The U.S. Supreme Court decided that an American citizen who was born in Jerusalem does not have the right to have the place of birth in his U.S. passport recorded as “Jerusalem, Israel.”Getty Images/iStockphoto
A decision announced Monday by the United States Supreme Court has made headlines in U.S. and Israeli newspapers and generated a new wave of criticism of the Obama administration for ill-treating Israel.
In a 6-3 ruling, the court decided that an American citizen who was born in Jerusalem does not have the right to have the place of birth in his U.S. passport recorded as "Jerusalem, Israel." It's fine to say he was born in Jerusalem, but not that Jerusalem is part of Israel.
This has been the position of every U.S. administration since Harry Truman, when Israel was created.
While some may find this surprising, exactly the same type of ruling was made by Canada's Federal Court of Appeal eight years ago in the matter of a Canadian teenager, the son of a Toronto rabbi, who had been born in Jerusalem.
In a Canadian passport, such a person can have his birthplace listed as Jerusalem or left blank. The only instance when a person can have more than Jerusalem as his or her place of birth is when the person is born prior to May 14, 1948, before Israel existed. In such a case, it would be recorded as "Jerusalem, Palestine," which was then administered by the British.
The Canadian and U.S. policy, as well as that of the members of the European Union and many other countries, is based on the view that the sovereignty of Jerusalem – west Jerusalem and east Jerusalem – is not held by Israel or any other country, at least not yet.
While Israel occupied western Jerusalem in the 1948-49 Arab-Israeli War, and Jordanian forces occupied the rest of the city, neither country was ever recognized as having sovereignty over this special place.
In international law, Jerusalem is considered as corpus separatum, a territory with special status – not an independent state, and not part of the surrounding jurisdiction.
This conclusion stems from the resolution of the Allied Powers at the end of the First World War when they were deciding what to do with elements of the former Ottoman Empire they had just conquered. They gave Britain the responsibility for administering the Mandate of Palestine and Transjordan and bringing the area to some kind of statehood.
However, they also recognized the unique nature of Jerusalem and its importance to the three monotheistic faiths – Judaism, Christianity and Islam – present there. They determined that it should be treated as "a sacred trust of civilization" and administered internationally, not by any one country.
This was reflected in the 1947 United Nations resolution to partition the rest of the British Mandate of Palestine into a Jewish State and an Arab State, but to leave Jerusalem as an international protectorate.
It was not to be. Israeli leaders accepted the terms of the partition plan; Arab leaders did not. Fighting lasted for more than a year and, when the smoke had cleared away, control of the city was split between Israel and Jordan.
In the Six-Day War of 1967, Israel drove out the Jordanians and took charge of the rest of Jerusalem. It later purported to annex it thereby establishing "the undivided capital of Israel." Its claim has never been internationally accepted.
Today, while sovereignty of Jerusalem has yet to be assigned, it is the view of Canada that the status of the coveted city "can be resolved only as part of a general settlement of the Palestinian-Israeli dispute." This is the view of the United States and many other countries as well.
"It is sad and unfortunate that Israel – as a sovereign nation – is the only country in the world whose capital comes under such scrutiny and has to defend its right to determine where its capital city exists," said Abraham Foxman, the national director of the U.S. Anti-Defamation League. "It's time for the executive branch to face the reality: Jerusalem is the capital of Israel."
In the U.S. case this week, the court determined that a law, passed by Congress in 2002, to promote recognition of Jerusalem as part of Israel was unconstitutional because it trod on areas that are the exclusive responsibility of the President.
In the case of Veffer v. Canada, Eliyahu Yoshua Veffer claimed his right to freedom of religion was violated by the Canadian passport he was issued.
"I take pride that I was born in Jerusalem, Israel," he explained in his affidavit. "My religion teaches me that Jerusalem is the capital of Israel. This is an integral part of my religious belief and my personal identity.
"When I am not allowed to have 'Israel' in my passport, even though I was born in Israel, I feel that the Government of Canada is refusing to allow me to express my identity as a member of the Jewish people," he said.
The court held that there was no violation of religious freedom.
"The Passport Canada policy in no way threatens, inhibits or constrains Mr. Veffer's ability to believe that Jerusalem is the capital of Israel, to declare this belief openly and publicly, and to teach and disseminate that belief," it ruled.
The court also held that the policy does not amount to "group targeting" as Mr. Veffer suggested, "or a reflection of arbitrary or stereotypical decision making."
"The Passport Canada policy on Jerusalem merely seeks to reflect international law, recognizing the unique circumstances and sensitivities of all the people who live there," the judges concluded.
While political circumstances may change "the importance of the objective of neutrality and non-interference remains constant," they ruled.