By: Emma Staller
Volume X – Issue I – Fall 2024
I. INTRODUCTION
In December 2017, former United States President Donald J. Trump announced his decision to move the United States embassy in Israel from Tel Aviv to Jerusalem, describing it as “a long-overdue step to advance the peace process and to work towards a lasting agreement. [1] The official relocation of the embassy on May 14, 2018 prompted the State of Palestine to initiate legal proceedings against the United States before the International Court of Justice (ICJ), alleging violations of the Vienna Convention on Diplomatic Relations of April 18, 1961. [2] This action swiftly and forcefully thrusted the ICJ into the global spotlight. Palestine has formally asked the Court to rule that the relocation of the U.S. embassy to Jerusalem violates the Vienna Convention and to issue a mandate requiring the U.S. to fulfill its obligations to prevent future violations, while ensuring such unlawful actions are not repeated. [3] This brings us to the present moment, marked by a significant impasse of profound implications as the world watches in anticipation for international judicial bodies, such as ICJ, to resolve the current standstill.
This legal battle unfolds in the context of ongoing tensions in the region, including violence between Israel and Hamas. Since Hamas, a classified terrorist organization, has taken control of Palestine in 2006, Israel has faced an ongoing slew of attacks from the neighboring regime. As recently as October 7, 2023, Hamas launched a deadly attack on Israel, prompting the Israel Defense Forces (IDF) to engage in aerial campaigns and ground operations within the Gaza Strip. Efforts to free the more than one hundred remaining Israeli and foreign hostages taken by Hamas have been largely unsuccessful, with their locations and health statuses remaining unknown. Almost two million Gazans—over 85 percent of the population—have fled their homes since October 2023 [4]. Recent casualty estimates from the Hamas- run Gazan Health Ministry place the death toll in Gaza at around 42,000, although such numbers are challenging to verify due to limited international access to the strip and credibility of the source. [5] While these developments are serious and warrant attention, this article will focus on a different aspect of the conflict. While acknowledging the ongoing situation, the legal altercation I will discuss predates these recent events.
Palestine seeks a declaration from the Court stating that the U.S. relocation of its embassy to Jerusalem breaches the Vienna Convention. Furthermore, Palestine requests that the Court order the United States to withdraw its diplomatic mission from Jerusalem and adhere to its international obligations under the Convention. [6] Lastly, the application urges the Court to mandate that the United States take necessary steps to comply with its obligations, avoid any future violations, and provide guarantees against the recurrence of such unlawful conduct. However, the United States' complex relationship with the ICJ raises critical questions about the effectiveness of international law. While the U.S. has engaged actively with the Court, its historical reluctance to accept adverse rulings undermines the ICJ's authority and raises doubts about the commitment of powerful nations to uphold international norms. Thus, what genuine impact can the ICJ have in situations where key players, like the U.S., do not adhere to its outcomes? Furthermore, we must consider at what point the actions of the United States, in the pursuit of its interests, veer into the realm of tyranny, challenging the principles of justice and accountability on a global scale.
II. FROM PROMISED LAND TO POLARIZED TERRITORY
Why is the United States' decision to move its embassy from Tel Aviv to Jerusalem so controversial? This action by former President Trump thrust him into the center of a long-standing geopolitical struggle over the holy city of Jerusalem. [7] Before 1948, after the defeat of the Ottoman Empire and the end of World War I, Britain assumed control over the region known as Palestine, which was predominantly inhabited by Arabs, with a minority of Jews. [8] However, between the 1920s and 1940s, the Jewish population in Palestine increased significantly due to an influx of individuals fleeing the Holocaust and the atrocities committed by the Nazis in Europe. This dramatic rise in the Jewish population heightened tensions with the existing Arab majority in the region. The situation escalated further when the international community tasked the UK with establishing a national homeland for the Jewish people in Palestine. In 1947, the United Nations adopted Resolution 181, known as the Partition Plan, which proposed dividing Palestine into separate Jewish and Arab states, with Jerusalem designated as an international city. [9]
Jerusalem is not only Israel's capital but also the spiritual heart of the Jewish people, with historical and religious sites like the Western Wall, which is the holiest site for Jewish prayer. While Israel's government and parliament are located in West Jerusalem, which it has controlled since 1949, the city’s eastern part—seized during the 1967 Six-Day War—remains at the center of dispute. [10] Israel has long maintained that Jerusalem, including East Jerusalem, is its undivided capital, a position supported by the U.S. under the Trump administration. The Israeli government, particularly under Prime Minister Benjamin Netanyahu, has remained firm in its stance that Jerusalem must remain Israel's undivided. The decision to officially recognize Jerusalem as the capital and move the United States embassy here is a fulfillment of a longstanding promise, reinforcing Israel’s sovereignty over the entire city. On the other hand, international opposition, including Palestinian claims to East Jerusalem as the capital of a future state, continues to challenge this stance. The U.S. recognition of Jerusalem as Israel's capital, and the subsequent embassy move, has deepened tensions, as it aligns the U.S. with Israeli claims to the entire city while undermining Palestinian aspirations for a two-state solution.
III. THE INTERNATIONAL COURT OF JUSTICE: MEDIATOR IN GLOBAL CONFLICTS
The International Court of Justice (ICJ) plays a vital role as the only judicial body capable of resolving disputes among the 193 UN Member States, fostering global peace and security through lawful dialogue rather than conflict. [11] Established in 1945, the ICJ, often referred to as the "World Court," is one of the UN's six principal organs based in The Hague, Netherlands. Unlike courts such as the Court of Justice of the European Union, which national courts can consult, the ICJ can only hear disputes when requested by one or more UN member states. Composed of 15 judges elected by the UN General Assembly and Security Council for nine-year terms, these judges serve as independent magistrates, not as representatives of their home governments, with only one judge of each nationality on the bench at any time. Cases begin with the submission and exchange of written pleadings detailing each party's factual and legal arguments, followed by public hearings where agents and counsel present their case to the court. [12] After private deliberations, the ICJ delivers its ruling, which can take anywhere from weeks to several years. Each country involved appoints an agent to plead their case, holding the same responsibilities as a solicitor in a national court.
The International Court of Justice (ICJ) handles two types of cases: "contentious cases," which are legal disputes between states, and "advisory proceedings," where UN organs or specialized agencies seek legal opinions on specific questions . Any UN Member State can bring a case against another Member State, even if they are not directly in conflict, as long as the matter affects the broader international community. The ICJ's rulings are final and cannot be appealed. While the court does not enforce its own decisions, the responsibility falls on the states involved to implement them within their national jurisdictions. In most cases, states comply with these rulings in line with their international legal obligations. If a state fails to meet its obligations, the only recourse is the UN Security Council, which can pass a resolution to enforce the judgment. However, if the case involves one of the five permanent members of the Security Council (China, France, Russia, the U.S., or the U.K.), they hold veto power over enforcement actions. [13] Nevertheless, the ICJ's decisions are widely regarded as legitimate, encouraging states to comply rather than risk damaging their international standing.
IV. PALESTINE’S LEGAL CHALLENGE TO THE U.S. EMBASSY MOVE
On September 28th, 2018, the State of Palestine formally instituted proceedings against the United States of America before the ICJ concerning alleged violations of the Vienna Convention on Diplomatic Relations of 1961. [14] These violations of the Vienna Convention come in the form of the President of the United States recognizing Jerusalem as the capital of Israel and announcing the relocation of the American Embassy in Israel from Tel Aviv to Jerusalem. According to Palestine, this relocation breaches the provision that a diplomatic mission must be established in the receiving state's territory, and due to Jerusalem's contested status, it argues that the relocation violates international law. In essence, this implies that under international law, specifically the Vienna Convention on Diplomatic Relations, embassies must be situated within the internationally recognized territory of the host state. [15] Palestine contends that Jerusalem's status is contested by various international actors, and therefore, the relocation of the U.S. embassy to Jerusalem constitutes a violation of these legal principles. Palestine is invoking Article I of the Optional Protocol to the Vienna Convention, which mandates the settlement of disputes by the ICJ. [16] Palestine formally requests for the Court to declare that the U.S. violated the Vienna Convention and to order the U.S. to withdraw the embassy from Jerusalem, cease any future violations, and guarantee non-repetition of such actions.
On November 2, 2018, the United States communicated its rebuttal petitions to the International Court of Justice (ICJ) in letter format. In this letter, the U.S. informed the Registry that it would not participate in any proposed meeting scheduled for November 5, 2018, with the President and representatives of the parties involved in the dispute, arguing that it is not bound by the Vienna Convention treaty in its dealings with Palestine. [17] The U.S. further noted that Palestine had been aware of these communications before submitting its application and concluded that it was "manifest that the Court had no jurisdiction in respect of the Application" and that the case ought to be removed from the list. [18] By challenging the ICJ's role in resolving the dispute, the U.S. has the potential to render the case invalid and halt its progress. Furthermore, if the case were to persist, the U.S.'s refusal to participate in preliminary procedures suggests that, even if the court were to rule against it, enforcing the decision may be difficult due to political power dynamics, particularly the U.S.'s veto power in the UN Security Council.
The latest movement in the case "Relocation of the United States Embassy to Jerusalem" (Palestine v. United States of America) came through a press release issued by the International Court of Justice (ICJ) on November 15, 2018. The ICJ noted that Palestine had accepted the court's jurisdiction regarding disputes under the Vienna Convention, whereas the United States had previously declared it does not recognize such a treaty relationship. As a result, the U.S. did not appoint an agent or participate in the proceedings, asserting that the ICJ lacked jurisdiction. [19] During a meeting on November 5, 2018, Palestine expressed a preference for the court to hear both jurisdiction and merits together, requesting six months to prepare its submissions. The court decided that jurisdiction and admissibility issues should be addressed first, setting deadlines for Palestine to submit its Memorial by May 15, 2019, and for the U.S. to submit its Counter-Memorial by November 15, 2019. [20] This case is ongoing, and as of now, no ruling has been issued. However, the United States has emphatically asserted its indifference to the proceedings, openly declaring its refusal to recognize any ruling from the ICJ that does not align with its interests, effectively undermining the court's authority and the very principles of international law.
V. DISREGARDING INTERNATIONAL LAW: THE U.S. AND ICJ PROCEEDINGS
The United States has a long history of contesting international rulings, particularly when those decisions challenge its foreign policies. A notable example of this is the case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), where the International Court of Justice (ICJ) ruled in favor of Nicaragua on May 10, 1984. Nicaragua claimed that the U.S. had supported, both overtly and covertly, a mercenary army known as the contras, with the aim of overthrowing the Sandinista government. By financing and assisting the contras, the U.S. was, according to Nicaragua, using armed force in violation of its international obligations under customary international law, the UN Charter, the OAS Charter, and the 1956 United States-Nicaragua Treaty of Friendship and Commerce. [21]
As an immediate step, the ICJ issued an order for provisional measures, requiring the U.S. to cease any actions restricting access to Nicaraguan ports, including the laying of mines. The Court emphasized the importance of respecting Nicaragua’s sovereignty and political independence, warning against any actions violating the principles prohibiting the use of force and non-intervention in domestic affairs. Although the U.S. contested the Court's jurisdiction and refused to participate in subsequent proceedings, the ICJ proceeded, ruling that the U.S. was obligated to cease all illegal actions and make reparations for the damage caused to Nicaragua, with the exact amount to be determined later. [22]
Despite the ruling, the U.S. continued to support the contras and ignored the ICJ’s decision (Tran 1986). When Nicaragua turned to the UN Security Council to enforce the judgment, the U.S. vetoed the resolution urging compliance, effectively blocking further action. [23] This display of political influence led Nicaragua to inform the ICJ in September 1991 of its intention to discontinue the case. The U.S. welcomed this move, and the case was officially removed from the Court’s docket on September 26, 1991. As the world observes the United States' approach to future ICJ proceedings with Palestine, this case serves as a critical example of how the U.S. views the Court. Despite the ICJ ruling in favor of Nicaragua, the U.S. blatantly disregarded the decision, treating the Court's judgment as insignificant and undermining the authority of international justice. This case has proven pivotal in shaping global perceptions of the U.S.'s stance on international legal rulings.
VI. ANALYZING THE FUTURE OF INTERNATIONAL COURTS IN A POWER-DRIVEN WORLD
Article 94(2) of the United Nations Charter provides a party in a case with recourse to the Security Council if the other party fails to fulfill its obligations under a judgment rendered by the International Court of Justice (ICJ). [24] This article also grants the Security Council the authority to make recommendations or decide on measures to enforce the judgment. Additionally, Article 96 allows the Security Council to request an advisory opinion from the ICJ on any legal question. However, the relationship between the Security Council and the ICJ is complicated by the veto power held by the five permanent members—the U.S., the U.K., Russia, China, and France—limiting the Council’s ability to act in conflicts involving one of these members or their allies. [25] This veto power, established after World War II, remains a significant check on the effectiveness of international law. The United States, in particular, has had an uneasy relationship with the ICJ, often criticizing its judgments, such as the court's opinion declaring Israel's occupation of Palestinian territories illegal. While the ICJ's advisory opinions are not binding, they carry weight under international law, influencing global perspectives and potentially weakening support for contentious actions like Israel’s. [26]
The United Nations has long been called upon to prevent conflicts from escalating into war, restore peace after armed conflict, and promote lasting stability in societies emerging from such turmoil. The situation currently unfolding in Jerusalem is no different. At the core of the United Nations' mission is the promotion of the rule of law at both the national and international levels. Establishing respect for the rule of law is essential for achieving durable peace after conflict, protecting human rights, and ensuring sustained economic development. The principle that everyone, from the individual to the state itself, is accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, is foundational to the United Nations' work.
However, a key challenge arises in the inability of the International Court of Justice (ICJ), the United Nations' judicial arm, to enforce its rulings. So, does the ICJ enforce its decisions? The short answer is no. If states do not comply with an ICJ judgment, the United Nations Security Council may take action, but there’s a critical caveat. If a case involves one of the five permanent members of the Security Council—China, France, Russia, the U.S., or the U.K.—that state holds the power to veto enforcement. In the case of the United States versus Palestine, this means that the ICJ’s ruling becomes irrelevant. As evidenced in Nicaragua v. the United States (1984), the United States, holding one of the five permanent seats on the Security Council, simply ignored the ICJ's decision. Given this reality, reform to the United Nations' structure is not merely a consideration but a necessity. Without significant change, the ICJ will remain impotent in its ability to enforce international law and promote justice on the global stage. The current structure, particularly the Security Council’s veto power, fosters a deadlock in decision-making that has paralyzed the UN on multiple occasions. While the question of removing permanent seats from the Security Council has been raised, the more pressing issue lies in how the Security Council interacts with the ICJ.
The Security Council, with its authority to foster negotiations, impose sanctions, and authorize the use of force—including peacekeeping missions—must be held accountable for enforcing the rulings of the ICJ. However, just because a state holds a permanent seat on the Security Council does not give it the right to disregard legal rulings, especially when it should lead by example. A state in such a position should adhere to ICJ decisions more diligently, setting a precedent for others in the international community. Thus, regardless of the decision the United States makes in this particular case, it must recognize the weight of its actions on the global stage. As a permanent member of the Security Council, it must understand that the world is watching, and the precedent it sets could have lasting consequences for the future of the ICJ and the credibility of international law.
VII. POST-TRUMP REELECTION IMPLICATIONS
During Donald Trump’s first term in office as President of the United States, he staunchly supported Israel, overturning years of American foreign policy precedent to do so. When Donald Trump won the presidential election on November 5th, 2024, Israeli officials were some of the first foreign leaders to congratulate him on his reelection. Benjamin Netanyahu, the Prime Minister of Israel, posted on the social media platform X, “Congratulations on history’s greatest comeback! Your historic return to the White House offers a new beginning for America and a powerful recommitment to the great alliance between Israel and America.” Netanyahu is one of the many foreign policy leaders who have adopted a “Trump put” ideology—delaying decisions in anticipation of better terms under a future Trump administration.
The approach of President Joseph Biden's administration to the Middle East conflict has sparked widespread confusion within the global community. On one hand, the administration has condemned Israel for its so-called "over-the-top" and "indiscriminate" bombing of Palestine, while on the other, it continues to provide Israel with weapons and aid. Donald Trump's anticipated presidential stance on the Israel-Palestine issue is expected to be far more definitive, leaving little to no room for ambiguity. After all, it was during Trump’s first term in office that the United States broke away from decades of cautious diplomacy on the issue and officially recognized Jerusalem as Israel's capital. It is expected that Donald Trump will maintain a favorable stance toward Israel in this conflict, and it can be assumed that this U.S. favoritism may influence judicial proceedings at the ICJ regarding the Palestine v. United States case. The global community can anticipate that any decision by the ICJ unfavorable to the United States and Israel under President Donald Trump is likely to be disregarded. This conviction is reinforced by the clear precedents of defiance and unilateralism established during his previous term in office.
VIII. CONCLUSION
The United States' blatant disregard for the International Court of Justice and the United Nations Security Council, both in past actions and anticipated future behavior, raises pressing questions: are international courts becoming obsolete? Are the very foundations of international justice being eroded and undermined by global powers like the United States? The case of Palestine v. United States highlights the growing crisis within the new world legal order. A system is emerging where legal standards appear to apply only to the weak, while the powerful set their own rules. The ICJ’s verdict will reverberate far beyond the borders of Palestine and Israel, reflecting the future role of international courts in a world where might increasingly triumphs over right.
Endnotes
[1] Underwood, Alexia. 2018. “US Jerusalem embassy: the controversial move, explained.” Vox. https://www.vox.com/2018/5/14/17340798/jerusalem-embassy-israel-palestinians-us-trump.
[2] The International Court of Justice. 2018. “Reports of Judgments Advisory Opinions: Relocation of the United States Embassy to Jerusalem (Palestine v. United States),” I.C.J. Reports 2018, p. 708. https://www.icj-cij.org/sites/default/files/case-related/176/176-20181115-ORD-01-00-EN.pdf.
[3] The International Court of Justice, supra note 2, at 708.
[4] Council on Foreign Relations: Center for Preventive Action. n.d. “Israeli-Palestinian Conflict | Global Conflict Tracker.” Council on Foreign Relations. Accessed October 17, 2024. https://www.cfr.org/global-conflict-tracker/conflict/israeli-palestinian-conflict.
[5] Council on Foreign Relations.
[6] The International Court of Justice, 708.
[7] The International Court of Justice, 708.
[8] Council on Foreign Relations.
[9] The United Nations. 2024. “What is the International Court of Justice and why does it matter?” UN News. https://news.un.org/en/story/2024/01/1145392.
[10] BBC. 2024. “Israel Gaza war: History of the conflict explained.” BBC. https://www.bbc.com/news/newsbeat-44124396.
[11] The United Nations. 2024. “What is the International Court of Justice and why does it matter?” UN News. https://news.un.org/en/story/2024/01/1145392.
[12] Max-Panck-Institut: World Court Digest. 1986. “World Court Digest.” World Court Digest. https://www.mpil.de/de/pub/publikationen/archiv/world-court-digest.cfm?fuseaction_wcd=aktdat&aktdat=dec0102.cfm.
[13] United Nations, “What is the International Court of Justice and Why Does It Matter?” 2024.
[14] The International Court of Justice, 708.
[15] United Nations: "Vienna Convention on the Law of Treaties." United Nations Treaty Series 1155 (1969): 331
[16] Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes: Done at Vienna, April 18, 1961. [Washington] :[For sale by the Supt. of Docs., U.S. Govt. Print. Off.], 1973
[17] International Court of Justice. 2018. “Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America),” Second Press Release: The Court decides that the written pleadings will first be addressed to the question of jurisdiction and that of the admissibility of the Application.
[18] International Court of Justice, “Relocation of the U.S. Embassy to Jerusalem,” 2018.
[19] International Court of Justice, “Relocation of the U.S. Embassy to Jerusalem,” 2018.
[20] International Court of Justice, “Relocation of the U.S. Embassy to Jerusalem,” 2018.
[21] International Court of Justice. 1984. “Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).” Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). https://www.icj-cij.org/case/70.
[22] Berlin, Michael J., “U.S. Vetoes Nicaraguan Resolution,” Washington Post, 1986.
[23] Berlin, Michael J., “U.S. Vetoes Nicaraguan Resolution,” Washington Post, 1986.
[24] United Nations Security Council. n.d. “Relations with Other UN Organs | Security Council.” the United Nations. Accessed October 17, 2024. https://main.un.org/securitycouncil/en/content/repertoire/relations-other-un-organs#rel4.
[25] Murphy, Sean D. 2008. “The United States and the International Court of Justice: Coping with Antinomies.” Scholarly Commons. https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1902&context=faculty_publications.
[26] Singh, Kanishka. 2024. “US criticizes ICJ opinion on Israeli occupation of Palestinian territories.” Reuters. https://www.reuters.com/world/us-criticizes-icj-opinion-israeli-occupation-palestinian-territories-2024-07-20/.