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Australian Government claims legal privilege to question on Geneva IV

[19 December 2014] – On 21 May 2014, MCW wrote to Australia’s diplomatic representative in Ramallah requesting clarification of the Government’s position regarding the application of the Fourth Geneva Convention to the West Bank, East Jerusalem and the Gaza Strip (Occupied Palestinian Territories). Although there is near universal acceptance and legal authority that the Convention applies in full, clarification was sought as a result of recent actions and statements by Australian officials that cast some doubt on Australia’s continued commitment to its legal obligations.[i]

On 23 October 2014, the Government responded to some of the issues raised in MCW’s correspondence following a question on notice raised in the Senate, which was articulated in the following terms:
“Is it the Government’s view that the Fourth Geneva Convention applies in the Occupied Palestinian Territories, including East Jerusalem?”
In what appears to be a first amongst the 196 parties to the Convention, rather than acknowledge its continued commitment to the rule of law, the Abbott Government has claimed legal privilege and declined to answer the question in an open and transparent manner:
“The issue raised by this question has been the subject of legal advice provided by the Department to the Government. That advice is subject to legal professional privilege and is therefore confidential.”
This extraordinary decision by the Abbott Government is an apparent departure from the policy of successive Australian governments since the ratification of the Convention in 1958, and runs counter to the general international consensus and legally binding UN Security Council Resolutions concerning the application of the Convention to the Occupied Palestinian Territories. This apparent policy shift or ambiguity also falls short of Australia’s legal commitment “to respect and to ensure respect for the present Convention in all circumstances” contained in Article 1.
It must also be noted that the Abbott Government’s failure to clearly and unequivocally uphold its commitments under the Geneva Conventions has the potential to endanger the safety and lives of Australian service men and women who may require the protections afforded by the Conventions in times of conflict.

[i] Under Article 1, Australia has an obligation to “respect and to ensure respect for the present Convention in all circumstances.” Under the terms of the Convention all settlement activity in occupied territory and transfer of prisoners out of occupied territory are illegal.