By Stephen Lawrence – NSW Labor MLC
Judges often ask questions of witnesses to clarify evidence or tie up inconsequential loose ends.
But as a lawyer one learns that sometimes a key looming conclusion is smuggled into the premise of a carefully constructed judicial question.
Recently in the ‘Royal Commission on Antisemitism and Social Cohesion’, witness Rita Jabri Markwell was asked by Commissioner Virginia Bell:
“Ms. Markwell, a little while ago in describing your understanding of Zionism you spoke of it being an ideology, that went back I think you said a couple of hundred years, we won’t debate that, but you also referenced ideas of a greater Israel. If you can put all of that out of your mind for a moment, and accept that following the United Nations resolution for the partition of Israel and Palestine in 1948, the state of Israel was declared by Prime Minister Ben Gurion, and following that declaration the United Nations General Assembly passed a resolution recognising the State of Israel, putting Zionism to one side, Ms. Markwell, well do you accept that there is a legitimacy to the existence of the State of Israel, I’m not talking of the Occupied Palestinian Territories, just the State of Israel?”
One can only infer that Commissioner Bell was seeking a concession that Israel is a legitimate state.
Markwell – a solicitor with Birchgrove Legal – was well equipped to respond to a question that was both leading and complex:
“As a human rights lawyer, I don’t think that any state that relies upon unlawful occupation, apartheid and genocide could be said to be a legitimate state.”
The Commissioner’s question likely arose from an ongoing focus in the Royal Commission on the much-discussed distinction between so-called ‘legitimate criticism’ of Israel and antisemitism.
The contentious International Holocaust Remembrance Alliance (IHRA) definition of antisemitism (remarkably imposed on the Commission by the government despite its controversy) states that manifestations of antisemitism:
“... might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic.”
It also offers certain examples of antisemitism:
“Denying the Jewish people their right to self-determination, e.g. by claiming that the existence of a State of Israel is a racist endeavour.”
“Applying double standards by requiring of it a behaviour not expected or demanded of any other democratic nation.”
The Commission’s ‘profound ignorance’ on Israel
Of course, whether criticism of a state imposes an unfair ‘double standard’, or whether a country is a racist endeavour, surely depends on a comparative analysis of its characteristics and conduct.
It is notable that the question asked the witness to accept the legitimacy of Israel, “putting aside Zionism”.
This took hypothetical questioning to the point of absurdity but also revealed a profound ignorance of the foundational attributes of Israel.
That may sound harsh on the learned Commissioner, but she didn’t create the Overton window that manufactures systemic indifference to the truth on Palestine.
The truth being that there would be no Israel without Zionism and an Israel without Zionism would be no Israel at all.
Historians have thoroughly documented Israel’s ethnic cleansing of Palestinians in 1948 and 1967, neatly achieving the long-standing Zionist vision that an 80% Jewish majority was necessary to make Israel viable.
Any false contention that this ‘population transfer’ was not deliberate is rendered irrelevant by Israel’s denial of a right of return for Palestinian refugees – despite a UN resolution requiring them to do so.
Since its creation, Israel has also encouraged Jewish people worldwide to move there, part of the ‘self-determination’ of Jewish people alone established by law.
The reason Israel clamours to be accorded a ‘right to exist’, something no other state demands, is because that demand is for it to exist as a Jewish state, i.e. a state that will be allowed to maintain discriminatory migration law and exclude, in perpetuity, the expelled Palestinians.
In simpler terms, a non-racist migration law that respected the rights of refugees would be the end of Israel as a Jewish state, but the possible beginning of it being a truly democratic state that affords equal rights to all.
Commission risks ‘cardinal error’ on antisemitism
These facts actually do render Israel a unique ethnocracy. To suggest, as IHRA does, that it is an antisemitic double standard to label Israel as a ‘racist endeavour’ is ridiculous, called in aid of the state interests of Israel, but rejected by most of the world.
If the Commissioner is heading towards some categorisation as presumptively antisemitic speech that delegitimises Israel, she will be making the same cardinal error that so many have made for decades: accepting a standard as applicable to the Palestinians that one would never accept for one’s own people.
The Commissioner’s question also portends a fundamental risk that the Commission will miss what is obvious to most Australians – rising antisemitism in Australia is largely driven by revulsion at the actions of Israel and a pernicious perception that the Jewish community is somehow responsible for the actions of Israel.
It is this reality that poses the most difficult question of Virginia Bell; how do we deal with the fact that most Australians are now perhaps revolted by Israel’s racist and supremacist conduct (some tragically and outrageously to the point of engaging in violent extremism), but most Australian Jews are (so we are told) enthusiastic supporters of Israel and Zionism?
Resolution in social policy terms of this wicked conundrum will not be found in specious notions that the legitimacy of Israel, “putting aside Zionism”, can be found in a General Assembly resolution.
Nor will it be found in censorious rules that allow criticism of the conduct of particular governments of Israel, but no critique of the fundamental nature of the State of Israel, from 1948 until the present day.
Indeed, such measures will almost certainly worsen antisemitism, resting as it does on a pernicious conspiracy theory of Jewish power.
I hope my lawyer’s instinct is wrong about the Commissioner’s impossible question of Rita Jabri Markwell and all it might portend.
If all it takes in the Commissioner’s eyes is a UN resolution to determine legitimacy, without regard for context or reality, then shouldn’t all the Palestinians expelled by the ‘legitimate’ Israeli state in 1948 be allowed to return, as per UN resolution 194? Why doesn’t the Commissioner intervene and ask outwardly Zionist witnesses that question - putting aside their Zionist beliefs for a second to answer the question of course!
It has been clear from the outset that this RC has been set up to placate the Zionist lobby, so nothing useful can be expected of it. But even in that context Virginia Bell's question is a doozy. Smacks of getting a murderer off on a legal technicality. Arguably the Jewish state is the result of a series of unfortunate technicalities, starting with the 1917 Balfour declaration.