Reopening the U.S. Consulate in Jerusalem: Subject to Israeli Discretion?

The election of Joe Biden as U.S. president brought Palestinians a sigh of relief. Indeed, the Israeli-Palestinian conflict is not going to be a top priority for the Biden administration, and realistically the administration will have neither the desire nor the bandwidth to invest substantial resources in promoting Palestinian aspirations for statehood. Nonetheless, after four years of what the Palestinians see as outright hostility coming from the Trump administration, they welcome a return to what was hitherto mainstream U.S. policy, and the likely reversal of some of the damage inflicted on them by the outgoing administration through a series of controversial decisions. Balancing out the Trump administration’s one-sided record will mean taking steps like restoring aid to the Palestinians; reopening the PLO office in Washington (although both steps will be complicated by legislation passed during Trump’s tenure); and returning to a longstanding bipartisan position on settlements, unlike the outgoing administration, which does not consider settlements in the West Bank to be “contrary to international law.” The Palestinians would like the new administration to also return the U.S. Embassy to Tel Aviv and rescind the U.S. recognition of Jerusalem as Israel’s capital, but they know this is not going to happen. Instead, they anticipate the reopening of the U.S. consulate in East Jerusalem, which effectively functioned as a separate U.S. mission to the Palestinians until the Trump administration subsumed it into the operations of the U.S. Embassy to Israel. This step, theoretically simpler than some of the others on the laundry list of damage repairs, could start healing the wounds in U.S.-Palestinian relations. However, although the task of  reopening the consulate does not face complex legal and political challenges at home, it could be hindered by Israeli politics. 

The first U.S. consul general to Jerusalem was appointed in 1844, with a permanent presence established in 1857. The building moved several times. In 1948, then-Consul General Thomas C. Wasson was killed by an unidentified shooter near the consulate. Following the 1948 war and Israel’s establishment, when the city was divided into two parts, the U.S. government leased a second building. Until the Six-Day War of 1967, the Embassy in Amman represented United States interests in the West Bank, which was occupied by Jordan at the time. Between 1967 and 2019, the Consulate General in Jerusalem assumed that role. Gaza was handled by the U.S. Embassy in Tel Aviv until Israel’s disengagement from the Strip in 2005. Gaza subsequently shifted to the responsibility of the Jerusalem consulate. 

Throughout the years, the Consulate General maintained its role as a diplomatic mission in Jerusalem and the West Bank, independent of the U.S. Embassy to Israel in Tel Aviv. The Oslo process led to establishment of ties between the Consulate General and the Palestinian leadership. While the U.S. consul general never submitted any accreditation to the Palestinian Authority, the Consulate was viewed as the de facto U.S. diplomatic representative to the PA, enabling the conduct of bilateral U.S.-Palestinian ties that do not go through Israel. The separation of U.S. representation to Israel and to the Palestinians reflected a bipartisan position since 1948 that refrained from recognizing any party’s sovereignty over Jerusalem. That position was maintained after Israel recognized West Jerusalem as its capital in 1948 and after Israel extended sovereignty over East Jerusalem in 1967. The United States also refrained from voting in the UN Security Council on seven resolutions condemning Israel’s attempted annexation of East Jerusalem. In the discussion on the first of such first resolutions, UNSC resolution 478 in 1980, then-U.S. Secretary of State Edmund Muskie said, “The question of Jerusalem must be addressed in the context of negotiations for a comprehensive, just and lasting Middle East peace.” Maintaining an independent consulate throughout the years reflected the U.S. position that the final status of Jerusalem city was to be resolved in negotiations between the parties. Furthermore, the Consul General was eventually granted a Chief of Mission status, which meant that the consulate was a step removed from embassy-hood, reinforcing its separateness from the Embassy in Tel Aviv, and signaled the direction of U.S. policy in favor of a two-state solution.

Interestingly, even in its decision to recognize Jerusalem as Israel’s capital and move the U.S. Embassy there, the Trump administration followed longstanding U.S. policy on this issue by saying that their actions “do not reflect a departure from the strong commitment of the United States to facilitating a lasting peace agreement. The United States continues to take no position on any final status issues.  The specific boundaries of Israeli sovereignty in Jerusalem are subject to final status negotiations between the parties.” Nonetheless, over time the Trump administration came to dismiss Palestinian claims to Jerusalem. After the recognition of Jerusalem as Israel’s capital in 2017, the State Department announced that the Consulate General in Jerusalem would be closed and subsumed under the embassy to Israel. Then, the Peace to Prosperity proposal, colloquially known as the Trump peace plan, acknowledged the Palestinian desire for a capital in East Jerusalem, yet only offered them a capital that includes the Jerusalem suburb of Abu Dis, as well as Kufr Aqab and Shuafat Refugee Camp, two neighborhoods that are part of the Jerusalem municipality but located east of the security barrier that Israel constructed in the early 2000s. Finally, the State Department changed the classification of Jerusalem, allowing U.S. citizens born in the city to list Israel as their country of birth. The combination of these steps was a stark departure from longstanding bipartisan U.S. policy on Jerusalem, undermining U.S. ties with the Palestinian leadership and the Palestinian people and with the international community. After the Jerusalem recognition and the embassy move, the consular community in Jerusalem excluded the U.S. Embassy staff from attending the traditional monthly meeting of all foreign consul generals in the city. Several countries, including France, refused to deal with the new U.S. Embassy and instead referred all official diplomatic business to their embassies in Tel Aviv.  

Reopening the consulate in East Jerusalem would be an important signal that the United States is interested in resetting its bilateral relations with the Palestinians, demonstrating it values a U.S.-Palestinian relationship that is separate from ties with Israel. Repairing ties would pave the way for renewed U.S. leadership in this area and help restore a multilateral effort that includes the United States, Europe, and other countries invested in seeing a solution to the conflict. In addition, with Jerusalem being one of the thorniest final status issues, reopening the Consulate, ideally in the eastern part of the city, would reflect U.S. recognition of the Palestinian desire to have a capital there. Finally, it would indicate a renewed U.S. support for the peace process and for the internationally-accepted concept of the two-state solution—and not the so-called “realistic two-state solution” that the Trump administration envisioned in its Peace to Prosperity plan, which used the term two states but actually referred to a non-independent Palestinian entity with limited autonomy and subject in many ways to Israeli control. 

Unlike reversal of other steps, such as reopening the PLO mission in Washington and restoring aid to the Palestinians, which hinge upon Palestinians overhauling their practice of compensating those who serve time in Israeli prisons, which detractors describe as “pay to slay,” as well as withdrawing claims submitted to the International Criminal Court, reopening the consulate in East Jerusalem faces no legal barriers in the United States. On the other hand, it might not be as straightforward as some hope. First, there are logistical challenges like finding a location. The United States has property in Ramallah and in East Jerusalem, which, if used, would have to be repurposed to serve as a diplomatic mission. The United States can theoretically also repurpose one of its venues in West Jerusalem, for example the one on Agron street, now used as an embassy annex.  Beefing up security and again establishing another facility with independent bureaucratic power would be another major process that could take time and resources. However, these are secondary concerns. The biggest hurdle is that Israel, in practice, has a veto over this decision. Traditionally, consulates in Jerusalem had not required accreditation as they were created initially during the Ottoman era and their evolution over time did not depend on Jordanian or Israeli approval. Today, however, there is a legal debate on whether the United States can proceed with reopening the consulate or whether it is allowed to open another diplomatic mission in a city where there is already an Embassy. Interpretation of the law is flexible which means eventually that it would be for the incoming administration to decide. Nonetheless, regardless of the legal issues, it is clear that without Israeli assent it would be extremely difficult, and even impossible, to go ahead with opening the consulate. For one, the United States government cannot just slide into a building, be it an old facility or new one, put a flag and get to work. The building has to be recognized as a diplomatic facility. Israeli police normally would help guard a diplomatic mission but that is something that Israel has to approve. Finally, all diplomats heading for postings in Jerusalem come in on Israeli diplomatic visas. Would Israel accredit diplomats to serve in an office it has not approved? Unlikely. 

While Israel has never interfered with U.S. decisions concerning the East Jerusalem consulates, the political climate can turn it this time into a major internal political hot potato. The country is preparing for elections again in March, a fourth round in less than two years. Prime Minister Netanyahu, challenged for the first time by a growing number of right-wing contenders including Naftali Bennett and the new Likud refugee Gideon Saar would undoubtedly be portrayed as agreeing to dividing Jerusalem. Himself having used the same strategy in 1996 running against Shimon Peres with the campaign slogan “Peres will divide Jerusalem,” Netanyahu will be highly vulnerable to that sort of pressure. If he can withstand the pressure, Netanyahu would be smart to avoid opposing the new consulate and instead use it to show goodwill, which will be much needed to pocket concessions on other fronts. But banking on Israeli goodwill on this sensitive issue would not be wise policy planning. Instead, the Biden administration should understand its array of options and use leverage effectively. 

Presumably, one of the most sensitive aspects of this decision would be the location of the Consulate. East Jerusalem would be difficult for Israel to stomach but would go a long way toward repairing ties with the Palestinians. On the other hand, a  facility in the Western part of town, or even in Abu Dis (recognized as Palestinian capital even under the Trump plan),would circumvent this sensitivity. But would it achieve its intended objectives vis-à-vis the Palestinians? Probably not. The United States can propose a location that is less symbolic for the Palestinians as part of a package deal of sweeteners, which would include taking a stance against settlements, reaffirming support for a two-state solution, restoring ties, and resumption of aid, some of these steps would be less straightforward than others.  Under such circumstances, a West Jerusalem location could become acceptable but the Palestinians would most certainly refuse to work with a consulate in Abu Dis, which would de facto signal U.S. recognition of the area the Palestinian capital, hence such a move would be counterproductive.   

If, however, after weighing all options, the Biden administration finds itself banging heads with Israel over this issue, it should make it clear that there will be consequences, including in Jerusalem.  First, the administration could make it clear that the United States, as Israel’s most important strategic ally, expects the same privileges as all other dozens of countries, including European partners like the UK, Germany and Greece on the one hand and Turkey on the other, which have consulates in East Jerusalem. Furthermore, the Biden administration could link the reopening of the consulate with maintaining the Trump administration’s decision allowing U.S. citizens born in Jerusalem to list their place of birth as “Israel,” but consider reversing this decision if Israel refuses to grant the needed support for the consulate. Moreover, on the positive side, the Biden administration can promise to seek an upgraded and permanent facility to replace the consulate-turned-into-embassy in Jerusalem; or alternatively on the negative side, maintain the status quo and continue to run most affairs from the embassy branch in Tel Aviv. Whichever carrots or sticks the  incoming administration is willing to use, if it is serious about resetting ties with the Palestinians, it would be wise not to leave an important U.S. diplomatic decision to Israeli discretion.