Trump’s decision on Jerusalem is meaningless under international law
US President Donald Trump’s announcement to recognise Jerusalem as the capital of Israel and relocate the US Embassy to the city came as a surprise to many in the international community. It need not have been as surprising as it was.
It was an election pledge and if we have learnt anything about Trump since he became president it is that he has shown a clear appetite to implement his election promises.
However, the issue of Jerusalem is no ordinary pledge. Trump has gone where no US president has dared to go since 1995. For more than 20 years, US presidents deferred recognition of Jerusalem due to the toxicity and polemic-generating nature of Jerusalem.
When one looks at the world’s great cities from London to Tokyo, from Paris to New York or the great cities of antiquity, such as Athens and Rome, no other place in the world generates as much hearty emotion, rage, anger, love and interest as Jerusalem.
Putting the political repercussions aside, Trump’s announcement is almost meaningless under international law. Trump and US policy (with a handful of other countries in the mix) are lone wolves within the landscape of international law.
Two years after the United Nations was formed, Resolution 181 was passed calling for Jerusalem to be a corpus separatum. Shrouded in mystic Latinity, this status recognised Jerusalem as a unique place — so unique that, almost like the Vatican, the usual machinery of a nation-state would not apply to it.
When Israel became a full UN member on May 11, 1949, the position of other member-states was that Jerusalem cannot be regarded Israel’s capital. Interestingly, the first notable actions of recognition came from the United Kingdom and Pakistan, which recognised East Jerusalem as the Palestinian capital.
Following the 1967 war, which resulted in Israel’s de facto control over Jerusalem, there were growing calls within Israel to pass legislation to recognise Jerusalem as its capital. Eventually, Israel’s Knesset passed legislation declaring a “complete and united” Jerusalem as its capital in July 1980. This law was declared null and void by the UN Security Council through Resolution 478. The Security Council has passed six resolutions on this issue that affirm that a “complete and united” Jerusalem cannot be regarded as the capital of Israel. The Security Council’s resolutions are legally binding on international matters.
The UN General Assembly, through Resolution 63/30 of 2009, stated that “any actions taken by Israel, the occupying Power, to impose its laws, jurisdiction and administration on the Holy City of Jerusalem are illegal and therefore null and void and have no validity whatsoever, and calls upon Israel to cease all such illegal and unilateral measures.”
General Assembly Resolution 66/18 was passed in 2012 affirming the continued validity of Resolution 63/30.
The International Court of Justice in its 2004 advisory opinion on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” described East Jerusalem as “occupied Palestinian territory.”
This would mean that Trump’s announcement, which makes no distinction between West and East Jerusalem, is not compatible with the opinion of the world’s most authoritative court.
Trump asserts that his announcement is merely reflective of the reality on the ground. That may be but the reality on the ground does not obtain legal validity if that reality itself is a consequence of unlawful imposition as declared by the United Nations and International Court of Justice. It also runs counter to most countries’ practice of locating their embassies in Tel Aviv.
Trump’s announcement panders to an internal American audience at the cost of the peace process. There are many facets to it, including the situation in Gaza as well as other settlements. Jerusalem, however, will be the largest obstacle. The international community recognises a two-state solution with Jerusalem as being an integral component of both states. The main problem is that, within Israel, there is no political appetite to give up any part of Jerusalem.
A poll by the Jerusalem Centre for Public Affairs conducted in 2012 indicated that 78% of Jewish voters asked said that they would reconsider voting for any politician if that person wanted to relinquish Israel’s control over the Old City and East Jerusalem.
Israeli politicians are fully aware of public opinion. The position within Israel today is no different than in 1995 when Yitzhak Rabin is famously said to have told schoolchildren that “if they told us peace is the price of giving up a united Jerusalem under Israeli sovereignty, my reply would be ‘let’s do without peace’.”
This position is not uniquely Israeli. Jerusalem’s splendour and aura are such that empires, rulers, knights, kings and generals as well as administrations across the best part of a thousand years have viewed peace as an inferior prize if it meant losing control over any part of Jerusalem.