Opinion |

How the U.S. State Department Deleted the Occupied Territories

Its official reports now adopt the 'occupation denial' language of senior Trump appointees. But the damage to America's credibility won't be limited to Israel/Palestine: Russia and China will also have reason to celebrate

Gerard Horton
Gerard Horton
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Palestinians take part in a protest demanding the right of return to what is now Israel, at the Israel-Gaza border, east of Khan Yunis in the southern Gaza Strip. May 4, 2018
Palestinians take part in a protest demanding the right of return to what is now Israel, at the Israel-Gaza border, east of Khan Yunis in the southern Gaza Strip. May 4, 2018Credit: SAID KHATIB/AFP
Gerard Horton
Gerard Horton

Recently the Acting Secretary of State, John J. Sullivan, released the State Department’s annual human rights report covering nearly 200 countries and territories around the world. The report is required by U.S. law and is used as a factual resource for Congress, the Executive and Judicial branches in their decision-making processes.

In his remarks during the launch of this year’s report, Acting Secretary Sullivan stated that:

John Sullivan, U.S. President Donald Trump's deputy secretary of state nominee, at a Senate Foreign Relations Committee nomination hearing in Washington, D.C., U.S. May 9, 2017Credit: Bloomberg

"Our foreign policy reflects who we are and promotes freedom as a matter of principle and interest. We seek to lead other nations by example in promoting just and effective governance based on the rule of law and respect for human rights. The United States will continue to support those around the world struggling for human dignity and liberty."

Read more: U.S. Ambassador to Israel Falsely Claims Israel Is 'Only Occupying Two Percent of the West Bank' | David Friedman Is Unfit to Be U.S. Ambassador to Israel. Fire Him | Opinion | U.S. State Dept. 'Hasn't Changed' Position Regarding Status of West Bank as Occupied Territory | Abbas Assails U.S. Ambassador David Friedman: 'Son of a Dog, Settler'

It is difficult to argue with these sentiments. But they do ring jarringly hollow when read alongside this year’s report on Israel and Palestine.

To begin with, for the first time since reporting began, the Palestinian territories are no longer referred to as "The Occupied Territories" even though their legal status as occupied territory has not changed.

Could it be that this is just a stylistic change which does not herald a shift in half-a-century of U.S. policy? Possibly, but why then the different approach in the Russia report, where clear and unambiguous language was used consistent with the laws of occupation?

"The occupation and purported ‘annexation’ of Ukraine’s Crimea Peninsula continued to affect the human rights situation significantly and negatively."

This phraseology could accurately, both legally and factually, be applied to Israel’s occupation of Palestinian territory and its "purported annexation" of East Jerusalem – so why wasn’t it?

US Secretary of State Mike Pompeo is greeted by Israeli Prime Minister Benjamin Netanyahu ahead of a press conference at the Ministry of Defence in Tel Aviv on April 29, 2018Credit: THOMAS COEX/AFP

If the explanation is that Russia is a strategic adversary whereas Israel is a strategic ally, then the Acting Secretary’s speech might need a re-write in time for next year’s report: "We seek to lead other nations by example" will have to go, as will the references to "the rule of law."

The peculiarities with this year’s report on Israel/Palestine are not just limited to omissions. For reasons unexplained, this year the State Department used a different methodology for Israel/Palestine from the methodology used in the reports for nearly 200 other countries.

For example, in the executive summary on the report on the "West Bank and Gaza," as The Occupied Territories are now referred to, the following caveat was inserted:

"This report contains data drawn from foreign government officials; victims of alleged human rights violations and abuses, academic and congressional studies; and reports from the press, international organizations, and NGOs concerned with human rights.

"In the context of the Israeli-Palestinian conflict, some of those sources have been accused of harboring political motivations. The Department of State assesses external reporting carefully but does not conduct independent investigations in all cases."

Palestinian Journalists Union protestors show photos of two journalists killed by Israeli fire in Gaza. Beit El Israeli army checkpoint, near the West Bank city of Ramallah. May 6, 2018Credit: ABBAS MOMANI/AFP

This was then followed by an additional caveat:

"We have sought and received input from the government of Israel (and, where relevant, the Palestinian Authority) with regard to allegations of human rights abuses, and we have noted any responses where applicable.

"Because of timing constraints, the Israeli government was not able to provide a detailed response to every alleged incident, but it did maintain generally that all incidents were thoroughly investigated and parties held accountable, as appropriate, according to due process of law."

A quick review of other executive summaries in this year’s report, such as those for Russia, China, Saudi Arabia, United Kingdom, Egypt, Canada, Germany, Australia and Iran, reveals that these caveats are exclusive to Israel/Palestine.

Further, although serious allegations have been levelled at the human rights records of a number of other countries, notably Russia and China, their governments were not apparently afforded the same opportunity to respond as was the government of Israel.

While these disparities may be perfectly understandable from a diplomatic perspective, they do little to enhance the standing of the State Department or the status of the Country Reports as an objective, rules-based resource.

While these developments might be attributable to changes in personnel and partisan interests, words matter, and these developments may prove to adversely impact both the U.S. and Israel’s long-term interests in a number of ways, including:

1. By subjectively determining what is, and what is not "occupied territory," without reference to established legal principles, the U.S. risks derogating from the laws of belligerent occupation and the principle of non-acquisition of territory by force codified in the immediate aftermath of the Second World War.

Rally marking the fourth anniversary of Russia's annexation of Ukraine's Crimea region in the Black Sea port of Sevastopol, Crimea, March 14, 2018Credit: \ MAXIM SHEMETOV/ REUTERS

Perhaps Russia will now start referring to the rest of Ukraine as "disputed territory," relying on the precedent set in the Palestinian territories, and China may rely on the erosion of these principles in an attempt to legitimize its island building projects in the South China Sea.

2. By applying a different methodology in the Israel/Palestine report from that applied to nearly 200 other countries, the State Department’s Country Reports run the risk of being dismissed as demonstrably biased, lacking objectivity and divorced from established legal principles.

Countries such as China, with a horrible human rights record, may seek to claim moral equivalency with the U.S. as a result of these double standards.

3. If in fact the U.S.’s position is now that the Palestinian territories are no longer occupied, a reasonable assumption following the deletion of the word "Occupied," then there is no legal basis upon which Israel can continue to prosecute thousands of Palestinian residents of the West Bank, including children, in military courts rather than standard civilian ones.

And further, if the Palestinian territories are "not occupied" then approximately five million Palestinians living between the Jordan river and the Mediterranean Sea - who are not citizens of Israel - may demand the same civil and political rights as Israelis living in the same territory.

Making exceptions for Israel 70 years after its establishment may ultimately prove damaging to other U.S. strategic interests and harm the aspiration to "lead by example." And as for "leading by example" – be careful what you wish for. Russia and China might just rely on this lead to justify making their own territorial claims in violation of established principles.

Gerard Horton is a lawyer and co-founder of Military Court Watch. Gerard has worked on the issue of children detained by the Israeli military and prosecuted in military courts for the past 10 years prior to which he practised as a barrister at the Sydney Bar. Twitter: @MCourtWatch

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