- 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.
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