Defining Israel’s capital

For too long Israel’s detractors have sought to use the legal process to broadcast the case against Israel. Last week Asserson Law Offices, acting for HonestReporting, showed that the legal process can and indeed should be used to make the case for Israel.

A free press is a fundamental element of any democratic society, and this freedom is enshrined in law, in Article 10 of the European Convention on Human Rights. However, there must be limits to freedom. The law restricts the press from publishing defamatory material or statements which could incite racial hatred. In the UK, mainstream newspapers submit to a system of self-regulation operated by the Press Complaints Commission (PCC) which restricts newspapers from publishing information where it is “inaccurate, misleading or distorted.”

In the event that a newspaper publishes something which is inaccurate, misleading or distorted, members of the public can lodge a complaint with the PCC and the PCC will then decide whether the newspaper has acted in breach of the Editors’ Code of Practice and whether to order appropriate remedial action.

The Guardian newspaper has long painted a picture of Israel which is at best distorted and sometimes slips into pure invention. For example, earlier this year, the Guardian published “Jerusalem is not the capital of Israel, Tel Aviv is.” In response, media watchdog HonestReporting lodged a complaint to the PCC claiming that the Guardian’s statement regarding Tel Aviv was inaccurate and therefore in breach of the Editors’ Code of Practice. The complaint was clearly correct.

In an extraordinary move, on May 21, 2012, the PCC decided not to uphold the complaint and stated that the Guardian “was entitled to refer to Tel Aviv as the capital of Israel.”

The reasons which the PCC gave for its astounding ruling were that “Jerusalem is not recognized by many countries” as Israel’s capital and that “those nations enjoying diplomatic relations with Israel have their embassies in Tel Aviv.”

THE PCC is a public body and is therefore subject to judicial review. The PCC is obliged to act reasonably. All decisions must be made in a reasonable fashion, in accordance with the Code of Practice, taking into account only those considerations which are relevant. The PCC’s decision regarding Tel Aviv was unreasonable, taking account of irrelevant considerations and was also in breach of the Code.

It is plainly inaccurate to refer to Tel Aviv as the capital city of Israel. The Oxford English Dictionary defines capital city as: “The city or town that functions as the seat of government and administrative center of a country or region.” All three branches of Israel’s central government (its legislature, primary executive offices and supreme court) are located in Jerusalem and not Tel Aviv, as are the Prime Minister’s and President’s residences.

On this basis alone it is clear that Jerusalem is the capital of Israel and, by process of elimination, that Tel Aviv is not.

To put the matter beyond doubt, Israel’s legislature passed a law in 1980 which provides that “Jerusalem... is the capital of Israel.”

While as a matter of international law the borders of the State of Israel are not settled and the status of eastern Jerusalem is contentious, this does not alter the fact that Jerusalem is de facto the capital. Furthermore, the existence of controversy over Jerusalem has no bearing on the status of Tel Aviv. The contentious status of Jerusalem in international law cannot mean that it is accurate to state that “Tel Aviv is the capital of Israel.”

A sovereign state has the right to designate the location of its capital city. It is an internal domestic question, with which international law does not concern itself. A sovereign state may for example decide to relocate its capital city as did Brazil (from Rio de Janeiro in 1956), Pakistan (from Karachi to Islamabad in 1959), Nigeria (from Lagos to Abuja in 1975) and Germany (from Bonn to Berlin in 1990). It can even divide its capital.

South Africa simultaneously places its capital in three different places. The foreign embassies are located principally in only one of those places.

STATEMENTS IN the British media which deny that Jerusalem is Israel’s capital and which seek to designate Tel Aviv as its capital are not just innocuous falsehoods. These statements betray an attempt to undermine Israel’s right to act as a sovereign state. These statements imply that Israel, unlike any other sovereign state in the community of nations, does not have the right to designate the location of its capital city. It would be equally ridiculous to suggest that a country’s domestic decision as to its currency and official language are matters for international law. They clearly are not.

HonestReporting decided that it could not let such a statement stand. Accordingly they instructed our firm to write a letter before claim to the PCC threatening judicial review in the event that the PCC did not rescind its clearly flawed decision. The threat of judicial review caused the PCC to rescind its decision, which in turn forced the editor of the Guardian to address HonestReporting’s complaint.

As a result of threatened legal action against the PCC the Guardian printed a correction which stated “we accept that it is wrong to state that Tel Aviv – the country’s financial and diplomatic center – is the capital.” This is a rare concession from the Guardian.

It will not surprise people to see how far the Guardian is prepared to restate reality when writing about Israel. It should be of concern that a public body such as the PCC should make such a clearly wrong decision. It is at least refreshing that the prospect of judicial review wonderfully concentrated minds at the PCC.

The authors are solicitors at Asserson Law Offices, an English law firm with offices in Jerusalem, Tel Aviv and London.