James Cooper

How Trump duped Israel on the embassy move

On December 5, 2017, President Donald Trump announced that he would do what no other President has done over the past two decades.  Henceforth, he would order that the US Embassy in Tel Aviv be relocated to Jerusalem, in compliance with the provisions of the Jerusalem Embassy Act.  Then he immediately proceeded to do what each of his predecessors has done every six months over the past two decades – he signed the waiver delaying his compliance with the Jerusalem Embassy Act.

Legally speaking, absolutely nothing has changed.  In terms of politics, however, Trump may now claim that he has acted to fulfill his campaign pledge by “ordering” the preparation and planning for the embassy move.  In the meantime, his Secretary of State, Rex Tillerson, has opined that it might take “several years” before the embassy is relocated – in other words, probably not while Trump is in office.

Whoever designed this brilliantly cynical maneuver – likely, a group of legal advisors – knew exactly how this game works, duping pro-Israel advocates while softening up a grateful Israeli public for painful concessions in the event that Trump publicly unveils his version of a peace plan.

What follows is a narrative as to how this con job has played out thus far, along with an educated guess as to how it will continue to unfold.

Soon after Trump was sworn into office, it apparently dawned on him – or he was duly persuaded by others – that his pledge to relocate the US Embassy to Jerusalem would run afoul of a long-standing US policy to employ the ongoing diplomatic isolation of West Jerusalem as a bargaining chip to pry East Jerusalem – which includes the Old City – from Israeli possession.

East Jerusalem is defined by the United Nations as that portion of Jerusalem east of the 1949 Armistice Lines that separated Israel and Jordan after the Israeli War of Independence.  Colloquially, this boundary is known as the Green Line.

From 1949 until 1967, the Jordanians had full possession over East Jerusalem, illegally annexing it, along with the rest of the West Bank.  The Israelis, in turn, had full possession over West Jerusalem, locating all its government institutions within its environs.  At present, no one – not even the Palestinian Authority – publicly disputes Israel’s theoretical right to sovereign control over the entirety of West Jerusalem.

However, the 1947 UN General Assembly Resolution 181, which recommended the partition of Palestine between Jews and Arabs, envisioned  that the entire city of Jerusalem would be governed under the auspices of an international consortium, as a corpus separatum.

Accordingly, from 1949, it had been the policy of the United Nations and the United States to hold off on diplomatically acknowledging that any part of Jerusalem was the capital of Israel until such time as the state of belligerence between Jews and Arabs was brought to an end, and – most significantly – the Palestinian refugees and their families were granted the right to “repatriate” within the borders of the State of Israel.

Up until 1967, when Israel came into possession of  what the international community now terms “the occupied territories” (including East Jerusalem), there had been no suggestion or discussion from any party – including the Palestinian Arabs – that a Palestinian state be established anywhere in those territories.

To the contrary, up until 1967, the main focus of the international community had been on how and when the Palestinian refugees would be reintegrated back within that portion of pre-1948 Palestine now comprising the State of Israel. With respect to those armistice borders, they did not follow the lines of Resolution 181, and so, pending a negotiated end to the conflict, West Jerusalem would be considered an indivisible part of the corpus separatum that was slated to be under international control.  In practice, it meant that all nations would be discouraged from establishing their embassies in Israel’s capital in West Jerusalem.

The Six-Day War in 1967 changed the overall dynamic of the international position on Jerusalem. By this time, it became clear to all that Israel was a viable state, and that it was here to stay.  Henceforth, the major concern of the international community was that Israel should “withdraw” from “the occupied territories”, including East Jerusalem.

In the succeeding years, the international community would be under no illusion that Jerusalem might be administered as an indivisible corpus separatum under international governance. Now that Israel had the whole kit and caboodle of Jerusalem within its possession, that option was no longer viable, even in theory.  Nevertheless, the international community would maintain the diplomatic status quo, continuing to deny that even West Jerusalem was the capital of Israel, mostly as a diplomatic bargaining chip –  to trade away international diplomatic recognition of West Jerusalem, in return for Israel giving up all the occupied territories, including East Jerusalem.

However, in the aftermath of the Six-Day War, Israel expanded West Jerusalem’s municipal boundaries to include East Jerusalem, taking full possession over the Old City, which included the Holy Basin of Jewish, Christian, and Muslim religious sites.

In 1980. Israel passed the Jerusalem Law, which declared that “Jerusalem, complete and united, was the capital of Israel.” Some have characterized the passage of the law  as an effective annexation by Israel of East Jerusalem, but others have pointed out that a legal annexation would be accompanied by an automatic conferral of citizenship rights to all the residents included within the boundaries of the annexed territory.

Though the Arab residents of East Jerusalem have been accorded permanent residence rights, along with the right to apply for Israeli citizenship,  this “opt-in” right of citizenship is not considered consistent with an annexation claim.   Though Israel’s 1980 law declares Jerusalem as “complete and united,” no Israeli government as yet has formally proclaimed East Jerusalem to be annexed to the Jewish State.

As a consequence, since the signing of the Oslo Accords, each successive Israeli government coalition – even as it consistently disavows any intention of doing so –  has held East Jerusalem (or at least portions of it) as being negotiable in return for a comprehensive peace deal.  The best evidence of this is the fact that, since the signing of the Oslo Accords, the US has maintained a diplomatic presence in East Jerusalem through the US Consulate General, which – in its own words – “has served as the de facto representative of the United States government to the Palestinian Authority.”

In other words, while the Palestinian Authority currently maintains its government institutions in Ramallah, the US Consulate General has apparently set itself up in anticipation that the Palestinian capital-in-the-making is in East Jerusalem.

Now, play close attention to this ongoing con, to see exactly how successive American administrations and Israeli governments – whether Republican or Democrat, Likud or Labour – have duped both the American and Israeli public into thinking that the US Embassy move from Tel Aviv is an issue of any legal substance.  In truth, it is of no substance or value at all. The real concession would be if the branch of the US Consulate General in East Jerusalem altered its official postal address to reveal that it is located in Israel, and not just within a corpus separatum called “Jerusalem.”

If the Israeli government position were truly that East Jerusalem is an inseparable part of the State of Israel, how could it countenance the fact – without public comment or protest – that the United States maintains its diplomatic presence to the Palestinians on sovereign Israeli territory?  What nation would tolerate that state of affairs, other than one that does not consider this area of Jerusalem to be within its sovereign national territory.

As of 2010, matters got a little more complicated.  In that year, the US Consulate General in Jerusalem relocated its main office to West Jerusalem, almost abutting the Green Line, yet nevertheless retaining a postal address that does not define itself as being in Israel, even when it is currently situated in West Jerusalem.  The US Consulate General currently maintains an additional branch on David Flusser St., just over the Green Line in East Jerusalem.

To quote its Wikipedia entry, the US Consulate General in Jerusalem “is one of the two Consulates General (the other being Hong Kong) that function similarly to an embassy (i.e., reporting directly to the United States Department of State and not the ambassador of any country).”

As far as the State Department is concerned, the US Consulate General in West Jerusalem is not actually in Israel, though it remains to be seen how Trump’s “official” declaration will change the address designation, at least with respect to the branch that is currently in West Jerusalem.

At best, Trump’s official declaration simply did away with the outdated and absurd notion that Jerusalem – both east and west – may one day be governed under international auspices as a corpus separatum.  At the very least, one would hope that Trump would be directing the State Department to formally recognize West Jerusalem as Israel’s capital.

But if that were the case, all Trump needed to do was to direct the State Department to immediately  change the address of the Consulate branch in West Jerusalem to indicate that it was now located in Israel.  As of this writing (December 10th), there is no such indication – this branch is not yet formally indicated as being in Israel.

In terms of legal consequences, a simple official address change of the US Consulate General in Jerusalem – indicated anywhere on its official web site (and printed on all its official documents) that it is located in Israel – would pretty much accomplish the same job as a formal move of the US Embassy from Tel Aviv to Jerusalem.

In that case, there would no need to hide behind years of complex logistical planning for a physical move that may never come while Trump is President, when the formal legal effect could just as easily be achieved in 30 seconds by ordering the webmaster for the US Consulate General Jerusalem site to enter six simple keystrokes (I-S-R-A-E-L) to the address portion of its website.

Surely, the lawyers at the State Department would know exactly what that change would mean in terms of evidencing and substantiating a new irreversible official US policy on Jerusalem’s formal status as the capital of Israel.  For those pro-Israel advocates who claim to be on top of Israel’s legal strategy, they should be focusing on this project like bees to honey.

So, let us unpack where we are currently at.  As of this writing, the State Department has taken great care to legally differentiate the jurisdiction of its existing diplomatic facilities in Jerusalem from those diplomatic facilities it maintains in Tel Aviv. Formally, each is regarded by the State Department as being in two separate countries.

For instance, a passport generated from the US Consulate General of Jerusalem does not currently list Israel as being the place of issuance.  In President Trump’s December 5th “official” declaration, nothing was said in terms of any concrete and immediate moves to alter the public presentation of the US Consulate General in Jerusalem to evidence the fact that it is actually operating in Israel.

But let us provisionally give President Trump – and the State Department he presumably has authority over – the benefit of the doubt.  Let us assume that, in good faith, he does eventually get around to making these aforementioned changes, at least with respect to the branch of the US Consulate General located in West Jerusalem.  Let us assume that, henceforth, the US Consulate General branch in West Jerusalem designates its address as being in Israel.

In that case, the eventual embassy move to Jerusalem becomes a mere logistical formality, particularly when the existing US diplomatic facilities in Jerusalem are now formally and publicly designated as operating from within Israel.  Under those circumstances, Trump’s “official” declaration on Jerusalem becomes politically irreversible, since any succeeding US President would take great political risk in re-designating the Jerusalem diplomatic facilities as being somewhere other than in Israel.

However, at least as of this writing, that does not seem to be the tack that President Trump has chosen.  As of this writing, the President – and his legal advisors – appear to be gaming the quirky provisions of the Jerusalem Embassy Act to their political and legal advantage.

According to the 1995 Act, Congress mandated that the US Embassy in Tel Aviv be relocated to Jerusalem within a specified time frame.  If the State Department did not report the completion of the embassy move to Congress by the specified deadline, then Congress would cut 50% of the budget allocation for all the State Department’s diplomatic facilities in the succeeding fiscal year.

When President Clinton was presented with the initial draft of the proposed law, his legal advisors were of the opinion that the bill was an unconstitutional interference with the President’s authority to determine state recognition and the scope of foreign relations.  As a compromise to get the bill through, the draft was revised to provide that the President could delay the implementation of the penalty provision if he were to sign a waiver  every six months, on the grounds of national security interests.

Since then, for over two decades, every President has signed this waiver at the expiration of every six-month period, thereby indefinitely staving off the triggering of the penalty clause of the Act.

However, Trump came into office with a very public affirmation that he would approach this issue differently.  Unlike the Presidents who had preceded him, he would actually keep his promise to move the Embassy.  At the expiration of the first six-month period, his supporters gave him a pass for renewing the waiver at this early date, as he presumably needed time to settle into his presidential duties and to work through the consequences.

As of this month, however, Trump needed a viable excuse to keep signing the waiver  as his predecessors had done, yet at the same time maintain some element of credibility among his support base, many of whom saw this as a red line issue and as a test of his principles.  What Trump needed was a plausible pretext to show that he was on course to do what he was actually not on course to do.

It appears that a cunning advisor came up with just the perfect solution to free Trump from his dilemma: He would give a speech, declaring that Jerusalem was Israel’s capital, but not specifying the boundaries for that declaration.

In the meantime, he would have an excuse to keep signing the waivers every six months, presumably because it would take several years to “complete” the Embassy move, and it would otherwise be a national security disaster if, in the meantime, the penalty clause of the Act were to be triggered because the State Department could not meet the deadline for “completion.”

In short, someone stumbled on to the fact that Trump could theoretically continue doing exactly what his predecessors had done – stalling out the embassy move by signing the waivers for the remainder of his term – but with the key difference being that he was now on record as “ordering” the move.

In effect, by dragging out the “completion” of the move beyond the end of his term, President Trump could bequeath to his successor the option of simply leaving the Embassy move in a state of incompletion, continuing business as usual, signing a series of waivers until such time as a peace agreement might be successfully brokered between the Israelis and the Palestinians.

But the larger question is, why does any of this matter?  At best, Trump was doing nothing more than acknowledging what every member of the international community acknowledges, at least informally – that Israel maintains its capital in a portion of Jerusalem that everyone – including the Palestinian Authority – concedes will be under undisputed Israeli sovereignty in the event of a successfully brokered two-state solution.

As every legal expert and professional media pundit ought to know – even as many of them bamboozle their readers by misframing the issue – there will be no final status negotiations over West Jerusalem.  East Jerusalem is the only portion of the city up for negotiation.

However, if the Israeli public is to be prodded to give away something it already has in its possession – East Jerusalem – the international community needs to pretend that it is withholding from Israel some kind of concession that, in truth, isn’t really a concession at all:  the recognition of West Jerusalem as Israel’s capital.

In light of that consideration, a great many international political leaders and media pundits have engaged in hysterical political theatre, pretending that President Trump has somehow validated Israeli claims on East Jerusalem.  He’s done no such thing.

In practice, Trump essentially followed Vladimir Putin’s lead.  Back in April 2017,  Russia’s Foreign Ministry declared that West Jerusalem is the capital of Israel – again, a “concession” that is not really a concession at all, since it pretty much confirmed one of the fundamental  pillars of the two-state solution: that Israel shall have its capital in West Jerusalem, while Palestine will have its capital in East Jerusalem.  In any case, while Putin gave away the West Jerusalem declaratory “concession”, the EU could be relied on to continue to withhold it as a bargaining chip.

However, there was one crucial difference between Trump’s declaration and the Russian Foreign Ministry statement.  Trump essentially confirmed what the parties to the Oslo Accords had presumably agreed to do – to negotiate the fate of East Jerusalem in final status talks.  That implies that Israel actually has a valid claim to negotiate.

Since the Oslo Accords are the presumed legal foundation for the two-state solution, and have been accorded legal affirmation by the UN Security Council as the basis for negotiations between Israelis and Palestinians, Trump’s declaration could hardly be considered as controversial.

The real controversy is that the international community – with the notable exceptions of the United States and Canada (and a special call-out to Micronesia) – have predetermined the outcome of any negotiations based on the Oslo Accords.

To anyone following the recent UN Security Council Resolution 2334 that was approved just before President Obama left office, the international community has taken the position that the Palestinians have a prima facie entitlement to every portion of Jerusalem east of the Green Line, unless the Palestinians decide otherwise.

Some may claim that this latest Security Council resolution merely confirmed previous resolutions which proclaimed the Israeli occupation of East Jerusalem to be illegal.

However, the Oslo Accords rendered all such previous Security Council resolutions as moot.  In return for Israel enabling the creation of a legal corporate entity (the Palestinian Authority) to take possession over Areas A and B in the West Bank and over the Gaza Strip, the Palestinians conceded that they would negotiate with Israel over Israel’s claims on Area C and East Jerusalem.

What followed was an internationally choreographed bait and switch.  Having pocketed those crucial legal concessions, the newly created Palestinian Authority turned to the international community to frame what they saw as the only “legitimate” outcome for those negotiations – two states based on the Green Line, with the capital of Palestine in East Jerusalem.  For good measure, Palestinian “President” Mahmoud Abbas would also hold out the Palestinian refugee “right of return” as an additional bargaining chip to soften up the Israelis.

Rather than holding back and urging the parties to negotiate with one another in good faith, the United Nations progressively interceded in order to build on the legal fait accompli – specifically, that the Palestinians now had a bona fide corporate entity by which to pursue all their claims over the Green Line.

In short, under international law, there could not be any possibility for a State of Palestine to take root without an actual corporate entity in place to receive the claim, or at least to take possession of territory.

As the international community saw it, the very creation of the Palestinian Authority necessitated that, what started as a semi-autonomous entity for the purposes of bilateral negotiations, would evolve into a state institution with all the powers and privileges of a sovereign nation.

In essence, the international community was interceding on the side of the Palestinians – in utter disregard of the Oslo paradigm – so as to degrade Israel’s overall bargaining position with an aim toward predetermining the outcome of “negotiations.”

For the past two decades, successive American administrations have colluded in various degrees in re-framing the envisioned outcome of negotiations.  What started as an agreement to determine the scope of Palestinian autonomy has since been re-framed as an irreversible path toward a “two-state solution.”

In 2009, Prime Minister Netanyahu was prodded to formally declare that the two-state solution was not only the most legitimate end-point for negotiations, but also the most desirable, at least under the right conditions.  What remained for Netanyahu was to determine the most practical conditions for achieving that end-point.  Under Netanyahu, Israel’s center-right was now corralled into the two-state solution paradigm.

Once that declaration was pocketed – by the Palestinians – and normalized at least on the Likud flank of the Israeli right, Netanyahu subsequently embarked on a strange course of red-flagging Israeli development in East Jerusalem.  With President Obama playing the bad cop, Netanyahu was called out every time he publicly approved the development of individual Jewish units anywhere in East Jerusalem.

Though the “official” Israeli policy was that Jerusalem was “complete and united”, Netanyahu had managed to establish a new status quo for Jewish development across East Jerusalem.   Henceforth, Netanyahu would proffer “temporary freezes” in the approval of new building permits for Jewish residents across East Jerusalem, presumably as a good faith gesture to prod the Palestinians back to the negotiating table.

Over time, the Israeli public came to accept that it was indeed normal to treat Jewish development in East Jerusalem as a bargaining chip, mostly to appease the American President and the EU.  Under pressure from Obama, Netanyahu could play the card that he was “managing” the demands of the Obama administration and a hostile international imperium, offering what he deemed as minor concessions in order to forestall unilateral international moves against the beleaguered Jewish State.  Far from acting as the Prime Minister of the Jewish State, he was conducting himself  as the Council Head of a very large Jewish Ghetto overseen by EU handlers.

The more the Israelis conceded, the more the noose would tighten.  If the Second Intifada didn’t wear the Israeli public down, then perhaps an international campaign of Boycott, Divestment, and Sanctions (BDS) would.  In the meantime, Democratic party support for Israel would erode, while the mainstream American Jewish institutions would be commandeered by two-state solution ideologues.

Despite all objective indications to the contrary, the international mainstream media would continue to portray Netanyahu as a hardened nationalist, as the kind of Israeli leader who would do anything to advance Israel’s “illegal” settlement project across the West Bank and East Jerusalem.

Though the Israeli public knew otherwise, it couldn’t help but conclude that, for the time being, Netanyahu was the most “legitimate” right wing leader (i.e. not all that right wing) that the international community (i.e. the EU) would currently tolerate without taking “unilateral moves” against the Jewish State.

Against this kind of sustained, ongoing pressure on all fronts, the Israeli public  would perhaps be softened up enough to respond to any positive gestures coming their way.

Now that President Trump is in power, Netanyahu has a new card to play, the “spin” being that Trump is the best friend Israel will have in the foreseeable future.  If the Israelis don’t act now to solidify a deal under Trump, they risk coming under the pressure of a far less sympathetic successor, possibly coming from the anti-Israel flank of the Democratic party.

In the meantime, contrary to all the incessant media spin coming from CFR-indoctrinated pundits, the Palestinians are under no pressure to make any hasty unnecessary concessions. If Israel can eventually be boxed in to the two-state solution on Abbas’ terms, what’s the rush to negotiate?

As Abbas sees it, it is wholly irrelevant how the Palestinians conduct themselves in the meantime. They will eventually get a sovereign state one way or the other, as guaranteed by the international community.  The Palestinian strategy is premised on achieving a state under the most optimal zero sum conditions, where every advantageous term that is conceded to them must come at the strategic expense of the Jewish State.

It’s elementary game theory.  In our present moment, Palestinian “President” Abbas maintains his considerable toolbox of carrots and sticks, gifted to him by the international community and yet another American administration.

This latest episode of the Trump declaration is a carrot with not all that much nutritional value – but as the Israeli public is meant to see it, a carrot all the same.  Best of all – and for a limited time only – some of Trump’s carrots come cloaked with nice Saudi wrapping, presuming the Israeli public is softened up enough to conclude that a little bit of temporary Saudi love is worth a whole lot of East Jerusalem.

And just in case the Israeli public does not sufficiently appreciate the little batch of carrots currently on proffer,  the international community stands at the ready with its arsenal of sticks, to prod Israel to eat up – presumably, for its own good.

About the Author
James Cooper is a practicing lawyer in the Greater Toronto Area. He has written and spoken publicly on matters of interest to the legal profession and to the Jewish community at large.
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