Summary:
It appears that Trump’s ascendancy to the US presidency will give the issue of the relocating the US embassy to Jerusalem a new momentum, in light of his electoral promises and the presence of strong inclinations among members of his administration to deliver on these pledges.
However, the official policy of the United States throughout the past years—even under those presidents who had also promised to relocate the embassy—tended to abide by legal, constitutional, and international law considerations that do not recognize Israel’s annexation of East Jerusalem, and consider the city to be a final status issue—to avoid antagonizing Palestinian, Arab, and Muslim parties and the possibility of undermining the peace process.
The scenarios include: Trump relocates the embassy at the start of his term or later during his tenure; He turns one of the consular services offices in West Jerusalem (not East Jerusalem) into an embassy; He keeps the embassy in Tel Aviv but relocates the ambassador to Jerusalem; or he makes a double step, transferring the embassy to Jerusalem while recognizing the state of Palestine to absorb reactions. In all cases, this assessment judges it likely that Trump will take an advanced step in this regard, requiring preemptive Palestinian, Arab, and Islamic actions to thwart or obstruct this move.
The Constitutional and Legal Dimension of the US Decision on Jerusalem
The Regional and International Dimensions of the Jerusalem Issue
Recommendations and Suggestions
Observers of Middle Eastern affairs and Palestinian affairs are in agreement that the US President-elect Donald Trump has the clearest and most outspoken position regarding the relocation of the US embassy from Tel Aviv to Jerusalem. Previous presidents, both Democrats and Republicans, had in the past pledged to relocate the embassy but never delivered on these promises. So do Trump’s pledges during the election campaign and following his victory, repeated by his aides led by the new US ambassador to Israel David Friedman, reflect a shift in US policy and a real possibility that this time the promise will be fulfilled (unlike his predecessors, particularly Clinton and Bush)?
To identify the possible scenarios and their likelihoods, it is important to first explore the climate surrounding the putative decision as follows:
First: The Constitutional and Legal Dimension of the US Decision on Jerusalem
From the legal aspect, and through its stated positions in international fora, especially the United Nations (UN) Security Council, and through the various statements of the International Quartet, and its affirmation of the substance of Arab-Israeli peace treaties (e.g. with Jordan and Egypt) and the Oslo Accords, the United States accepts the following:
1. The non-recognition of the Israeli annexation of Jerusalem, as clear in the US abstaining from voting on resolution 478 issued by the Security Council and approved by 14 states, which deemed the Israeli annexation a violation of international law.
2. The issue of Jerusalem, according to various official US statements, is a final status issue, meaning no one side can take unilateral measures on Jerusalem.
However, the legal climate has another dimension, namely the law passed on 23/10/1995 by the US Congress known as the Jerusalem Embassy Act of 1995 (with 93-5 votes in the Senate, and 374-37 in the House). The law states, “The United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999,” “Jerusalem should remain an undivided city..,” and that it “should be recognized as the capital of the State of Israel.” but the law contains an inbuilt waiver authority allowing the US president to delay the move.[1]
The law was not implemented for two main reasons: the legal advisor of the US Department of Justice declared it unconstitutional, for interfering with the President’s power to conduct foreign affairs and make decisions pertaining to recognition; and the fact that US presidents since then asserted their constitutional powers on this issue. Both President Bill Clinton and President George Bush did not implement the law (issuing the “Suspension of Limitations Under the Jerusalem Embassy Act” notice), despite promises made on the campaign trail, while Barack Obama ignored it.
Second: The Regional and International Dimensions of the Jerusalem Issue
Following the UN Security Council resolution 478 mentioned above, 13 countries mostly Latin American countries relocated their embassies from Jerusalem to Tel Aviv. Out of the 86 foreign embassies in Israel today, none are located in Jerusalem. This constitutes a “source of embarrassment” for US diplomacy, particularly since the EU nations, Russia, China, Japan, and the Quartet member states do not favor relocation without first resolving the Palestinian issue.
Many US experts and diplomats warn that relocating the embassy would lead to a strong Arab and Islamic reaction, given the religious value of the city. Some believe the relocation would lend further credibility to Arab and Muslim forces that question US intentions and seriousness regarding peace.
As a result, the move could harm US interests and US allies in the region, and weaken the US position as a mediator in the resolution of the Arab-Israeli conflict. The move could also empower groups these experts describe as extremist, while forces like Hamas, Islamic Jihad, and Iran could receive support for their attitudes in the Arab and Islamic street as a result.
Indeed, remarks by outgoing US Secretary of State John Kerry, who warned that relocating the embassy would lead to “an absolute explosion in the region, not just in the West Bank and perhaps even in Israel itself, but throughout the region,” [2] are indicative of this view.
These experts cite for their concerns the warning of Jordan’s government spokesperson, in January 2017, of “catastrophic” repercussions if President-elect Donald Trump relocates the embassy. He added that Jordan would use all possible political and diplomatic means to prevent the implementation of the decision, and affirmed the clauses in the Jordanian-Israeli peace treaty regarding the kingdom’s role as the custodian of the holy sites in Jerusalem. [3]
However, there are those who believe that a number of factors reinforce the possibility of the embassy’s relocation to Jerusalem, namely:
1. The majority of the political team chosen by Trump for his incoming administration are in favor of relocation. US Secretary of State nominee Rex Tillerson considers Israel to be the US’ most important ally in the Middle East, despite his links to oil interests. David Friedman, Trump’s pick for US ambassador to Israel, is a hardliner supporter of Israel and relocation, an opponent of the two-state solution, has intricate links with Israeli settlements, and favors the annexation of the West Bank. In remarks following his nomination to the post, Friedman confirmed Trump would move the embassy to Jerusalem, and “looked forward to doing the job ‘from the U.S. embassy in Israel’s eternal capital, Jerusalem.’” [4]
However, it is possible to observe some divergence between Friedman, Tillerson, and Defense Secretary nominee Retired Gen. James Mattis. Indeed, both Tillerson and Mattis have been careful not to issue clear positions on this issue, bearing in mind that the two men are experienced in Middle East affairs and are more aware of the complications than the ambassadorial nominee.
2. Arab circumstances in particular, and those of the Islamic nations, do not indicate that they have the ability to influence the decision beyond verbal protests or lodging complaints with international organizations to obtain new resolutions. Particularly so when most of these countries are embroiled in international or domestic crises that weaken their engagement with the Palestinian issue, amid internal unrest or increasing economic hardship following the collapse of oil prices, the backbone of the economies of many Arab and Muslim countries.
1. The Israeli Scenario: whereby Trump fulfils his promise to consider the relocation of the embassy a top priority as some of his aides have said. However, this scenario could follow two different paths: One where the promise is fulfilled within a short period after his inauguration, and another where he would confirm the relocation but leave the implementation to another “appropriate” timing. Jason Miller, spokesman for the president-elect, had stated in mid-December 2016 that “it was ‘premature’ to present a timetable for such a move.” [5]
2. Circumvention Scenario: This scenario would take many forms:
a. Since the United States maintains three consular offices in Jerusalem, one in West Jerusalem, one in East Jerusalem, and one in an area between the two, Trump could relocate the embassy to West Jerusalem or upgrade the existing office to an embassy, claiming that Arabs and the world already recognize West Jerusalem as undisputedly Israeli, and that it would be the right of the United States to put an embassy there, ignoring Israel’s annexation of Jerusalem and its view that it is a unified capital.
b. The US embassy remains in Tel Aviv while the ambassador resides in Jerusalem, where he begins to gradually exercise his duties. This is a solution that could be acceptable to Israel at first, in the hope it would be followed with a full relocation at a later date.
c. Trump could enact a double move, declaring the relocation of the embassy to Jerusalem while recognizing the state of Palestine to appease the Palestinians and absorb angry Arab and Palestinian reactions.
Arab and Islamic circumstances, the forces influencing US policy towards relocation and Trump’s team, will prompt him to take an advanced step relative to former US presidents with regard to some form of relocation. The circumvention scenario in part of whole could be the outcome of the decision.
Recommendations and Suggestions
It is important to intensify Palestinian efforts to preempt the decision. In the event a relocation decision is made, Palestinian efforts should focus on obstructing its implementation. While bearing in mind the huge imbalance in power in favor of the Israeli side, political and diplomatic means to obstruct the decision are available to some degree, requiring:
1. Seeking to convene the Arab League, the Organization of Islamic Cooperation, and the Non-Aligned Movement to issue statements warning against the relocation of the US embassy to Jerusalem, to influence US decision makers.
2. Engaging with the European Union and European Parliament to issue a statement against the relocation, in light of the risks it poses to the security of the Mediterranean region and the world, and for European nations to pledge not to follow suit of any such US move.
3. Working with the UN and various UN agencies to warn against the move.
4. Demanding the Middle East Quartet to convene an emergency meeting to warn that the relocation would lead to dangerous repercussions on the Quartet’s peace process efforts.
As for the Palestinian side, it is important for Palestinian organizations led by the Palestine Liberation Organization (PLO) to issue an unequivocal statement warning that the relocation of the embassy would lead to the Palestinian Authority’s withdrawal from previous commitments on the basis that relocation violates commitments agreed in the peace treaties.
Popular action in the Arab world and Palestine may put pressure on the US to reconsider the implications of the relocation.
The Palestinian side must pursue preemptive diplomacy to prevent the decision but if a decision is nonetheless issued, then the Palestinians must ensure no other countries would follow suit.
[1] 104th Congress, Public Law 104–45, Jerusalem Embassy Act of 1995, site of Congress.gov, 8/11/1995.
[2] Site of Ynetnews.com, 7/1/2017.
[3] Site of The National, 6/1/2017.
[4] The New York Times newspaper, 18/1/2017.
[5] Reuters News Agency, 16/12/2016.
* Al-Zaytouna Centre thanks Dr. Walid ‘Abd al-Hay for authoring the original text upon which this strategic assessment was based.
The Arabic version of this Assessment was published on17/1/2017 
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