Jerusalem skyline 370 .
(photo credit: Marc Israel Sellem)
It was a remarkable moment of moral clarity, and it came at a low point in international diplomacy.
The US, the EU, the UN, Russia, China and other countries had just given unconditional recognition to a new Palestinian unity government that includes Hamas, a terrorist organization dedicated to the destruction of Israel through any means, including suicide bombings against women and children.
The P5+1 were negotiating whether to legitimize the nuclear weapons program of Iran, a totalitarian, theocratic state involved in nearly every military conflict from Syria and Iraq to Afghanistan.
In Syria, dozens of civilians continued to be killed and thousands more continued to be exiled and turned into refugees as the world’s powers did nothing.
Then, on June 5, 47 years to the day the Six Day War began, leading to Israel’s unification of Jerusalem, Australian Foreign Minister Julie Bishop announced that her country would no longer view Jewish neighborhoods in east Jerusalem as “occupied” territory.
Australia’s Attorney-General George Brandis explained during a Senate meeting that the term “occupied” was a term “freighted with pejorative implications” which were “neither appropriate nor useful.”
As the rest of the world seemed to be losing its moral compass, the Aussies were keeping themselves on course, pointing out the unique nature of the territorial conflict between Israel and the Palestinians.
This was not a sudden change in Australian foreign policy.
Back in January, during a visit to Israel, Bishop contested the idea that towns and neighborhoods built in east Jerusalem or in the West Bank were illegal under international law. “I would like to see which international law has declared them illegal,” she said.
Bishop and Brandis were articulating a position long held by Israel and by numerous legal experts who recognize that the West Bank cannot be considered “occupied” for the simple reason that said territory did not belong to any sovereign power at the time that Israel took control of it.
The 1947 UN partition resolution set aside the West Bank and other areas of Israel for the creation of a Palestinian state. But the Palestinian political leadership rejected the partition plan and launched a war against Israel, which they lost.
Transjordan annexed the area in 1949 and renamed it Jordan after murdering or expelling all the Jews who lived there. Only Britain and Pakistan recognized Jordan’s “occupation” of the West Bank. In any event, the newly created Jordanian state – essentially a British construction – had no historical ties to Judea and Samaria, while for Jews it is the cradle of Jewish civilization and statehood from the biblical era.
Israel cannot, therefore, be considered in the strictest sense an “occupier” of another people’s land. Article 49(6) of the Fourth Geneva Convention states that an occupying military power “shall not deport or transfer part of its own civilian population into the territory it occupies.”
But since Israel is not an “occupier,” it cannot be said to be in violation of this clause. Also, this clause, written after World War II, referred principally to the huge forced population transfers perpetrated by the Nazis and other totalitarian powers.
Even UN Resolution 242, which introduced the “land for peace” formula, calls on Israel to withdraw from “territories” – not all territories – in exchange for peace with its neighbors. It was clear to the international community immediately after the Six Day War that Israel would retain an undetermined portion of Judea, Samaria and Gaza.
(Israel has since magnanimously ceded the Gaza Strip to the Palestinians, who have turned it into a reactionary Islamist state that uses violence to enforce Shari’a.) Far from “occupied,” the status of Judea and Samaria should enjoy a unique status in international law as land that has never been unequivocally set aside for a specific people by the international community.
Canberra has had the courage to publicly recognize this simple fact. What’s more, Bishop, Brandis and others in Australian Prime Minister Tony Abbott’s center-right government understand that defining east Jerusalem as “occupied” hinders chances for peace by emboldening an intransigent, rejectionist Palestinian political leadership, whereas defining the territory as “disputed” might encourage a spirit of compromise on the part of the Palestinians.