How President Trump’s recognition of Jerusalem could affect the International Criminal Court’s Preliminary Examination into the Situation in Palestine

Like President Donald J. Trump and Prime Minister Benjamin Netanyahu of Israel at the United Nations General Assembly (
Sunday, March 4, 2018 - 14:10

By Haydee Dijkstal

On 6 December 2017, US President Donald Trump announced the US Government would officially recognize that “Jerusalem is Israel's capital. This is nothing more, or less, than a recognition of reality” [and] … “I am also directing the State Department to begin preparation to move the American embassy from Tel Aviv to Jerusalem.” On 22 January 2018, the US’s new policy and recognition was reiterated when Vice President Mike Pence stated during a speech to the Israeli Knesset that the US Embassy would be moved to Jerusalem by the end of 2019; a timeline more advanced from that which President Trump had previously indicated.

The Trump administration’s announcement was met with widespread criticism throughout the world and caused protests in the region. Hamas leader Ismail Haniyeh called for a ‘day of rage’ to protest the US’s position and an “intifada of freedom of Jerusalem”. Notably, the UN General Assembly voted 128-9 to pass a resolution which expressed “deep regret” and “[a]ffirm[ed] that any decisions and actions which purport to have altered, the character, status or demographic composition of the Holy City of Jerusalem have no legal effect, are null and void and must be rescinded” while also calling on “all States to refrain from the establishment of diplomatic missions in the Holy City of Jerusalem."

How this might affect the ICC

Beyond this international condemnation, and the political and diplomatic consequences it will undoubtedly cause, it is worth examining how the announcement might affect the work of the International Criminal Court in addressing international crimes committed during the conflict between Israel and Palestine.

The ICC Office of the Prosecutor (OTP) opened a Preliminary Examination into the situation concerning the conflict between Palestine and Israel on 16 January 2015.  This came after the Government of Palestine submitted an Article 12(3) declaration to the ICC on 1 January 2015 which gave the Court jurisdiction over alleged crimes under the Rome Statute committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” The next day, on 2 January 2015, the Government of Palestine fully accepted the jurisdiction of the Court by becoming a State Party to the Rome Statute.

One aspect of the OTP’s work during a Preliminary Examination requires a thorough factual and legal assessment of the crimes allegedly committed, and therefore requires the application of a specific legal regime to the facts before it.  However, the OTP has reported that the specific legal regime to be applied to the Preliminary Examination’s analysis is in dispute with the status of Jerusalem and other Palestinian territories critically affecting what legal regime will be applied.

To explain, the Prosecution notes that international organizations and judicial bodies, including the International Court of Justice in the 2004 Israeli Wall Advisory Opinion and the UN Security Council in Resolution 2334, take the position that the West Bank including East Jerusalem has the status of being occupied by Israel since 1967.  Therefore, any alleged crimes committed in East Jerusalem are considered to have taken place on occupied territory.  However, Israel considers East Jerusalem to be an integral part of its capital, and has maintained that this area is not occupied territory but instead ‘disputed territory.’

The designation of Jerusalem’s status as an occupied territory versus a disputed territory has significant implications for the applicable law which will be applied.  Because Israel maintains that Jerusalem is not an occupied territory but an integral part of the State of Israel or a disputed territory, it takes the position that de jure application of the Fourth Geneva Convention (which applies to “all cases of partial or total occupation of the territory of a High Contracting Party”) does not apply to the territory, but that instead ‘humanitarian provisions de facto’ must be applied.  In particular, Israel rejects the de jure application of the Fourth Geneva Convention to events occurring on the West Bank, in Gaza and in East Jerusalem.   However, because Jerusalem and other Palestinian territories have been recognized internationally as “occupied territories”, the position is held by entities such as the International Court of Justice, the Security Council and the General Assembly (as recently as December 2017) that the Fourth Geneva Convention applies de jure to all actions taken on these territories.

Israeli settlement activity

The OTP has reported that among the potential crimes it is examining as part of its Preliminary Examination, it is currently analyzing evidence received of potential crimes committed in East Jerusalem; particularly in regards to Israel’s settlement activities and the forced removal of Palestinians from their homes.

Application of the provisions of the Fourth Geneva Convention means that Israel’s settlement activities may be held against Article 53 of the Convention, which prohibits “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons … except where such destruction is rendered absolutely necessary by military operations.”  Importantly, Article 147 of the Convention, which holds “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” to be a grave breach, would also apply to Israel’s settlement activities.  A violation of Article 147 falls under Article 8(2)(a)(iv) of the Rome Statute as a grave breach of the Geneva Conventions, and constitutes a war crime under the jurisdiction of the ICC.  The application of the Fourth Geneva Convention and these provisions are therefore key to the OTP’s analysis of whether Israeli settlement activities constitute a war crime.

The Trump administration’s recognition of Jerusalem (including East Jerusalem) as the capital of Israel, supports Israel’s assertion that Jerusalem is not an occupied territory, but an integral part of Israel.  It therefore also backs Israel’s arguments against application of the Geneva Conventions to alleged crimes; particularly in regards to whether Articles 53 and 147 will be used to analyze Israel’s settlement activities and determine if they constitute a grave breach which triggers Article 8 of the Rome Statute on war crimes.  With an even more divided and competing narrative of the applicable legal regime, the difficulty of the ICC’s decision on the applicable law to apply increases.  

In addition to the confusion on the applicable legal regime, the Trump administration’s new position creates the potential for the legal status of Jerusalem to be officially changed at the same time Israel’s settlement activities move forward.  It is a step that would definitively shape the legal analysis of the Preliminary Examination both in the present and future.

It has been argued that upon dissolution of the League of Nations, its mandate to oversee the disposal and legal title of Jerusalem transferred to the United Nations to continue this administration over disputed territories “until other arrangements have been agreed between the United Nations and the respective mandatory Powers. This means that to this day no final settlement of the status of Jerusalem could be reached without the approval and endorsement of the United Nations.  

As a result, after the Knesset passed a ‘Basic Law’ recognising the whole of Jerusalem as Israel’s capital city, the General Assembly and Security Council took steps to declare the actions “invalid”, “null and void” and called on Israel to “rescind all measures already taken and to desist forthwith from taking any action which would alter the status of Jerusalem.”  As recently as December 2017, the General Assembly passed resolution 72/240 which called on Israel “to comply strictly with its obligations under international law, including international humanitarian law, and to cease immediately and completely all policies and measures aimed at the alteration of the character and status of the Occupied Palestinian Territory, including East Jerusalem.”

The Trump administration’s action may also be contrary to the obligation of non-recognition of an unlawful situation.  In the case of Jerusalem, the obligation of non-recognition regards steps towards the annexation of Jerusalem into the State of Israel without the involvement or approval of the United Nations for this change of status.  As noted by the ICJ Advisory Opinion concerning the Wall, the purpose of the obligation of non-recognition articulated in the ILC’s Articles on the ‘Responsibility of States for Internationally Wrongful Acts’ is to prevent an unlawful situation from being recognized de facto or becoming a “fait accompli” through endorsement by States.  The US’s recognition of Jerusalem as Israel’s capital may work towards creating international validation for the steps Israel took to annex Jerusalem into the State of Israel and could eventually settle as a fait accompli on the legal status of Jerusalem as part of Israel. Such consensus and approval as to the changed legal status of Jerusalem would result in the inapplicability of the Fourth Geneva Convention for future settlement activities by Israel moving forward.

Therefore, the US’s recognition of Jerusalem as the capital of Israel has a potential impact which reaches as far as the outcome of the ICC’s Preliminary Examination into crimes alleged, and potentially on any crimes that may be reported in the future.

As a final observation, although the Government of Palestine has provided the ICC with jurisdiction over potential crimes committed, it is notable that while information and evidence have been submitted to the OTP of potential crimes, the Government has taken no steps to submit an official referral to the OTP under Article 14 for the purpose of “requesting the Prosecutor to investigate the situation.”

This position means that should the OTP make a decision on whether or not to open an official investigation – a decision which may potentially close the current Preliminary Examination – the Government of Palestine would have no recourse under Article 53(3)(a) to ask the Pre-Trial Chamber to review the decision of the Prosecutor.  Should the Government of Palestine wish to have the judges review the rationale of the Prosecution’s decision, particularly if the legal regime applied had an effect on this decision, it could not do so because Article 53(3)(a) only allows such a request from a “State making a referral under article 14.”  Therefore, the Government of Palestine’s level of involvement in this process may affect its ability to challenge the potential impact the Trump administration’s position has on the legal analysis of the current and ongoing Preliminary Examination.

Photo: White House/Flickr 

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