2 The Recent Proceedings before Roman Judges Concerning the Status of Jerusalem
The circumstances which brought the complex issue of Jerusalem before the Roman judges are utterly peculiar. On 21 May 2020, in the course of a prime-time game show transmitted by rai, the presenter asked one of the competitors about the capital of Israel: “Tel Aviv”, was her swift and confident reply. Unfortunately for her, this answer was considered wrong and Jerusalem was instead suggested as the right solution. This apparently trivial event sparked considerable political discontent among Palestinian associations in Italy and the so-called Embassy of the State of Palestine. On 5 June, in a following episode of the show, the presenter apologised on behalf of the tv channel for causing unintentional embarrassment and controversy. He clarified that the programme was merely an entertainment show lacking any political intent and recognised that there are different opinions on the point. Finally, he stated that that specific question on the capital of Israel would not have been considered relevant for the purposes of the game.
The Palestinian associations, however, were left unsatisfied by this statement and brought the matter to the Tribunal of Rome. They contended that the previous release was drafted in a neutral fashion, thus presenting the facts disproportionately in favour of Israel and in a way detrimental to the expectations of the Palestinian people. In their view, the company had to mention not just that the international status of Jerusalem is currently controversial but also, and more specifically, that international law and the international community do not recognise Jerusalem as the capital of the State of Israel. rai, for its part, asserted that the two associations were not defending an objectively and definitively proved truth but were just supporting their own point of view. The status of Jerusalem, so the argument ran, is still the subject of contrasting interpretations in the present international debate. On this ground, rai considered that the claimants’ request went far beyond the protection normally provided for by the right to rectification in broadcasting systems.
By Order No. 31253 of 5 August 2020, the Tribunal’s Section specialized on the Rights of the Person and Immigration totally upheld the Palestinian point of view. As a preliminary procedural step, the judges recognised the full eligibility of both applicant Palestinian associations to claim for a different rectification of the wrong answer about the status of Jerusalem, their aim being precisely to ensure that the Italian public opinion receives accurate information on the Palestinian question. After a succinct review of relevant practice on the status of Jerusalem, and particularly of United Nations (“UN”) resolutions on the matter and of the position of the Italian government, the Tribunal concluded that under international law Jerusalem “cannot be considered” as the capital of Israel and imposed rai to air, in the show’s following episode, a statement so worded: “international law does not recognise Jerusalem as the capital of the State of Israel”. In other words, the Tribunal was not satisfied with a generic declaration on the status of Jerusalem being currently controversial. It also required that the international principle of non-recognition be expressly referred to.
The first Order was challenged by rai and completely reversed by a second Order (No. 28912 of 25 September 2020) issued by a different chamber of the Tribunal of Rome (the 18th Civil Section). In its pleading, rai reminded that rectification’s only goal is to provide restoration of the truth of objectively false information, in line with the right to freedom of expression under Article 10 of the European Convention on Human Rights (“echr”). Instead, the first Order had tried to add unnecessary details (non-recognition of the declaration of Jerusalem as the capital of Israel) to an objectively true information (the status of Jerusalem is currently controversial). rai also contested that Italy is internationally obliged under UN resolutions not to recognise Jerusalem as the capital of the State of Israel, pointing to the fact that the resolutions cited by the first Order were mere recommendations and could not be considered as sources of international law.
It is worth noting that not only Palestinian, but also pro-Israel associations intervened in this second case, bringing in a lively confrontation between two different positions from civil society institutions. Pro-Palestine organizations reiterated that the rectification offered by rai was unacceptable, the status of Jerusalem being far from disputed. Without making any distinction between UN binding and non-binding acts, they considered all of them, including recent General Assembly Resolution 72/40 of 21 December 2017, as imposing the obligation not to recognise the illegal designation of Jerusalem as the capital of the State of Israel. By contrast, the pro-Israeli associations backed the rai position. They affirmed that the news about Jerusalem being the capital of Israel is true. Israel, as the State de facto governing the territory of Jerusalem, has proclaimed this city as its capital in the free exercise of its sovereign powers, although this decision is not recognised by most States and is condemned by the UN.7 Coherently, it had moved there the seat of its main public institutions, namely the Government, the Parliament, and the Supreme Court.
This time, the Tribunal of Rome upheld rai’s claim, annulling the first Order by means of an interesting reasoning. In the first place, the appeal judges restated the basic principle, expressed by Article 32-quinquies of d.lgs. 177/05, that rectification should be invoked only to contrast objectively evident false reports. Secondly, they admitted that the statement “Jerusalem is the capital of Israel” is not per se false but just gives an incomplete information requiring further clarification. According to the tribunal, pictures are often transmitted to the public showing foreign Heads of State paying their visit to Jerusalem, thus recognising the centrality of the Holy City role among other Israeli towns, including Tel Aviv. Thirdly, they considered the second statement by rai whereby “the status of Jerusalem is disputed” as properly supplementing the incomplete information given during the show. Finally, the Tribunal cast doubt on including the relevant UN resolutions among the sources of international law. Their non-binding effects would not support a solution of the question based on these acts exclusively.
Massimo Iovane, giurista