Biden straining relations with Israel over plans for East Jerusalem consulate

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President Biden’s announced intention to reopen a U.S. consulate in East Jerusalem for outreach to Palestinians looms as a significant point of contention between the administration and Israel. A look at the Vienna Convention on Consular Relations, 1963, is a logical starting point to analyze the problem. The Convention provides in Article 2.1.:

“The establishment of consular relations between States takes place by mutual consent.”

Article 4.1 provides:

“A consular post may be established in the territory of the receiving State only with that State’s consent.”

What, then, is the problem? President Trump recognized Jerusalem as the capital of Israel and relocated the U.S. Embassy from Tel Aviv to Jerusalem, later closing the consulate in East Jerusalem, merging it into the Embassy.

It would seem clear, then, that as the U.S. recognizes undivided Jerusalem as part of the territory of Israel, a consulate in Jerusalem may be opened (or re-opened) only with the consent of Israel as the receiving State.

But thus far, Biden intends to proceed with reopening the Jerusalem consulate for outreach to the Palestinians. Will he proceed over Israel’s objections? If he does so, it seems to this observer that he could only justify such a move by declaring that the United States does not consider East Jerusalem (the apparent venue of a reopened Jerusalem consulate) Israeli territory. And that would be a HUGE thorn in the side of the relationship between Biden administration and the Bennett government in Israel.

On the other hand, Prime Minister Naftali Bennett could back down from opposition to a reopened U.S. consulate in Jerusalem, and give the Consular Convention’s Article 4.1 consent to the Biden move, consent that, from the Israel point of view, would still be consistent with Israel’s claim of sovereignty over an undivided Jerusalem. Biden, of course, could go along with this face-saving approach to the issue, on Israel’s behalf.

If Biden, or Secretary of State Antony Blinken, were to declare that Israel’s consent was not required, relations between the allies would suddenly become so frigid as to cause unsettling reverberations in the Middle East. Why? Because Biden establishing a consulate in East Jerusalem without Israel’s consent would be signaling that American no longer accepts Israel’s sovereignty over an undivided Jerusalem.

International law, however, is not the only factor in consideration of the question of reopening a U.S. consulate in East Jerusalem. There is the matter of U.S. law to consider, specifically, the Jerusalem Embassy Act of 1995 (Public Law 104-95) cited in the November 1, 2021 letter to the president signed by 200 House Republican members. (Twelve GOP members did not sign, but the signers included such disparate Republicans as Reps. Cheney and Kinzinger, on the one hand, and Reps. Taylor Greene and Gosar, on the other.)

This important document stated in part that reopening the consulate general in Jerusalem “would be inconsistent” with the 1995 measure, “by promoting division of Jerusalem.” The letter added, immediately, “This would be unacceptable, shameful, and wrong.” The letter then pointed out that, as a senator in 1995, Biden supported the 1995 law which “expressed U.S. policy that ‘Jerusalem should remain an undivided city in which the rights of every ethnic and religious group are protected….” The GOP House members’ letter then quoted these words from the 1995 enactment: “Jerusalem should be recognized as the capital of the State of Israel.”

The valiant Republican 200 then pointed out: “After repeated presidential waivers since 1995, the Trump Administration implemented this bipartisan law by recognizing Jerusalem as Israel’s capital in 2017, opening the U.S. Embassy in Jerusalem in 2018, and merging the U.S. consulate general in Jerusalem with the U.S. Embassy in Jerusalem in 2018.”

The letter went on to warn that the Biden Administration

“would create a misguided situation in which the U.S. would essentially have two separate diplomatic missions in Israel’s capital, including the U.S. Embassy to Israel along with the consulate general for outreach to the Palestinians whose government is based in Ramallah.”

Noting that the U.S. consulate general in Jerusalem had reported directly to the State Department, not to the Embassy, the letter told the president that “[t]he Trump administration fixed this ill-advised situation with the merger” of the consulate and Embassy.

The letter next advised the president:

“Reopening the U.S. consulate general in Jerusalem would…reward and turn a blind eye to the Palestinian Authority engaging in the real obstacle to peace, such as refusing to recognize Israel’s right to exist as a Jewish State, supporting terrorism through incitement to violence and providing payments to terrorists and their families, encouraging discriminatory boycotts, divestments, and sanctions (BDS) against Israel, and facilitating an illegitimate International Criminal Court (ICC) investigation for false charges against Israel, to name a few examples.”

The letter ended by urging the president “to respect our close ally Israel’s opposition to the reopening of the U.S. consulate general in Jerusalem, especially since Israel’s cooperation is essential.”

But Israel’s “cooperation is essential” only if Biden respects not only Israel’s sovereignty over an undivided Jerusalem, but also respects the terms of the 1995 enactment calling for the U.S. to recognize Jerusalem as the capital of Israel. If Biden goes ahead and reopens the Jerusalem consulate, either he is confident that Prime Minister Bennett can be pressured into giving his consent, or Biden will “damn the torpedoes” and go full speed ahead to deny Israel’s sovereignty over an undivided Jerusalem. The latter move would of course be to the delight of the radical left, which has been clamoring to loosen the ties that bind the American and Israeli governments. As for pressure on Bennett, the pressure could include de facto sanctions on Israel, blocking Israel’s trade with other countries. Or would Blinken tell Bennett: “If we cannot open a consulate in East Jerusalem, you will have to close one of your consulates in the U.S.”?

Israel has stated that it that would have no objection to a U.S. consulate in Ramallah, on the West Bank, but the Palestinian Authorities insist, in effect, that Biden reverse President Trump’s move in closing the Jerusalem consulate. Don’t be surprised if Biden bows to Palestinian pressure. Oh, one other thing — so far, to this observer’s knowledge, House Democrats have been silent on Biden’s proposed move.