Capital Offense: International Norms on Jerusalem are a Mess
Shany Mor lays out the case for why international norms relating to Israel's capital, Jerusalem, are not only inconsistent – they're incoherent
In recent weeks the topic of recognizing Israel’s capital in Jerusalem and the question of why nearly all embassies are located in Tel Aviv was big news in the UK and Australia. On cue, a broad range of foreign policy grandees and experts intoned about the importance of not recognizing Jerusalem as Israel’s capital and most definitely not placing embassies there.
This, after all, has been the consensus position since the very first days after Israel’s establishment as an independent state in 1948. And it is nearly always expressed in very pious terms referencing “international law.” This is peculiar, since there is no relevant international law to be applied to the recognition of another state’s capital city.
What makes Jerusalem unique is the invention of four different norms which never existed, which are applied nowhere except against Israel, and which blatantly contradict each other.
There isn’t some special procedure a city has to go through for “approval.” In fact, countries do not customarily “recognize” each other’s capitals. When two states establish diplomatic relations, embassies are typically placed in whatever city the host country designates as its capital. When a state, for whatever reason, moves its capital city, embassies follow without any fuss. This has even been true in cities divided by war such as East Berlin and Nicosia.
A city’s municipal boundaries can change without affecting in one way or another the “recognition” of a capital city. Again, recognizing a city as a capital is not actually a “thing,” nor is using the name of another city as a metonymy for a country’s diplomatic moves (“Tel Aviv hopes to expand its relations in the Gulf…”), something that does not happen with any other country aside from Israel.
What makes the situation with Jerusalem unique is not just the invention of an international “norm” which never existed and which applies nowhere except against Israel. That’s depressingly common. What makes Jerusalem unique is the invention of four different norms which never existed, which are applied nowhere except against Israel, and which blatantly contradict each other. The usual hypocrisy gets turbocharged into incoherence.
The putative norms are familiar enough:
(1) Jerusalem is designated as an international city by the United Nations so it cannot be Israel’s capital;
(2) East Jerusalem is occupied territory, so situating an embassy in Jerusalem is effectively acceding to an illegal annexation;
(3) Jerusalem is a final status issue in Israeli-Palestinian peace negotiations, the outcome of which no international actor should prejudge; and
4) the status quo requires protection of holy sites for all faiths, and recognizing any Israeli claim would automatically violate this fragile entente.
Let’s take these one at a time.
I. International City
The 1947 United Nations General Assembly Resolution called for the partition of British Mandatory Palestine into an Arab state and a Jewish state with a designated zone around Jerusalem which would belong to neither. This zone would not fall under the sovereignty of either state but would exist as a corpus separatum. This was hardly the first time the concept of an “international city” had been considered as a solution to a contested city, particularly following a period of major global conflict.
It is important to note two salient facts regarding the attempted internationalization of Jerusalem. First, it was never implemented, and in fact no real attempt was ever made. The 1947 UN Partition Resolution was rejected by the Arab leadership in Palestine and all neighboring states. The day after its passage, Arab militias in Palestine began a violent campaign of attacks against Jews. When the British finally ended their Mandate and withdrew the following spring, the Jews declared their new state. Five neighboring Arab states dispatched their armies to prevent the implementation of any part of the UN Resolution.
Second, and more generally forgotten, is that the corpus separatum was not just some abstract designation. Like the proposed Jewish and Arab states, it came with a map, which included not just the city Jerusalem under its British municipal boundaries, but several surrounding communities as well, notably, including Bethlehem. This detail is particularly revealing about the motives and mindsets of the diplomatic powers of the day during the twilight hours of western imperialism. They were focused on keeping Christian holy sites out of the grubby hands of natives about to embark on independence, which was considered a respectable and justifiable policy priority.
And yet, no one is insisting today on “internationalizing” Bethlehem. Bethlehem is universally seen as part of the West Bank, as Palestinian, and as being located in the “occupied Palestinian territories.”
The oft-repeated assertion is that placing an embassy in Jerusalem is a violation of “international law” because it would endorse Israel's “occupation of East Jerusalem.” This was a common argument made when Liz Truss's short-lived government recently considered moving the UK embassy to Jerusalem.
This assertion is mostly a distraction, as no one anywhere has proposed placing an embassy to Israel in East Jerusalem. Situating an embassy in the west of Jerusalem not only does not constitute a recognition of Israeli claims in the east, in many ways it would do the opposite.
If Israel can be labeled an occupier east of the line because we are now considering it a border, then it must mean that Israel exercises legitimate sovereignty west of the line.
But the insistence on marshalling this argument actually reveals a great deal.
The argument rests on the claim that the Green Line – the armistice line which divided Jerusalem for nineteen years in the mid-twentieth century – constitutes an international border.
International borders exist in international law either when neighboring states agree on them in a peace treaty, or if they were inherited from previous states or from internal administrative boundaries when previous states or empires collapsed.
The Green Line was none of these things. It was, when it was drawn, a brand-new line that adhered to no previous boundary, neither internal or external, neither British nor Ottoman.
The Green Line was an armistice line drawn on the maps that reflected the positions of two belligerent armies, Israeli and Jordanian, at the moment a truce went into effect. The agency which monitored the line was the United Nations Truce Supervision Organization. The agreement which endorsed the line emphasizes twice that it is not an international boundary, noting that it is “dictated exclusively by military considerations” and made “without prejudice to future territorial settlements or boundary lines or to claims.”
Similar passages exist in the armistice agreements Israel reached with Egypt and Syria (but not Lebanon). In all three cases, they were at the insistence of the Arab side, who were convinced that they could initiate future wars and that in those wars they would improve their territorial position. This gamble was half right.
Whatever a truce line might be, it does not mean nearly as much once the truce is broken. Which it was in 1967 when Jordan attacked Israel in the early hours of the Six-Day War. By war’s end, Israel was in possession of the entire West Bank, including East Jerusalem, but unlike the rest of the West Bank, East Jerusalem was annexed by Israel, a move recognized by no other country in the world. And no country has proposed putting its embassy — at least, not its embassy to Israel — in East Jerusalem. It's not clear why this issue is even relevant for proposed sites for embassies, all of which are west of the Green Line.
The piety about the Green Line isn’t just legal nonsense, turning the armistice line of one war retroactively into an international boundary after the aggressor in the next war was defeated. It completely contradicts the argument about the corpus separatum. If Israel can be labeled an occupier east of the line because we are now considering it a border, then it must mean that Israel exercises legitimate sovereignty west of the line. And if Israeli rule west of the line cannot be recognized, then that leaves little room for the moral outrage about Jews living east of it, especially when they lived there continuously for centuries except for the comparatively short 19-year period of Arab rule when they were expelled as a condition of their surrender.
The “international” claim and the “occupation” claim are individually ahistorical and not in any way normative; taken together they are nonsense on stilts.
Both of these “legal arguments” used against Israel are disingenuous in the extreme. Laws are general norms that are applied in all relevant cases. These two norms — that a proposed internationalization is binding despite never having been implemented; and, that an armistice line (that is explicitly not a border) retroactively becomes one when one side breaks the armistice to launch a war and loses — simply do not exist in any other theater of conflict. Nothing remotely like either has ever been implemented or suggested, and in fact in nearly every similar case the exact opposite has been the consensus international position.
But what’s even more disturbing is that the two norms completely contradict each other. The “international” claim and the “occupation” claim are individually ahistorical and not in any way normative; taken together they are nonsense on stilts.
III. Final Status
In recent weeks, Australia’s Minister of Foreign Affairs Penny Wong stated that Canberra’s recognition of “West Jerusalem” as Israel’s capital essentially prejudged the final status process and was therefore improper. She’s hardly alone in making this argument, and in so doing believes that she is adhering to the Oslo Accords.
But she is mistaken.
The Oslo Accords were premised on a five-year interim period of staged Israeli withdrawals in exchange for a Palestinian undertaking to rein in violence and recognize Israel (the withdrawals happened but the Palestinian commitments, not so much). This was to be followed by “final status” talks which were to wrap up five years after the interim period got underway.
Article V of the original Oslo Agreement set out a very specific list of final status issues. Jerusalem was first on the list, followed by refugees, settlements, security, borders and the awkwardly worded “relations with neighbors,” a delicate allusion to the issue of whether the new Palestinian entity would be a state and what kind of sovereignty it would actually exercise.
But a look at the list of final status issues shows just how selective our piety about not pre-judging the outcome is. Most governments and relevant international actors have expressed very clear and prejudicial positions on four out of the six issues, especially in the twenty years since the first round of final status talks collapsed at Camp David and Taba in 2000-2001.
If not prejudging the final status of Jerusalem is such an overarching value, then adhering either to the lines of the international city or to the lines of the divided city makes no sense at all.
With respect to sovereignty, all openly support statehood for the Palestinians, with many commentators on the issue even remembering (falsely) that the Oslo Accords promised that all along. Settlements are considered illegitimate or worse by all, and the failure to freeze any and all construction in them during the Oslo years is considered Israel’s greatest violation of the peace accords by the many commentators who remember (falsely, again) such a commitment as being written into the Accords.
On borders, the consensus position is that pre-1967 lines are the basis for any future agreement, and that any deviation from them in Israel’s advantage must be compensated for in sovereign Israeli territory. Interestingly, the two final status issues of the six where governments do tend to adhere to the principle of not making prejudicial policy commitments are those where the global consensus runs much closer to the Israeli position than the Palestinian one, namely security and refugees.
The prevailing orthodoxy holds that global actors must be meticulous about actions that could prejudge or pre-empt final status negotiations, except in all the issues where they must not. It’s amusing, but hardly surprising, how rarely this consensus is challenged. And if not prejudging the final status of Jerusalem is such an overarching value, then adhering either to the lines of the international city or to the lines of the divided city makes no sense at all.
It also ignores the fact that detailed talks on final status have taken place at least three times (2000-2001, 2007-2008, 2013-2014) and in each case broke down because the Palestinian side refused to come to any final status agreement that involved a full peace and reconciliation with the existence of a Jewish state.
The larger issue is that it is not entirely clear that opening an embassy in Jerusalem — in the western half, the part that is indisputably inside sovereign Israel territory — prejudges the final status at all. Whatever the future disposition of the Old City or the holy sites or the formerly Jordanian part of the city, there is no plausible scenario in which the new neighborhoods to the west where Israel’s governing institutions have been based for nearly 75 years will not be under Israeli sovereignty under any conceivable arrangement. And in the vanishingly unlikely event that this is not the case, the location of an embassy simply won’t be a factor one way or another.
If there ever is a diplomatic or geostrategic change so dramatic and presently unthinkable that somehow results in Israel packing up the Knesset, the Supreme Court and various government ministries, and moving them out of the western foothills of Jerusalem where they now reside to some sunnier pastures on the coast, the need to relocate the Australian embassy will not be the logistical hurdle that stymies the whole business.
IV. Status Quo
When all else fails, there is always one last argument: the need to preserve the religious status quo. This is one is generally reserved for disputes dealing with holy sites, but as we saw in the U.K. earlier this month when there was talk of moving the embassy to Jerusalem, it can be dragged out for this topic too.
The status quo refers to arrangements for management of various holy sites, mostly in Jerusalem’s Old City, that have existed since Ottoman times with minor adjustments under British and later Israeli rule. They apparently did not apply during the nineteen years of Arab rule from 1948 to 1967, because it was uniquely in this period that access to holy sites was completely shut off to one group — Jews, of course — by Jordanian authorities in direct contravention of their commitments under the 1949 armistice (needless to say, also in contravention of the principles of internationalization and of the idea of not prejudging final status).
The argument regarding status quo is only ever used against Israeli claims, never for them.
The argument for the status quo is trotted out generally as a means of cognitive dissonance reduction for something which otherwise would sit uncomfortably with people who favor religious freedom and human rights. Since Israel captured the Old City in 1967, it has forbidden Jews from praying or performing any religious rites on Judaism’s holiest site, the Temple Mount, also known in Arabic as the Haram al-Sharif or Noble Sanctuary, site of landmarks such as the Dome of Rock and Islam’s third holiest site the Al-Aqsa Mosque.
The problem is particularly combustible because of an antisemitic conspiracy theory that holds that Jews and specifically Israel are plotting to destroy Islamic holy site. This conspiracy theory has been used roughly once a decade for the past century to mobilize violence against Jews both in Jerusalem and throughout the Middle East.
A separate essay would be necessary to explain why it is the case that Israel forbids Jewish prayer on the Mount and why that should not change, but here it might be appropriate to point out that in any other case we might expect human rights absolutists to take the side of those asking to practice their own religious rituals.
The argument regarding status quo is only ever used against Israeli claims, never for them. Status quo explains why Jews shouldn’t be allowed on the Temple Mount. Since 2015, western media have taken to referring to the site by the ahistorical name “Al-Aqsa Compound” to reduce the dissonance that earlier existed from false claims that Jews who never entered al-Aqsa or even got near it were somehow desecrating it.
But the status quo is never used as an argument in support of Israeli claims. No one opposes, say, the redivision of Jerusalem because in the status quo religious sites are independently operated under an umbrella of Israeli sovereignty.
Like internationalization, the Green Line and final status, the status quo argument exists to buttress occasionally dubious claims that Israel is violating some legal norm (often one that is entirely made up), but then disappears if applying it actually works in Israel’s favor.
What makes a law a law is its generality, its existence as a general norm that can be interpreted and applied to multiple cases. In the case of Israel, we have long been accustomed to “norms” being invented that apply only to Israel. No one before 2005 ever claimed that a territory could be occupied under international law without any military presence whatsoever of the supposedly occupying power. But once Israel withdrew from Gaza, a new definition of occupation was needed, and it quickly became the consensus.
The general norm is not the international practice which a specific state has violated. The general norm is the ideological commitment to the idea that the Jewish state is tainted by sin, criminal in its essence.
And this isn’t a norm at all. It’s not a piece of jurisprudence, but a piece of theology with a long and not terribly distinguished history. It should not form the basis of our arguments about foreign policy.
1) There were repeated and unsuccessful attempts to internationalize Constantinople at the end of the First World War as a way of dealing with competing Greek, Turkish and Russian claims. More successful in the short term was the creation of the Free City of Danzig between a defeated and territorially shrunken Germany and newly independent Poland. It’s worth noting that both cities today bear different names (Istanbul and Gdansk), testimony to how much war and displacement rendered them anything but international or cosmopolitan.
After the Second World War, there was less enthusiasm for international cities as they had been understood in postwar settlements in the previous century (but Tangier did remain one until it became part of Morocco in 1956). Trieste was designated an international city in 1947, the same year as the Partition Resolution, but that too didn’t last long. Though it lost the rest of its Adriatic possessions, Italy was able to annex the city of Trieste, but much of the “internationalized” zone to the south and east became part of Yugoslavia, with hundreds of thousands of Italians forced to flee to the other side of the border.