Saturday, August 13, 2022 -
Print Edition

Palestine v. the United States of America in the International Court of Justice

Palestine” is suing the United States in the International Court of Justice. The case is “Palestine v. United States of America.”

A lawsuit is an adversarial proceeding. Friends do not sue each other. “Palestine”  considers the United States an adversary, not a friend. This is the same Palestine that is happy to take hundreds of millions of dollars from the United States of America in foreign aid.

What is the crime of the United States that merits this adversarial position by “Palestine”? It is America’s relocation of its embassy to Israel from Tel Aviv to Jerusalem.

According to Palestine, Israel does not have the right to determine the location of its own capital. Nor, according to Palestine, does the US Congress have the right to mandate the location of the US embassy in Israel’s capital.

The relationship between Palestine and the US is, according to one characterization of the Palestinian lawsuit, “precarious.” The precariousness of the relationship pertains not only to Palestinians living in the West Bank and Israel, but to Palestinians living in Israel — i.e., to Israeli citizens. “Palestine” presumes the right to speak for citizens of another country, and presumes that the conditions of their existence are equal to the conditions of the residents of the West Bank and Gaza.

In the West Bank and Gaza, the residents live under dictatorships. The West Bank dictator is a man, yes, duly elected to office —in 2005. He’s now in the 17th year of his four-year term. This is a dictatorship, not a democracy. The Hamas dictators in Gaza do not even mask their dictatorship under the guise of democracy. 

Israeli Arabs, unlike Arabs in the West Bank and Gaza dictatorships, live in a democracy. Their parties serve in the Israeli Knesset, with the same rights as the Jewish parties. 

But according to the lawsuit filed by “Palestine” against the US, the relationship between all people living in Israel, Gaza and the West Bank is “precarious” — all people, including the Jews living in Israel. Their relationship with the US is also “precarious.” It is characterized as a “political and legal struggle.” The Jews in Israel are in a “precarious” relationship with the US! They are in a “legal and political struggle” with the US!

This is gives you an idea of the fantasy in which “Palestine” lives. No surprise here, given that there is no state of Palestine. No matter, the International Court of Justice will take the case. Which gives you an idea of the fantasy world of this court.

Palestine’s lawsuit demands that the International Court of Justice resolve its dispute — note, again, the presumption of the existence of a state of Palestine which can be a party to a legal dispute, and, to boot, a dispute with a country, the US, that did not know it had a legal dispute with this fantasy state of Palestine. “Palestine” demands the resolution of this “dispute” by finding that America’s relocation of its embassy from Tel Aviv to Jerusalem breached the Vienna Convention of Diplomatic Relations.

At least in part as a consequence of this legal charade, the US does not recognize the International Court of Justice.

Still, since Palestine filed its suit against the US before the US withdrew from “the Optional Protocol,” which, we admit, we do not understand, perhaps it is unclear whether the withdrawal will have any effect on the case. The fertile imaginings of Walter Mitty could not have devised a better talking-to-yourself scenario.

Lo and behold. It is not only Presidents Clinton, Bush, Obama and Trump that Palestine’s case butts up against. It is also President Biden.

It was in Clinton’s presidency that Congress recognized Jerusalem as the capital of Israel and called for the relocation of the American embassy from Tel Aviv to Jerusalem by 1999. It was in the presidencies of Bush and Obama that Congress sustained that recognition, but postponed at regular six-month intervals the actual relocation of the American embassy to Israel’s capital. It was in the Trump presidency that the US did relocate its embassy to Israel’s capital. And now, “Palestine v. United States of America” must contend with President Biden, who has indicated that the US embassy to Israel will remain in Israel’s capital, Jerusalem.

That’s a lot of presidents for “Palestine” to contend with! 

Still, not so much with President Biden. He wanted to reopen the US Consulate General for the Palestinians in Jerusalem, despite the fact that its convenience was obviated when the US embassy was moved to Jerusalem (Palestinians are served there the same as anyone else). A country may not open a consulate in a host country without that country’s permission, and Israel rightly refused to allow the reopening of the US Consulate in Jerusalem solely for the Palestinians. Israelrightly saw Biden’s request to do so as a derogation of Israel’s sovereignty over Jerusalem and of Israel’s right to designate its own capital.

Now Biden has shifted strategy. He wants to institute a separate desk for Palestinian affairs within the US embassy in Jerusalem. It’s a distinction without a differences. It’s the same derogation of Israeli sovereignty over its own capital.

But forget that —“Palestine” has taken the US to court! Palestine is suing the United States of America! Palestine regards the US as an enemy. Is “Palestine,” the plaintiff, a political entity whose welfare the US should be bending over backwards to accommodate? Should Palestine receive massive American aid? What is going on here?

This lawsuit is not some hidden, minor, obscure, out-of-the-way, insignificant development. 

Check out the American Journal of International Law. It published an article, “Palestine Brings a Case Against the United States in the International Court of Justice at a Fraught Time for U.S.-Palestinian Relations.” 

Check out the Oxford Human Rights Hub. It had a piece, “State of Palestine takes United States to International Court of Justice over Jerusalem Embassy.” 

Check out a piece in the University of Bologna Law Review, “The Relocation of the U.S. Embassy from to Aviv to Jerusalem (Palestine v. United States of America): A Commentary on the Merits of the Case, Jurisdiction of the International Court of Justice and Admissibility of Palestine’s Application.”

This is just how the anti-Israel engine revs up. Make a claim — doesn’t matter how outrageous. Spread it around in respectable circlesdoesn’t matter what they say. The discussion takes hold. The issue becomes legitimate. Suddenly there are two sides. There is a debate. Suddenly it’s complicated. Suddenly — a new basis to oppose Israel. 

Congress: Before you vote on aid to Palestinians, take note. Ask yourself: When the last time Israel sued the United States of America? Ask yourself: Who is the true friend and ally of the US?




Leave a Reply