The U.S. Embassy in Jerusalem; International Law and Common Sense

There is no entity in international law as a Palestinian state, and no such thing, legally, as East or West Jerusalem.  All Trump did was uphold what has already been confirmed by law

Trump at the western wall. Upholding the law (Photo - Nati Shohat, Flash 90)

We find ourselves talking once again about whether the United States should officially recognize the plain facts on the ground. Namely, that Jerusalem, the location of the Israeli Supreme Court, the Knesset, the President’s residence and the Prime Minister’s office, is the capital of Israel. It is.

The legal right of the Jewish people to exercise sovereignty over the geographic area once known as Palestine, including Jerusalem, is well enshrined in international law. The San Remo Resolution, the Franco-British boundary convention, the Anglo-American Convention, the Mandate for Palestine,  Article 80 of the United Nations Charter, and other documents establish that legal title to Jerusalem belongs to the Jewish state.

These rights have never been revoked. Neither the U.N. General Assembly, nor the Security Council have the power or the jurisdiction to change this fact of international law.

Jewish sovereignty over Jerusalem was recognized thrice by bipartisan Congressional Acts, passed by overwhelming majorities, including the Jerusalem Embassy Act of 1995 which directs the State Department to move the embassy to Jerusalem. Yes, a six-month waiver was contemplated under the law, an indefinite waiver however, was never the intent.

There is a common misconception that Jerusalem was taken by force by Israel in 1967.  Jerusalem was not taken by force in 1967, it was taken away by force in 1948 in violation of international law, when the Arabs illegally attacked Israel and subsequently engaged in a 19-year belligerent and unlawful occupation of “East Jerusalem.”

Historically, Jerusalem has always been an undivided city, except for the 19-year period when Jordan illegally occupied it. Giving Jerusalem back to the Arabs, who are still at war with Israel, would be tantamount to territorial acquisition by aggression, which is a violation of the Laws of Armed Conflict.

Moreover, there is no basis in international law for “Corpus Separatum” (a separate entity) or the division of Jerusalem precisely, and ironically because the partition plan was rejected by the Arabs when it was proposed.

Just as there is no entity in international law as a Palestinian state, and there is no such thing as a Palestinian Arab nationality, there is no such thing, legally, as East or West Jerusalem.  There is only the city of Jerusalem.

Never in history has Jerusalem been declared the capital of any other nation, other than that of the Jewish nation.  Jews have been the majority in Jerusalem since the mid 1800’s and have had a continual presence in the city for the past 3,000 plus years.

By facilitating the move, the Trump Administration is merely following the law – implementing the Jerusalem Embassy Act, which requires the State Department to move the embassy.  Exercising another waiver would be a violation of congressional intent.

Executing a waiver would further encourage the murderous aspirations of Islamists who are emboldened, not pacified, by the continued failure to recognize Jerusalem as Israel’s capital.

Those who argue that moving the embassy will cause violence exhibit a fundamental misunderstanding of the laws of cause and effect.  Moving an office does not cause violence.  Imams preaching violence as a legitimate response to the Muslim world’s hurt feelings, and who are calling for violence as a legitimate means to establish the caliphate, are directly responsible for any violence that may ensue.

Islamists also threaten violence over cartoons of Mohammad, the education of females and YouTube films.  We do not restrict our actions based on a fear of Islamist violence, and the United States certainly does not direct its foreign policy out of fear of an Islamist terror reaction.  The U.S. will not cede to extortions such as those from Fatah threatening to “open the gates of hell on America” if we move our embassy.

Some who have argued, on record, against territorial appeasement for ISIS, are now arguing to establish a Palestinian Islamic State with Jerusalem as its sharia law capital.  This reeks of the type of hypocrisy only racism can justify.  The Arabs are not advocating for a divided Jerusalem, only the West is.

If you read Arab literature and listen to their leaders on television they call for an undivided Jerusalem under Islamic control. Moving the embassy increases the chances for peace because it negates the fiction that we are going to support a Palestinian Islamic state with Jerusalem as its capital.

The Trump Administration is advocating the embassy be moved to so-called “West Jerusalem” which has always been recognized as part of Israel.  This is not disputed territory.  If you argue against the move to West Jerusalem you are essentially advocating for the eradication of the Jewish state, saying that even West Jerusalem will not be a part of Israel, you are echoing the call to make Israel an Islamic state “from the river to the sea.”

It is against the national security interests of the U.S. and Israel to advocate for a unilateral withdrawal from East Jerusalem. We have three case examples that warn of the violence that will ensue: Gaza, Southern Lebanon, and the behavior of the Arabs when Jerusalem was illegally occupied under Jordanian control.

If any part of Jerusalem is under Islamist control, it will revert back to what it was pre ‘67, when minorities were discriminated against and freedoms were denied to non-Muslims. Anyone who advocates for a divided Jerusalem is advocating for violence, for the destruction of Jerusalem’s historical artifacts, and for the restriction of the civil rights of women and religious minorities.

The biggest catastrophe that has befallen the Palestinian Arabs, is their continued abuse at the hands of the PLO, which indoctrinates and recruits Palestinian Muslim children as suicide bombers and child soldiers.  We should not be focusing on where the U.S. embassy is located, this is a typical diversion tactic.  We should be focusing on how to stop the daily incitement to terror and murder.


Brooke Goldstein is an Attorney at Law and Executive Director of The Lawfare Project 

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5 comments on the article

  1. I think that it is not strictly true that Jerusalem has never been the capital of any state other than Israel. Jerusalem was the capital of the Crusader Kingdom of Jerusalem from 1099 until 1187. This has no effect on the argument, of course, since this kingdom has no successor in interest.

  2. I have 2 questions. I’ve read references that Jerusalem was supposed to be an international city. What agency/document established that? And how does this response address that issue?

    1. The decision to declare Jerusalem an International city was part of the UN Partition Plan resolution. The decision was rendered null and void when the Arab countries rejected it and then attempted to annihilate the Jewish citizens under the British Mandatory area.There is therefore no need to address the issue because the issue never came into fruition.