- MARK LEIBLER responds to Bob Carr - 'Carr's view on settlements is counter productive'
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MARK LEIBLER responds to Bob Carr - 'Carr's view on settlements is counter productive'
The Australian
MARK LEIBLER
FEBRUARY 18, 2014
MARK LEIBLER
FEBRUARY 18, 2014
BOB Carr (”West Bank settlements always illegal”, February 11) has accused the Australia/Israel & Jewish Affairs Council of directing “a furious effort at trying to block” his “routine criticism” of settlements while he was foreign minister, “as if this were more vital than advocating a two-state solution or opposing boycotts of Israel”.
This accusation grossly misrepresents AIJAC’s position. As I personally acknowledged to Carr last year, there are various views in Israel and in the Jewish community on the extent to which settlements may obstruct peace.
AIJAC is a fierce opponent of boycotts of Israel and a staunch advocate of a two-state resolution. It is precisely AIJAC’s advocacy of this that led us to oppose his stance on settlements.
AIJAC acknowledges that whether settlements are legal is a matter of contention. However, it is definitely unhelpful when those supporting a negotiated peace categorically declare that all settlements are illegal when serious legal arguments and significant legal scholars suggest otherwise and there is no authoritative, binding legal precedent for such a view.
Ultimately, bilateral Israeli-Palestinian political negotiations are the only way a two-state resolution can be achieved. Making pronouncements that reduce flexibility and create unrealistic Palestinian expectations is not helpful to achieving the difficult compromises needed.
Israeli-Palestinian negotiations face numerous barriers. The Palestinian leadership is divided: Hamas, which rules Gaza, refuses to recognise Israel’s right to exist or to renounce violent attacks on Israeli civilians; Fatah, which runs the Palestinian Authority, continues to demand the inundation of Israel with millions of Palestinians whose ancestors fled in 1948, refuses to recognise Israel as a Jewish state, and continues to incite hatred and glorify murderers and terrorists.
Nevertheless, settlements are the focus of Carr’s ire. On their alleged illegality, he presents 1967 advice by Theodor Meron, then legal adviser in the Israeli Foreign Ministry. As Carr noted, Meron wrote that “civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention”. However, this sentence comes from the cover letter, not the advice, which is only unequivocal when it is applied to the since-annexed Golan Heights.
About the West Bank, Meron was much more nuanced, saying Israel had a right to establish temporary military settlements there, that Israeli civilians were likely entitled to return to their privately owned property in the Gush Etzion settlement block, and he even canvassed the idea of settlements in the Jordan Valley.
Carr correctly noted that if the Fourth Geneva Convention applies in the West Bank - a contentious point - Article 49 would forbid Israel to “deport or transfer part of its own civilian population” into the territory. However, as pointed out by eminent international lawyers such as Australian scholar Julius Stone and former International Court of Justice president Stephen Schwebel, Israel has done no such thing. Settlers were not transferred or deported into the West Bank in a “forcible” manner - as Article 49 implies and elsewhere specifies. They moved there of their own volition.
Settlements are an important issue and Israel has tried to minimise their impact. In 2005, Israel dismantled all 21 settlements in Gaza and four in the West Bank. Since 2004 guidelines forbid new settlements or the expansion of existing settlement boundaries. The vast majority of settlers live in major blocs, included inside Israel in all serious peace proposals subject to equivalent land exchanges. By contrast, the Palestinians have refused to compromise on these issues and demand that no Israelis live over the 1949 armistice lines.
Pretending successful negotiations revolve primarily around Israel’s policy on settlements only emboldens opponents of peace and distracts from other pressing issues. Foreign Minister Julie Bishop recognises this. She has returned Australia’s position on settlements to a principled stance and made encouraging successful bilateral negotiations the top priority. Carr’s insistence on a policy centred on blanket opposition to all settlements on the basis of their alleged illegality was contentious, simplistic and counter-productive to advancing peace prospects.
Mark Leibler is national chairman of the Australia/Israel & Jewish Affairs Council.
ANY confusion about Israel’s settlements in the West Bank can be easily resolved. There is a file in the office of the Israeli Prime Minister that will do it.
The file would be handy for John Kerry as he attempts to broker a peace. It would help Julie Bishop, who told The Times of Israel on January 15 she’d like to see advice that says settlements are illegal.
It was this advice that an Israeli prime minister asked for in 1967. Israel had just conquered what is now the West Bank. Prime minister Levi Eshkol asked Israel’s top authority on international law, Theodor Meron, whether Israel could settle civilians there.
Meron was a child survivor of the Holocaust and has since become one of the world’s leading authorities on the laws of war and a judge on the International Criminal Tribunal for the Former Yugoslavia.
His advice was unequivocal, and today he sticks to it. He said: “Civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention.”
When General Moshe Dayan in 1968 proposed building Israeli towns on the West Bank he blithely conceded: “Settling Israelis in administered territories, as is known, contravenes international conventions ... “
Indeed, the Fourth Geneva Convention would appear to leave no room for argument. It states: “The occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Apologists for settlements try to argue that Article 49 bars the occupier only from “forced transfer” (my emphasis) of its civilians. This is not the interpretation accepted by the International Court of Justice or anyone else. The adjective “forced” does not appear in the convention.
I think I recognise a killer argument when I see one. The killer argument here is that Israel’s own legal authority, at the very start, told its government that settlements were illegal under international law.
It’s curious that supporters of Israel would choose to fight on this ground - their weakest.
When I was foreign minister the Australia/Israel & Jewish Affairs Council directed a furious effort at trying to block even routine criticism of settlements, as if this were more vital than advocating a two-state solution or opposing boycotts of Israel. Settlers themselves shatter all sympathy, as on the ABC’s Four Corners on Monday when Daniella Weiss stated they deliberately had occupied land to block the creation of a Palestinian state because “this land was promised to the Jewish nation by God”.
In Louis Theroux’s BBC documentary The Ultra Zionists, religious settlers declared Palestinians an inferior race. “This is the Jewish homeland and there’s never been a Palestinian people,” declared one, standing on a property formerly occupied by Palestinians. In one blast they defied centuries of priceless Jewish liberal and humanitarian instinct.
No one from the centre-Left of European politics is going to do anything other than repudiate this ultra-religious vision. “The kibbutz used to be the symbol of Israel,” a British Labour MP told me. “Now it’s the settlement bloc.” American Jewry is increasingly detaching itself from what it sees as a chauvinist, illiberal strain in Israeli politics.
Kerry warned Israel last month of the danger of delegitimisation, especially after the EU announced any economic treaties with Israel would carefully exclude - one may say boycott - business activity in Israeli settlements.
I know some supporters of Israel would want to point out that there are a range of settlement categories. My response is to quote Israeli prime minister Golda Meir, who once said: “If you’ve got to explain, you’ve lost already.”
In any case, there is available a far more intelligent defence of Israel. Concede that the settlement mission is controversial within Israel. Point out many Israelis are opposed to the settler vision of a greater Israel indefinitely governing a majority Arab population. Give up any argument that settlements are legal under international law and move on to more fruitful territory.
Insist that liberal democracy and shining economic success - even with constant threat of war - are the chief virtues of Israel, a state where six former heads of its security agency, Shin Bet, can appear in a documentary (The Gatekeepers) and criticise Israel’s occupation of the West Bank, a state where its own Supreme Court can overrule its government on use of torture or the direction of a wall opposed by Palestinian villagers, where historians freely challenge their country’s own foundation myth. Where, as Four Corners showed, its military personnel can speak out against the occupation.
In all these respects, Israel presents a benchmark of pluralism and democracy - a formidable one - for a future Palestinian entity. If Palestinians achieved it, they would set off a challenge to Arab dictatorship and theocracy everywhere and realise their own greatness.
Bob Carr was Australia’s foreign minister from March 2012 to September last year and was NSW premier from 1995 to 2005.