Senator Lee Rhiannon – Estimates question about US embassy move and shooting of civilians in Gaza

May 31, 2018

Questioned whether Australian officials in Israel will visit the US embassy in Jerusalem, the use of force by the Israeli military against civilians in Gaza and DFAT’s use of the term ‘Occupied Palestinian Territories’.

Senator RHIANNON: Can you confirm that, given Australia’s policy that we should not prejudice the status of Jerusalem, Australian officials will not attend meetings in the new US embassy in Jerusalem?

Ms Yu : I can’t confirm that Australian officials will not attend the US embassy.

Whole interaction Ms Frances Adamson (Secretary, DFAT), Mr James Larsen (Chief Legal Officer, Legal Division, DFAT) and Ms HK Yu (First Assistant Secretary, Middle East and Africa, DFAT) during Senate Estimates (Foreign Affairs, Defence and Trade Legislation Committee, Foreign Affairs and Trade Portfolio).

Senator RHIANNON: Thank you. I will move on to some questions about Palestine. I am just following up on some of the issues that Senator Richard Di Natale asked earlier. Can you confirm that, given Australia’s policy that we should not prejudice the status of Jerusalem, Australian officials will not attend meetings in the new US embassy in Jerusalem?


Ms Yu : I can’t confirm that Australian officials will not attend the US embassy. Some of the roles of the post representation is that we actually work with other posts.


Ms Adamson : We have made our decision in relation to our own intentions very clear. We will need to continue normal cooperation and diplomatic discourse with our US colleagues.


Senator RHIANNON: But isn’t it a fair summary of Australia’s position that nothing should happen that would prejudice the status of Jerusalem?


Ms Adamson : I don’t believe that Australian officials holding meetings with US officials in their embassy would prejudice the final status negotiations.


Senator RHIANNON: Why do you say that, considering the extraordinary controversy that there is around this? We are actually talking about the status in Jerusalem.


Ms Adamson : We are. The government made its position clear on that when President Trump announced that intention. We’ve also made clear our own intentions with respect to our own embassy, which is for it to stay where it is. So our position is clear, but we will need to, in a pragmatic way, continue to work with the Americans as we do throughout the world and, indeed, with other close partners.


Senator RHIANNON: So when you say pragmatic, do you mean that you take it on a case-by-case basis depending on who is attending the meeting, where it’s going to be held and that sort of thing? Is that what pragmatic means in this case?


Ms Adamson : It means that we will need to continue to do business with the Americans. I would be comfortable leaving judgements on those matters to my colleagues in our embassy in Tel Aviv. Should they encounter a situation where they feel they want to seek instructions, I have no doubt that they will do that.


Senator RHIANNON: Thank you.



Senator RHIANNON: Thank you. Ms Adamson, do you know of any legal code that would not count the shooting of unarmed civilians as a war crime?


Ms Adamson : I’m going to ask our chief legal officer to answer that question because there are nuances to the answer.


Senator RHIANNON: Yes.


Mr Larsen : Forgive me. I think your question contains a double negative. Could I hear it again?


Senator RHIANNON: Do you know of any legal code that would not count the shooting of unarmed civilians as a war crime? It’s not actually a double negative.


Mr Larsen : Well, every circumstance where a person faces fire will depend on the specific circumstances. So it will always be treated on a case-by-case basis. In some instances, it may be a crime. In other instances, it may not.


Senator RHIANNON: So when would it not be a crime to shoot unarmed civilians?


Mr Larsen : I think it depends on the circumstances. I can’t answer a hypothetical. It will ultimately depend on all the circumstances and the facts at the time.


Senator RHIANNON: Do you know of any legal code that would not count the shooting of unarmed civilians walking towards a fence when they are many hundreds of metres away from the person with the guns as a war crime?


Mr Larsen : I can’t engage in a hypothetical assessment.


Senator RHIANNON: It’s not a hypothetical. It’s just what has happened in Gaza. It’s not a hypothetical.


CHAIR: Senator Rhiannon, I seek a point of clarification. I think you are asking an Australian DFAT legal officer a question. It would be quite appropriate, I think, to ask questions of Australian law. I’m not sure he is the appropriate person to ask about the laws of other nations.


Senator RHIANNON: I don’t think you need to protect him. I think it’s a very legitimate question concerning the circumstances. This is DFAT. We have representatives there. These incidents occur. They need to be explored. I will ask the question again. Do you know of any legal code that would not count the shooting of unarmed civilians walking towards a fence many hundreds of metres away from the people with the guns as a war crime?


Mr Larsen : It absolutely depends on the particular circumstances. It would be a case-by-case assessment. It would depend on an assessment of the perception of the forces on the other side of the fence or border. It would depend on the nature of the approach. So there are many factors to consider.


Senator RHIANNON: In March this year, it was reported in the Israeli media that Israeli border police were deploying newly developed drones that can drop tear gas canisters against Palestinian demonstrators. The drones can carry up to six canisters at a time. They can drop them individually, in clusters or all at the same time. Developers, I understand, are working to increase the capacity to 12 canisters. What is the government’s response to using drones to drop tear gas canisters on people?


Mr Larsen : I might answer that from a legal perspective, but obviously colleagues at the desk will have a more nuanced and sophisticated view. At the end of the day, it’s always a question of a case-by-case analysis of the particular circumstances, so it depends on the particular threat. It depends on the particular events. It depends on the intention of both sides.


Senator RHIANNON: But isn’t the question here that both sides are not equal sides? This is the case, and this is another example of it. That’s not the question, but I think that’s fair enough to comment on the context here. Given currently tear gas canisters shot from the canons have maimed people—that’s on the record—does the government have any concerns that canisters dropped from the sky with the accuracy that drones can deliver has even greater potential to seriously harm people?


Mr Larsen : We recognise the right of Israel to defend itself, to take reasonable and proportionate action in response to threats. I can’t comment on the particular hypothetical you’ve put to me. Ultimately, any legal analysis or measuring conduct against a code or legal standard will depend on the particular circumstances.


Senator RHIANNON: You’ve used the word ‘proportionate’, which is regularly used when there are these discussions. There’s such a huge gulf here, considering that we had snipers on one side and on the other side there’s protesters in Kissufim, where there were reports of Molotov cocktails and there were reports of kites flying over. There were also tens of thousands of people who were engaged in peaceful action. When you use the word ‘proportionate’, what do you actually mean by that considering there were snipers on one side who killed well over 100 people?


Mr Larsen : It absolutely depends on the particular circumstances. It depends on the perception of each side as to the conduct of the other. It depends on the facts on the ground. It is quite possible that action can be lawful even where you have civilian casualties.


Senator RHIANNON: So is it proportionate where there were no deaths on Israel’s side but there are well over 100 deaths on the Gazan side as well as over 2,000 people injured? Is that a proportionate response?


Mr Larsen : In my opinion, the question of proportionality doesn’t give rise to a debate about the number of deaths on one side or the other. That’s not relevant to proportionality.


CHAIR: Senator Rhiannon, I remind you of a point of order that Senator Moore raised about using the word ‘alleged’. With Senator Leyonhjelm it was important. Senator Leyonhjelm took the point that these are allegations. You are now referring in the same way that Senator Leyonhjelm was.


Senator RHIANNON: Well, I actually don’t agree with that, Chair. Nothing that I have said is an allegation. It has been reported widely and it hasn’t been disputed with regard to the figures that I gave or what happened. Has the Australian government made any response or indicated any concerns to the Israeli government about the use of drones as described?


Ms Yu : Not drones as such specifically. As you would know, our foreign minister, on 15 May, issued a press statement expressing her deep regret and sadness over the loss of life. As Mr Larsen commented just then, while we recognise that Israel has legitimate security concerns and needs to protect its population, we call on Israel to be proportionate in its response and refrain from the excessive use of force. Senator Di Natale asked how many times we actually made representations to the Israeli government about this issue. I can provide that information for you. There have been five occasions where we made representation to the Israeli government expressing our concerns around what was happening in the Gaza Strip.


Senator RHIANNON: Thank you for making that available. Israel’s border police deputy commissioner, Yaakov Shabtai, was quoted in the Times of Israel as saying, and I quote him:

Beyond the fact that this equipment neutralizes any danger to the troops, it enables reaching places that until now we couldn’t get to.

I emphasise the words ‘it enables reaching places that until now we couldn’t get to’. Is the Australian government concerned the Palestinians may now be targeted by the Australians anywhere within flight distance?


Ms Yu : We’ll have to look further into that.


Senator RHIANNON: And if that’s a proportionate response.


Mr Larsen : I might add to that. Ultimately, I think it’s a question of facts and the particular circumstances that the Israeli forces face. Any assessment of the reasonableness or otherwise or the proportionality or otherwise will always be a question of considering the relevant facts at the particular time.


Senator RHIANNON: Surely we can ask the question now. Part of the relevant facts is whether this will mean that Palestinians going about their daily business will be the targets of these drones, because that’s now possible?


Mr Larsen : Senator, that is a hypothetical question.


Senator RHIANNON: It’s not hypothetical. It’s the border police deputy commissioner saying it. He said, ‘It enables reaching places that until now we couldn’t get to.’ It’s not hypothetical.


Mr Larsen : The answer to the question that I would posit is that ultimately we respect Israel’s right to act in self-defence. The actions that it takes, provided they are reasonable and proportionate, are acceptable. Ultimately, any assessment of that depends on the particular circumstances.


Senator RHIANNON: If you’re the legal adviser, how can you be talking like that when the question was related to unarmed people going about their ordinary business just trying to eke out a living when they can’t even return home to their land? These are refugees just trying to live. Now they could be targeted. How could you say that?


Mr Larsen : It depends on the circumstances. There are obviously circumstances in which Israel faces risks from particular locations, including Gaza. Israel has a right to respond to those risks in proportionate and reasonable terms.


Senator RHIANNON: Has the Australian government sought any reassurance from the Israeli government about how these weapons will be used?


Ms Yu : No. Not specifically on those weapons.


Senator RHIANNON: Thank you. I want to move on to how DFAT presents Smartraveler on their website. I notice on the map, which you would be well aware of, we’ve got Israel, West Bank and the Gaza Strip but we have no occupied Palestinian territories. When you read your advice, there’s no reference to occupied Palestinian territories. It stands in sharp contrast to similar advice from Smartraveler on the UK site and on the New Zealand site. I’m sure you can’t read the writing from there, but you can see my pink highlighting. ‘Occupied Palestinian territories’ is the term that is used. Why aren’t you using the terms ‘occupied Palestinian territories’ when you give people advice about that region?


Ms Yu : We do not recognise the Palestine state.


Senator RHIANNON: The term that is used is ‘occupied Palestinian territories’. I never used the term ‘Palestine state’. ‘Occupied Palestinian territories’ is the term that is used by far by the majority of countries and by our international institutions. While you are considering that, I will add to it because I don’t want to be cut off. In 2014, sitting in this room, former senator Brandis declared that the government would no longer use the term ‘occupied territory’ when referring to Israeli settlements. He described it as a judgemental term and it being inappropriate and unhelpful. So does that mean that, as it’s not on the map and there’s no description of the occupied Palestinian territories using that term in the Smartraveler, Mr Brandis’s declaration in 2014 is now being followed by DFAT?


Ms Yu : I will have to follow up, Senator, on how the Smartraveler map was developed.


Senator RHIANNON: Ms Adamson, would you like to add to this, please?


Ms Adamson : We will need to get back to you.


Senator RHIANNON: Seriously, you just have this wonderful photo. There’s dozens and dozens of you here. You know you’re coming here to speak about Palestine.


Ms Adamson : We will get it to you as quickly as we can.

Link to full Hansard transcript.