A Good Day For Israel At The International Criminal Court Today — And For Menachem Zivotofsky At the U.S. Supreme Court This Week

UPDATE (5:00 pm Tuesday): PM Netanyahu and his cabinet are currently considering the situation of the Machpelah house near the Cave of the Patriarchs in Hevron. The Jewish community members who are currently in the house–which they own–were scheduled to be evicted two hours ago at 3 pm.  The IDF says that the eviction order is still in effect though Netanyahu has asked so-called “Defense Minister” Ehud Barak to delay implementation of the order.


The last few days have seen Israel and a citizen born in Israel win on two important judicial fronts.

This morning the International Criminal Court (ICC) prosecutor in The Hague rejected the PLO/Palestininan Authority’s petition to recognize the ICC’s  juridisdiction in Judea, Samaria, and Gaza. The Palestinian Authority had unilaterally recognized ICC jurisdiction in the first months of 2009 in hopes of having the ICC permanent War Crimes Tribunal investigate the Israeli Gaza Operation known as Cast Lead.

Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court in The Hague

Specifically, ICC Prosecutor Luis Moreno-Ocampo announced today that “relevant bodies at the United Nations” must decide if “Palestine” is an “internationally recognized state” under the jurisdiction of the Rome Statute–the ICC’s founding treaty. Such recognition not having been given, Moreno-Ocampo announced that the ICC was rejecting the PLO/PA petition.

What is the bottom line? The decision effectively blocks the PLO/PA from petitioning the ICC to pursue bogus war crimes accusations against Israeli soldiers and leaders. This is a major victory for Israel and setback to the Palestinian campaign for international recognition as an independent state.

Meanwhile in the United States last week, the U.S. Supreme Court ruled decisively against the Obama Administration in the case surrounding whether or not a person born in Jerusalem can have “Israel” listed as the country of his birth on his passport.

Nine year old Menachem Zivotofsky--the boy who wants to have "Jerusalem Israel" listed on his American passport.

In refusing 9 year old Menachem Zivotofsky, who was born in Jerusalem, the right to have “Israel” listed as his country of birth, the Obama Administration had argued that it alone had the right to decide if Jerusalem should be listed as a city in Israel–despite the fact that the U.S. Congress had passed a law in 2002 specifically enabling those born in Jerusalem to have “Jerusalem Israel” listed as their place of birth on their passports.

The Obama Administration argued that”the political question doctrine” precluded the judicial process from interpreting the Congressional statute claiming that if a court were to interpret such a statute it would “intrude on the President Obama’s prerogative to make foreign policy.”

The Supreme Court justices rejected the Obama argument in an 8-1 ruling. The court specifically held that the political question doctrine does not apply where a statute conveys a clear right to individuals. Writing for the Court, Chief Justice Roberts held that:  “Resolution of [the] claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do. The political question doctrine poses no bar to judicial review of this case.”

In making the ruling, the Court did not order Israel to be written on the passport saying that the lower court should make that determination.

Nevertheless, Chief Justice Roberts let it be known in his decision that he sided with Zivotofsky writing that putting “Israel” on the passport is not a “pronouncement” of U.S. foreign policy: “Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right to choose to have Israel recorded on his passport as his place of birth.”

There is every indication that a lower court will now rule in favor of Zivotofsky being able to list “Jerusalem Israel” on his passport. It is absurd that this case had to go to the Supreme Court in the first place.

Addendum: South Sudan announced this morning that it would be placing its new embassy in Israel’s capital: Jerusalem, Israel.




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