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Wednesday, 25 June 2014
Page: 3933


Senator XENOPHON (South Australia) (16:39): At the outset, I wish to acknowledge the presence in the gallery of a number of members of the diplomatic corps here in Canberra today, which indicates the level of interest of many in the international community over this issue.

This matter of public importance in the Senate today arises as a result of a statement made on behalf of the Australian government by the Attorney-General on behalf of the foreign minister on 5 June 2014 in Senate estimates that:

The description of East Jerusalem as 'occupied …' is freighted with pejorative implications, which is neither appropriate nor useful.

I will now demonstrate conclusively why that claim is false and actually most unhelpful to the process of achieving a lasting peace in the Israel-Palestine conflict.

The term 'occupied' is an objective legal description of the status of the Occupied Palestinian Territories. According to the 1949 Geneva conventions and the 1907 Hague regulations, territory is considered occupied when it comes under the actual authority of the invading military. There are certain objective tests: (1) Has the occupying power substituted its own authority for that of the occupied authorities? Yes. It is a matter of fact that Israel's authority prevails in the Occupied Palestinian Territories. (2) Have the enemy forces been defeated, regardless of whether sporadic local resistance continues? Yes. It is a matter of fact that Israel defeated its military adversaries in the June 1967 war. (3) Does the occupying power have a sufficient force present to make its authority felt? Yes. It is a fact that Israel has sufficient force to make its authority felt. (4) Has an administration been established over the territory? Yes. It is a fact—a poignant fact—that even the Palestinian leaders who wish to enter or leave the occupied Palestinian territories cannot do so without permission from Israel. Even the Palestinian president cannot go to the United Nations in New York, or indeed to anywhere else in the world, without permission from Israel. (5) Has the occupying power issued and enforced directions to the civilian population? Yes. It is a fact that Israel has issued and enforced such directions. Indeed, Israel's highest court—the High Court of Justice—stated in paragraph 23 of its verdict in the case of Beit Sourik Village Council v The Government of Israel on 30 June 2004 that 'Israel holds the area in belligerent occupation'. Let me say that again: Israel's own highest court stated in 2004 that 'Israel holds the area in belligerent occupation'. I concede that here the word 'occupied' is 'freighted with implications', but to say they are pejorative is factually untrue and legally ignorant.

What are these implications in fact and in law? Here I turn to the landmark 2004 International Court of Justice advisory opinion on 'the legal consequences arising from the construction of the wall being built by Israel, the occupying Power in the Occupied Palestinian Territory including in and around East Jerusalem.' Note the words 'occupying' and 'occupied' used by the International Court of Justice. Australia is quite happy to accept the wisdom of the International Court of Justice when it comes to whales, but not, it seems, the Palestinians.

Let's see what the International Court of Justice said in its advisory opinion. It listed the rules and principles of international law which are relevant. First, article 2, paragraph 4, of the United Nations Charter:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.

Second:

No territorial acquisition resulting from the threat or use of force shall be recognized as legal.

Third:

The principle of self-determination of peoples has been enshrined in the United Nations Charter and reaffirmed by the General Assembly.

The court observed that:

The existence of a "Palestinian people" is no longer in issue.

The court stated:

The Wall's sinuous route had been traced in such a way as to include within that area the great majority of the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem).

It noted that article 49, paragraph 6, of the Fourth Geneva Convention provides that:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War but also any measures taken by an occupying power in order to organize or encourage transfers of parts of its own population into the occupied territory.

The International Court of Justice stated unambiguously that:

The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.

The court stated, in relation to the wall:

Its construction severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel's obligation to respect that right.

It also stated:

The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens. The measures taken are bound nonetheless to remain in conformity with applicable international law.

In conclusion, the Court considers that Israel cannot rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall...

I now draw the Senate's attention to the fact that not one of the 15 judges on the International Court of Justice dissented from its findings. It is highly instructive that the US judge on the International Court of Justice, Thomas Buergenthal, described his conclusion as a 'declaration', not a 'dissent'. Judge Buergenthal was born in 1934 in Slovakia. He is a Holocaust survivor who was in the Auschwitz and Sachsenhausen extermination camps. He said:

… there is much in the Opinion with which I agree.

This remarkable individual and jurist went on to state:

I share the Court's conclusion that international humanitarian law, including the Fourth Geneva Convention, and international human rights law are applicable to the Occupied Palestinian Territory and must therefore be faithfully complied with by Israel. I accept that the wall is causing deplorable suffering to many Palestinians living in that territory. In this connection, I agree that the means used to defend against terrorism must conform to all applicable rules of international law and that a State which is the victim of terrorism may not defend itself against this scourge by resorting to measures international law prohibits.

Judge Buergenthal went on to state:

Moreover, given the demonstrable great hardship to which the affected Palestinian population is being subjected in and around the enclaves created by those segments of the wall, I seriously doubt that the wall would here satisfy the proportionality requirement to qualify as a legitimate measure of self-defence.

I draw to the Senate's attention the fact that the protective provisions of the 4th Geneva Convention applied from the moment the international armed conflict began on 5 June 1967. In the 1967 debates, Australia—through our representative to the United Nations, Sir Laurence McIntyre—voted for a General Assembly resolution calling for full Israeli withdrawal in accordance with the principle of the inadmissibility of acquiring territory by war. On the question of Jerusalem, the British Secretary of State for Foreign Affairs addressed the General Assembly in person. On 21 June 1967, he said:

… it follows from the words in the Charter that war should not lead to territorial aggrandisement.

He called on Israel not to take any steps in relation to Jerusalem which would conflict with this principle. In that same General Assembly debate, the United States voted for a resolution that stressed that, for a 'durable peace' to be achieved, 'one immediate, obvious and imperative step is the disengagement of all forces and the withdrawal of Israeli forces to their own territory'.

These statements are highly relevant to the meaning of UN Security Council Resolution 242, which was adopted unanimously by the UN Security Council and which our foreign minister says, paradoxically, we still support. Not a single member of the Security Council dissented from the principle of 'the inadmissibility of the acquisition of territory by war'. This international consensus means that there can be only minor and mutual territorial adjustments.

We already know, thanks to the so-called Palestine Papers—which are the biggest leak of secret documents in the history of the Middle East conflict—that a solution is already available. The Palestinian negotiating team in 2008 offered a formula where Israel would annex 1.9 per cent of the West Bank in the context of a land swap, allowing Israel to retain within its borders 63 per cent of the illegal settler population. We also know, according to the same leaks, that Israel's negotiating team turned down this offer. Australia, by adopting these rejectionist statements, has given comfort to the extremists and has weakened the position of the moderate and reasonable Israelis and Palestinians. We should instead encourage our great friend Israel to accept the generous offer made in 2008 so that we can have a real, lasting and durable peace in the Middle East.

The statement made by the Australian government on 5 June this year is not only wrong; it is factually untrue, legally ignorant and most unhelpful. (Time expired)