Italy’s stance on the US recognition of Jerusalem as the capital of Israel

On 6 December 2017, the United States (US) President, Mr. Donald Trump, put into effect his presidential campaign promise to effectively recognize Jerusalem as the capital of Israel, thereby indicating a future move there for the US embassy from Tel Aviv. Such a decision has been interpreted by many as marking a turning point in the US approach towards the Israeli-Palestinian issue. Indeed, even though the 1995 Jerusalem Embassy Act adopted by the US Senate and House of Representatives committed the Federal Government to moving the US Embassy to Jerusalem, since its enactment every US President has regularly availed himself of the possibility to invoke a six-month waiver of the application of the law. President Trump himself signed such a waiver twice, before (June 2017) as well as after (December 2017) his own declaration. Nonetheless, his announcement sparked controversy and many countries voiced their dissent. Italy is among those States and its stance will be discussed below. However, in order better to understand the dissent it expressed along with a number of other countries, it is useful to provide a factual and legal context, starting with Mr. Trump’s actual words. 

In his speech, Mr. Trump motivated his decision as follows: 

Israel is a sovereign nation with the right, like every other sovereign nation, to determine its own capital. […] But today we finally acknowledge the obvious. That Jerusalem is Israel’s capital. This is nothing more or less than a recognition of reality. It is also the right thing to do. It’s something that has to be done. 

However, he also added: 

We are not taking a position of any final status issues including the specific boundaries of the Israeli sovereignty in Jerusalem or the resolution of contested borders. Those questions are up to the parties involved. 

This specification seems to downplay the bearing of Mr. Trump’s declaration and to move it closer to the position of other States as well as of previous US administrations. Indeed, it must be recalled that, until the early Eighties, the US abstained on some resolutions in which the United Nations (UN) Security Council condemned the Israeli presence in the Palestinian territory.[1] Although the threat of veto made it impossible for the Security Council to approve similarly phrased resolutions for about 35 years,[2] in December 2016, one year before Mr. Trump’s declaration, his predecessor at the White House, Mr. Barak Obama, opted for his country to abstain on a resolution condemning the policy of Israel towards the occupied territories. By means of Resolution 2334 (2016), the Security Council: 

1. Reaffirm[ed] that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law [… and]

2. Underline[d] that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiation.

Despite the recent recognition of Jerusalem as the capital of Israel, a certain degree of continuity can be discerned in the US position on this issue. Apparently, part of the international community, including the US until the end of 2016, considers the 1967 lines – which divided Jerusalem between a Western part under the authority of Israel and an Eastern part annexed by Jordan – as the starting point for the determination of the borders of a Palestinian State. By refusing to address the question of contested borders and leaving it to the disputants, Mr. Trump’s declaration seems to take a similar approach. Indeed, if it is true that the declaration did not specifically mention the 1967-lines benchmark, it should also be noted that such lines are sometimes considered as susceptible of being modified by agreement of the parties (though the criteria against which the modifications are to be assessed are not always spelled out). [3]

For instance, on 6 April 2017 the Russian Federation issued an official communiqué specifically making reference to “West Jerusalem” as the capital of Israel, with no prejudice, however, to a negotiated solution of the territorial controversy. The European Union (EU) stance, too, to which Italy strictly adheres, stresses the need for the issue of borders to be settled through direct negotiations between Israel and Palestine, starting from the 1967 ceasefire lines. However, both the EU and Italy refrain from recognizing Israel’s sovereignty over Jerusalem. It is worth quoting in full the Italian reaction to the Trump declaration, as expressed on three occasions. On 7 December 2017, the Ministro degli Affari esteri e della Cooperazione internazionale (Minister of Foreign Affairs and International Cooperation), Mr. Angelino Alfano, issued the following  statement:

Italy’s position on Jerusalem remains anchored to that of Europe and to the international consensus gathered within the UN. 

A solution for Jerusalem as the future capital of two States is to be sought in negotiations between Israelis and Palestinians within the peace process based on the two-State solution, taking into account the legitimate expectations of both sides. 

Until this occurs, Italy will continue to abide by the relevant UN resolutions and maintain its Embassy to the State of Israel in Tel Aviv. 

We are concerned about the repercussions that the announcement of the United States’ new approach can have on the ground. We call on the sense of responsibility of all the players in Palestine and in the region to avoid accidents and acts of violence that would benefit no one. 

Italy, together with its EU partners – and in contact with regional and international actors – will assess the situation and reflect on possible European initiatives aiming at contributing to a substantial resumption of the peace process in the prospect of a two-State solution, which must be upheld as it is the only one realistically viable. 

The following day, 8 December 2017, the Italian Permanent Representative to the UN Security Council, Ambassador Sebastiano Cardi, together with his French, German, Swedish and British colleagues, adopted the following joint statement, which was said to represent the position of the whole EU: 

We disagree with the US decision to recognize Jerusalem as the capital of Israel, and to begin preparation to move the American embassy from Tel Aviv to Jerusalem. It is not in line with Security Council resolutions and is unhelpful in terms of prospects for peace in the region. 

The status of Jerusalem must be determined through negotiations between Israelis and Palestinians leading to a final status agreement. It is a constant position of EU Members that, within this framework, Jerusalem should ultimately be the capital of both Israeli and Palestinian states. Until then, we recognize no sovereignty over Jerusalem. 

In line with international law and relevant Security Council Resolutions, notably resolutions 476, 478 and 2334, we consider East Jerusalem as part of the Occupied Palestinian Territories.  An agreement on the borders of the two states should be based on the 4 June 1967 lines with equivalent land swaps as may be agreed between the parties. The EU will not recognize any changes to the pre-1967 borders, including with regard to Jerusalem, other than those agreed by the parties. 

Given the volatile situation on the ground, we call on all parties and all regional stake holders to work together to maintain calm. 

We all share a willingness to put an end to the conflict. We note the commitment made by President Trump to support a two-state solution if agreed to by both sides and his clear acknowledgement that the specific boundaries of the Israeli sovereignty in Jerusalem must be subject to negotiations between the Israelis and the Palestinians. We stand ready to contribute to all credible efforts to restart the peace process, on the basis of internationally agreed parameters, leading to a two-State solution. We encourage the US Administration to now bring forward detailed proposals for an Israel-Palestinian settlement. 

Ten days later, on 18 December 2017, Mr. Cardi reiterated this position by indicating Italy’s support for a draft resolution, tabled by Egypt, that would have called upon all States to refrain from establishing diplomatic missions in Jerusalem (the resolution, however, was unsurprisingly vetoed by the US).

This is a stance that Italy has consistently taken with regards to the Israeli-Palestinian question, both at the domestic and international levels, before as well as after the Trump declaration. In 2017, for instance, Italy intervened several times before the UN Security Council on this issue. On the occasion of the Security Council Open Debate on the Middle East, including the Palestinian question, of 25 July 2017, the Italian Deputy Permanent Representative to the United Nations Security Council, Ambassador Inigo Lambertini expressed 

full adherence to Italy’s long established position on the Middle East peace process, including with regard to the 1967 lines and to East Jerusalem as set out in the relevant conclusions of the Council of the European Union.[4] 

Almost the same words were pronounced by Mr. Lambertini during the Security Council Open Debate on the Middle East, including the Palestinian question, of 18 October 2017. Interestingly, on two other occasions, in April and June 2017, reference was made by Mr. Cardi not to the 1967 borders but, rather, to the Oslo accords: 

Any new approach that leads to a just and lasting peace will be welcome and Italy will contribute to it, as long as it remains within the Oslo framework and it pursues the two-State solution.

Indeed, 

we are open to considering new diplomatic schemes aimed at achieving a negotiated solution, provided that they remain within the boundaries of the Oslo framework.

It is worth recalling that, according to the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (also known as Oslo II Accord), “[n]othing in th[e] Agreement shall prejudice or preempt the outcome of the negotiations on the permanent status [of the West Bank and the Gaza Strip]. Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions”. Such negotiations should have covered, inter alia, the issues of Jerusalem and the borders between Israel and Palestine (Article XXXI, paras. 5 and 6). Therefore, even though the Accord provisionally put a large share of the West Bank under Israeli control, it can be said that Italy’s stance is not contradictory. 

The same position was put forth at the domestic level. On 13 December 2017, before the Camera dei Deputati (Chamber of Deputies, 900th Meeting, XVII Legislature), Minister Alfano reiterated Italy’s adherence to the EU and the UN consensus, as well as the idea of Jerusalem as the capital of both the Israeli and Palestinian States, in the framework of a mutually agreed-upon solution. He also defined this stance as consistent with the two parliamentary motions (Motions nos. 1-00745 and 1-00746) passed by Chamber of Deputies on 27 February 2015,[5] whereby the Parliament committed the Italian Government “to promote the recognition of Palestine as a democratic and sovereign State within the 1967 borders and with Jerusalem as a shared capital”, “including possible territorial exchanges between the parties”, but only under certain (vaguely posited) circumstances. On 15 March 2017, before the Chamber of Deputies (760th Meeting, XVII Legislature), the Ministra per i Rapporti con il Parlamento (Minister for the Relations with Parliament), Ms. Anna Finocchiaro, confirmed the intention of the Government to comply with the directives set out by the motions. In particular, she said: 

This is a commitment that the Government made in Parliament, by which it is willing to abide under the conditions set out in the motion of February 2015 itself […], that is, “at the right time and in the appropriate conditions”. All European governments stuck to this rule, that is, to save the card of formal recognition so as to be able to play it when it will be most useful and essential to give a real boost to the peace process, rather than merely making a token gesture. 

Here, too, it clearly emerges that the position of Italy is overtly anchored to that of the EU. All its salient features (the 1967 lines as the starting point to solve the dispute on borders, Jerusalem as the capital shared by both Israel and Palestine, the need for a negotiated solution and the abstention from recognition of the claims of both parties until such solution is in sight) are common to most EU Member States, though not all of them.[6] This willingness to adhere to a shared European position, as well as a politically- rather than legally-motivated approach to recognition (i.e., qualification of facts), have been demonstrated by Italy in other circumstances.[7] Interestingly, such an intention to conform to a common EU stance had already become, in late October 2016, the object of a direct accusation by the then Presidente del Consiglio dei Ministri (President of the Council of Ministers) Matteo Renzi. On 13 October 2016, Italy abstained on a UNESCO resolution on the “Temple Mount” question.[8] A week later – as newspapers reported – Mr. Renzi defined this episode “unreal”, scolding the Italian diplomacy, and indirectly the then Minister of Foreign Affairs, Mr. Paolo Gentiloni, for driving on “autopilot”. In Mr. Renzi’s view, this term also covered the European guidance, and he called for discontinuity: “I expressly asked to stop taking such positions. We cannot continue to support such motions that are aimed at attacking Israel. If, on this issue, we must break the European unity, then we will break it”. On 17 January 2017, before the Commissioni riunite – Affari esteri e comunitari (III) della Camera dei Deputati; Affari esteri, Emigrazione (3a) del Senato della Repubblica (Joint Commissions – Foreign and European Affairs (III) of the Chamber of Deputies; Foreign Affairs, Emigration (3rd) of the Senate of the Republic), the Minister of Foreign Affairs, Mr. Alfano,[9] rejected this criticism. More specifically, he stressed that Italy had manifested its reservations about the way the UNESCO resolution had been originally drafted, and clarified that “being in an open field” – that is, having no prejudiced position – requires that forces be joined with all like-minded countries. 

Finally, it must be noted that, on 12 December 2017, the Senato della Repubblica (Senate of the Republic, 915th Meeting, XVII Legislature) passed a motion (Motion no. 6-00269, first signatories Zanda, Bianconi, Zeller, Barani), also approved by the Sottosegretario di Stato per gli Affari esteri e la Cooperazione internazionale (Undersecretary of State for Foreign Affairs and International Cooperation), Mr. Benedetto della Vedova, on behalf of the Government, which, recalling a 2014 resolution of the European Parliament,[10] committed the Italian Government

to promote at the EU level all actions aimed at resuming a credible negotiating process between Israelis and Palestinians and prevent new hostilities between them. 

A few days later, on 20 December 2017, at the 919th Meeting of the Senate of the Republic, Ms. Laura Puppato posed an interpellation (no. 2-00493) whereby the Government was asked which diplomatic measures it intends to take to ensure compliance with international law, especially with respect to the status of Jerusalem as a shared capital, and to sustain the efforts of the international community for a peaceful resolution of the Israeli-Palestinian conflict, with a view to recognizing the State of Palestine. 

On 28 December 2017 the Presidente della Repubblica (President of the Republic), Mr. Sergio Mattarella, dissolved the Parliament, before the interpellation could be answered.

[1] For example, Security Council Resolution 478 of 20 August 1980, paras. 1 and 2, “[c]ensure[d] in the strongest terms the enactment by Israel of the ‘basic law’ on Jerusalem”, which it deemed to constitute “a violation of international law” (the so-called Jerusalem Law was passed by the Knesset on 30 July 1980 and established Jerusalem as the capital of Israel). The same document, at para. 2, referred to “the Palestinian and other Arab territories occupied since June 1967, including Jerusalem”: an expression that can be found in other resolutions of the same period that determined “that all measures taken by Israel to change the […] status of the Palestinian and other Arab territories occupied since June 1967, including Jerusalem, or any part thereof have no legal validity”. 

[2] But see, e.g., Security Council Resolution 1073 of 28 September 1996, “[r]ecalling [the] resolutions on Jerusalem and other relevant Security Council resolutions” (third recital of the preamble), and Security Council Resolution 1322 of 7 October 2000, expressly recalling Resolution 478 (1980) (first recital of the preamble). The United States abstained on both. 

[3] A criterion (that of “equivalent land swaps”) can be found in the joint declaration of 8 December 2017 whose text is below. Sometimes, the very possibility of changing the lines is not explicitly stated, though indirect support might perhaps be inferred from reference to Security Council resolutions or other international documents. For instance, the Members States of the Organization of the Islamic Cooperation issued on 13 December 2017 a statement by which they said to “[c]onsider that th[e] dangerous [Trump] declaration, which aims to change the legal status of the City of Al-Quds Al-Sharif, is null and void and lacks any legitimacy, as being a serious violation of the international law, and the Fourth Geneva Convention in particular, and all relevant resolutions of international legitimacy, particularly the UN Security Council resolutions No. 478 (1980) and 2334 (2016)” (para. 5). The statement also backed up the establishment of an “independent and sovereign Palestinian State on the borders of 4 June 1967, with Al-Quds Al-Sharif as its capital” (para. 2). Rectius: its Eastern part, as the Members of the Organization also “[r]eaffirm[ed] [their] attachment to the just and comprehensive peace based on the two-state solution with east Jerusalem as the capital of the State of Palestine” (para. 3) and “[d]eclare[d] East Jerusalem as the capital of the State of Palestine” (para. 8). The full text of the statement is available here.

[4] The full text of the statement is available here (the Council of the European Union routinely issues conclusions on foreign affairs). In his speech, Mr. Lambertini also said that “Italy supports President Abbas as the legitimate representative of the Palestinian leadership, and we uphold the goal of increased pressure by the Palestinian authority on Hamas in order to retake control over the Gaza Strip and restore the whole Palestine under a single, democratic and legitimate authority”. 

[5] The English translation of the full text of both motions can be found in IYIL, XXV (2015), pp. 546–550. 

[6] For instance, in October 2014 Sweden recognized the State of Palestine. Moreover, the positions of the EU countries on recognition is possibly less homogeneous than Italy claims it to be (Ms. Finocchiaro’s words are identical to those uttered by the then Minister of Foreign affairs, Mr. Paolo Gentiloni, in October 2016: see IYIL, XXVI (2016), pp. 596–599).

[7] For example, on 8 March 2017, before the Chamber of Deputies (755th Meeting, XVII Legislature), speaking of the massacre of the Yazidis beginning in 2014, Minister Alfano said: “We are paying close attention to what our partners are meant to do, and how, about the recognition of those facts as a genocide, also with a view to ensuring coherence to actions on the international plane”. 

[8] See IYIL, XXVI (2016), pp. 596–599.

[9] In December 2016 a new Government took office.

[10] European Parliament resolution on recognition of Palestine statehood, 2014/2964 (RSP), approved on 17 December 2014.

Minister Alfano, Chamber of Deputies, 8 March 2017.

Minister Finocchiaro, Chamber of Deputies, 15 March 2017.

MPs Zanda, Bianconi, Zeller, Barani, Senate of the Republic, 12 December 2017.

Minister Alfano, Chamber of Deputies, 13 December 2017.

Ms. Puppato, Senate of the Republic, 20 December 2017.

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