Media Microscope: Legal Beagles

Allon Lee

Some media professionals were especially concerned over what potential changes might be made to foreign policy regarding Israel by an incoming federal Liberal/National government.

The day before the federal election, James Carleton reported on how Labor and the Coalition differ on the legality of Israeli settlements, and was very obviously unimpressed with the Coalition’s policy. As articulated by its then-Shadow Minster for Foreign Affairs spokesperson Julie Bishop to Carleton, that policy is “not passing judgement. There have been talks of land swaps and the like. It should be resolved by negotiation.”

So Carleton averred to Bishop that “the EU says the settlements are illegal. The conservative foreign minister in the UK says they’re illegal… Aren’t we standing out on a limb if it’s different from those allies?”

Politely, Bishop countered that, “we have our own foreign policy.” (Ever notice that those who bang the drum that Australia must exercise a so-called independent foreign policy will then recommend we adopt the stance espoused by the majority at the UN – which is dominated by non-democratic regimes.)

Australia’s Foreign Minister Bob Carr was quoted in the report saying that “all settlements, without argument, are illegitimate. So, when we say all settlements are illegal, that is the consensus international position.”

Carleton made it very clear that he believed Carr was right, telling Bishop “the current situation is that the Fourth Convention does apply. Namely, that settlements are illegal.” He said that the Geneva Convention says “an occupying power must not transfer its civilian population into the territory it occupies. And the UN Security Council has voted unanimously that includes the Palestinian territories. Australia is now the President of the Security Council. Does this mean an incoming Liberal government could stand alone and say the Convention does not apply?”

In fact, the only occasion the Security Council voted to apply the Geneva Convention to the West Bank settlements was on March 22, 1979 (Res. 446). It did not vote unanimously – Norway, Great Britain and the United States abstained and the Carter Administration later blamed a snafu for its abstention rather than exercising a veto. Furthermore, the resolution did not describe the settlements as illegal but as having “no legal validity” – whatever that means, ABC Radio National “Breakfast” (Sept. 6).

On the day of the election, columnist Tony Walker likewise scolded Bishop for “launch[ing] a jihad against Foreign Minister Bob Carr over his declarations that Israeli settlement-building is illegal under international law. This happens to be the position of the European Union, the United States and Britain.”

Walker claimed that on August 13, US Secretary of State John Kerry said that “the United States of America views all of the settlements as illegitimate.”

In contrast, “Bishop…has nothing to say about continued Israeli settlement construction deemed by our friends and allies as ‘illegal’ and/or ‘illegitimate’.”

Most pointed was Walker’s comments about those who might disagree, “the pro-Israel establishment is delighted with this turn of events and can hardly wait to see the back of Foreign Minister Carr, who is subjected to obsessive criticism in its various organs… Bishop might reflect on implications of foreign policy declarations that tie Australia to any particular position beyond what is in the national interest. The national interest dictates an even-handed approach on the vexed Arab-Israel dispute.”

Walker’s insinuation that Israeli interests are superseding Australia’s is not unfamiliar territory for him. It similarly reared its ugly head twice earlier this year in columns discussing the revelations about Ben Zygier, the Australian-born Israeli Mossad agent who committed suicide in an Israeli jail, Australian Financial Review (Sept. 7).

A letter from AIJAC’s Ahron Shapiro published in response to Walker pointed out that the US Government is very careful never to use the word “illegal” to describe Israeli settlements, even while criticising them as unhelpful by using the word “illegitimate”.

The letter explained that “legally and diplomatically, there is a world of difference between the two words” and that “all US administrations since 1981 have explicitly rejected” calling them “illegal”. Moreover, in February 2011, Washington’s UN Ambassador explained, when the US used its veto on a UN Security Council resolution, that “the White House could not accept language in the resolution branding Israeli settlements as ‘illegal’.”

Furthermore, Shapiro appropriately contextualised settlements as “not threaten[ing] a two-state resolution because no new West Bank settlements are being built, existing settlements take up less than 2 percent of the West Bank, and their boundaries are not being expanded,” Australian Financial Review (Sept. 11).