The eighteenth century French political philosopher Charles-Louis de Secondat Montesquieu, whose name is most associated with the concept of checks and balances, observed that “Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.”
The American founding fathers were sure to implement a political doctrine of the separation of powers which would ensure that the three branches of government (executive, legislative and judicial) are kept separate and independent in order to avoid the concentration of power in the hands of the few. However, they also adopted the aforementioned doctrine of checks and balances to ensure that none of the branches have an absolute power even within their own realm of activity. The U.S. Supreme Court’s ruling last week regarding Jerusalem put this doctrine to the test. The country’s highest court passed a ruling stating that the recognizing of foreign nations and governments is exclusively in the hands of the President and his decisions are conclusive. In the process, the Supreme Court entered into the fray of American foreign policy towards the Israeli-Palestinian conflict, and the mounting tensions between President Obama and the American Congress over the issue. For the Israeli government, which exploited these divisions in Washington so effectively and cynically, this must be worrying news.
The decision by the Supreme Court is in many ways a lifeline to President ObamaYossi Mekelberg
In a 6-3 majority the Supreme Court ruled that Menachem Zivotofsky, a 12 year-old boy born in Jerusalem, whose parents are American citizens, could not have Israel listed on his U.S. passport, as it is against the president’s declared foreign policy. Consequently, the judges struck down a 2002 law that requires the State Department to record the place of birth of a U.S. citizen born in Jerusalem as Israel, if the child’s legal guardian requests this. Not only Obama, but also his predecessor George W. Bush refused to abide by this legislation, as he too understood the far-reaching implications of this bill. Traditionally, American policy has stated that the future of Jerusalem could only be decided in negotiations between the Israelis and Palestinians, and should not be prejudiced by any act taken by the U.S. or anyone in the international community for that matter. A rather upset mayor of Jerusalem, Nir Barkat, slammed the U.S. Supreme Court’s decision. In what reflects Israel’s complete lack of understanding, and almost detachment from either the mood within the Obama administration or the essence of the legal process that led to this decision, Barkat asserted that "in days like these, when anti-Semites are trying to raise their heads and the BDS – which supports Hamas' positions – endangers world peace and denies Israel's right to exist, we expect the U.S. to strengthen Israel and recognize Jerusalem as its capital.” In this mishmash of loosely related issues the Mayor of Jerusalem was ignoring the crux of the matter, that Jerusalem has not been recognized as the capital of Israel because of the absence of a peace agreement with the Palestinians. For this, he needs to ‘thank,’ to a large extent the country’s government and especially, its prime minister.
The timing of this ruling is extremely sensitive, even if not so intended. It is a period of great strain between President Obama and Prime Minister Netanyahu, and also of deep divisions between the President and Congress. Last year’s mid-term elections handed a victory in Congress to the Republicans, who are determined to wreck Obama’s remaining time in the White House. This created an interesting dynamic in which Netanyahu and Congress are collaborating in undermining the U.S. President. Both collaborate in opposing the emerging agreement on Iranian nuclear programme and the administration’s approach to Israeli-Palestinian relations.
Lifeline to Obama
The decision by the Supreme Court is in many ways a lifeline to President Obama, as it establishes, in no uncertain terms, who is in the driving seat when it comes to shaping U.S. foreign policy. Similar to many other issues at the heart of current American politics, the peace process suffers from the political ruptures in Washington, and the resulting lack of coherent policy. Justice Kennedy, who delivered a carefully crafted majority opinion, acknowledged that Jerusalem’s political situation has been one of the most sensitive issues in American foreign policy and in contemporary international affairs. The court was very cautious not to intervene in the political matter, but at the same time emphasised that since 1948 the United States has not recognized any sovereignty over Jerusalem. This has been the view of all American presidents since the establishment of the state of Israel, accepting U.N. Resolution 181 on the partition of Palestine into two states a Jewish one and an Arab one. Under this resolution Jerusalem should have been under a separate international regime.
Congress has become Israel’s shield from Obama’s unwanted policies. Nevertheless, the decision by the Supreme Court should serve as a warning to Netanyahu and his allies in the American Congress that ploys to restrict the powers of the President will be protected by the courts in accordance with the constitution. Moreover, unilateral decisions such as the annexation of Jerusalem will not gain international support, even from Israel’s closest ally the United States. Insisting on Jerusalem remaining united under the control of the Jewish state, and expanding Jewish settlements around the city sacred to all monotheistic religions, will only lead to future conflict and international isolation. It is very unlikely that future American presidents will change U.S. policy towards Jerusalem and recognise Israeli sovereignty over even the western parts of the city without a comprehensive peace agreement with the Palestinians.
The American courts found themselves embroiled in a political battle over Jerusalem, only to underline that their position clarifies the constitutional division of labour between the legislative and the executive branches on issues of political recognition. However, had the court decided in favour of Congress, it would have been even more difficult to assume the role of an honest peace broker between Israel and the Palestinians. The American’s overwhelming support of Israel leaves many among the Palestinians and most of the Arab world sceptical, as to whether the United States can or even should play the peace broker. Had the United States prejudiced the outcome of peace negotiations through legislation on the future of Jerusalem, it would have cast further doubts in minds of the Palestinians whether there is any point in accepting the Americans’ peace services. As for the Israeli government, the U.S. Supreme Court’s decision might not change its view about the status of Jerusalem. However, it should send the Israeli government back to the drawing board regarding the best route towards international recognition of part of the city as its capital. It will discover very quickly that only by sharing Jerusalem as the capital of both Israel and Palestine will it gain the long desired recognition.
Yossi Mekelberg is an Associate Fellow at the Middle East and North Africa Program at the Royal Institute of International Affairs, Chatham House, where he is involved with projects and advisory work on conflict resolution, including Track II negotiations. He is also the Director of the International Relations and Social Sciences Program at Regent’s University in London, where he has taught since 1996. Previously, he was teaching at King’s College London and Tel Aviv University. Mekelberg’s fields of interest are international relations theory, international politics of the Middle East, human rights, and international relations and revolutions. He is a member of the London Committee of Human Rights Watch, serving on the Advocacy and Outreach committee. Mekelberg is a regular contributor to the international media on a wide range of international issues and you can find him on Twitter @YMekelberg.