In the Media

Mark Leibler

The Australian – 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.