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Why Israelis should pay attention to recent US Supreme Court decision

The US Supreme Court's rejection of a petition for a Jerusalem-born American to be registered as born in Israel in his passport should make Israelis realize that the only way to gain international recognition of its capital is a compromise with the Palestinians and therefore an end to the conflict.
The U.S. Supreme Court is pictured in Washington June 8, 2015. The Court on Monday struck down a law that would allow American citizens born in Jerusalem to have Israel listed as their birthplace on passports. REUTERS/Gary Cameron - RTX1FO5Y

For Al-Monitor, I wrote on June 3 about how some American politicians make cynical use of the Israeli-Palestinian conflict, including, among other things, to rack up millions of dollars in contributions from a right-wing donor and a handful of votes from Jews and fundamentalist Christians. One Republican presidential candidate had earlier threatened to cut funding to the Palestinian Authority, while another has proposed dusting off legislation from 1995 requiring the transfer of the US Embassy from Tel Aviv to “united” Jerusalem, Israel’s capital. Prime Minister Benjamin Netanyahu, who sees red when he looks at the White House, is apparently placing his bet on Congress.

Who needs President Barack Obama when a phone call to Capitol Hill can arrange a grotesque performance on the Iranian nuclear agreement by Netanyahu before a joint session of Congress, as occurred in March? If the final agreement fails to put Netanyahu’s mind at ease, it is safe to assume that his friends in the Senate and House of Representatives will fight it to the bitter end. Why should Netanyahu be afraid of Obama’s threat to holster his veto weapon in the battle for Palestine and the settlements at the United Nations? After all, if the UN Security Council votes in favor of the French proposal for recognition of a Palestinian state, the Republican majority in the House will apparently target US funding for the United Nations, one-fourth of the organization's budget. This strategy suffered a resounding defeat June 8.

By a vote of six to three, the US Supreme Court ruled that as far as foreign policy is concerned, the executive branch, not Congress, has the final say. The decision was handed down in a petition related to the apple of Netanyahu’s eye, united Jerusalem, which, according to him, is not up for negotiation. Of note, although three of the six justices who struck down the petition are of the Jewish faith, they nontheless rejected the case brought by a Jewish-American couple demanding that their Jerusalem-born son’s birthplace be registered as Israel in his passport

The petition by Ari and Naomi Zivotofsky, on behalf of their son Menachem, was based on a 2002 law according to which Americans born in Jerusalem would be officially recognized as born in Israel. George W. Bush's administration at that time objected to the law, arguing that the future of Israel’s capital would be determined in negotiations between Israel and the Palestinians. Until that time, the United States should adhere to the status quo.

State Department spokesman Jeff Rathke said June 8 that the court ruling emphasizes once again the president’s authority to decide matters of diplomacy and foreign policy and respects the need for such decisions regarding diplomatic (territorial) recognition to be reflected in government documents and papers. The Supreme Court’s ruling is compatible with traditional US policy of postponing a decision on recognition of sovereignty in Jerusalem until resolution of the Israeli-Palestinian conflict. 

The Israeli Knesset had decided in December 1949 that Jerusalem is an indivisible part of the State of Israel, its eternal capital, and that no UN vote could change this historical fact. The move was in reference to UN General Assembly Resolution 181 in 1947, which called for, among other things, imposing international rule over Jerusalem. The US administration condemned the Knesset resolution, which at the time only referred to West Jerusalem. The United States also objected to Jordan’s 1950 decision to turn East Jerusalem into its second capital and made its objections loud, clear and official when Israel decided to annex East Jerusalem in June 1967. In 1990, the George H.W. Bush administration declared that it regarded the Jewish neighborhoods of East Jerusalem as settlements in the full sense of the word. President Bush forbade administration officials to hold meetings in Israeli government ministries located in the East Jerusalem neighborhood of Sheikh Jarrah.

Reflecting the spirit of today, Jerusalem Mayor Nir Barkat linked the recent legal ruling separating Jerusalem from Israel to the “anti-Semitism trying to rear its head and the BDS [boycott, divestment and sanctions movement] which negates Israel’s existence.” Barkat added, “Just as Washington is the capital of the US, London is the capital of England, and Paris the capital of France — so, too, Jerusalem was and always will be the capital of Israel, and even more than that the heart and soul of the Jewish people.” Barkat, like many Israeli politicians — and not just on the right (for example, centrist Yesh Atid head Yair Lapid, who in a poetic fit defined Jerusalem as a “concept”) — ignores the complex political issues stemming from the existence of a large Palestinian minority in the city. The status of the eastern sections of Washington and of London and Paris being the capital of their states is undisputed.

Israel itself is a signatory to international agreements that mandate negotiations on the status of the territories conquered in 1967, including East Jerusalem. In official and semi-official contacts, the Palestinian leadership agreed to include the Jewish neighborhoods in the eastern part of the city, those erected before the Oslo Accord, in a land swap agreement. In other words, only a permanent arrangement closing the 1967 file can sign off once and for all on the Jerusalem chapter of the 1948 file. Displaying the flags of the world’s nations throughout Jerusalem would turn Israel into a state like all others and its capital into a capital like all others.

Court petitions, speeches to Congress and sermonizing in churches and synagogues cannot substitute for policy coordination and trusting relations with the White House. That is where the solution lies to the Iranian nuclear threat. The key to Israel’s emergence from international isolation is also there. No short cuts exist, and it is unlikely there will be any in the foreseeable future.

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