After over 20 years of waiting, the American Embassy in Israel is finally set to be relocated in Jerusalem in early December – unless President Trump signs a waiver delaying the move for six months.
By law, such a waiver must be based on American national security considerations, but these are simply not sufficiently threatening to justify not fulfilling the relevant law. Such is the consensus of a panel of experts who testified on this matter in Congress on Nov. 8.
Five witnesses appeared before the House Committee on Oversight and Government Reform, and all explained why it’s both important and just for the U.S. to situate its embassy in Jerusalem. One of the witnesses, however – Dr. Michael Koplow of the Israel Policy Forum, characterized by the Jerusalem Post’s Caroline Glick a “pro-Palestinian Jewish organization” – qualified his words by saying it would actually be a bad idea to change the status quo “at present.”
Koplow laid out three reasons for his position. Keeping the embassy in Tel Aviv, he said, would both “prevent unnecessary [Arab] violence” and “safeguard the interests of other regional allies such as Jordan and Egypt,” while moving it could derail and disrupt the “peace process” with the Palestinian Authority.
Prof. Eugene Kontorovich, of the Northwestern University School of Law, spoke last, immediately after Koplow, and proceeded to rebut the latter’s arguments for postponing the embassy’s move. He said the arguments focusing on practical security issues “have not aged well” since they were first advanced when the bill was passed in 1995, remaining unchanged despite the radical geo-political shifts in the region.
“These arguments are totally unresponsive and invariant to the developments; they cannot be proven, and therefore are not falsifiable,” he said. “They can be summarized by saying: ‘Don’t move the embassy until the Palestinians and maybe the Egyptians and Jordanians say it’s OK.’ This holds American policy regarding its embassies subject to third-party waivers, something that exists nowhere else in the world.”
Kontorovich noted that the only justification specified in the Jerusalem Embassy Act of 1995 permitting a waiver is “national security concerns,” and not simply because the president feels it is not a wise policy. It is therefore not surprising, he said, that the Palestinians and others couch their objections with threats of violence and the like. Predictably, he said, “they continue to [do so] because they see that it works – meaning that waiving the law because of such threats actually [perpetuates] them.”
The scholarly young professor said it would be “preposterous” to assume that Saudi Arabia and Jordan, which face genuine threats from Iran and ISIS, would risk losing American alliance and protection because of the embassy issue. Thus, “the security argument has been undermined over the past 20-plus years; we need no longer fear that the Arab street will erupt against the U.S.”
The other witnesses also made salient points. Former U.S. ambassador to the UN John Bolton said, “Relocating the embassy… would be sensible, prudent, and efficient for the United States government. [It] would not adversely affect negotiations over Jerusalem’s final status or the broader Middle East peace process, nor would it impair our diplomatic relations among predominantly Arab or Muslim nations…. In fact, by its honest recognition of reality, shifting the embassy would have an overall positive impact on U.S. diplomatic efforts.”
ZOA President Morton Klein explained at length how relocating the U.S. Embassy to Jerusalem fulfills both U.S. and international law and policy. He said moving the embassy enhances worldwide respect for America by “demonstrating that it can be counted on to keep its commitments to its allies and will not be intimidated radical Islamist threats.”
“We have not moved the embassy for 22 years, yet we are further from peace now than we were then,” Klein said. “Not moving the embassy did not help.”
Former Israeli ambassador to the UN Dore Gold, president of the Jerusalem Center for Public Affairs, said he assumes the current U.S. government will stand by its word and actually implement the Jerusalem Embassy law without waiver. He explained that the “act of moving the Embassy is really a subset of a much larger issue, namely, the West’s recognition of united Jerusalem as Israel’s capital.”
The international community has a crucial interest in the protection of holy sites in Jerusalem and assuring complete freedom of access to them – which Israel has proven that it can do, while the Arab states have proven that they cannot.
Prof. Kontorovich, who has participated in KeepJerusalem conferences on the plans to expand united and greater Jerusalem under Israeli sovereignty, emphasized that the waiver “available to the president under the Jerusalem Embassy Act of 1995 simply allows the president to waive the financial penalty for renewable six-month periods – but does not waive the underlying substantive obligation to move the embassy to Jerusalem.”
He further noted that the law says nothing about “moving” the embassy. “Rather, the requirement is to ‘officially open’ an embassy [in Jerusalem], which can be done with a mere declaration upgrading the status of one of the existing consular facilities in the city.”
To implement the act, Kontorovich said, “the president must simply refrain from signing a waiver,” which need not “be interpreted as a change in U.S. policy; [this] is already established by the Act. Neither does the law allow for a waiver based on foreign policy concerns. Any arguments for further waivers based on concerns about the (apparently moribund) Israeli-Palestinian peace process, the reactions of Arab states, and the like are entirely illegitimate and cannot be considered.”
An American foreign policy stance that keeps its embassy in Tel Aviv is “dangerous to Israel, discrediting to the U.S., and fundamentally incoherent,” Kontorovich said. This will be elaborated upon in a future KeepJerusalem article.
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