Following the Trump Administration’s shift on the legality of Israeli settlements I wrote the following article for Plus61JMedia. The Morrison Government’s silence on this issue is striking.
Does Australia a view on the legality or otherwise of Israeli settlements in the West Bank? If so, the government seems very reluctant to tell us what it is.
Following US Secretary of State Pompeo’s announcement that Israeli civilian settlements in the West Bank were now “not per se inconsistent with international law”, Plus61JMedia contacted Foreign Minister Marise Payne’s office, on November 26, seeking clarification of Australia’s position.
We asked for the government’s view of the shift in US policy, whether the government was planning to comment on the legality of otherwise of the settlements, and whether Australia already has the same position as the US.
No comments were forthcoming, from which we can draw several possible conclusions. The government doesn’t have a policy. The government has doubts about the legality of settlements but doesn’t want to irritate Israel and the US by saying so. The government accepts the legality of settlements but doesn’t want to irritate a large group of other countries (including important Islamic states) by saying so.
During the ABC’s Q&A program on November 25, the foreign editor of The Australian, Greg Sheridan, argued that Australia “already has” the same position on settlements as the US. Curiously Pompeo made no mention of this in announcing the Trump Administration’s “new” approach.
He did offer an historical overview noting, for example, a 1978 State Department ruling that Israel’s civilian settlements were inconsistent with international law. That ruling, he said, had not “advanced the cause for peace”. The implication that the new US approach will do so is optimistic, to say the least.
Prime Minister Netanyahu said the changed US position reflected a “historical truth — that the Jewish people are not foreign colonialists in Judea and Samaria”. But another participant on the same Q&A program, Israeli parliamentarian Tamar Zandberg, argued that settlements remained one of the biggest obstacles to peace, hurting the interests of Israel and Israelis.
Whatever proponents of the changed US position might wish, the decision does not change international law. The Fourth Geneva Convention of 1949 outlaws the transfer by an occupying power of parts of its civil population into the territory occupied by it.
Israel argues that the Convention does not apply to the West Bank because the territory is not technically occupied, that Israel is there legally as a result of a defensive war, and that it did not take control of the West Bank from a legitimate sovereign power. The weight of international legal opinion does not agree.
On the Israeli assertion that the Geneva Conventions apply only to conflicts over the sovereign territories of sovereign states and therefore not to the West Bank, Ben Saul, Professor of International Law at Sydney University, wrote in The Conversation in 2014 that the Conventions “not only apply to the military occupation of a state’s sovereign territory, but to any territory, including where legal ownership is disputed or yet to be settled”.
Some of Prime Minister Morrison’s former coalition colleagues had earlier expressed sympathy for Israeli policies. As Attorney General, George Brandis argued in 2014 that the term “Occupied East Jerusalem” was “freighted with pejorative implications … neither appropriate nor useful”.
In December 2016, both Malcolm Turnbull and Julie Bishop castigated the UN Security Council for passing resolution 2334. It declared that settlements in Palestinian territory occupied since 1967, including East Jerusalem, had no legal validity, constituted “a flagrant violation under international law and a major obstacle to the achievement of the two-state solution”.
Turnbull described the resolution as “one-sided” and “deeply unsettling”. Bishop said the Australian Government had consistently opposed “one-sided resolutions targeting Israel”. She added that if Australia had then been on the Security Council it would likely have voted again the resolution. That wouldn’t have made any difference as the resolution passed by 14 votes to nil, with the US abstaining.
Then US ambassador to the UN, Samantha Powers, acknowledged the anti-Israel bias of many UN resolutions but emphasised the long-standing US position that “settlements undermined Israel’s security and eroded prospects for peace and stability”.
In the wake of Pompeo’s announcement, 14 of the 15 members of the UN Security Council – including the UK, France and Germany – sought to issue a short statement reaffirming the illegality of settlements. Kuwait’s representative told reporters they wanted to emphasise “that settlement activity is illegal, undermines the two-state solution and violates Security Council resolution 2334” but “one delegation objected”. No prizes for guessing which delegation that was.
It’s far from clear how the changed US position over settlements fits into Trump’s game-plan for resolving the Israeli-Palestinian conflict. The President has talked of a one or two-state solution, of being “very happy” with what the parties like.
US recognition of Jerusalem as Israel’s capital, its acceptance of Israel’s annexation of the Golan Heights, and its acceptance of the legality of West Bank settlements make clear US support for the hard-line position of the now-indicted Israeli PM. But unilateral moves in favour of Israel do not amount to a considered and workable plan for peace.
We do know the Morrison Government’s game plan. It’s two states, both with their capitals in Jerusalem, Israel in the West and Palestine in the East. In announcing Australia’s recognition of “West” Jerusalem as the Israeli capital in December 2018, the Prime Minister emphasised Australia’s “absolute commitment to a two-state solution … a secure Israel and future Palestinian state living side-by-side in peace and security”.
He spoke of the need to respect “Australia’s obligations under international law and UN Security Council resolutions”. Logically, that includes the Geneva Conventions and UN Security Council Resolution 2334.
Like his predecessor, Morrison believes that Israel gets a hard time in the UN. In a speech to the Sydney Institute in December 2018, he rounded on the General Assembly for its “biased and unfair targeting of Israel”. But if the PM is tempted by the “settlements are legal” argument, he need only recall that same speech.
In it, he noted the government’s “strong concern over Israel’s land appropriations, demolitions and settlement activity … The settlements undermine peace and contribute to the stalemate we now see,” he continued.
“If need be, Australia would “openly rebuke a sincere friend”.
In the light of those strong words the government might now offer a bit of truth telling over settlements, rather than ducking for cover.
Peter Rodgers is a former Australian ambassador to Israel who has written two books on the Middle East, Herzl’s Nightmare – one land two peoples and Arabian Plights – the future Middle East