Is Jerusalem really the capital of Israel?

"The relocation of the United States embassy to Jerusalem will send a clear message to the world that Jerusalem is the recognized capital of the State of Israel…. The fact that Israel stands out as the only country that does not have our embassy located in its capital is wrong and must be corrected immediately." – Former New York Governor George E. Pataki

The basic facts of the history of the Eternal City and its status according to both Jewish and international law are not well known. In the eyes of the world, Jerusalem is not a Jewish city, nor is it the legitimate capital of the Jewish state..

As opposed to most other countries, American law, as codified in the 1995 Jerusalem Embassy Act of the United States Congress, recognizes Jerusalem as Israel’s capital. In practice, however, it does not.

The issue that this Bill addresses is that of the disputed status of the city of Jerusalem. Historically, there have been Jewish, Muslim and Christian claims made on this city.

The status of Jerusalem as Israel’s capital is contested by the surrounding Arab states. Any area of land once occupied by Muslims is considered to be holy and consecrated [Dar al-Islam], so that rule by any other group is an affront and is not to be tolerated. Many followers of Islam and a large portion of the Arab population of the Middle East believe that it must be brought back under their rule. It is to be remembered, however, that Jerusalem was never the capital of an independent Arab or Muslim state.

After the 1948 War of Israeli Independence, Jerusalem was a divided city and was only reunited nineteen years later during the Six-Dar War. It was soon made the national capital. This was established in the form of a Basic Law. Since Israel has no constitution, this legal construction forms the most basic type of legislation in the nation. The general structure of the governmental system and the entire foundation of Israeli law and jurisprudence are guided by the use of Basic Laws. Basic Law: Jerusalem, Capital of Israel [1] (in the absence of a constitution, this is the primary and fundamental type of national law) was thus used to expedite the transfer of all government agencies operating outside of the city to Jerusalem and to officially establish it as the capital city.

The United Nations issued Security Council Resolution 478 stating that all claims made by Israel were null and void. In 1997 and 1999, the United Nations again reiterated this point by passing both General Assembly Resolution 52/53 [2] and United Nations General Assembly Resolution 54/37 [3]. According to the 1997 Resolution all "administrative measures and actions taken by Israel, the occupying Power, which have altered or purported to alter the character and status of the Holy City of Jerusalem, in particular the so-called 'Basic Law' on Jerusalem and the proclamation of Jerusalem as the capital of Israel, were null and void and must be rescinded forthwith." This action was not without precedent. [4] The only member state to vote against the Resolution was Israel.

In 1995, the 104th Congress passed the Jerusalem Embassy Act of 1995 [5], in which the legislators stated 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…. (9) In 1990, the Congress unanimously adopted Senate Concurrent Resolution 106, which declares that the Congress 'strongly believes that Jerusalem must remain an undivided city in which the rights of every ethnic and religious group are protected.' (10) In 1992, the United States Senate and House of Representatives unanimously adopted Senate Concurrent Resolution 113 of the One Hundred Second Congress to commemorate the 25th anniversary of the reunification of Jerusalem, and reaffirming Congressional sentiment that Jerusalem must remain an undivided city."

The consensus of the Legislature, representing the America people, was that Jerusalem is and should be a city unified under Jewish rule. They set up a timetable for the implementation of the transferal of the American Embassy to Israel from Tel-Aviv to the actual capital. Such an act would create both de facto and de jure recognition by the United States of America of the status of Jerusalem. Said move was to occur no later than 1999. Ten years have gone by with no moves on the part of the United States toward establishment on a Jerusalem embassy.

However, Section 7 of the Act allowed the president the authority to use six-month waivers on the actions called for earlier in the document. Such waivers can be used indefinitely, every six months, if the President "reports to Congress in advance that such suspension is necessary to protect the national security interests of the United States." The language of this clause does not indicate that the chief executive must prove such security concerns to Congress, but rather that he report that such is the case.

The most likely explanation of continued inaction on this issue is that both former Presidents Clinton and Bush have used such waivers more for political reasons than for any that held significance to the safety of America. Clinton used Jerusalem as a bargaining chip when he helped to broker the Oslo Accords, seeking to secure a legacy as a peacemaker for himself. During his campaign, Bush promised to act as directed by Congress in 1995, but in June 2001, he stated that he believed that it was "necessary to protect the national security interests of the United States" [6] by not renewing the waiver. The probable cause was his commitment to the war on terror. Angering the Arab states would have endangered the fragile alliance that he had built in the region.

There have been numerous instances of politicians and leaders trying to get this law acted upon, but to no avail. In 1999, a bi-partisan coalition of Senators led by Jon Kyl (R-AZ) and Joseph Lieberman (D-CT) tried to force a move on the part of the Clinton administration, threatening to amend the Act by removing the Presidential Waiver right if the president did not act on his obligations. [7] In 2003, a resolution was introduced that called for "the recognition of Jerusalem as the undivided capital of Israel before the United States recognizes a Palestinian state, and for other purposes."[8]

The excuse that security concerns for Americans are at stake no longer can be believed as a credible excuse for delaying recognition of Jerusalem as the eternal capital of the Jewish nation. It only weakens Israel if they lose control over the city. To have hostile Arabs in the midst of the declared center of government, armed with modern weapons of destruction, such as rockets and grenade launchers, would be a knife sticking directly into the heart of the capital.

Were America really as concerned with security concerns and foreign policy issues that ensure a safe and protected American body politic, then they would have been spending more time previous to 9/11 investigating Iran and Saudi Arabia. One is rapidly becoming a nuclear power; the other provided the manpower and quite possibly the bankroll for the terror attacks of 2001. Instead, successive governments have focused on the security ramifications of allowing Israel her territorial rights, assuming that such matters would affect the stability of the region more than nuclear proliferation or the financing of terror networks.

It is unlikely that President Obama will act on this legislation. Caroline Glick wrote in the Jerusalem Post that “According to reports published last week in Yediot Aharonot and Haaretz, President Barack Obama's in-house post-Zionist, White House Chief of Staff Rahm Emmanuel, told an American Jewish leader that for Israel to receive the administration's support for preventing Iran from acquiring nuclear weapons, it must not only say that it supports establishing a Palestinian state in … Jerusalem [Emphasis added]…” The White House seems to be using Jerusalem as a bargaining chip again. Such a stance does not seem compatible with the enforcement of the Jerusalem Embassy Act. As long as American can give the Arabs hope of gaining part of Jerusalem, it does not pay for them to create antagonism and weaken the value of their bargaining chip by emphasizing any sort of Israeli sovereignty over it.

Furthermore, Emanuel has expressed his support for Yossi Beilin’s Geneva Initiative (http://tinyurl.com/comyam) which states that “The Parties [Israel and the PLO] shall have their mutually recognized capitals in the areas of Jerusalem under their respective sovereignty.” There seems to be an ideological reason for not supporting Israeli claims to Jerusalem as well.

In the eyes of the world, Jerusalem remains a contested city and Tel-Aviv the de-facto capital.

This situation must not be allowed to continue.

Notes

[1] Passed by the Knesset on the 17th Av, 5740 (30th July, 1980) and published in Sefer HaChukkim No. 980 of the 23rd Av, 5740 (5th August, 1980), p. 186; the Bill and an Explanatory Note were published in Hatza'ot Chok No. 1464 of 5740, p. 287. www.mfa.gov.il/mfa/go.asp?MFAH00hf0

[2] www.mfa.gov.il/mfa/go.asp?MFAH0eos0

[3] www.mfa.gov.il/mfa/go.asp?MFAH0lxw0

[4] The Resolution begins with the following words: "Recalling its resolutions 36/120 E of 10 December 1981, 37/123 C of 16 December 1982, 38/180 C of 19 December 1983, 39/146 C of 14 December 1984, 40/168 C of 16 December 1985, 41/162 C of 4 December 1986, 42/209 D of 11 December 1987, 43/54 C of 6 December 1988, 44/40 C of 4 December 1989, 45/83 C of 13 December 1990, 46/82 B of 16 December 1991, 47/63 B of 11 December 1992, 48/59 A of 14 December 1993, 49/87 A of 16 December 1994, 50/22 A of 4 December 1995 and 51/27 of 4 December 1996...."

[5] US SENATE BILL "S. 1332". Public Law 104-45, 104th Congress, an Act.

[6] www.cnsnews.com

[7] Senators led by Jon Kyl (Rep-AZ) and Joseph Lieberman (Dem-CT) plan to send a letter to the White House urging Clinton not to exercise his right to waiver the embassy move on the grounds of national security. If Clinton does invoke the waiver, a draft of the letter says, "we will see no option but to amend the Jerusalem Embassy Act to remedy this unacceptable delay in moving the US Embassy to Jerusalem, and recognize Jerusalem as the capital of Israel." The envisaged amendment would remove the president's waiver right, and extend the deadline for the embassy to be moved from Tel Aviv for not more than 12 months. http://www.melchizedek.com/press/news_19990528-01.htm

[8] thomas.loc.gov/cgi-bin/query/C?c108:./temp/~c1085lT0aO

SJ 24 IS
108th CONGRESS
1st Session
S. J. RES. 24
"Providing for the recognition of Jerusalem as the undivided capital of Israel before the United States recognizes a Palestinian state, and for other purposes.

"IN THE SENATE OF THE UNITED STATES
November 14 (legislative day, NOVEMBER 12), 2003
Mr. BROWNBACK (for himself, Mr. CRAPO, Mr. SMITH, and Mr. SANTORUM) introduced the following joint resolution; which was read twice and referred to the Committee on Foreign Relations...."

Foreign Policy's "evenhandedness" unfair to Israel

Coming on the heels of the purported American statement that "any treatment of the Iranian nuclear problem will be contingent upon progress in the negotiations and an Israeli withdrawal from West Bank territory", is an interesting article in Foreign Policy that attempts to justify such behavior towards the only democracy in the Middle East.

On his blog on the website of Foreign Policy magazine (http://tinyurl.com/dlgcm5), Stephen M. Walt, co-author of the slanderous book The Israel Lobby and U.S. Foreign Policy, wrote that the American government has not taken an even handed approach to the Arab-Israel conflict. In his piece, entitled What would an evenhanded U.S. Middle East policy look like- Can the United States put pressure on Israel?: A user's guide, Walt discusses various ways in which the current Obama administration could pressure Israel to create a lasting peace.

What is disturbing in his article is the selective memory and deliberate skewing of facts that he exhibits in order to create a new and harmful, from the Jewish side at least, perspective on the Arab-Israeli conflict. There is no real novelty in what was written, but rather, it is instructive to break down and analyze Walt's thinking in order to better understand the prevailing thought in U.S. political and academic circles.

One of the key points Walt makes in the beginning of his article is that Washington has put “pressure on the Palestinians... has done that repeatedly -- and sometimes effectively -- over the past several decades.” After years of a negotiations with and concessions to the Palestinian Authority that have led to nothing but terror and death, it is interesting to note what exactly Walt puts forward as examples of American pressure on the Arabs of Judea and Samaria.

It is this thesis that the United States has pressured Israel less than the Palestinians and, as he points out later in his piece, that Israel is inherently wrong due to its policy of “occupation”, that must cause his government to increase the pressure on Jerusalem. If we were only pushed into concessions, his thinking goes, we would make peace.

It would be a mistake to dismiss this type of thinking as the ravings of a fringe lunatic. He is a professor of international affairs at Harvard University's John F. Kennedy School of Government. Furthermore, he has been careful to show the support his views hold amongst the American literati by quoting respectable institutions which agree with him. “Last week, the Economist called for the United States to reduce its aid to Israel if the Netanyahu government continues to reject a two-state solution.”

It is unnecessary to innumerate here the multiple compromises and withdrawals that the Israel government has undertaken in the hopes of reciprocity. The readers of this paper are aware of such facts more than most.

What is important is to recognize the fallacies inherent in the arguments put forth by Professor Walt and their ramifications, due to their wide acceptance, on American public opinion and foreign policy. Walt is merely a mirror of his times, as many of the attitudes prevalent in his work are reflected by the current American administration.

The first example Walt gives of effective American pressure on the Palestinians was “the United States supported King Hussein’s violent crackdown on the PLO cadres who were threatening his rule in Jordan.”

It seems reasonable on the surface, until one actually analyzes the idea being put forward. American non-involvement in an Arab civil war, in a country that America had been courting in the great game between itself and the Soviets, is suddenly turned into an unfair diplomatic advantage conferred on Israel at Arab expense.

In that vein, he goes on to contend that “During the 1980s, the United States refused to recognize the PLO until it accepted Israel’s right to exist.” One merely has to visit an Arab media monitoring website such as Memri.org to see that anti-semitic incitement has continued unabated since Oslo and that the PLO charter has never been revised to acknowledge the existence of Israel as a Jewish state. (http://tinyurl.com/c5swr5).

In direct contradiction to the above statement, Professor Paul Eidelberg of the Foundation for Constitutional Democracy recently wrote how “In violation of its agreement with Israel concerning the PLO, President Jimmy Carter allowed the PLO to establish an office in Washington, DC.”

Far from scorning terrorists for Israel's sake -and I wonder how such action would be considered a disproportionate tilt towards the Jews in Walt's eyes- the American government has actually financed terror against Israel civilians. Fatah currently enjoys American largess with training camps and American advisors for the “Palestinian police force” in both the PA and Jordan, both of which have had their graduates implicated in terror attacks.

In fact, Aaron Klein, author of Shmoozing with Terrorists has quoted Abu Yousuf, a senior officer of Abbas' Force 17 as saying "I do not think that the operations of the Palestinian resistance would have been so successful and would have killed more than 1,000 Israelis since 2000 and defeated the Israelis in Gaza without these [American] trainings."

I believe that all of the aforementioned statements of our dear, esteemed professor Walt show which direction the wind is blowing in the United States. Every concession that Israel has made without reciprocity has failed. Israel has destroyed settlements, expelled Jews, armed the PLO and has received not peace, but rather, incitement and increased violence. The willful distortion of facts that is taking place in what was once respected academia is frightening, and it is dire implications for the future of the Israeli-American relationship.

In case these arguments have failed to convince, let me close with a statement from the Boston Globe,

quoted in Walt's article. "[Israel has] to take the steps necessary for peace or risk compromising Israel's special relationship with America."

Israel has indeed taken its steps, the rest is up to the Arabs. It is towards them that President Obama should direct his pressure.

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