24th Jan­u­ary 2014
by Peter Wertheim and Alex Ryvchin
With her Israeli set­tle­ments com­ments, Julie Bish­op has tried to avoid act­ing as judge and jury on the issue.
It comes as lit­tle sur­prise that For­eign Min­is­ter Julie Bish­op’s refusal to con­demn Israeli set­tle­ments in an inter­view with The Times of Israel was met with unre­served hos­til­i­ty by her pre­de­ces­sor Bob Carr, the Aus­tralian Pales­tine Advo­ca­cy Net­work and, of course, the Pales­tine Lib­er­a­tion Organ­i­sa­tion’s Hanan Ashrawi.
All three have con­sis­tent­ly per­pet­u­at­ed the false­hood that Jews liv­ing beyond the defunct Israeli-Jor­dan­ian armistice line of 1949 are the pre­dom­i­nant cause of a con­flict that has raged since well before the first West Bank set­tle­ment was built.
At a time when Israeli-Pales­tin­ian peace talks are ongo­ing and del­i­cate­ly poised, Bish­op’s actu­al state­ment was rea­son­able, indeed innocu­ous: ”I don’t want to pre­judge the fun­da­men­tal issues in the peace nego­ti­a­tions. I think it’s appro­pri­ate we give those nego­ti­a­tions every chance of suc­ceed­ing.”
Sig­nif­i­cant­ly, Canada’s Prime Min­is­ter, Stephen Harp­er, has now adopt­ed Bish­op’s posi­tion of neu­tral­i­ty on the set­tle­ment ques­tion as a means of advanc­ing the prospects of a nego­ti­at­ed peace.
Bish­op’s com­ments in no way con­sti­tut­ed ”uncrit­i­cal­ly sid­ing with Israel … on the issue of set­tle­ments”, as one crit­ic alleged. Nor did the For­eign Min­is­ter dimin­ish the sig­nif­i­cance of the set­tle­ment issue. On the con­trary, she not­ed that ”the issue of set­tle­ments is absolute­ly and utter­ly fun­da­men­tal to the nego­ti­a­tions that are under way”.
Instead, Bish­op pru­dent­ly sought to avoid act­ing as judge and jury on a bit­ter­ly con­test­ed and unre­solved legal ques­tion. After all, Israel and the Pales­tini­ans have them­selves agreed that the ques­tion of set­tle­ments is one of the core issues to be resolved by the delim­i­ta­tion of a final bor­der in the course of final sta­tus nego­ti­a­tions between the par­ties.
The attacks on Bish­op also con­tained the sorts of dis­tor­tions of inter­na­tion­al law that have become the hall­mark of the anti-Israel move­ment. Ashrawi false­ly assert­ed that “Arti­cle 49 of the Fourth Gene­va Con­ven­tion and Arti­cle 43 of The Hague Reg­u­la­tions … explic­it­ly state that Israel is in direct vio­la­tion of inter­na­tion­al law with its ille­gal set­tle­ment activ­i­ties”. The Fourth Gene­va Con­ven­tion and The Hague Reg­u­la­tions make no ref­er­ence to Israel what­so­ev­er, explic­it or oth­er­wise.
How­ev­er, their appli­ca­tion to Israeli set­tle­ments in the West Bank is a seri­ous legal ques­tion that is hot­ly dis­put­ed. There has nev­er been a defin­i­tive legal deter­mi­na­tion of this ques­tion. The oft-cit­ed Inter­na­tion­al Court of Jus­tice opin­ion in 2004, which APAN’s George Brown­ing (The Age, 18/1) false­ly calls a “rul­ing”, was deliv­ered as a non-bind­ing advi­so­ry opin­ion and is not legal­ly deter­mi­na­tive.
Pro­fes­sor James Craw­ford, who is one of Aus­trali­a’s (and the world’s) most emi­nent inter­na­tion­al lawyers and is gen­er­al­ly crit­i­cal of Israeli set­tle­ments, pub­lished a legal opin­ion in 2012 in which he con­clud­ed that some of the set­tle­ments, such as the Nahal set­tle­ments, are “prob­a­bly law­ful”.
A pre­pon­der­ance of opin­ion, one way or anoth­er, by legal experts does not decide the issue. Mere opin­ions about the legal­i­ty of the set­tle­ments do not hard­en into estab­lished norms sim­ply because large num­bers of emi­nent lawyers sup­port those opin­ions, espe­cial­ly if oth­er equal­ly emi­nent lawyers have a con­trary opin­ion.
There­fore, Ashraw­i’s accu­sa­tion that Bish­op “wil­ful­ly defied inter­na­tion­al con­sen­sus” on set­tle­ments is utter­ly base­less. There is no such con­sen­sus. A major­i­ty is not a con­sen­sus. Aus­tralia is a sov­er­eign nation with a demo­c­ra­t­i­cal­ly elect­ed gov­ern­ment which makes deci­sions accord­ing to its own assess­ment of Aus­trali­a’s nation­al inter­ests. Ashraw­i’s crude attempt to bul­ly Aus­tralia with the spec­tre of a non-exis­tent “inter­na­tion­al con­sen­sus” should be ignored.
On the same day as Bish­op deliv­ered her remarks in Jerusalem, her for­mer polit­i­cal adver­sary, Julia Gillard, was speak­ing in anoth­er Mid­dle-East­ern cap­i­tal, Abu Dhabi. She did not refer to the set­tle­ments. Instead, she urged the Pales­tin­ian lead­er­ship to recog­nise Israel as the state of the Jew­ish peo­ple and live in peace with it. The “key to peace”, she said, is “that they accept Israel as a Jew­ish state. Once that is stip­u­lat­ed, then vir­tu­al­ly every­thing can be suc­cess­ful­ly nego­ti­at­ed.”
Both Julie Bish­op and Julia Gillard have eschewed the stan­dard approach of West­ern bureau­crats to the Israel-Pales­tin­ian con­flict, which is “to go along to get along” with the rest of the herd and reflex­ive­ly side against Israel. Both deserve praise for reject­ing such an approach as weak and wrong.
Peter Wertheim, AM, is the Exec­u­tive Direc­tor and Alex Ryvchin is the Pub­lic Affairs Offi­cer of the Exec­u­tive Coun­cil of Aus­tralian Jew­ry.