Is ‘East Jerusalem’ Palestinian territory?

Who cares if the PLO is making two contradictory claims in two international courts? Outrageously, nobody
Worshipers wave a Palestinian flag and flash the victory gesture in front of the Dome of the Rock on the Temple Mount on July 27, 2017. (AFP Photo/Ahmad Gharabli)
Worshipers wave a Palestinian flag and flash the victory gesture in front of the Dome of the Rock on the Temple Mount on July 27, 2017. (AFP Photo/Ahmad Gharabli)

What country has legal sovereignty over Jerusalem?

Israel’s answer is straightforward and well-grounded in international law: the state of Israel.

The Palestine Liberation Organization’s (PLO) answer is confused and contemptuous of international law. In separate filings this past year with the big two international courts in the Hague—the International Court of Justice (ICJ) and the International Criminal Court (ICC)—the PLO has given contradictory answers. In the ICJ, the PLO claims that Jerusalem is an internationalized area called a “corpus separatum” over which no state can legally claim sovereignty. In the ICC, the PLO claims that just over half of Jerusalem (the part it calls “East Jerusalem”) is sovereign territory of what it calls the state of Palestine. Neither claim is meritorious. And more importantly, it’s impossible for both claims to be true simultaneously.

The PLO’s claim in the ICJ emerged in a lawsuit against the United States, in which the PLO claims that the US violated the Vienna Convention on Diplomatic Relations by locating its embassy within Israel’s capital city, Jerusalem. The PLO’s legal theory is convoluted. The PLO first claims (incorrectly) that it has the right to sue in the ICJ as a “state,” and, second, (incorrectly) that every state can invoke the court’s jurisdiction when an embassy is located in the wrong place. The PLO then claims (incorrectly) that the Vienna Convention only permits embassies to be located within the territory of the “receiving state,” and (incorrectly) that none of Jerusalem is territory of the “receiving state” because all of Jerusalem is a “corpus separatum”—an internationalized territory to which no state can claim sovereignty. The ground on which the PLO claims this unique status for Jerusalem is unclear but appears to be a mistaken belief that failed UN General Assembly peace proposals of 1947 and 1949 altered the law of territorial sovereignty.

In the ICC, the PLO, again calling itself the “State of Palestine,” has asked the Office of the Prosecutor to investigate and eventually to file criminal charges against leading Israelis for alleged crimes committed on what the PLO calls the “Occupied Palestinian Territories”—the West Bank, the Gaza Strip, and “East Jerusalem” (the part of Jerusalem that was occupied by Jordan from 1948-1967). The Office of the Prosecutor has bowed to the PLO demand by pretending it is a state and carrying out a preliminary examination against alleged Israeli crimes. The exact charges are murky since the Prosecutor refuses to explain her legal theory or to release secret Palestinian communications to the court. For its part, the PLO has not publicly articulated a theory of how this “state of Palestine” acquired territorial sovereignty over “East Jerusalem.” But what is clear is that the Prosecutor, in cooperation with the PLO, is working up accusations of alleged Israeli crimes in fighting Palestinian terrorist groups (the Prosecutor, of course, refuses to use the word terrorist with respect to any Palestinian), as well as supposed Israeli crimes in allowing Jews to live in lands the Palestinians claim should be Jew-free, or, as the Prosecutor puts it, the “settlement of civilians onto the territory of the West Bank, including East Jerusalem.” The Prosecutor appears not to have had the time or inclination to explore numerous real, documented and unpunished Palestinian war crimes and crimes against humanity.

It is an unfortunate commentary on the politicization of both courts that meritless PLO claims have gone as far as they have in the ICJ and ICC. In 2011, Mahmoud Abbas, president of the Palestine Liberation Organization and its alter ego Palestinian Authority, announced on the pages of the New York Times a plan to pursue recognition of a Palestinian state as part of a strategy of “internationalization of the conflict as a legal matter.” Since then, the PLO, calling itself the “State of Palestine,” has ginned up legal proceedings in legal fora suspected of sharing its bias against the Jewish state. The ICC and ICJ bring disrepute upon themselves by allowing themselves to be used as weapons by the PLO in its conflict against Israel.

But it is far more damning that international legal observers have remained silent about the irreconcilable contradiction between the PLO’s arguments to the two courts.

The PLO’s claim that all of Jerusalem is a “corpus separatum” is central to its ICJ case. If the PLO were to concede the legal possibility that a state like Israel could claim sovereignty over at least part of Jerusalem, it could no longer deny the legitimacy of locating embassies in Jerusalem, or of countries like Australia and Russia recognizing “West Jerusalem” as Israel’s capital. The PLO would, at best, have to argue about the embassy’s location within Jerusalem—a concession the PLO is unwilling to make.

Likewise, the PLO’s claim to a “state of Palestine’s” sovereignty in “East Jerusalem” is central to its ICC case. The ICC is not a court of unlimited jurisdiction. It can only consider cases concerning conduct within the territory of states that have accepted the court’s jurisdiction. If “East Jerusalem” is part of a corpus separatum, it is not territory of a “state of Palestine,” and the ICC lacks jurisdiction to investigate or prosecute any alleged crimes committed there—a concession the PLO is unwilling to make when it seeks to criminalize Jewish residents of “East Jerusalem” as “illegal settlers.”

It is simply not possible for all of Jerusalem to be a corpus separatum subject to no territorial sovereignty, and at the same time for more than half of Jerusalem to be sovereign territory of a state called Palestine.

Logic, it seems, is not the currency of a successful legal strategy in international courts. The politicized ICJ may bow to Palestinian demands to call Jerusalem a “corpus separatum” even as the politicized ICC bows to Palestinian demands to recognize “East Jerusalem” as “occupied Palestinian territory.” Experience teaches that Palestinian claims need not persuade or even be logically consistent to succeed, as long as they aim at disadvantaging Israel. The tragedy is that the ICC and ICJ are now joining hands in helping the PLO make a mockery of international law.

About the Author
The author is a professor at Bar Ilan University’s Faculty of Law and the University of San Diego Law School, a senior fellow at the Kohelet Policy Forum, and recently a visiting fellow at the Project on the Foundations of Private Law at Harvard Law School.
Related Topics
Related Posts