"We cannot solve our problems by making the same failed assumptions and repeating the same failed strategies of the past… Israel is a sovereign nation with the right, like every other sovereign nation, to determine its own capital." So said Donald Trump last week.
With such logical fallacies and ignorance of basic legal facts, as well as the fundamental principles of the UN Charter, the US President decided that it is time for a new "formula" and recognised "Jerusalem as the capital of Israel". He overlooked the fact that Israel is far from being "like every other sovereign nation."
No sovereign nation in modern times has ever declared independence following the ethnic cleansing of the indigenous population; and no sovereign nation has broken international law concerning Jerusalem in order to annex it and claim the city as the eternal capital of the Jewish people. Trump would be totally correct in his assumption had he been talking about any ordinary sovereign nation, but certainly not Israel.
In 1967, Israel completed its occupation of Palestine, including East Jerusalem; it is still the occupying power. Everything that Israel does in the occupied Palestinian territories, including Jerusalem, is done to make the occupation permanent. This colonialism peaked in 1980 when the Knesset (Israeli parliament) amended the Basic Law (5740 – 1980) to annex East Jerusalem and declare that "[t]he complete and united Jerusalem is the capital of Israel".
With a sense of self-guilt, Israel worked hard to gain international recognition of its "new capital". Knowing the grave legal and political consequences of such an ill-advised move, even its closest allies refused to acknowledge this "capital". It was only in 1995 that the US Congress decided (or perhaps was made to decide) to recognise the Israeli annexation, although successive US Presidents have signed a six-monthly waiver to delay the implementation of the Congress decision. Israel had to wait until there was someone like Donald Trump in the White House to make the formal announcement.
The status of Jerusalem under international law
Few cities have received as much international attention as Jerusalem. This has entrenched its status in international law.
Despite the Israeli and now, sadly, the US efforts to change the status of Jerusalem through domestic legislation, media campaigns and diplomacy, several UN resolutions have affirmed and reaffirmed the opposite of what Israel sought. International law is clear on this; no state may claim, exercise or show any aspect of sovereignty over any territory through occupation.
After the occupation of East Jerusalem in 1967, Israel began a systematic campaign to force out its Palestinian citizens and change its identity, even before formally annexing the territory. This was condemned by all, including the UN Security Council, where the US abstained and did not use its veto power.
In 1971, the UN Security Council issued Resolution 298 "[deploring] 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 Jerusalem" and "[Confirming] 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."
It was so firm a stance by the Security Council that the US refrained from blocking it. One resolution after another came from the Council, the top decision-making body in the UN structure whose resolutions are meant to be binding on all the member states of the international organisation, reaffirming the same position. The most recent was Resolution 2334 passed in December 2016 rejecting the Israeli measures related to settlements, including those in East Jerusalem, and recognising those measures as grave breaches of international law.
Furthermore, in its Advisory Opinion on the Construction of the Wall in 2004, the International Court of Justice affirmed that East Jerusalem, as a part of the occupied West Bank, is an occupied territory that belongs to the Palestinians who are entitled to self-determination.
The status of East Jerusalem as an occupied Palestinian Territory has been affirmed and upheld by almost all of the UN member states, the exception being Israel, of course, and possibly now the US following Trump's announcement.
Can Trump change the legal status of Jerusalem?
It is ironic that the only positive aspect of Trump's decision was that he avoided using the term so loved by the Israelis: "complete and united Jerusalem". This was used by Israel in its 1980 annexation legislation. This is not entirely reassuring, however, as it could be manipulated given that he mentioned Jerusalem with no further detail in the full knowledge that Israel annexed the eastern sector of the city.
The major risk here is the creation of customary law recognising the "undivided" status. International Customary Law, a source of international law according to the ICJ Statute, has two essential elements which, if fulfilled, may change the legal status of Jerusalem: state practice and opinio juris. As clarified in the North Sea Continental Shelf cases, state practice has to be frequent, repetitive and consistent, as well as being conducted or used by a significant number of states participating (given the size of the international community, the practice does not have to encompass all states or be completely uniform, there just needs to be a significant degree of participation). Opinio juris is the belief that an action was carried out as a legal obligation with the full awareness of its legal consequences, which must be in existence in order for the custom to be regarded as law.
International law is about the agreement of the relevant or involved parties, and the US has been the broker of the Palestine-Israel peace process, making it a directly-involved party. As such, the US seems to fulfil both requirements, state practice and opinio juris. Even so, there has to be a significant number of states following the new US measures in order to be able to contest the current legal status of Jerusalem. The US might be pushed by the pro-Israel Lobby to exert pressure on states relying on its military assistance or financial aid to recognise the new "status quo". This would certainly embed Israel's occupation of Palestinian land further and encourage the state to violate international law even more than it does now.
This would have dire consequences, not only for the peace process, but also the city of Jerusalem and its Muslim and Christian population. It would encourage the Israeli authorities to annex more of the occupied Palestinian territories, change their identity and complete the ethnic cleansing of their people. Even the Muslim and Christian religious authorities in Jerusalem might not be safe and could be merged with those of the occupation.
This would be even worse if other countries are forced by circumstances to follow America's lead on the issue. Countries which depend on US aid or military protection are vulnerable to pressure from the Trump administration.
Moreover, in a worst-case scenario, the weakness of the current Palestinian leadership may lead it to proceed with the peace process under the "new terms" which keep Jerusalem off the negotiation agenda.
What is to be done?
Trump's dangerous move needs to be met with a serious response from the Palestinians and all those who believe in the justness of their cause. The Palestinian leadership, along with the Hashemite Kingdom of Jordan, which is the official Custodian of the Holy Sites in Jerusalem, should take the issue to the UN General Assembly, and file a complaint to the Security Council. There should also be a request through the UN General Assembly for an Advisory Opinion from the International Court of Justice on the new US measures.
Clear resolutions or even statements from intergovernmental organisations, such as the EU, Organisation of Islamic Coordination (OIC), Non-Aligned Movement and Association of South-East Asian Nations (ASEAN) affirming the status of the city as occupied territory and refusing to accept the US move would halt any possibility for any change in Jerusalem's legal status. It would also discourage other countries from giving-in to US pressure.
The ICJ has jurisdiction to settle international disputes and adjudicate on contentious issues. Palestine or Jordan may bring the case to the ICJ on the basis that the US has breached international law in a move which has a direct impact on them both. Even if the US refuses to appear before the Court, this would weaken its position.
And within the US itself?
Article VI, Clause II of the US Constitution states that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land". Despite the federal government enjoying sovereign immunity according to US law, there are several exceptions that could apply in this case. President Trump is obviously breaching treaties, such as the UN Charter and the Fourth Geneva Convention of 1949, that are, according to Article VI, Clause II of the Constitution, "a supreme Law of the Land" and so he should be held to account under US law.
In conclusion, Donald Trump's announcement about Jerusalem is an attack on international law and reinforces the sense that the "law of the jungle" rules in the Middle East. The international community has both the institutions and the tools to ensure the application of international law; it is time for them to be activated.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.