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It is not surprising that Jerusalem has become the sticking point in the Israeli-Palestinian peace process. The Israeli refusal to share the city with the Palestinians and the Clinton administration's refusal to push the Israelis to compromise make successful negotiations extremely difficult.
Jerusalem has been conquered and reconquered more than 37 times in its long history. Yet, with the establishment over the past century of clear international legal principles forbidding such military conquests and of international organizations with at least minimal enforcement mechanisms, there has been a persistent hope that the fate of Jerusalem could--along with other territories seized by the Israeli armed forces--be resolved peacefully and with deference to international law.
The United States has traditionally been one of the most outspoken supporters of strong legal standards as guiding principles of international affairs, yet has often failed to uphold these values when transgressions have involved a close ally or its own perceived military exigencies. Still, positions taken by the Clinton administration regarding Jerusalem have surprised even the most cynical observers of U.S. foreign policy for its disregard of such international legal conventions and its departure from the stated positions of its predecessors. Furthermore, such policies have made the United States a most inappropriate mediator at this critical phase of the peace process.
According to the United Nations resolution that established Israel, Jerusalem was to be an international city. Yet as a result of the 1948 Arab-Israeli war, Jerusalem was divided between Israel and Jordan. The international community refused to recognize Jerusalem as Israel's capital, believing that to do so would establish the dangerous precedent of legitimizing territorial expansion by military conquest--in direct contravention of United Nations resolutions. For several years after Israel's independence, the United States still gave its support to an international regime over Jerusalem. The U.S. neither recognized Israel's 1948 claim that West Jerusalem was its capital, nor did it recognize Jordan's declaration of East Jerusalem as its co-capital in 1960.
In the years following the conquest of East Jerusalem and surrounding areas by Israel during the 1967 war, when Israel began to administer a greatly expanded East Jerusalem under Israeli law, the U.S. repeatedly emphasized its belief that the city should be unified--but that its status should be determined by negotiations as part of a comprehensive peace settlement. The UN Security Council, with U.S. support, declared the Israeli annexation of greater Jerusalem as "null and void," the same language used in reference to Iraq's takeover of Kuwait. Indeed, the Bush administration's primary public rationale for the Gulf War was on the grounds that such land grabs must be reversed and that UN resolutions must be obeyed.
Generally, the U.S. has recognized de facto Israeli sovereignty without de jure sovereignty. The State Department and other government agencies regularly conduct business with Israeli officials in the city, though the embassy has remained in Tel Aviv and the U.S. consulates in the city report directly to Washington.
Previous administrations saw no contradiction to their position that East Jerusalem was occupied territory and that the city should be united. The distinction came down to a belief that the city should not be physically divided nor inaccessible to various religionists to their holy sites and other parts of the city, yet the ultimate question of sovereignty could not be determined by military conquest and unilateral acts of annexation. The six U.S. administrations in office since the 1967 war all saw Jerusalem as part of the Israeli occupation subjected to UN Security Council resolutions 242 and 338, which call for Israeli withdrawal from Arab lands conquered in the 1967 war, in return for security guarantees from neighboring Arab states. Indeed, these resolutions explicitly reiterate the longstanding principle of international law regarding the illegality of the expansion of any nation's territory through military force.
At the same time, there was a contradiction between taking a position upholding international law regarding Jerusalem and the U.S. refusal to tie its massive military, economic, and diplomatic support of successive Israeli governments to its enforcement. As President Jimmy Carter stated, any final agreement regarding the status of Jerusalem had to be acceptable to the Israeli government, and that the U.S. would not impose anything on Israel. Given the Israeli government's clear opposition to anything less than its complete control and sovereignty over all of greater Jerusalem, the United States found itself in the contradictory position of both trying to uphold international law and refusing to apply the necessary pressure on a recalcitrant Israeli government to end its violations. Such contradictions led to much criticism from other governments throughout the world.
In addition, one of the requirements imposed by the United States in the Madrid peace talks, which began in 1991, was that no member of the Palestinian delegation could be from Jerusalem. Not only was no other delegation to the talks subjected to such geographical restrictions regarding its representatives, it implied a U.S. acceptance of the position by the Israeli government that Jerusalem was not a subject for negotiation. (Later in the talks, however, the U.S. did allow Faisal Husseini to participate, but only by using the legal fiction that he was resident of Jericho.) As American political analyst Helena Cobban described it, "[W]hile the United States has never repudiated the UN resolutions on issues relating to Jerusalem, U.S. policy has been marked by numerous indications of slippage from adherence to those resolutions."
Despite these questionable policies, however, the U.S. did remain faithful, at least in rhetoric, to important principles of international law. For example, President George Bush's Secretary of State, James Baker, in his letter of assurance to Arab leaders in preparation for the Madrid peace talks, explicitly stated that the U.S. did not recognize Israel's annexation of East Jerusalem and reiterated that the city's final status would be part of the negotiations. In that letter, the U.S. also reiterated its commitment to UN Security Council resolution 242, which calls for "withdrawal of Israeli armed forces from territories occupied in the recent conflict" in return for peace with its Arab neighbors. This UN resolution, which the U.S. had long considered the basis of Middle East peace negotiations, also explicitly reiterated the longstanding principle of international law regarding "the inadmissibility of the acquisition of territory by war," which appeared in then preamble of the UN resolution and which clearly included East Jerusalem.
When Bill Clinton came to office, however, it quickly became clear that his administration was backing away from the commitment to the United Nations upheld by the six previous U.S. administrations, particularly in regard to Jerusalem. When Assistant Secretary of State Edward Djerejian testified to the House Foreign Affairs Subcommittee on the Middle East in March 1993 on Israeli settlements in the occupied territories, he did not include units under construction in East Jerusalem in his figures, implying that the U.S. does not consider them part of the occupied territories. Indeed, the Clinton administration is the first U.S. administration to refuse to condemn the construction of illegal Israeli settlements in Arab East Jerusalem, even vetoing a UN Security Council resolution condemning Israeli confiscation of Palestinian land in East Jerusalem in 1995.
Then-UN Ambassador Madeleine Albright's assertion that the Jerusalem land dispute should be resolved instead by direct negotiations between the parties is disingenuous on face value, given the gross asymmetry in power between the Palestinians and their Israeli occupiers.
Successive American administrations have had to resist right-wing initiatives in Congress to have the U.S. embassy moved to Jerusalem on the sound legal grounds that it would, in effect, provide recognition of Israeli sovereignty. However, given that some of these same administrations have shown little regard for international law in other aspects of U.S. foreign policy, it appears this seemingly principled position on Jerusalem was, in fact, a recognition of the anti-American outrage in the Islamic world which would likely occur were the United States to make such an important symbolic recognition of Israeli control over the Holy City. When Congress finally passed a law in 1995 mandating the U.S. to move its embassy to Jerusalem, even Clinton--long an advocate of just such a move before assuming office--successfully pushed for a clause in the legislation that gave the president leverage in determining when the move would actually take place, effectively postponing the move indefinitely. The fact that the embassy still remains in Tel Aviv, then, comes from the U.S. awareness of the damaging effect it could have on U.S. diplomacy, not from a recognition of the illegality of Israel's unilateral control of Jerusalem.
In the June 1993 paper to the delegations in the Washington peace talks, the U.S. for the first time would not recommit to 242 and 338. Emboldened by this, the government of Israeli prime minister Yitzhak Rabin essentially took Jerusalem off the negotiating table. According to Rabin, "The government is firm in its resolve that Jerusalem will not be open to negotiation. The coming years will also be marked by the extension of construction in Greater Jerusalem." The Clinton administration raised no objections.
The most obvious sign of this change came in April 1994, when the U.S. abstained from voting on a section of a UN Security Council resolution condemning the February massacre at the mosque in Hebron, objecting to a paragraph which referred to the Arab part of Jerusalem as occupied territory. This unprecedented action led to a strong reaction from other member nations; no other government besides Israel has taken any issue with conferring that status on East Jerusalem. In a conference call with leaders of major Jewish organizations in March 1994, Vice President Al Gore reaffirmed the Clinton administration's position which recognized a united Jerusalem as the capital of Israel. He added that if the United Nations Security Council mentioned Jerusalem as part of occupied territories as part of an operative paragraph rather than simply as part of the preamble, the U.S. would veto the entire resolution.
The rationale for the position taken against the United Nations by the U.S. government is that, according to the Declaration of Principles signed between Israel and the Palestine Liberation Organization in September 1993, the issue of Jerusalem--along with settlements and military locations--would be relegated only to "permanent status negotiations." The State Department has long insisted that since Jerusalem is "a final status matter, ... any effort to prejudge that issue in a UN resolution would find the opposition of the United States." Such a rationalization, however, its patently disingenuous. Both Clinton and Gore, as well as the vast majority of members of Congress who attacked the UN resolutions as "pre-judging" the status of Jerusalem, are on record unilaterally declaring Jerusalem the unified capital of Israel, clearly an effort to "pre-judge" the city's status.
More importantly, however, whatever the final outcome of negotiations, the fact remains that the residents of East Jerusalem never voluntarily ceded to Israeli sovereignty through a referendum or other methods; their part of the city was seized by military force. To this day, Israeli occupation forces patrol the streets and human rights abuses against residents who oppose Israeli rule continue.
By any definition, this constitutes a military occupation. Clinton has similarly raised no objections to Israeli occupation forces banning access by most Palestinians from the schools, hospitals, businesses, and holy sites of the West Bank's largest city, despite causing enormous suffering to the population.
In addition, no bilateral agreement between two parties can supersede the authority of the United Nations Security Council, which on numerous occasions has declared Jerusalem to be an occupied city, particularly since one of the two parties (the Palestine National Authority) would never agree to any settlement which would countenance continued unilateral Israeli control as anything but occupation.
Previous U.S. administrations raised objections to some UN resolutions on Jerusalem on a number of grounds: regarding what were seen as one-sided attacks on Israel or exaggerated accounts of Israeli transgressions; efforts to separate Jerusalem from a comprehensive peace settlement which would include an end of Arab belligerence toward Israel; practical obstacles to the physical dismantling of the large Jewish neighborhoods in East Jerusalem; implied attempts to restore what were seen as an unreasonable status quo ante; possible efforts to impose sanctions on Israel; or various other legal technicalities. No administration prior to Clinton, however, has questioned the fact that East Jerusalem is occupied territory, that Israeli settlements in East Jerusalem are anything but illegal, or that Israeli governance of East Jerusalem was subject to the provisions of the Fourth Geneva Convention. During these two Democratic and four Republican administrations, the U.S. supported eight UN resolutions which challenged Israeli policies in East Jerusalem or mentioned Jerusalem in context with other aspects of the Israeli occupation of Palestinian land. None of the ten abstentions were cast with any question that Jerusalem was under military occupation.
Thus, despite denials by Clinton administration officials, there has been a real shift in U.S. policy regarding Jerusalem. The centrality of Jerusalem to any comprehensive peace settlement has made U.S. policy, therefore, a major impediment to Israeli-Palestinian peace. There is a consensus among knowledgeable observers that any failure to successfully address the Jerusalem issue will derail the entire peace process. Indeed, combined with the fact that only the United States has the influence to force Israel to end its occupation of Jerusalem, the Clinton Administration's shift in policy threatens the future peace and stability of the entire region. Challenging the fact that Jerusalem is currently under military occupation discourages the Israelis from making the necessary compromises for peace and gives license to any nation which seeks to enlarge its territory by force of arms. No other nation outside the United States and Israel supports the idea of a Jerusalem united under Israeli sovereignty as Israel's capital. International organizations and leaders of major religious bodies throughout the world have repeatedly stressed the importance of not allowing Israel's unilateral takeover to remain unchallenged. Despite claims that such a hard line helps the Democrats in an election year, public opinion polls in the United States show a sizable majority of Americans supporting a shared Jerusalem.
Virtually no one would like to see Jerusalem return to its 1948-67 status, when it was divided by sentry posts, barbed wire, and snipers, with neither Israelis nor Palestinians able to cross to the other side. However, there are a number of other options, including making Jerusalem an international city as originally called for by the UN in 1947, creating a joint Israeli-Palestinian administration, or repartitioning the city along its original dividing line, but with full access by residents and visitors to both the Israeli and Palestinian sides. Many Israelis and Palestinians--including the leadership of the Palestine National Authority--have embraced such proposals, yet Clinton has rejected them out of hand.
While it is easy to criticize Israeli violations of international law and of United Nations Security Council resolutions, it is important to recognize that Israel commits these ongoing transgressions only because the government realizes that the United States will protect them from the consequences. Virtually any government assured of unconditional large-scale economic and military support from the world's sole remaining superpower, as well as a diplomatic cover protecting them from sanctions or other enforcement mechanisms by the United Nations, would likely behave in the same way.
Thus, the problem with Clinton's view of Jerusalem is ultimately not a bias towards Israel, but a direct challenge to the authority of the United Nations and some of the most basic tenets of international law. At stake, then, is a lot more than the fate of one Middle Eastern city. In short, the Clinton Administration's policy on Jerusalem threatens both the authority of the United Nations and the most fundamental principles of international law. It jeopardizes the peace process, emboldens hard-liners on both sides, and creates enormous suffering for many thousands of Palestinians. This is not an issue of being pro-Israel or anti-Israel. Even some of the Jewish state's strongest defenders--including many Israelis--recognize the dangers inherent in supporting Israel's claim to all of Jerusalem. It is a choice between those who wish to uphold international law and the right of self-determination versus those willing to accept the results of military might and the right of conquest. The Clinton administration is on the wrong side.
Stephen Zunes, "U.S. Policy Toward Jerusalem: Clinton's Shift To The Right" (Washington, DC: Foreign Policy In Focus, July 1, 2000)