Good news and Bad from Joint Australian and UK Ministers’ Meeting…writes Peter Wertheim

January 21, 2013 by Peter Wertheim
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For those unfamiliar with diplomatic-speak, AUKMIN (Australia-UK Ministerial Consultations) is the annual day-long summit between the Foreign and Defence Ministers of Australia and the UK.  This year’s summit was held in Perth on Friday, January 18.

Peter Wertheim

Peter Wertheim

As is usual for such occasions, a joint statement was issued by Foreign Ministers Bob Carr and William Hague at the end of the proceedings.  The part of the statement that refers to the Israel-Palestinian conflict is in one important respect a departure from previous statements and will be seen by many in the Jewish community as a further move by Carr away from his previous sympathy for Israel.  More of that later.

First the good news.   The Foreign Ministers reiterated their call for an early and serious resumption of negotiations between the Israel and the Palestinians “without preconditions”.   This is precisely what the Israeli government has been calling for repeatedly since 2009.  The Palestinians have responded by refusing to return to the negotiating table until several preconditions have been met.  They demand that Israel must first freeze all settlement construction and commit in advance to the pre-1967 ceasefire lines as the basis for the border between Israel and a future State of Palestine.

The Foreign Ministers’ call for a resumption of negotiations “without preconditions” is therefore a rebuke of the Palestinians’ obduracy.   However, the rebuke has been emasculated by the use of neutral language directed equally at “the Palestinian Authority” and “the new Israeli government”, even though it is Palestinians, not the Israelis, who have sought to impose preconditions. So, even the good news on this point is not all good.

The two Foreign Ministers also reaffirmed their respective nations’ support “for a negotiated two-state solution with a secure Israel alongside a Palestinian state”.  The key word here is “negotiated”.   During the Palestinian Authority’s push for upgraded status in the UN General Assembly last November, Israel argued that this unilateral move constituted a Palestinian violation of a specific provision of the Oslo II Agreement.

The AUKMIN statement accepts Israel’s assertion that the only path to Palestinian statehood is via a negotiated agreement with Israel, and states: “We call on the Palestinians to exercise restraint and avoid provocative actions at international forums.”  Too late.  If Foreign Minister Carr really wanted the Palestinians to avoid provocative actions at international forums Australia should have voted “No” to the Palestinian gambit in the General Assembly last November.

 

William Hague and Senator Bob Carr

William Hague and Senator Bob Carr

Finally, the statement calls “for the Palestinians to abide by the terms of the Gaza ceasefire and to stop all rocket attacks.”  At last, some unqualified good news that places the blame exactly where it should lie.  To Carr’s credit, this sentence was reportedly added at his insistence and over the objections of Hague.

Now for the bad news.  It was surprising to say the least to read the AUKMIN statement characterising “all” Israeli settlements as “illegal under international law”.  One would not have expected two senior and respected foreign ministers to make so basic an error as to cast all the settlements in one lump 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 last year.   Yet at paragraph 8 on page 3 of the Opinion 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,10 requisitions of property are permitted to meet “the needs of the army of occupation”.11 Until 1979, requisition for security needs was the primary mechanism for the taking of land for settlements,12 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 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. The AUKMIN statement treats the Court’s conclusions about the settlements as an incontrovertible pronouncement from on High.  In fact, the ICJ’s conclusions were subjected to some serious criticisms, not least that the Court had been told in advance by the General Assembly what answers it was expected to give to the questions put to it.

Nor did the ICJ attempt to balance the human rights of Jews and Arabs whose lives have been saved by Israel’s security barrier, the construction of which successfully put an end to the Palestinians’ terrorist bombing campaign within Israel, against the human rights of Palestinians whose lives have been disrupted by it.

Many democratic governments, including Australia’s, have been publicly critical of the ICJ Advisory Opinion.  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.  The ICJ implied that assaults against the citizens or territory of a state by externally-based militias and terrorist organisations are matters for law enforcement agencies, not defensive military action.  This view was already out-dated at the time the ICJ published its Opinion. Contrary to the ICJ’s opinion, the US military intervention in Afghanistan in late 2001 to wipe out the bases of al-Qaeda following their attacks in New York and Washington was almost universally accepted by the international community.

Indeed, the intervention was preceded by United Nations Security Council Resolution 1373 (2001), which was a decision passed under Chapter VII of the UN Charter, and is therefore legally binding on all States.  It says that acts of international terrorism, “constitute a threat to international peace and security” and reaffirms “the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations”. The idea postulated by the ICJ Advisory Opinion that only an armed attack by one state against another can legally give rise to the right of self-defence clearly does not reflect international opinion or practice.

The two Foreign Ministers ought not to be criticised for expressing concern that a two-State solution might be slipping away.  Whilst the extent of the factual basis for that concern is arguable, the concern itself cannot be faulted.   Even media which are usually sympathetic to Israel, such as the UK Telegraph and Economist,now openly publish editorials and opinion pieces expressing such concerns.

And, whilst a two-State solution is still eminently achievable and has been the policy of successive Israeli Governments including the Netanyahu government,  even if the Israeli government announced an absolute freeze on all settlement construction the conflict would remain as intractable as ever, and a solution as elusive as ever.  What is lacking is the political will on the Palestinian side to conclude a once-and-for-all settlement with Israel based on the principle of two States for two peoples, or perhaps at all.

Even if one does not share this assessment of where the political will is lacking, surely these two foreign ministers could have made their point about the urgency of the need for a two-State solution without exaggerating the legal position.  No previous Australian Foreign Minister has said that “all” the settlements are illegal.  Such dogmatic generalisations are an embarrassment, and unworthy of a respected middle power like Australia.

More importantly, such statements are also counter-productive.  They make it politically untenable for any Palestinian leader to meet the Ministers’ call for a return to negotiations “without preconditions”.  On the contrary, such statements merely serve to fortify the Palestinians in their demand for a settlement construction freeze as a precondition to a resumption of negotiations.   Such an outcome might inadvertently paint the Palestinian leadership into a corner by giving them no way forward that they can justify to their people, other than another disastrous intifada.

Such statements will also alienate many Israelis who will conclude that their western democratic allies are unfairly harsh in their judgements about Israel and do not really comprehend the depth and intractability of Palestinian rejectionism.   We will not have to wait long to gauge Israeli public opinion.  Israel being a robust democracy, its citizens are about to have their say on these and other issues at the ballot box.

 

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

Comments

4 Responses to “Good news and Bad from Joint Australian and UK Ministers’ Meeting…writes Peter Wertheim”
  1. Otto Waldmann says:

    While legal terms, observances, denials and endless arguments thereoff are ventured, the point ultimately elicited by a lawyer, Peter Wertheim, deals with the only aspect of the ME conflict : realpolitik. As lomg as the palestinians and their spiritual armies shall be engaged in an unethical assault on the Jewish State with the evident aim of destryoing it, all legal vernacular shall remain redundant.
    “Ben” is not , in fact, favouring the LEGAL aspect of the conflict, but he is quite staunchly promoting a political system couched in both secular venomous propaganda and religious fervour that incites to “civil” activism that accentuates hatred.
    Verbose nonsense by all suporters of the palestinan agenda, whether as ostensive as the “Bens” of the palestinian PR mindless mind-set or more discretely by politicians with limited ethical radius, such as Bob Car and his UK counterpart, have the OBVIOUS purpose to prolongue a state of crisis that is convenient to a useful parasite condition enjoyed by ALL muslim dominated states. Corruption ( of the muslim world ) is the best political client at a time when political survival of party entities is the most precarious ever in peace time.
    Both Carr and Hague dwell on fallacies in lieu of intellectual dignity and moral status. Their political survival is far more precious than the NECESSARY intervention with a putrid palestinian society, its leaders the most corrupt, morally inept specimens. For someone like “Ben” to constantly advocate here the virtues of a “people” in fact devoid of ANY moral fibre is as insidious as it is laughable. It is far too obvious that neither Carr nor Hague have the slightest intention of being serious about the real issues that matter in the Middle East conflict. They just utter idiotic banalities with complete disregard of what effect their casual statements have on those who really care for the state of affairs in the respective region. These perfunctory burpings will most certianly give comfort to the said parasites and some encourangemet to a highly irrelevant clown that parades here under the apellative of “Ben”.
    Peter Wertheim has concluded, for the FIRST time in a long time, I must add, with a kind of moral courage I knew he would posess, by abandoning the “legal” rubbish in favour of a morally valid, realistic stance.

  2. Paul Winter says:

    The article’s headline is faulty; it should have started as “Bad news and worse…”. Carr and Hague’s words were not diplomatic-speak but venom spew and it should have been denounced as such. The call for negotiations are just so much hog-wash. Anyone with half a brain and even an ounce of decency would know that with the Arab Winter freezing any approach to the Jewish state, a snow-ball in hell would stand a better chance of remaining intact than the likelihood of talks resuming. Anyone but a hypocrite and an Israel basher would have called unequivocally for abu Mazen to drag his butt to the negotiating table at the double.

    It is pure rubbish for the diplomats to create legalities by word magic. We say, therefore it is. Utter twaddle. There are no complexities, even to a legal ignoramus like me. The Geneva Convention stated that an occupying power must not transfer parts of its populace. Then, when Israel pointed out that there was no transfer, Jews returning to develop their ancestral lands in Judea and Samaria were doing so voluntarily, the Convention was tweaked to prohibit such population movements. The opinion of Prof Crawford isn’t worth a bucket of warm spit, the more so as he was a hired gun by the Arabs. The opinion of Prof Stone trumps Crawford’s any day and the winning card is the opinion of Judge Levy who pointed out the obvious, and the ones which makes all arguments to the contrary laughable: Israel did not invade the territory of any sovereign state and the war in which the territory was acquired was a defensive one. There is no occupation. Israel only took on aspects of an occupying force as it hoped that there would be a negotiated peace and it did not want to acquire a hostile population.

    The Arabs have no legal or moral right to any of the land. What they eventually might get would be a measure of good will by the Jewish State. The bunkum that Israel’s “settlements” (read nation building developments) are illegal rest on three diplomatic lies: that there was a “Palestinian” polity with a defined territory, that Israel regained Judea and Samaria by an aggressive war; that Israel is in contravention of the Geneva Convention which was not applicable when the bulk of the Jewish movement to lands the Arabs want as their phase one to deny Jews the right of self-determination.

    Ben,
    My points above clearly demolish your anti-Jewish position. Please don’t quote me flawed legalities. The Arabs started the ’67 war, and they then rejected Israel’s offer to withdraw to the armistice lines by their Khartoum declaration. Changing laws is not on and using the perverted form of the Convention, which was designed to prevent deportation like that which occurred to Jews, is pure obscentity. No one interested in seeking justice for Jews can support such pseudo-legal jiggery pockery.

    • Ben says:

      Paul,

      You are entitled to your views but my question was addressed to Peter. Unlike you, Peter appears to be a lawyer and not a legal ignoramus (your description of yourself). As your knowledge of int law appears in any event to be limited and your views very biased, I don’t think there is any point discussing this with you.

      FYI the Arab rejection in 1967 has no bearing at all on the application of the Convention. Also there is not a word in the Convention to say it is limited to deportations. Read the ICRC commentary. As for the Levy argument, it has no support, not even from the US or Canadian gov. It is regarded as a joke amongst most experts and is possibly the most feeble of all of Israel’s arguments.

      Ben

  3. Ben says:

    Dear Peter,

    On the issue of the legality of the settlements I don’t think you can draw support from Professor Crawford’s opinion. He considered that once the security rationale of a settlement expires, so too does this specific justification (see paragraph 12 of his opinion). Most of the settlements are for permanent habitation purposes – there may be a dual purpose in some cases but that does not appear to be sufficient to fall within Crawford’s exception.

    I also don’t believe that Julius Stone’s narrow interpretation of the word “transfer” is shared by “many eminent international lawyers” as you suggest. Theodor Meron, Israel’s own legal advisor to the Israeli Foreign Ministry on this issue in 1967 certainly did not hold such a view and nor does Professor Crawford (who represented the Palestinians in ther ICJ) or Judge Buergenthal (dissenting judge in ICJ opinion but not on this issue); there are plenty of others. The only legal opinions one finds to the contrary are by writers with a very strong bias in favour of Israel which I think you will agree is bound to carry less weight as this is a subject that is so politicised that it requires real independence – Stone has been criticised for this very reason.

    I agree this issue is fraught with complexity but Israel’s legal position is not supported by a consensus of legal opinion. So, I dont think it was surprising or wrong that the Australian and UK Foreign Ministers and their armies of legal advisors hold the views put forward.

    Ben

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