A bitter verbal battle has erupted in Australia over the legal status of Israeli settlements, with Jewish leaders and top Palestinian officials sparring over pro-settlement comments Foreign Minister Julie Bishop made last week to The Times of Israel. The argument reached its peak on Friday, with conflicting op-eds and comments flying back and forth from Palestinian leaders and Australian Jewish officials.
Bishop “wants to reinvent international law and call Israeli settlements legal. Or what else was Bishop trying to accomplish by showing her support to Israeli settlements?” Palestinian chief peace negotiator Saeb Erekat wrote Friday in the Sydney Morning Herald. “If Bishop wanted to show solidarity with an occupation that harms the rights of an occupied population, she did well. I would be unsurprised if her next step was a cup of coffee with her Israeli counterpart, Avigdor Lieberman, in the illegal settlement of Nokdim, where he lives, in land stolen from Bethlehem.”
Australia is now the only country, besides Israel, that considers the settlements legal, wrote Erekat, who is also a senior member of the Palestinian Liberation Organization’s executive committee. “If Bishop wanted to support the negotiations process, she did the opposite… The terms of reference for negotiations do not include legitimising illegal Israeli settlements, but ending the Israeli occupation that began in 1967.”
In an immediate response to Erekat’s article, Peter Wertheim, the executive director of the Executive Council of Australian Jewry, accused him of making “false and inflammatory accusations against Israel.”
“This manner of conduct is unbecoming of the representative of an aspiring state which seeks to take its place among the family of peace-loving nations,” Wertheim told The Times of Israel. “We sincerely hope that the PLO and its negotiating team will focus on the enormous and grave tasks before them instead of slandering those with whom they are negotiating and diverting themselves with clumsy forays into Australian politics.”
In an exclusive interview with The Times of Israel on January 15, Bishop appeared to contest the view that Israeli settlements anywhere beyond the 1967 lines are illegal under international law. “I would like to see which international law has declared them illegal,” she said, adding that she did not want to “prejudge the fundamental issues,” which should instead be discussed in the peace negotiations.
Bishop, who made her comments during a short visit in Israel, also defended her government’s decision to abstain or vote against anti-Israel resolutions at the United Nations as “balanced” and “not one-sided.”
The position that settlements breach international law — adopted by the UN Security Council, the European Union and many other states and international bodies, but rejected by Israel — is based on an interpretation of the Fourth Geneva Convention. Article 49, paragraph 6, states that an occupying power “shall not deport or transfer parts of its own civilian population into the territory it occupies.” Violations of the convention are considered war crimes under international law. Israel is a party to the convention and therefore bound by it.
Bishop’s unwillingness to condemn Israel’s settlements immediately caused a stir among Palestinians and some Australian Jews. PLO Executive Committee member Hanan Ashrawi on Sunday released a first statement saying the foreign minister’s position represents “dangerous shifts in Australian foreign policy” and called for an official clarification of Australian policy on the issue.
“I would like to remind the Australian government that in accordance with international human rights law and international humanitarian law, all settlements are illegal,” Ashrawi wrote, citing the Geneva Convention and other legal sources purportedly proving the settlements’ illegality. Bishop’s comments are a “willful defiance of international consensus,” Ashrawi stated.
Some Australian Jews joined the chorus of protest. “For Australia to refrain from any criticism in the UN, or to cast doubt on the agreement in the international community that the occupation is illegal, and cruel, is a highly irresponsible and damaging act by this country, the heads of the Australian Jewish Democratic Society, Larry Stillman and Jordy Silverstein, wrote in a January 17 letter to Bishop.
Next, Australia’s former foreign minister Bob Carr — Bishop’s immediate predecessor, who is now in the opposition — said her position showed “an ignorance of international law,” adding that considering Israeli settlements illegal was a “commonplace and commonsense opinion.”
‘Bishop’s actual statement was reasonable, indeed innocuous’
Bishop has so far been silent on the controversy. But Wertheim’s Executive Council of Australian Jewry has taken up her defense, weighing in on the legal debate about the correct interpretation of international law as it concerns Israeli settlements.
“At a time when Israeli-Palestinian peace talks are ongoing and delicately poised, Bishop’s actual statement was reasonable, indeed innocuous,” Wertheim, and the Council’s public affairs officer, Alex Ryvchin, wrote Friday in an op-ed in The Age. “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.”
Wertheim and Ryvchin rejected Ashrawi’s assertion that the settlements violate international law. The Geneva Convention and The Hague Regulations do not mention Israel specifically, and the often-cited 2004 International Court of Justice opinion, which claims settlements do contravene international law, is merely a non-binding advisory opinion and not legally determinative, they stated.
Whether settlements are illegal under international law, they wrote, “is a serious legal question that is hotly disputed.” While they noted that there has never been a definitive ruling, they quoted a 2012 legal opinion issued by James Crawford, a prominent Australian international law expert, who stated that some settlements are “probably lawful.”
In any event, they added, a “preponderance of opinion, one way or another, by legal experts does not decide the issue.” And Ashrawi’s claim that Bishop defied international consensus is “utterly baseless,” they posited, as there is no such consensus. “Australia is a sovereign nation with a democratically elected government which makes decisions according to its own assessment of Australia’s national interests, they went on. “Ashrawi’s crude attempt to bully Australia with the specter of a non-existent ‘international consensus’ should be ignored.”
Ashrawi, in response later Friday, published a lengthy statement — her second on this issue — asserting,“It is incontrovertible that Israeli settlements in the Occupied Palestinian Territory have been established in contravention of international law.”
“While the ICJ’s Advisory Opinion is not legally binding according to the ICJ Statute, the legal instruments and obligations to which it refers are,” read the statement, issued by the PLO Executive Committee’s Department of Culture and Information, which she heads. “This includes binding resolutions of the UN Security Council and multilateral treaties to which Israel is a party, including international human rights treaties and the Fourth Geneva Convention.”
The PLO’s statement also referred to Crawford’s legal opinion, arguing that it related to the Nahal settlements, which were established and populated by soldiers. While Crawford “is correct that these settlements were probably lawful under the law of occupation at the time they were established,” these settlements were “always intended to be converted into civilian settlements, which have no lawful military purpose.”
Quoting a host of UN Security Council and General Assembly resolutions, her statement concluded that there is a “wide consensus among nations that Israel’s settlements have been established in breach of international law.”
‘We reject the PLO’s assertion that its legal claims about the settlements are incontrovertible truths’
Responding to Ashrawi’s second pronouncement on this issue, Wertheim, the director of the Executive Council of Australian Jewry, told The Times of Israel that this time around, her words are “much more cautious and credible” than her first statement. “Ashrawi [initially] claimed not only that the Fourth Geneva Convention and Hague Regulations apply to the settlements, which is arguable, but also that these and other international conventions ‘explicitly’ refer to and condemn Israel, which is plainly false. We corrected this particular error and our correction has not been refuted,” he said.
“We reject the PLO’s assertion that its legal claims about the settlements are ‘incontrovertible’ truths,” Wertheim continued. “International legal instruments are binding on states that are parties to them but the application of those instruments to particular fact situations is frequently a matter of dispute. The application of international law to the settlements is such a dispute.”
The Geneva Convention article that outlaws the “deport or transfer” of settlers into occupied territory implies compulsion, “and Israel has never compelled anyone to be a settler. The settlers have made that choice themselves,” Wertheim continued. “The argument is whether the financial, tax and other material benefits which settlers have received from the state amount to a ‘transfer’ by Israel of parts of its own civilian population into the West Bank. This is not a straightforward question but clearly a matter for judicial interpretation.”
Settlements also should not be considered a “land grab,” Wertheim contended. “In the past Israel has dismantled settlements in the Sinai and Gaza and vacated those areas in the pursuit of peace.”
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