Australia’s obligation to

actively oppose Israel’s

annexation of the West Bank

POLICY BRIEF JUNE 2020

The Australian Centre for International Justice (ACIJ) issues this briefing paper to urge the AustralianGovernment to respond swiftly to a matter of global concern regarding Israel’s imminent annexation ofOccupied Palestinian Territory (OPT). It is time for Australia to engage in a foreign policy on Palestine andIsrael based on respect for human rights and international law. As a state which values the rule of law, and a rules-based international order, it is Australia’s obligation tooppose any violation of fundamental principles of international law and to prevent states from being givena green light to violate these principles with impunity. Australia should make an unambiguous public statement strongly condemning Israel’s occupation andsettlement enterprise. These policies have resulted in a situation of de facto annexation which expresslydenies the right of self-determination for the Palestinian people.  In addition, Australia should strongly condemn the proposed actions of Israel to formally annex large partsof West Bank territory. However, communicated condemnation is not enough, it must be followed byconcerted action and effective measures necessary to prevent Israel from going forward with these plans.Australia can be guided by its response in relation to the situation of the Russian annexation of Crimea.  Failing to take action with respect to this grave development will damage Australia’s internationalreputation, contribute to the potential further derailment of the Palestinian-Israeli peace process andexacerbate instability in the Middle East. Given the strength of responses from other states to Israel’s proposed annexation, with a view to takingeffective measures, all in alignment with international law, it is important that Australia makes itself awareof the key issues at stake and acts accordingly in opposition to Israel’s annexation and continued defianceof international law.

This brief makes the following recommendations consistent with international law and Australia’sinternational obligations, which are elaborated in further detail on pages 8-9. Recommendation 1  The Australian Government make an unambiguous public statement, strongly condemning Israel’sde facto annexation of Occupied Palestinian Territory and the proposed imminent annexation of the WestBank, in addition to requesting an immediate cessation of annexation, Israel’s military occupation and theconstruction of illegal settlements. Recommendation 2  The Australian Government support the investigation and prosecution of international crimes committedas part of the Situation in Palestine at the International Criminal Court. Recommendation 3 The Australian Government takes all necessary effective measures including imposing targeted sanctions,against the Israeli government, for violations of international humanitarian law, international human rightslaw and any imminent annexation plans.  Recommendation 4 The Australian Government enact legislation banning settlement goods from entering Australia’smarketplace. Recommendation 5 The Australian Government enact legislation preventing Australian companies from operating in or tradingwith settlements, or contributing to their maintenance and/or expansion.  

Recommendations

According to reports and statements from IsraeliPrime Minister Benjamin Netanyahu, with theendorsement of the US Trump administration,Israel will soon move towards formal annexation of over 30% of the West Bank, territory it has long heldin military occupation. Israel specifically intends to apply sovereignty tothe Jordan Valley and all of its approximately 250illegal settlements in the West Bank. There areapproximately 2.7 million Palestinians who live inthe West Bank.

The acquisition of sovereignty over territory byforce is prohibited pursuant to the United NationsCharter. This fundamental rule of international lawhas been affirmed many times by the UN and theInternational Court of Justice (ICJ). Israel annexed East Jerusalem in 1967, and theSyrian Golan Heights in 1981. Both theseannexations were condemned by the UN SecurityCouncil as null and void and without internationallegal effect. It should be noted that annexation is an act ofaggression which is an international crime.Annexation is prohibited because of the political,economic and human devastation it creates. Thesebroader implications are discussed below.

Annexation & international law

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Annexation is prohibited

Violation of duty of peaceful

settlement

Violation of the right to self-

determination

Violation of IHL

The annexation of occupied territory is a seriousviolation of fundamental rules of internationalhumanitarian law (IHL) and specifically, the FourthGeneva Convention. Israel, the Occupying Power, is forbidden to transferits own civilian population into occupied territoryor to forcibly expel the civilian population from theterritory. An Occupying Power is forbidden fromchanging the laws, legal system or institutions ofoccupied territory. The Occupying Power is also forbidden fromconfiscating private property and exploiting thenatural resources of occupied territory, unless it isfor the benefit of the civilian population in occupiedterritory. All of these fundamental rules of IHL have beensystematically violated by successive Israeligovernments since 1967. It has led to a situation ofde facto annexation of the West Bank which hasgenerated further serious breaches of IHL andwidespread and systematic violations offundamental human rights.

Annexation is a violation of the right to self-determination, in this case, the right of thePalestinian people to exercise sovereignty overtheir territory. The right of self-determination is a fundamentalhuman right, attaining the status of a peremptorynorm of international law. Israel has long deniedPalestinians this right, and through its occupationhas violated other fundamental human rights.

Annexation is a violation of the duty to peacefullysettle disputes through negotiation. Attempts to thecontrary, by resorting to unilateral force, endangerinternational peace and security.

Israel occupied the West Bank, including EastJerusalem, and the Gaza Strip in 1967 and becamethe Occupying Power for the purposes of internat-ional law, which carries clear obligations to protectthe Palestinian civilian population under its control.There are approximately 4.8 million Palestiniansliving in the OPT, and approximately 45% of thispopulation are young persons under the age of 18years. Israel’s 53-year belligerent military occupation ischaracterised by widespread, systematic, andinstitutionalised human rights violations and gravebreaches of international humanitarian law againstthe Palestinian people. Israel’s occupation policiesand practices operate to ensure Israel’s control overthe Palestinian people, expressly denying theirfundamental human rights guarantees andprotections. Various features of Israel’s occupation – including itsannexation of East Jerusalem, Israel’s settlemententerprise and construction of the Annexation Wallin the West Bank – have repeatedly been held to bein breach of international law by the ICJ, the UN andother international bodies. Israel never adhered tothe findings of the 2004 ICJ Advisory Opinion on theAnnexation Wall that construction must stopimmediately and reparations should be made forany damage caused. Israel’s settlement policy is a serious violation ofinternational law and has been implementedthrough the commission of crimes falling withinboth Australia’s jurisdiction[1] and the jurisdiction ofthe International Criminal Court. Further, it has beenexecuted in the face of decades of condemnation ofthe policy as illegal by the international community.

Israel, as the Occupying Power, continues totransfer its nationals into the OPT. Over 600,000Israelis live in approximately 250 settlements. Israelsupports their presence by providing subsidisedhousing, security and logistical support, hospitals,schools, universities, water and electricity. Human rights organisation, B’tselem provides:

The devastating impact of the settlementson the human rights of Palestinians goes farbeyond the hundreds of thousands of hectaresstolen to build them. More land has beenconfiscated to build hundreds of kilometers ofbypass roads for settlers; checkpoints, gates,ditches and dirt mounds have been installed torestrict Palestinian movement according to thelocation of the settlements; access to vastPalestinian farmland in and near areas thatIsrael has determined belong to thesettlements has been effectively blocked to thelandowners; and the meandering route of theSeparation Barrier, which severs ties betweenPalestinian communities and separatesPalestinian farmers from their land, runs deepwithin the West Bank, primarily to ensure thatas many settlements and land reserves aspossible remain on its western side.

Human rights organisation Al Haq, has documentedthe exploitation of Palestinians’ natural resourcesfrom settlement expansion. Palestinian naturalresources in the West Bank are exploited by Israeliand international corporations in serious violationsof international law. Michael Lynk, the UN Special Rapporteur on theSituation of Human Rights in the OPT, concludedthat ‘the political purpose of the Israeli settlemententerprise has always been to establish facts on-the-ground and to obstruct Palestinian self-determination’.

Occupation & settlements

POLICY BRIEF | June 2020

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[1] Criminal Code Act 1995 (Cth) sch 1 (‘Criminal Code’) s 268.45.

Annexation will endanger and undermine theviability of a Palestinian state. Israel’s occupation, often presented as necessaryfor Israel’s security, is not a legitimate exercise ofself-defence. Israeli governments since 1967 have implementedand maintained oppressive policies and practicesdirectly preventing Palestinians from freelydetermining their political status and frompursuing their economic, social and culturaldevelopment. The acquisition of territory by force is not sancti-oned under international law. If Israel chooses togo down this path, these actions will have reperc-ussions not only for Palestine and Israel, but alsofor the law surrounding the use of force moregenerally which has been eroded in the past twodecades, such as with respect to the US invasion ofIraq in 2003 and the Russian annexation of Crimeain 2014. What is not known is exactly how Israel will goabout annexing the West Bank. Israel may be of theopinion that no legal declaration is necessary.Israel may however annex the land under Israeli lawwhich as has been noted by the UN, will have noeffect under international law, as the humanitarianprinciples contained in the Fourth GenevaConvention will still apply to the West Bank,because it is occupied territory. Significantly, annexation necessarily involves thecommission of war crimes and crimes againsthumanity falling within the jurisdiction ofAustralian courts and the International CriminalCourt. International crimes therefore are not only athreat to international peace and security, but theyare also crimes under Australian law.[2]

Broader implications of annexation

POLICY BRIEF | June 2020

International peace & security

land confiscation;settler violence;the confiscation of natural resources;home demolitions;excessive use of force and torture;labour exploitation;extensive infringements of privacy rights;restrictions on the freedom of expression;the targeting of women activists and journalists;the detention of children;poisoning by exposure to toxic wastes;forced evictions and displacement;economic deprivation and extreme poverty;arbitrary detention;lack of freedom of movement;food & water insecurity; discriminatory law enforcement; andthe imposition of a two-tier system of disparaterights based on ethnicity and nationality.

As noted above, Israel’s military occupation has adevastating impact on the human rights of thePalestinian people with ongoing serious violations of these fundamental rights. They include:

These human rights violations will only intensify afterannexation.

6

Human rights & humanitarian concerns

What would be left of the West Bank would bea Palestinian Bantustan, islands ofdisconnected land completely surrounded byIsrael and with no territorial connection tothe outside world. Israel has recentlypromised that it will maintain permanentsecurity control between the Mediterraneanand the Jordan River. Thus, the morning afterannexation would be the crystallisation of analready unjust reality: two peoples living inthe same space, ruled by the same state, butwith profoundly unequal rights. This is avision of a 21st century apartheid. Joint Statement from 47 independent Special Proceduresmandates of the UN Human Rights Council

UN human rights experts have raised the alarm, callingon third States to live up to their responsibilities,warning of the following:

[2] Criminal Code ss 268.29; 268.32; 268.45; 268.20; 268.23.

POLICY BRIEF | June 2020

Australians who feel compelled to enableaccess to education and school projectsoverseas are also facing the prospect offinding their efforts to support localPalestinian villagers in the Hebron area futile.The villagers they help to support will beseverely affected by any attemptedannexation. Friends of Hebron in Sydney havebeen funding education projects supportinglocal Palestinian communities since 2009. One such community is the Dhaika villagecomprised of a small Palestinian Bedouincommunity outside of Hebron. Dhaika villageregularly faces demolition orders, andclassroom buildings have been demolished.Palestinians in Dhaika are at real risk offorcible deportation. Friends of Hebron alsosupport a Kindergarten in the village of Ummal Khair in Mount South Hebron. The Palestinian villagers tell their Australiansupporters that Israel’s denial of the right toaccess education for their children is one ofthe tools Israel uses to try and force theirdisplacement and implement its annexation.

Australian Friends of Hebron

7

Formal annexation will have a further serious effecton the health and wellbeing of Palestinians andwill restrict community development, particularlyin the Jordan Valley area. The Jordan Valleycomprises one third of the West Bank. It is of vitalimportance to Palestinians and their survival. Itcontains half the agricultural land providing for thefood security of Palestinians in the West Bank.Israeli authorities already implement a system ofoppressive permits and restrictions on themovement of Palestinian goods and people in andout the Jordan Valley. This annexation attempt is the culmination ofIsrael’s long-standing occupation and colonisationof the West Bank, which goes far beyond theimmediate policies of the Netanyahu governmentand is illustrative of a furtherance in the movementtowards the colonisation of Palestine.

Siege on Gaza

It is important not to ignore the enormousimpact of Israel’s illegal blockade on Gazasince 2007, which has resulted in the unlawfulcollective punishment of two million Palestin-ians. This June, Palestinians mark 13 yearssince the blockade began, and yet nomeasures have been taken by the internationalcommunity to put an end to this injustice. Despite the 2005 withdrawal of troops fromGaza, several international bodies and organ-sations, including the ICRC, have confirmedthat Israel is de facto still the Occupying Poweras Israel has continuously maintained effectivecontrol over the Gaza Strip. Israel indeedcontrols the borders and access to Gaza,maritime areas, telecommunications, water,electricity, sewage networks, populationregistry, monetary market, customs, andGaza’s airspace. Israel controls permits toleave Gaza which are difficult to obtain, evenon medical grounds. The impact of thisblockade has been exacerbated by a numberof military offensives claiming a shockingnumber of lives, displacement and destructionof property, with a total lack of accountabilityfor the grave crimes committed.

Australia’s resort to supine statements about theposition it has on Middle East peace and a two-statesolution has achieved nothing. In fact, it has onlyemboldened successive Israeli governments overtime to act with total impunity. Arguments that any action undertaken by thePalestinians to seek accountability for Israel’sactions will negatively impact the peace process,are unconvincing in the face of Israel’s continueddefiance of international law and grave violationsof Palestinian human rights. It is unfortunate that Australia used this argumentin its attempt to prevent an investigation by theInternational Criminal Court’s Prosecutor into theSituation in Palestine. The Australian Government should be remindedof the Rome Statute’s preamble, which providesthat international crimes ‘threaten the peace,security and well-being of the world’. Israel’sactions thus threaten peace and security. Attemptsto seek accountability for those actions should besupported. Australia should support the investigation andprosecution of crimes committed in the OPTwhich is currently under preliminary examination atthe ICC.

Recommendations for Australia

POLICY BRIEF | June 2020

Render no aid or assistance

Support accountability

Australia is reminded that it has a strict internatio-nal customary law duty of not recognising aslawful breaches of peremptory norms ofinternational law. Article 41(2) of the InternationalLaw Commission’s ‘Draft Articles on Responsibilityof States for Internationally Wrongful Acts’provides that, ‘[n]o State shall recognise as lawfula situation created by a serious breach ... norrender aid or assistance in maintaining thatsituation’. Pursuant to this duty Australia mustnot recognise as lawful, or render any aid orassistance in the maintenance of Israel’soccupation, including its settlement enterprise.

8

[3] Baldassi and Others v France (2020).

Implement effective measures

Australia should enact targeted sanctions. Thesecould include: financial sanctions on the Israeligovernment and its leaders, an arms embargo, visatravel bans and the banning of settlement products. Numerous states, regional groupings andinternational organisations, including the UN, theArab League, the EU, the UK, Canada and SouthAfrica, have stated their opposition to the annexationand a number of European states are consideringjoint action. Australia should ban settlement goods fromentering Australia’s marketplace. Any attempt toframe this call as a boycott of Israel is misleading andinaccurate as settlements are not recognised as partof Israel under international law. In addition, Australia should ensure no businessesare operating in or trading with settlements, orcontributing to their maintenance and/or expansion. This complies with Australia’s obligationsunder international law including Australia’scommitment to ensure corporate respect for humanrights globally. This should be extended to includeother situations of occupation and annexation suchas in Western Sahara and West Papua.

Australia cannot seek to restrict Australians who wishto engage in their right to free speech and protest byaligning themselves with a global movement thatseeks to challenge Israel’s violations of Palestinianhuman rights known as ‘BDS’, Boycott, Divestmentand Sanctions. In a recent decision, the EuropeanCourt of Human Rights[3] overturned the convictionof 11 activists in France for partaking in boycottactivities. The Court held that BDS constitutesprotected free speech.

POLICY BRIEF | June 2020

9

Australia imposed a sanctions regime after Russiaannexed Crimea in 2014, which included financialsanctions, an arms embargo and travel bans. ThenForeign Minister Julie Bishop told Parliament:‘International law does not allow one state to stealthe territory of another on the basis of a referendumthat cannot be considered free or fair.’ More recently Foreign Minister Marise Payne stated,‘Australia stands united with our partners inopposition to Russia’s continued aggression againstUkraine five years after its illegal annexation ofCrimea’. She further stated, ‘Australia does notrecognise any actions seeking to legitimise theannexation of Crimea’ and announced the impositionof further financial sanctions against targetedpersons. This is an exemplary and model response to asituation of illegal annexation, and provides a clearprecedent to the Australian government toimplement effective measures regarding Israel’sactions in the West Bank. In the instance of the annexation of Crimea, Australiawas acting consistent with its obligations underinternational law. Australia cannot selectivelychoose which violations of international law itresponds to and those it does not. This willcontribute to the erosion of the rule of law.

Ensure consistency & respect for

rule of law

It is time to effectively challenge the internationalcommunity’s political and legal failures which haveallowed Israel’s occupation and de facto annexationto continue with impunity. These recommendationsprovide meaningful effective measures to preventand end these serious violations and grave crimes inPalestine and Israel. Time is of the essence given the move towardsannexation by Israeli Prime Minister Netanyahu.Australia must respond swiftly to thesedevelopments through diplomatic channels bothbilaterally with Israel and also multilaterally withothers in the international community,collaborating with other states to adopt measuresto put pressure on Israel to comply withinternational law. Australia should be ready to take action againstIsrael through steps at the UN and by imposingtargeted sanctions measures.

Conclusion

POLICY BRIEF | June 2020

1 0

References Al Haq and GLAN, Business and Human Rights in OccupiedTerritory: Guide for Upholding Human Rights (April 2020) Al Haq, Facts on the Ground (October 2016) The Khan al-Ahmar Victims Observations, LRV1 Brief, Situation inPalestine, Pre-Trial Chamber I, ICC, (Leizbeth Zegveld) (12 March 2020) Victims’ Observations, LRV2 Brief, Situation in Palestine, Pre-TrialChamber I, ICC, (Fergal Gaynor and Nada Kiswanson van Hooydonk)(16 March 2020) Submissions on Behalf of Child Victims and Their Families, Situationin Palestine, LRV3 Brief , Pre-Trial Chamber I, ICC, (Brad Parker andKhaled Quzmar)(16 March 2020) Victims’ Observations, LRV5 Brief, Situation in Palestine, Pre-TrialChamber I, ICC, (Katherine Gallagher) (16 March 2020) Submission on Behalf of Palestinian Victims Residents of the GazaStrip, LRV6 Brief, Situation in Palestine, Pre-Trial Chamber I, ICC, (RajiSourani, Chantal Meloni and Triestino Meriniello) (16 March 2020) Observations on Behalf of Victims, LRV9 Brief, Situation in Palestine,Pre-Trial Chamber I, ICC, (Stephen Powles QC and Sahar Francis) (16March 2020) Lawyers for Palestinian Human Rights (UK) Briefing Paper, (April 2020)

About the Australian Centre for International Justice

The Australian Centre for International Justice is an independent and not-for-profit legalcentre working to develop Australia’s domestic investigations and prosecutions of theinternational crimes offences in the Commonwealth Criminal Code and employs strategies tocombat the impunity of the perpetrators to seek justice, redress and accountability for thesurvivors of these crimes.   Acknowledgements

Author: Dr Shannon Maree Torrens, with contribution from Rawan Arraf.

Cover image

Raed Abu Haniyeh walks on his land where he lost tens of olive trees for the new Israeli settlerroad in Nabi Elias village, West Bank, February 2017. Credit: © Ahmad Al-Bazz/Activestills.org  Donate

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