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Home , Battle of Gaza (2007), Jerusalem Law, Jonathan Pollard, Operation Opera, Oslo II Accord, Palestine 194

Model International Court of Justice

(MICJ)

Case #2

United States of America (Respondent)

Relocation of the Embassy to ( v. United States of America)

Arkansas Model (AMUN) November 20-21, 2020

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Historical Context

For years, there has been a consistent struggle between the State of and the led by the Palestine Liberation Organization (PLO). In 2018,

United States Secretary of State Mike Pompeo announced that the U.S. embassy located in would be moving to the city of Jerusalem.1 Palestine, angered by the embassy moving, filed a case with the International Court of Justice (ICJ) in 2018.2 The history of this case, U.S. relations with Israel and Palestine, current events, and why the

ICJ should side with the United States will be covered in this research paper.

Israel and Palestine have an interesting relationship between and competition. In 1948, Israel captured the west side of Jerusalem, and the captured the east side during the Arab-Israeli War. Israel declared its independence on

May 14, 1948. In 1949, the Lausanne Conference took place, and the UN came to the decision for “corpus separatum” which split Jerusalem into a Jewish zone and an Arab zone.3 At this time, the State of Israel decided that Jerusalem was its “eternal capital.”4

“Corpus separatum,” is a Latin term meaning “a city or region which is given a special legal and political status different from its environment, but which falls short of being sovereign, or an independent city-state.”5

1 Office of the President, 82 Recognizing Jerusalem as the Capital of the State of Israel and Relocating the United States Embassy to Israel to Jerusalem § (2017). 2 Relocation of the United States Embassy to Jerusalem (Palestine v. United States) (I.C.J. Reports 2018 , 2018). 3 Shlaim, A. (1977). The Study of the Arab-Israeli Conflict. British Journal of International Studies, 3(1), 97-118. Retrieved November 3, 2020, from http://www.jstor.org/stable/20096792 4 “Statements of the Prime Minister David Ben-Gurion Regarding Moving the Capital of Israel to Jerusalem.” .gov.il. Accessed November 3, 2020. https://www.knesset.gov.il/docs/eng/bengurion-jer.htm. 5 “Corpus Separatum: Jerusalem & the Occupation of Memory.” Columbia University: Advanced Architectural Design Studio VI (0AD).

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On June 5, 1967, the Six-Day War broke-out and lasted until June 10, 1967.

Egypt, , and attempted to destroy the with minor involvement from and . After 36 hours of fighting, Israel captured the City of Jerusalem.

After the third day of fighting, Israel captured the , the , and some of the . After capturing these lands, Israel focused its force on Syria and captured the . A ceasefire was signed between Israel and Syria on

June 10. The war resulted in a victory for the State of Israel. The Six-Day War tripled

Israel’s land size and added over a million Arab people under their domain. 15,000

Egyptians were killed, and another 5,600 were taken as prisoners. 6,000 Jordanians were casualties, according to King . 1,000 died during the war. Israel had 700 casualties and 2,500 injured. Israel claimed to have a stronger tie to Jerusalem than any other in the region.6

The was passed by the Knesset in 1980 to establish Jerusalem as the official capital of Israel. The Supreme Court, home of the Prime Minister, and the

Knesset (Parliament) are located in Jerusalem. Jerusalem is home to every seat of government.7 After the war ended, the United Nations Security Council passed

Resolution 242 and 338. Resolution 242 required Israel to withdraw all troops from the territory they conquered and acknowledged that Israel had no right to declare over the land. In 1973, Resolution 338 was passed with the intention of a ceasefire in the and resulted in the fight continuing. After the fighting

6 “Six-Day War.” Accessed November 2, 2020. https://www.knesset.gov.il/lexicon/eng/six_days_eng.htm. 7 980 Basic Law- Jerusalem- Capital of Israel § (1980).

Teeter 3 continued, the Security Council tried again with Resolution 339, which called for another ceasefire.8

In 1990, under the leadership of U.S. President , Israel and the PLO signed several treaties called the . This started the process of peace between the neighbors. Key agreements in the Oslo process were: Israel recognized the PLO, the PLO recognized Israel, recognized the Palestinians the right for self- determination, Israel would completely leave the Gaza Strip in 5 years, and the Oslo II

Accord. The Oslo II accord allowed for the division of the West Bank into an area; the

Palestinians were banned from 60% of the areas, the election of the Palestinian

Legislative Council, the establishment of the Palestinian , and Israel would have to allow for safe passage from the strip to the West Bank.9 Jordan claimed sovereignty over the West Bank and in 2003. Israel’s rebuttal was that Jordan had no sovereignty rights because an act of aggression acquired the land.

Throughout the years of the state of Israel, the longest-serving Prime Minister is

Benjamin Netanyahu. At the beginning of his second term (2009-current), Netanyahu stated that the only way freedom of could be ensured for all three of the (Judaism, , and ) is through Israeli control.10 In 2018, the

Knesset passed legislation requiring a two-thirds majority to transition any section of

Jerusalem to another government. Prime Minister Netanyahu has said on multiple

8 “Security Council - Question of Palestine.” United Nations. United Nations. Accessed November 3, 2020. https://www.un.org/unispal/data-collection/security-council/. 9 Indyk, Martin. “The Clinton Administration's Approach to the .” The Washington Institute: Soref Symposium, 1993. 10 Service, , and News Agencies. “Netanyahu: Jerusalem Holy Sites Will Remain Israeli Forever.” Haaretz.com. Haaretz, January 11, 2018. https://www.haaretz.com/1.5055284.

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“Under any peace agreement the capital of Israel will continue to be in Jerusalem."11

Until 1964, there was no recognized organization for the Palestinian people until the establishment of the Palestine Liberation Organization (PLO). As part of the Oslo

Accords, there was a mutual recognition agreement between the nations in 1993. In

1994, the Palestinian Authority (PA) was formed. took control of the Gaza strip from the PLO in 2007 during the . The current leadership of the

Palestinians claims sovereignty over the area that was once on the borders as of 1967, which would include East Jerusalem. East Jerusalem is considered an occupied territory of Israel by the Palestinians. The PA passed a law declaring Jerusalem as the capital of the Palestinian state. Their official position is that the entire city of Jerusalem is considered an open city. An open city is a municipality that is not fortified or defended by any armed force by .12 PLO has developed a media campaign called

Palestine 194. strives for the acceptance of the State of Palestine as a full member of the United Nations. For this to happen, the U.S. has required that the PLO denounce all forms of terrorism. In November of 2012, the State of Palestine was given a non-member of the United Nations.13

Palestine - United States Relations

11 “Netanyahu at Davos: Jerusalem to Remain Capital under Any Peace Agreement.” | JPost.com, January 29, 2018. https://www.jpost.com/Israel-News/Benjamin-Netanyahu/WATCH- LIVE-Prime-Minister-Netanyahu-speaks-at-the--Economic-Forum-539789. 12 Ghanem, As'ad. "Palestinians in Israel — The Victory of Discourse vs. the Retreat of Politics." Middle East Journal 66, no. 2 (2012): 361-68. Accessed November 2, 2020. http://www.jstor.org/stable/23256688. 13 “Status of Palestine.” State of Palestine Mission to the United Nations. Accessed November 3, 2020. https://palestineun.org/status-of-palestine-at-the-united-nations/.

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The United States of America has a difficult and complex relationship with the state of Palestine. The U.S. does not officially recognize the state of Palestine, however, accepts the PLO as the governing authority in the region following the Oslo accords.14

In October of 2018, the PLO closed their mission in Washington D.C. and the U.S. has no embassy or consulate in the region. The U.S. Embassy in Israel has a Palestinian

Affairs Unit to watch and communicate with the PLO.15 The PLO was granted a presidential waiver to the Anti-Terrorism Act under the Reagan Administration to establish communications with the U.S. Discussion between the PLO and the U.S. ceased after the PLO refused to denounce an attack of the Palestine Liberation Front

(PLF) under the George H.W. Bush Administration.16 Under the Clinton administration, the Oslo accords were signed in 1993, and the U.S. announced that they had re- established communication with the PLO. In the next few years, President Clinton allocated funds to build up the state of Palestine’s government under the Middle East

Peace Facilitation Act of 1993 and again in 1995.17 Clinton became the first U.S.

President to visit Palestine in 1998. Ties under the George W. Bush administration hardened with the establishment of the Palestine Economic Development Group, which would seek to establish better economic ties in the region. The Obama administration focused on improving relations. In 2011, the United States gave the PA $200 million in support. During the Trump Administration, we have seen a complete decline and

14 “Declaration of Principles on Interim Self-Government Arrangements.” peacemaker.un.org, September 13, 1993. 15 Al-Omari, Ghaith AL-OMARI. “Why Trump's Closure of the Palestinian in Washington Could Backfire.” Time Magazine, September 12, 2018. 16 Bush, George H.W. “The President's News Conference in Huntsville, Alabama.” The American Presidency Project, June 20, 1990. 17 Christison, Kathleen. "U.S. Policy and the Palestinians: Bound by a Frame of Reference." Journal of Palestine Studies 26, no. 4 (1997): 46-59. Accessed November 3, 2020. doi:10.2307/2537906.

Teeter 6 removal of relations with Palestine. The U.S. officially recognized the city of Jerusalem as the Capital of Israel on December 6, 2017. President Trump closed the PLO mission in D.C. and halted aid to the PLO in 2018. Also, in 2018, the Trump Administration announced the relocation of the U.S. Embassy from Tel Aviv to Jerusalem.18 This is seen as betrayal by the U.S. government in the eyes of the Palestinians.

Israel - United States Relations

The U.S. State Department describes the U.S.-Israel relationship to be “strong” and is “...anchored by over $3 billion in Foreign Military Financing annually.”19 In 1948, the U.S. was the first nation to formally recognize the newly formed State of Israel under an unexpected decision of the Truman Administration. Bonds with Israel were strengthened with President Dwight D. Eisenhower. The U.S. provided large amounts of relief to prop-up the Israeli economy. Under the Kennedy administration, the United

States expanded the amount of aid to include military technology and lifted an arms embargo that was placed by the Truman administration. This was a good move for

President Kennedy in the upcoming Congressional elections to hold the Jewish vote.

The Six-Day War broke out during the L.B. Johnson administration; this caused the U.S. to stop its unwavering support for Israel. President Johnson understood that

Israel needed to defend itself but thought that Israel invading Jordan and would destabilize the region. Their major concern was that the U.S. and the would become involved militarily, thus leading to another world war. Congress approved the sale of Phantom fighter jets to Israel in 1968. Israel would continue to share

18 Office of the President, 82 Recognizing Jerusalem as the Capital of the State of Israel and Relocating the United States Embassy to Israel to Jerusalem (2017). 19 “U.S. Relations With Israel.” U.S. Department of State. U.S. Department of State, February 13, 2020. https://www.state.gov/u-s-relations-with-israel/.

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United States. This was the beginning of a strengthened military between the

U.S. and Israel.

The Nixon administration saw the proposal of the Rogers Plan. During this time,

Israeli Prime Minister agreed to give up the Sinai peninsula because the

Egyptians have sovereignty over the territory. For giving up Sinai, Egypt would recognize the newly formed Jewish state. This peace would only last from February to

October in 1973. In October, Egypt and Syria would lead an attack against Israel, sparking a 19-day long conflict called the Yom Kippur War. and Egyptians would continue to fight each other for several more years. This would cause President Gerald

Ford to reconsider the United States’ relationship with Israel because the fighting between Israel and Egypt created a challenge for U.S. interests. President Ford halted all aid to Israel for a short time until the Israeli-Egyptian disengagement of forces agreement in 1975. The Carter Administration strove for more peace in the Middle East and oversaw the coordination and signing of the Israeli-Egyptian peace treaty in 1979.

Included in this treaty was the removal of the Israeli occupation of Sinai and normalization between the . This led to Egypt’s boycott laws being repealed and establishing economic relations and trade.20

In the time of the Cold War between the U.S. and U.S.S.R., the ties between the

U.S. and Israel grew stronger with the election of President . The

Reagan administration produced the Strategic Cooperation Agreement signed by the

20 BAR-SIMAN-TOV, YAACOV. "The United States and Israel since 1948: A "Special Relationship"?" Diplomatic History 22, no. 2 (1998): 231-62. Accessed November 2, 2020. http://www.jstor.org/stable/24913659.

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Secretary and Minister of Defense from each country. This was merely a formality for an ongoing partnership. This agreement sought for the deterrence of Soviet armed troops in the region and closer cooperation militarily. The U.S. military began to have more training exercises with Israel forces and constructed two War Reserve Stock (WRS) warehouses for the United States. In 1989, Israel was granted a “major non-NATO ally” status by the U.S. government. Though the U.S. and Israel are close allies, President

Reagan had reiterated that the U.S. provided weapons were for defense only after

Operation Opera. This operation destroyed an Iraqi located near

Baghdad that could have been used to develop nuclear weapons. Relations weakened over the conviction of Israeli spy Jonathan Pollard towards the end of the Reagan administration. Pollard, an intelligence analyst for the U.S. government, was convicted under the act for giving to the state of Israel.

President George H.W. Bush did not start his presidency off with good relations with Israel. The President described East Jerusalem as a territory that is occupied, not sovereign territory of Israel. However, when Iraq had made threats against Israel,

President Bush stood firmly with Israel’s government. Iraq launched several missiles into Israel, trying to get them to enter the war. This would have caused Egypt and Syria to enter the war and start a campaign against Israel. After the was settled,

President Bush announced that he would be reconvening the Madrid Peace Conference in 1991. The President pushed Israel's new Labour Party government to halt construction in territories that were occupied.

Under the Clinton administration, relations between Israel and the PLO were established, and communications between the U.S. and the PLO resumed. Major

Teeter 9 agreements between Israel and the PLO were signed, including Oslo I and II accords,

Jordan-Israeli peace treaty, and the Interim Agreement on the West Bank and the Gaza

Strip. President sent $350 million in advances in technology; $100 for anti-terrorism operations, $200 million for arrow anti-missile capabilities, and $50 million for developing an anti-missile laser.

Relations were strained with Israel during the beginning of the George W. Bush administration. Shortly after the attack on the World Trade Center in on

September 11, 2001, Israel’s government condemned the U.S. for pacifying Palestine for support of their war on terror campaign. The U.S. granted Israel a $9 billion loan for economic development in 2003. Secretary of State supported a two- state system, pushed for the relinquishment of the Gaza Strip to Palestine, and tried to get the Israelis and Palestinians to work together.

The Obama presidency caused tension in the relationship between the U.S.,

Israel, and Palestine. One of President Obama’s foreign policy priorities was to establish lasting peace between Palestine and Israel. The President convinced Prime

Minister to place a halt on all construction in captured territory for three months. The Palestinian leadership refused to come to the table because they thought the halt was not long enough. No agreement was reached and in three months, construction continued. President Obama authorized the sale of massive ordnance penetrators to Israel in 2009. In 2011, President Obama declared that Israel should return its boundaries to those set before 1967. This was criticized by the Israeli government and the Republican Party. Throughout the Obama administration, the

United States has reaffirmed its commitment to not accepting Palestine as a full

Teeter 10 member of the United Nations. However, in 2016, the Obama administration allowed an

United Nations Resolution 2334 to pass by abstaining. This resolution restricted Israel from establishing settlements and to remove all current settlement in captured land.

Then President-elect attempted to try to get the resolution to fail but was ultimately unsuccessful. The U.S. House of Representatives passed a resolution condemning UN Resolution 2334 in January of 2017.

Relations with Israel strengthened under the Trump Administration. Prime

Minister Netanyahu announced that construction will continue in the West Bank on the day President Trump was inaugurated as President. The President announced the first permanent U.S. military base in Israel later in 2017. The U.S. embassy was moved to

Jerusalem on the Israeli Day of Independence in December of 2017.21 The U.S. formally recognized the Golan Heights as Israel’s sovereign land in 2019. On August 13, 2020, the United States, State of Israel, (UAE), and the Kingdom of

Bahrain signed a joint agreement called the . The Abraham Accords is a set of treaties recognizing Israel and establishing normalized relations between

UAE/ and Israel. 22

Current Status of the Case

As of November, in 2018, the United States had not appointed a representative in the case of Palestine v United States. The representatives of Palestine requested that the court rule in their favor. In a letter to the ICJ, a legal analyst for the U.S. Department of State named Jennifer Newstead stated that the court had no jurisdiction over this

21 Zanotti, Jim. “Israel: Background and U.S. Relations.” Congressional Research Service, July 31, 2018. 22 Zanotti, Jim. “Israel: Background and U.S. Relations in Brief.” Congressional Research Service, September 11, 2020.

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Convention on Diplomatic Relations, Concerning the Compulsory Settlement of

Disputes. The Court is going to allow each party to give a statement on the jurisdiction of the Court and why the Court should or should not dismiss this application. Palestine was set to present its memorial on May 15, 2019, and the United States was set to present its memorial on November 15, 2019, according to documentation submitted to the ICJ Registrar.23

Pleading

In the case of Palestine v United States, the International Court of Justice (ICJ) should have no consideration. For the ICJ to take jurisdiction, both parties must be considered a “state.” The United States and other UN member-states do not recognize

Palestine as a state.24 The International Court of Justice has no jurisdiction over the

United States. On October 12, 2018, the United States withdrew from the Optional

Protocol to the Vienna Convention on Diplomatic Relations, Concerning the Compulsory

Settlement of Disputes. A communication from the government of the U.S. to the UN

Secretary-General stated; “...the United States will no longer recognize the jurisdiction of the International Court of Justice reflected in that Protocol.”25 Because the United

States is no longer a signatory of the protocol, the U.S. is not subject to an ICJ case.

23 Relocation of the United States Embassy to Jerusalem (Palestine v. United States) (I.C.J. Reports 2018 November 15, 2018). 24 “Palestine Brings a Case Against the United States in the International Court of Justice at a Fraught Time for U.S.-Palestinian Relations.” American History of International Law 113, no. 1 (January 14, 2019): 143–49. https://doi.org/10.1017/ajil.2018.112. 25 “Optional Protocol to the Vienna Convention on Diplomatic Relations, Concerning the Compulsory Settlement of Disputes.” United Nations. United Nations, 1961. https://treaties.un.org/Pages/ViewDetails.aspx?src=IND.

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The United States, as a of its free will, has the right to determine where its consulates and embassies are located. This case is a prime example of a political ploy by the supposed state of Palestine. In an attempt at an attack on Israel, Palestine filed this case to set a precedent on other states that might want to move their embassies and recognize the “eternal capital” of Israel.

As agreed upon in the Oslo Accords, the government of the United States recognizes the Palestinian Liberation Organization as the representatives of the

Palestinian people. However, it does not recognize the State of Palestine. In a speech on the floor of the UN General Assembly, President Obama stated in regards to Israeli relationship with the U.S.: “America's commitment to Israeli security is unshakable. Our friendship is deep and enduring.”26 Therefore, the government of the United States of

America will not entertain nor recognize this case filed by the supposed State of

Palestine and will not recognize the jurisdiction of the International Court of Justice.

26 Goldberg, Jeffery. “An Impassioned Pro-Israel Obama Speech at the UN.” The Atlantic, September 21, 2011.