Is Trump’s Jerusalem move legal?

Donald Trump has deconstructed the belief that campaign talk and post-campaign actions are two different things. Candidates running for president promise doing things undone by presidents before them. Once in the Oval Office, sobriety takes over the campaign hangover. Not with Trump. He just announced moving the US embassy to Jerusalem in a slurred speech, instead of the racial slurs Trump is fond of. However, he never uttered the word Palestine, instead called them Palestinians.

The overwhelming and rightful critique of this move is regarding counter-productivity. Bin Laden as a teenager was deeply saddened by Palestinians’ plight. The brutal Israeli military occupation creates enormous anger not just in Palestine but in much of the Muslim world. Trump has kissed the strategy of keeping-the-water-from-boiling goodbye and embraced let’s-boil-the-heck-of-it. He will succeed.

Israel never wanted a one-state democracy because of the demographics problem. Arabs would outnumber Jews. The two-state solution has East Jerusalem as the capital of a future Palestinian state, endorsed by almost the entire world, with the exception of the United States and Israel. Trump’s son-in-law and senior adviser Jared Kushner as co-director of Charles and Seryl Kushner Foundation has donated to the construction of illegal Israeli settlements in occupied-Palestinian land. Kushner family’s friendship with Israeli Prime Minister Binyamin Netanyahu is old. The teenager high-school basketball player, Kushner, slept in the basement leaving his room for Netanyahu who was on a visit to New Jersey.

That said, very less, if any attention has been given to the legality of Trump moving the US embassy to Jerusalem. Most of the arguments dealing with the legality are about the Jerusalem Embassy Act of 1995. For imperial states, domestic laws trump international laws, which they say violate their sovereignty. Last time I checked, that was the definition of a rogue state, a label reserved for Iran and North Korea. More importantly, from the outset, there is an effort to deny applying the provisions of the Fourth Geneva Convention to occupied territory. The Fourth Geneva Convention protects civilians in two situations: armed conflict and military occupation.

Article 49 (6) of the Fourth Geneva Convention states, “The occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.” In a resolution of September 1969, United Nations Security Council called upon “Israel scrupulously to observe the provisions of the Geneva Convention and international law governing military occupation.” In December 1992, the Security Council “reaffirm[ed] the applicability of the Fourth Geneva Convention of 12 August 1949 to all the Palestinian territories occupied by Israel since 1967, including Jerusalem.”

The General Assembly from 1970 to 1998 in many resolutions has declared that the Fourth Geneva Convention is applicable to Israeli-occupied Palestinian territories and that the occupation of East Jerusalem violated the convention. In a 1970 resolution, the General Assembly called on Israel “to comply” and in a 1971 resolution called on Israel “to comply fully.” The usual two dissenting member states: Israel and the United States (veto state).

Geneva-based International Committee of the Red Cross, London-based Amnesty International, New York-based Human Rights Watch, Israel-based B’Tselem, the International Court of Justice (judicial arm of the UN) have all contributed to the international consensus on the applicability of the Fourth Geneva Convention to the occupied territories. Naturally, Israel disagrees, arguing that East Jerusalem is not an occupied territory but a disputed territory. There are scholars who support Israeli actions in manners very unbecoming of scholars.

Alan Dershowitz, a Harvard professor, justifies Israeli actions vehemently. Dershowitz is a stronger advocate of Israeli actions than the Israelis themselves. Despite the fact that he is known as a leading scholar on the subject and frequently appears on CNN and other mainstream channels for commentary, he has carefully ignored to mention Geneva Convention in his written work. From 2002 to 2008, Dershowitz has published five books about the Israel-Palestine conflict. A Google Book search reveals one reference to ‘the Geneva Convention’ in an endnote of chapter five of the book Why Terrorism Works. No mention of the Fourth Geneva Convention, which is specific to this issue.

Dershowitz laments that the international humanitarian law is unfair towards the US and Israel. He notes that, “traditional wars were fought by combatants in uniform, representing nations with return addresses and accountability.” That the terrorist hide among civilians, target the civilians, supported and financed by the civilians, they are the civilians. When captured, they claim prisoner of war rights, when the US and Israel go after them in civilian areas, the terrorists complain that they are violating the Geneva Accords by killing civilians. Dershowitz concludes that the terrorists exploit the ‘Geneva Accords’ to their benefit. Howard Friel points out in his impeccable book Chomsky And Dershowitz that there is no such thing as ‘Geneva Accords’, no instrument of humanitarian law exists by that designation. Dershowitz remembers to mention the international humanitarian law being inherently unfair to the US and Israel, but fails to mention its foundation, the Fourth Geneva Convention, let alone its applicability.

It may be legal inside the US but not outside. Just to mention one legal reference, Principle II of the Nuremberg principles says, “The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.”

Published in The Express Tribune, December 13^th, 2017.

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