15^th August 2013
It was dis­ap­point­ing to hear Foreign Minister Bob Carr repeat an erroneous assertion he has made once before. Speaking on August 8 at Eid cel­eb­ra­tions in Sydney to end the Muslim festival of Ramadan, Carr told a crowd outside Lakemba mosque in western Sydney that all Israeli set­tle­ments on Palestini­an land are illegal under inter­na­tion­al law and should cease.
Leaving aside the con­ten­tious reference to disputed territory as Palestini­an land, which prejudges the outcome of the current peace talks, one would not have expected a senior and respected foreign minister to make so basic an error as to treat all the set­tle­ments alike 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 in 2012. Yet 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, requis­i­tions of property are permitted to meet the needs of the army of occu­pa­tion. Until 1979, requis­i­tion for security needs was the primary mechanism for the taking of land for set­tle­ments, 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 (ICJ) 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. Like the endlessly-repeated UN res­ol­u­tions on the subject, it has no legally binding effect. In fact, the ICJ’s con­clu­sions were subjected to some serious cri­ti­cisms, not least because the Court had been told in advance by the General Assembly what answers it was expected to give to the questions put to it.
The ICJ also failed to consider the effect of the original League of Nations Mandate of 1922, which recog­nised “the his­tor­ic­al con­nec­tion of the Jewish people with Palestine” and author­ised “close set­tle­ment by Jews on the land, including State lands and waste lands”. When the UN replaced the League in 1945, the Mandate continued to operate by virtue of Article 80 of the UN Charter.
Other aspects of the ICJ’s Opinion have also been cri­ti­cised publicly by demo­crat­ic gov­ern­ments, including Australia’s. 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, and that assaults against the citizens or territory of a state by extern­ally-based militias and terrorist organ­isa­tions are matters for law enforce­ment agencies, never defensive military action.
No previous Aus­trali­an Foreign Minister has said that “all” the set­tle­ments are illegal. Such dogmatic gen­er­al­isa­tions are unworthy of a respected middle power like Australia.
More import­antly, such state­ments are also counter-pro­duct­ive. They make it polit­ic­ally more difficult for Palestini­an leaders to agree to a land swap arrange­ment, a sine qua non of any final peace set­tle­ment, allowing them no way forward for any ter­rit­ori­al com­prom­ise at all.
Such state­ments will also alienate many Israelis who will conclude that Carr is unfairly harsh in his judge­ments about Israel and does not really com­pre­hend the depth and intract­ab­il­ity of Palestini­an rejec­tion­ism.
Our Foreign Minister would have done better to limit himself to well-estab­lished bipar­tis­an prin­ciples calling for a peaceful set­tle­ment of the conflict based on two States for two peoples.

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