Palestine – Carr Commits Labor To Anti-Jewish Policy…writes David Singer

August 12, 2013 by David Singer
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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 and article 80 of the United Nations Charter.

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.

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

Comments

13 Responses to “Palestine – Carr Commits Labor To Anti-Jewish Policy…writes David Singer”
  1. Philip says:

    Is the “Anti-Jewish policy” in the heading the creation of J Wire or the author of the article? Either way, it is a complete embarrassment to the Jewish community that this distortion has appeared.

    • David says:

      Philip

      I take responsibility as the author of the article for claiming that the Labor party policy is anti-Jewish.

      How else can anyone interpret a policy that does not recognise the legal right of Jews to live in the West Bank as prescribed by article 6 of the Mandate for Palestine and article 80 of the United Nations Charter?

      How would you describe the policy?

  2. Everett says:

    The entire claim of illegality seems to rest on very obviously tendentious and frail grounds. It is not a matter really even of the Geneva Conventions technicalities, the San Remo Conference of 1920 giving justification for the British Mandate instituted in 1922 as preparing the ground for a Jewish state there, the UN resolution in 1947, etc., etc. None of this is necessary to bring into account. In international law as in ordinary civil law, legality of possession is determined by (1) the legality of the means by which possession was obtained, and (2) the legality of the continued possession. Israel came into possession of both the West Bank and Gaza in the course of an entirely legal war of self-defence against nations seeking to annihilate it, in June 1967. Furthermore, entirely in accordance with UN Resolution 242, Israel continues to hold that land legally until its final disposition is determined by a final peace treaty with the contesting parties — in which boundaries are to be determined, so which portion of the territories are to be Israel’s and which portion the Palestinians’ is not yet legally settled. So, in any case, both (1) and (2) are entirely legal, in international law. In order for Bob Carr, and others, to argue that Israel presently “illegally occupies Palestinian land,” he must show that it was illegal for Israel to fight the 67 war and win it, and/or that it is illegal for Israel to hold that land until final peace negotiations determine its boundaries and ownership. There is actually no international court in the world that has shown these things, nor therefore actually ruled that Israel’s present possession of that land is “illegal.” On the contrary, in I believe the only international court cases that actually dealt with this matter of legality in any focussed way, the French courts, level upon level right up to the highest court of appeals, ruled this past year that Israel’s occupation of the territory is entirely legal. It also ruled that Israel was acting within the Hague Regulations of how an occupier must act, but, beyond that, it further ruled that the Geneva Conventions and even the Hague Regulations only apply to states, and to signatories, and the PLO, the petitioner on behalf of the P.A., is neither. The PLO had claimed, regarding the work of a French light rail manufacturer in Jerusalem, that Israel was violating the Geneva Convention by “transferring” citizens to the territories and destroying property, etc. It lost the case and has to pay damages. See http://opiniojuris.org/2013/05/01/guest-post-landmark-french-ruling-on-west-bank-construction-and-international-law/

    • David says:

      Everett

      Thank you for your very insightful contribution to this discussion.

      Dare we hope that someone from Senator Carr’s office or the Minister himself respond to your post or the allegations made by me in this article?

      • Everett says:

        Thank you for your comment, David. No, I think we do not dare hope for a response from Senator Carr’s office or from him himself. This is not a matter of truth, for Carr, but electoral convenience and demographics, so for him and the new Labor Party policy-makers, the actualities and the views of the Jewish community generally, or even the specifics of international law, are all irrelevancies.

        Nevertheless, these views should be aired in the public arena. I wonder if it might not be possible for you to write an opinion piece on this matter of “illegal occupation of Palestine” for The Australian and/or the Fairfax press, or even online forums like The Conversation (/theconversation.edu.au) or The Drum, in which the actual legal issues are addressed? You have a rare expertise in this.

        But there is one further caveat to make. I have read a good number of legal arguments for the legitimacy of Israeli occupation of the post-67 territories, including Howard Grief’s article in Nativ Online (2004) summarizing points made in his The Legal Foundation and Borders of Israel Under International Law (2010), Jacques Gauthier’s thesis proving the legality of Israel’s possession of Jerusalem (as summarized at http://www.jpost.com/LandedPages/PrintArticle.aspx?id=273912), Ronnie Sabel’s “The Problematic Fourth Geneva Convention: Rethinking the International Law of Occupation,” at http://www.mefacts.com/cached.asp?x_id=10357, the Levi Report, and your own excellent articles as well. I am distressed that all these authorities and others it seems without any exception I know of, get bogged down in side issues about ultimate title to the land, arguing consequent technicalities relating to the Geneva Conventions, the San Remo Conference, etc., etc.: in the context these matters are little more than legalistic digressions that actually cloud the most important and pressing issues.

        As I wrote above, legal title hinges above all on two basic questions: did Israel come into possession of the territories legally, and does it legally continue possession? Everything else is secondary. And the answers to these two questions are very very clear, and no international court can conceivably challenge them: Israel won those territories legally, and continues to hold them legally until their final disposition is determined in a conclusive peace treaty. That, really, is all that Israel needs to argue. It is sufficient to make its case. There is of course nothing wrong at all with Israel going on to argue other more remote historical-legal points or other matters relating to the Geneva Conventions and the Hague Regulations, once the two most important issues are firmly clarified and established, to strengthen its case even further, but the technicalities should not be allowed to obscure or even replace the most important arguments.

        • David says:

          Everett

          Must disagree with you that the authorities you cite including the mandate and the UN charter “get bogged down in side issues about ultimate title to land”- that “they are little more than legalistic digressions that actually cloud the most important and pressing issues”

          They answer the claim that Jews have no legal right to live in the West Bank – the claim that is being peddled by Carr and now Prime Minister Rudd and the Labor party since the Lakemba mosque declaration.

          The Jews have returned to an area specifically legally sanctioned for the reconstitution of the Jewish National Home by article 80 of the United Nations Charter – which the majority of member states of the UN – including Australia – are clearly breaching by their unsustainable claim of illegality.

          Possession obtained as a result of a war in self-defence is certainly another argument but it pales into insignificance with the body of international law that has seen Jews return to an area from which they had been forcibly removed in 1948 and to which access had been denied to them between 1948-1967.

          • Everett says:

            David, I agree with you about the historical issues. But my point is that the historical legal issues have been ignored and effectively denied by pro-Palestinian groups, including the UN itself, so whatever is said about that is ineffective. Your statements about that are without doubt true, but also without doubt irrelevant in the eyes of the world. It is whistling in the wind, not legally, but politically and in the real world. A cloud of technicalities is used to dismiss it, or at least weigh it down in debate, making it appear debatable and merely the self-interested viewpoint of pro-Israel apologists. However, no one can deny the cogency of the arguments I made. For the sake of “international law” itself the world cannot do otherwise than admit the legitimacy of Israel’s possession at present of the post-67 territories, on the basis of these elementary legal realities. These are not matters of fine points of interpretation that can be debated. They are glaringly basic truths. Israel’s possession of Judea and Samaria is therefore simply not an “illegal occupation.”

            As I wrote before, there is absolutely nothing wrong or out of place in going on to argue the deeper historical issues. By all means pursue those issues too; they are important. But, as you must confess, David, they have been and are highly contested, require realms of pages of extensive explanations and historical details, bring up learned points of international law that themselves require explication, etc., etc., and end up clouding and rendering dubious and contestable the present reality. That is why they should not get in the way of the fundamental points regarding present possession, incontestable points about which there can be no argument. These fundamental points do not “pale into insignificance” in comparison with the historical issues; on the contrary, by their indisputable truth and relevance they can ground all effective discussion of the topic of the present status of the territories. In fact, once the fundamental reality of Israel’s present legal possession of the territories is established, and the elementary falsity of Palestinian claims revealed, it becomes possible for the first time to get a serious hearing for the deeper historical arguments — this has not happened yet in the world political arena despite all the pro-Israel justifications so far presented, as Carr’s and Hague’s statements prove yet again.

            A good example of the way the world stifles the legal argumentation is the non-reporting, even, of the mammoth petition signed by over 1,000 jurists world-wide and presented to EU foreign policy chief Catherine Ashton stating that the EU sanctions against settlement products is wrong, and so is EU policy that the settlements are “illegal,” because in fact Israel holds those territories entirely legally and the 67 lines do not exist in international law. Only Arutz Sheva, Israel National News, reported this item; it was not even taken up by other Israeli newspapers, much less the world press. See: http://www.israelnationalnews.com/News/News.aspx/170582#.Ugm8j3BVo-a

            This is the real world we live in. So, David, it is necessary to begin by hammering the points no one can ignore or deny, and hammering them hard.

            Israel has a lot stronger case than it and its friends have made for it.

        • David says:

          Everett

          In beginning the Jewish narrative from 1967 – you ignore the equitable title vested in the Jews to live in the West Bank as was legally created in their favour by the San Remo Conference, the Treaty of Sevres, the Mandate and article 80.

          The Jewish interest in the West Bank arises from these documents – not merely as a result of fighting a defensive war in 1967.

          The Jews were kicked out of the West Bank in 1948 and did not return until 1967 to resume what they had been doing lawfully before 1948.

          • Everett says:

            David, I do not ignore those arguments, the world does and has done so for decades. With all due respect, David, I grant your points, as I said above, even mentioning them before you have in my first post, but those points have not mattered in the international arena so they are today as if they never existed. To gain a hearing for them, the way must be prepared with more urgently contemporary, firmer and less “debatable” foundations. This is a matter of tactics, and even of simple logic. As I said, the arguments I presented are conclusive in themselves, and what is more they are necessarily true for the sake of the viability and credence of international law itself, so they cannot therefore be ignored nor contradicted in any international court, even the most biased. I sincerely regret that you ignore my points or mis-state them, for I respect your work greatly. For a still fully applicable answer to you, please see again my previous comment, immediately before this post of yours.

  3. David says:

    Very disturbing to hear Bob Carr.s statements at the end of Ramadan at the Lakemba Mosque. This dog whistle emphasises just how desparate politicians become before an election. Let’s hope the current talks between Israel and the Palestinian representatives continue in a positive way despite such inflammatory statements. The Jewish community may be forced to make a choice on September 7.

  4. Stan says:

    There’s a very simple solution. Don’t vote Labour.

  5. Liat Nagar says:

    David,
    Bob Carr is such a lightweight in real terms that your accuracy of fact and reasoning, as well as your inherent and appropriate seriousness on the matter, will roll of him as water off a duck’s back. It is obviously enough for him to spout a few lines aligned to whomever, whatever, in support of his agenda and he does not have to, nor will he bother to, dig deeper. He is such a prime example of a man caught up in his own self-importance, stroking his own ego time and again, as he revels in the self-aggrandisement his office affords him. I don’t know if it’s actually true that what he has said is Labor party policy. If it is, it will put many thinking, socially-aware people in a bind, as the choice for voting in the forthcoming Federal election will be non-existent. Insofar as Australia is concerned, I am beginning to despair. Insofar as Israel is concerned I shall never despair.

    • Everett says:

      Liat, there is one very important point that this outrageous statement from Bob Carr, and before him Stephen Smith, illustrates: that further Muslim immigration into Australia is directly against future Jewish well-being and interests in Australia. Politicians are bound to pander to sectarian interests if they end up being any significant portion of the population, quite regardless of their own principles. After all, they want to get elected. Julia Gillard’s attempt to continue the previous mainstream Labor consensus regarding Israel and the Palestinians in the U.N. was overruled by Carr and co., precisely for these reasons: it was the first toll of the death-knell of that consensus due to the rising Muslim population of west Sydney, where Labor needs the votes simply to survive the next election.

      The leadership of the Jewish community in Australia dodges this crucial issue and has actually pushed hard for more Muslim immigation. It is the height of irresponsibility for them to ignore the consequences of their own policies. Their first responsibility, after all, is to the basic security, survival and well-being of the Jewish community. Only Bob Magid, in an editorial in the Australian Jewish News, has raised this as a crucial issue. He was right to do so. It will not go away. On the contrary, it will become ever more important, as it already has done in Europe where life has become very difficult for Jews and they are being driven out from entire cities.

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