WHEN Attorney-General George Brandis told Senate estimates the Australian government would not under any circumstances refer to East Jerusalem as occupied East Jerusalem, he was not changing government policy.
He certainly was not changing Coalition government policy. He was changing policy as it evolved when Bob Carr was foreign minister, but this was not longstanding Australian foreign policy.
The Abbott government, on election, reverted back to the longstanding Australian government practice of seeking neutral language to describe territory in East Jerusalem and parts of the West Bank which are disputed between Israel and the Palestinians.
Foreign Minister Julie Bishop in several statements and interviews had made it clear that the government did not regard all Israeli settlements in the West Bank as illegal. Most importantly, she also did not state that the settlements were legal either.
The truth is they concern disputed territory, the status of which will have to be resolved in negotiations. This is what the relevant UN resolutions provide for, although UN resolutions themselves are not by their nature binding international law of and in themselves.
Brandis was right in international law. More importantly, he demonstrated significant political courage on a vexed and extremely complex issue.
The situation at law is that Israel acquired control over the Sinai desert, the Gaza Strip, the West Bank and East Jerusalem in defensive wars to prevent the surrounding Arab states’ ambition of annihilating Israel from taking place.
Israel gave back the Sinai to Egypt in exchange for peace. It unilaterally withdrew from the Gaza Strip. Under the Oslo accords it does not control day-to-day life in most of the West Bank, such as its capital, Ramallah.
East Jerusalem is a special case. Israel formally annexed East Jerusalem in 1980. This annexation was rejected by the UN Security Council. But rejection of Israel’s annexation does not automatically make East Jerusalem occupied territory.
...Part of the confusion in this case arises from the two different meanings of the word occupied. In a general sense, Israel occupies the territory that Israel controls, just as Australia occupies the territory that Australia controls.
But in international law, occupied territory normally means the territory of one sovereign nation which is occupied by another sovereign nation.
Before 1967 Jordan controlled East Jerusalem, which it had no right to do. Incidentally it denied Jewish access to the Western Wall, commonly called the Wailing Wall, Judaism’s most holy religious site. However, Jordan today makes no claim at all for sovereignty over East Jerusalem or the West Bank.
If you claim that every Israeli settlement is illegal...then you have to claim that the Jewish presence at the Wailing Wall is illegal, and the Jewish quarter of the Old City of Jerusalem is illegal.
That is an absurd claim and no one believes that in any settlement Israel could ever leave those areas.
It is much more accurate, and much more helpful, to describe East Jerusalem and the disputed parts of the West Bank as disputed territories.
In all other territorial disputes, this is commonly done. In the South China Sea, no one describes the islands which China has taken control of, but which the Vietnamese and Filippinos passionately believe belong to them, as occupied territories. They are always called disputed islands.
Similarly it is not normal parlance to describe India’s presence in Kashmir as an occupied territory. It is, even if you’re pro-Pakistani, routinely rendered as disputed. Ditto the Turkish-controlled area of northern Cyprus. Only Israel is singled out for linguistic discrimination.
But very specifically, pre the Carr incumbency in the foreign affairs portfolio, it was extremely rare for Australian ministers ever to refer to the occupied territories. It may have happened once or twice. I cannot recall a Coalition government minister ever using the term.
In my life I can never recall any government minister using the term occupied East Jerusalem. But as the passionate campaigns against Israel have gathered pace and momentum, people have been swept up by this unhelpful, inaccurate and distorting terminology.
Brandis, with a lawyer’s love of precision in language, and fortified by extensive and detailed discussions with Bishop and her senior officials, has cleared up the ambiguity and resisted a destructive tide.