In the Media

Mark Leibler

The Age – June 23, 2014 – 5:51PM

In response to the recent controversy over the Australian government’s clarification to continue to avoid referring to east Jerusalem as ‘occupied’, The Age editorialised ‘the goal of a two-state solution … is not helped by pretending Israel is not in control of lands claimed by the Palestinians’ (June 20).

No one would disagree that Israel has indeed been ‘controlling lands claimed by the Palestinians’ – but the word for land controlled by one party but claimed by another is ‘disputed’ not ‘occupied’. International law, in the form of treaties like the Fourth Geneva Convention and 1907 Hague regulation, has generally used ‘Occupied territory’ to mean the sovereign territory of one state that is controlled by another.

That is not a reasonable description of the areas in question. While Jordan controlled the area from 1948 to 1967, it is not sovereign Jordanian territory, because Amman’s ownership was never recognised by the international community and Jordan renounced any claim in 1988. And there has never been a Palestinian state there – despite twenty years of negotiations devoted to the details of how and where to establish one.

This is also why Foreign Minister Julie Bishop had a point when she questioned in January what made Israeli settlements illegal, as is so often claimed. Contrary to The Age‘s assessment that it showed a ‘disturbing ignorance of the Geneva conventions’, the West Bank is arguably not ‘occupied’ under the terms of the Fourth Geneva Convention.

Moreover, even if the convention applies, a strong legal argument can be made that its provisions were only intended to forbid forcible transfers, while Israelis who live in settlements moved there voluntarily.

This whole recent kerfuffle started when, at Senate hearings, the Australian Greens, together with independent Senator Nick Xenophon, tried to push Attorney-General George Brandis to adopt their preferred policy of only referring to eastern Jerusalem as ‘Occupied East Jerusalem’. When he demurred, Palestinian diplomats and Arab ambassadors joined in to also try and persuade the Australian government to adopt their preferred language, bullying with threats to punish Australia if it did not concede.

But a search of the statements of past foreign ministers – Carr, Rudd, Smith, Downer and Evans – indicates that they almost never adopted this terminology. We should not let ourselves be cajoled into doing so now – not least because it is unhelpful to the longstanding bipartisan consensus in this country, in place for decades, that our goal in the Israeli-Palestinian sphere is to facilitate a negotiated two-state peace.

As Australia’s Ambassador to Israel Dave Sharma recently explained in Tablet Magazine, “Our position on this is that all the final status issues as identified by Oslo – and that includes the status of Jerusalem, borders, right of return – are all amenable only to political negotiations and a political solution,” adding, “And so a third country taking positions on the legal merits of each party’s plans, if you like, is not helpful and not constructive and ultimately not what’s needed.”

The basis of the all Israeli-Arab political negotiations is UN Security Council Resolution 242, passed in 1967 after Israel captured east Jerusalem, West Bank, Gaza Strip, Sinai Peninsula and Golan Heights in a war of self-defence. It calls for Israel to withdraw “from territories occupied in the recent conflict” in return for peace. According to the diplomats involved in the drafting it was intentional that the resolution did not say “all the territories” or “the territories” because its drafters wanted to indicate that the boundaries should be negotiated – meaning an Israeli claim to keep some territory was recognised.

Since the 1967 war, Israel has sought to negotiate “land for peace” based on 242, and has signed peace treaties with Egypt and Jordan. Since 1993, when the Oslo Accords were signed, Israel has been attempting to negotiate an end to the conflict with the Palestinians including the establishment of an independent Palestinian state incorporating the vast majority of the West Bank and Gaza Strip.

In 2000, 2001 and 2008, Israeli governments offered a Palestinian state on nearly all of the West Bank, Gaza Strip and the Arab neighbourhoods of east Jerusalem, with land swaps to compensate for the areas Israel proposed to keep. The Palestinian leadership failed to either accept these offers or make any counter-offers. Their insistence that all the land in question is ‘occupied’ is likely one important reason why.

The Palestinians and their Arab allies want everyone to endorse their proffered language of “occupation” because it implies that all the land is already rightfully theirs, and they should not have to compromise on make or break issues like the claimed right of return, or meet Israel’s security needs, or agree to a final peace with Israel in order to get it back. They have used their overwhelming numbers at the UN General Assembly, which the Arab and Islamic states dominate via the Non-Aligned movement, to repeatedly endorse their preferred language.

These decisions are politicised and anyway, not legally binding. However, they have been distinctly destructive of peace hopes – with Palestinian leaders often promoting paper endorsements of their position at the UN rather than engaging in the difficult decisions and compromises required in negotiations.

As Ambassador Sharma noted, it is simple common sense for Australia to avoid becoming involved in such semantic games.

Mark Leibler is National Chairman of the Australia/ Israel & Jewish Affairs Council.