Moving the US embassy to Jerusalem goes against international and bilateral agreements, ignores the international consensus, and is a denial of Muslim and Palestinian historical and religious attachment to the city.

The preparations for the celebration of Israel’s Independence Day is underway in Jerusalem. However, this year it is different not only because of Israel’s 70th anniversary of their independence but for another festivity – the inauguration of the opening of the US Embassy in Jerusalem.

This opening comes in fulfillment to US President Donald Trump’s decision to recognize Jerusalem as the capital of Israel and to relocate the US embassy from Tel Aviv to Jerusalem.

For Israelis, both events are joyous occasions; but for the Palestinians, they are sad reminders of their loss of property, land, and capital. Moving the U.S. embassy to Jerusalem encompass the diplomatic recognition of Jerusalem as Israel’s capital (hence, of Israeli sovereignty over all or part of Jerusalem and denial of Palestinian rights in the city.) This raises a fundamental question: What is the legality of Trump’s unilateral act?

Back in November 1947, the United Nations partition plan envisaged Jerusalem as a separate “international city.” However, this plan was never implemented on the ground as the Jewish forces took over the Western part of the city and the Jordanian army conquered the Eastern side of the city including the Old City. The city was divided with barbed wires, minefields, and an impenetrable wall of hatred and enmity.

Eastern Jerusalem was united in June 1967 as the Israeli army swept through in a war that only lasted six days. Consecutive Israeli governments, whether from the left or the right, spared no effort to claim the united city as Israel’s capital. However, Israeli sovereignty over Jerusalem was not recognized internationally.

A disputed city

Neither the United Nations nor the international community, including the United States, recognized the legality of annexing East Jerusalem to Israel.

On September 13, 1993, Israel and the Palestine Liberation Organization (PLO) signed a historic Declaration of Principles, later called the “Oslo Accord,” at the White House in the presence of President Bill Clinton. This agreement sought to end decades of hostility and violence between the Palestinians and the Israelis by creating a “lasting and comprehensive peace settlement.”

The issue of Jerusalem along with several other issues such as refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, were postponed to the permanent status negotiations.

It was mutually agreed that the outcome of these permanent status negotiations issues should not be prejudiced or preempted by the parties. The PLO demanded as a precondition for signing the agreement that Israel would not take any action that would affect the status of Jerusalem. The Israeli government consented in a letter issued by its foreign minister to his Norwegian counterpart affirming to protect the Palestinian institutions of Jerusalem.

In the letter dated October 11, 1993, former foreign minister Shimon Peres wrote, “All the Palestinian institutions of East Jerusalem, including the economic, social, educational and cultural, and the holy Christian and Muslim places, are performing an essential task for the Palestinian population. Needless to say, we will not hamper their activity; on the contrary, the fulfillment of this important mission is to be encouraged.”

Not only Israel failed to protect Palestinian institutions, but it also closed all the important ones among them including the Orient House. The closure of the Orient House was eased by the unfortunate and untimely death of Faisal Husseini who incarnated in his person the historic Palestinian claim to Jerusalem.

PLO member Hanan Ashrawi reflected Jerusalemites despair in an interview by saying: “Israel practiced some of the cruelest measures against Jerusalemites; exorbitant taxes, no services, forming the Palestinian areas into ghettos, stealing their land, leaving them with 12 to 13 percent of their land, and thousands upon thousands of ID confiscations, the separation of families. Violence begets violence. Now matters have come to a head.”

Ashrawi believed it was a fundamental flaw of the Oslo Accords to postpone the issue of Jerusalem. Breaking a delicate status quo over the city, President Donald Trump declared in December 2017 that the US recognizes Jerusalem as Israel’s capital and would move its embassy from Tel Aviv to Jerusalem.

Jerusalem embassy concerns

Trump claimed the time had come to recognize what everyone already knows to be true. “Jerusalem is the capital the Jewish people established in ancient times.” He added: “This is nothing more or less than a recognition of the reality.”

Relocating the US embassy was long in the works. In 1989 Israel leased to the United States a plot of land to be the future site of the U.S. embassy in Jerusalem. The land was confiscated from Palestinian owners as demonstrated by Palestinian Professor Walid Khalidi in his report titled, The Ownership of the U.S. Embassy Site in Jerusalem, published in 2000.

The Jerusalem Embassy Act of 1995 and the Jerusalem Embassy Relocation Act of 1996 compelled the US president to relocate the embassy absent any national security risks. However, the law granted the president a waiver authority to suspend the law for successive periods of six months if he finds it in the “national security interests of the United States” to do so. That waiver authority has been used at six-month intervals ever since to prevent diplomatic rift with Arab and Muslim US allies.

Trump stated his administration has a peace proposal in the works and recognizing Jerusalem as the capital of Israel had “taken Jerusalem, the toughest part of the negotiation, off the table.”

Palestinian President Mahmoud Abbas disagreed and responded that with this action, the US had relinquished its historic role as an honest broker in any peace talks with Israel and that it cannot be considered any more a trusted mediator that can bring peace to the region.

Trump’s decision triggered international protest. Antonio Guterres, the UN secretary-general confirmed: “Jerusalem is a final status issue that must be resolved in final status negotiations between the two parties.” The UN General Assembly in a resolution called on the US to withdraw its recognition of Jerusalem as the capital of Israel. The text asserted that “any decisions and actions which purport to have altered the character, status or demographic composition of the Holy City of Jerusalem have no legal effect, are null and void and must be rescinded in compliance with relevant resolutions of the Security Council.”

French President Emmanuel Macron stated that the status of Jerusalem was not for one country to decide, but a matter of international security, consensus and law.

Britain’s prime minister, Theresa May stated: “We disagree with the US decision to move its embassy to Jerusalem and recognize Jerusalem as the Israeli capital before a final status agreement,” May affirmed. “The British Embassy to Israel is based in Tel Aviv, and we have no plans to move it.”

The international community considers Israel to have only de facto authority over West Jerusalem since 1948, and to be in military occupation of East Jerusalem since 1967 and legally speaking no unilateral act by any state can change this legal status of Jerusalem.

Moving the US embassy to Jerusalem goes against international and bilateral agreements, ignores the international consensus, and is a denial of Muslim and Palestinian historical and religious attachment to the city.

No doubt, the US decision prejudices any final status negotiations in precluding Arab East Jerusalem to be the capital of the future State of Palestine in the two-state solution. Palestinian Jerusalemites feels abandoned by the international community. Denial of Palestinian rights in Jerusalem prompts Palestinians not to acknowledging any Jewish history there.

Abbas confirmed: “It is a Palestinian city– an Arab city, a Christian city, and a Muslim city.” Not mentioned: “It is a Jewish city.” Mutual denials are an insurmountable obstacle to peace while mutual recognition is the first step to reconciliation, negotiations, and peaceful resolution of conflict.

In his Letter from Birmingham Jail, Martin Luther King, Jr. wrote that the worst stumbling block to freedom’s advance is the person who believes he can set the timetable for another person’s freedom. Thus, the current position, “Law is irrelevant. Might makes right” will eventually be overturned by, “Law is relevant. Right makes Might.”

In his article “The Future of Jerusalem: One Twin City, Two Peoples, and Three faiths – A Troika Solution” published in 1998, Professor Mohammed S. Dajani Daoudi calls for going back to the old formula of 1947, that is, internationalization of the city of Jerusalem.

He later revised his suggestion by calling for creating an international status for the Old City of Jerusalem and declaring East Jerusalem as the capital of Palestine and West Jerusalem as the capital of Israel without borders separating them. Perhaps it is an idea whose time has come.

Dr. Zeina M. Barakat is a post-doctorate at Jena Center for Reconciliation Studies (JCRS), Friedrich-Schiller University in Jena, Germany. Her book From Heart of Stone to Heart of Flesh: Evolutionary Journey from Extremism to Moderation was published in 2017. Read other articles by Zeina.