Palestine has taken the United States to the International Court of Justice (ICJ).
Whoever masterminded this move is a genius; it is checkmate on a confused legal matter.
The court would have wanted to avoid it, but it has now been put between a rock and hard place.
The matter is based on a technicality, which may seem quite irrelevant and even obsolete – the transfer of the U.S. Embassy from Tel Aviv to Jerusalem, which Israel considers to be its capital.
However, for many countries, Jerusalem is an occupied territory. After all, East Jerusalem was part of Jordan until 1967, when Israel annexed it after the Six-Day War.
To be fair, moving the embassy to Jerusalem was not Trump’s idea. This decision was made by the US Congress in October 1995. Clinton, Bush, and Obama liked it, though they did not dare to implement it. Trump promised to do so… and he did it.
Israel and the U.S. celebrated the move, and encouraged other countries to do so. Perhaps none of them could foresee the Palestinian response, its wit and the legal consequences.
Palestine’s claim seems flat and perhaps far-fetched. They argue that this move violates Article 3 of the Vienna Convention on Diplomatic Relations (VCDR). But beneath this superfluous tantrum there is a hidden legal bomb…the recognition of Palestine as a State.
Angela Wahito, a young graduate assistant, was taken aback by the fact that the Palestinian government did not seek orders to have the embassy relocated to Tel Aviv. She thought this could have a ripple effect on the international community. She argued that there was some ulterior motive behind this matter, and she was right.
There is a huge legal tsunami behind Palestine’s claim. Kasyoka Mutunga says that the great classic international law professors like H. Lauterpatch and Louis Henkin may be knocking their coffins from the inside, pleading with any passer-by to help them tear apart their book chapters on state recognition.
Palestine has put the ICJ between a rock and hard place. This court has jurisdiction over state complaints, so if Palestine is not a state, then it has no business before the ICJ.
The court must decide some preliminary issues before considering the merits of the complaint. These preliminary issues hit the nail on the head. They are the crux of the matter: Is Palestine a state or not?
If the court says NO it will surely be looked down upon by 136 states and a huge section of the international press. If the court says YES, it will be looked down upon by two powerful and influential states, who so far have not shown any signs of bowing to anyone on this matter.
Palestine has been recognised as a state by 136 members of the United Nations. The UN General Assembly granted Palestine the non-member observer status in November 2012.
The United States and Israel do not recognise Palestine’s statehood. Considering that only states have standing before the ICJ, the question will most probably loom large.
The case is so intricately tied to the question of state sovereignty that any attempt made by the ICJ to evade it will be unfruitful. Palestine structured the issues in such a way that the court will be forced to either directly or indirectly pronounce itself on the issue of Palestinian statehood.
Another important issue before the court is the exclusion of Israel from the proceedings. Some may argue that Israel is an interested party and hence capable of invoking a legitimate ''legal interest''. Certainly, the matter involves the location of the U.S. embassy in Israel.
If the judges of the ICJ could be convinced that the matter cannot be resolved without affecting Israel’s rights, then they will have to strike it out.
However, even if the court was to find that the case is inadmissible for the lack of inclusion of Israel, it would still have pronounced itself on perhaps the most controversial matter since Elvis’ death – Palestine’s statehood.
Many argue that the court will find a way to elude the case in whole by disallowing it on the basis of what would seem as a technicality. There is not a politically shyer court than the ICJ.
Whatever the case, Palestine has adopted a litigation strategy that is designed to pursue all possible legal avenues to put pressure on Israel and the US.
International law is changing. The court, which is an apolitical body, is being asked to decide a political problem like the recognition of states and governments; the statehood of Palestine. This means that just like in Kenyan politics, the future of international conflicts will also be increasingly judicialised.
In the past, states fought each other to destruction for conquest. In the aftermath of the two brutal world wars, states understood that the negotiating table was a better option.
But today’s world is growing radically intolerant, unable to dialogue. Thus, states are having recourse to the judicial organs hoping to settle political conflict in a judicial way.
This will work for a while until the wheels of justice are totally eroded. Then the court’s reputation and perceived objectivity will have been desecrated on the altar of politics.
This will be the last straw in the politicisation of international law.
Perhaps Sir Hersch Lauterpacht was right after all, and international law is at the vanishing point.
Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi