This essay begins with a personal reflection on peace studies and activism in Australia. I then introduce two native title cases, in Queensland, Australia and Beersheba, Israel, contextualised from colonial conditions to post-colonial developments. The substantive section presents formal legal processes as opportunities for ‘negative’ peace, by overturning entrenched injustice, while recognising that cultural and structural violence remain. Subsequent social developments are presented as an ongoing process towards reconciliation, a strategy for ‘positive’ peace with justice, and an alternative to military aggression and violent resistance. The conclusion identifies two critical components for sustainable peace: overturning long-held and unjust legal precedent, and the value of international reputation to nation states.

On 27 May 2000, an estimated two hundred thousand people walked across the Sydney Harbour Bridge. The event was Corroboree 2000, dated to the anniversary of the most popular referendum in Australian history, which removed formal discrimination against ‘the Aboriginal race’ from the constitution (1967). On Valentines Day 2003, many thousands gathered at Town Hall to protest an illegal invasion. There was no Gough Whitlam for us, and Australia followed the USA into Iraq.

In May 2008 Ali Abunimah, author of One Country: A Bold Proposal to End the Israeli-Palestinian impasse (2006), visited Sydney. His book tour coincided with the 60th commemoration of al-Nakba, (the Catastrophe), the foundation of Israel. Six months later Israel attacked Gaza by air, land and sea. I knew little about Israel or Palestine, and was appalled by my ignorance, at protesting Australian involvement in the Iraq invasion, never noticing the vast apparatus supporting western attacks in the Middle East, despite the nightly news remit. I became aware of a violent occupation, Indigenous marginalisation, and complex colonial histories.

Once again we gathered at Sydney Town Hall, this time a mere 5000 people, receiving scant media attention. Aboriginal and Iraqi lives, having finally mustered mainstream support, mattered more, it seemed, than Gazans (see Lynch and McGoldrick 2005). As West Wing character Toby Ziegler – the ‘melancholic Jew’ – put it, ‘Palestinians are the Jews of the Arab world’ (2004). One event was for positive peace, a landmark day in the reconciliation process, between Australia’s First Peoples and the inherited privilege of colonial power. The other two were calls to negative peace, to stop military attacks on Iraq and Gaza (Galtung 1996).

In his guest lecture for this unit, Charles Webel presented empirical evidence that legal and policing responses have greater long-term effect than military intervention (see Johnstone 2005). I found this evidence compelling. The Australian response to the Bali bombings (12 October 2002) was to send doctors and investigators. We saw the accused in court, and maintained diplomatic relations with Indonesia, our Muslim-majority neighbour. The USA response to the 11 September 2001 attacks was to send its military might, with international support, to retaliate against Kabul. The legal and policing strategies had demonstrably better outcomes for peace. As a peace student and activist (Rees and Blanchard 1999), I am interested in the strata of interested groups that are essential to sustainable peace-building (Lederach 1999), within a global human rights framework (Abbott et al 2006).

Dispossession in Australia and Israel

The breakthrough Australian native title case Mabo v State of Queensland (No. 2) (1992) (Mabo) overturned 224 years of legal fiction (terra nullius, below) after Aboriginal dispossession began with the 1770 landing of James Cook (Mabo per Deane and Gaudron JJ at IP3; Bird Rose 2001). The el-Okbi (also al-Uqbi) test case is on foot 62 years after the creation of Israel. In raw chronological terms, Israeli courts could recognise native title in the next 140 years and still be ‘ahead’ of us. Australia is no post-colonial utopia, but does have conditions that can produce a coherent body of native title jurisprudence with little social unrest. Both cases exist amid on-going direct and indirect (structural, cultural) violence (Galtung 1996).

Wars are fought over territory, both land and psychological territory – the ‘battle for hearts and minds’ (Esposito and Mogahed 2007). The UN Partition Plan (29 Nov 1947) was in existence when the state of Israel was declared. But the Arab and Jewish sides held entrenched, values-based positions. Force prevailed over UN covenant, and the conflict has continued ever since, supporting the thesis that military build-up exacerbates and prolongs conflict (Burton 1990; Lynch 2010).

In Australia, there has been debate over the existence or extent of frontier wars (Reynolds 1982 and 2001; Windschuttle 2002). Massacres are evidenced by later analyses (Elder 2003) and oral histories. For example, the Darug people hold an annual ceremony to honour the warrior Yarramundi and the battle of Richmond Hill (1795). In 1994 I was deeply moved to hear eye-witness testimony from a Warlpiri elder at the Coniston massacre site (NT 1922). The Myall Creek massacre (NSW 1838) is commemorated annually by descendants of murderers and survivors.

These occasions provide a reconciliatory space (Lederach 2001) for shared reflections on past direct violence and contemporary cultural violence (Galtung 1996). Novelist Kim Scott (2010) has observed that periods of peaceful co-existence in Noongar country can largely be attributed to the adaptive and hospitable traditions of the locals. A visual example is Cathy Freeman’s twin identities, holding two flags, aloft and entwined, neither uppermost (Sydney Olympics, 25 September 2000), a courageous act given she was threatened with disqualification after the same display at the Commonwealth Games (1998).

The second image shows three flags configured for the Parliamentary Apology to the Stolen Generations (13 February 2008).

The word ‘reconciliation’ implicitly references an earlier policy, contained in Letters Patent signed by King George III and carried by Captain (Governor) Phillip aboard his flagship Sirius, into Warrane (Sydney Cove) on 26 January 1788. The royal orders were to ‘open an intercourse with the natives, and to conciliate their affections’ (HRNSW 1892), an order executed by, among other things, abducting the young Bennelong (Smith 2010).

This language is echoed in by British Foreign Secretary Arthur Balfour (Balfour Declaration 2 November 1917): ‘nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine…’ This document, and the UN Partition Plan, is furnished as evidence in the el-Okbi case.

The loudest echo of terra nullius, or ‘land of no-one’, is mythology, not doctrine: a land without people for a people without land. This sentiment cannot be legally overturned, because it is not law, an apt opening for trans-disciplinary analysis. Journalist-historian Tom Segev draws the obvious implications from the el-Okbi case, asking ‘Who owns this country?’ (2010).

Two cases

Eddie Koiki Mabo’s posthumous achievement was a strong judicial outcome, one that may not have come about under a different High Court (see Pierce 2006). It was decided by the superior court of record, that is, after abolition of Privy Council appeals (1986, see Gleeson 2007). Only one in seven judges dissented.

Nuri el-Okbi is a Bedouin man from the Negev (Naqab) in southern Israel. His claim is currently before Justice Sarah Dovrat of the Be’er Sheva (Beersheba) District Court. As a non-Hebrew speaker, my account relies on English-language media rather than court documents. I acknowledge that the two sources are inherently different. For the overall purpose of this essay (below), I note that old and new media are the major source of global news in wealthy, influential countries and create public perception feedback loops (Lynch and McGoldrick 2005) as well as potentially shaping individual reactions (McGoldrick 2008).

The complex circumstances surrounding Mr. el-Okbi and Mr. Mabo’s claims stretch back to their ancient living cultures through contested English imperial policy. Courts are not designed to hear from internal, stateless, yet coherent nations, peoples with neither territorial title nor sovereignty. Tribal identities (e.g. Warlpiri, Dhunghutti) and regional groupings (Koori, Anangu) are now better known, in Australia, although I cannot say whether this has been influenced by native title claims. Similarly, the state-lessness of Palestinians affects their legal standing. ‘Palestine’ does not appear in any modern atlas, yet governments all over the world know where Palestine is, and that its location is a problem.

I do not automatically conflate Bedouin and Palestinian identities, but I do contend that the el-Okbi case has implications in the Palestinian occupied territories of East Jerusalem, Gaza and the West Bank. As well as Segev’s extrapolation, this contention rests on the ‘transcend’ peace-building approach (Galtung 2000). It also refers with ‘pragmatic optimism’, and Gandhian inspiration (Barasch and Webel 2002), to Eddie Mabo’s persistent, non-violent action for significant change. Additionally, complexity theory (Opotow 2000) and its uptake of fractal analysis (Mandelbrot 1982, see also Urry 2002; Hodge 2007) are invoked. Fractals re-iterate across scales, like a leaf, branch, and tree. It is an especially useful point of entry here because Palestinian dispossession is on-going and repeated, as through house demolitions (Halper 2008). The el-Okbi experience re-iterates from family to tribe, forced relocation, and demolition of Bedouin villages.

The process model shows Mabo stemmed from earlier developments, such as the Northern Territory Land Rights Act 1976 (Cth) and Milirrpum v Nabalco (1971). This important case recognised the coherence and continuing practice of Aboriginal law, but encountered the problem of inalienability, as elders testified that they belong to the land rather than the other way around. It was also subject to Privy Council precedent (Re Southern Rhodesia [1919] AC 233). In Mabo, Justice Brennan said (at 16):

In discharging its duty to declare the common law of Australia, this Court is
not free to adopt rules that accord with contemporary notions of justice and
human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency… Although this Court is free to depart from English precedent which was earlier followed as stating the common law of this country, it cannot do so where the departure would fracture what I have called the skeleton of principle.

Further steps toward reconciliation occurred because Mabo was decided in an atmosphere of political good will. Reconciliation was official policy under the Hawke-Keating governments (1983-1996). Prime Minister Keating led the negotiations that codified Mabo into the Native Title Act 1993 (Cth). He lent political and cultural support by recognising past wrongs:

We simply cannot sweep injustice aside. Even if our own conscience allowed us to, I am sure, that in due course, the world and the people of our region would not. There should be no mistake about this – our success in resolving these issues will have a significant bearing on our standing in the world.

Together, the words of Justice Brennan and Paul Keating offer possible strategies for Israel. Could similar conditions support recognition of Bedouin title? This would not in itself guarantee justice or peace, even in a narrow, local sense. The Howard Coalition government (1996-2007) replaced reconciliation with ‘practical reconciliation’. Deputy Prime Minister Tim Fischer famously promised ‘bucket-loads of extinguishment’ after Wik Peoples v Queensland (1996) found that native title was not necessarily extinguished by pastoral leases. This rural conservative leader seemed to be saying that the land had not been taken comprehensively enough the first time, that despite a High Court judgement embedded in common law principle, the Australian government should re-dispossess Aboriginal people, a familiar pattern. Indigenous peoples, expecting the certainty and permanence promised by legal process, instead find political will (and the trump card of legislation over the common law) deliver no such thing.

Internal inconsistencies and human rights violations are affecting Israel’s international standing (Chomsky 2010) where the Ministry for Public Diplomacy and the Diaspora expends considerable resources on Hasbara, the official defence of Israeli aggression, like extra-judicial killings. These mixed and layered messages add validity to the use of media sources here. Media influence is exercised through framing (Hall 2003), through frequency and prominence, like the saturation coverage of 9/11, and when high-profile columnists and editorials weigh in on one side or another. Defenders of Israel frequently claim to be disadvantaged by such pieces (Regev 2010; Dershowitz 2010).

Public opinion influences government policy, but Palestinian statehood claims tend to be ‘outsourced’ to multi-level diplomacy (Diamond and McDonald 1996) such as proximity talks brokered by the USA. Like other nations, US domestic politics constrain progress – the old adage that ‘all politics is local’ (O’Neill 1994).

Recent coverage of the el-Oqbi claim (Cook 01 September 2010; Segev 08 September 2010) report that he says his family was ‘tricked’ into moving from their lands in 1951 to temporarily allow for military exercises. An Australian parallel might be seen at the nuclear test site Maralinga, where the military purpose was real, but the people were not notified before exposure to lethal radiation (Jamieson and Rankin 2008).

As a result of the case, (Cook 2010), ‘the authorities have sped up plans’ for the Jewish National Fund (JNF) to plant a ‘peace forest’ over Mr. el-Oqbi’s land. This claim is highly credible, in light of the internecine conflict over pine and olive groves, or ‘planted flags’ (Braverman 2009). It echoes the ‘bucketloads of extinguishment’ desire to strengthen the colonial claim through evidence, in the dominant tradition, of ownership (such as cultivation, see Vattel 1758). Such ‘ownership acts’ contrast with nomadic ties to land, such as seasonal travel patterns and sustainable land use.

The problem of nomadic lifestyles and recognition of property title was overcome in Australia by Mabo because the Meriam Islanders had cultivated plots stretching back generations. The contained island environment meant their traditional ties were more recognisable, while its status as Crown land meant recognition affected the rest of Australia. Similarly, in Israel, el-Oqbi has particularly strong support for his claim to 205 acres (820 dunams) among ‘outstanding [Bedouin] claims to over 80,000 hectares of ancestral property’ (Cook 2010). He holds documentation proving cultivation, yields and tithes paid to British and Ottoman authorities.

Unsurprisingly, the situation is clouded by conflicting colonial orders. One 1921 ordinance exempted Bedouin from registering their land, while another contained a clause allowing ‘a two-month extension for Bedouin to register their lands’ (Dead ‏(Mewat‏) Lands Ordinance 1921). Colonial indecision around governance of the Bedouin probably stemmed from conflicting promises to ‘Arabist’ and Zionist interests during World War One, including the Balfour Declaration (Schneer 2010). Empires that lay claim to more land and people than they can govern tend to founder, resulting in patchwork power-wielding that in retrospect seems doomed to cause on-going unfulfilled human needs (Burton 1990). Nevertheless, the instruments carry legal weight in accordance with their historical legitimacy.

For the defence, Professor Ruth Kark argues that the land passed to Israel on its creation and is held in trust for world Jewry. The Bedouin are the ‘trespassers’ or ‘invaders’. Kark claims that these founding tenets of Israel as the Jewish state are supported by UN resolutions, which in turn referenced Balfour, neither of which actually went to plan.

The available proof that the JNF bought land from the Bedouin indicates prior ownership and transfer of title. Purchase is a more legitimate argument than the wider assertion that no Bedouin could accrue title because of nomadic lifestyle factors. But the potential precedent is a legal and cultural concern for Israel. If its claim is founded on purchase, then land taken by armed force (or where ownership is not verifiable by transaction) might default to Bedouin ownership rather than be held in trust for world Jewry. Segev (2010) makes the obvious connection beyond the Negev: ‘…[they] are arguing over the justness of Zionism’.

One of the hardest pieces of evidence is a signed 1948 treaty ‘between 16 Bedouin tribes, including the Okbi, and the new Israeli army, pledging loyalty in return for a guarantee that they could continue living on their lands’ (Cook 2010). This army-loyalty nexus is heart-sinking, on many levels. As a distant observer who advocates co-existence and reconciliation, I want to link the el-Okbi case to Segev’s words on the justness of Zionism and a deeply militarised Israeli society.

The Question of Israel

Australia and Israel have a relatively large tracts of desert land at their heart, sparsely populated with first peoples who remain closely connected to traditional culture. In each case the Indigenous have been bribed or forced into government settlements, like Papunya (Central Australia) and Hura (the Negev). These ‘remote communities’ or ‘townships’ have little to offer other than sedentary, marginalized lives of unemployment, poverty and despair. Basic human needs are denied at every level. Utilities are utterly inadequate. Australian housing policy is less brutal than unannounced Israeli bulldozers, but Aboriginal housing is repeatedly promised and either not delivered or so unsatisfactory that demolition soon follows.

Despite the ancient living cultures of Aboriginal Australians and the Bedouin, the modern states of Australia and Israel are Euro-centrically viewed as ‘young’ countries (Daley 2009). I strongly disagree with this characterisation. Israel is not some spoilt teenage son defying big General USA. It is a highly militarized nuclear state with ancient ties to, and place-based feuds in, the territory it controls in the Middle East. Australia and Israel are wealthy, advanced nations with coherent bodies of law and a shared foundational legal ethic, incorruptible judiciaries, and robust electoral process. Neither is a dictatorship, nor lacking the intellectual and cultural capital to understand international obligations.

I pause here to try and think laterally about law and peace. In Australia, the state has fought Aboriginal rights every step, from Queensland against Mabo, to the federal Coalition government against stolen generations claimants, to Labor ‘ruling out’ attaching compensation for harm caused to the Apology.

There are multiple distinguishing circumstances hampering a comparison of possible strategies for peace with justice around dispossession in Australia and Israel. I suggest, however, that any alternative approach in the region is worth examining:

There is no more important, yet no more intractable, international question than how to secure peaceful co-existence between Jew and Arab in a ‘holy land’ divided between the focused power of the state of Israel and the ramshackle ‘authority’ of Palestine (Robertson 2006: 171).

What would happen if, say, an IDF commando, under investigation over extra-judicial killings, stood up and said ‘Guilty, on the grounds that following orders is no excuse’? As Robertson would attest, this principle was formulated at Nuremburg, the birthplace of modern human rights and our understanding of crimes against humanity, genocides committed not by one state against another but by a sovereign leader against his citizens.

I tried to imagine that Queensland had not fought Mabo, or the Commonwealth against Kruger, Cubillo, or Gunner, and instead turned the financial and legal resources to a just-peace process based on principles of transformative justice. Imagine an Israel that assessed Mr. el-Okbi’s evidence, advanced the view that its courts constitute fair and just process, and decided to put the resources into a settlement recognising all the parties involved – Bedouin, the JNF, the state of Israel, Jewish Israelis residing in the Negev. Could peace, law, culture and the communities they describe and define, and intersect across, co-exist like this?

A key difference is the Westminster tradition of separation of church and state, constitutionally enshrined in Australia as in the USA, our most powerful ally and the chief military sponsor of Israel (Sharp 2009). Yet Israel simultaneously claims to be a democracy and to be home to 7 million people, the Jewish Diaspora, who are neither residents nor nationals. The question of identity is fundamental to the question of Israel. The complexity of Jewishness, encompassing religion, culture and ethnicity, defies comparison, yet informs every analysis. Jewish identity is conflated with the state apparatus, from constitutional proclamation as the Jewish homeland, to the problematic discrimination perpetuated by the Law of Return (1950) and Citizenship Law (1952).

Israel has possibly the most intense social contract between any state and its nationals, in the form of two to three compulsory years (for women and men respectively) in the armed forces for Jewish Israelis (but not Arab-Palestinian-Bedouin Israelis). Israel defines itself as in a permanent state of self-defence: the IDF mission is to ‘…To protect the inhabitants of Israel and to combat all forms of terrorism which threaten the daily life [my emphasis].’ Self defence of course is a legal defence to murder.

Shahak (1994) forensically demonstrates the links between orthodox Judaism and Israeli violence. One example he gives is rabbinical advice to IDF members who question the morality of directives to treat all Arabs as an existential threat. On Shahak’s reading, rabbinical law extends to distinguishing murder of a fellow Jew from murder of a non-Jew.

The Israeli Ministry for Public Diplomacy and the Diaspora expends considerable resources on Hasbara, the official public relations policy of defending Israeli aggression, like extra-judicial killings. But internal inconsistencies and human rights violations are affecting Israel’s international standing (Chomsky 2010). Public opinion and political will – more so than international standing – influence the extent to which governments implement policies that could deliver peace with justice. Palestinian claims to statehood and territory are always met by ineffective multi-level diplomacy (Diamond and McDonald 1996) such as proximity talks brokered by the USA, which is constrained by the old adage ‘all politics is local’ (O’Neill 1994).

Israel is unlikely to ever uncouple itself from its Jewish identity, and there is no evidence that it will cede an independent state to Palestinians from the territory it now occupies, or commit to any retreat from wielding military power, even in the medium term. Overtly recognising special, or exceptional circumstances for Israel in an open, sensitive and honest way seems the only way to accommodate the manifest history and trauma of persecution that at least two Jewish writers have characterised as collective mental illness: Jewish ‘paranoia’ and ‘Israeli insanity’ (Arbarbanel 2009; Finkelstein 2010).

Chomsky points to international complicity in Israel’s ‘moral degeneration and probable ultimate destruction’, citing politicide, ‘murder of a nation – at our hands’ (2010: 18). We remain incapable of facing collective guilt regarding a mythological ‘chosen people’ with collective action. Jewish exceptionalism, with its combined overtones of chosen-ness and anti-semitism, is simultaneously (and typically) both a sui generis and typical problem, that binds and traps supporters and detractors. Yet a failed Jewish state would destabilize the entire Christian west with the weight of history and religion, weaponry and shame.

As mentioned, Australia took 224 years to admit that terra nullius was a legal fiction designed to legitimize the dispossession of traditional owners. Attending an Australian massacre commemoration with living witnesses instills the same horror as watching the 2008-09 Gaza massacre (Why weren’t we told? Who is to blame?). To match our desultory record, Israel could host a 2164 commemoration of the last recorded Gaza massacre in 2092.