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Whose Jerusalem ?

Jerusalem: Capital of the Jews?

by Shmuel Sokol - IsraelNationalNews.com - February 13, 2004
"The relocation of the United States embassy to Jerusalem will send a clear message to the world that Jerusalem is the recognized capital of the State of Israel…. The fact that Israel stands out as the only country that does not have our embassy located in its capital is wrong and must be corrected immediately." – New York Governor George E. Pataki
The basic facts of the history of the Eternal City and its status according to Jewish law are well known and to reiterate them in this forum would be preaching to the choir. However, I thought that a basic overview was in order, to put into context the laws pertaining to the status of Jerusalem and the possible political motivations inherent in their formulation. This will allow us a better understanding of what is happening right now and what may be done in the future to solve existent problems.

The basic documents that have relevance to this issue are the Israeli Basic Law: Jerusalem, the 1995 Jerusalem Embassy Act of the United States Congress, and two resolutions of the United Nations, one by the Security Council and one by the General Assembly. There will also be official press releases and statements by elected officials pertaining to the issue and a newly floored Bill, which is now in committee, that is meant to expedite the action required by the American legislature, and by extension, the American people, through the passage of this Congressional Act.

Additional to these primary sources are such secondary sources as articles detailing the response of various political figures to this matter, and the progress of implementation (or lack thereof) of this Act. This will be followed up by an in-depth analysis of the issue and some of the conclusions that may be drawn from the facts as herein presented. It will be explained why this particular issue has relevance to the author and how he thinks that matters should be handled and what he thinks has been done properly, and what improperly, and for what reasons, in regard to this Bill, the Basic Law regarding Jerusalem, and the response of the United Nations, as well as the possible impact of the forces that made the UN act as it did in affecting the Executive's ability and/or will to enforce the laws promulgated by the policymaking branch of the Federal Government of these United States.

The issue that the Bill in question addresses is that of the disputed status of the city of Jerusalem. Historically, there have been Jewish, Muslim and Christian claims to this city. The Jewish claim dates back to the Biblical era, and stems from the conquest and subsequent inhabitancy of Jerusalem as the capital city of the Kingdom of Judea. There were many periods during the Jewish presence in Judea, prior to the two-thousand-year exile, when Israel was governed by an outside nation, but it was always the center of Jewish political, social, economic and religious life.

During the period after the rise of Islam and the subsequent rapid expansion of "Dar Al-Islam" (Muslim land-areas conquered by the Caliphate and claimed for eternal property rights and Islamic rule), Judea fell through Jihad.

Christendom and Islam were at war with each other and Christians had always venerated Jerusalem for its role in the story of Jesus, the figure that Christians believe to be the Messiah. For such a city to be under Muslim rule, especially during such a time of enmity and conflict between two expanding religious spheres of influence, was considered to be unacceptable by the Vatican. Thus were the Crusades launched, and for a time, Jerusalem fell under the control of European Christians.

At the present time, the Church does not claim ownership over the city. However, the claims of the Islamic Arab states surrounding present day Israel are quite different. Any area of land once occupied by Muslims is considered to be holy and consecrated, so that rule by any other group is an affront and is not to be tolerated. Thus, many followers of Islam and a large portion of the Arab population of the Middle East believe that it must be brought back under their rule. It is to be remembered, however, that Jerusalem was never the capital of an independent Arab or Muslim state.

After the 1948 War of Israeli Independence, Jerusalem was a divided city. The eastern half fell under the military control of the Jordanian army. The western half was claimed by the nascent Jewish state. All of that changed in 1967. During the Six-Day War, Israel, having been invaded by her neighbors, not only defended the territorial integrity of the borders established in 1948, but also managed to reclaim many areas that had been wrested from Jewish control. These areas were historically Jewish. Furthermore, with the exception of the Sinai, they were all included in the original British Mandate for Palestine, established by the League of Nations following the First World War.

Jerusalem was reunited following the quick Jewish victory and was soon after established by Israeli law as the country's undivided capital city. This was established in the form of a Basic Law. Since Israel has no constitution, this legal construction forms the most basic type of legislation in the nation. The general structure of the governmental system and the entire foundation of Israeli law and jurisprudence are guided by the use of Basic Laws. Basic Law: Jerusalem, Capital of Israel [1] (in the absence of a constitution, this is the primary and fundamental type of national law) was thus used to expedite the transfer of all government agencies operating outside of the city to Jerusalem and to officially establish it as the capital city.

The United Nations issued Security Council Resolution 478 stating that all claims made by Israel were null and void. In 1997 and 1999, the United Nations again reiterated this point by passing both General Assembly Resolution 52/53 [2] and United Nations General Assembly Resolution 54/37 [3]. According to the 1997 Resolution all "administrative measures and actions taken by Israel, the occupying Power, which have altered or purported to alter the character and status of the Holy City of Jerusalem, in particular the so-called 'Basic Law' on Jerusalem and the proclamation of Jerusalem as the capital of Israel, were null and void and must be rescinded forthwith." This action was not without precedent. [4] The only member state to vote against the Resolution was Israel.

In 1995, the 104th Congress passed the Jerusalem Embassy Act of 1995 [5], in which the legislators stated that "(1) Each sovereign nation, under international law and custom, may designate its own capital. (2) Since 1950, the city of Jerusalem has been the capital of the State of Israel…. (9) In 1990, the Congress unanimously adopted Senate Concurrent Resolution 106, which declares that the Congress 'strongly believes that Jerusalem must remain an undivided city in which the rights of every ethnic and religious group are protected.' (10) In 1992, the United States Senate and House of Representatives unanimously adopted Senate Concurrent Resolution 113 of the One Hundred Second Congress to commemorate the 25th anniversary of the reunification of Jerusalem, and reaffirming Congressional sentiment that Jerusalem must remain an undivided city."

It is, of course, well known that American de facto approval of the Basic Law would be against the will of the United Nations, as evidenced by the above Security Council Resolution and General Assembly Resolutions. However, the United Nations, having a history of passing bills that are inordinately influenced by Arab venom against Israel, should be considered as null and void in America's deliberations on this issue.

The disregard for the racism of the UN by upstanding American citizens can be shown by the overwhelming support for Israel in the legislature. Members of both parties, in both houses, have shown overwhelming support for the transfer of the American Embassy from Tel-Aviv to Jerusalem. Furthermore, in the wake of the Iraq War, does it not seem that the current administration does not care to listen to this world body, if it does not desire to do so?

The consensus of the Legislature, representing the America people, was that Jerusalem is and should be a city unified under Jewish rule. They set up a timetable for the implementation of the transferal of the American Embassy to Israel from Tel-Aviv to the actual capital. Such an act would create both de facto and de jure recognition by the United States of America of the status of Jerusalem. Said move was to occur no later than 1999.

However, Section 7 of the Act allowed the president the authority to use six-month waivers on the actions called for earlier in the document. Such waivers can be used indefinitely, every six months, if the President "reports to Congress in advance that such suspension is necessary to protect the national security interests of the United States." The language of this clause does not indicate that the chief executive must prove such security concerns to Congress, but rather that he report that such is the case.

It is the author's considered opinion that both President Clinton and President G. W. Bush have used such waivers more for political reasons than for any that held significance to the safety of America. Clinton used Jerusalem as a bargaining chip when he helped to broker the Oslo Accords, seeking to secure a legacy as a peacemaker for himself. During his campaign, President Bush promised to act as directed by Congress in 1995, but in June 2001, he stated that he believed that it was "necessary to protect the national security interests of the United States" [6] by not renewing the waiver. President Bush is committed to a war on terror and angering the Arab states would endanger the fragile alliance that he has built in the region.

There have been numerous instances of politicians and leaders trying to get this law acted upon, but to no avail. In 1999, a bi-partisan coalition of Senators led by Jon Kyl (R-AZ) and Joseph Lieberman (D-CT) tried to force a move on the part of the Clinton administration, threatening to amend the Act by removing the Presidential Waiver right if the president did not act on his obligations. [7] In 2003, a resolution was introduced that called for "the recognition of Jerusalem as the undivided capital of Israel before the United States recognizes a Palestinian state, and for other purposes."[8]

It has been of great importance to the diplomats that the status of Jerusalem remains open. The Vatican wants to internationalize it, as does the United Nations. They believe that this will reduce tension. I would contend that such a move would only increase it, as each side now feels deprived and cheated out of its natural rights. Certain persons in America want to leave the status open in order to use Jerusalem as a bargaining chip.

The excuse that security concerns for Americans are at stake no longer can be believed as a credible excuse for delaying recognition of Jerusalem as the eternal capital of the Jewish nation. It only weakens Israel if they lose control over the city. To have hostile Arabs in the midst of the declared center of government, armed with modern weapons of destruction, such as rockets and grenade launchers, would be a knife sticking directly into the heart of the only true democracy and best ally that the United States has in the Middle East.

Were America really as concerned with security concerns and foreign policy issues that ensure a safe and protected American body politic, then they would have been spending more time previous to 9/11 investigating Iran and Saudi Arabia. One is rapidly becoming a nuclear power; the other provided the manpower and quite possibly the bankroll for the terror attacks of 2001. Instead, successive governments have focused on the security ramifications of allowing Israel her territorial rights, assuming that such matters would affect the stability of the region more than nuclear proliferation or the financing of terror networks.

I am quite aware that matters are too complex and deep to be properly analyzed in such a forum as this, and that whatever conclusions that I draw here are debatable in the details, but I must contend that the main thrust of what I have said, in terms of foreign policy ramifications and international relations and the dangers discussed above, are correct on the whole, even if I may be proven wrong in regard to the particulars in evaluating the motivations on the part of the Executive Branch and State Department. That is entirely possible, and I may have omitted many salient facts, but the conclusions drawn in regard to international dangers and levels of threat are, and shall remain, accurate assessments of the current state of affairs centering on the Middle East.

The current issue of a unilateral pullout from Gaza and the transfer of thousands of Jews from their homes have a special relevance to this issue. If we are to show political weakness here, it will embolden our enemies to press for more, and it will show a lack of resolve on the part of the Israeli government to its American counterpart. We will be pressed for more and more concessions and Jerusalem is sure to be one of them. I oppose the Gaza pullout, but its ramifications for the rest of the land overshadow even the worst aspects of this ill-conceived maneuver.

No American politician wants to act more hawkish in defense of Israel than the government in the Holy Land does. If we are to show weakness, our friends in Congress, no matter how well-meaning and friendly to our cause, will not be willing to stand up for our rights. Until we assert dominance over Jerusalem and declare through the process of legislation that never will its status be up for negotiation, and until we show backbone in response to terror and stand firm on Gaza, we will never get the respect or support that America would provide, given the chance.


[1] Passed by the Knesset on the 17th Av, 5740 (30th July, 1980) and published in Sefer HaChukkim No. 980 of the 23rd Av, 5740 (5th August, 1980), p. 186; the Bill and an Explanatory Note were published in Hatza'ot Chok No. 1464 of 5740, p. 287. www.mfa.gov.il/mfa/go.asp?MFAH00hf0

[2] www.mfa.gov.il/mfa/go.asp?MFAH0eos0

[3] www.mfa.gov.il/mfa/go.asp?MFAH0lxw0

[4] The Resolution begins with the following words: "Recalling its resolutions 36/120 E of 10 December 1981, 37/123 C of 16 December 1982, 38/180 C of 19 December 1983, 39/146 C of 14 December 1984, 40/168 C of 16 December 1985, 41/162 C of 4 December 1986, 42/209 D of 11 December 1987, 43/54 C of 6 December 1988, 44/40 C of 4 December 1989, 45/83 C of 13 December 1990, 46/82 B of 16 December 1991, 47/63 B of 11 December 1992, 48/59 A of 14 December 1993, 49/87 A of 16 December 1994, 50/22 A of 4 December 1995 and 51/27 of 4 December 1996...."

[5] US SENATE BILL "S. 1332". Public Law 104-45, 104th Congress, an Act.

[6] www.cnsnews.com

[7] Senators led by Jon Kyl (Rep-AZ) and Joseph Lieberman (Dem-CT) plan to send a letter to the White House urging Clinton not to exercise his right to waiver the embassy move on the grounds of national security. If Clinton does invoke the waiver, a draft of the letter says, "we will see no option but to amend the Jerusalem Embassy Act to remedy this unacceptable delay in moving the US Embassy to Jerusalem, and recognize Jerusalem as the capital of Israel." The envisaged amendment would remove the president's waiver right, and extend the deadline for the embassy to be moved from Tel Aviv for not more than 12 months. http://www.melchizedek.com/press/news_19990528-01.htm

[8] thomas.loc.gov/cgi-bin/query/C?c108:./temp/~c1085lT0aO

SJ 24 IS
1st Session
S. J. RES. 24
"Providing for the recognition of Jerusalem as the undivided capital of Israel before the United States recognizes a Palestinian state, and for other purposes.

November 14 (legislative day, NOVEMBER 12), 2003
Mr. BROWNBACK (for himself, Mr. CRAPO, Mr. SMITH, and Mr. SANTORUM) introduced the following joint resolution; which was read twice and referred to the Committee on Foreign Relations...."

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