There is currently a court case in the United States about to be heard by the Supreme Court pertaining to Menachem Zivotofsky who was born in Shaare Zedek hospital in Jerusalem – Western Jerusalem. As reported in the Wall Street Journal on October 31, 2014 Menachem’s parents are US citizens but when they went to the US Embassy in Tel Aviv to apply for his passport they listed his place of birth as “Israel.” The consular officials said no. The case is currently under consideration and interestingly is a major issue in foreign policy. Let’s explain with a little background first.
Jerusalem from 1517 was part of the Ottoman Empire up until the First World War. It was an international city mostly of interest because of its religious sites traced to the Abrahamic religions. After World War I Jerusalem was part of the British mandate and in 1948 the United Nations partitioned Palestine and Jerusalem was declared a “separate body” with special political status. After the establishment of the State of Israel Jordan controlled East Jerusalem and Israel maintained control in West Jerusalem. Jerusalem was divided for 19 years and after the 1967 war, Israel retook the old city and declared Jerusalem united.
Status of International Law
UN resolution 181 in 1947 declared Jerusalem a “separate entity,” and would be managed on the bases outlined in the United Nations Proposal 181 which concerned the partition of Palestine. Israel has always considered the partition proposal null and void because the Arabs rejected the UN resolution and attacked the new state of Israel. Consequently, separating Jerusalem out as a separate entity was unjustified. Israel was again attacked in 1967 and as result of their victory in the Six-Day War Jerusalem was reunified, or reclaimed by Israelis, as a Jewish city. Since 1967 all residents including Arabs were offered Israeli citizenship, although most of them declined. The Palestinians argue that in violation of United Nations principles Israel acquired land by military means and the unification of Jerusalem was illegal.
Israel in 1980 declared Jerusalem as its eternal capital and made the argument that such claims are rooted in 3000 years of history citing King David, biblical events, the structure of Jewish prayer which turns toward Jerusalem three times a day, as well as the foregrounding of Jerusalem in the thoughts and liturgies of Jews everywhere.
Still, the Palestinian Authority claims all of East Jerusalem including the Temple Mount and maintains that West Jerusalem and its final status can only result from negotiated agreements between the two sides.
So What Is to Become of young Menachem Zivotofsky?
The United States prefers Jerusalem to remain an international city with final status to be the result of negotiations. It does not recognize Jerusalem as the capital of Israel according to international law. The United States position is specific in that it supported the partition plan but not UN control of Jerusalem. The US also objected to all unilateral action, including moving its embassy to Jerusalem from Tel Aviv, that made decisions for Jerusalem outside the boundaries of negotiated agreements.
US foreign policy became entangled in this issue when Congress passed a law in 2002 that directed the State Department to allow US citizens born in Jerusalem to identify “Israel” as their place of birth. This allowed people like Mr. Zivotofsky to self identify. But the Bush and Obama administrations have refused to implement the rule claiming their exclusive powers in foreign policy and avoiding antagonizing the Arab world by maintaining the international standing definition of Jerusalem.
As of now, Jerusalem remains a potentially contentious definitional issue with much of the world automatically associating it with Israel and other parts of the world refusing. It has found its way into a political battle between Congress and the presidency with respect to who is most authoritative when it comes to directing the nation’s foreign affairs. Can the executive branch just ignore Congress, and can Congress direct legislation over the head of the President. These are the matters influencing the Supreme Court decision while Menachem Zivotofsky waits to see where he was born.
There is truly little more distasteful than boycotting academic institutions for questionable political reasons. I mean if any organization is committed to problem-solving, analysis, and understanding it is academia. The American Studies Association (ASA) is an insignificant but highly politicized minor academic organization that is regularly critical of the United States. Last November the ASA was manipulated by an anti-Israel organization into supporting a resolution to boycott Israeli academic institutions. The ASA has about 5000 members and approximately 16% of them voted. A majority of that biased 16% voted in favor of the resolution and it technically passed. Additional details are available at Scholars for Peace in the Middle East. For now, let’s look a little more closely at what happened.
Who is the American Studies Association?
The ASA focuses on the study of American culture in general but with a strong anti-American sentiment. On the website you can find numerous resolutions critical of the US and imbalance with respect to the consideration of many political issues.
What is the justification for this resolution according to ASA?
The basic argument is that Israeli academic institutions are part of the system that discriminates against Palestinians. Moreover the playing field between the Israelis and the Palestinians is unequal because academic freedom is denied to Palestinians. And finally, Israeli universities are part of state policies that discriminate against Palestinians. The resolution claims not to discriminate against individual scholars engaged in research. The ASA asserts that this resolution is a form of social justice.
What has been the response to the resolution?
The response has been overwhelmingly negative with many of university presidents and leaders calling for the rejection of the boycott and for the resolution to be rescinded. Moreover, the ASA is a tax-exempt academic organization but such exemptions are denied if an organization is blatantly political. Lawyers are beginning to work on removing the tax-exempt status of the ASA. Lee Bollinger’s statement opposing the boycott appears here.
Still, the media coverage of the boycott has been strong and successful at raising the issue in the consciousness of most people. Many of the distinguished newspapers across the country have been critical of the ASA and these criticisms range from the left (e.g. The Nation) to the right (Commentary). Some criticisms from the left have claimed that the ASA resolution will weaken other causes, and some from the right simply defend Israel’s right to defend itself and question the political and legal challenges in the West Bank. The president of the Palestinian Authority Mahmud Abbas also rejects boycotts against Israel except in certain instances, and these refer to particular products, beyond the green line. The ASA appears to be stunned by the negative reaction and has begun manipulating its website and adopting a stance designed to minimize the damage.
The ASA has shown itself to be counter to the traditions of academic freedom and even potentially dangerous to inquiry and progress. If the resolution has any effect at all it will probably be to damage and make more difficult the work of just those individuals most able to work toward the resolution of the problems between Israelis and Palestinians. Resolutions such as these are typically political posing designed to attract attention rather than solve problems. And although attracting attention is a key component of the political communication process, the Israeli-Palestinian conflict is beyond such simplicities and in need of serious attention by serious scholars – not the kind of attention that comes from the safe stances of fashionable progressives who make pronouncements but don’t “get in the fight.”
We will know that real progress is being made on the Israeli-Palestinian conflict when the Arab world explicitly states that it “recognizes” Israel. This concept of state recognition is at the core of the difficulty between these two sides, and I have the feeling that Arab countries choke on the word “recognition” so badly that they just can’t cough it up. In fact, it makes even little sense to negotiate and work to solve problems without such recognition. But it is the official recognition that holds the symbolic value and is more important than the practical outcomes of negotiation.
In a speech at Bar Ilan University Prime Minister of Israel Netanyahu pointed to the refusal to recognize Israel as a Jewish state and the home of the Jewish people as at the core of the Middle East conflict. It really is an excellent speech and I highly recommend it. Some countries recognize Israel from a purely political perspective but not as a Jewish state. There is, of course, a storm of anti-Semitism that accompanies this lack of recognition but my concern here is with more official explanations; that is, with the sources and documents typically used to prop up the objections to recognition. First, let’s take a quick look at what is meant by recognition in international law. These criteria are quite straightforward and easily applicable to Israel:
1. A permanent population that exist together and compose the people of the nation.
2. Territory or a parcel of land that the permanent population lives on. This land must be defined by boundaries and territories.
3. A government or a functioning political system that constitutes the law of the land.
4. The capacity to enter into relations with other states.
These are the criteria for recognition by international law but some states get around these criteria and maintain nonrecognition by the Stimson doctrine which is to withdraw recognition to any new entity that comes into being as a result of illegal actions or force. And of course some Arab states claim this applies directly to Israel because they came into being illegally through the United Nations and as a result of war. On one hand the United Nations is the epitome of official recognition, but many in the Arab world consider the United Nations to be in a position to sanction anything. The definition of illegal actions can be ambiguous. The United Nations resolution 242 was used in the aftermath of the six day war in 1967 and it was agreed to by Israel, Lebanon, Jordan, and Egypt. Israel agreed that it should promote a lasting peace and a peaceful resolution. But the details of this resolution remain murky and there is still confusion over language.
Recognition is a difficult process especially deep and symbolic recognition which is the most important type of recognition. Simple recognition of the state, which means such a state is suitable for routine contact and trade, is easy enough. But recognizing the deeper aspects of a political culture and its legitimate ties to land in history is another matter that requires greater respect and understanding. And, of course, the more the surrounding nations recognize Israel as a Jewish state with a legitimate claim to the land the more they drain their own claims of exclusivity. For example, many in the Muslim world hold the following:
1. Judaism was superseded by Christianity and later by Islam.
2. Jews are not a nation but a religion.
3. Recognition of Israel as a “Jewish state” would question Islam’s claim to be a superior revealed authority.
4. The land the Jews are inhabiting is part of Islamic holy land and can never be associated with another group.
It will be a long time before a collection of Arab leaders stands up and states to the world that it “recognizes Israel as a Jewish state.” This failure of recognition includes a rejection of Jewish prayer, history as well as cultural artifacts. This is dangerous and potentially the “stuff” of anti-Semitism.