David Knoll: “How not to be a friend to Israel”
In announcing the Australia Government policy shift to describe East Jerusalem, the West Bank and Gaza as “occupied Palestinian territories”, the Albanese Government has sought to rely on support from international law. Occupation is a word picture. It is effective emotional communication. Does it have a sound legal basis?
Foreign Minister Penny Wong in Senate question time on 8 August 2023 referred to “UN Security Council resolutions which determine that the settlements ‘have no legal validity and constitute a violation of international law.” Presumably she was referring to UN Resolution 2334 passed in 2016 which called for Israel to cease all settlement activities in the occupied Palestinian territory, including East Jerusalem.[1] It described Jewish settlement in the West Bank / Judea and Samaria as having no legal validity and as a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace. (It also called generically for an end to acts of violence against civilians, including acts of terror, as well as all acts of provocation and destruction.)
Resolution 2334 was built explicitly on the back of a 2004 International Court of Justice advisory opinion, in which the ICJ decided that the Palestinians are accorded rights without a responsibility to stop the terror that emanates from within their midst, and Israel is accorded responsibility for Palestinian self-determination, without the right to defend her civilians against suicide/homicide bombings. Twenty democratic nations including Australia had asked the ICJ to decline to hear the case. A vice (not the only one) lay in the question being asked.
The ICJ was asked by the General Assembly to assume that Israel was building a wall on Palestinian land and then asked to say whether – based on that assumption – the wall (mostly a fence and a security barrier designed to stop homicide bombings murdering Israeli civilians), was illegal. In our own legal system, putting up a barrier on someone else’s land without their permission is obviously wrong. So why ask such a rhetorical question?
The answer was and is politically obvious. It created yet another stick for the UN and nations less than friendly towards Israel to censure Israel with. Indeed, it has been so used.
Legally, however, the framing of the question meant that the Court was asked to rule on the actions of one party to a conflict without reference to the actions of the other party – hardly a fair or reasonable judicial process.
But what was the legal position when Israel began to occupy the West Bank / Judea and Samaria? Is the West Bank / Judea and Samaria: “Palestinian Territory”?
Pursuant to United Nations Security Council Resolution 242, Israel is entitled to occupy the territories taken in self-defence in 1967 until a just and lasting peace is achieved.[2] Accordingly, Israel is not required to withdraw from any territory acquired in defending herself in the 1967 six-day war absent secure borders and until she can be assured that ordinary Israeli civilians can go about their lives free from threats or acts of force; noting that terrorist attacks have continued as recently as the week before the Australian policy change.
To properly consider the legal status of the territory, one must apply orthodox international law principles which require an appraisal of the relative strength of the opposing claims to sovereignty. On that basis, Israel’s relative superiority of title as against other nation-states would need to be balanced with the claims of the Palestinians to self-determination.
Understating the reality of today, neither the Palestinian claim for self-determination in the West Bank nor the Israeli claim to hold on to the West Bank until a durable peace is achieved, can be resolved until both needs are met by way of negotiated, durable peace accord.
The settlements issue also has its legal complexity. Under Article 49 of the Fourth Geneva Convention, an occupying power is not allowed to force occupied people out of their territory and also is not allowed to deport or transfer parts of its own civilian population into the territory it occupies. If citizens of the occupying power voluntarily choose to reside in occupied territory, does that equate to the occupying power deporting or transferring citizens in to the occupied territory, irrespective of whether allowing that to happen was or is politically wise? The answer is far from straightforward.[3] Even the Oslo Accords did not prohibit Jewish settlement in the in the West Bank / Judea and Samaria.
In short, Israel’s possession of in the West Bank / Judea and Samaria was and is not unlawful. (Israel is not in possession of Gaza.) It is however only a temporary right of possession which can continue as long as peace is not concluded. Further, absent a peace accord, the creation of a State of Palestine remains an aspiration, and not a legal basis for a territorial claim.
So, let us cut to the chase. To date, and this is beyond dispute, every peace offer made by Israel to agree to a new Palestinian state, but on condition that it exist side-by-side with the Jewish State of Israel, has been rejected by successive Palestinian leaders.[4]
At present, neither Israel and Fatah (the Palestinian Authority) show any sign of returning to the negotiating table. And the other putative Palestinian ruler, Hamas, is implacably opposed to the continued existence of the State of Israel.
Secondly, is there an “East Jerusalem” which is Palestinian territory?
The Partition Plan of 1947 envisaged an international Jerusalem, separated from both Israel and the then proposed Palestinian State. Following the British withdrawal in 1948, and the abortion of the partition proposals by five Arab armies invading the newly formed State of Israel, Jordan acquired by unlawful means the eastern part of Jerusalem, which includes the holy places of Judaism, Christianity, and Islam in the old city. Jordan claimed sovereignty.
In 1967, after Jordan launched an attack from the eastern part of Jerusalem, in an act of self-defence, the whole of Jerusalem came under Israeli rule; and Israel declared sovereignty over a united Jerusalem. Because Israel was defending herself from aggression in the 1948 and 1967 wars, her acquisition of Jerusalem was and remains lawful.[5] She has and continues to have the best claim to sovereignty over Jerusalem. And only since 1967 have all three monotheistic faiths had free access to their holy places.
In short, there is no proper basis to describe any part of Jerusalem as Palestinian territory. Further, the idea that Jerusalem would be divided again, and the Kotel (western Wall of the Second Temple) placed under the control of the Palestinian Authority is a very unlikely prospect and one that ought not be presumed nor invited.
The Australian Government, in defence of this most recent policy shift, has said that Australia remained a “committed friend of Israel,” recognising the country’s right to defend itself in a “uniquely challenging security environment.”[6]
Supporting claims to divide to divide a friendly nation’s capital city, and renouncing the position that until secure borders are agreed upon, territorial boundaries remain disputed – Israel’s principled position of Governments both left and right – are less than friendly acts.
David D. Knoll AM, co-President of the UPJ, is a Barrister and an Adjunct Associate Professor of Law at the University of New South Wales, where he has taught International Peace-making and International Humanitarian Law.
[1] https://www.un.org/webcast/pdfs/SRES2334-2016.pdf
[2] https://peacemaker.un.org/sites/peacemaker.un.org/files/SCRes242%281967%29.pdf
[3] See e.g., Ruth Lapidoth, The Advisory Opinion and the Jewish Settlements, 38 Isr. L. Rev. 292, 294-95 (2005).
[4] See e.g. Benny Morris, The Rejection, New Republic, April 21, 2003: https://newrepublic.com/article/66875/the-rejection
[5] See e.g., See: Yoram Dinstein, The International Legal Dimensions of the Arab-Israeli Conflict, in Israel Among the Nations: International and Comparative Law Perspectives on Israel’s 50th Anniversary 137, 150 (Alfred E. Kellerman, Kurt Siehr, Talia Einhorn eds., 1998).
[6] https://www.foreignminister.gov.au/minister/penny-wong/transcript/senate-question-time-responses-middle-east-policy