Whether or not its recommendations are accepted and implemented, the report is a turning point in how Israel and hopefully the international community understand the critical question: whose land? Photo: Marc Israel Sellem For more than four decades Israel’s acquisition of Judea, Samaria and Gaza in the 1967 Six Day War has been portrayed by those who oppose the right of Jews to settle these areas as “illegal” and “immoral.” Some include eastern Jerusalem and the Golan as well.
These prominent politicians, jurists, former and serving military officers, literati and media personalities represent a small but powerful elite that has shaped government policy. A distinguished committee of experts commissioned by Prime Minister Binyamin Netanyahu and led by recently retired High Court justice Edmund Levy has finally broken that ideological hegemony.
Their report is the first authoritative and official opinion on Israel’s legal right to Judea and Samaria.
This breakthrough sets the record straight. Concepts that many have taken for granted, like “the occupation of Palestinian territory is illegal,” have been rendered myths.
A setback for the international community – especially the UN and the ICRC – which regard this designation as sacrosanct, this report not only presented Israel’s unique legal claims, it also recommended that the Israeli government – once and for all – establish its policy and position. Without referring to it specifically, the report raised the big question: who has sovereignty in the disputed area?
CONTRARY TO accepted notions that Israel is in “belligerent occupation” of territories that do not belong to her, and that such occupation “violates international and humanitarian law” and the “rights of Palestinians,” this report strikes a major blow to the “two states for two peoples” position and therefore to the misconceptions that formed the basis of the Oslo Accords and the “peace process.”
The report decisively ends the delusion that Israel will withdraw to the 1949 Armistice Lines, which would essentially be an act of national suicide.
The report is breathtaking in the scope of its critique of Israeli policy.
For decades the government of Israel has failed to respond effectively, accurately and responsibly to the charge that “Israel has stolen Palestinian land.”
The Foreign Ministry has been especially negligent, preferring ambiguity and nuance instead of clearly stating Israel’s rights in the areas acquired in 1967.
This failure, led by prominent Israeli politicians and media, created a mindset that led to the Oslo Accords, the acceptance of the PLO’s legitimacy and the establishment of the Palestinian Authority. While transferring control over millions of Arabs to the PA has advantages, it also implied Israel’s tacit agreement that Judea, Samaria and Gaza were “illegally occupied” and should become a second Arab Palestinian state.
This misconception was primarily the fault of Israeli leaders who sought to trade “land for peace” with Jordan, Syria and Egypt. Arab leaders rejected this offer, especially after the rise of the PLO in the 1970s, its campaigns of terror and its acceptance and encouragement by the UN. But Israeli policy did not change. Even as new and renewed Jewish communities were built in newly acquired areas, a process of settlement that received support from both major parties, Labor and Likud, Israeli government policy remained coy, hoping to make a deal and ideologically driven.
By the time of the Oslo Accords, however, the process of settlement was irreversible. The international momentum on behalf of Palestinians and a Palestinian state had begun during the early 1970s when the ICRC and the UN declared that Israel had violated the the Fourth Geneva Convention, that its occupation was illegal and that any Jewish presence there was prohibited. Supported by the UN and foreign governments, the PLO laid the foundations for its diplomatic assault on Israel.
Faced with this opposition and increasing Palestinian terrorism, Israel ducked for cover. Hoping that concessions would bring conciliation and international approval, Israel accepted the misconceptions of “land for peace,” “illegal occupation,” and “the two state solution.” This became the basis of Israeli policy – and basically still is.
The mechanism by which Israel legitimates this policy is its application of military law to Judea and Samaria, “Emergency Regulations” enacted by the British during their Mandate to deal with Arab terrorism.
Essentially a form of military dictatorship by the defense minister, this system is completely at odds with any notions of democracy.
Originally intended to deal with “security problems,” Israel’s military administration also decides land disputes and civilian issues for which it is ill-equipped and unprepared.
In addition, Israel’s primary judicial institutions share in this anomaly.
The offices of the state prosecutor, attorney general, civil administration and High Court along with IDF legal advisers have been compromised by officials with a political (anti-settlement) agenda. Theirs is a system tightly controlled by those inside, impervious to criticism, that makes and carries out decisions affecting Israeli citizens without due process.
Justice Levy’s report, therefore, has important implications for a much wider policy review, especially regarding the sovereignty of the Jewish people in the Land of Israel.
Whether or not its recommendations are accepted and implemented, the report is a turning point in how Israel and hopefully the international community understand the critical question: whose land?
The author is a PhD historian, writer and journalist.
@ Wallace Edward Brand:I wanted to add that the real problem is first to educate the Israeli and Jewish population and govt and then to educate the world. It is the Israeli govt that is the cause of the issue by trading its arab demographic fears for jewish settlement rights. The lack of a solution at this time to that issue does not allow the GOI to legally breach its duties. By bringing actions against the Israeli govt focusing on the jewish rights and mandate trust obligations, separate from the GC, the populations will have the light shone on the real issues and a forum will automatically be granted to the Jewish settlement rights and their perceived conflict of interest with Israeli politicians.
Wallace Edward Brand Said:
I agree. However, I have a problem with the focus of the Levy report and successive Israeli govt positions and perspectives. The levy report focuses on the GC and issues of occupation and soveriegnty whereas I think it would be in Jewish interests to focus on the embedded rights of Jews to settle west of the jordan river. This perspective would allow the bringing of suits to compel Israel to fulfill its mandatory trust obligations to settle Jews regardless of its own perceived interests that settling jews will endanger its state interests. This perspective is a conflict of interest with that of the mandate duties. In my view Israel is currently sovereign west of the green line and is the inheritor of the mandatory trust on the west bank. Therefore both duties can be performed without conflict. I do not see its negotiations towards acquiring, or giving up, sovereignty over the west bank to be relevant to its duty as the mandate trust successor: that duty being to encourage settlement of Jews west of the jordan river. Israel could fulfill its duties by settling jews and still negotiate agreements with the arabs. However, it would have to take the political rights of the west bank Jews into consideration plus the arab civil and religious rights. By separating the israeli sovereignty issue from the mandate duty issue the argument confusing GC occupational accusations become voided and the issue becomes one of Jewish settlement rights embedded in UN charter. There does not have to be a final peace agreement in order to proceed on the settlement rights. These rights exist regardless of who is sovereign in the area west of Jordan River.
“For decades the government of Israel has failed to respond effectively, accurately and responsibly to the charge that “Israel has stolen Palestinian land.” Nor was the response to this view permitted into the so called free and open marketplace of ideas. http://israelagainstterror.blogspot.com/2012/06/salubrius-responds-to-eli-hertz-myths.html
On the positive side, all American Presidents between Carter and Obama took the position that the settlements were not illegal but should be discouraged so as to encourage the useless settlement discussions. And both UK and US domestic law provided the rule of the Levy opinion through the Anglo American Treaty of 1924.
Now is the time to reverse this inactivity and educate the world.
@ Bernard Ross:
Bernard, the slew of UNGA Resolutions which culminated in Res. 3236 are in direct collision with Israel’s legal rights. It is THAT important. Rescinding it is not, as you put it, a “supplication”, but a demand, as was successfully done previously for UNGA Res. 3379.
As to the notion you raised about dissociating sovereignty from Jewish settlement, I addressed that question in another thread.
Salomon Benzimra Said:
Perhaps my English is poor: I am saying that because the UN obviously repeatedly violates its own Charter in relation to Israel, I consider supplications to be futile even if negative resolutions are rescinded. What was achieved by the repeal of the Zionism is racism resolution? All the energy put into defending the status quo would be better spent in defending a new paradigm where Israel facilitates Jewish settlement in accordance with the UN Charter, and in spite of UN abrogation, and annexes Judea/Samaria. These do not have to be done simultaneously and I believe Israel should first facilitate Jewish settlement everywhere west of the Jordan river as this appears to me to be a still legally binding obligation of the UN Charter and it would be up to others to show where those Jewish rights were rescinded. In fact,to demonstrate that Jews, as opposed to Israelis, still possess these rights it could encourage non Israeli Jews to settle by giving free land grants as the US Homestead Act did. The annexation would be a separate issue regarding arguments of state sovereignty which should not cloud separate arguments concerning Jewish settlement rights(unless you believe that the creation of the state of Israel rescinded or reduced the settlement rights of world jewry). The arguments of the Geneva convention would be irrelevant to jewish settlement rights as “jews” would not be an occupying Nation transferring in its nationals even if Israel were deemed to be an occupying power. In fact why wouldn’t an occupying power be obligated to observe and facilitate the UN charter stated aims? As it stands now the main argument of the Geneva Conventions will continue to be questioned by the international community whereas what can they argue regarding the obligation by UN memeber states to observe the charter by “encouraging” the jewish settlement west of the Jordan river, what legal clauses could they quote?
@ Bernard Ross:
Bernard, I detect a contradiction in what you wrote:
The present “UN mafia” clearly no longer abides by its Charter. The slew of UNGA Resolutions, culminating in Res. 3236, attest to that. These resolutions have shaped public opinion ever since, in flagrant violation of the UN Charter. But in the same way as Israel was successful in rescinding UNGA Resolution 3379 (“Zionism = Racism”) there is no reason not to undertake a similar effort against UNGA Res. 3236.
The two “worldviews” are incompatible: the lawful Israel’s title of sovereignty clashes against the fabricated falsehoods enunciated in UNGA Res. 3236. Sane people cannot entertain this kind of cognitive dissonance. So, the assertion of Israel’s sovereign rights must go hand in hand with the dismantling of the opposite, fake construct.
In spite of Western antisemitism (including many leftist Jews)Israel needs to state publically where she stands and why and act accordingly. Let the rest of the world disprove Israel position in the court of law.
Salomon Benzimra Said:
I do not agree,as the UN is well aware of its obligations under the UN charter legally binding it to observe the League of Nations mandate. Petitioning the mafia UN is futile and energy wasting. Israel should act unilaterally to enforce the prior laws it has breached in that it has, like JOrdan, obstructed Jewish settlement in violation of International law. Furthermore, non Israel Jewish organizations should demand Of Israel to reverse obstructionist policy and facilitate the “encouragement” as mandated. The cause of Israels problems is that it has a conflict of interest in that it has breached the rights of Jews in furtherance of its perceived self interest(not wanting to absorb the arabs as Israeli citizens). However, separate facilitation of Jewish settlement rights can legally proceed without reference to claims of israeli sovereignty or negotiations. Any arguments of Israeli agency for the Jewish people is breached by their obvious conflict of interest resulting in obvious obstruction of Jewish settlement. Non Israeli Jewish settlement would also mean that negotiations of sovereignty and interests would be between 3 parties: arabs, israel and separately the jews. In order for Jewish rights to be realized there must be a legal separation of those rights from israeli rights. Arguments regarding Israeli occupation, sovereignty, GC, etc. will have no bearing on jewish settlement. Even Jordan was obligated legally to encourage Jewish settlement rights and they are no more guilty of the breach than the GOI who may have violated a fiduciary trust to world jewry if they have agency.
@ terence There aren’t a majority of Israeli’s who have bothered to look through the relevant history and controlling law. Those who have, find their opinions fully vindicated by Judge Levy’s report.
See: Howard Grief, Legal Foundations and Boundaries of Israel under International Law, Salomon Benzimra,The Jewish People’s Rights to the Land of Israel, and my own look at http://israelagainstterror.blogspot.com/2012/06/salubrius-responds-to-eli-hertz-myths.html
@ Salomon Benzimra:
From the link you provided, Salomon,
I couldn’t put it better than that. The world has gone mad. They’ve rejected the counsel of God, freely available to them, and are reaping the fruit of their foolishness. God help the saints.
It is even worse: The UN (through its several General Assembly resolutions) views Israel as an “imperialist, colonial power” which deprives the Palestinians of their “right to self-determination in Palestine.”
To destroy this blatant incompatibility, we must attack the UN-supported Palestinian narrative of falsehoods, and a good way to start would be to launch a campaign demanding the abrogation of UNGA Resolution 3236, in the same way as Resolution 3379 (“Zionism = Racism”) was rescinded in 1991 after it had polluted the international arena for 16 years
@ terence:
They are not the majority in Area C, which comprises over half the area of Judea and Samaria. Even in Areas A and B, their local majority does not entitle them to independence, any more than the Black majority in the District of Columbia entitles them to independence.
Israel has been consistently criticized for having an “apartheid” system that has one system of laws for the Arabs in J & S, and another for the Jews. Annexation of the entire area would obviate these international criticisms. If that doesn’t bring “peace”, Israel can at least say they have done everything possible to ensure equality and the rule of law. The Arab MINORITY can then either accept the situation, or emigrate.
Classic case of wishful thinking. The world community, America, the Arab and African states and most importantly the Palestinians who comprise a majority of inhabitants on the ground, are not buying. There isn’t even a majority of Israelis, in or out of the knesset, who are on board.