President Trump’s Recognition of Jerusalem: A Legal Analysis
In a proclamation signed on Wednesday, US President Donald Trump unilaterally recognized Jerusalem as Israel’s capital, departing from the policy of successive US administrations which recognized the status of Jerusalem as that of an occupied territory. Trump’s declaration was followed by international recriminations. The status of Jerusalem is a matter of high contention. While Israel contends that Jerusalem is its undivided capital, Palestinians want to establish their capital in East Jerusalem.
The crux of the debate over the recognition of Jerusalem is the legal status of Jerusalem. The US stated in a letter of assurance sent to Palestinians during the 1991 Madrid Peace Conference that the status of Jerusalem should be determined through multilateral negotiations. The recent recognition is inconsistent with this as it prejudges and predetermines the status of Jerusalem, and arguably violates the basic right of Palestinians to self-determination. It also recognizes the illegal and unilateral annexation of East Jerusalem in 1967. There are two major events in the history of Jerusalem which allows us to understand its international legal status today: the General Assembly’s internationalization of Jerusalem in 1947 and the Israeli occupation and illegal annexation of the city in 1967.
The legal status of Jerusalem rests upon Corpus Separatum as envisaged in General Assembly Resolution 181 (ii) of 1947. The Resolution, which Israel relies upon to proclaim the legality of its State, reiterates the internationalization of the city administered by the UN Trusteeship Councilor. Shortly after, Armistice lines dividing Jerusalem into a “West” and an “East” were drawn as a result of 1948 war. Israel occupied and extended its jurisdiction to West Jerusalem. Jordan, on the other hand, occupied East Jerusalem, which is of religious and political importance to the Palestinians. The General Assembly issued another Resolution in 1948 after the war reaffirming the international status of Jerusalem. In 1950, the Israeli Knesset declared Jerusalem (West and East) its capital and moved on to establish its government agencies in the Western part, in violation of international law.
Then, in 1967, Israel illegally occupied and annexed East Jerusalem, and occupied the West Bank and Gaza. It declared sovereignty over this occupied territory, and proceeded to retroactively build illegal settlements in East Jerusalem. In 1980, when Israel enacted the “Basic Law: Jerusalem, Capital of Israel”, the UN Security Council adopted Resolution 476 and 478 . The resolutions declared the Law “null and void” and called on Israel, the occupying power, to abide by biding resolutions and international law. The Security Council also called upon states to withdraw their diplomatic missions from Jerusalem.
The status of East Jerusalem as an occupied territory has been reiterated by several UN bodies and international organizations. Security Council resolutions 242, 250, 251, 252, 267, 271, 446, 1435, 2334 , and more called on Israel to end its occupation of the West Bank, East Jerusalem, and Gaza. In the same manner, the General Assembly has adopted hundreds of resolutions confirming the applicability of the Fourth Geneva Convention, rejecting any Israeli sovereignty over the occupied territories, and affirming that Israel’s rule of East Jerusalem is a military occupation. In his speech, Trump refrained from acknowledging East Jerusalem and the Palestinian inhabitants who pay the heavy price of his recognition, and thereby recognized a “united and undivided” Jerusalem as Israel’s capital. As a matter of US law, Trump is acting in accordance with The Jerusalem Embassy Act of 1995 which declares Jerusalem “the capital of the State of Israel.” The Embassy Act and the recognition violate international law. The Zivotofsky v. Kerry decision by the US Supreme Court clearly stated that “the status of Jerusalem should be decided not unilaterally but in consultation with all concerned” or otherwise a unilateral declaration is “damaging to the cause of peace and …therefore not . . . in the interest of the United States.”
The status of Jerusalem has been considered by the International Court of Justice in a 2004 Advisory Opinion. The Court reaffirmed the illegality of Israel’s separation wall and settlements, holding that Israel was bound by the Fourth Geneva Convention. Moreover, Israel’s obligation to apply human rights law in the occupied territories has been recognized by the Court and human rights treaty bodies such as the United Nations Human Rights Office of the High Commissioner, the Committee on Economic, Social and Cultural Rights , and the Convention on the Elimination of all Forms of Discrimination Against Women. The US recognition violates the rights of Palestinians to housing, security, freedom of movement, and to water and sanitation.
Trump’s recognition is a slap on the face to the integrity of international law institutions and purveyors. The rights of Palestinians are threatened by Israel’s unlawful and discriminatory conduct, and President Trump has now lent succor to those violations.