I HIGHLY RECOMMEND THIS ARTICLE THOUGH I BELIEVE THAT THE LEVY REPORT MAY RESULT IN ANNEXATION OF THE TERRITORIES. GOLD DISAGREES. TED BELMAN
Looking back over the last two weeks, what appeared to hit a raw nerve with critics of the report of Justice Edmond Levy’s committee was not what it had to say about the specific issues for which it was appointed, like zoning and planning in the West Bank, but rather with how it dealt with the broader narrative for describing the Israeli-Palestinian conflict. This became evident in how the reaction focused on the report’s conclusion that “the classical laws of ‘occupation’ as set out in the relevant international conventions cannot be considered applicable to … Israel’s presence in Judea and Samaria.”
How did Justice Levy, who recently retired from Israel’s Supreme Court, reach this conclusion along with his two colleagues? They argued that the Israeli presence in the West Bank was unique, sui generis, because there was no previously recognized sovereign there when it was captured by the Israel Defense Forces during the Six-Day War in 1967. The Jordanian declaration of sovereignty in 1950 had been rejected by the Arab states and the international community, as a whole, except for Britain and Pakistan.
Moreover, as the Levy Report points out, the Jewish people still had residual historical and legal rights in the West Bank emanating from the British Mandate that were never cancelled, but rather were preserved by the U.N. Charter, under Article 80 — the famous “Palestine Clause” that was drafted, in part, to guarantee continuity with respect to Jewish rights from the League of Nations.
There were other issues that made the Israeli presence in the West Bank unique. With the advent of the Oslo Agreements in the 1990s, there was no longer an Israeli military government over the Palestinian population. Indeed, the famous 1949 Fourth Geneva Convention on occupied territories stipulates that an Occupying Power is bound to its terms “to the extent that such a Power exercises the function of government in such territory (Article 6).”
Yet the establishment of the Palestinian Authority in 1994, in accordance with the Oslo Accords, also made the situation complex: as a result, some functions of government were retained by the IDF, other functions were exercised by the Palestinians, and there were also shared powers. In other words, the situation on the ground in the West Bank was not black and white, which allowed moral judgments to be easily made about a continuing Israeli occupation. True, the Palestinians did not have an independent state, but they could not be considered to be under “occupation” when at the same time they were being ruled first by Yasser Arafat and then by his successor, Mahmoud Abbas.
The idea that the West Bank could not be simply characterized as “occupied” also did not diverge from traditional Israeli legal opinions. Israel’s former ambassador to the U.N., Chaim Herzog (who would later become Israel’s president), appeared in the General Assembly on October 26, 1977, and laid out Israel’s legal status in the territories with respect to the Fourth Geneva Convention on occupied territories. He stated: “In other words, Israel cannot be considered an ‘Occupying Power’ within the meaning of the Convention in any part of the former Palestine Mandate, including Judea and Samaria.”
It is instructive to see how the international community looks at far clearer cases of territories that came under military control of foreign forces as a result of armed conflict. On July 20, 1974, the Turkish Army invaded Cyprus, which had been an independent state since 1960, taking over 37 percent of the island. The Turkish zone declared its independence in 1983, but no state, except Turkey, recognized the new government.
How does most of the international community refer to the territory of Northern Cyprus? The fact of the matter is that they don’t label it an “occupation.” When the EU accepted Cyprus as a new member state in 2004, it prepared a memorandum explaining that the accession to the EU was suspended “in the area of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control.”
There is also the example of Western Sahara, which was taken over completely by the Moroccan Army in 1979. After Spain withdrew from the territory and a joint administration with Mauritania failed to emerge, Morocco viewed Western Sahara as Moroccan territory. Morocco’s claim was challenged by the Polisario, backed by Algeria. The International Court of Justice in The Hague formally rejected the Moroccan claim of sovereignty, recognizing the right of the people of Western Sahara to self-determination. In repeated resolutions in the U.N. over the future of Western Sahara, it was not called “occupied territory,” even though the Moroccan Army has been sitting on land beyond the borders of Morocco.
At the end of World War II, the Soviet Army invaded Japan and occupied the Kuril Islands, which had been previously Japanese territory. Here again, the Japanese Foreign Ministry’s recent paper on the Kuril Islands doesn’t even speak about ending the Russian occupation, but rather about the need to “reach a settlement of this unresolved issue of the Northern Territories.”
All three cases, Northern Cyprus, Western Sahara, and the Kuril Islands, are open and shut cases of foreign occupation under international law and yet in the diplomatic arena the term “occupation” is not formally applied to them. Ironically, in the case of the West Bank, where the Israeli presence is a far more complex legal issue, the term “occupation” has been uncritically applied, even by Israelis.
Thus the decision to use the term “occupation” appears to emanate as much from political considerations as it does from any legal analysis. For “occupation” is a term of opprobrium. In much of Europe, the term still invokes memories of the Nazi occupation of France. Those being constantly bombarded by the term “occupation” in Europe undoubtedly make subconscious links between Israeli behavior in the territories and the events of the Second World War. Indeed that is the intention, in many cases, of those adopting this language, despite the fact that such analogies are repulsive to anyone with the least bit of Jewish historical memory.
Nonetheless, pro-Palestinian groups, and their allies on the far left, use the charge of “occupation” as part of their rhetorical arsenal, along with “colonialist, apartheid state,” for waging political warfare against Israel. The charge of “occupation” has evolved into one of the most potent weapons in the delegitimization campaign against Israel.
It is noteworthy that the International Committee of the Red Cross (ICRC) in Geneva published a study on the subject of occupation in April 2012 that concluded that the term had unquestionably acquired a “pejorative connotation.” Experts attending the meetings of the ICRC recommended replacing the term with new legal nomenclature to get wider adherence to international humanitarian law by those who were occupying foreign territory but wanted to avoid the occupation label.
There are also well-meaning Israelis who call for an “end to the occupation” to build internal political support for a full Israeli withdrawal from the West Bank, by appealing to the conscience of Israelis who do not want to think of themselves as occupiers nor have the world community see them this way. But in making this call, its advocates take away from Israel the rights it acquired in U.N. Security Council 242 that did not require it to pull back to the pre-1967 lines, which have been regarded by most Israeli leaders from Rabin to Netanyahu as indefensible.
Levy’s committee has restored Israel’s legal narrative about its rights in the West Bank. There are those who charged that in rejecting the application of the term “occupation” to the Israeli presence in the West Bank, the Levy committee’s report will set the stage for eventual Israeli annexation of the territories. Of course these concerns are baseless. The report of the Levy committee says absolutely nothing about what political solution for the future of the West Bank is desirable.
Israel is not going to persuade its international critics to change their views on the status of the territories. Nonetheless its conclusions are still important for one diplomatic scenario, in particular: a negotiated end of the Israeli-Palestinian conflict in the future. For at the end of the day, there is a huge difference in how a compromise will look if Israel’s negotiating team comes to the peace table as “foreign occupiers,” who took someone else’s land, or if they come as a party that also has just territorial claims. The Levy Report is first of all for Israelis who need to understand their rights which unfortunately have been forgotten since the days of Abba Eban and Chaim Herzog.
Levy’s discourse is relevant for the Palestinian side in one important respect. If the Palestinians are constantly fed by the international community the “occupation” narrative, their propensity to consider making a real compromise, which is critical for any future agreement, will be close to nil. In fact, this false narrative only reinforces their mistaken belief in the delegitimization campaign against Israel as an alternative to seeking a negotiated settlement of the conflict. Rather than creating a setting for diplomacy to succeed, it only makes a real Middle Eastern peace more remote than ever.
@ Michael Devolin:
The Arabs act in the belief that they represent the vast majority (in numbers). They know that they over many years will prevail because even if all the Jews in the world immigrate to Israel, the Jews will still be a very small speck in an Arab region.And very gradually that thinking is beginning to pay off. Israel is now in the process of being badly deligitimised.
But of course only time willl tell.
@ yamit82:
come again.
@ Michael Devolin:
Game theory is predicated on Individuals and Nations who act according to their perceived self interests.
The Arabs seem to be an anomaly in that they seem to always act against their own self interests. 🙁
Felix Quigley Said:
Sorry, I dont understand which position of mine, and the UN, you are referring to.
Mr Ross
i challenge your position because I challenge the UN on this issue.
there is only ONE policy which is the policy the organization 4international will always have, and that is to go to fundamentals, not to huff and puff about the Un and its obsolete resolutions
1. That Jews must live alone as long as capitalism and its antisemiotism (growing) exists
2. That means Mr Ross no Arabs, no Scotch, no Irish etc.
3. Except as explicit guests
“As in all of science, game theory does not take sides in moral and value judgments. It analyzes strategically the behavior of opposing sides in a game they play against one another. The State of Israel is in the midst of one such game opposite its enemies. As in every game, the Arab-Israeli game involves interests that create the framework of the game and its rules.” –Prof. Yisrael Aumann
Mr. Ross, I read your comments on Prof. Aumann’s op-ed (‘Israel’s Conflict as Game Theory’) about “The Blackmailer’s Paradox.” Very impressive and to the point. You wrote, “israel does need to look into the history of the land swindle against them in order to see the rightness of their cause. Israelis do act as if they just happened on the scene as transients. The analogy is not 100% because reuben is actually in control of the suitcase and all the money which makes israels negotiating position even more ridiculous.” I totally agree with this view. The only people occupying the land Israel’s Muslim accusers claim as their own are Arab Muslims. The non-Jewish Western academia refuse to acknowledge the illegitmacy of a Muslim mosque built atop of Solomon’s [Jewish] Temple but, in contradistinction, also refuse to acknowledge the legitmacy of Jewish historical and legal claims to the entire land of Israel upon which was built, so many centuries ago, Solomon’s Temple. It is most evident that Israel and her Jewish population have done nothing to apologize for and are in no position to be “blackmailed” but rather should proceed militarily to checkmate and renounce outrightly their accusers, whether those sophists and propagandists on the side of Islam like it or not. There is no “smoking gun” here but only the invented hisory written by the Arab Muslim world and thereafter propagated by the Arab Muslim world as a “legitimate” contention. Nothing could be further from the truth.
“The Hague formally rejected the Moroccan claim of sovereignty, recognizing the right of the people of Western Sahara to self-determination.” Although this appears to the author to be a good example for not declaring Israel as an Occupier” it repeats the error of obfuscating the GLARING difference: 1) The LofN and UN charter specifically recognised that the Jews were to be encouraged to settle west of the Jordan river. Most accepted that the purpose was to reconstitute the Jewish homeland as a sovereign state. The perfidious british attempted to separate state soveriegnty from “jewish homeland” and this is what the enemies seize upon. However, none can dispute legally the right of jews to settle WEST OF THE JORDAN RIVER and the obligation of UN member states to “encourage” such settlement. The sovereignty issue should be separated so as not to obstruct the legal settlement of jews and the legal obligation of ANY UN MEMBER GOVT in control to encourage that settlement. Proceeding from jewish settlement will be jewish soveriegnty and the only legal question, at a future time, will be whether arab political rights were guaranteed(as they appear to be intentionally omitted as civil and religious rights are clearly included). It appears to me that legally Israel is a soverign state west of green line but that Israel is the successor of the mandate trust west of green line to the Jordan River. Therefore, Jews have a right to compel, within the Israeli court system and even in international courts, the Israel govt to fulfill its duty as the successor Trustee, or as a UN member nation in control of the territory, to fulfill the mandate and encourage Jewish settlement. No UNGA or UNSC resolution can cancel the right of the Jews to settle even if the STATE of Israel agrees to withdraw from the area because 1) the resolutions conflict with the prior international law, and 2) the sovereignty of the state of Israel does not cancel, restrict, limit or conflict with JEWISH settlement rights in area outside Israeli soveriegnty. There is no replacement of JEWISH rights by the creation of the state of Israel. In fact UNGA non binding partition resolution, the Jordanian military occupation and the apparent GOI negligence in “encouraging” Jeewihsh settlement neither waive nor cancel the legal rights. Perhaps it is advantageous not to annex because Israel can settle jews towards a future Israeli soverignty over the area without granting any political rights in the area. They will just be continuing the mandate in place of the british in the area. There are no greater legal claims in the area. I will keep beating the drum of separating Israeli sovereignty issues from legal binding jewish settlement rights because the legally binding settlement rights are the strongest case and are indisputable regardless of sovereignty.
I think this article is good but that it reflects what I believe is a continuing error in focus regarding the “west bank” or that area west of the jordan river that has not been granted Israeli sovereignty. I see this statement as a great error which continues to obfuscate the most importnat legal point
” But in making this call, its advocates take away from Israel the rights it acquired in U.N. Security Council 242 that did not require it to pull back to the pre-1967 lines, which have been regarded by most Israeli leaders from Rabin to Netanyahu as indefensible.” The rights of the state of Israel may be disputed between the green line and the jordan river but the rights of Jews to settle within the same area are INDISPUTABLE AND GUARANTEED IN THE INTERNATIONALLY LEGAL BINDING LofN MANDATE AND THE UN CHARTER AS SUCCESSOR!!!! The focus should be on the fulfillment of the mandate in settling Jews becuase that is a right that cannot be disputed in law. Whether as agent of the jewish people or as administrator/controller of the west bank the GOI is still legally bound to fulfill the mandate directive of jewish settlement(as opposed to extending Israeli sovereignty) The BINDING goal of the mandate was to reconstitute the jewish homeland in all areas west of the jordan river and has this has not yet been fulfilled east of the green line then that obligation,m still binding under the UN Charter should be immediately focused upon. It is clear legally that the purpose of Jewish settlement west of the jordan river was clearly stated to reconstitute the jewish homeland. Who decided that the legal area of jewish settlement was to be reduced to the area of Israeli soveriegnty. JOrdan and britain obstructed the settlement of jews but that obstruction cannot be construed to remove jewish settlement rights OR to remove the obligation of anyone in control of the territory(whether trustee successor, Jewish peoples agent or foreign occupier) to encourage jewish settlement as directed under UN Charter.. I laud the approach of attacking the monicker of occupier but the focus should be towards the legal settlement basis that has never been canceled under law and must reasonably be expected to exist in spite of the apparent negligence of the GOI to execute its obligation to encourage jewish settlement since the 67 war. The enemies of the jewish people use the red herring of occupation to cloud the minds of the jews and to focus their minds away from the right of settlement. The state of Israels sovereignty rights are intentionally mixed up with Jewish settlement rights. Although the mandate was unfulfilled in the area between Israels sovereignty and the area of “encouraged” jewish settlement there is actually no conflict of interest in that the intended goal was that jewish settlement is meant to achieve jewish sovereignty over the area with no intended political rights for the resident arabs(only civil and religious) This made sense as 77% of the palestine mandate territory originally designated as Jewish homeland became banned from jewish settlement at the same time thus creating a JEW FREE state of trans jordan. Focus on legally guaranteed jewish settlement rights AND on the legal obligation of UN members (under the UN charter) to “encourage” that settlement. The sovereignty issue is separate in that the soverignty was to proceed from the jewish settlement and agreed to be achieved by jewish settlement. Therefore, settling the area between the green line and the jordan river in order to achieve jewish sovereignty is TOTALLY LEGAL. Furthermore, it appears that as the administrator/controller, of the west bank, the GOI is legally bound to facilitate the jewish settlement not as violation of the GC but as a fulfillment of the still binding mandate Trust
The truth is the Arabs will never make peace with Israel.
There is nothing Israel could offer them, short of committing national suicide, that would get them to end the conflict.
At the end of day, this is one of those problems with no happy solution.
It’s “nil” either way – the same odds that the Levy committee has over the Koran and its genocidal Jew hating doctrine.