21^st January 2013
For those unfa­mil­i­ar with dip­lo­mat­ic-speak, AUKMIN (Australia-UK Min­is­teri­al Con­sulta­tions) is the annual day-long summit between the Foreign and Defence Ministers of Australia and the UK. This year’s summit was held in Perth on Friday, January 18.
As is usual for such occasions, a joint statement was issued by Foreign Ministers Bob Carr and William Hague at the end of the pro­ceed­ings. The part of the statement that refers to the Israel-Palestini­an conflict is in one important respect a departure from previous state­ments and will be seen by many in the Jewish community as a further move by Carr away from his previous sympathy for Israel. More of that later.
First the good news: 
 
The Foreign Ministers reit­er­ated their call for an early and serious resump­tion of nego­ti­ations between the Israel and the Palestini­ans “without pre­con­di­tions”. This is precisely what the Israeli gov­ern­ment has been calling for repeatedly since 2009. The Palestini­ans have responded by refusing to return to the nego­ti­at­ing table until several pre­con­di­tions have been met. They demand that Israel must first freeze all set­tle­ment con­struc­tion and commit in advance to the pre-1967 ceasefire lines as the basis for the border between Israel and a future State of Palestine.
The Foreign Ministers’ call for a resump­tion of nego­ti­ations “without pre­con­di­tions” is therefore a rebuke of the Palestini­ans’ obduracy. However, the rebuke has been emas­cu­lated by the use of neutral language directed equally at “the Palestini­an Authority” and “the new Israeli gov­ern­ment”, even though it is Palestini­ans, not the Israelis, who have sought to impose pre­con­di­tions. So, even the good news on this point is not all good.
The two Foreign Ministers also reaf­firmed their respect­ive nations’ support “for a nego­ti­ated two-state solution with a secure Israel alongside a Palestini­an state”. The key word here is “nego­ti­ated”. During the Palestini­an Authority’s push for upgraded status in the UN General Assembly last November, Israel argued that this uni­lat­er­al move con­sti­tuted a Palestini­an violation of a specific provision of the Oslo II Agreement. 
The AUKMIN statement accepts Israel’s assertion that the only path to Palestini­an statehood is via a nego­ti­ated agreement with Israel, and states: “We call on the Palestini­ans to exercise restraint and avoid pro­voc­at­ive actions at inter­na­tion­al forums.” Too late. If Foreign Minister Carr really wanted the Palestini­ans to avoid pro­voc­at­ive actions at inter­na­tion­al forums Australia should have voted “No” to the Palestini­an gambit in the General Assembly last November.
Finally, the statement calls “for the Palestini­ans to abide by the terms of the Gaza ceasefire and to stop all rocket attacks.”  At last, some unqual­i­fied good news that places the blame exactly where it should lie.  To Carr’s credit, this sentence was reportedly added at his insist­ence and over the objec­tions of Hague.
Now for the bad news:
It was sur­pris­ing to say the least to read the AUKMIN statement char­ac­ter­ising “all” Israeli set­tle­ments as “illegal under inter­na­tion­al law”.  One would not have expected two senior and respected foreign ministers to make so basic an error as to cast all the set­tle­ments in one lump 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 last year.  Yet at paragraph 8 on page 3 of the Opinion 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,10 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 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. The AUKMIN statement treats the Court’s con­clu­sions about the set­tle­ments as an incon­tro­vert­ible pro­nounce­ment from on High.  In fact, the ICJ’s con­clu­sions were subjected to some serious cri­ti­cisms, not least that the Court had been told in advance by the General Assembly what answers it was expected to give to the questions put to it. 
Nor did the ICJ attempt to balance the human rights of Jews and Arabs whose lives have been saved by Israel’s security barrier, the con­struc­tion of which suc­cess­fully put an end to the Palestini­ans’ terrorist bombing campaign within Israel, against the human rights of Palestini­ans whose lives have been disrupted by it.
Many demo­crat­ic gov­ern­ments, including Australia’s, have been publicly critical of the ICJ Advisory Opinion.  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. The ICJ implied that assaults against the citizens or territory of a state by extern­ally-based militias and terrorist organ­isa­tions are matters for law enforce­ment agencies, not defensive military action. This view was already out-dated at the time the ICJ published its Opinion. Contrary to the ICJ’s opinion, the US military inter­ven­tion in Afgh­anistan in late 2001 to wipe out the bases of al-Qaeda following their attacks in New York and Wash­ing­ton was almost uni­ver­sally accepted by the inter­na­tion­al community. 
Indeed, the inter­ven­tion was preceded by United Nations Security Council Res­ol­u­tion 1373 (2001), which was a decision passed under Chapter VII of the UN Charter, and is therefore legally binding on all States. It says that acts of inter­na­tion­al terrorism, “con­sti­tute a threat to inter­na­tion­al peace and security” and reaffirms “the inherent right of indi­vidu­al or col­lect­ive self-defence as recog­nized by the Charter of the United Nations”. The idea pos­tu­lated by the ICJ Advisory Opinion that only an armed attack by one state against another can legally give rise to the right of self-defence clearly does not reflect inter­na­tion­al opinion or practice.
The two Foreign Ministers ought not to be cri­ti­cised for express­ing concern that a two-State solution might be slipping away. Whilst the extent of the factual basis for that concern is arguable, the concern itself cannot be faulted. Even media which are usually sym­path­et­ic to Israel, such as the UK Telegraph and Economist,now openly publish edit­or­i­als and opinion pieces express­ing such concerns.  
And, whilst a two-State solution is still eminently achiev­able and has been the policy of suc­cess­ive Israeli Gov­ern­ments including the Netanyahu gov­ern­ment, even if the Israeli gov­ern­ment announced an absolute freeze on all set­tle­ment con­struc­tion the conflict would remain as intract­able as ever, and a solution as elusive as ever.  What is lacking is the political will on the Palestini­an side to conclude a once-and-for-all set­tle­ment with Israel based on the principle of two States for two peoples, or perhaps at all.
Even if one does not share this assess­ment of where the political will is lacking, surely these two foreign ministers could have made their point about the urgency of the need for a two-State solution without exag­ger­at­ing the legal position.  No previous Aus­trali­an Foreign Minister has said that “all” the set­tle­ments are illegal.  Such dogmatic gen­er­al­isa­tions are an embar­rass­ment, and unworthy of a respected middle power like Australia.
More import­antly, such state­ments are also counter-pro­duct­ive. They make it polit­ic­ally untenable for any Palestini­an leader to meet the Ministers’ call for a return to nego­ti­ations “without pre­con­di­tions”.  On the contrary, such state­ments merely serve to fortify the Palestini­ans in their demand for a set­tle­ment con­struc­tion freeze as a pre­con­di­tion to a resump­tion of nego­ti­ations.  Such an outcome might inad­vert­ently paint the Palestini­an lead­er­ship into a corner by giving them no way forward that they can justify to their people, other than another dis­astrous intifada.
Such state­ments will also alienate many Israelis who will conclude that their western demo­crat­ic allies are unfairly harsh in their judge­ments about Israel and do not really com­pre­hend the depth and intract­ab­il­ity of Palestini­an rejec­tion­ism. We will not have to wait long to gauge Israeli public opinion. Israel being a robust democracy, its citizens are about to have their say on these and other issues at the ballot box.
Peter Wertheim,
Executive Director,
Executive Council of Aus­trali­an Jewry.