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Palestine files complaint to top UN court over US embassy move

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Palestinian leaders filed a complaint on Friday with the top court of the United Nations (UN), the International Court of Justice (ICJ), over the U.S. decision to recognize Jerusalem as the capital of Israel last December.

After Palestine’s application was submitted, the ICJ issued a press release explaining Palestine claimed the U.S. further violated international law when it moved its permanent diplomatic mission in May 2018.

According to the statement which quoted from the complaint, Palestine, “requests the Court to declare that the relocation, to the Holy City of Jerusalem, of the United States embassy in Israel is in breach of the Vienna Convention.” Passed in 1961, the Vienna Convention on Diplomatic Relations prohibits countries from establishing embassies outside of their borders. East Jerusalem has been occupied by Israel since 1967, making any changes to its status a violation of international law.

The complaint also included language prohibiting the U.S. from recognizing Jerusalem as Israel’s capital again at a later time. Palestine, “asks the Court to order the United States of America to take all necessary steps to comply with its obligations, to refrain from – 2 – taking any future measures that would violate its obligations and to provide assurances and guarantees of non-repetition of its unlawful conduct.”

Palestine sought out the court a day after Palestinian President Mahmoud Abbas delivered his address at the 73rd UN General Assembly in New York.

During his speech, Abbas called on the international community and the UN to declare the Trump administration’s move of  the U.S. embassy illegal, and to pressure the U.S. into reversing the decision.

Abbas criticized the decision as threatening “the Palestinian national cause and constitute an assault on international law and relevant United Nations resolutions.”

He also accused the U.S. of “undermining the two-state solution” and being an unfair arbiter of the peace process due to America’s “bias towards Israel.”

Palestinian Foreign Minister Riyad al-Malki said on Saturday that the complaint was filed “in line with the policy of the State of Palestine, which aims to preserve the character of the holy city of Jerusalem with its unique spiritual, religious and cultural dimensions,” according to Palestinian Wafa news agency.

“We defend our rights and our people without hesitation and reject all forms of political and financial extortion,” al-Malki continued.

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About Yumna Patel

Yumna Patel is a multimedia journalist based in Bethlehem, Palestine. Follow her on Twitter at @yumna_patel

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25 Responses

  1. Kay24
    Kay24
    October 1, 2018, 3:19 pm

    How many complaints have been filed? How many have been resolved fairly? The international bodies seem to have their hands tied, or give in the threats by America and Israel.
    Justice is yet to come, for the Palestinians.

    • Hostage
      Hostage
      October 2, 2018, 10:51 am

      Several other countries have filed “Contentious Cases” against the United States, i.e. Iran, Nicaragua, Mexico, and Germany. Ultimately, the US usually rejects the verdicts and withdraws from the jurisdiction of the Court. In 2005, the President announced that the US was going further and “withdrawing” from the Vienna Convention on Consular Relations. It was a codification of binding customary international law and contained no provision for withdrawal. It also provided for the compulsory jurisdiction of the ICJ to settle diplomatic disputes.

      Palestine has filed a complaint with the International Criminal Court, but has never filed a complaint with the Intetnational Court of Justice. The General Assembly asked for an Advisory Opinion from the ICJ in the “Wall” case.

      A dispute between states, i.e. Palestine, Israel, and the United States would be a Contentious Case, not an Advisory Opinion. The United States and Israel would undoubtedly reject any verdict, but the Armistice lines were imposed under the terms of a Chapter 7 Security Council resolution. That is a violation of the UN Charter. The US is obviously not going to withdraw from that treaty and surrender its veto of any possible sanctions.

    • Jackdaw
      Jackdaw
      October 2, 2018, 12:46 pm

      There will never be justice for the Palestinians.

      The best they can hope for is peace, and their own State.

      I’m not sure they want either.

      • eljay
        eljay
        October 2, 2018, 1:52 pm

        || Jackdaw: There will never be justice for the Palestinians. … ||

        And that’s an injustice.

        || … The best they can hope for is peace, and their own State. … ||

        They are doomed if the best they can hope for is a Zionist “peace” and ghetto scraps.

        || … I’m not sure they want either. ||

        I’m sure they wouldn’t object to justice, accountability and equality. It’s an incontrovertible fact that Zionists don’t want any of those applied to I-P.

      • Kay24
        Kay24
        October 2, 2018, 4:50 pm

        Why don’t you ask those who you obviously support to end the occupation, stop the land theft, and give them freedom? This is the first time I have heard of occupied people, who are suffering without freedom, and have to face the military might of those who occupy them, and massacre their children, NOT wanting to be independent from that hell, and want to live in peace.

      • Jackdaw
        Jackdaw
        October 2, 2018, 5:18 pm

        Ustasi.

      • Mooser
        Mooser
        October 2, 2018, 5:55 pm

        “Ustasi”

        And anything the Ustasi can do, Israel can do better?

        (“Jackdaw”, why do you subject yourself to this? Get out and talk to some Israelis, and let their expressions of hope for Israel and plans for the future fill you with a joyous optimism. And you’ll keep up your Hebrew, too.)

      • eljay
        eljay
        October 2, 2018, 6:04 pm

        || Jackdaw: Ustasi. ||

        That’s so cute!  :-)  Konrad Lorenz thanks you for your loyal service.

    • Hostage
      Hostage
      October 5, 2018, 5:56 am

      I noted that the USA is infamous for withdrawing its consent to the exercise of the compulsory jurisdiction of the ICJ. It either does that after it looses a case, or before the case even begins.
      The other day it withdrew from the 1950s Treaty of Comity with Iran after it lost the ICJ case on Trump’s violation of the Joint Comprehensive Plan of Action (JCPOA) and imposition of illegal sanctions. See: US terminates 1950s treaty with Iran after court orders ease in sanctions https://thehill.com/policy/defense/409657-us-ending-treaty-with-iran-after-international-court-ruling

      In the Jerusalem Embassy case, the USA’s behavior was so flagrantly illegal, it withdrew from the Vienna Convention on Diplomatic Relations in advance in order to avoid the embarrassment of loosing yet again. See: U.S. withdraws from international accords, says U.N. world court ‘politicized’ https://www.reuters.com/article/us-usa-diplomacy-treaty/u-s-withdrawing-from-vienna-protocol-on-dispute-resolution-bolton-idUSKCN1MD2CP

      So our diplomatic missions around the world no longer enjoy the protections and dispute resolution process afforded by the treaty.

  2. pabelmont
    pabelmont
    October 1, 2018, 7:47 pm

    Perhaps another formal stone will be added to the (virtual) wall of formal UN and international law elements which purport to govern the I/P conflict. Then, someday, perhaps nations will act to make the formality and virtual structures a reality.

    Or maybe the horse will speak.

  3. mondonut
    mondonut
    October 1, 2018, 9:24 pm

    The “State” of Palestine must be one of the regulars on Mondoweiss – given its liberal invention of International Law. They actually think that this…

    1.The functions of a diplomatic mission consist, inter alia, in:
    (a) Representing the sending State in the receiving State;

    means the US is constrained in placing its embassy where it chooses. In the meantime the Palestinians should get around to notifying every diplomatic mission in Jerusalem they need to get out of the city.

    • Misterioso
      Misterioso
      October 2, 2018, 10:18 am

      @mondonut

      For the record regarding East Jerusalem:

      Security Council Resolution 446 (22 March 1979) “[Affirms] once more that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem,
      “1. Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;..”

      Security Council Resolution 465 (1 March 1980) “determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity…”

      Israel’s 1980 annexation of East Jerusalem was rejected by the UN Security Council in Resolution 476 (June 30, 1980): “all legislative and administrative measures and actions taken by Israel, the Occupying Power, which purport to alter the character and status of the Holy City of Jerusalem have no legal validity and constitute a flagrant violation of the Fourth Geneva Convention.”

      In accordance with the 1949 Fourth Geneva Convention, binding on all UN members and ratified by the entity known as “Israel,” and further underscoring the illegality of the settlements, Part 2, Article 8, section B, paragraph viii of the Rome Statute of the International Court (1998) defines “the transfer directly or indirectly by the Occupying power of parts of its own civilian population into the territory it occupies ” as a War Crime, indictable by the International Criminal Court.

      On 24 February 2004, the U.S. State Department reaffirmed its earlier position in a report titled Israel and the Occupied Territories, Country Reports on Human Rights Practices: “Israel occupied the West Bank, the Gaza Strip, East Jerusalem, and the Golan Heights after the 1967 War…. The international community does not recognize Israel’s sovereignty over any part of the occupied territories.”

      In its 2004 ruling, the International Court of Justice unanimously ruled that “No territorial acquisition resulting from the threat or use of force shall be recognized as legal.” The World Court denoted this principle a “corollary” of the U.N. Charter and as such “customary international law” and a “customary rule” binding on all member States of the United Nations.

      UN Security Council Resolution 2334, December 23, 2016: “Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force,

      “Reaffirming the obligation of Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and recalling the advisory opinion rendered on 9 July 2004 by the International Court of Justice,

      “Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions,….”

      “In international law, East Jerusalem is occupied territory, as are the parts of the West Bank that Israel unilaterally annexed to its district of Jerusalem. The Fourth Geneva Convention of 1949 and the Hague Regulations of 1907 forbid occupying powers to alter the lifeways of civilians who are occupied, and forbid the settling of people from the occupiers’ country in the occupied territory. Israel’s expulsion of Palestinians from their homes in East Jerusalem, its usurpation of Palestinian property there, and its settling of Israelis on Palestinian land are all gross violations of international law. Israeli claims that they are not occupying Palestinians because the Palestinians have no state are cruel and tautological. Israeli claims that they are building on empty territory are laughable. My back yard is empty, but that does not give Netanyahu the right to put up an apartment complex on it.” (Juan Cole, http://www.juancole.com/2010/03/top-ten-reasons-east-jerusalem-does-not.html)

      BTW, there is no special provision in international law that enables the entity known as “Israel’ to violate it with impunity.

      • mondonut
        mondonut
        October 2, 2018, 10:53 am

        @Misterioso, …forbid occupying powers to alter the lifeways of civilians who are occupied, and forbid the settling of people from the occupiers’ country in the occupied territory.

        And as if intent on proving my point, here comes the wholesale invention of International Law.

    • Hostage
      Hostage
      October 2, 2018, 6:42 pm

      Mondonut:The “State” of Palestine must be one of the regulars on Mondoweiss – given its liberal invention of International Law.

      The United States helped author the provisions of the UN Charter regarding the role of the General Assembly in promoting and codifying the customary rules of international law. Israel agreed to that authority when it joined the UN. It acknowledged that fact again when it accepted the invitation of the General Assembly to participate in the Vienna Diplomatic Conferences. Those gatherings of plenipotentiary powers codified the authority of the General Assembly to recognize non-member “States,” including Pslestine, and invite them to become signatories of the UN Vienna treaties and to join any UN Special Agencies.

      The US also helped author the provisions of the UN Charter that required all member states to accept and carry out the decisions of the Security Council, including the “decision” regarding the nullity and illegality of Israel’s annexation of Jerusalem and the obligation to remove member state embassies from that City.

      FYI, the US also helped author and promulgate the Nuremberg Charter and Nuremberg Principle that says a country cannot employ its domestic laws as an excuse to violate its obligations under international law or to avoid criminal liability.

      • mondonut
        mondonut
        October 2, 2018, 9:14 pm

        @Hostage. The United States helped author the provisions of the UN Charter…

        Nice words, but none of them address the Palestinians’ inventive and ridiculous interpretation of the Vienna Treaties, which in no way prohibit the US from placing its embassy where it chooses.

        And as to UNSC 478, which the US emphatically declared non-binding:

        Secretary Muskie – “In our judgment, this provision is not binding. It is without force. And we reject it as a disruptive attempt to dictate to other nations. It does nothing to promote a resolution of the difficult problems facing Israel and its neighbors. It does nothing to advance the cause of peace.”

        The US nonetheless removed its embassy as requested but obviously retained its right to relocate back to Jerusalem if it chose to. Which it did of course and nothing in UNSC478 or the Vienna Treaties precludes the US from making that decision.

        It is worth noting that UNSC 478 does not instruct the removal of embassies but of diplomatic missions. And currently Jerusalem hosts the diplomatic missions of Belgium, France, Greece, Italy, Spain, Sweden, Turkey and the UK.

        Further note that if the Palestinians thought for a minute that UNSC 478 had bearing on the embassy relocation they would have invoked that instead of Vienna.

      • Hostage
        Hostage
        October 3, 2018, 1:10 am

        MondonutNice words, but none of them address the Palestinians’ inventive and ridiculous interpretation of the Vienna Treaties, which in no way prohibit the US from placing its embassy where it chooses.

        The Vienna Treaty on Diplomatic Relations explicitly reflects customary rules which require that the premises of embassies must be located “on the territory of the receiving state” [Article 21]. It also stipulates that states cannot enter into special agreements that would allow the premises to be used “in any manner incompatible with a general rule of international law” [Article 41(3)].

        This particular embassy is situated in territory that was annexed in violation of a peremptory norm of international law. In accordance with Article 53 and 66 of the Vienna Convention on the Law of Treaties any dispute regarding the private agreement between Israel and the USA that violates Article 53 of the Law of Treaties and the customary rules reflected in the Vienna Treaty on Diplomatic Relations is subject to the compulsory jurisdiction of the ICJ.

        Article 103 of the UN Charter states that: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

        Article 25 of the UN Charter States that: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

        Neither of those articles allow for any privately agreed upon exceptions. According to the terms of Article 106 of the UN Charter they cannot be amended without the consent of at least two-thirds of the members of the General Assembly and all of the permanent members of the UN Security Council.
        http://avalon.law.yale.edu/20th_century/unchart.asp

        UNSC resolution 478 cited a peremptory norm of customary international law which holds that no territory acquired through the threat or use of force shall be recognized as legal. The Security Council affirmed that the enactment of the Basic Law Jerusalem was a violation of international law, determined that the basic law was null and void, and stated that the Security Council:

        “5. Decides not to recognize the “basic law” and such other actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem and calls upon:

        (a) All Member States to accept this decision;

        (b) Those States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City;”

        Mondonut:And as to UNSC 478, which the US emphatically declared non-binding:

        Secretary Muskie …

        FYI, the opinion of our Secretary of State has never been considered final under US domestic law, i.e. “It is emphatically the duty of the Judicial Department to say what the law is.” According to customary international law as expressed in Article 31 of the Vienna Convention on the Law of Treaties, a treaty (like the UN Charter) must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. Article 53 of the Law of Treaties states that any treaty which conflicts with a peremptory norm of international law is void at the time of its conclusion.

        In the ICJ Wall case both the General Assembly and the Court cited the legal relevance and legal consequences of a number of Security Council resolutions, including resolution 478. The Court decided that Israel was under a legal obligation to implement all of the relevant Security Council resolutions in good faith. It also noted that UN member states were under Charter and 4th Geneva Convention treaty obligations not to recognize the illegal situation that had been created by Israel.

      • Hostage
        Hostage
        October 3, 2018, 1:47 am

        Mondonut:The US nonetheless removed its embassy as requested but obviously retained its right to relocate back to Jerusalem if it chose to. Which it did of course and nothing in UNSC478 or the Vienna Treaties precludes the US from making that decision.

        WTF? The USA had a Foreign Consulate in Jerusalem, but it never had an Embassy there before 2018.

        Mondonut: It is worth noting that UNSC 478 does not instruct the removal of embassies but of diplomatic missions. And currently Jerusalem hosts the diplomatic missions of Belgium, France, Greece, Italy, Spain, Sweden, Turkey and the UK.

        No, there are separate Vienna Treaties for Diplomatic missions and Consular relations. Diplomatic missions are by definition where the sending State’s Ambassador aka “chief of mission” is located, usually in Tel Aviv.

      • mondonut
        mondonut
        October 3, 2018, 6:02 pm

        @Hostage, Diplomatic missions are by definition where the sending State’s Ambassador…

        First of all Diplomatic Missions are not exclusively defined as Embassies, all consular offices have the same status. Nothing in the Treaties you cite supports your self serving definition. The US is full of missions throughout the country in addition to embassies located in D.C.
        https://en.wikipedia.org/wiki/List_of_diplomatic_missions_in_Los_Angeles

        Secondly, as the existing Diplomatic Missions located in Jerusalem are not considered missions to Israel (rather missions to Jerusalem) they are not superseded by an Embassies in Tel Aviv or elsewhere. So even your skewed definition does not apply.

        And finally, yes there are separate Vienna Treaties but that is irrelevant – UNSC 478 did not request the removal of Embassies, it requested “Those States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City”. By this clear reading there should not be any missions in Jerusalem. Full Stop.

      • Hostage
        Hostage
        October 4, 2018, 10:55 am

        Mondonut: First of all Diplomatic Missions are not exclusively defined as Embassies, all consular offices have the same status. Nothing in the Treaties you cite supports your self serving definition.

        No, “consular officers” and “consular posts” in “Palestine” were never considered “diplomatic agents” or “diplomatic missions” to “Israel” by the UN or anyone else. If they were, then President Truman would deserve the credit for recognizing “Jerusalem, Israel”.

        FYI, I employed the meanings assigned to the terms and expressions in Article 1 of the respective Vienna treaties. Prior to 2018 the US State Department only operated a Consulate-General in Jerusalem, headed by the US Consul-General. The Consul-Generals were not appointed by the US Ambassador to Israel and were not part of the US diplomatic mission to Israel. The US Embassy in Israel was always located in Tel Aviv. That was done precisely because Jerusalem, in a dejure sense, was considered to be a part of ‘Palestine,’ which hadn’t been incorporated in any of the successor states. The US government stopped using “Jerusalem, Palestine” on Consular credentials, letterhead, birth certificates, and passports in the late 1960s because the Israeli government refused to accept any such documents. But it still employed the expression and nation of origin in our domestic immigration statutes, records, and reports.

        The Vienna Treaty on Diplomatic Relations defines and employs the terms “diplomatic mission,” “chief of mission,” and etc. The treaty defines diplomatic functions and explains that diplomatic missions may also perform consular functions.

        The Treaty on Consular Relations defines the terms “consular post,” “consular district,” “consular officer,” and “head of consular post.” The treaty defines consular functions and explains that permission to establish diplomatic relations ordinarily constitutes permission to establish consular posts, unless otherwise stated.

        It explains that diplomatic missions can perform consular functions, but stipulates that suspension of diplomatic relations does not ipso facto constitute suspension of consular relations. For that and many other reasons, “Consular premises, “Consular officers” and “Consular staff” are not ipso facto considered to be “diplomatic agents” or “diplomatic missions”.

  4. Carlo
    Carlo
    October 2, 2018, 1:27 pm

    @ mondonut

    For your information, the State of Israel is a signatory to the Fourth Geneva Convention.

    Among other things, the Convention states in article 49:

    “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

    The presence of Israel’s 600,000 or so settlers or squatters in the OT is therefore in violation of this international instrument.

    • mondonut
      mondonut
      October 2, 2018, 3:37 pm

      @Carlo.

      Debatable of course but also off topic (naturally). The complaint is based on the Vienna Convention on Diplomatic Relations.

      • Mooser
        Mooser
        October 2, 2018, 8:41 pm

        “Debatable of course…”

        You tell ’em, “mondonut! After all, those 600,000 settlers weren’t “deported” or “transferred” to occupied territory, they went on their own, with considerable financial inducement and governmental protection!

      • Hostage
        Hostage
        October 3, 2018, 5:59 am

        Mondonut: Debatable of course but also off topic (naturally). The complaint is based on the Vienna Convention on Diplomatic Relations.

        Unfortunately for you, it’s trivially easy to base a dispute on the provisions of that treaty. That’s because it reflects the same general rules of customary international law as the Geneva Convention and the UN Charter with respect to the illegality and non-recognition of the acquisition of territory through either the threat or use of force. It also stipulates that the premises of diplomatic missions must be located in the territory of the receiving state.

      • mondonut
        mondonut
        October 3, 2018, 1:31 pm

        @Hostage. stipulates that the premises of diplomatic missions …

        No, it does not. I included the operative section above but here it is again for you. It does not state what you claim. It says nothing of where the premises are to be located, it speaks to the functions of the mission.

        1.The functions of a diplomatic mission consist, inter alia, in:
        (a) Representing the sending State in the receiving State;

        And once again proving my point by inventing what does not exist.

      • Hostage
        Hostage
        October 4, 2018, 2:15 pm

        Mondonut: @Hostage. stipulates that the premises of diplomatic missions …

        No, it does not. I included the operative section above but here it is again for you. It does not state what you claim. It says nothing of where the premises are to be located, it speaks to the functions of the mission.

        The operative paragraph of the Vienna Convention on Diplomatic Relations actually does stipulate that the mission premises must be located on the territory of the receiving State:

        Article 21
        1 . The receiving State shall either facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way. http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf

        Under the terms of Article 31 and 53 of the Convention on the Law of Treaties that provision cannot be interpreted in good faith as permitting the acquisition of premises for a diplomatic mission on territory that has been annexed in violation of a peremptory norm of international law.

        I’ve already explained that in accordance with Article 25 of the UN Charter every UN member state has agreed in advance to accept and carry out the decisions of the Security Council. That includes the decisions contained in resolution 478. The Security Council decided not to recognize the annexation of territory under Israel’s Basic Law Jerusalem. It declared the law null and void because it violated a peremptory norm of international law regarding the acquisition of territory by threat or use of force. The Security Council also explicitly called on all member states to accept that decision and remove their diplomatic missions from Jerusalem.

        Article 103 of the UN Charter stipulates that in the event of a conflict between the obligations of the Members of the United Nations under the Charter and their obligations under another treaty (such as the Convention on Diplomatic Relations) their obligations under the UN Charter shall prevail. That means, for now, both the sending and receiving state have an obligation to locate the premises of their diplomatic missions to Israel on legally acquired territory outside the city of Jerusalem.

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