Flaw In U.S. Policy


Maariv’s headline blared, “Final Judgment: U.S. Citizens May Not Register ‘Jerusalem’ as Place of Birth.” The news portal Walla! headlined its story, “Supreme Court in U.S. Ruled: Someone Born in Jerusalem Cannot Be Registered as Israeli.”

These Israeli headlines successfully captured the mood of an Israeli public bewildered by U.S. hostility to Israeli rights in Jerusalem, but unable to understand the complexity of the latest developments in the story.

Contrary to the impression conveyed by the Israeli media, the U.S. Supreme Court did not issue any ruling about the status of Jerusalem.

The Supreme Court’s ruling in Zivotofsky v. Kerry was the final judgment in a 13-year court battle by the Zivotofsky family to have their son Menachem Binyamin Zivotofsky’s birthplace recorded as “Jerusalem, Israel” as was their choice, according to the 2002 Foreign Relations Authorization Act.

In 2002, then-President Bush argued that the law was unconstitutional. The Zivotofskys sued, launching a multi-year litigation saga. The first round ended in favor of the Zivotofskys in 2012, when the Supreme Court ruled that the case did not present a “political question,” paving the way to a substantive ruling. But the second round ended days ago in the Supreme Court, this time against the Zivotofskys. A majority of the court’s judges agreed that the law relied upon by the Zivotofskys unconstitutionally infringed upon the President’s exclusive power to recognize foreign states.

The court’s understanding of the constitutional separation of powers was dubious and will no doubt be debated for years to come. But the truly interesting issue raised by the case was never discussed by the courts: what explains Washington’s 67- year battle to deny Israeli sovereignty over any part of Jerusalem?

Throughout the Zivotofsky saga, the State Department, backed by both Republican and Democrat-controlled White Houses, has insisted that no part of Jerusalem be recognized in any way as part of Israel. Not the part of Jerusalem that Jordan occupied illegally from 1948-1967 (generally called “East Jerusalem” by the media). And not the part of Jerusalem that has been part of Israel since its independence in 1948 (“West Jerusalem”). None of it.

The Obama administration has explained that refusing to recognize Israeli sovereignty in any part of Jerusalem is necessary to avoid interference with the “peace process.” Jerusalem, says the White House, must be dealt with solely in negotiations between the parties.

But this justification falls apart upon the slightest examination.

The current PLO territorial demands, repeated often and in every forum imaginable, are for Israeli withdrawal from the West Bank and “East Jerusalem.” No senior PLO figure has demanded in recent years that Israel also withdraw from “West Jerusalem.” In demanding that Israel acquire PLO approval for its sovereignty over “West Jerusalem,” the White House is taking a more hardline anti-Israel position than even the PLO.

The U.S. position on Jerusalem also contradicts the Obama White House’s own controversial stance on the peace process. The White House has endorsed a Palestinian demand that the 1948-1967 cease-fire line that separated sovereign Israeli territory from the Jordanian-occupied West Bank and “East Jerusalem” should serve as the presumptive border of a new Palestinian state in all negotiations, with Palestine acquiring sovereignty over all the territory illegally occupied by Jordan, unless otherwise agreed to by the parties. But when it comes to Israel and Jerusalem, says the White House, the cease-fire line should be forgotten and presumptive Israeli sovereignty should be erased.

Historically, the anti-Israel position of the U.S. on Jerusalem developed without any connection to the Israel-PLO peace negotiations that began in 1993. The U.S. never recognized Israeli sovereignty in Jerusalem, even in 1948, when Israel’s War of Independence left parts of Jerusalem in Israeli hands. When Israel declared Jerusalem (“West Jerusalem”) its capital in 1949, the U.S. refused to recognize it, even though international law makes states the sole determinants of their own capital. Indeed, for decades the U.S. lobbied foreign countries to move their embassies out of Jerusalem. To this day, the U.S. embassy in Israel is in Tel Aviv, notwithstanding a law mandating the embassy’s move to Jerusalem.

As time has passed, U.S. hostility on Jerusalem has remained constant, while the excuses for the hostility have changed.

Defenders of the U.S. policy on Jerusalem like the fact that it gives the PLO a veto on Israeli rights pending a peace deal. But a more honest appraisal shows that the policy allows bureaucratic opponents of the Jewish state to harm U.S. credibility and foreign policy interests.

 Avi Bell is a professor of law at Bar-Ilan University.