h/t to international law expert, Eugene Kontorovich
Though Guardian contributors often complain that pro-Israel forces instill a ‘enforced orthodoxy‘ over the debate about Israel in the media and in Western capitals, they suddenly lose their passion for dissent when encountering views at odds with the Palestinian narrative on the disputed territories in the West Bank and east Jerusalem.
Thus, shortly after the Australian Attorney General issued a statement declaring that the government would no longer refer to east Jerusalem as “occupied” – arguing that the term is “freighted with pejorative implications” – the Guardian published their predictable denunciation in the form of an op-ed by a lawyer (and anti-Israel campaigner) named Ben Saul.
Saul begins by complaining that “Australia’s new view” on Jerusalem “corrodes the international rule of law and violates Australia’s international law obligations”. He then cites international legal conclusions which purportedly back up the claim that east Jerusalem is “occupied” – including the 2004 opinion of International Court of Justice (ICJ), which he even acknowledges was only an ‘advisory’ opinion – and therefore is not binding on Israel, let alone Australia.
Further, despite their position on east Jerusalem, Australia’s policy vis-à-vis the Israeli-Palestinian Conflict has not undergone a substantive change. They merely decided to avoid using a term they believe is unhelpful in the context of efforts to reach a two state solution. As Australia’s Ambassador to Israel, Dave Sharma, explained (per an article by Yair Rosenberg at Tablet) in response to questions about the Attorney General’s decision, “the government’s policy hasn’t changed at all”. Sharma also noted that the Australian position is still that “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”.
Rosenberg summed it up thusly: In other words, Australia’s policy is not intended to endorse one side over the other, but rather to maintain neutrality and avoid prejudging the outcome of negotiations.
Later in his Guardian op-ed, Saul misrepresents a key element of the history of the city.
In the 1967 war, Israel displaced prior Jordanian control over east Jerusalem. Jordan’s claim was contested by Israel. Jordan’s claim was contested by Israel. Jordan later renounced its claim in favour of the Palestinian right of self-determination.
However, his claim that Jordan’s legal claim on east Jerusalem “was contested by Israel” is extraordinarily misleading. In fact, their annexation of east Jerusalem was universally rejected by the international community, with the lone exception of Pakistan (Great Britain accepted the annexation of the West Bank, but not east Jerusalem). Also of interest, though almost every country in the world refused to recognize Jordanian sovereignty over Jerusalem, we could find no evidence than any country officially referred to it – between 1949 and 1967 – as “occupied”.
Further, it is not true, as Saul claims, that Jordan renounced claims to east Jerusalem “in favour of the Palestinian right of self-determination“. In fact, Article III of the 1994 Israel-Jordan Peace Treaty states the following:
The boundary, as set out in Annex I (a), is the permanent, secure and recognised international boundary between Israel and Jordan, without prejudice to the status of any territories that came under Israeli military government control in 1967.
Saul then proceeds to an even more egregious distortion:
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.
Naturally, he fails to note that the overwhelming majority of Palestinians in east Jerusalem are permanent residents of Israel, and are thus entitled to all the rights provided to Israeli citizens – including legal and judicial protections – with the exception of the right to vote in general elections. (They do vote, however, in municipal elections.) Saul’s claim that Australia’s position “signals to Palestinians” in east Jerusalem that they don’t enjoy humanitarian protections is just absurd, and not at all supported by the facts.
Saul continues with the familiar refrain that “most of the settlements violate article 49 of the Geneva conventions“, a claim contradicted by hundreds of jurists and ambassadors, including International lawyer Prof. Eugene V. Rostow and Ambassador Morris Abram, a member of the U.S. staff at the Nuremberg Tribunal who was later involved in the drafting of the Fourth Geneva Convention.
[The Convention] was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people.
Later in his op-ed, Saul makes a bizarre logical leap:
Australia’s refusal to call the occupation for what it is necessarily endorses Israeli’s illegal acquisition of territory by force.
As we noted earlier, Australia’s position on the future status of the disputed territories “has not changed at all”. They certainly have not – in fact or in effect – ‘endorsed’ Israel’s “acquisition” of territory in Judea and Samaria, and east Jerusalem.
Finally, the mere fact that Saul and others might claim that calling Jerusalem “occupied” represents the “near-universal legal status quo” does not make it so. First, the term itself is generally “used in international law to denote the presence of one country in sovereign territory that belongs to another”.
Additionally, Israel is the only recognized nation with a legitimate claim to the West Bank (including Jerusalem) – territory which was, for hundreds of years, until the end of World War I, the equivalent of a province in the Ottoman Empire. The territory never had any unique national standing other than as the future Jewish national homeland as stipulated by the League of Nations.
As Roslyn Pine argued on these pages:
Israel’s sovereignty and legitimacy in international law derives from the San Remo Resolution of 25 April 1920 (recognising the Balfour Declaration), as does that of Syria, Lebanon and Iraq, following the WWI settlement. It was supplemented by the Mandate for Palestine of July 1922, and the Franco British Boundary Convention of December 1920.
Jewish national rights accorded by these agreements have never been abrogated and are indeed binding to the present day.
Thus, while the status of east Jerusalem (which, let’s recall, includes the ancient Jewish quarter of the Old City and the Western Wall, the holiest site at which Jews are permitted to pray) is disputed, it is not accurate to affirm – as if there is no legal debate on the matter – that is “occupied”.