Friday, May 30, 2014

Setting the Record Straight on Israel's Jerusalem "Day" of Conquest (Francis A. Boyle)

Francis A. Boyle is an attorney and a professor  at the University of Illinois College of Law. His books include Foundations of World Order (Duke University Press: 1999) and Tackling America’s Toughest Questions (2009).   His most recent book is United Ireland, Human Rights and International Law.  

The Status of Jerusalem

Over the years, one of the most important issues I have dealt with
repeatedly for the Palestinian people is Jerusalem. 

For example, my friend Michael Saba and I launched an initiative to prevent the United States Government from illegally moving the United States Embassy from Tel Aviv to Jerusalem. In order to forestall this abomination, I prepared Memoranda of Law on the U.S.-Israel Land-Lease and Purchase Agreement of 1989 that would enable the construction of this U.S. Jerusalem “Embassy,” which I sent to Congressman Lee Hamilton, who was then Chairman of the Subcommittee on Europe and the Middle East of the Committee on Foreign Affairs of the U.S. House of Representatives. 

These Memoranda were published in American-Arab Affairs. 

The Israel Lobby and its supporters in Congress are still attempting to pressure the United States government to move the U.S. Embassy from Tel Aviv to Jerusalem. 

Of course this would be a political, legal, and diplomatic disaster.

To be sure, there would certainly be no problem under international law
and practice for the United States government to move its Embassy from Tel Aviv to Jerusalem as part of a comprehensive Middle East peace settlement whereby this Embassy would be simultaneously accredited to Israel and Palestine, with Jerusalem being recognized as the shared Capital of both States. Why and how this can be done is fully explained elsewhere in this book. 

Years ago the PLO had already approved my proposal set forth herein for this “Final Status of Jerusalem.” But Israel wants Jerusalem for itself. And the United States has never been solomonic when it comes to Palestine and the Palestinian people. Many categorical statements have emanated from the Israeli government about the yet-to-be-negotiated final status of Jerusalem. Indeed, Jerusalem was said to have been the stumbling block that led to the breakdown of the Camp David II negotiations in the summer of 2000, though the negotiating situation was far more complicated than that. 

A brief review of the historical record can shed some light upon Jerusalem’s legal status, and thus point the way towards an ultimate solution for this most Holy City in the estimation of the three monotheistic faiths: Islam, Judaism, Christianity.

The Legal Status of Jerusalem

On September 25, 1971, then-Ambassador George H.W. Bush, speaking
as U.S. Representative to the United Nations, delivered a formal Statement on
Jerusalem before the UN Security Council explaining the official position of the
United States government with respect to the City of Jerusalem.

Therein, Ambassador Bush expressly repeated and endorsed a December 1969 Statement by U.S. Secretary of State William Rogers: “We have made clear repeatedly in the past two and one-half years that we cannot accept unilateral actions by any party to decide the final status of the city.”
Ambassador Bush then specifically repeated and endorsed a 1969
statement made before the Security Council by his predecessor, Charles Yost,
criticizing Israeli occupation policies in East Jerusalem in the following terms:
“The expropriation or confiscation of land, the construction of housing on such
land, the demolition or confiscation of buildings, including those having historic
or religious significance, and the application of Israeli law to occupied portions of
the city are detrimental to our common interests in the city.” Ambassador Bush
then reaffirmed Yost’s prior statement that the United States government considers
East Jerusalem to be “occupied territory and hence subject to the provisions of
international law governing the rights and obligations of an occupying Power.”
Succinctly put, these latter obligations can be found in the Fourth Geneva
Convention of 1949, which expanded upon and improved—but did not displace—
the 1907 Hague Regulations on Land Warfare. The United States government is
a party to both the Fourth Geneva Convention and The Hague Regulations, and
Israel is bound by the terms of both treaties as well.
Previously, Ambassador Yost had continued his 1969 statement in the
following language:2

…Among the provisions of international law which bind Israel,
as they would bind any occupier, are the provisions that the
occupier has no right to make changes in laws or in administration
other than those which are temporarily necessitated by
his security interests, and that an occupier may not confiscate
or destroy private property. 

The pattern of behavior authorized under the Geneva Convention of 12 August 1949 and international law is clear: the occupier must maintain the occupied
area as intact and unaltered as possible, without interfering with the customary life of the area, and any changes must be necessitated by the immediate needs of the occupation. I regret to say that the actions of Israel in the occupied portion of Jerusalem present a different picture, one which gives rise to understandable concern that the eventual disposition of East Jerusalem may be prejudiced and that the private rights and activities of the population are already being affected and altered.

My Government regrets and deplores this pattern of activity, and it has so informed the Government of Israel on numerous occasions since June 1967. We have consistently refused to recognize those measures as having anything but a
provisional character and do not accept them as affecting the ultimate status of Jerusalem.

Then, Ambassador Bush continued his 1971 Statement as follows:

We regret Israel’s failure to acknowledge its obligations under
the fourth Geneva Convention as well as its actions which are
contrary to the letter and spirit of this Convention. We are
distressed that the actions of Israel in the occupied portion of
Jerusalem give rise to understandable concern that the eventual
disposition of the occupied section of Jerusalem may be
prejudiced. The Report of the Secretary General on the Work of
the Organization, 1970-71, reflects the concern of many
Governments over changes in the face of that City. We have on a
number of occasions discussed this matter with the Government
of Israel, stressing the need to take more fully into account the
sensitivities and concerns of others. Unfortunately, the response
of the Government of Israel has been disappointing.
All of us understand...that Jerusalem has a very special
place in the Judaic tradition, one which has great meaning
for Jews throughout the world. At the same time Jerusalem
holds a special place in the hearts of many millions of Christians
and Moslems throughout the world. In this regard, I want
to state clearly that we believe Israel’s respect for the Holy Places
has indeed been exemplary. But an Israeli occupation policy
made up of unilaterally determined practices cannot help promote
a just and lasting peace any more than that cause was
served by the status quo in Jerusalem prior to June 1967 which,
I want to make clear, we did not like and we do not advocate reestablishing.

Ambassador Bush then concluded his 1971 statement on Jerusalem
by supporting what would later that day become Security Council Resolution 298 (1971), which provided in its most significant parts as follows:
. . ..
Reaffirming the principle that acquisition of territory by military
conquest is inadmissible,
2. Deplores the failure of Israel to respect the previous resolutions
adopted by the United Nations concerning measures and
actions by Israel purporting to affect the status of the City of
3. Confirms in the clearest possible terms that all legislative
and administrative actions taken by Israel to change the
status of the City of Jerusalem, including expropriation of
land and properties, transfer of populations and legislation
aimed at the incorporation of the occupied section, are
totally invalid and cannot change that status;
4. Urgently calls upon Israel to rescind all previous measures
and actions and to take no further steps in the occupied
section of Jerusalem which may purport to change the status
of the City or which would prejudice the rights of the
inhabitants and the interests of the international community,
or a just and lasting peace;

Security Council Resolution 298 (1971) became yet another violated resolution in “a long Train of Abuses and Usurpations“ by Israel that were never enforced by the Security Council.3

In any event, the Statements made by Bush and Yost have always represented
the United States government’s official position on the numerous illegalities
surrounding Israel’s conquest, occupation and illegal annexation of East
Jerusalem since 1967. 

The comments on East Jerusalem that Bush made later in 1990 as U.S. President were to the same effect:4

The President. Well, I’m not sure there was equivocation. My
position is that the foreign policy of the United States says we
do not believe there should be new settlements in the West
Bank or in East Jerusalem. And I will conduct that policy as if it’s
firm, which it is, and I will be shaped in whatever decisions we
make to see whether people can comply with that policy. And
that’s our strongly held view. We think it’s constructive to peace—
the peace process—if Israel will follow that view. And so, there’s
divisions in Israel on this question, incidentally. Parties are
divided on it. But this is the position of the United States and I’m
not going to change that position.

Yost’s 1969 Statement, Bush’s 1971 Statement, and his 1990 comments
are fully consistent with and indeed required by Article 1 of the Fourth
Geneva Convention, which requires the United States government not only to
respect but also to ensure respect for the terms of this Convention by other
parties such as Israel “in all circumstances”. 

As treaties, both the Fourth Geneva Convention and the Hague Regulations are deemed to be the “supreme Law of the Land” by Article VI of the United States Constitution. Contrary to the public suggestions made in the United States by the Israel Lobby and its supporters, the United States government is under legal obligation to support the vigorous application of the international laws of belligerent occupation to produce the termination of all illegal Israeli practices in Jerusalem as well as in the West Bank and Gaza Strip, together with the Golan Heights—including and especially illegal Israeli settlers and settlements.

The Political Problem of Jerusalem 

For similar reasons, the United States government has never recognized
Israel’s conquest and annexation of West Jerusalem as valid or lawful,
either. That is why the U.S. Embassy to Israel still remains in Tel Aviv, not Jerusalem.

Nevertheless, the pro-Israel lobby in the United States and its beneficiaries
in the U.S. Congress have systematically attempted to pressure successive U.S.
Presidents into recognizing Jerusalem as the capital of Israel, even though such
an act would enflame public opinion throughout the Muslim world—over 57 states and 1 billion people, a sixth of all humanity—against the United States. 

Such an act of formal diplomatic recognition would be a legal, political and diplomatic disaster that would prevent a peace agreement between Israel and Palestine and thus preclude a comprehensive Middle East peace settlement between Israel and the surrounding Arab states. 

Perhaps that is the Israel Lobby’s intention.

Undaunted, the U.S. Israel Lobby has continued apace bribing, threatening,
and intimidating members of the U.S. Congress and the President to
move incrementally towards an awesome “clash of civilizations” between the
United States and the Muslim world over Jerusalem as forecast by Harvard’s
Samuel Huntington.

No point would be served here by reviewing the sordid history of the U.S. Israel Lobby’s efforts to move the U.S. Embassy from Tel Aviv to Jerusalem since that saga has recently been recounted elsewhere.6

Suffice it to say that the U.S. Israel Lobby procured passage by Congress of
the so-called Jerusalem Embassy Act in 1995.

Among other outrages too numerous to analyze here, section 3 of this statute provided in relevant part as follows:

(2) Jerusalem should be recognized as the capital of the State
of Israel; and
(3) The United States Embassy in Israel should be established
in Jerusalem no later than May 31, 1999.
Article 1, Section 10, Clause 1 of the United States Constitution has
historically been interpreted to mean that such acts of diplomatic recognition are to be performed by the President. In deference thereto, Congress employed the word “should” instead of “shall” in the statute.

Nevertheless, in section 3(b) thereof Congress did wield its well-recognized
constitutional “power of the purse” to cut State Department funding for “Acquisition and Maintenance of Buildings Abroad” unless and until “the United States Embassy in Jerusalem has officially opened.” But section 7 of the Statute permits the President to waive this fiscal sanction every six months on the grounds that “such suspension is necessary to protect the national security interests of the United States.” So far that is what President Clinton and President Bush Jr. have consistently done.
Dissatisfied with Congressional support which, while submissive to
Zionist demands, had not yielded changes in actual U.S. policy, the Israel lobby
proceeded to procure the passage of an even more strictly tailored piece of legislation that in a nutshell requires the U.S. President to recognize Jerusalem as the capital of Israel on official U.S. government documents, once again upon pain of fiscal sanctions—so-called “paper recognition”.

While President Bush Jr. stated that he will ignore this requirement on the grounds that it is unconstitutional—infringing upon the President’s constitutional power to perform such acts of diplomatic recognition—there was such an uproar throughout the Muslim world over this “paper recognition” of Jerusalem as being the capital of Israel by the United States Congress that the Arab TV Network Al Jazeera invited this author to appear  live by satellite on their evening news program for Thursday, 17 October 2002 in order to critique this statute under U.S. constitutional law and under international law, as well as to explain how this statute fits within the overall conduct of U.S. foreign policy toward the Middle East and the Muslim world. In further reinforcement
of the deleterious effects that changes in U.S. policy on Jerusalem have on
U.S. interests—as opposed to those of Israel—on 29 October 2002 CNN reported that a U.S. diplomat had been murdered the previous day in Amman,
Jordan because of this statute’s recognition of Jerusalem as the capital of Israel.

Clearly, it is doubtful that the Israel Lobby will be satisfied with Bush Jr.’s
statement that he will ignore Congress’s “paper recognition” of Jerusalem as the capital of Israel. But it is not clear that President Bush Jr. will really honor his public commitment to ignore this legislation. The battle for Jerusalem will continue in Washington, DC as well as in the streets of Palestine, Israel, and elsewhere.

A Solution for Jerusalem

The 1947 United Nations Partition Plan for the Mandate of Palestine
called for the creation of an international trusteeship for the City of Jerusalem that would be administered as a corpus separatum apart from both the Jewish state and the Arab state contemplated therein. Today, however, it would not be necessary to go so far as to establish a separate United Nations trusteeship for the City of Jerusalem alone under Chapter XII of the UN Charter. 

Rather, all that would be necessary would be the withdrawal of the Israeli army from the City of Jerusalem, with a United Nations peacekeeping force to be substituted in its place. This UN force would maintain security within the City of Jerusalem while the provision of basic services to all the inhabitants could be enhanced, especially for the Palestinians.

The simple substitution of a UN peacekeeping force for the Israeli army
would have the virtue of allowing both Israel and Palestine to continue making
whatever claims to sovereignty they want with respect to the City of Jerusalem.
Thus, Israel could continue to maintain that Jerusalem is the sovereign territory of Israel, its united capital, and shall remain so, one and undivided, forever. The
Israeli Knesset could remain where it is, in territory designated as a capital district, and the Israeli flag could be flown anywhere throughout the City of Jerusalem.

Likewise, the State of Palestine could maintain that Jerusalem is its
sovereign territory and capital and shall remain so, one and undivided, forever.

Palestine would be entitled to construct a parliament building and capital district within East Jerusalem. The Palestinian flag could also be flown anywhere within the territorial confines of the City of Jerusalem. Both Israel and Palestine would be entitled to maintain ceremonial honor guards, perhaps armed with revolvers, at their respective capital districts. But no armed troops from either Israel or  Palestine would be permitted within Jerusalem.

The residents of Jerusalem would be citizens of either Israel, or Palestine, or both, depending upon the respective nationality laws of the two states involved. Residents of Jerusalem would be issued a United Nations identity card to that effect, which would give them and only them the right to reside within the City of Jerusalem. 

Nevertheless, all citizens of the State of Palestine would be entitled to enter Jerusalem through UN checkpoints at the eastern limits of the city. Likewise, all citizens of the State of Israel would be entitled to enter Jerusalem at UN checkpoints located at the western limits of the city. Yet, mutual rights of access for their respective citizens to the two States through Jerusalem would be subject to whatever arrangements could be negotiated between the government of Israel and the government of Palestine as part of an overall peace settlement. 

The myriad of other complex issues related to Jerusalem and its inhabitants would be progressively negotiated in good faith between the governments of Palestine and Israel under the auspices of the United Nations Organization.

In addition, both Israel and Palestine would have to provide assurances
to the United Nations Security Council that religious pilgrims (Muslims, Christians, and Jews) would be allowed access through their respective territories in order to visit and worship at the holy sites in the City of Jerusalem. Some type of UN transit visa issued by the UN peacekeeping force should be deemed to be sufficient for this purpose by both governments. Of course this right of transit could not be exercised in a manner deleterious to the security interests of the two States.

Thus, Jerusalem would become a free, open, and undivided city for pilgrimage and worship by people of the three monotheistic faiths from around the world. Neither Israel nor Palestine would have to surrender whatever rights,
claims, or titles they might assert to the city. Security would be maintained by the United Nations peacekeeping force. The city of Jerusalem would remain subject to this UN regime for the indefinite future.

If a comprehensive Middle East peace settlement were to be negotiated
along these lines, then it would be perfectly appropriate under international law
for the United States government to move its Israeli Embassy from Tel Aviv to
Jerusalem. There the U.S. Embassy could be simultaneously accredited to the
State of Palestine as well as to the State of Israel. The same could be done by all
other states in the international community. The presence of these embassies in
Jerusalem under such circumstances would permit both Israel and Palestine to
claim that the entire international community has now recognized Jerusalem as
its capital.


There are many other historical precedents that could be drawn upon to
produce a mutually acceptable arrangement for Jerusalem: e.g., the Free City of
Danzig, the Vatican City State, the District of Columbia, United Nations Headquarters in New York City, etc. So determining the final status of the city of Jerusalem is not and has never been an insuperable obstacle to obtaining a comprehensive Middle East peace settlement—despite Israeli rhetoric and propaganda to the contrary. 

If the will for peace were there on the part of the Israeli government, then creative lawyers on each side can devise an artful arrangement for the city of
Jerusalem that would allow both peoples to claim victory while achieving peace.
In fact, several years ago I drafted a formal proposal similar to the above-described  solution for consideration by the PLO. A high-level PLO official informed me that this proposal was acceptable to the PLO. So far, it has proved to be unacceptable to Israel, which continues to stubbornly insist that Jerusalem shall remain its “sole”, “undivided” and “eternal” capital despite all the rules of international law to the contrary and the fact that in the Oslo Agreement of 13 September 1993, Israel expressly agreed in writing to negotiate over the final status of Jerusalem with the PLO. 

You do not expressly agree to negotiate with your adversary over “your”,
“sole”, “undivided”, “eternal” “capital” if it is really yours! The time has long past for Israel to put aside its relentless rhetoric and propaganda about Jerusalem, and negotiate in good faith with the Provisional Government of the state of Palestine over the ultimate disposition of Jerusalem. The Palestinians have repeatedly demonstrated their will for peace. So far, the Israeli government has only demonstrated its will to power. But when it comes to Jerusalem—Jews, Muslims, and Christians: “Can’t we all get along?” I sincerely believe we can.


1. U.N. SCOR, 26th Sess., 1582nd mtg. at 33, U.N. Doc. S/Agenda/1582 (1971).
2. U.N. SCOR 24th Sess., 1483nd mtg. at 11, U.N. Doc. S/Agenda/1783 (1969).
3. For a list of Security Council Resolutions against Israel as of 1995, see Paul Findley, Deliberate
Deceptions 187-94 (1995). See also Paul Findley, They Dare To Speak Out (1989).
4. 26 Weekly Comp. Pres. Doc. 357 (Mar. 3 1990).
5. Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (1996).
6. See Walid Khalidi, The Ownership of the U.S. Embassy Site in Jerusalem (2000).
7. Jerusalem Embassy Act of 1995, Pub. L. No. 104-45, 109 Stat. 398 (1995).
8. Foreign Relations Authorization Act, Pub.L. No. 107-228, §214, 116 Stat 1350 (2002).
Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.

Champaign, IL 61820 USA