Carr in error on settlements

It was disappointing to hear Foreign Minister Bob Carr repeat an erroneous assertion he has made once before. Speaking on August 8 at Eid celebrations in Sydney to end the Muslim festival of Ramadan, Carr told a crowd outside Lakemba mosque in western Sydney that “all Israeli settlements on Palestinian land are illegal under international law and should cease.

Leaving aside the contentious reference to disputed territory as “Palestinian land”, which prejudges the outcome of the current peace talks, one would not have expected a senior and respected foreign minister to make so basic an error as to treat all the settlements alike when commenting on their international legality.

Professor James Crawford, Whewell Professor of International Law, University of Cambridge, and one of the world’s most eminent international lawyers, is generally critical of Israeli policies, as is demonstrated in a legal Opinion he published in 2012. Yet he makes clear how erroneous it is for anybody to assert dogmatically that “all” settlements are illegal under international law:

“Land acquisition on the basis of military need is not necessarily unlawful under international law. Pursuant to Article 52 of the 1907 Hague Regulations, requisitions of property are permitted to meet “the needs of the army of occupation”. Until 1979, requisition for security needs was the primary mechanism for the taking of land for settlements, and some, such as the Nahal settlements, were clearly army bases and probably lawful.”

The whole question of the legality of settlements is fraught with complexity – which is one of the reasons Crawford’s opinion runs to 60 pages. He and others have argued that Article 49, paragraph 6, of the Fourth Geneva Convention prohibits civilian settlements:

‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’

Nobody suggests that the Israeli government has deported settlers to the West Bank. The legal question is whether Israeli government benefits for settlers are sufficient to constitute a population “transfer”.

In its Advisory Opinion in 2004, the International Court of Justice (ICJ) expressed the view that these benefits do amount to a population “transfer” in breach of Art 49(6). The late Julius Stone, an outstanding international jurist, had a contrary opinion. His view was that a population “transfer” within the meaning of Article 49(6) requires a “magisterial act” or fiat by the government of the occupier State. In his view, which is still shared by many eminent international lawyers, mere financial incentives and benefits do not amount to a population “transfer”.

In any event, the ICJ’s Advisory Opinion was just that, a non-binding opinion. Like the endlessly-repeated UN resolutions on the subject, it has no legally binding effect. In fact, the ICJ’s conclusions were subjected to some serious criticisms, not least because the Court had been told in advance by the General Assembly what answers it was expected to give to the questions put to it.

The ICJ also failed to consider the effect of the original League of Nations Mandate of 1922, which recognised “the historical connection of the Jewish people with Palestine” and authorised “close settlement by Jews on the land, including State lands and waste lands”. When the UN replaced the League in 1945, the Mandate continued to operate by virtue of Article 80 of the UN Charter.

Other aspects of the ICJ’s Opinion have also been criticised publicly by democratic governments, including Australia’s. They have been especially scathing of the ICJ’s conclusion that the only kind of armed attack that would give rise to a state’s right of self- defence is a military attack by another state, and that assaults against the citizens or territory of a state by externally-based militias and terrorist organisations are matters for law enforcement agencies, never defensive military action.

No previous Australian Foreign Minister has said that “all” the settlements are illegal. Such dogmatic generalisations are unworthy of a respected middle power like Australia.

More importantly, such statements are also counter-productive. They make it politically more difficult for Palestinian leaders to agree to a land swap arrangement, a sine qua non of any final peace settlement, allowing them no way forward for any territorial compromise at all.<p>
Such statements will also alienate many Israelis who will conclude that Carr is unfairly harsh in his judgements about Israel and does not really comprehend the depth and intractability of Palestinian rejectionism.
Our Foreign Minister would have done better to limit himself to well-established bipartisan principles calling for a peaceful settlement of the conflict based on “two States for two peoples”.

Peter Wertheim is the Executive Director of the Executive Council of Australian Jewry.