Australia discovers that Jerusalem is an immovable rock

Jerusalem – an immovable rock.

Australian Prime Minister Scott Morrison has discovered just that.

Last October he announced that the Australian government intended to consider moving the Australian embassy in Israel from Tel Aviv to Jerusalem. It was a bold statement, for which he was heavily criticized. He announced a review process in which all interested parties would be consulted.

When the time finally came to make a decision, however, the Australian government fell into the age-old trap of trying to craft a compromise policy that would please all people.

The result, unfortunately, is a compromise statement about Jerusalem issued on 15th December 2018 that pleased almost no-one and offended almost everyone.

Foreign policy – a Christian perspective
Before looking at the decision more closely, let’s reflect on how we should approach these matters as Christians. As Christians we must of course consider what the Bible has to say on the matter. The Bible clearly talks about Jerusalem as being the historic capital of the Jewish people. And – for those of us who believe that God’s Old Testament covenants with (and promises to) Israel and Judah remain valid – Jerusalem will be the place to which the Lord will bring His people home, and to which Jesus will return as Messiah of Israel and in which He will rule as King over the nations.

We cannot, however, in nations where the majority of citizens do not believe in the Bible as a source of truth, expect the Bible to be accepted as the sole basis for foreign policy.

Arguably, there are three principles upon which foreign policy should be built. First, foreign policy must reflect the interests of the nation itself. Second, foreign policy should be based on common sense. And thirdly, states should comply with their obligations under international law.

There are many simply good reasons why – on all these counts – it would be appropriate and wise for nations to locate their embassies in Israel in Jerusalem. Most of those arguments have been made clearly before, and do not need to be repeated here. A good summary of them can be found in the US Jerusalem Embassy Relocation Act (1995).

There are many very good aspects of the new Australian policy. The Prime Minister reaffirmed Australia’s unwavering support for the right of the State of Israel “to exist within secure and internationally recognised borders”. He went on to state that “Australia’s national interests are well served by our productive and increasingly diverse relationship with Israel. Australia has always been one of Israel’s greatest friends and I intend for that to remain the case. This is underpinned by our nation’s shared values, including our commitment to democracy and the rule of law.”

The Prime Minister also condemned in the strongest possible terms “the biased and unfair targeting of Israel in the UN General Assembly”, which has become “the place where Israel is bullied and where anti-Semitism is cloaked in language about human rights. It is where Israel is regularly accused of what Rabbi Jonathan Sacks called the ‘five cardinal sins against human rights: racism, apartheid, crimes against humanity, ethnic cleansing and attempted genocide.’” He rightly condemned the obsessive criticism of Israel in the name of human rights as “ridiculous” and “an intellectual fraud”.

The government also rightly restated its position that regards Hamas as “terrorists who use the Israel-Palestinian conflict as an excuse to inflict terror”, an “condemns Hamas’ activities in the strongest possible terms”.

The division of Jerusalem
In formulating its new policy concerning the Israel-Palestine dispute, however, the Australian government gets into very murky water. It is on the status of Jerusalem that the government, in my view, goes astray.

According to the Prime Minister, Australia’s policy concerning this dispute should be guided by two principles: its “commitment to a two-state solution” (“a secure Israel and future Palestinian state living side-by-side in peace and security within internationally recognised borders”), which it regards as “the only viable way to resolve the Israel-Palestine dispute”, and Australia’s “longstanding respect for relevant UN Security Council resolutions”.

The PM rightly emphasized that a Palestinian state must come into existence as a result of negotiations, and observed that there is a “rancid stalemate” between Israel and the PLO. He emphatically stated that he wanted to “question the conventional wisdom” about how the goal of two states could be achieved.

But unfortunately he ended up simply repeating the same old mistakes – by limiting the recognition of Jerusalem as Israel’s capital to “West” Jerusalem, and repeating the universal mantra that Jerusalem must be divided into “West” and “East” Jerusalem.

Accordingly, the Australian government decided that “Australia now recognises West Jerusalem, being the seat of the Knesset and many of the institutions of government, is the capital of Israel”, and that “furthermore, recognising our commitment to a two-state solution, the government is also “resolved to acknowledge the aspirations of the Palestinian people for a future state with its capital in East Jerusalem”. As a result, Australia will establish a defence and trade office in Jerusalem, and only move the embassy in support of and after final status determination”.

This reflects a failure to recognize the facts of history, and a very well-meaning but nevertheless distorted perception of international law.

Acknowledging Palestinian aspirations for statehood with its capital “in East Jerusalem”, and moving of the embassy only as and when a State of Palestine has been established pursuant to negotiations, will not assist the negotiations, nor will they make the longed-for Palestinian state more likely. This is because they ignore the real causes the stalemate: the structural promotion of terror by the Palestinian Authority, the continued refusal of the PLO to recognize Israel as a Jewish State, the ambitions of most Palestinian groups to destroy the Jewish State and replace it with an Islamic State, and the failure of the Palestinians – notwithstanding billions of dollars of foreign aid – to create the conditions necessary for statehood.

“West” and “East” Jerusalem
It is a great pity that the government has recommitted itself to the “Two State Solution” as the “only viable way to solve the dispute”.

The reality is that negotiations about Palestinian statehood are a dead-end street, because the Palestinians are not willing to accept any compromises. And one of the matters on which they will not compromise are the so-called “1967 lines” – which are the armistice lines agreed between Israel and Jordan in 1949, after which “West” Jerusalem was governed by the State of Israel, and Jordan illegally occupied (and later purported to annex) “East” Jerusalem for 19 years.

The “two state solution”
It is important to note that even if negotiated Palestinian statehood were an attainable goal, it is not required by international law. The Oslo agreements (and international law in general) do not require the creation of a Palestinian state, but leave open the question whether Palestinian self-determination can be satisfied by alternative means.

This would have been an ideal opportunity for the Australian government to have played a leading role in challenging the “Two State paradigm”, and encouraging the parties to explore alternative solutions that will guarantee both Israel’s security and the Palestinians’ legitimate aspirations for autonomy.

Worse, acknowledging Palestinian claims to their capital “in East Jerusalem” could be seen as prejudicing Israel’s position in its negotiations concerning the territorial status of Jerusalem, which is a final status issue under the Oslo agreements.

Israel’s position – an entirely legitimate opinion even if many do not agree with it – is that the whole of the city of Jerusalem belongs to the sovereign territory of the State of Israel on its establishment in May 1948. It is only because of Arab aggression that the city was divided between 1949 and 1967. The UN Security Council demanded in 1980 (UNSC Resolution 476) that foreign embassies in Israel be moved from Jerusalem to Tel Aviv, following Israel’s reunification of the city after the 1967 Six Day War. In Israel’s view, UN Security Council Resolutions 476 and 478 are based on an erroneous view that “West” Jerusalem does not belong to the State of Israel.

Israel’s claim to sovereignty over the unified city of Jerusalem is based on the San Remo resolution (1920) and the Mandate for Palestine (1922), pursuant to which the whole city of Jerusalem became part of the State of Israel on its establishment in 1948. Further, it is important to emphasise that UN Security Council resolutions on this issue are not binding. It is also significant that Resolutions 476 and 478 (and also 2334) conflict with the earlier Security Council Resolution 242 (November 1967), which (amongst other things) implicitly acknowledged that Israel has legitimate territorial claims to at least part of the territories captured in 1967, and its right to secure borders. The PLO and Israel have agreed (in the Oslo Accords) that the principles laid down in Resolution 242 form the basis for their negotiations. It is entitled to assert its claims to territorial integrity in its negotiations with the PLO.

Regarding international law, the government’s commitment to the international “rules-based order” is commendable. But saying that “Australia is subject to UN Security Council resolutions that apply to the Jerusalem issue, including Resolutions 478 and 2334” is simply not correct. Security Council resolutions are important, and should be treated with great respect. They should only be departed from where there are very good reasons for doing so. But Australia is not “subject” to them. Security Council resolutions under Chapter VI of the UN Charter (all the Security council resolutions on Israel-Palestine are under Chapter VI, not Chapter VII) are not binding, and the Council has in any event no jurisdiction to limit or compromise the territorial integrity of individual states. This means that Security Council resolutions 242, 476, 478 and 2334, for example, are not binding on Australia. They are essentially political statements, not legally binding decrees.

Australia is a sovereign state, and is entitled (and obliged) to consider its obligations under international law, and is perfectly entitled to criticize erroneous statements in Security Council resolutions. This includes respecting the rights and obligations of parties under existing agreements. Australia should reject the statements in Security Council resolutions that claim Israel’s reunification of the city of Jerusalem to be illegal, null and void, simply because this position is not justified under international law.

Instead, Australia should reaffirm the obligations of both Israel and the PLO to comply with international law generally, and in particular under existing treaty obligations, including those under the Oslo agreements.

There is nothing under international law, nor in the Oslo agreements, that requires the city of Jerusalem to be divided.

Israel has a legitimate right under international law to claim sovereignty to the whole city of Jerusalem (and arguably also the West Bank as a whole). It is not up to Australia or any other state to compromise those claims.

Go to the Address to the Sydney Institute by the Prime Minister of Australia