GAZA CITY, Gaza Strip — On Oct. 3, the United States said it was pulling out of the optional protocol of the Vienna Convention on Diplomatic Relations of 1961, which provides the International Court of Justice (ICJ) compulsory jurisdiction over disputes between state parties to international treaties and conventions.
US national security adviser John Bolton told reporters at the White House, “This is in connection with a case brought by the so-called state of Palestine naming the United States as a defendant, challenging our move of our embassy from Tel Aviv to Jerusalem.”
On Sept. 29, Palestinian Foreign Minister Riyad al-Maliki revealed that Palestine, as a non-member observer state at the United Nations and a party to the Vienna Convention, had filed a lawsuit with the ICJ in an attempt to obtain a judicial ruling obliging the United States to withdraw the decision to transfer its embassy to Jerusalem.
In an Oct. 4 statement, Maliki called the US withdrawal disrespectful to international law. “The US administration continues to support the Israeli colonial project relentlessly and [support] its hostility toward Palestine and the Palestinian people, at the expense of protecting the status of international standards,” Maliki said.
Article 36 of the ICJ statute stipulates, “The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: the interpretation of a treaty; any question of international law; the existence of any fact which, if established, would constitute a breach of an international obligation; and the nature or extent of the reparation to be made for the breach of an international obligation.”
From an international law perspective, East Jerusalem is considered occupied territory under numerous resolutions. The Palestinians argue that the United States breached international resolutions because it recognized unified Jerusalem as the capital of Israel and transferred its embassy there, to West Jerusalem. According to the ICJ, the Palestinians are basing their claims on the Vienna Convention's requirement that countries locate their embassies on the territory of the host state.
This is the first such lawsuit filed by Palestine before the ICJ since it signed the Vienna Convention in early April 2014, along with 15 other international treaties and agreements.
Maliki told Al-Monitor that Palestinian officials had sent a letter to the US State Department in early May, demanding that the embassy not be moved from Tel Aviv to Jerusalem because it represented a violation of Security Council resolutions on Jerusalem. The US administration failed to respond, so the Palestinians then sent a memorandum to US State Department on July 4, again laying out their position against the recognition of Jerusalem and the embassy move and notifying Washington of their intent to file suit at the ICJ. The Palestinians, being committed to the positions presented in the letter and memo, made their next move. “We had no choice but to bring an official lawsuit before the ICJ to prosecute the US,” Maliki noted.
Salah Abdul Ati, Gaza director of the Palestinian Center for Policy Research and Strategic Studies — Masarat, told Al-Monitor, “Although the US pulled out of the optional protocol, which directly shows that the US no longer recognizes the ICJ and its rulings, this withdrawal only goes into effect a year after the decision is taken. This means the [Palestinians] can still take the US to the ICJ.”
Mutaz Qafisha, a professor of international law at Hebron University, told Al-Monitor, “This lawsuit has major chances of success, but it all mainly depends on whether or not the court believes it is within its jurisdiction to try it.”
He further explained, “The ICJ may announce that it does not have jurisdiction regarding the Palestinian lawsuit, [finding for example] the lawsuit does not fall within the framework of legal disputes within the court’s jurisdiction or the case violates international obligations.” He finds this highly unlikely, however.
Qafisha added, “The important thing now is for the ICJ to accept the Palestinian lawsuit. The [Palestinians] will then have the chance to try the US internationally, especially since all the international conventions and resolutions on Jerusalem indicate that the US decision to transfer its embassy there is a violation.”
Hanna Issa, professor of international law at Al-Quds University in Abu Dis, told Al-Monitor, “If the ICJ decides that it is the competent authority to try the Palestinian case, it will immediately order the US to reserve its decision to move the US embassy to Jerusalem [i.e., suspend work there]. This will pave the way for both conflicting states to raise their written proceedings before the ICJ. The latter will then look into them within two to six months before issuing its final ruling.”
Issa explained that the ICJ could proceed with the lawsuit even if the United States refuses to cooperate. If the court rules in favor of the Palestinians, it will oblige the United States to withdraw the decision to transfer its embassy from Tel Aviv to Jerusalem. “If the US rejects the decision, the ICJ will ask the countries of the world and international organizations and bodies to stop dealing with the illegitimate embassy all together.”
Talal Okal, a political analyst and writer for the Palestinian daily Al-Ayyam, told Al-Monitor, “This Palestinian judicial procedure is a message to the US that the [Palestinians are] not subdued or broken by the suspension of US support for [the Palestinian Authority] in July 2018. After the US decided on the embassy transfer, the [Palestinian leadership] announced that it no longer considers the US a mediator in the peace process, prompting it to suspend support.”
He added, “This judicial procedure can be interpreted politically as Palestinian insistence on rejecting the US ‘deal of the century’ that began with the recognition of unified Jerusalem as the capital of Israel.”
Okal noted that the Palestinian’s suit aims to mobilize world public opinion against the United States to push countries not to deal with the US Embassy in Jerusalem. He believes that the US withdrawal from the optional protocol “clearly demonstrated that the US is practicing political bullying against the countries of the world for its disavowal of its obligations to international conventions, treaties and resolutions.”
Abdul Sattar Qassem, a professor of political science at An-Najah National University in Nablus, views the Palestinians' action against the US as “a strong response” to the transfer of embassy, but added, “Trump will be even angrier at the [Palestinians] because of this. He could take further punitive measures against the PA to worsen its fiscal deficit. He could ask Israel to enact more laws to deduct excessively from the clearing funds it collects as PA taxes.”