Marshall J. Breger is professor of law at the Catholic University of America's Columbus School of Law. He served as solicitor of labor and acting assistant secretary for labor management standards under President George H.W. Bush. Breger writes and speaks on legal issues, including constitutional law, arbitration, foreign relations law of the United States, and the Middle East peace process.
Trump’s Jerusalem Decision Creates More Problems Without Changing Facts on the Ground
December 21, 2017
The president’s decision to recognize Jerusalem as the capital of Israel and direct the State Department to begin the process of moving the embassy there is an act of political symbolism fraught with inadvertent consequences.
The decision leaves open important legal questions. Thus, the Trump recognition statement stated “we are not taking a position on any final status issues, including the specific boundaries of the Israeli sovereignty in Jerusalem, or the reconciliation of contested borders.” He also called “on all parties to maintain the status quo at Jerusalem’s holy sites.”
This means that Trump has recognized the idea of Jerusalem as being part of Israel without reference to the real world issues regarding its metes and bounds, the possibility of East Jerusalem as a Palestinian capital, and a resolution to the holy sites. Indeed, all the issues that matter. He could just as well have followed the Russians, who in April 2017 recognized West Jerusalem as Israel’s capital without any fanfare. But that would not have been Trumpean.
Further, Trump directed movement of the embassy to Jerusalem by telling the State Department to hire architects to begin the process of commissioning an embassy. Secretary of State Rex Tillerson says the process will take around two years. Anyone who knows Jerusalem and the process of building embassies knows it will take closer to a decade, if that.
Indeed, one small fact was seemingly overlooked by President Trump. The site leased in 1989 for a future embassy (at the edge of the Talpiot neighborhood) doesn’t meet present safety standards regarding setbacks. Of course, if Trump were serious, he could just change the placard in front of the U.S. consulate in West Jerusalem to read “U.S. Embassy.”
Many moderate Israelis argue that the declaration means little and should not deep-six any possible negotiations. But they are incorrect. The symbolism of Trump’s declaration carries tremendous portent and itself changes reality.
- It makes official to the Palestinians that the United States is not the best interlocutor to resolve the conflict.
- It puts paid to the so-called “outside-in” strategy (using Arab states to negotiate a solution to the conflict and then bringing along Palestine and Israel) for the near future, if not the long term. Whatever Jared Kushner (who is said to have vociferously favored the move in Trump circles) believes, his bromance with Crown Prince Mohammed bin Salman will not cause the Saudis to ignore Jerusalem-even in the long term. Much as the United States and Israel hope for an implicit alliance with the Gulf Arabs, it is highly unlikely that a man who sees himself as a future “Custodian of the Two Holy Mosques” (a title the Saudi royals list prior to that of king) would want to be seen as jettisoning the fate of the city which encompasses the third holiest mosque in Islam.
- The decision places intolerable strain on King Abdullah of Jordan, a country with a Palestinian majority and one that is central to U.S. strategy against ISIS.
- Most everyone, including the Palestinian Authority, fully understands that Western Jerusalem (however defined) would be the capital of the state of Israel. Official regulation, however, was seen as part of the carrots that would result in a final settlement agreement. Trump seems have given away this carrot to make his domestic political constituency happy. Giving it away for free does not, however, help the Middle East peace process. It gets an “F” in any “art of the deal.”
- In fairness, we should note that the president did say that he would support a two-state solution if the parties agreed to one. This leaves open the theoretical possibility of a deal. But it is a deal based on some variant of Jabotinksy’s “iron wall” where Muslims accept defeat and then Jewish magnanimity is possible. Vladimir (Ze’ev) Jabotinsky, of course, was a nineteenth century liberal and could understand these things. The present Israeli right (of which Benjamin “Bibi” Netanyahu is probably the most liberal member in the Knesset) will more likely see the Trump move as a permission slip to further build and settle in Jerusalem and the West Bank. Already the Israeli right has begun efforts to retroactively nationalize private Palestinian land, require a supermajority of the Knesset to approve any compromise on Jerusalem, and build in the still open E-1 area between Jerusalem and Maale Adumim-thus crippling contiguity between the north and south West Bank.
- Ambassador Nikki Haley’s statement that all this was done “to advance peace” is risible. While Trump’s move may not end the peace process, it is hard to understand how it advances it.
EDITOR'S NOTE: This blog post is drawn from a longer piece in the forthcoming January 2018 edition of Moment magazine.