Jerusalem before the International Courts: Utopias 2020

[Nathaniel Berman is the Rahel Varnhagen Professor of International Affairs, Law, and Modern Culture at Brown University.]

The Land between the River and the Sea, the land that cannot even be named without provoking heated controversy, has once again moved to the forefront of international debate. There are many possible explanations for this upsurge: perhaps the “Trump Plan,” perhaps Israeli threats of annexation, perhaps international objections and Palestinian resistance to those proposals, perhaps internal Israeli and Palestinian political turmoil, and so on. But, as always in the periodic refocusing of international attention on The Land over the past seven or eight decades, the international legal imagination has remained remarkably stable, dwelling on the same small set of visions, barely a handful. The two cases concerning The Land now pending before international tribunals – the International Criminal Court [ICC] and the International Court of Justice [ICJ] – sharply illustrate this stasis.

In this essay, I focus on the legal status of Jerusalem as implicitly imagined in the legal arguments before these courts. I argue that these arguments gesture at four different “utopias” – perhaps utopian in the sense of an ideal future (at least in the eyes of their proponents), perhaps in the literal sense of utopia, a future possible “nowhere.”  Each of these utopias corresponds to one of the small number of decades-old “solutions” proposed for this famously intractable conflict.

The better-known of these cases is before the International Criminal Court. In December, 2019, the ICC Prosecutor announced her intention to investigate possible war crimes committed in territories occupied by Israel since 1967. The Prosecutor, however, also sought the Court’s ruling on whether such crimes properly fall within its jurisdiction. The central, though not the sole, issue in such a ruling is whether a State, the “State of Palestine,” has consented to the Court’s jurisdiction over crimes committed on its territory. This decision depends, in the first place, on a finding that Palestine is, indeed, a State within the meaning of that term in the Statute of the Court. If the Court so finds, it must then specify the territory over which that State is competent to grant its consent. Alas, to the surprise of many observers, the Court adjourned in mid-July for its summer recess without issuing its much-awaited ruling on these questions.

The less well-known case, initiated in September, 2018, is before the International Court of Justice. The official title of the case describes its subject matter well: Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America). In the ICJ case, the State of Palestine charges the United States with violating the Vienna Convention on Diplomatic Relations by moving its embassy from Tel Aviv to Jerusalem. According to Palestine, the Vienna Convention requires that “the diplomatic mission of a sending State must be established on the territory of the receiving State.” Palestine contends that, in the eyes of international law, Jerusalem cannot be considered to be the territory of the State of Israel. In this case, too, the question of the statehood of Palestine is crucial – because, under the ICJ Statute, “only States may be parties in cases before the Court.” Yet this case, too, is in something of a hiatus. The United States refused to participate in a meeting at the Court concerning the case and has not submitted its “Memorial” (legal brief) despite the lapse of the deadline to do so. Palestine has submitted its Memorial, but that document has not (yet) been made public by the Court.

In what follows, I do not survey all the legal issues raised by these cases, including the central question of whether Palestine should be considered a “State” under the two Courts’ Statutes. Rather, I focus on one of those issues, the status of Jerusalem. As noted in a number of the briefs submitted to the ICC, there appears to be a tension between the Palestinian position in the two cases. In its Application to the ICJ, Palestine repeatedly cited the General Assembly’s 1947 Resolution 181, the “Plan of Partition with Economic Union.” Under that resolution, Jerusalem, including a significant area of what later came to be called the “West Bank,” was to have been placed under international governance, administered by the UN Trusteeship Council for at least ten years. Palestine’s ICJ Application strongly implied that Resolution 181 thus precluded considering Jerusalem to be under the sovereignty of any State. It was for that reason, the Application implied, that it is improper to establish an embassy there. The Application also implied that the internationalization provisions of Resolution 181 continue to govern Jerusalem’s legal status, whatever the intervening factual developments – at least until that status is otherwise legally determined, for example through agreement by the parties.

Before the ICC, however, Palestine claims that its consent to the Court’s jurisdiction suffices to authorize the Prosecutor to investigate crimes committed in all the occupied territories, including Jerusalem. Since, in this case, the Court’s criminal jurisdiction depends on the consent of the territorial sovereign, this position appears to conflict with the Palestinian position in the ICJ case – that Jerusalem belongs to no State.

I do not highlight this tension, as some of those opposed to ICC jurisdiction do, to argue against the Palestinian position in either case. Anyone trained in legal analysis can easily come up with a way to show that the positions do not necessarily negate each other. In the first place, one might argue, the cases are before different courts, are governed by different bodies of law, and involve different parties. Moreover, litigants the world over often offer incompatible legal arguments to support their overall claims even in a single case: a technique with a well-known name, “arguing in the alternative.” Moreover, the Palestinians could point out that Israel, too, has always taken an ambiguous stance on the definition of its own borders, particularly in relation to the West Bank – so such a stance should not be held against the Palestinians. None of these arguments, whatever their validity, are my focus here.

Rather, I wish to highlight the “utopian” sub-text lurking in each of these legal positions, as well as in some of the criticisms of them. This optic also demonstrates the relatively stable and limited range of the international legal imagination on the question of The Land as a whole. I contend that the legal positions on Jerusalem here implicitly embody four different “solutions” for The Land: partition between two territorial sovereigns, internationalization, dominance by one ethno-national group within a single state, and, finally, division of power between two governmental authorities within “One Land.”

First, partition between two territorial sovereigns. Palestine in the ICC argues not only that there is a State of Palestine, but that its territory is comprised of those areas of The Land occupied by Israel in 1967: Gaza and the West Bank, the latter including the portion of Jerusalem formerly occupied by Jordan. In this vision, there is no territorial gap between the two States in The Land. Each is fully sovereign over its own territory, competent to make international agreements concerning that territory. Such a vision, often (misleadingly) called that of the “Westphalian system,” is that of equal States, respectful of each other’s sovereignty. In the context of The Land, this utopia goes by the name, “the two-State solution.”

The Palestinian position in the ICJ is that part of The Land, Jerusalem and its environs, has been removed from the system of sovereign States and placed under international governance. The notion that ethno-national conflicts can best be resolved by placing them under impartial, presumably enlightened, international rule is another kind of utopian vision. And a tenacious one: it has been proposed for conflicts as disparate as Upper Silesia (1923), Palestine (1947), and Kosovo (1999). Note that, while internationalization here applies only to Jerusalem, it is a utopian idea that could apply to The Land as a whole (perhaps the world as a whole). At the high-water mark of the Oslo process, I referred to this kind of utopia as the “ultimate internationalist fantasy.” This utopian vision continues to appeal to many looking at this conflict, even if sometimes in the most minimal form of international peacekeeping troops patrolling certain parts of The Land.

One of the Israeli criticisms of the Palestinian position in its ICC brief embodies a third utopian position, a nationalist utopia that many might rather term a “dystopia.” Israel argues that Palestine cannot delegate its criminal jurisdiction to the ICC, because “any jurisdiction currently held by the Palestinians derives from the jurisdiction granted” by the Oslo Accords. It further contends that the Oslo Accords not only deny the Palestinian Authority jurisdiction over Israelis in any part of the West Bank, but deny it any jurisdiction at all in Jerusalem. Since the jurisdiction delegated by States to the ICC cannot be greater than the jurisdiction they hold themselves, the ICC cannot pursue alleged crimes by Israelis in any part of the West Bank – nor over any crimes at all in Jerusalem.

The utopian, or dystopian, kernel in Israel’s argument appears in the following statement: “Any jurisdiction currently held by the Palestinians derives from the [Oslo Accords], under which Israel continues to hold all powers not explicitly transferred to the Palestinians.” Israel here proclaims that it is the source of “all powers,” some of which it has delegated to the Palestinians. The phrase “holds all powers” comes very close, of course, to an assertion of sovereignty. The Palestinians, from this perspective, hold any authority at all only derivatively, by virtue of an explicit grant by Israel, the State that “holds all powers.”

Despite its technical language, this proclamation embodies an overall vision. This vision is a particular variant of the so-called “one-State solution” which some have termed “ethnocracy” – in which the majority ethno-national group in the “one State” dominates the majority ethno-national group in the West Bank. The subordinated ethno-national group possesses authority only to the extent granted by the “one State.” Whether or not this Israeli jurisprudential position concerning “all powers” is in accord with the letter and spirit of the Oslo Accords can, of course, be debated. Here I primarily seek to draw out the utopian/dystopian vision for The Land implied in its seemingly technical language.

Lurking in the Israeli brief, however, is a rather different utopian vision, one undoubtedly not intended by its authors. When one seeks in the brief for the source of the “all powers” which Israel “holds,” one finds a footnote to the 1995 Oslo II Accord which traces Israeli authority to its “military government.” Under international law, this “military government” possesses authority by virtue of the law of belligerent occupation, governed by an array of treaty and customary law rules. A belligerent occupier “holds powers” only by virtue of the grant of such powers by that corpus of international law. The occupier can thus be seen as a kind of trustee with strictly limited powers. It is, so to speak, international law itself that “holds all powers,” some of which are delegated to the occupier. Agreements like the Olso Accords constitute a distribution of the “powers” to be exercised in a territory. They should, in principle, conform to the law of belligerent occupation – and they can, in any case, be configured in a more or less just manner.

It takes a far greater leap of the imagination, but this perspective, too, contains a utopian vision. It is a vision of a single Land, in which two governmental authorities share in an agreed-upon distribution of powers, in conformity with fundamental international norms of justice. This distribution might model its contours according to differences in the cultural, political, ethnic, and economic interests of different populations. But the shape of that distribution of powers, and co-operation between the two authorities, including in relation to criminal jurisdiction, would be the subject of free agreement between equals.

Extended to The Land as a whole, this vision is that of “One Land” rather than “One State.” Such a vision, that of “One Land, Two States” may take a variety of forms – for example, the “Parallel States” variant and the “Land for All” variant. Whatever the variant, neither governmental authority would start out with “all powers.” Rather, through equal negotiation, governmental functions and powers would be distributed and delegated in an aspirationally just and egalitarian manner.

Two-States, Internationalization, One Ethnocratic State, One-Land-Two-States: all these utopian visions lurk in the argumentation in these two cases. They have also all haunted the conflict in The Land for many decades. Which of these is more just, more realistic, more feasible in the foreseeable future, rather than only “nowhere”? And what of the one utopian vision for The Land not broached in these cases: that of a unitary, democratic “State of all its citizens” between the River and the Sea? Such a proposal has been advanced by Arab Members of the Israeli Knesset, as well as, very recently, by a prominent liberal American Zionist.

When and if these cases before the international courts proceed, we should expect to see more elaborations of these ideas, even if hiding under technical legal argumentation. After all, Jerusalem and utopia (as well as dystopia) have been linked for a very long time. And, meanwhile, in The Land, a real place, not “utopia,” people, and “peoples,” will continue to struggle…