Jerusalem in Israel

In 1003 B.C., King David proclaimed Jerusalem the capital of Israel.  He reigned there for 33 years.  The city is mentioned by name more than 500 times in the Bible.  It is never mentioned in the Koran.  Nor did Jerusalem ever become the capital of any Muslim political entity or province, Arab or non-Arab.

In recent days, violence in the city and attacks on Israeli citizens have occurred, partly because of unjustified accusations that Israelis were damaging the Al Aqsa Mosque on the Temple Mount, or what Muslims refer to as Haram al-Sharif (Noble Sanctuary).

The area is revered by both Jews and Muslims.  For Jews it is the place of the First Temple, built by Solomon and destroyed by Roman Emperor Titus in 70 A.D., though the 62-foot wall remains and is a place of Jewish prayer.  For Muslims it is the place where the Prophet Mohammed rode his horse to heaven, and the site, which also houses the Dome of the Rock, is regarded as Islam’s third-holiest place.  By agreement in 1967, the site is administered by the King of Jordan.  He pays the salaries of the 500 employees of the Waqf, and the Muslim authority that takes care of the mosque.  By mutual agreement, Jews can visit the area during certain hours but are not allowed to pray on the Mount.

Close to the area has been the arena of a number of attacks, the latest on November 5, 2014.  A Palestinian named Ibrahim Akari drove a mini-van into a group of Israelis waiting to take the light rail train, killing two, one of whom was an Israeli Druze policeman, and injuring 14 others.  He was a member of Hamas and of the terrorist al- Qassam Brigades.

What is disturbing about this is not simply the callous hit-and-run violence, but the Palestinian response to it.  Not surprisingly, the initial statement of Hamas leaders was that “Hamas blesses the action … it is pushing us to prepare war.”  More surprising was the statement of Sultan Abu al-Einein, a Fatah advisor of President Abbas, that the terrorists were “the illustrious and blessed children who are saturating the land of the homeland with their blood and igniting the flames of rage.”

Perhaps the next time that the usual suspects, Archbishop Desmond Tutu and others, engage in their specialty of condemning actions and non-actions of Israel, they might consider the nature and significance of those peace-loving Palestinian statements.

All this violence and hostile rhetoric is taking place while the U.S. Supreme Court is indirectly considering the legal status of Jerusalem in a case, Zivotofsky v. Kerry.  Is the issue one merely of constitutional law, or one that involves U.S. and other international relations?  The constitutional question is related to a congressional law of 2002 that ordered the U.S. State Department to identify the passports of American children born in Jerusalem as having been born in Israel.  Mr. Zivotofsky wants the passport of his son born in 2002 to list Israel as well as Jerusalem as his birthplace.  However, the State Department, which issues passports, has refused to do so on the grounds that Congress violated the constitutional provision of the separation of executive and legislative powers.

Similarly, the Jerusalem Embassy Act passed by Congress on October 23, 1995, providing funds for the relocation of the U.S. Embassy from Tel Aviv to Jerusalem and recognizing Jerusalem as the capital of Israel, and stating that the U.S. Embassy should be established there no later than May 31, 1999.  Yet this directive has never been enforced by any U.S. president.

At the heart of the matter is whether the U.S. will acknowledge Jerusalem as within the border of the State of Israel.  Linked to this is the complex issue of the extent of presidential power.  The D.C. District Court discussing the Zivotofsky case in 2013  upheld the view that the congressional law is unconstitutional because only the president can determine how to accept the boundaries of states and their capitals.  Congress had interfered with the president’s authority to conduct foreign policy.

The particular constitutional issue may be legally tricky, but the underlying problem is not.  There are really two issues.  One is that no country recognizes Jerusalem as the capital of Israel.  Many recall the proposal of U.N. General Assembly Resolution 181, the Partition plan, that Jerusalem have a special status, a corpus separatum, under a special international regime.

The other is the international refusal to accept the Israeli Basic Law of July 30, 1980, that “Jerusalem, complete and unified, is the capital of Israel.  Jerusalem is the seat of the President of the State, the Knesset, the Government, and the Supreme Court.” On December 5, 1949 the Israeli Government ha declared Jerusalem the capital of Israel. All official offices, legislative, executive, and judicial, are in the city. However, UN Security Resolution 478 adopted on August 20, 1980, and passed by 14-0 with the US abstaining, declared the Law “null and void.”

Discussion of Jerusalem is appropriate in terms of both the western and eastern parts of the city. The most pertinent argument about the western sector is that the State of Israel legitimately acquired sovereignty in 1948 as a result of its act of self-defense and on the basis of UN General Assembly Resolution of 1947. Even if some states do not recognize Israeli sovereignty, and insist on the corpus separatum status of Jerusalem, most of them accept Israeli law as valid.

Decision on the east sector is more arguable. Jordan between 1949 and 1967 had occupied the area by an illegal act of aggression and its sovereignty to the area was not accepted internationally. As a result of the 1967 War there was a vacuum of sovereignty and Israel can claim title by another act of self-defense and in the absence of any other legal sovereignty. Irrespective of any claim made on grounds of political or moral factors, the Palestinian Arab people has no claim to legal sovereignty of the area.

Though the international community did not recognize the claim of sovereignty of Jordan in the past, and that of Israel in the present, to east Jerusalem, the Israeli courts have generally held that the sector is part of the State of Israel. The problem of whether, as Palestinians assert, east Jerusalem is occupied territory remains to be resolved by peace negotiations. In the meantime, whatever the decision of the US Supreme Court in the difficult constitutional issue, it should resolve that an American passport should be able to state “Jerusalem, Israel.”