Analysts: Palestinians’ court appeal on US Embassy relocation will not hold

Complaint is seen as mostly symbolic because International Court of Justice unlikely to render judgment not already borne out in international law.

THE US Embassy, taking pride of place in Jerusalem. (photo credit: MARC ISRAEL SELLEM)
THE US Embassy, taking pride of place in Jerusalem.
(photo credit: MARC ISRAEL SELLEM)
The Palestinian Authority filed an “indictment” with the International Court of Justice in The Hague against the United States this week on the one-year anniversary of the relocation of the US Embassy to Jerusalem, yet many analysts are skeptical that the action will bear fruit.
According to the ICJ, which acts under the auspices of the United Nations, the Palestinians are basing their claim on the 1961 Vienna Convention of Diplomatic Relations, which requires a country to locate its embassy on the internationally recognized territory of a host state. While Israel in 1980 passed a law to annex all of Jerusalem, the status of the holy city remains in dispute.
In a statement, PA Foreign Minister Riyad al-Maliki, who submitted the claim, wrote: “After the Trump Administration carried out its provocative and illegal action, the State of Palestine continues to seek justice and accountability through the tools and mechanisms available to law-abiding and respecting [nations] within the international system.”
Palestinian National Council member Ahmed Ghoneim spoke with The Media Line.
“Going to the ICJ is in line with the decision of the Palestinian leadership to take all political and legal steps to reject US moves,” he said. “Palestinians consider all occupation measures against Jerusalem null and void, and going to the court is one of the means to counter American bias toward Israel. The US participates with Israel in its aggression against the Palestinians.”
However, the United States has generally expressed contempt for the global court system, first and foremost the International Criminal Court. Last September, US National Security Adviser John Bolton called the ICC “ineffective, unaccountable and, indeed, outright dangerous,” adding that “if the court comes after us, Israel or other US allies, we will not sit quietly.”
Notably, ICC judges in April declined a prosecutor’s request to open a case looking into purported crimes committed by US military personnel in Afghanistan.
Indeed, US presidents have in the past threatened to punish the Palestinians for turning to international courts with war crimes claims against Israel. Like the US, Israel is not a party to the Rome Statute, the founding charter of the ICC, and thus argues that the court lacks the jurisdiction to investigate its policies in the West Bank and Gaza Strip. For its part, the PA acceded to the convention in 2015 despite the absence of a formal Palestinian state.
Israel responded to that move by suspending the transfer of taxes and tariffs it collects on behalf of the PA, not unlike the current situation whereby the government of Prime Minister Binyamin Netanyahu is withholding a portion of the same funds equal to the amount that the Palestinian leadership pays each month to those jailed in Israel for security offenses.
However, with regard to the ICJ, the Palestinians may have more leverage since the “State of Palestine” was recognized in 2012 as a non-member observer state by the UN General Assembly. In fact, the ICJ website lists Palestine among the countries that “may” be entitled to appear before the court.
Dr. Daphna Shraga, an international law expert who previously worked at the UN Office of Legal Affairs, explained to The Media Line that Israel and the US are likely to push back against the Palestinian move, although there is nevertheless a possibility that a formal case could be opened.
"While it might fail, when you submit a file to the ICJ, you never know how it will end up," she said. "Often there is at least something small that comes out of it, even two sentences [in an advisory opinion] that people will remember."
Oded Eran, a former Israeli ambassador to Jordan and past lead negotiator in the run-up to the 2000 Camp David peace talks, emphasized to The Media Line that politics should be left out of the ICJ’s decision-making process.
"On the legal side, there are several steps that the international community took from 1948 onward, including [United Nations] Security Council resolutions that say the status of the [disputed] territories should not be changed unilaterally. However," he elaborated, "the US president made it known that the embassy move did not pre-determine the future standing of the eastern part of Jerusalem,” which the Palestinians claim as part of a prospective state.
Accordingly, Eran attributes the PA’s actions to an over-arching “strategy to try everything possible in international forums… to make it clear that the Palestinians view themselves as living in a normal state.”
In this respect, Palestinian political analyst Naser Tahbub noted to The Media Line that “no file against the US has been opened until now, so what's the benefit of keeping going to it? The PA submitted the claim [merely] to show that it has done something to protest America.”
That Washington has already cut-off hundreds of millions of dollars earmarked for projects in the West Bank, coupled with PA President Mahmoud Abbas’s ongoing boycott of US officials and attempts to torpedo the White House's soon-to-be-released peace plan, few envision Trump being bothered  by the Palestinian threat – especially an initiative that few view as having a chance of producing significant results.
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