Aharon Gottlieb
Don't lose sight of the bigger picture.

No French territory in Israel

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The Fifth World Holocaust Forum held in Jerusalem this week did not come to pass without a level of uneasiness. It is true that certain news outlets seized the moment to spoil the occasion, with special mention to the shabbiness of the BBC and the ARD, but most of the media generally failed audiences for sloppy reporting.

Sarcastic language of the best quality was used to describe French President Emmanuel Macron’s uncalled for altercation with the security personnel assigned by Israel to protect him with their own lives and paid for by the Israeli taxpayer. Words of the most appropriate type, ranging from “hissy fit” to “throwing a tantrum” were used to portray Macron’s appalling behavior. However, the accuracy of journalism ended there.

What was seen in the news – and repeated by people in general – is that Macron decided to throw toys from the pram because he was at the Church of St. Anne, which, the media said, is considered French territory in Jerusalem (allowing Macron as a supposed host to be rude and ungrateful to his alleged guests, namely actual ShinBet security personnel).

Not only nothing similar to this notion exists under international law, but also its lack of commonsense altogether is blatant. Nevertheless, this was reported over and over by the media to such an extent that many people bought the idea.

For this reason, it has become fundamental to clarify that there is no such thing as a French territory in Jerusalem – or anywhere in Israel. Accordingly, France has no jurisdiction or power over, or title to, the Church of St. Anne.

In order to reach their extraordinarily wrong conclusion, the media drew on other concepts of international law that are equally misinterpreted. In this case, their choice was the status of the premises of diplomatic missions (embassies) and consular premises (consulates), including astonishingly incorrect references to the international treaties that regulate both matters (Vienna Convention on Diplomatic Relations and Vienna Convention on Consular Relations).

There is indeed a popular belief that an embassy or consulate is the territory of a foreign state (called sending state in legal jargon). This is akin to urban legend, it does not hold any truth, including where the foreign state actually buys the land in which the embassy or consulate is located, as opposed to leasing it. Both in case of a purchase and a lease, the property is still solely subject to the laws of the country in which it is located, i.e., the receiving state. As such, it is not unexpected that a receiving state may expel any member of any diplomatic or consular staff (which is done by means of a declaration of persona non grata that does not have to be reasoned and if the sending state does not remove the relevant person, the receiving state is entitled to disregard their diplomatic or consular status).

What international law contemplates is essentially different from the idea of foreign jurisdiction or any form of extraterritoriality. The two Vienna Conventions establish a considerable (but not absolute) level of inviolability of diplomatic and consular premises. In case of a consulate, for example, entry of the authorities of the receiving state only require the authorization of the head of the consulate in areas of actual work of the “consular post”. No consent is required in certain circumstances, such as fire. In addition, both Vienna Conventions provide that the protection of the premises of the mission or consulate is a duty of the receiving state and not the foreign (sending) state. In and of itself this shows that the receiving state never waives jurisdiction over a location used by an embassy or a consulate and, therefore, these premises are not “the territory” or “like the territory” of the foreign country.

Also, in the case of a grave crime, consular officers are not inviolable if a court of competent jurisdiction (of the receiving country) so decides.

Considering the political circumstances of the 1960’s in Latin America, when both Vienna Conventions were drafted, an attempt was made to include a concept of diplomatic asylum. Diplomatic asylum is requested at an embassy or consulate, instead of a country’s port of entry (territorial asylum). The idea was largely rejected. If an embassy or consulate were the territory of a foreign country overseas, the opposite would have happened.

An acceptance of extraterritoriality was never the case though. In truth, the International Court of Justice (ICJ), of which all members of the United Nations are also member states, a court that holds prestige in general and is unrelated to the International Criminal Court (ICC), decided (Asylum case, Colombia -vs- Peru) that diplomatic asylum was not allowed because it “involves a derogation from the sovereignty of [the territorial] State. It [is not allowed because it] withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State”.

In the Julian Assange case, for example, his source of protection was the inviolability of the Ecuadorian embassy, not diplomatic asylum, because the UK does not recognize it and, in any event, Ecuador did not have jurisdiction or power to grant him asylum from the London-based diplomatic premises. No Ecuadorian territory in London was ever conceived of. In this matter, the UK was extremely careful. As a matter of fact, things could have gone rather sour because the premises of the Ecuadorian embassy were used in a manner that was incompatible with their functions, which is prohibited by the Vienna Convention.

This is the case of the premises of a diplomatic mission, where even a military attaché is present and there is constant work on intelligence. If one considers military bases overseas, the “privileges” of the sending state are quite limited; it is so often noted that the United States, for example, is not able to prosecute crimes, including homicide, occurring within its military installations abroad. What would be the case of a church that a country claims solely to manage? There are no grounds at all under international law to consider the Church of St. Anne even an inviolable site comparable to diplomatic or consular premises, let alone French territory. The Church of St. Anne is as accessible to any Israeli authority – in accordance with Israeli law – as any other church, mosque, synagogue or other type or denomination of temple located in Israel.

In conclusion, the media in general failed us all enormously this week. There is sufficient dispute in relation to the status of Jerusalem, we really do not need France now claiming a bit of our land as their territory or the media giving it away as if on a silver plate. France should already be happy with its overseas regions, such as Guadeloupe and Martinique, in particular while its president chitchats with Shoah denier and terrorism financier Abu Mazen, aka Mahmoud Abas.

About the Author
Aharon Gottlieb is a lawyer by profession, who has also learned Psychology. He has a special interest in the interwoven areas of national and international security, intelligence, defense and foreign policy. He writes about life in Israel and current events that are relevant to Israel and the Jewish people. In early 2018, Aharon immigrated to Israel, which has added further meaning to his life.
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