Australia’s Foreign Affairs Minister – Senator Bob Carr – has made the long running Jewish-Arab conflict an issue in the forthcoming elections on 7 September.
Speaking at the Lakemba Mosque in Sydney on 8 August at celebrations to mark the end of Ramadan – Carr reportedly committed the Labor Government to support the claim that Jews have no legal right to settle in the West Bank:
” I’ve been to Ramallah, I’ve spoken to the Palestinian leadership, and we support their aspirations to have a Palestinian state in the context of a Middle East of peace. And that means respect for the right of Israel to exist. But we want that Palestinian state to exist, in the context of a peace in the Middle East, and that’s why we say, unequivocally, all settlements on Palestinian land are illegal under international law and should cease. That is the position, of Kevin Rudd, the position of the Federal Labor Government, and we don’t make apologies for it.”
Senator Carr had been far less definitive when issuing a press release on 10 April 2012 in which he stated:
“The Australian Government has consistently called on both sides to show restraint and comply with their obligations under the Quartet’s Roadmap for Peace and other previous agreements. This includes settlements because it is counter-productive to the peace process.”
No mention of “illegality” then – only a view that settlements were counterproductive to the peace process.
Carr was to have a sea-change in opinion just nine months later.
On 18 January 2013 Senator Carr, the Australian Minister for Defence – Stephen Smith – and the UK Foreign and Defence Secretaries, William Hague and Philip Hammond, met in Perth for the fifth Australia-UK Ministerial Consultations (AUKMIN) and issued a communique which stated:
“All settlements are illegal under international law and settlement activity undermines prospects for peace.”
This communique contradicted legal opinion which supported Jewish settlement being legal in international law under article 6 of the Mandate for Palestine HERE and article 80 of the United Nations Charter.HERE
This opinion has been expressed by such distinguished jurists as Sir Elihu Lauterpacht, former US Secretary of State Eugene Rostow and was the considered opinion of the Levy Report issued in July 2012. HERE.
Amazingly these specific provisions of the Mandate and the UN Charter do not even rate a mention in the latest statement issued by Carr seeking to justify the legal basis for such Labor Party policy announced at the Lakemba mosque.
Responding to a query from on-line news service J-Wire – Carr’s office has issued the following response:
“I have been advised that ‘Israeli settlement activity is a violation of the Fourth Geneva Convention (to which Israel is a party).
The applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory is widely accepted“
Does “wide acceptance” in the absence of any legally binding judgement make it legal? Australia’s most distinguished professor of international law – the late Professor Stone – disagrees that the Fourth Geneva Convention applies to the West Bank – as do other international jurists.
The statement continues:
“For example, the annual GA resolution on the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem, and the other occupied territories, was adopted at UNGA67 on 15 November 2012 by 164 in favour; six against; four abstentions.“
General Assembly resolutions have no binding effect in international law. Is Carr unaware of that fact?
Carr then asserts:
“Article 49(6) of the Fourth Geneva Convention (on the protection of civilians in time of war) provides that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”.
True – but Israel has not deported or transferred parts of its own civilian population into the West Bank. Jewish settlement there has been voluntary – resuming Jewish settlement that existed before 1948 when Jews living in the West Bank were driven out and expelled from their homes and businesses by six invading Arab armies.
Carr ends his explanation with following statement:
In its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall on Occupied Palestinian Territories, the ICJ unanimously concluded that the Israeli settlements in the Occupied Palestinian Territories (including East Jerusalem) had been established in breach of international law.
The Security Council has also, over time, described Israeli settlement activity as having “no legal validity’”.
Is Carr unaware that the Advisory Opinion is non- binding, was made without any consideration of the Mandate and the UN Charter and that Security Council “descriptions” also have no binding legal effect.
The Labor Party in its rush to curry favour with the voters has allied itself with those who would deny Jews the right to live in the West Bank – land over which no country exercises sovereignty at the present time and in respect of which there is no binding legal decision preventing such settlement.
Labor’s stance will appeal to many pro-Palestinian voters – but will be very disturbing to those Zionists – both Jews and Christians – who believe the right of Jews to legally settle in the West Bank has been preserved until today under the United Nations Charter.
Foreign policy will doubtless be a major factor in influencing many people’s votes.
The Liberal – National Coalition now needs to state whether it agrees with this latest plank in the Labor party’s foreign policy. Hopefully such response will be prompt and unequivocal.
David Singer is a Sydney Lawyer and Foundation Member of the International Analysts Network.