consensus on how to achieve a viable two-state solution, violated international law and risked destabilizing the region as well as imperiling the peace process. Bolivia’s ambassador was the most strident, demanding that the Security Council take action against President Trump’s decision if it wanted to avoid becoming “an occupied territory.”
To add insult to injury, the UN ambassadors from five member states of the European Union – the United Kingdom, France, Italy, Sweden and Germany – further criticized President Trump’s decision in a joint statement they read following the adjournment of the Security Council meeting. They claimed the decision “is not in line with Security Council resolutions and is unhelpful in terms of prospects for peace in the region.”
U.S. Ambassador to the UN, Nikki Haley, stood her ground in her remarks to the Security Council. She chastised those “countries that lack any credibility when it comes to treating both Israelis and Palestinians fairly.” All President Trump had done, she explained, was to formally acknowledge the reality that for nearly 70 years “the city of Jerusalem has been the capital of the State of Israel, despite many attempts by others to deny that reality. Jerusalem is the home of Israel’s parliament, president, prime minister, Supreme Court, and many of its ministries. It is simple common sense that foreign embassies be located there.”
President Trump’s change in American policy to reflect this reality does not mean that the United States has taken a position on the specific boundaries or borders within Jerusalem as a whole. “The specific dimensions of sovereignty over Jerusalem are still to be decided by the Israelis and the Palestinians in negotiations,” Ambassador Haley said.
Notably, President Trump’s announcement specifically called for maintaining the status quo at the holy sites in the Old City of Jerusalem. There is not even the slightest hint that the U.S. would be moving its embassy to the Old City or to any part of “East Jerusalem.” However, the critics of President Trump’s decision refuse to allow for the possibility of a U.S. embassy located anywhere at all in the entire city of Jerusalem – even in what is now referred to as “West Jerusalem,” which is an undisputed section of Jerusalem.
“Israel, like all nations, has the right to determine its capital city,” Ambassador Haley said. “In virtually every country in the world, U.S. embassies are located in the host country’s capital city. Israel should be no different.”
The principal objections to President Trump’s decision are that it sets back the chances for a peaceful resolution of the Israeli-Palestinian conflict based on the two-state solution, it is apt to destabilize and trigger violence in the region and beyond, and it violates international law.
The first two objections can be given short shrift. For seventy years, there has been no peace because the Palestinians have consistently pursued an absolutist policy rejecting the idea of a Jewish state living side by side with an Arab state. The Palestinians and their Arab state neighbors rejected the partition recommended in UN General Assembly Resolution 181 in 1947. The Palestinians did not declare an independent state of their own when they had the chance. They embarked instead on a campaign of violence. Hamas, Palestinian President Abbas’s coalition partner, still calls for Israel’s destruction. Abbas, who has incited sectarian violence and rewards terrorists, spurned a peace offer from Israel in 2008 that would have resulted in Israel’s withdrawal from virtually all of the West Bank and the relinquishment of Israeli control of Jerusalem’s Old City in favor of placing it under international control. Abbas has refused to this day to agree to direct unconditional negotiations with Israel, a position which long preceded President Trump’s decision.
As for the violence that critics of President Trump’s decision seek to lay at his feet, violence has indeed erupted, not only in the Middle East but elsewhere including Europe. However, President Trump’s decision is being used as a pretext for such behavior that Palestinians and Islamists throughout the world have displayed time and again. We have seen excuses for violence ranging from cartoons and an obscure anti-Muslim video to the installation of metal detectors at the Temple Mount (despite the presence of metal detectors at mosques in other countries). Foreign policy and national security decisions cannot be held hostage to mob rule. Giving in to threats of a violent reaction will only encourage the increased use of such threats to thwart other controversial decisions.
Turning to the objection to President Trump’s decision based on “international law,” the critics have claimed that his declaration recognizing Jerusalem as Israel’s capital and decision to move the U.S. embassy from Tel Aviv to Jerusalem violate a whole host of UN General Assembly and Security Council resolutions. Sovereignty over Jerusalem, they have argued, is a “final status” issue to be negotiated between the parties themselves. They have argued this position while also holding on to the characterization of “East Jerusalem” as part of the “Occupied Palestinian Territories” in the various UN resolutions they cite. In short, the Israel bashers have no problem exploiting UN resolutions to pre-determine the final status of “East Jerusalem,” which contains the holy sites of Judaism, Christianity and Islam, as belonging to the Palestinians.
Moreover, the UN resolutions that the critics of President Trump’s decision rely upon to support their objections on “legal” grounds do little to help their case. As a matter of international law, there is nothing in the United Nations Charter that grants the General Assembly any power that would render its resolutions, declarations, or recommendations legally binding or enforceable. In any case, the Palestinians and their Arab state neighbors, including Jordan, which illegally seized and annexed the Old City of Jerusalem in 1948, completely rejected the original UN two-state partition resolution, Resolution 181. Their attempt to invoke that resolution or subsequent General Assembly resolutions now to rationalize their position on international law grounds is specious at best.
President Trump’s critics also point for support of their position to UN Security Council resolutions stating that East Jerusalem is part of the “Occupied Palestinian Territories,” declaring Israel’s settlements in East Jerusalem to be illegal, concluding that Israel’s assertion of sovereignty over a unified Jerusalem is null and void, and calling upon member states to withdraw their embassies from the Holy City of Jerusalem. These resolutions were not explicitly adopted in the exercise of the Security Council’s Chapter VII enforcement powers, which is significant in determining whether they are legally binding unless they are expressly framed as “decisions” of the Council or, at the very least, use such words as “demand” in the applicable provisions. Words and phrases such as “calls upon,” “urges,” “reaffirms,” “underlines,” and “stresses” are deemed insufficient by legal experts in the field to reflect an intention on the part of the Security Council to create a legally binding obligation on any of the member states of the UN.
Many of the ambassadors speaking at Friday’s Security Council meeting invoked Security Council Resolution 478 as a principal basis for declaring President Trump’s decision to be in violation of international law. However, Resolution 478 used the word “decides” only in the context of refusing to recognize Israel’s “Basic Law” declaring Israeli sovereignty over the “Holy City of Jerusalem” and “such other actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem.” Resolution 478 then “calls upon” (not demands) the member states “to accept this decision,” which means it is up to each member state to agree or not. Moreover, Resolution 478 only “calls upon” the member states “that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City.” Again, this does not constitute a legally binding obligation. Moreover, it would not appear to apply explicitly to the western sector of Jerusalem, outside of the Old City where the holy sites of Judaism, Christianity and Islam are located.
President Trump’s decision in no way is inconsistent with Resolution 478. To the contrary, as discussed above, President Trump specifically called for maintaining the status quo at the holy sites in Jerusalem and left it to Israel and the Palestinians to negotiate the final status of the boundary lines within Jerusalem as a whole. President Trump’s announcement of the intent to relocate the U.S. embassy to Jerusalem, particularly if relocated outside of the boundaries of the Old City as it most certainly will be, would not be enjoined by Resolution 478’s express provisions, which are not legally binding in any event. Moreover, it is way too premature to consider the legality of such a move since it is likely to take three years or more to occur.
The critics also have referred to Security Council Resolution 2334, passed at the end of last year after the Obama administration decided to abstain rather than exercise its veto power. Resolution 2334 principally addresses Israeli settlements in the occupied territories, which, as in previous resolutions, are said to include “East Jerusalem.” It states 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.” Although most of the resolution’s operative paragraphs use non-binding words and phrases such as “calls upon,” the resolution does once refer to the Security Council’s “demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard.” (Emphasis added)
Whichever provisions of Resolution 2334 are legally binding on Israel and all other UN member states, President Trump’s December 6th decision does not have any bearing on the sensitive issue of Israeli settlements or on Israel’s claims to sovereignty over “East Jerusalem.” Thus, invoking this infamous anti-Israeli resolution in the context of President Trump’s decision is a red herring.
“Over many years,” Ambassador Haley said in her remarks to the Security Council, the United Nations has been one of the world’s “foremost centers of hostility towards Israel.” The Security Council became a kangaroo court on Friday, turning a perverted version of “international law” against the Trump administration for its just defense of the Jewish state of Israel and Israel’s right to choose its own capital as every other member state has the right to do.
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