The US Diplomatic Presence in Jerusalem – The Need to Undo Trump's Damage
As the Trump Administration in the US has lost the presidential elections, Palestinians, Israelis and all stakeholders are preparing to engage with the newly elected Biden-Harris Administration.
While the entire international community has had their own experiences with the Trump Administration, the Israeli – Palestinian conflict was an important focus – and target – of the Trump Administration’s attention and actions throughout the past four years. Among the most significant moves taken by the Trump Administration that provoked strong reactions globally and locally was the release of the so-called “Vision for Peace and Prosperity” in January 2020. This step was preceded by several other major decisions entailing strategic shifts in US policy vis-à-vis the Palestinian-Israeli conflict. This included the December 2017 Presidential Proclamation recognizing Jerusalem as the “capital of Israel” and transfer of the United States Embassy from Tel Aviv to Jerusalem.
This and other aspects of the Trump Administration policy vis-à-vis the Israeli-Palestinian conflict, undoubtedly shattered norms and broke precedents as it was clearly driven by ideological incentives more than political considerations and completely sidelined international law and the international consensus that has long prevailed in regards to the parameters of a just solution.
This paper will address the longstanding US diplomatic presence in Jerusalem; the legal and political implications of closing down the US Consulate General; and the transfer of the US Embassy from Tel Aviv to Jerusalem. This becomes especially relevant given the public statements of the newly-elected US Administration, including the promise to reopen the US Consulate General in East Jerusalem, as was declared by President elect Joe Biden during his elections campaign on 30 April 2020, “I would reopen the consulate in Jerusalem to engage the Palestinians and my administration will urge both sides to take steps to keep the prospect of a two-state solution alive." The same promise was repeated by Vice-President elect Kamala Harris in public statements on 3 November 2020.
Background on the US Consulate General:
1. In 1844, US President John Tyler appointed the first US consul to Jerusalem, Warder Cresson. This move was not unique to the US as the 19th century saw various Western powers jockeying for position often through missionary activities in the Ottoman Empire domains especially in the city of Jerusalem by, inter alia, extending protection to Christian churches and holy places in the city. Initially, Britain, France, Russia, Austria and the United States opened consulates in Jerusalem and were followed by others. A permanent US consular presence was as such established in 1857, in a building just inside the Jaffa Gate in the Old City. That building today houses the Swedish Christian Study Center.
2. In the late nineteenth century, the US Consulate General Mission moved to another site on Prophets’ Street, a few blocks outside the Old City. In 1912, the US Consulate General was relocated to 18 Agron Road. The building on 18 Agron Road was built in 1868 by the German Lutheran missionary Ferdinand Vester, whose family and associates built many of the Arab-style homes in Jerusalem, including what is now the American Colony Hotel. The United States bought the property in the 1930s. This property housed the US Consul General residence and other offices.
3. On May 23, 1948, during the hostilities in the aftermath of the Israeli declaration of independence, the US Consul General, Thomas C. Wasson, was assassinated a block away from the main Consulate General location in Agron Street/ Jerusalem.
4. Following the adoption by the United Nations General Assembly of resolution 181(II) partitioning Palestine, the termination of the British Mandate, and the subsequent creation of Israel, which lead to the Arab-Israeli war in 1948, the city of Jerusalem was divided into two separate parts in accordance with the Jordanian-Israeli armistice agreement of 1949. This left the eastern part of the city, including the Old City, under Jordanian rule.
5. Although the eastern part of Jerusalem including the Old City was under Jordanian rule, the official US diplomatic representation to the Kingdom of Jordan was maintained through the US Embassy in Amman, while the Consulate continued to operate independently from the US Embassy to Jordan in Amman and from the US embassy to Israel in Tel Aviv. In early 1952, the US government leased a building in the eastern part of Jerusalem. This building, located on Nablus Road in East Jerusalem, housed offices which provided American citizens consular services as well as visas. The US Consulate General therefore continued to operate as a single mission from two buildings—one in each half of Jerusalem— i.e., Agron Road in the west and Nablus Road in the east with U.S. officials travelling across the Mandelbaum Gate checkpoint.
6. In early 1950, as the General Assembly of the United Nations began debating how to carry out its plan for Jerusalem as Corpus Separatum, as called for in resolution 181 (II), Israel, which was in control of western part of the city, declared Jerusalem as Israel’s capital. The US did not recognize this declaration and maintained its embassy to Israel in Tel Aviv after the first US Ambassador James Grover McDonald had already presented his credentials to the Government of Israel on March 28, 1949.
7. During the 1967 war, Israel occupied the West Bank, including East Jerusalem, and the Gaza Strip, and extended Jerusalem's city limits and applied its laws, jurisdiction, and administration to the holy city. By July 1967, the “new municipal limits of Jerusalem” carved an additional 64 km2 as opposed to the Jordanian 6 km2 municipal area, enlarging the city’s area of jurisdiction up to 70 km2.
8. Again the US government did not recognize these developments and the US Consulate General in Jerusalem continued to operate as an independent diplomatic mission out of the two buildings, i.e. Agron Street in West Jerusalem and Nablus Road in East Jerusalem, as united and independent under the authority of the Consul General who did not present credentials to the Government of Israel.
9. In 1980, the Israeli Knesset passed the “basic law” of Jerusalem, which declared Jerusalem to be the “complete and united” capital of Israel. However, the United Nations Security Council adopted resolution 478 (1980) declaring this action to be “null and void” and demanding that it “must be rescinded forthwith”. The international community did not recognize Israeli sovereignty over west Jerusalem or over east Jerusalem and considered the last area to be an occupied territory. The US abstained when resolution 478 was voted upon. The US did not recognize that unilateral action by Israel and maintained its policy on Jerusalem while also maintaining its official diplomatic mission to Israel in Tel Aviv.
10. In the 1980s, American politicians, led by Republican Senator Jesse Helms, urged the administration to recognize Jerusalem as Israel’s capital and move its Embassy to the city. In 1988, a law was passed calling for two “diplomatic facilities” to be built in Tel Aviv and Jerusalem. In the last days of the Reagan presidency, on January 18, 1989, US ambassador to Israel William Brown and Israel Lands Authority deputy director Moshe Gatt signed an “agreement according to which a plot of land in Jerusalem would be leased from Israel to the US for 99 years, for $1 per year”. The land in question was located in what was known as the Allenby Barracks, the site of the British army’s Jerusalem garrison during the Mandate. Palestinians have questioned the lease’s legality on the grounds that the site of the envisaged Embassy was Palestinian refugee property and underlining that some parts of the land in question is a Waqf property confiscated by the Israeli authorities, along with other refugee properties since 1948. The exact location of the Allenby Barracks property is situated in Israel but very close to the armistice line of 1949. To date, no construction has started on this site.
11. As efforts were exerted to advance a peace agreement in the 1990s, the US Consulate General developed a relationship with the Palestinian delegation that participated in the Madrid Peace Conference in 1991. When the Oslo Accords led to the establishment of the Palestinian Authority, the Consul General was designated to maintain an ongoing policy dialogue with the Palestinian leadership. While the US Consul General never submitted any credentials to the Palestinian Authority, the Consulate General was viewed as the de facto US diplomatic representative to the Palestinian Authority. In addition, after 1967, the US representation and services to the Gaza Strip was carried out by the Embassy in Tel Aviv. Following the Israeli disengagement from Gaza in 2005 however, the diplomatic representation and service to Gaza was united under the US Consulate General in Jerusalem.
12. On October 23, 1995, the Jerusalem Embassy Act was passed as a law by the US Congress. The law was adopted by the Senate (93–5), and the House (374–37). The Act became law without a presidential signature on November 8, 1995. The Act recognized Jerusalem as the capital of the State of Israel and called for Jerusalem to remain an undivided city. Its purpose was to set aside funds for the relocation of the US Embassy in Israel from Tel Aviv to Jerusalem, by May 31, 1999. Despite passage, the law allowed the President to invoke a six-month waiver of the application of the law, and reissue the waiver every six months on “national security” grounds. The waiver was repeatedly renewed by Presidents Clinton, Bush, and Obama. President Donald Trump signed a waiver in June 2017. On December 6, 2017, however, Trump issued a proclamation recognizing Jerusalem as Israel’s capital, and ordered the planning of the relocation of the embassy.
13. In 2004, the US Consulate leased premises in Talpiot (Talbibeh neighborhood of West Jerusalem) to serve basic logistical services to the mission. In 2006, the US Consulate expanded its presence on Agron Road with the lease of an adjacent building for its administrative and public affairs offices. The building, a monastery of the Congregation of the Mission, also known as the Lazarists, was built in the 1860s and still houses a small group of Lazarist clergy.
14. In 2010, the US Consulate General completed construction works on a large building near Jabal al Mukaber on 14 David Flusser street. Immediately upon completion of construction, this building served as a center for American Citizens services and visas as part of the US Consulate General. The specific location of this building is at the southwestern corner of the “No Man’s” land. Parts of the land though extend into East Jerusalem. When Britain ended its mandate of Palestine on May 14, 1948, it withdrew from the Government House at the heart of the “No Man’s” land, and handed the keys to the Red Cross, which pulled out from the building on September 30, 1948 and handed it to the United Nations. The UN converted the building into a base for the U.N. Truce Supervision Organization (UNTSO), which is still in operation until today.
Events on Jerusalem Proclamation and Merger of the US Consulate General into the Embassy:
15. On December 6, 2017, US President Donald Trump signed and issued a Presidential Proclamation recognizing Jerusalem as the capital of Israel and transfers the United States Embassy from Tel Aviv to Jerusalem. The proclamation started with a specific paragraph referencing the US Congress Jerusalem Embassy Act of 1995 (Public Law 104-45). The proclamation also indicated that the United States Senate reaffirmed the Act in a unanimous vote on June 5, 2017.
16. The proclamation, inter alia, stated: “Today’s actions — recognizing Jerusalem as Israel’s capital and announcing the relocation of our embassy — do not reflect a departure from the strong commitment of the United States to facilitating a lasting peace agreement. The United States continues to take no position on any final status issues. The specific boundaries of Israeli sovereignty in Jerusalem are subject to final status negotiations between the parties. The United States is not taking a position on boundaries or borders”.
17. The Jerusalem Proclamation never mentioned the US Consulate General in Jerusalem let alone its termination. On the contrary, and notwithstanding the said proclamation and the transfer of the Embassy from Tel Aviv to Jerusalem, the US had appointed a Consul General Mrs. Karen Sasahara to serve in Jerusalem in the summer of 2018 and she continued to serve in this post until the announcement on merging the US Consulate into the Embassy in August 2018.
18. Based on the pretext of saving money and fast implementation of the proclamation, the Trump Administration took the first practical step of relocating the US Embassy from Tel Aviv to Jerusalem by taking over the biggest of the buildings of the US Consulate General that is located in 14 David Flusser Street in Jerusalem. On May 14, 2018 senior US officials, including US Treasury Secretary Steven Mnuchin, Special US Envoy Jared Kushner, and US Ambassador to Israel David Freidman, presided over an opening ceremony, which was attended by the Israeli Prime Minister Netanyahu and far right US patron Sheldon Adelson. The ceremony was the first practical step in inaugurating the Jerusalem-based Embassy. The offices used by the US Government in Tel Aviv on Hayarkon Street remained in use but were declared to be part of the Embassy in Jerusalem as a branch office in Tel Aviv. A consular branch in Haifa was permanently closed as of March 26, 2019.
19. In August 2018, the US State Department announced that the US Consulate General in Jerusalem would merge into US Embassy in Jerusalem to form a single diplomatic mission. This was followed by an announcement made by the US Secretary of State Mike Pompeo, on October 18, 2018, who declared that the two missions would be combined. Secretary Pompeo said that the US Ambassador to Israel, David Friedman, would guide the merger. Pompeo said that, “This decision is driven by our global efforts to improve the efficiency and effectiveness of our operations,” and added “It does not signal a change of US policy on Jerusalem, the West Bank or the Gaza Strip.” The last serving Consul General who had just arrived three months earlier in Jerusalem, Karen Sasahara, was recalled and the mission, i.e. the “new” US Embassy, was placed under Ambassador David Freidman.
20. On March 4, 2019, the US Consulate General in Jerusalem was effectively and administratively merged into the US Embassy Jerusalem forming a single diplomatic mission. All of the previous US Consulate General premises were effectively taken over by the Embassy thus terminating the independent US diplomatic representation in the holy city which had lasted over a century and a half. The announcement made by the State Department on that day said that: “There will be complete continuity of US diplomatic activity and consular services after the merger. We will continue to conduct all of the diplomatic and consular functions previously performed by US Consulate General in Jerusalem. We will also engage in a wide range of reporting, outreach, and programming in the West Bank and Gaza Strip, as well as with Palestinians in Jerusalem, through a US Embassy Palestinian Affairs Unit (PAU), which will operate from our historic Agron Road location in Jerusalem.” The Palestinian leadership had already declared its rejection of all the steps taken by Trump Administration related to Jerusalem. The leadership, as well as the Palestinian public at large, boycotted the new Embassy. To date, in spite of various announcements, pressures and incentives, no country other than Guatemala has followed suit and opened an embassy in the holy city.
21. As of present, nine countries maintain independent Consulates General in Jerusalem while their official diplomatic representation to Israel is carried out by their respective embassies in Tel Aviv. These are: the Apostolic Delegation, Belgium, France, Greece, Italy, Spain, Sweden, Turkey and the United Kingdom. These consulates work as de facto diplomatic representations to the Palestinian Authority. The diplomatic consular community in Jerusalem already excluded the “new US embassy” staff of Jerusalem from attending the traditional monthly meeting of all consuls general.
Conclusions:
1. For 160 years, the United States had maintained an independent diplomatic presence in Jerusalem through its Consulate General. This status has been held long before the adoption in 1947 by the UN General Assembly of Res 181, which designated Jerusalem as a Corpus Separatum, and throughout the years of Jordanian control of East Jerusalem. The same status was maintained after the Israeli control of west Jerusalem, and the Israeli control of all of Jerusalem in 1967, including the expansion of its municipal boundaries. This status was also held after the adoption of an Israeli basic law on Jerusalem in 1980 proclaiming it to be the united and eternal capital of Israel and following the advent of the Palestinian Authority. Up to the Trump Administration and President Trump’s proclamation recognizing Jerusalem as Israel’s capital and the transfer of the embassy, the US Consulate General maintained the status as independent diplomatic presence until it was emerged in 2019 into the newly transferred US Embassy in Jerusalem.
2. The Trump Proclamation of Jerusalem violated the established American position on the status of the city as well as the position of the successive American administrations after the adoption of the 1995 Jerusalem Act by the US Congress. The proclamation also violated the relevant Security Council resolutions as well as the provisions of international law applicable to East Jerusalem. The text of the proclamation was harmful in spite of the doubtful caveats within text. Worse still was the merging of the Consulate into the Embassy without any clear legal foundation, which contradict the text of the Proclamation itself. The absence of the Consulate would mean that the US accepts the illegal Israeli measures in East Jerusalem, and it undermines the potential of restoring American relations with the Palestinian people and leadership. In addition, this diminishes any role for the US to reach a peaceful solution to the conflict as there is no such solution without a reasonable and acceptable compromise by the two sides on Jerusalem.
3. The Biden Administration could reconsider and rectify the harm done by the Trump Proclamation on Jerusalem and bring the situation to the status quo ante. But the necessary minimum to maintain the interests of the US and its role is to reestablish the Consulate General in East Jerusalem, which could be done by restoring all its premises or at least some of them. This could be done by internal administrative actions reversing the steps taken by the Trump Administration in shutting down the Consulate General. In fact, Israel cannot object to such steps because it is precisely the opposite steps that violated the international law, relevant Security Council resolutions and the longstanding US policy on Jerusalem.
