24^th 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.