Message for Senator Carr

August 16, 2013 by J-Wire Staff
Read on for article

More than 1000 distinguished lawyers are signatories on a letter sent to Dame Catherine Ashton, High Representative of the European Union for Foreign Affairs & Security Policy requesting her to revoke the recent directive on Israeli settlements. J-Wire has forwarded it to Australian Foreign Minister Senator Bob Carr for comment.

The letter,c.c.’d to over 30 Foreign Ministers, its contents and its signatories…


Dame Catherin Ashton

Dame Catherin Ashton

Dame Catherine Ashton

High Representative of the European Union for Foreign Affairs & Security Policy/Vice
President of the European Commission
1046 Brussels




Re: EU Directive Regarding Israeli Settlements


We, the undersigned, attorneys from across the world who are involved in international law issues as well as being closely concerned with the Israeli-Palestinian dispute, respectfully call upon you and the EU to revoke the abovementioned directive which we feel is based on legally flawed and incorrect assumptions regarding both the legality of Israel’s settlements and the status of the pre-1967 Armistice lines as Israel’s border.


Furthermore, the reasoning behind the directive summarily ignores the historic and legal rights of Israel and the Jewish people in and to the areas of Judea and Samaria, including the internationally acknowledged rights of the Jewish people as the indigenous people of the area.


*          The long-held view of the EU as to the illegality of Israel’s settlements is a misreading of the relevant provisions of international law, and specifically Article 49 of the Fourth Geneva Convention, which is neither relevant to the unique circumstances of Israel’s status in the area, nor was it ever applicable, or intended to apply to Israel’s circumstances in Judea and Samaria.

*          The EU together with other international bodies has consistently ignored authoritative sources, including the 1958 official commentary by International Committee of the Red Cross, as well as the published opinions of prominent international jurists, all of which explain the provenance of Article 49 in the need to address deportations, forced migration, evacuation, displacement, and expulsion of over 40 million people by the Nazis during the Second World War. This has no relevance to Israel’s settlements in Judea and Samaria.

*          The EU totally ignores the very agreement to which it is signatory as witness, the 1995 Israeli-Palestinian Interim Agreement, in which it was agreed by the parties, pending a permanent status agreement, to exercise powers and authority in the areas under their respective control. Such powers include planning, zoning and construction. The issues of settlements and Jerusalem, as agreed upon between the parties, are negotiating issues, and hence, determinations by the EU undermine the negotiating process and run against the EU’s status as signatory.

*          The legality of Israel’s presence in the area stems from the historic, indigenous and legal rights of the Jewish people to settle in the area, as granted in valid and binding international legal instruments recognized and accepted by the international community. These rights cannot be denied or placed in question. This includes the 1922 San Remo Declaration unanimously adopted by the League of Nations, affirming the establishment of a national home for the Jewish People in the historical area of the Land of Israel (including the areas of Judea and Samaria and Jerusalem) as well as close Jewish settlement throughout. This was subsequently affirmed internationally in the League of Nations Mandate Instrument, and accorded continued validity, up to the present day, by Article 80 of the UN Charter which reaffirmed the validity of the rights granted to all states or peoples, or already existing international instruments (including those adopted by the League of Nations).

*          The inference regarding Israel’s borders as recognized by the EU is no less misguided and historically and legally wrong. The pre-1967 Armistice lines (so-called “green” line) were never considered to be borders. UN Security Council resolution 242 (1967), endorsed by the European members of the Council, called for “secure and recognized boundaries” to replace the pre-1967 Armistice lines.  The European leaders further endorsed this principle in their 1980 Venice Declaration. By its persistence in referring to the pre-1967 lines, the EU is undermining future negotiation on this issue by predetermining its outcome.

*          In a similar vein, the repeated use by the EU of the term “occupied Arab”, or “Palestinian territories” to refer to the area of Judea and Samaria, has no basis in law or fact. The area has never been determined as such, and thus the continued EU usage of the term runs against the very concept of negotiations to resolve the dispute regarding these areas, supported by the EU, to determine their permanent status.




The position taken by the EU and the action presently being taken pursuant to its directive, regarding Israel’s settlements in Judea and Samaria, is, in our view, incompatible with the EU’s standing as a member of the international Quartet, and serves to neutralize any pretentions it might have to serve a useful function in the negotiating process between Israel and the Palestinians.


Frankly, the EU cannot, in all sincerity, presume to come with clean hands and claim to be an impartial element in the negotiating process. The EU has taken sides and as such, in its actions against Israel, it is undermining the negotiating process.


The position and actions of the EU against Israel are all the more unfortunate and regrettable in light of the tragic Jewish history in Europe, which cannot be ignored or forgotten. One might have expected that realization of this factor would guide the wisdom and logic of the actions of the EU.






Signed by the attorneys listed, and attached herewith






Deputy Prime Minister and Minister for Foreign Affairs,
External Trade and European Affairs



Prime Minister and Minister for Foreign Affairs



First Deputy Prime Minister and Minister for Foreign Affairs
Czech Republic


Minister for Foreign Affairs


Federal Minister for Foreign Affairs


PAET Urmas 
Minister for Foreign Affairs



Tánaiste (Deputy Prime Minister) and Minister for Foreign Affairs and Trade


Minister for Foreign Affairs


Minister for Foreign Affairs and Cooperation


FABIUS Laurent 
Minister for Foreign Affairs



PUSIC Vesna 
First Deputy Prime Minister and Minister for Foreign and European Affairs


Minister for Foreign Affairs


Minister for Foreign Affairs


Minister for Foreign Affairs


LINKEVICIUS Linas Antanas 
Minister for Foreign Affairs


Deputy Prime Minister, Minister for Foreign Affairs



Minister for Foreign Affairs



VELLA George
Minister for Foreign Affairs


Minister for Foreign Affairs
The Netherlands


Vice-Chancellor and Federal Minister for European and International Affairs


Minister for Foreign Affairs


Minister for Foreign Affairs


Minister for Foreign Affairs


ERJAVEC Karl Viktor 
Deputy Prime Minister and Minister for Foreign Affairs


LAJCAK Miroslav 
Deputy Prime Minister and Minister for Foreign Affairs


Minister for Foreign Affairs


Minister for Foreign Affairs


HAGUE William
First Secretary of State, Secretary of State for Foreign and Commonwealth Affairs 

United Kingdom



José Manuel Barroso
President of the European Commission


Martin Schulz
President European Union


Uwe Corsepius
Secretary General
European Council



Hubert Legal

Director General, Legal Adviser to the Council




9 Responses to “Message for Senator Carr”
  1. George says:

    Ben David says:
    “a 2 pager from nameless lawyers repeating the same tired and discredited arguments is unlikely to persuade Carr, Kerry, the EU and the UK one iota.”

    “”On Sunday, the popular Israel Today newspaper reported that hundreds of legal experts are drafting a document to reply to the EU boycott. The legal response will reportedly outline how the so-called Jewish settlements are not illegal and that the term “occupied” does not apply to those territories.”

    I later read (early August), they finally produced a “mammoth” report.

    The above is a cover letter from a “mammoth” report compiled by a huge team of jurists. Get the facts right please. Do you think Ashton would read such a lengthy report?

    But I do encourage you to read the report.

    Also, I am surprised you have so much faith in the ICJ. Why is it so sacrosanct?

    Are all courts ever entirely “neutral”.

  2. George says:

    While I agree with the reply to the EU, and wrote my own interpretation of International Law on the matter immediately after the EU Boycott Directive, published on JWire and ICJS websites (hint, hint), I cannot believe they wrote this:

    “This includes the 1922 San Remo Declaration unanimously adopted by the League of Nations”

    San Remo Declaration was April, 25 1920, endorsed in the Council of League’s Mandate for Palestine, July 1922. Matters of fact are important, especially when it comes to law!! The smallest error of fact can undermine credibility.

    As far as the ICRC is concerned, in a recent speech in 2010 by their Director of International Law, we read:
    “There can therefore be no doubt that the decision to draft the Geneva Conventions of 1949 was sealed by the tragedy of the Second World War and that the conventions were intended to fill the gaps in international humanitarian law exposed by the conflict.”

    There is so much that can and has be said on this subject, I’m not sure it easily lends itself to Comments on a web page.

    I’d recommend that if folks are interested, they can start with Howard Grief’s Ashkelon speech, 2010, in which inter. alia., he also identifies Israel’s numerous examples of shooting itself in the foot, with its own misinterpretations of International Law, giving its opponents much ammunition.

    Being a lecture, it’s easier to read than a scholarly article (of which there are many, including by him).

    My own summary of the International Law on this matter can be found here, on JWire:

    As a “teaser” I have sought to use customary and prevailing International Law to arrive at the following conclusions:

    “In summary, we must forever abandon the following popular myths, misconceptions and fabrications:

    1. The UN never “created” the State of Israel.
    2. The so-called Occupied Territories were illegally seized. and then captured by Israel, after two (2) illegal wars of aggression. They have been returned to their rightful owner as per the League Mandate for Palestine. Under prevailing International Law, they do not fit the criteria of Occupied Territory. Israel is in possession of no Occupied Territory.
    3. As a logical corollary of the above, there being no Occupied Territories, then can be no such thing as “Illegal Settlements”.
    4. Israel has never violated the 4th Geneva Convention (in any case, an inapplicable Convention).

    Finally, as a result of looking at these Primary sources – in addition to Secondary historical sources,

    4. There is no legal basis whatsoever for a second Arab State in former British Mandatory Palestine (Jordan being the first). ”

    Thank you.

  3. Ben David says:

    Everyone is, of course, welcome to compliment the emperor on his new clothes if it makes them feel better.

    However, the truth is that against an unequivocal and unanimous 100 pg opinion from the highest court on the planet (ICJ) plus lengthier well researched academic papers from legal experts who have spent years writing about this (including the views of many respected Israeli and Australian lawyers), a 2 pager from nameless lawyers repeating the same tired and discredited arguments is unlikely to persuade Carr, Kerry, the EU and the UK one iota.

    There are so many inaccuracies in the letter, but the idea advanced that the ICRC Commentary somehow supports the settler movement is laughable. Firstly, the ICRC have themselves consistently criticized the settlements. Secondly many writers have convincingly discredited the notion that Art 49(6) of GC and the ICRC commentary only applies to deportations and displacement. There is, in fact, not a word in the Art that limits its application in this way, yet settlers have grasped at this feeble straw for decades.

    Carr will politely reject the letter, and rightly so.

    • David says:

      Ben David

      We have been through your claims some months ago.

      My last response to you dated 8 July remains unanswered.

      Here it is:

      “Thank you for admitting you use two different anonymous names to post on different sites. Given your admission that you also changed a quote by Professor Scobbie – I don’t wish to engage in any further correspondence with you.

      Is that the kind of conduct a lawyer should engage in? No wonder you don’t want to identify yourself publicly. Maybe you are not even a lawyer or even Jewish as you claim to be.

      Does all wisdom reside in BEN DR and Ben David ( and maybe any other names you might use) to denigrate the opinions of others like Rostow, Riebenfeld , Stone, Greif, Levy, Baker and Kaplan,because they are Zionists, Jews and perhaps even live in the West Bank?

      Does that give me the license to criticise the opinions of Berman, Scobbie and yourself because you are anti-Zionists who do not believe the Jews are legally entitled to their own State in their biblical and ancestral homeland?

      My position on the Mandate and article 80 (supported also by the ICJ in the SWA case as I have quoted to you) remains unchanged and still applicable in 2013.

      You have failed to specify the date when those rights were ended.

      The experts you produced – Scobbie and Berman – have not directly addressed the issue of The Mandate and article 80. Your attempt to claim they have in an indirect and round about manner is rejected.

      You have failed to produce any expert lawyer who has addressed the issue directly and come to a different conclusion.

      Just remember that any case only goes to Court because there are two different legal opinions – only one of which will prevail.

      it is a pity you didn’t leave OLO when you said you would (do lawyers go back on their undertakings as well?)

      Stick to your opinion if you will because I will stick to mine until a Court decides that the rights conferred on the Jewish people by article 6 of the Mandate and article 80 of the UN Charter have been extinguished and no longer apply.”

      I am pleased to see that 1000 jurists have now had their say to confirm the right of Jews to live in the West Bank under article 6 of the Mandate and article 80 of the UN Charter.

      That no doubt must be very galling for you.

  4. George Fink says:

    Excellent! I suspect that Carr’s pompous and hypocritical double standard fiat may cost the ALP votes… Certainly mine

  5. Otto Waldmann says:

    An important additional moral support for Israel’s position at the “negotiations”.
    Cynical or not, Israel shall rely on its principal existential principles, considering at the moment ( and always ) the substantive status of the Palestinian side.
    What is most disturbing on the surface – only – is that the Palestinians have nothing but demands, most of which attack precisely Israel’s sovereign rights. The audacity of the Palestinian unrealistic demands reveal that they are interested only in scoring populist points, all of which are meant to consolidate their anti Israel intransigence. They know too well a priori that their own ideological morphology is incompatible with any notion of a peaceful settlement (!!) with Israel. Except for a renewal of the known and evident in the nature of the current Palestinian political comprehensive composition, the futility of these conflicting PR exercises is incontestable.

  6. Lynne Newington says:

    I think you will find the name of the Australian Minister for Foreign Affairs will remain absent.
    Maybe if he did his own research he could have a voice, but the majority rules.

Speak Your Mind

Comments received without a full name will not be considered
Email addresses are NEVER published! All comments are moderated. J-Wire will publish considered comments by people who provide a real name and email address. Comments that are abusive, rude, defamatory or which contain offensive language will not be published

Got something to say about this?

This site uses Akismet to reduce spam. Learn how your comment data is processed.