The recent American-Israeli agreement to lease land in West Jerusalem for One dollar over 99 years is not merely a real estate deal. Under the agreement, that site is slated to be the future home of the US Embassy in Jerusalem. However, some of the land was previously confiscated from Palestinians under Israel’s Absentees’ Property Law (1950), and this leads to complex issues around property rights, historical justice and international law. If true, these allegations will only further entrench a norm of political privilege trumping legal norms that erodes the international order that the U.S. and its allies frequently pretend to abide by.
Without referring to the turmoil of 1948, we cannot understand the controversy surrounding this deal. Over 7,00,000 Palestinians fled their homes in what is referred to as the “Nakba” during the Arab-Israeli war. Hundreds of thousands of the displaced abandoned their homes, businesses and farmlands. In 1950, Israel introduced the Absentees’ Property Law which transferred ownership of land from any Palestinians designated as “absentees” to the Custodian of Absentee Property. In reality, however, Palestinians and many legal scholars believe that it enshrined the permanent appropriation of refugee property with no possibility of restitution or compensation.
The current arrangement raises questions regarding justice as well as obligations of States under international law. Private ownership shall not be confiscated – this is what Article 46 of the 1907 Hague Regulations says. The argument made by Israel regarding West Jerusalem is that it is part of its sovereign jurisdiction but International Humanitarian Law (IHL) focusing specifically on the context of armed conflict and systematic displacement necessitates private property to be treated as a protected entity. Human Rights Groups argue that establishing an embassy on the land which has been seized since October 2023 from families who were forced to flee Palestine, will only serve to deepen ongoing consequences which are derived from dispossession rather than addressing them through established legal processes.
In addition to the Hague Regulations, the Fourth Geneva Convention of 1949 sets out protections for civilians and private property in occupation and conflict. While west and east Jerusalem would be legally regarded differently under international law, the gist is still there. That – states must not act in a way that recognizes or benefits from rights of property acquisition through displacement claims. This deal is not only locally problematic but is also worrisome since it seems to disregard ongoing international and legal ownership claims which directly affect the 1948 Palestinian refugees, and subsequent generations.
UNSC 242 (1967) post Six-Day-War states that: “Land cannot be acquired by force”. The referendum mostly deals with land gained in 1967 but this decision is a broader principle against effort to unilaterally resolve territorial issues via legislative measures. In addition, United Nations Security Council resolution 478 (1980) declared that Israeli attempts to change Jerusalem’s status constituted “null and void” and called on member states to withdraw their diplomatic missions from the city. That decision was supported by the most governments, all of which arguably continue to keep their embassies in Tel Aviv in recognition that Jerusalem’s final status should ultimately be negotiated between Israelis and Palestinians.
This broad international consensus was broken by the United States in 2017 when President Donald Trump recognized Jerusalem as Israel’s capital and announced the relocation of the US Embassy from Tel Aviv. What was an eventual political dispute over the relocation is now a long-term institutional commitment with the signing of the current lease agreement. Needless to say, there is something symbolic about leasing land for a single dollar. Although insignificant on the financial level, this symbolic price reflects the extraordinary political closeness between Washington and Jerusalem. At the same time, it strengthens Palestinian perceptions that the United States has forsaken all pretence of neutrality in the peace process.
Those who back the deal say – West Jerusalem has been administered by Israel since 1948 and believe that all states are within their rights to choose their own capital and where foreign embassies should be placed. They argue that embassies merely reflect political reality rather than create new facts on the ground. However, this argument ignores a fundamental difference between domestic legality and international legitimacy. The reason international law exists at all is that domestic legislation cannot wholly and unilaterally dispose of interdependent claims creating legal obligations dependent on displacement, armed conflict or violations of humanitarian law.
This deal should not only be considered diplomatic between the US and Israel, because it begs us to answer the question: How committed would the world order be to international law? The legality of such an agreement is in doubt, particularly since the land was taken from Palestinians. The only way a rules-based international order can maintain its credibility is by not invoking international law selectively on the basis of political or strategic interests.
