Implications for ICC? SCOTUS Jerusalem Decision shows Limits of Israel Lobbies

By Juan Cole | (Informed Comment) | – –

It has been the position of the US presidents for decades that the status of Jerusalem in international law is unsettled. That is why the US embassy is in Tel Aviv, and why US passports showing the place of birth as Jerusalem just list the name of the city without indicating a country. The Supreme Court on Monday upheld the president’s right to make this determination, in a 6-3 decision. Justice Kennedy, writing for the majority, found that Congress was not given by the constitution any role in recognizing other countries (or parts of other countries), and that in contrast the constitution gives the president this prerogative.

The issue began with a 2002 law passed by Congress instructing the executive to let Americans born in Jerusalem list Israel as their birthplace. The State Department refused to comply, denying Menachem Zivotofsky a passport that listed his birthplace as Jerusalem, Israel. His family sued under the 2002 law. The Supreme Court just struck down that law as unconstitutional.

No one is bringing up that a lot of Palestinian-Americans born in Jerusalem would like their passports to read “Jerusalem, Palestine”.

The law was pushed by the American Israel Public Affairs Committee, a powerful umbrella group for thousands of pro-Israel lobbies. These lobbies in turn play a major role in funding political campaigns, so that AIPAC has gained outsized influence on Congress. Jewish-Americans are less than two percent of the population, but those who strenuously support Israel on a “my country right or wrong” basis can usually get their way on congressional votes. They are aided, often, by evangelical Christians and also by old-time liberals who grew up before Israel entered its current Apartheid phase. Prominent right-Zionist congressional representatives have attempted to use Congress to push the US to recognize Israeli sovereignty over Jerusalem.

The Israel lobbies have never been as strong with regard to the presidency or the courts as they are with regard to Congress, however. The Supreme Court decision showed the limits of their power. The reason this point is important is that the Israeli occupation of Palestine is increasingly being litigated not in national legislatures, where a lobby can sway votes, but in courtrooms. If the occupation and its Apartheid policies ever go to the International Criminal Court, the ICC will certainly rule against Israel. It already has, in a 2004 advisory opinion. Since the ICC is respected by signatories of the 2002 Rome Statue, in turn, that bodies ruling would be widely influential, including in Europe.

SCOTUS just showed what happens to such political campaigns for support of colonialism when they go to a court in a country with a rule of law.

The United Nations General Assembly in 1947 put forward a partition plan for the British Mandate of Palestine, giving the one-third of the population that was Jewish far more of the territory than the 6% it actually owned. The UN Security Council never signed off on the plan, so its status in international law is unclear. It was in any case overtaken by the 1948 war in which Israel took even more territory and consolidated borders far beyond what the General Assembly stipulated. But the UNGA envisaged that Jerusalem would be an international city not dominated by either Israelis or Palestinians.

In 1967 Israel unilaterally overturned the UN partition plan entirely, grabbing the Gaza Strip, the West Bank and Jerusalem and thereafter settling them and integrating them into Israel, while keeping millions of subject Palestinians stateless and without rights.

The rest of the world sees the status of Jerusalem as unsettled and as something that will be determined by final status peace talks between Israel and the Palestinians. In the meantime, Israel has illegally annexed all of Jerusalem, surrounded it with squatter settlments built on stolen Palestinian land, and found pretexts for expelling large numbers of Palestinians from their homes in East Jerusalem. The UN Security Council passed several resolutions on Jerusalem roundly condemning Israeli annexation. It should be remembered that one of the justifications given by the Neocons for attacking Iraq was that it had ignored UNSC resolutions. UNSC on Jerusalem:

” ‘ Adopted by the Security Council at its 2245th meeting, on 20 August 1980 (14-0, US abstention)

The Security Council,

Recalling its resolution 476 (1980),

Reaffirming again that the acquisition of territory by force is inadmissible,

Deeply concerned over the enactment of a “basic law” in the Israeli Knesset proclaiming a change in the character and status of the Holy City of Jerusalem, with its implications for peace and security,

Noting that Israel has not complied with resolution 476 (1980),

Reaffirming its determination to examine practical ways and means, in accordance with the relevant provisions of the Charter of the United Nations, to secure the full implementation of its resolution 476 (1980), in the event of non-compliance by Israel,

1. Censures in the strongest terms the enactment by Israel of the “basic law” on Jerusalem and the refusal to comply with relevant Security Council resolutions;

2. Affirms that the enactment of the “basic law” by Israel constitutes a violation of international law and does not affect the continued application of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, in the Palestinian and other Arab territories occupied since June 1967, including Jerusalem;

3. Determines that all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the recent “basic law” on Jerusalem, are null and void and must be rescinded forthwith;

4. Affirms also that this action constitutes a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;

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;

6. Requests the Secretary-General to report to the Security Council on the implementation of the present resolution before 15 November 1980;

7. Decides to remain seized of this serious situation.’ ”

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Related video:

Newsy: “Supreme Court Rules Jerusalem Passport Law Unconstitutional”

9 Responses

  1. Juan: ….”the ICC will certainly rule against Israel. It already has, in a 2004 advisory opinion.”

    You need to rewrite that line.

    The 2004 Advisory Opinion was by the International Court of Justice, which is a completely different court to the International Criminal Court.

    But the core of your comment is, of course, quite correct: if the Israeli colonial enterprise ever get to the ICC then Netanyahu will be found guilty of a grave war crime, as will every single Israeli “leader” who votes to approve “settlement construction”.

  2. Juan: ” The UN Security Council never signed off on the plan, so its status in international law is unclear.”

    The UNSC didn’t need to “sign off” on the Partition Plan, precisely because the UN Charter gave authority for (ex) League of Nations Mandates to the UN General Assembly.

    Article 85 of the Charter, in fact.

    So the legal status of UNGA 181 is clear-cut: so long as the Mandatory Power (and the UK was still the Mandatory in 1947) agreed to that Partition Plan then it was 100% legal and 100% legally-binding on all parties.

    Juan: ” It was in any case overtaken by the 1948 war”….

    OK, *that’s* when the UN Security Council should have stepped in, because *that* was the “threat to the peace” that UNGA 181 predicted could occur and which – obviously – only the UNSC had the power under the Charter to do anything about.

    But note that regardless of whether (or not) the UNSC stepped in to stop that fighting the fighting itself could not change the LEGAL status of the territory, precisely because you can’t LEGALLY acquire territory by war.

    The Biff! and the Bash! and the Kerpow!!!! can change the “facts on the ground”, sure, but that doesn’t change the underlying legal status – any more than a punch-up at the reading of a will changes Who Gets What Out Of The Old Man’s Estate.

    In the latter case it simply doesn’t matter who ends up in a head-lock, or who takes off with all the goodies; the will still stands as the only LEGAL way of apportioning the assets to the various beneficiaries, and everything else is simply…. theft.

    Nothing more, just….. theft.

    The same was true of the 1948 war: the only LEGAL apportionment of the territory was that defined in the Partition Plan, and everything else was just…. the acquisition of territory by war.

    Theft, in a word.

    • “the legal status of UNGA 181 is clear-cut”
      as observed by unscop minority report: “a study of chapter xii of the united nations charter leaves no room for doubt that unless and until the mandatory power negotiates a trusteeship agreement in accordance with article 79 and presents it to the general assembly for approval, neither the general assembly nor any other organ of the united nations is competent to entertain, still less to recommend or enforce, any solution with regard to a mandated territory.” this britain did not do. see para 1 of art 80.

      • Oh, I quite agree that the UN General Assembly ALONE did not possess the authority to partition a Mandated Territory.

        But someone certainly did. It’s name was “the Mandatory Power”.

        You might want to read the first sentence of UNGAR 181….

        The UK was still the Mandatory Power in 1947, and there is not doubt whatsoever that a Mandatory had the legal power to partition a Mandated Territory into two successor states (Exhibit A: Lebanon/Syria. Exhibit B: Transjordan/Palestine).

        UNSCOP was created *at* *the* *request* of the Mandatory Power, and the UNGA met *at* *the* *request* of the Mandatory Power to vote its “consent” to that Plan of Partition.

        The reason why is not difficult to find, and you’ll find it in Article 25 of the Mandate for Palestine.

        ag: “this britain did not do. see para 1 of art 80.”

        Indeed, and you haven’t thought through *why* the Mandatory did not follow that route.

        The answer is staring you in the face i.e. Article 80 of the UN Charter, which would have preserved the “Balfour Declaration” were the Mandate for Palestine to be transferred into a UN Trusteeship.

        Britain did not want that to happen i.e. it wanted to partition this territory into TWO states, and it didn’t want the Jewish Agency to have any claim to any part of that “Arab state”, only to that “Jewish state”.

        So no Trusteeship, but in order to partition this Mandated territory the Mandatory needed the “consent” of the UN GA, precisely because Article 25 of Mandate demanded it.

        The Mandatory requested that consent, and I can even tell you the margin of victory: 33 for, 12 against.

        But once the Mandatory had that “consent” then it’s decision to agree to the Partition of this territory into two successor states was perfectly legal and quite legally-binding.

        Pointing to the UNGA or to the UN Charter is simply to point in the wrong direction – the legal authority to partition a Mandated Territory always lay with.. the Mandatory Power.

        Witness Lebanon/Syria.
        Witness Transjordan/Palestine.

        You are simply barking up the wrong tree, ag.

  3. No lobby has sway in the big court…one day a republican pous will move the Capitol business to Jerusalem …especially if a certain casino owner has clout…you might notice the court Jews voted against the case….I guess they could be described as court Jews in this case…

  4. International law does not countenance a fifty-year occupation of conquered territory. Settling the issue will bring literally BILLIONS to the parties…I know, easier said than done. Both parties should stop listening to the bearded fundamentalists on either side of the partition.

  5. Who cares what SCOTUS rules. The US barely tolerates the UN and certainly ignores it when it is convenient which appears to be most of the time. The rest of the world understands the US is a declining power and it’s time is just about up.

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