Why the US Moving Its Israel Embassy to Jerusalem Would Be Illegal

Introduction

On June 1, the White House announced that President Donald Trump had signed a waiver delaying the relocation of the US’s embassy in Israel from Tel Aviv to Jerusalem. The media responded with a plethora of articles purporting to explain this situation to readers. Arguably the single most important fact about the plan to move the embassy, however, was not communicated. Specifically, what the media consistently fail to inform news consumers is that for the US to move its Israel embassy to Jerusalem would violate the UN Charter—and hence also the US Constitution.

This is significant as it illustrates how the US mainstream media serve to obfuscate the true nature of the US government’s role in the Israel-Palestine conflict—and thus to help shape American public opinion to be supportive of US government’s policy of supporting Israel’s violations of international law. The further consequence of this deceptive reporting is that the media effectively serve the interests of Israel’s occupation regime, with great prejudice toward the rights of Palestine’s Arab inhabitants.

The Jerusalem Embassy Act of 1995

The waiver signed by Trump relates to a law requiring the executive branch of the government to relocate the American embassy in Israel to Jerusalem. While the Congress does not have the authority under the US Constitution to dictate to the president what his foreign policy should be, it does have power over the government’s purse strings.

Public Law 104-45 of November 8, 1995—named the “Jerusalem Embassy Act of 1995”—states that Jerusalem “has been the capital of the State of Israel” since 1950 and claims that the city was “reunited” during the June 1967 Israeli-Arab war (the “Six Day War”). It further declares it to be US policy that “Jerusalem should remain an undivided city” and that “Jerusalem should be recognized as the capital of the State of Israel”. Accordingly, the Act states, the US embassy in Israel should be relocated to Jerusalem.

As an enforcement mechanism, the Congress threatens under this Act to withhold half of the State Department’s annual funding for facilities abroad unless the executive implements the embassy relocation.

There is a loophole, however.

With Bill Clinton in the White House, the democrats wanted to be able to express their support for Israel’s annexation of Jerusalem by supporting the bill, but without appearing to undermine the president’s authority with respect to international relations—specifically, his efforts under the “peace process” to get the Palestinians to accept Israel’s demands for a negotiated settlement.

The result was that the bill included a clause determining that, every six months, the president can sign a waiver suspending the embassy move “if he determines and reports to Congress in advance that such suspension is necessary to protect the national security interests of the United States.”

As such, President Trump was faced with a choice of one of the following options:

1. Relocate the US embassy to Jerusalem;
2. Don’t relocate the embassy and see his State Department lose half of its funding for its facilities in foreign countries; or
3. Don’t relocate the embassy, but sign a waiver declaring that to move the embassy to Jerusalem would threaten “national security”.

Since the executive branch effectively defines what is in US “national security” interests, the president’s choice really boils down to either moving the embassy or signing the waiver; there is no real risk to the State Department’s funding.

Trump’s Waiver

During his presidential campaign, Trump vowed that if elected, he would move the US embassy in Israel to Jerusalem. Nevertheless, he signed the waiver. Why?

The White House’s statement about his decision to sign the waiver stated that “no one should consider this step to be in any way a retreat from the President’s strong support for Israel and for the United States-Israel alliance. President Trump made this decision to maximize the chances of successfully negotiating a deal between Israel and the Palestinians, fulfilling his solemn obligation to defend America’s national security interests.”

The statement added that, since Trump “has repeatedly stated his intention to move the embassy, the question is not if that move happens, but only when.”

In less than six months from the time of this writing, the president will again have to choose whether to sign the waiver.

So how would moving the embassy to Jerusalem harm US national security? What would be so controversial about doing so? Why does this matter?

How the Mainstream Media Explain the Controversy

Several months in advance of Trump’s decision regarding the waiver, CNN ran a piece titled “Why moving the US embassy to Jerusalem is so controversial”. The main problem with the US moving its embassy to Jerusalem, CNN reported, is that “Palestinians, and many in the international community, continue to see East Jerusalem as the capital of a future Palestinian state.”

For additional background, CNN reported that, “In July of 1980, Israel passed a law that declared Jerusalem the united capital of Israel. The United Nations Security Council responded with a resolution condemning Israel’s annexation of East Jerusalem and declared it a violation of international law.”

CNN went on to explain about the 1995 Act and the waiver before adding that “Palestinian leaders are adamant that an embassy move to Jerusalem would be a violation of international law, and a huge setback to peace hopes.”

No additional information or analysis was provided about what Palestinian leaders could possibly mean when suggesting that for the US to move its embassy to Jerusalem would violate international law.

Two days before the White House released its statement, the Washington Post reported on the “waiver debate” under the headline “What Trump not signing a Jerusalem embassy waiver would really mean”. It provided background about the Jerusalem Embassy Act of 1995 and noted that the State Department was advising Trump to sign the waiver.

There was no mention by the Post of the Palestinians’ desire to have East Jerusalem as the capital of their state. Nor, for that matter, was there any discussion about how an embassy move would complicate US efforts under the so-called “peace process”, much less about what the city’s legal status is under international law or what the legal ramifications would be for the US to move its embassy there.

The day the White House released its statement about the waiver, the New York Times described Trump’s decision to delay the embassy move as “Mr. Trump’s latest shift away from campaign positions upending traditional foreign policy”.

(While Trump’s position on Jerusalem is described by the media as a departure from longstanding US policy, it’s worth noting that Barack Obama, too, just prior to his election to the presidency in 2008, publicly declared his support for Israel’s annexation of East Jerusalem. Like Trump, Obama nevertheless signed the waiver at his first opportunity, and continued to do so throughout his two terms as president.)

In addition to “backing away from his promise to move the embassy”, the Times added, Trump has also urged Israeli Prime Minister Benjamin Netanyahu “to hold off on provocative housing construction in the West Bank pending peace talks.”

(Obama, too, made this request of Netanyahu, while maintaining as a matter of policy that negotiations should be entered into “without preconditions”, meaning while Israel’s settlement activities in the West Bank continued.)

For background on the ostensible dispute over Jerusalem’s legal status, the Times reported:

During the 1967 war, Israel wrested control of East Jerusalem and annexed it. Since then it has vowed that Jerusalem would never be divided again, even as it built housing in eastern sections for Jewish residents.

Like every other country with a diplomatic presence in Israel, the United States has its embassy in Tel Aviv to avoid seeming to recognize Jerusalem as the Israeli capital at the expense of Palestinians who also claim it as the capital of a future state of their own.

The Times went on to explain the president’s option to sign the waiver under the Jerusalem Embassy Act of 1995 (the “traditional” thing to do).

The Los Angeles Times similarly reported that “Israel considers Jerusalem its capital but the Palestinians claim East Jerusalem for their capital in a future state. No country keeps its embassy in Jerusalem because of the dispute.”

The L.A. Times added that “US foreign policy traditionally has said the status of Jerusalem should be settled in negotiations between Israel and the Palestinians. Moving the U.S. Embassy would signal a rejection of that policy.”

Like CNN and the New York Times, the L.A. Times did not attempt to reconcile the contradiction between:

(a) The Jerusalem Embassy Act of 1995 declaring that the US as a matter of policy recognizes Jerusalem as the undivided capital of Israel, and

(b) The US’s stated position in the context of its efforts to ostensibly mediate a negotiated settlement under the “peace process” (that Jerusalem’s status must be determined through direct negotiations).

Naturally, therefore, none of these media outlets offered any comment about how this self-contradiction in US policy might affect the US’s credibility as an ostensible mediator.

(Actually, none even informed readers that the 1995 Act declares that it is US policy that Jerusalem is the undivided capital of Israel. On the contrary, this fact was obfuscated in media reports. CNN, for example, stated that, “If the United States moved the embassy to Jerusalem, it would mean that the US effectively recognizes Jerusalem as the capital of Israel”—as though the legislation CNN was attempting to explain to readers did not declare this to be US policy already.)

Likewise, none bothered to inform readers about the actual status of Jerusalem under international law. Instead, they falsely characterized its status as disputed.

Fox News’s headline similarly promised to answer “Why Trump’s promise to move US embassy to Jerusalem is so controversial”. The article reported that “The international community, including the US, largely does not recognize Jerusalem as the capital of Israel as it is claimed by both Palestinians and Israelis.”

Fox News also noted how “Trump was warned by several top officials in the State and Defense Departments against officially recognizing Jerusalem as the capital because it could be detrimental to peace talks.”

(Uniquely, Fox News also informed its readers about one of the major influences on US policy toward the Israel-Palestine conflict, all too often overlooked: Christian Zionism. “There are millions of evangelical eyes on Trump, waiting to see if he will keep his promise to move the embassy, venerable Pastor John Hagee told Fox News. ‘I can assure you that 60 million evangelicals are watching this promise closely because of President Trump moves the embassy into Jersualem, he will historically step into immortality,’ Hagee said.”)

Vox—a media outlet owned by Vox Media, in which NBCUniversal is heavily invested—similarly offered a piece titled “Trump’s big-deal decision not to move the US Embassy to Jerusalem, explained”.

The Vox piece asserted that to move the embassy would align the Trump administration “with the Israeli hard right” and create “a major, potentially dangerous rift with the Palestinians.” Signing the waiver, however, would keep US policy in “the traditional center on the Israel-Palestine conflict”.

Vox explained about the law threatening to strip funding from the State Department unless the embassy is moved, which relocation “would be extremely damaging to the peace process and Middle East stability more broadly.”

For additional historical background, Vox stated that, “While Israel annexed East Jerusalem after the 1967 war, that move has not been recognized by the international community. An embassy move would seem to preempt a final status peace deal.”

Like the New York Times, Vox noted how Trump had “told Netanyahu to ‘hold back on settlements for a bit’” at a joint press conference with the Israeli Prime Minister in February.

These examples are representative of the nature of the US media’s coverage; it would be superfluous to mention others.

The point is that the US mainstream media systematically misinforms the public about Jerusalem’s status under international law.

The effect of this misrepresentation by the media of the nature of the controversy over the Jerusalem Embassy Act of 1995 is to help shape public opinion to be supportive of the US’s “traditional” policy, which is falsely characterized as one of neutrality.