Introducing the decision of an Italian court refusing to consider Jerusalem the capital of Israel

By Rawan Radi

For: Law for Palestine

In early August Italia witnessed the issuance of an important decision by the Rome Court (Department of Human Rights and Immigration), declaring Jerusalem an occupied city and rejecting its labelling as the capital of Israel. The case began when the “Charitable Association for the Support of the Palestinian People in Italy” and the “Palestinian Gathering in Italy” filed a case with the Rome Court against Italian state television (Rai), as a result of its confirmation that Jerusalem is the capital of Israel, and not Tel Aviv, during one of the most famous competition programs (L’Eredita)- which was broadcast live last May.

One of the participants had answered the broadcaster’s question, “Flavio Encina”, about naming the capital of Israel as “Tel Aviv”, but the broadcaster rejected that answer and considered it wrong, and that the correct answer is Jerusalem. Despite the broadcaster’s timid apology after that, the plaintiffs demanded according to this appeal to condemn the official media organization and force it to correct the mistake it made.

The motives behind registering the appeal by appellants:  

• The channel that aired the program affirmed that Jerusalem is the capital of Israel, it is an official channel and the official Italian state
• The wide spread of the channel; specifically that the competition program presented on the channel, which included the question, is one of the most famous programs in Italy.
• The response of the first contestant about the capital of (Israel) being Tel Aviv, which shows an implicit emphasis on pointing out that his answer reflects that of common people in Italy; i.e., that Jerusalem is not its capital. Hence, the appeal serves to correct the misinformation made in the context of wrongly ‘correcting’ his answer.

The most important legal reasons included in the lawsuit:  

• What happened in the program is a falsification of historical facts.
• International law is categorical because Jerusalem is an occupied city, and it is not permissible for the occupying power to change its status or to take its capital in an occupied land.

The arguments presented by the defense team to dismiss the lawsuit:  

The defense team made several arguments in return, such as:

• The legal status of Jerusalem is already subject to conflicting interpretations in the international arena
• The condition of risk in delay (as the plaintiff said that delay in correcting what was done in the program means allowing more time for the spread of false information, which is that Jerusalem is the capital of Israel) does not exist.

Content of the decision:  

In its decision on the case, the court recognized that Jerusalem is not the capital of Israel and that this contravenes international law and United Nations resolutions. Judge Cichelia Bratzi based her verdict on international law and many United Nations resolutions condemning the Israeli occupation of the Palestinian territories, including East Jerusalem. The most important of these is Italy’s vote on December 21, 2017, in favor of the United Nations General Assembly resolution “rejecting the US decision to recognize Jerusalem as the capital of Israel. The judge added, “It is also known that the United Nations itself has repeatedly issued its opinion condemning the Israeli occupation of the Palestinian territories and East Jerusalem, and denies any legal legitimacy to the Israeli decision to convert Jerusalem to its capital.”

The ruling continued that “United Nations resolutions must be considered as customary law, directly applied in our legal system.” And the court required state television to pay the full costs.

Lawyer Fausto Giannelli – who is an expert on international law in Italy – commented on the decision by saying that “Jerusalem is not the capital of Israel, and everything cannot be accepted as falsifiable.”

The most important legal points obtained from the decision:  

• The decision sets a judicial precedent, as this is the first time an Italian national court – and in Europe in general – has ruled on the legal status of Jerusalem.
• The decision draws attention to the importance and role of civil society institutions in bringing such cases before the courts and legal institutions because they allow scrutiny and access to binding decisions that override the political considerations of states and are in line with international law and international legitimacy.
• The decision indicates the continuation and consistency of the Italian position regarding the Jerusalem issue. On December 21, 2017, Italy voted in favor of the United Nations General Assembly resolution rejecting the United States’ decision to recognize Jerusalem as the capital of Israel. Today, with this judicial decision, this trend is confirmed.