Status of Jerusalem as 'not Israel' upheld by US appeals court

July 25, 2013
Sarah Benton

The news story about the federal court case is followed by the 2003 UN brochure on the UN and the Question of Palestine.

The Ramban Syngagogue and the Mosque of Sidna Omar in the Jewish Quarter of the Old City, Jerusalem.

Court overturns passport law implying Israeli sovereignty over Jerusalem

By Ann E. Marimow, Washington Post
July 24, 2013

A federal appeals court Tuesday found unconstitutional a law that gives thousands of Americans born in Jerusalem the option of listing Israel as their birthplace on U.S. passports.

In a separation-of-powers dispute centered on Middle East politics, the U.S. Court of Appeals for the District of Columbia Circuit found that the law passed by Congress in 2002 “impermissibly intrudes” on the powers of the president.

“While the president’s foreign affairs powers are not precisely defined, the courts have long recognized the president’s presumptive dominance in matters abroad,” Judge Karen LeCraft Henderson wrote in a 42-page opinion.

At issue is a provision of a 2002 foreign-relations act that challenged the U.S. policy of neutrality over the sovereignty of Jerusalem, a holy city claimed by both Israelis and Palestinians. The law allowed Jerusalem-born Americans to request that official documents list their birthplace as Israel.

Because of U.S. foreign policy regarding Jerusalem, the State Department — under Republican and Democratic administrations — has refused to follow Congress’s direction.

“Congress plainly intended to force the State Department to deviate from its decades-long position of neutrality on what nation or government, if any, is sovereign over Jerusalem,” Henderson wrote. She was joined by judges Judith W. Rogers and David S. Tatel, who also wrote a concurring opinion.

The case, which reached the Supreme Court in 2011, was brought by Ari and Naomi Zivotofsky, U.S. citizens whose son Menachem Binyamin was born in Jerusalem in 2002. The couple want their son’s passport to say he was born in Israel.

Zivotofsky attorney Nathan Lewin argued that the legislation “simply and neutrally” regulated the form and content of the passport.

Lewin said in a statement Tuesday that the “difficult case” calls for resolution by the Supreme Court. He described the State Department’s passport policy as an “isolated holdout, denying what is universally acknowledged, to the detriment of a right that a duly enacted law gives to American citizens.”

The Zivotofskys’ attorneys noted in court filings that the State Department has acknowledged inadvertently issuing passports with Israel as the birthplace to citizens born in Jerusalem and that there had been no harm done to U.S. foreign policy interests.

But the court said it found compelling the State Department’s position that the “reversal of United States policy” could “provoke uproar throughout the Arab and Muslim world and seriously damage our relations.”

The court’s opinion cited submissions from the department that argued the law “runs headlong into a carefully calibrated and long-standing executive branch policy of neutrality toward Jerusalem.”

Since Israel’s creation in 1948, Henderson wrote, U.S. presidents have “steadfastly declined to recognize any foreign nation’s sovereignty over that city.” The executive branch has made clear that the status of Jerusalem must be decided not unilaterally by the United States but by all the relevant parties.

In March 2012, the Supreme Court sent the case back to the D.C. Circuit, ruling in an 8 to 1 decision that the lower court could rule on the constitutionality of the law. The appeals court had earlier dismissed the case, writing that it posed a political question beyond the scope of the court’s authority.

The minaret of the Umar mosque reaches up behind the Church of the Holy Sepulchre, Jerusalem

The Question of Palestine and the United Nations

By United Nations Department of Public Information – DPI/2276
March 2003

[This is a brochure produced by the UN public information department which runs through the history of League of Nations (1922) and United Nations decisions on the administration of Palestine.It can be downloaded/read by clicking the headline above.

Chapter 12

The General Assembly and the Security Council have called upon Israel not to alter the physical, demographic and institutional status of Jerusalem (Al Quds in Arabic).

The UN plan for Jerusalem, 1947

General Assembly resolution 181 (II) of 29 November 1947 on partition envisaged a demilitarized Jerusalem as a separate entity under the aegis of the United Nations Trusteeship Council, which would draft a statute for Jerusalem and appoint a Governor. A legislature would be elected by universal adult suffrage. This statute would remain in force for 10 years and would then be duly examined by the Trusteeship Council, with citizens’ participation through a referendum.

The ensuing hostilities prevented implementation of the resolution. Israel occupied the western sector of the Jerusalem area, and Jordan occupied the eastern sector, including the walled Old City. Thus, there came into existence a de facto division of Jerusalem.

The General Assembly, however, by resolution 194 (III) of 11 December 1948, reaffirmed both the principle of internationalization and existing rights. The Arab States, refusing to recognize Israel, did not accept it. Israel also ignored the resolution and moved to extend its jurisdiction to that part of Jerusalem which it had occupied. On 23 January 1950, Israel declared Jerusalem its capital and established government agencies in the western part of the city. Jordan, for its part, moved to formalize its control of the Old City; however, Jordanian legislation indicated that this action did not prejudice the final settlement of the Palestinian issue.

Israel’s occupation of East Jerusalem, 1967

The war of June 1967 radically changed that situation. As a result of the war, Israel occupied East Jerusalem and the West Bank.

Since then, a number of demographic and physical changes have been introduced, and both the General Assembly and the Security Council, in several resolutions, have declared invalid the measures taken by Israel to change the status of Jerusalem . Security Council resolution 252 (1968) in particular is explicit in this regard. In it, the Council considered “that all legislative and administrative measures and actions taken by Israel, including expropriation of land and properties thereon, which tend to change the legal status of Jerusalem are invalid and cannot change that status”. Israel was urgently called upon “to rescind all such measures already taken and to desist forthwith from taking any further action which tend to change the status of Jerusalem”. The Security Council has reaffirmed these two positions many times.

When Israel took steps to make a united Jerusalem its capital, the Security Council on 30 June 1980 adopted resolution 476 (1980) urgently calling on Israel, the occupying Power, to abide by this and previous Security Council resolutions and to desist forthwith from persisting in the policy and measures affecting the character and status of the Holy City of Jerusalem.

After Israel’s non-compliance with the resolution, the Council, on 20 August, adopted resolution 478 (1980), in which it reiterated its position that all actions altering the status of the city were null and void, and called upon States that had established diplomatic missions in Jerusalem to withdraw them. The General Assembly also considered Israel’s action to be a violation of international law that did not affect the continued applicability of the Fourth Geneva Convention. This understanding, affirmed by the Assembly in December 1980, has been reaffirmed in subsequent years.

During the 1980s, United Nations resolutions dealt with the Jerusalem issue in the wider context of the inadmissibility of the acquisition of territory by force and the applicability of the Fourth Geneva Convention to the Palestinian territory occupied by Israel since 1967. East Jerusalem has been considered, by both the General Assembly and the Security Council, as part of the occupied Palestinian territory.

As the international community and in particular the Security Council continued to follow with concern developments affecting the question of Palestine, an important action was taken by the Council through resolution 672, adopted on 12 October 1990 following the violence that took place in Jerusalem at Haram Al-Sharif, where the Al-Aqsa mosque, the third holiest shrine in Islam, is situated. The Council, after condemning “especially the acts of violence committed by the Israeli security forces resulting in injuries and loss of human life”, called upon Israel “to abide scrupulously by its legal obligations and responsibilities under the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, which is applicable to all the territories occupied by Israel since 1967.

The applicability of the Fourth Geneva Convention to Jerusalem was reaffirmed by the Security Council on 20 December1990, when it expressed grave concern at the deteriorating situation in “all the Palestinian territories occupied by Israel since 1967, including Jerusalem”, and called on Israel to abide by it.

Since 1997, the tenth emergency special session of the General Assembly has been resumed several times. At the resumed emergency session held in February 1999, the Assembly affirmed its support for the Middle East peace process on the basis of the relevant Security Council resolutions and for the principle of land for peace. Recalling its relevant resolutions, including resolution 181 (II) (the Partition Plan) and those of the Security Council, the Assembly reaffirmed that the international community, through the United Nations, has a legitimate interest in the question of the city of Jerusalem and the protection of its unique spiritual and religious dimension. It further reaffirmed the continued invalidity of all actions taken by Israel, the occupying Power, that have altered or purported to alter the character, legal status and demographic composition of Jerusalem .

New settlements in East Jerusalem, 1999

In May 1999, the Israeli Government approved a plan to enlarge the area of the settlement of “Maaleh Adumim”, east of Jerusalem , by over 1,300 hectares (3,250 acres), forming a continuous strip of settlements. According to the 1999 re p o rt of the Palestinian Rights Committee submitted to the fifty-fourth session of the General Assembly, once completed, the number of settler households in the settlement would increase by an estimated 25 per cent.

The General Assembly, in a resolution adopted on 9 February 1999, reiterated that all legislative and administrativemeasures and actions taken by Israel, the occupying Power, which had altered or purported to alter the character, legal status and demographic composition of Occupied East Jerusalem and the rest of the occupied Palestinian territory, were null and void and had no validity whatsoever.

The General Assembly revisited the question of Jerusalem at its fifty-fifth session. In a resolution adopted on 1 December 2000, the Assembly determined that the decision of Israel to impose its laws, jurisdiction and administration on the Holy City of Jerusalem was illegal and, therefore, null and void. The Assembly also deplored the transfer by some States of their diplomatic missions to Jerusalem in violation of Security Council resolution 478 (1980).

These statements and resolutions, as well as many others adopted by United Nations bodies, international organizations, non-governmental organizations and religious groups, demonstrate the continuing determination of the international community to remain involved in the future of Jerusalem. They also show the great concern over the delicate status of the peace process and the unanimous desire that no actions be taken that could jeopardize that process.

The Black Watch marches through Jerusalem, 1940s.

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