A response to Bob Carr and Gareth Evans in The Age and Sydney Morning Herald

Colin Rubenstein


Commonwealth Attorney-General Senator George Brandis has been attacked from various quarters – including by former ALP Foreign Ministers Bob Carr and Gareth Evans (“Australia hinders progress in Middle East peace process”, June 10) – for announcing that the Australian government will no longer refer to east Jerusalem as “occupied”.

In fact, it’s a term that has been infrequently used by Australian Ministers, although
it was implied by Carr during the 18 months when he was Foreign Minister.

What has been portrayed by detractors as a “radical” step representing taking sides in the conflict is actually the exact opposite. The use of a pejorative term such as “occupied” prejudges the issues in dispute and amounts to effectively taking the Palestinian side. By contrast, adopting more neutral terminology – such as calling the area “disputed” – is a more constructive approach where there are competing legal claims.

It does not mean support for Israeli annexation of the area or unrestrained settlement growth. It just means Australia properly acknowledges that the issues need to be genuinely negotiated if a two state resolution is to be achieved.

East Jerusalem includes the old city of Jerusalem with its ancient Jewish quarter and the holiest site in Judaism, the Western Wall. Israel captured it in its defensive 1967 Six Day War,before which Jordan had occupied it since 1948. Prior to that, there had been a substantial Jewish population there for thousands of years but the Jordanians ethnically cleansed it of its entire Jewish population, destroyed its dozens of synagogues, and closed the holy places to all Jewish worshippers in violation of treaty commitments. By contrast, since Israel recaptured the area, people of all religions have had access to and control over their holy sites.

Jordan had no legal right to the area, having seized it in a war of aggression in 1948 and subsequently renounced any claim to it.

The term “occupation” is generally used in international law to denote the presence of one country in sovereign territory that belongs to another. But the West Bank and east Jerusalem are not sovereign Jordanian territory – nor are they “Palestinian territory”, since no sovereign Palestinian state has ever existed there.

Evans and Carr claim support from 1967 advice to the Israeli government by Theodor Meron, then legal adviser in the Israeli Foreign Ministry. However, that advice actually implicitly acknowledges that – unlike the Syrian-owned Golan Heights – the West Bank is not “occupied” in the legal sense. Meron actually said Israel could establish temporary military settlements there, that Israeli civilians expelled in 1948 were likely entitled to return to their privately-owned property, and even canvassed the idea of establishing settlements in the Jordan Valley.

Certainly, the UN Security Council didn’t anticipate Israel having to withdraw from the whole of the West Bank and east Jerusalem. Resolution 242, passed in 1967, required Israel to withdraw “from territories occupied (ie captured) in the recent conflict” in return for peace. It was no accident that it did not say “all the territories” or “the territories”. Numerous diplomats directly involved in drafting that resolution – Lord Caradon, the British Ambassador to the UN at the time, George Brown, the British Foreign Secretary at the time, and Eugene Rostow, US Undersecretary of State for Political Affairs in 1967 – have
stated that the language of 242 was intended to indicate that the boundaries should be negotiated. Nothing – including a purely advisory opinion by the International Court of Justice in 2004 made in response to a clearly prejudicial UN General Assembly resolution – has altered this view since.

While legalities are important,so too is encouraging a way forward. It is widely acknowledged that the Israeli-Palestinian conflict will only be resolved by a compromise that includes a Palestinian state in Gaza and most of the West Bank, and a Palestinian acknowledgement of Israel’s right to exist in peace. This, of course, involves compromises
and concessions on both sides. In 2000, 2001 and 2008, the Palestinians were offered a state in all of Gaza and the vast majority of West Bank territory, with land swaps to compensate for the rest, and a capital in east Jerusalem. The Palestinians sadly did not accept these offers, or even make counter-proposals.

Now, the Palestinians have walked away from negotiations and have formed a government that includes the terrorist group Hamas, which remains committed to the violent destruction of Israel. Rather than seeking to achieve their state through negotiation and compromise, they are aiming to do so unilaterally.

When Western governments and supporters use loaded terms such as “occupied”, implying all the land is indisputably Palestinian, it only encourages the Palestinians to believe they can achieve statehood without compromising or negotiating. The same goes for spurious claims that settlement development is the major obstacle to peace – for a decade, settlements have overwhelmingly only grown within their existing geographic boundaries, and most new homes are in areas it is widely agreed Israel will keep in any peace deal. Both claims are self-evidently counter-productive to Australia’s bipartisan policy of encouraging a negotiated two-state resolution.

The Government’s clarified stance demonstrates an understanding of the importance of allowing all issues in dispute to be negotiated by the parties, rather than prejudged in a way that hinders the chances of peace. Others with a genuine interest in achieving a peaceful two-state outcome would do well to follow this lead.