Forty years ago this week, on the third day of the Six-Day War, Israel entered the Old City of Jerusalem. Returning to the Western Wall from which he and all other Jews had, in blatant violation of the terms of the 1949 armistice, been excluded by Jordanian occupiers, Defense Minister Moshe Dayan made a succinct announcement that reflected the weight of millennial hopes and yearnings: “The Israel Defense Forces have liberated Jerusalem. We have reunited the torn city, the capital of Israel. We have returned to this most sacred shrine, never to part from it again.”
In addition to moral claims arising from the Holy City’s place as the focal point of Jewish spiritual and national aspirations over three thousand years, Israel has legal rights deriving from Jordan’s illegal 1948-67 occupation — branded by United Nations Secretary-General Trygve Lie as “armed aggression” — and Israel’s 1967 acquisition of control following a war of self-defense. As Professor Stephen Schwebel, later president of the International Court of Justice, noted in his now classic study “What Weight to Conquest?” in the American Journal of International Law: “when the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against the prior holder, better title.” (For more details on the background of the conflict as well as its legal significance, especially for the often cited — and misunderstood — United Nations Security Council Resolution 242, see our TCS Daily op-ed “This Land is Your Land, This Land is My Land” as well as our August 2006 Commentary essay “Why Israel Is Free to Set Its Own Borders.”)
Neither the passage of time nor the failure of terror attacks and intifadas has diminished the ardor of Arab leaders for the “complete liberation of Palestine and eradication of Zionist economic, political, military and cultural existence” (article 12 of the constitution of the Fatah movement of the late Yasser Arafat and his faux moderate successor Mahmoud Abbas). Fatah would replace Israel with a Palestinian state “with complete sovereignty on all Palestinian lands, and Jerusalem [as] its capital city” (article 13). If readers have any doubt about what this means, a visit to the terrorist group’s official Arabic website may help: Fatah’s emblem is a map of its future state, from the Jordan River to the Mediterranean Sea, between two crossed guns, their preferred instrument for achieving that objective.
Inexcusably, one of the parties feeding the deluded ambitions of Arab fantasists for the destruction of the Jewish State is none other than Israel’s staunchest ally, the United States. In a part of the world where symbolism is paramount, it is tragic that the U.S. Embassy to Israel remains in Tel Aviv on Hayarkon Street, quite literally on the beach, as if ready to be swept into the sea along with the state to which its diplomats are accredited. The profoundly insulting nature of the U.S.’s refusal to move its embassy to its host nation’s capital has been widely recognized by a broad bipartisan consensus of the U.S. Congress. Thus, the Jerusalem Embassy Act of 1995 (Public Law 104-45) passed both houses by extraordinary veto-proof majorities (93-5 in the Senate, 374-37 in the House). The Act made the following findings, among others:
(1) Each sovereign nation, under international law and custom, may designate its own capital.
(3) The city of Jerusalem is the seat of Israel’s President, Parliament, and Supreme Court, and the site of numerous government ministries and social and cultural institutions.
(4) The city of Jerusalem is the spiritual center of Judaism, and is also considered a holy city by the members of other religious faiths.
(5) From 1948-1967, Jerusalem was a divided city and Israeli citizens of all faiths as well as Jewish citizens of all states were denied access to holy sites in the area controlled by Jordan.
(7) Since 1967, Jerusalem has been a united city administered by Israel, and persons of all religious faiths have been guaranteed full access to holy sites within the city.
Noting the glaring discrepancy that “the United States maintains its embassy in the functioning capital of every country except in the case of our democratic friend and strategic ally, the State of Israel,” the legislation went on to stipulate the following as official U.S. policy:
(1) Jerusalem should remain an undivided city in which the rights of every ethnic and religious group are protected. (2) Jerusalem should be recognized as the capital of the State of Israel; and (3) the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999.
President Bill Clinton did not sign the legislation, but he did not veto it either, so it became the law of the land without his signature on November 8, 1995. For the remainder of his presidency, Clinton availed himself of a provision in the act to sign successive six-month waivers from the requirements of the law in order “to protect the national security interests of the United States.”
Regrettably, despite an explicit campaign pledge, made before a meeting of the American-Israel Public Affairs Committee, to move the embassy to Jerusalem in compliance with the law, President George W. Bush has invoked the same waiver provision no fewer than ten times. His most recent evasion of the law occurred in a presidential memo dated December 18, 2006, that, incredibly, affirmed that the “Administration remains committed to beginning the process of moving our Embassy to Jerusalem.” The memo nonetheless determined “that it is necessary to protect the national security interests of the United States to suspend for a period of six months” the requirements of the Jerusalem Embassy Act.
What makes these waivers even more maddening is that, since 1989, the United States has leased — for $1 per year, renewable for 99 years — a 7.75 acre plot in southwestern Jerusalem, outside the walls of the liberated Old City, popularly known as the “Allenby tract.” America’s embassy in Jerusalem would therefore not be on “disputed” land, much less within the Old City. The Allenby tract is indisputably within the pre-1967 boundaries of the Israeli municipality of Jerusalem.
The only people who could object to the move are those who reject the very existence of the Jewish state. Sadly, these irredentists — from Iranian President Mahmoud Ahmadinejad, who has used “Jerusalem Day” to threaten to “wipe Israel off the map,” to organizations such as Hamas, currently governing the Palestinian Authority, whose Covenant commits it to “raise the banner of Allah over every inch of Palestine,” “an Islamic waqf consecrated for future Moslem generations until Judgment Day” — are placated by America’s Jerusalem policy. On May 13 of this year, U.S. Ambassador Richard Jones insultingly failed to attend a commemoration of the city’s reunification held at the Knesset. An embassy spokesman explained to the Jerusalem Post that the event was “not on the ambassador’s calendar” as he was conveniently — diplomatically? — abroad and his secretary on vacation. This, alas, is Chamberlainian appeasement: betraying a friend while abasing oneself further in the eyes of foes.
No one questions President Bush’s commitment to national security and his friendship for Israel. But the “logic” behind his invocation of these waivers is flawed, and undermines both the national interests of the United States and the security of the State of Israel. By leaving our embassy in Tel Aviv in deference to the State Department’s concerns about the sensitivities of Arab “moderates,” the U.S. places a question mark next to the very existence of Israel in Arab die-hards. America’s refusal to relocate its embassy to an uncontested portion of Israel’s capital validates the efforts of Israel’s enemies to wrest the Holy City and, ultimately, “the whole of Palestine, from the river to the sea” (one of Arafat’s favorite phrases) by intransigence, violence, and terror. And if the “little Satan” of Israel can be beaten, why not the “greater Satan” of America? This is why, on the occasion of the fortieth anniversary of the Holy City’s liberation, America’s interests would be best served by making real for our embassy the words of the Passover invocation: “L’shana ha’ba-ah b’Yerushalayim…Next year in Jerusalem.”
– J. Peter Pham is director of the Nelson Institute for International and Public Affairs at James Madison University. Michael I. Krauss is professor of law at George Mason University School of Law. Both are adjunct fellows of the Foundation for the Defense of Democracies.