Carr in Error on Settlements…writes Peter Wertheim
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.
Peter Wertheim
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.<p>
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.
e-IR – Feb 14 2014:
Australia’s Foreign Minister Julie Bishop suggested to The Times of Israel in January 2014, contrary to conventional diplomatic wisdom, that Israeli settlements may not be illegal under international law. In recent years a growing number of politicians and scholars have expressed similar positions. Many of them argue that the results of the 1920’s San Remo Conference, and the inclusion of the principles contained in the Balfour Declaration in the text of the Mandate of Palestine, assured to the Jewish people the exclusive right to create their “national home” on “the whole country of Palestine, not a mere part of it”.
In this respect, the Levy Report – released on 9 July 2012 by a special committee appointed by Israeli Prime Minister Benjamin Netanyahu – has represented a watershed of sorts. It clarified that
with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter.
According to the Levy Report, Article 80 of the UN Charter implicitly recognizes the Mandate for Palestine.
The late Eugene Rostow, former dean of Yale Law School, also known for being a key draftee of UN resolution 242, further clarified these aspects explaining that “a trust” – as in Article 80 of the UN Charter – “does not end because the trustee dies”. Rostow’s argument, which is repeated in the Levy report, is that although the League of Nations had ceased to exist, its commitments remain binding.
These claims are marred by several inaccuracies, starting from the fact that the term “national home” had no mutually agreed upon meaning or scope and that the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions” and contained safeguards for the rights and position of the non-Jewish communities.
Furthermore, as David Ben-Gurion clarified in July 1947 in front of the UNSCOP commission:
The Mandate, in fact, does not exist because it was violated by the Mandatory. We are not in favour of renewing it. […] we say that the original intention and the need, and what in our conviction is just, should be decided upon by the United Nations […] I said we do not ask for a Mandate any more, so it is not a question. The question does not arise on the Mandate.
Also the assertion that Article 80 of the UN Charter implicitly recognizes the Mandate for Palestine is more complex than often claimed. One of the legal advisors to the Jewish Agency, Jacob Robinson, published a book in 1947 that presented a historical account of the Palestine Question and the UN. He explained that when the Jewish Agency learned that the Allied Powers had discussed at the Yalta Conference (February 1945) a new system of international supervision to supersede the system of mandates, the Agency decided to submit a formal request to the San Francisco Conference (April-June 1945) to obtain a safeguarding clause in the UN Charter. The proposed clause would have prevented a trusteeship agreement from altering the Jewish right to nationhood secured by the Balfour Declaration and the Mandate for Palestine. The UN Conference ignored the Agency’s request and stipulated in article 80 of the Charter that the UN organization did have the necessary power to conclude trusteeship agreements that could alter existing rights held under a mandate.
Robinson tried to portray a legal setback as a victory and convince everyone that Article 80 of the Charter accomplished the Agency’s stated objective. Indeed, the final text adopted by the working paper for international trusteeship contained an exception that allowed trusteeship agreements to do exactly what the Jewish Agency had tried to prohibit. In Article 80’s words: “Except as may be agreed upon in individual trusteeship arrangements placing each territory under the trusteeship system, nothing in this chapter should be construed in and of itself to alter in any manner the rights of any state or any peoples in any territory”.
Article 1 of General Assembly resolution 24(I) reserved the right of the UN to decide not to assume any function or power of the League of Nations. On the 19th March 1948, during the 271st meeting of the Security Council, US Ambassador Warren Austin cited UN General Assembly resolution 24(I) and pointed out:
The United Nations does not automatically fall heir to the responsibilities either of the League of Nations or of the Mandatory Power in respect of the Palestine Mandate. The record seems to us entirely clear that the United Nations did not take over the League of Nations Mandate system.
On top of all these considerations, the above mentioned thesis of “exclusivity”, besides being unjustified from an historical point of view – Palestine did not belong in an exclusive way to one single population in its entire history – is incorrect also from the legal perspective imposed since the early stage by London. Hubert Young, an important figure of the Foreign Office, wrote in November 1920 that the commitment made by London “in respect of Palestine is the Balfour Declaration constituting it a National Home for the Jewish People”. Lord Curzon corrected him: “No. ‘Establishing a National Home in Palestine for the Jewish people’ – a very different proposition”.
The British White Paper of June 1922 – the first document that officially clarified the interpretation of the Mandate’s text – clarified that the Balfour Declaration does “not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded ‘in Palestine’”. Furthermore, it stressed – and this is perhaps the most relevant aspect – that the “Zionist congress” that took place in Carlsbad in September 1921 had officially accepted that “the determination of the Jewish people to live with the Arab people on terms of unity and mutual respect, and together with them to make the common home into a flourishing community, the upbuilding of which may assure to each of its peoples an undisturbed national development”.
It is only in light on these clarifications that the preamble as well as Article 2 of the Mandate text can and should be understood. It is noteworthy that Zionist consent to such interpretation was requested, and received, before the Mandate was confirmed in July 1922. In Weizmann’s words: “It was made clear to us that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper [of 1922], and my colleagues and I therefore had to accept it, which we did, though not without some qualms”.
Israel’s right to defend itself against terror and discrimination is something that any person interested in peace cannot but support. Equally true is that the attempt to exploit and colonize the Palestinian territories through a misleading use of history, international law, and international consensus is a dangerous threat that requires better public understanding.
Why has jwire pulled the message for car post?
Peter Wertheim dismisses in a definite fashion Carr’s indiscretion on the two principal fronts, the political and the legal one.
Badly advised on the legal matters, as Carr has absolutely no legal qualifications whatsoever, his demonstrably embarrassing foray rendered the political side of the statement even more damaging for the image of Carr’s office, his persona, intellectual abilities and caused serious international shame.
We cannot afford nationally to sustain an office of such stature while incompetent posturing causes important events, such as the ME negotiations, unwanted intrusions.
Carr seriously degraded his office.
A foreign minister lacking basic knowledge of historical facts and critical international treaties should indeed be sent back into retirement. See which countries of the League of Nations have signed St Remo: http://www.mythsandfacts.org/Conflict/mandate_for_palestine/ThisLandIsMyLand.ppt
Israel occupies nothing west of the Jordan, this is all Israel proper. The fact that attacking Arab armies occupied these areas between 1948 and 1967 doesn’t change that.
Well written Peter Wertheim.Bob Carr’s ignorant outburst against Israel and the Jews is not a surprise.
One can only hope that after the 7th of September Bob Carr will no longer be Foreign Minister and cast off into the dustbin of history where he belongs.
Yosi
Carr may no longer be Foreign Minister after the elections but one of the two major political parties in Australia will continue to have an anti- Jewish policy that should concern every member of the Jewish community in Australia.
Carr must stand down…or Rudd must sack him immediately.
carr must go…then he can spend as much time as he likes with his arab mates in lakemba
Israel should take the matter to the International Court and get the settlements declared lawful and the land as “disputed territory”. That will be great victory to Israel and a slap in the face to Carr and the Palestine supporters.
ben eleijah
Why should Israel do anything when it has done nothing wrong in international law?
A case heard in the French Courts supports Israel’s legal position – as does article 6 of the Mandate for Palestine and article 80 of the United Nations Charter.
You should note that these two pieces of international law had not even been considered by Carr before his Lakemba Mosque declaration – and to the best of my knowledge still remain unaddressed by him or the Department of Foreign Affairs and Trade.
Peter Wertheim has demolished the legal arguments put forward by Carr as not worth the paper they are written on.
Let those who allege that Israel has acted illegally take Israel to the ICJ or any other court they wish to choose to prove their case rather than denigrating and delegitimizing Israel by one line pronouncements of “guilty” without any court decision to back their claim.
Doing nothing but creating a series of UN General Assembly resolutions that have no binding effect in international law has been a waste of time.
Indeed one wonders why those claiming illegality have never sought to take direct legal action if they are so convinced that their legal opinion is correct.
Let those claiming illegality put up or shut up.
As an example – Australia has taken Japan to the ICJ on the whaling issue. Let Carr do the same on the settlements issue if he believes Israel is acting illegally – rather than foisting an anti-Jewish policy on the Labor Party that has no substantive legal judgement anywhere in the world to back it.
Until Carr or anyone else does so – Israel is free to act as it thinks fit in its best national interests.
Carr must take Israel to the ICJ ? How can he possibly do that; Australia is not occupied by Israel and has no locus before the ICJ in relation to the matter.
Stick to commercial law and tax.
Ben David
Thank you for confirming Australia cannot take Israel to the ICJ. Can you tell us who can and why they have not done so during the last 46 years?
And another thing…The French Court of Appeal decision involving Alstom does not support the settlement in the slightest. All the case was about was whether Alstom as a non-state entity could be in violation of GC4 which applies to High Contracting Parties. The court said no. This has got nothing to do with whether Isr is in violation of it obligations under GC4 and this was not even touched upon.
Ben David
I never said the Alstom case supported the right of Jews to settle in the West Bank.
The Court of Appeal of Versailles, France, dealt with the civil liability of French companies for their role in the construction of a light rail tramway system in the West Bank. The Versailles Court determined that the French companies’ participation in this construction project did not violate international law.
The two plaintiffs were:
1/ Association FRANCE-PALESTINE SOLIDARITE “AFPS” 21 ter rue Voltaire
75011 PARIS
agissant poursuites et diligences de son Président, Monsieur Jean-Claude LEFORT domicilié en cette qualité audit siège
2/ ORGANISATION DE LIBERATION DE LA PALESTINE “OLP”
représentée par Monsieur Mahmoud ABBAS, Président du Comité Exécutif, lui-même représenté par Monsieur Hael AL FAHOUM, Chef de la Mission de Palestine en France et de l’OLP faisant élection de domicile au siège de la Délégation Générale de la Palestine en France 14 rue du Commandant Léandri 75015PARIS
David – you said “A case heard in the French Courts supports Israel’s legal position ”
Now you are trying to say you never said the case supported the right of Jews to settle in the WB.
Please explain
If it has done nothing wrong, it is then being unjustly charged. Simple solution, ask the ICJ to clear its name and use it to silence the critics.
Why? Surely those making the claim of illegality need to approach the Court and make their case. – if they are really serious in their claim.
One final thing…
You say there is “no substantive legal judgement anywhere in the world to back [Carr’s view that settlements are illegal]”.
The fact that the 2004 ICJ ruling is only an opinion does not make it insubstantial and Carr, Kerry, the UK and Canadian Gov, the EU and everyone else in the free world with an understanding of this long debated issue (including many in the Jewish community in Australia) are perfectly entitled to come to the same conclusion without being insulted, especially by people who appear to have a rather limited amount of knowledge on the issue (see earlier posts).
Neither you nor Paul seem to be aware that just because the ICJ’s opinion are non-binding, does not mean that they are without legal effect; the legal reasoning embodied in them reflects the Court’s authoritative views on important issues of Int law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. They are persuasive and significant.
Julie Bishop, never declared the settlements legal and, if elected, would be discredited, if she did so. She is smart enough to know that Israel has a much weaker legal argument.
Ben David
It is one thing to have an opinion – another to assert as a conclusive fact that the right of Jews to settle in the West Bank is illegal.
To maintain that claim – one needs to point to a judicial decision establishing that illegality.
As you yourself admit – there is no such judgement.
The ICJ decision is non-binding. It was an advisory opinion based on a brief submitted to it by UN Secretary General Kofi Annan.
Furthermore the Court did not consider the applicability of article 6 of the Mandate or article 80 of the UN Charter because Mr Annan somehow overlooked making any reference to these pieces of international law.
Ben David
Rather fortuitously J Wire has just published the following article
http://www.jwire.com.au/news/message-for-senator-carr/36593
Until Israel’s action are found to be illegal by an appropriate Court – Carr and the Labor Party and now the European Union are maintaining a policy that is based on an opinion only and not on established legal precedent as they all misleadingly claim.
Seems as though the opinion of a tax and commercial lawyer has the support of some very prominent international lawyers.
Perhaps you can tell us your real name so we can weigh the value of your opinion as compared to those of the signatories of the letter sent to the European Union.
I am still waiting for you to tell me who has the locus standi to approach the ICJ and challenge what Israel is doing.
With your claimed expertise in international law – an answer should be readily forthcoming.
David,
You asked me to tell you who has locus standi to apply to the ICJ. Thats either a rhetorical question or you need to purchase yourself a text book on the subject. This is law 101 stuff and, if you don’t know, you shouldn’t really be holding yourself out as an expert.
Have read the letter from the so called authorities on Int law. Oddly, their names dont appear but, in any event, it contains the same old tired assertions that have been butchtered to pieces previously by far more accomplished minds. I previously referred you to Prof Berman of Brown University who demolished the Art 80 /Mandate point. Remember how you couldn’t find an independent legal expert who was able to rebut what he said ? Unlike the letter you referred to, Berman’s response contains actual legal reasoning as opposed to a series of conclusions with no substance.
Ben David
Our earlier discussion ended with this post from me on 8 July 2013 – to which you never responded.
“Thank you for admitting you use two different anonymous names to post on different sites. Given your admission that you also changed a quote by Professor Scobbie – I don’t wish to engage in any further correspondence with you.
Is that the kind of conduct a lawyer should engage in? No wonder you don’t want to identify yourself publicly. Maybe you are not even a lawyer or even Jewish as you claim to be.
Does all wisdom reside in BEN DR and Ben David ( and maybe any other names you might use) to denigrate the opinions of others like Rostow, Riebenfeld , Stone, Greif, Levy, Baker and Kaplan,because they are Zionists, Jews and perhaps even live in the West Bank?
Does that give me the license to criticise the opinions of Berman, Scobbie and yourself because you are anti-Zionists who do not believe the Jews are legally entitled to their own State in their biblical and ancestral homeland?
My position on the Mandate and article 80 (supported also by the ICJ in the SWA case as I have quoted to you) remains unchanged and still applicable in 2013.
You have failed to specify the date when those rights were ended.
The experts you produced – Scobbie and Berman – have not directly addressed the issue of The Mandate and article 80. Your attempt to claim they have in an indirect and round about manner is rejected.
You have failed to produce any expert lawyer who has addressed the issue directly and come to a different conclusion.
Just remember that any case only goes to Court because there are two different legal opinions – only one of which will prevail.
it is a pity you didn’t leave OLO when you said you would (do lawyers go back on their undertakings as well?)
Stick to your opinion if you will because I will stick to mine until a Court decides that the rights conferred on the Jewish people by article 6 of the Mandate and article 80 of the UN Charter have been extinguished and no longer apply.”
I am pleased to see that 1000 jurists have now had their say to confirm the right of Jews to live in the West Bank under article 6 of the Mandate and article 80 of the UN Charter.
Didnt respond because you started repeating yourself and then it became clear that you dont have an understanding of even the basic fundamentals of Int law. Have better things to do with my time and I think you will find that Carr and the officials at DFAT will take a similar view.
Ben David
Carr and DFAT have questions to answer as to why DFAT failed to consider the following before Carr announced the Labor Party policy on the steps of the Lakemba mosque
1. Article 6 of the Mandate for Palestine and article 80 of the United Nations Charter
2. The contents of the letter signed by over 1000 jurists to Baroness Ashton on 22 July
3. The Levy Report
Had DFAT considered and rejected their relevance – Carr could possibly have had an out.
The fact DFAT considered none of these indicates failings within DFAT in the advice being given to the Minister.
It is not a good scene for the Minister to be basing foreign affairs policy on half cocked legal advice as the ECAJ, the ZFA and AIJAC have made clear.
Carr needs to haul in whoever gave the advice and refer the issue to the international law section of the Attorney General’s Office to review all the relevant law – not half of it.
BTW –
1. why are you so shy about telling us your real name – given your claim to be the font of all wisdom when it comes to international law?
2. Do you post under more than two anonymous names?
Carr and DFAT according to you will not be responding to the four questions they need to answer.
Will you respond to the above two questions I have asked of you?
Ben David
You have been proved wrong once again.
Carr has replied – but what an evasive answer
Read the correspondence for yourself:
“Ian
August 19, 2013 10:47 pm at 10:47 pm
I wrote to Dan Caddy, Labor Candidate for Stirling re Israel’s legal right to live in the West Bank.
My email stated “I am concerned about the statements made by Senator Bob Carr.
Please answer four questions well before voting day:
1. On what date was the Lakemba Mosque Declaration adopted as Labor Party policy?
2. Who were the persons present when such policy was adopted?
3. What international law was relied on to enable the Labor Party to “say unequivocally” that Jews had no legal right to live in the West Bank?
4. Is the Labor Party prepared to review its policy in view of the flawed advice given to it by DFAT?”
Below is the response I received.
—–Original Message—–
From: [email protected] [mailto:[email protected]]
Sent: Monday, 19 August 2013 4:02 PM
To: [email protected]
Subject: Federal Labor’s position on Palestine and the Middle East Peace Process
Firstly let me thankyou for your email, I can see that this is an issue that is dear to you. I have received advice from our Minister’s office which I have included below. I appreciate that it does not specifically address the questions you have posed, but I hope it clearly articulates what the position is.
_________
The Rudd Labor Government strongly supports a negotiated two-state solution that allows a secure Israel to live side by side with an independent future Palestinian state. We welcome the fact that both sides have returned to direct negotiations.
Leadership from the United States, particularly the Secretary of State John Kerry, has been crucial to bringing the two sides to the negotiating table.
Prime Minister Netanyahu confirmed his government’s commitment to a peaceful two-state solution.
President Abbas said the Palestinians were prepared to implement all their commitments and obligations.
Federal Labor has consistently called on both sides to refrain from action that undermines prospects for negotiations
Israeli settlement activity, which threatens the realisation of a two-state solution.
Palestinian leaders also need to prevent rocket attacks from Gaza and to avoid provocative unilateral actions in international forums.
Federal Labor considers a negotiated two-state solution is the only way to realise a Palestinian state.
The Labor Government’s decision to abstain on the 2012 Palestinian statehood resolution balanced Australia’s support for a future Palestinian state and our view that the only way to achieve the reality of statehood for the Palestinians is direct negotiations between Israel and the Palestinians.
The Federal Labor Government has repeatedly called on Israel to stop settlement activity, noting that its settlements are illegal under international law, including amounting to a violation of the Fourth Geneva Convention, and that settlement activity undermines the prospects for peace.
Australia’s aid program will provide $300 million in assistance to the Palestinian people over five years (2011-2016), including $120 million in direct budget support to the Palestinian Authority.
Australia provides practical assistance to build stronger civil institutions and to prepare for eventual statehood.
Regards
Dan
Reply
David says:
August 20, 2013 1:17 pm at 1:17 pm
Ian
Congratulations on a great initiative by you to write to a Labor candidate posing the four questions Labor needs to answer.
Even Mr Caddy acknowledges that the reply he sent you fails to deal with the four questions you asked.
I feel sorry for him being let down by his Prime Minister and Foreign Affairs Minister.
One can only assume that this confirms that the policy announced at the Lakemba Mosque was made on the run.
Perhaps a few other readers should be asking their local Labor candidates the same four questions to see what response they get.”
Carr appears to have committed the Labor Party to a policy which is his alone. Surely the four questions asked were not that difficult for either he or his panoply to answer in a matter of minutes?