A senior legal figure has concluded that Israel was furthering its agenda to annex East Jerusalem when it closed the British consulate there this month.
Dominic Grieve KC, who was the government’s top legal adviser from 2010 to 2014, said the closure was “an unlawful assertion of Israeli sovereignty over occupied East Jerusalem”. The move came after the UK government announced a ban on trading goods and services from illegal settlements.
“The UK’s settlement sanctions are an excuse; sovereignty over Jerusalem is the object. Israel’s method in the city has been to create facts on the ground through unlawful settlement building and property seizure,” Mr Grieve wrote in an advisory paper commissioned by the Britain Palestine Project, a charity that advocates for a British peacemaking role in the conflict.
“The closure should be challenged as a further attempt to exercise powers outwith those permitted to an occupier.”
Sir Vincent Fean, a former consul general in Jerusalem, said such a challenge would pose a dilemma for the UK as the action would then recognise Israeli Supreme Court jurisdiction over the dispute. “There’s a conundrum, there’s a dilemma. If you’re the British government, and Israel is the occupying power, you can’t go to the Supreme Court because it contradicts your legal position,” he told The National.
Foreign Secretary Ed Miliband said the UK was looking at "all the options" to prevent the closure from happening but declined to give further details.
“I do not want to speculate on this, but we do not want this to happen. It would damage the very important work that we are doing, helping people in those communities," he told LBC.
"The consulate has been there for nearly 200 years. And this is a long-standing position that we have had," he said. "It doesn't help anyone, the Israeli government taking this position. And I would say we're looking at all the options.”
Mr Grieve's legal view was sent to the Foreign, Commonwealth and Development Office in the last few days. Diplomats at the consulate will lose their legal status in just over a week as a result of Israel's decision to close it.
Yet the Israeli decision draws on powers that “belong to a territorial sovereign”, which it does not have in East Jerusalem, according to the advisory paper. The response also points to two Security Council resolutions, 478 (signed in 1980) and 2334 (agreed in 2016), which reject Israeli measures to alter the status of Jerusalem and to refuse the recognition of any unilateral changes to the internationally agreed pre-1967 borders.
The UK could also argue that the act of retaliation is unjustified and that the Israeli announcement "usurps the right of the Palestinian state”.
“Any legitimate Israeli countermeasure requires a prior internationally wrongful act by the UK. There is none: the settlement import ban gives effect to the third-state obligations the ICJ identified,” the paper says.
The legal view highlights that the UK mission in Jerusalem is “no ordinary consulate”, and predates the state of Israel by 110 years. It was established in 1838 when Palestine was still part of the Ottoman Empire. Israel had never accredited the consulate general, and that there is therefore “no accreditation for Israel to withdraw”.
“There are clear limits to Israel’s power as an occupier. This is one such limit,” the paper notes.
European countries that have recognised Palestine have long sought to protect their consulates in Jerusalem. Their presence there is important to protect the UK and EU policies of rejecting Israel’s annexation of East Jerusalem and Israeli claims to the whole city as its capital.
Yet the options for a legal challenge are limited. The UK would struggle to take it to the Israeli Supreme Court, and a pathway through the International Court of Justice in The Hague could take years. “You could conceivably go to the ICJ, but that’s a slow track,” said Mr Fean. “There’s an emergency here.”
Israel has yet to respond to France and Spain's restrictions on trade with illegal settlements but there is concern over the status of their consulates.
On Monday, the Israeli Foreign Minister Gideon Saar said that Dutch diplomats serving the Palestinian city of Ramallah had seven days to hand over their Israeli diplomatic credentials. The fear of expulsion from the city had previously held countries such as France and the UK back from officially upgrading their missions to embassies following recognition.
