Australia's changed stance on east Jerusalem
11 June 2014
The attorney general and foreign minister have declared that Australia will not describe east Jerusalem as "occupied". The government says that the term is "pejorative", "judgmental", and neither "appropriate nor useful". It also says that it refers to "historical events" which are "unhelpful" in current peace negotiations. These views have been widely reported in the Middle East, and they also depart from previous Australian policy.
Australia's new view is starkly at odds with the true status of east Jerusalem under international law. It also corrodes the international rule of law and violates Australia's international law obligations.
The situation is governed firstly by international humanitarian law, namely the Geneva conventions of 1949 and the customary Hague regulations of 1907. Territory is considered "occupied" when, as a result of military conflict, a country exercises effective administrative control over foreign territory. Legally, this is a question of fact: does Israel control east Jerusalem or not? Undoubtedly, it has since the 1967 war.
The term "occupation" is therefore not pejorative or judgmental. It is an objective legal description of Israel's physical control of a place beyond Israel's borders at independence in 1948. This area east of the "green line" includes east Jerusalem and the West Bank. The legal term does not imply anything further about whether Israel's occupation is "legal" or "illegal", or good or bad. It simply refers to the fact of control.
In 2004, the International Court of Justice, in its Israel wall advisory opinion of 2004, confirmed that territory can be "occupied" even if there is an underlying dispute about sovereign ownership of that territory. In the 1967 war, Israel displaced prior Jordanian control over east Jerusalem. Jordan's claim was contested by Israel. Jordan later renounced its claim in favour of the Palestinian right of self-determination.
For the International Court, what mattered is that Israel had not established its own undisputed prior sovereign legal title over east Jerusalem. Because the territory did not legally belong to Israel, it was therefore still "occupied" pending resolution of the territorial dispute. Such resolution remains pending. The operative assumption is, however, that because of the Palestinian right of self-determination, the final status of east Jerusalem cannot be unilaterally decided by Israel.
Why does the legal terminology matter? Declaring that east Jerusalem will not be described as "occupied" implies that Australia rejects the application of international humanitarian law. The Geneva conventions apply in occupied territory to protect the local population from abuses by a foreign military power. They protect civilians' basic humanitarian needs and human rights, but also their rights to property and natural resources.
Australia's position therefore dangerously signals that Palestinians living in east Jerusalem no longer enjoy the protection of humanitarian law, but are subject only to Israel's wishes. Israeli settlements have proliferated in east Jerusalem, severely disrupting the property, resource and human rights of Palestinians. Israel is committed to colonising it as part of Israel proper. In truth, it is not up for negotiation any longer.
Annexation is not in the interest of the Palestinian people. Most of the settlements violate article 49 of the Geneva conventions, and constitute war crimes under international criminal court statute. Settlements are also war crimes under Australian domestic law implementing that statute.
Under article 1 of the Geneva conventions, Australia has an obligation to "respect and ensure respect for" international humanitarian law, including where other countries occupy territory. Australia thus has a duty to urge Israel to comply with humanitarian law, not to aid Israel to deny that the occupation exists.
A second area of international law is also relevant. Since 1945, under the United Nations charter, every country is prohibited from acquiring sovereign legal title to foreign territory by military force. This is obvious in cases of aggressive invasion. But the principle applies equally to wars of self-defence, as in 1967 when Israel repelled Arab attacks. While territory may be defensively occupied, it cannot be unilaterally appropriated as the country's own sovereign territory.
Israel has openly purported to annex east Jerusalem as its own. This claim has not been recognised by any other country and is manifestly illegal. Australia's refusal to call the occupation for what it is necessarily endorses Israeli's illegal acquisition of territory by force. It undermines the cardinal principle of the post-1945 world order, namely that the powerful cannot simply take what they want by force. It violates Australia's further duty, identified by the International Court, not to recognise this illegal situation. It also violates Australia's obligation to respect the right of self-determination of Palestinians.
Calling east Jerusalem "occupied" simply recognises the near-universal legal status quo, namely that it is not sovereign Israeli territory. By contrast, it is precisely judgmental and pejorative to shatter the global legal consensus by implying that east Jerusalem is not occupied and belongs to Israel.
To dismiss "historical events" as unhelpful in resolving the dispute is astonishingly ignorant, and foolish. Disputes arise precisely because of history. No fair resolution is possible without confronting them. Palestinians cannot simply be asked to forget what happened to their homeland, taken by Israel, and blissfully negotiate an ahistorical future.
It is true that international law also provides for negotiations between Israel and Palestine to resolve a range of disputed issues, including east Jerusalem. But, as in any dispute, negotiations do not exist in a legal vacuum. They are bound on all sides by intransgressible legal principles. To suggest that negotiations should take place in a lawless space is to accept that the stronger party should roll the weak and get what it wants.
George Brandis and Julie Bishop should know better. Australians expect better. Previous polling shows that most Australians want the Israel/Palestine dispute to be resolved according to international law and human rights. We should stand for international justice and the rule of law - and not barrack for the unforgiving law of the jungle.