by Dr. Max Singer, April 28,2013
BESA Center Perspectives Paper No. 204
EXECUTIVE SUMMARY: Israeli advocates of the two-state solution should support the findings of the Levy Commission, which affirms Israel’s right to settle in the West Bank. Israel will thus be viewed as giving up its own territory in any future agreement. Israeli citizens should not deny their country’s rights in order to strengthen the argument for removing settlements.
Opponents of Israeli settlements in the West Bank and supporters of a two-state solution should support the Levy Commission’s affirmation of Israel’s rights in the territories. The Commission concluded that “Israelis have the legal right to settle in Judea and Samaria and the establishment of a settlement cannot, in and of itself, be considered illegal.” It did not say, however, that the settlements should stay where they are.
The objection made to many or all of the settlements is that they are thought to interfere with peace negotiations and/or block a two-state solution. These arguments are just as strong if the settlements are considered legal as they are if they are thought to be illegal; the question of legality is separate from that of prudence about Israel’s settlement policy. The Levy Commission didn’t claim that its findings about the legal status of settlements and Israel’s claims to Judea and Samaria meant that Israel should keep the settlements, nor did it reject the idea of transferring the bulk of Judea and Samaria to a Palestinian state. It also did not speak of the disputes about private ownership of particular pieces of land used for settlements.
There are two problems with the common assumption that one who feels strongly about restricting settlements and negotiating a two-state solution should strengthen his case by supporting the international position that the settlements are not just imprudent but also illegal. First, it is based on a falsehood; the settlements are not illegal. The director of the Israel Policy Forum (IPF) essentially conceded as much to Haaretz, while attacking the Levy Commission: “Ambassador Baker seems to have misunderstood the nature of our concerns, which stem from the added impediments the Levy report poses for achieving a diplomatic solution to the Israeli-Palestinian conflict – not the technical and legal reasoning used to arrive at its conclusions, which is irrelevant to our concern.” In other words, he said, the legal arguments of the Commission may be correct, but they make it harder to achieve what we think is the best diplomatic solution. The correct response to the Levy Commission for those who share the IPF’s concerns is to say – as many supporters of the Commission do – that even though the report is correct, it is not a reason to keep the settlements or to object to a Palestinian state.
The second problem is that rejection of the Levy report has the effect of helping the attack on Israel’s legitimacy. The report’s conclusion permits Israel to say, “Our settlements are legal, and we have a legal claim to the land, but because of our desire for peace we will agree to restrict settlements and try to negotiate a division of the land.” This is very different than Israel admitting that it had no right to make the settlements in the first place. Giving up land you own – or may own – to make peace is very different from giving up land that you took with no right. If Israel is seen as a thief who drops the stolen goods, the situation is different than if Israel is viewed as pursuing a compromise towards peace by relinquishing its claim to disputed property.
Israel has very little basis to resist any terms of an imposed international plan concerning the territories if it must admit that Judea and Samaria are “Palestinian land” to which it never had any legal claim, which it has been occupying only because it had the military strength to take it, and because it served security interests. There will be little international sympathy for Israel as an admitted thief.
Fortunately, Israel has not stolen anyone’s land. Even if it is ultimately decided that the way to achieve peace is for almost all of Judea and Samaria to become Palestine, it was not yet Palestinian land when Israel took it. Israel does not have to go into negotiations as a guilty party. The purpose and point of creating the Levy Commission to address the question of law was to enable Israel to stand up against those who want to treat Israel as a thief.
Mainstream Israelis who believe that Israel can only prevent its destruction by restricting or retreating from settlements should endorse the Levy Commission so that they can urge Israel’s government to demonstrate its commitment to peace by not standing on its legal rights, and so that Israel can go into negotiations as a self-respecting and lawful member of the international community. Loyal citizens of Israel should not deny Israel’s rights – and its fundamental moral position – in order to improve the argument for their diplomatic strategy.
Some advocates of Israeli withdrawal from the West Bank are so convinced that only such a withdrawal can save Israel that they are willing to brand Israel as a thief of Palestinian land if such a false brand is necessary to compel Israel to end the occupation. Unfortunately a byproduct of that strategy is that it undermines the legitimacy of Israel’s claim to its territory within the 1967 lines.
The Levy Commission – like many previous legal opinions – says that the League of Nations Mandate for Palestine, which was reaffirmed in the UN Charter, is still valid. The Mandate was an international decision to designate part of the former Ottoman Empire called Palestine as the Jewish homeland, and it specifically authorized Jewish settlement in all the land west of the Jordan River.
This Mandate is the legal authority for the Jewish state, and it applies equally to both sides of the 1967 lines. Anyone who denies its application to the West Bank denies its application to Tel Aviv and Haifa. While the Mandate doesn’t determine what the borders should be in the future, it does say that Israeli settlements were legal, however unwise they may have been, and however much they may now stand in the way of peace.
The previous Netanyahu administration created the Levy Commission because it thought it important to increase recognition of the legal basis of Israeli actions in Judea and Samaria. But in the face of attacks by settlement opponents the government hasn’t stood up for the Commission and its report. The government was right to appoint the Levy Commission. The new Netanyahu government should go one step further and adopt the Levy report, and challenge the myth that Israel stole Palestinian land.
Dr. Max Singer is a founder of the Hudson Institute and a senior research associate at the Begin-Sadat Center for Strategic Studies.
@ Bernard Ross:
Whether a layman or an attorney (or knowledgeable in law)you both have good common sense.
Just what the Israeli government needs.
I would even throw in my friend Yamit, he is not afraid to call a spade a spade. He lives and breaths Israel.
rongrand Said:
I agree that this should be the MO but it does not appear likely to happen.
rongrand Said:
thanks, but Mr. Brand is not only smart he is also knowledgeable in law, I am just a layman.
@ Bernard Ross:
@ Wallace Brand:
Trust me I wasn’t in any way shape or form being sarcastic you both pretty much have a handle on the subject matter.
There should be a resolution to all of this, one that recognizes the Jewish rights to the Holy Land.
I fear it will take a long time but in the meantime I would suggest Israel continue to build communities and above all do not give away an inch.
@ Bernard Ross: You are right, Mr. Ross. I had meant to say Maybe Netanyahu is right NOT to push etc. I regret the error in omitting the word “not”. .
@ rongrand:
Ron, we have no argument on your suggestion that we ought to take God’s word on it. There are in fact five alternative bases on which World Jewry can be found to have sovereignty over Palestine West of the Jordan River. Look at number 5.
1. The Principal War Powers recognition that the political rights to Palestine belonged to the Jews based on their historic association with Palestine in the San Remo Resolution and the League of Nations Mandate for Palestine. This claim is based on International Law.
2. The basis now claimed by the Israeli government. That Jordan was an illegal occupier so no one had sovereignty over Judea and Samaria as required in the 4th Hague Convention of 1907 so it is not “occupied territory” under “belligerent occupation” it is “disputed territory” and Israel has the better claim to it. This claim is based on International Law.
3. The historic view based on long standing custom of how a country gains sovereignty over an area: Assertion of independence and holding the ground against all comers. This is based on International law from long standing custom.
4. The Anglo-American Convention of 1922, expressly incorporating the Mandate for Palestine. This is based on the domestic law of the US and the UK as treaty law is recognized as domestic law in the United States.
5. The Old Testament Bible and the Quran. These both recognize the Jews as owning the political rights to Palestine. These show the Jewish rights based on Canon law.
@ Wallace Brand:
@ Bernard Ross:
Gentlemen, I’ll say one thing for sure. Your pretty smart guys and your talents are need in the Israeli government.
Wallace Brand Said:
this appears to be the crux of the situation: by not asserting legal rights Israel has subjected itself to the court of public opinion and lost mainly on the basis of “legal arguments”. Israel has allowed itself to be convicted by non-action. It is guilty because it does not contest. Furthermore, it appears that successive GOI’s have decided that Israel cannot win against the threatened global sanctions and therefore the Jewish people are again operating under the paradigm of “duress” where decisions are made according to threats and extortion. Under such a situation it is best to stall events, avoid conceding soveriegnty over land, until Israel is strong enough to withstand the threats. However, settlement could occur even while sovereignty is in abeyance if the PR and legal basis were focused upon.
Wallace Brand Said:
I am not aware that BB desires to annex. I agree with yu regarding the Levy Report because I believe that the legal avenue with the best chance os success relates to the rights of settlement which inure to the Jewish people. Even if Israel were to be adjudicated as an occupier it appears to me that this would not cancel Jewish” rights of settlement. Legally speaking aren’t the “Jewish” rights valid regardless of who is sovereign over the territory? I believe the lack of argumentation regarding Levy speaks to the strength of “Jewish” rights and the argumentation is not based in law. Even if the state of Israel did not wish to exercise any claim to YS, legally speaking, the “jewish people” would still be entitled to be encouraged to close settlement. In fact, legally speaking in theory, the UN should be responsible to appoint another trustee or to enforce and protect those rights. I believe that the weakest argument legally, and PR, that the detractors have is the right of Jewish settlement. This should be focused upon. Even with no progress in peace talks jewish settlement in YS is valid.
I still believe that suits brought against the Israeli govt. to compel the encouragement of Jewish settlement according to International law would be a first step, with the least risk, in moving back from the current legal and PR situation. It was just done in france so why not Israel. Further, the same suits should be brought against the 52 countries, and UN, which you mentioned regarding policies and libelous declarations that jewish settlement is illegal. I belive the key which destroys the GC red herring is “Jewish” as opposed to “Israeli”>
@ Wallace Brand:
Wallace your right on the money.
For argument sake let’s agree “Jews have G-d given rights to the Holy Land”
The world will be a much better place if the the Arabs and anti-Semites understand this once and for all.
What’s their problem??
Bernard Ross Said:
Israel has by and large lost the battle for public opinion by its wishy washy claim that the land is not “occupied”, it is “disputed” and Israel has the better claim. My conclusion is that it was not just disputed, it was “liberated” and its political rights belong to World Jewry — and that is not just a claim of one of the parties but it is res judicata. The Government of Israel is its agent for exercising sovereignty over Israel. I see no facts whatsoever that could give rise to a credible Arab claim under International Law. However, having lost public opinion, the Government of Israel is apparently afraid that its annexation would, because of world public opinion, have bad consequence for it. What they would be is not clear but the Government is not bold enough to want to find out. The International Court of Justice would have jurisdiction over the issue only if Israel submits to its jurisdiction. Israel would be crazy to submit to the jurisdiction of that kangaroo court on which its citizens are not permitted to sit as justices. To my aging recollection, the court that had jurisdiction over the League of Nations disputes is no longer in existence. The consequence of asserting the claim by annexation are not known but with Obama in office, Israel may not be supported in the security council. Under its charter, Article 80, the doctrine of acquired rights and the principle of estoppel I fail to see how the UN could gin up a reasonable case to cancel Israel’s rights but as it is now dominated by the OIC and countries in Africa, it need not based a decision on any reasonable case. So maybe Netanyahu is right to push for annexation now but he should push for adoption of the Levy report by the Knesset. However it is the Israelis who take the risk and the matter should be decided by them, not me. If the UN Security Council were to require any action such as to award statehood for the so called Palestinian people, then it seems to me that Netanyahu would likely take action to annex Judea and Samaria. It has already annexed East Jerusalem. The best time for it to have annexed Judea and Samaria was in 1967 or whenever it annexed Jerusalem.
What I find disturbing is the Arab world and its anti-Semitic tool the so called Palestinians relentless endeavor to divide Israel and it’s capital Jerusalem little by little.
They have complete support of Hamas the Iranian proxy as well as the liberal left media and the world anti-Semite leaders. Pressure from all sides.
In spite of all that has occurred, the return trip back to the Holy Land, the successful defense in 3 wars in spite of being vastly out numbered by their adversaries you begin to understand what is meant by Divine Intervention.
I am beginning to believe the real enemy or problem is in the leadership, a government that seems to bend with world opinion and the likes of the anti-Semite government leaders all of whom persuaded them to give up the Sinai and Gaza. A government of who is on first, whats on second and who care about third.
A government that refuses to allow its people to pray at their Temple, afraid to offend the very people who want to destroy them.
What this nation needs is another Moses. Lets hope and pray the patience of G-d is not worn thin. Divine Intervention is sorely needed.
Wallace Brand Said:
Is there any legal basis or precedent allowing the transfer of the west bank arabs to gaza after retaking it. Calling Gaza Palestine on the location of Phillistia would be more accurate.
reply 16 to rongrand in moderation
rongrand Said:
the GOI does not want to settle YS; If it did we would all know it.
@ Bernard Ross: Annexing Judea and Samaria would not automatically make those in the West Bank citizens of Israel with voting rights. They could be reguired to swear fealty to the state before getting citizenship. If they do not, they could be offered compensation to leave or if they don’t want to leave, they could remain as non-citizen permanent residents. In the event all agreed to swear fealty and became citizens, under the recent study of the Begin Sadat-Center according to former Ambassador Yoram Ettinger, the majority of the Jews would drop from 80% to 66%. That is because the Palestinian Authority statistics record one million more Arabs there than in fact reside there. Another alternative is proposed by Professor Mordechai Kedar. See PalestinianEmirates.com Gaza continues to commit acts which are a casus belli. If Gaza is retaken it could be given Home Rule with an oversight by Isrrael to ensure that no terrorist candidates or terrorist parties run for office.
At San Remo, the French wanted to change the savings clause in the proposed Mandate for Palestine to add “political right” to the civil and religious rights that are preserved for non-Jewish communities in Palestine when the Jews ultimately exercise sovereignty. The other parties declined to do so, so the French inserted a “process verbal”, a side letter that the others agreed to, stating in French, that the savings clause meant that the non-Jewish communities would not be required to surrender any of their rights. That was OK with the others because the Arabs in Palestine never had any political rights. They were never permitted any voice in the Ottoman Caliphate. They never had a capitol in Palestine. Giving the Arabs in Gaza home rule would satisfy the requirements of the League of Nations Mandate for Palestine. That same option could also be applied in Judea and Samaria but would not be necessary to preserve the Jewish majority even if it were annexed and all Arabs swore fealty to the state and became citizens.
Moderation is at it again. There is something definitely wrong when the moderation can hits every other comment. Its not space science, its screwed up. I can’t imagine what triggers it but its malfunctioning.
@ Wallace Brand:
@ Bernard Ross:
Wallace and Bernard, please no disrespect intended trust me.
The legal dissertations you both present are fine and they make sense to the educated. Having said that, the bottom line is the UN along with other anti-Semite government administrations are not going to pay attention as they have one agenda and it doesn’t favor Israel.
Israel needs to continue to build communities and move in every area of the Holy Land. I don’t see any government or body stopping them.
You both know Possession is 9/10 of the law.
Wallace Brand Said:
If it is “res judicata” then why is the Israeli govt afraid to annex AND to deny arabs voting rights in Israeli govt.? If the matter is settled then the arguments about demographics become irrelevant except regarding the arab presence in Israel as opposed to voting rights.
It is really odd how there are no Jews suing to re-establish the legal right to settle in YS and yet one jew gave 100 million to the obama campaign. It is also odd that those who are pro settlement appear to discount the legal approach although the minority left has been successful with it. To me the Jewish settlement right is akin to the US black civil rights which required adjudication to correct. Suing the Israeli govt seems to me the only way to seek justice and expose the legal facts to an ignorant public. It can also be a political tactic which demonstrates to the foreigners that there are legal pressures on the GOI to facilitate jewish settlement.
Thanks for your elaboration and detail on these issues.
@ Bernard Ross: My comment “res judicata” sums up what was said before it. The issue of who got which territories in Europe and whether the Arab people or the Jewish people would get the political rights to Palestine, Syria and Mesopotamia was was submitted to the Principal War Powers of WWI in Paris and was adjudicated in the Paris Peace talks and at the San Remo meeting. A decision on who got what in Europe was incorporated in the Versailles Treaty. The decision on who got Palestine, Mesopotamia and Syria was incorporated in the San Remo resolution and the mandates for Palestine, Syria and Mesopotamia. The San Remo agreement incorporated the Balfour Declaration by reference. If you examine and compare the three mandates, you will see that the Arab current inhabitants were beneficiaries of the political rights for Syria and Mesopotamia ultimately to have a legal interest when they were capable of exercising sovereignty. World Jewry got a beneficial interest in the political rights to Palestine, to mature into the legal rights when Jews were a majority of the population of Palestine and they were capable of exercising sovereignty there. See Article 22 of the League of Nations covenant, Part I of the Versailles Treaty. Until these events occurred the British had legal dominion over the political rights of Palestine and Mesopotamia and the French had legal dominion over the political rights over Syria. The political rights means the right to establish and maintain a government. Legal dominion over them as trustee, gave the trustee a right to legislate and administer the laws in the area subject to the trust. “Res judicata” means “the thing is settled” Dissatisfied with the outcome, the Arabs by threats of violence and actual violence continue to seek to change the decision of 1920. In 1922 they were able to get some 40% of the area back because the British repudiated their fiduciary obligations to the beneficiary, World Jewry, of the political rights to Palestine under their agreement to be a trustee. They put their own political interests, namely their relationship with the French, over their obligation to World Jewry. The 51 nations then in the League of Nations, and the United States,that had declined to become a member, a total of 52 nations, approved the recognition of these political rights and these rights are continued today under International Law by (1.) the doctrine of acquired rights that was later codified, (2.) Article 80 of the UN Charter that was written to preserve these rights, and (3.) the doctrine of estoppel under which the nations that previously approved recognition of these rights, are now estopped from contending they no longer recognize them.
@ Bernard Ross:
They should not have voting rights.
Over the years I have seen clubs and organizations taken over by a few characters who once were admitted slowly brought in their friends until their numbers controlled the voting and leadership.
Unfortunately no matter how you couch it the Arabs outnumber the Jews.
Not good.
#8 reply to rongrand in moderation
rongrand Said:
I agree, but this is what the Israelis have chosen from a wide range of choices. It doesn’t appear as if annexation or jewish settlement in YS is a priority.
Wallace Brand Said:
thank you for your comment. please explain this statement. Are you referring to arab voting rights in a jewish single state?
Bernard until Ted fixes the Moderation can (I see Yamit is experiencing the same problem) shame.
Well anyway in my previous comment I mentioned about Israel getting out of the UN (The US should likewise).
Anne will explain why Israel is so popular in the UN.
Oh my G-d, Bernard my post to you is in moderation. For goodness sake Ted hire someone to fix the damn spam can. Its annoying. PLEASE
@ Bernard Ross:
Say Bernard tell the folks here the two state solution is not a solution. A solution for who.
Listen Pals have no legitimate claim to the Holy Land, they and their supporters feel if they beat the drum long enough they will succeed in securing what is not theirs. They were no where around when G-d let the Israelite s to the Holy Land too many years before they became who they say they are.
One solution, One state, the sovereign Jewish Nation of Israel as it was intended.
Israel needs to continue to build communities throughout the Holy Land.
No doubt Israel needs new leadership, one who will stand for the Jewish rights to the Holy Land and one who will make sure none of it is given up to false claims.
Time also to get out of the UN (worthless body of criminal governments).
Time also to quite the drums.
The creation of the UNRWA by the West precedes Breznev peace process.
The competing claims of the Jews and the Arabs to Palestine were adjudicated by the Principal War Powers after WWI. The claims were made at the Paris Peace talks where the claims for European territory were also received and adjudicated. The decision on the European claims is the Versailles Treaty. The Principal War Powers resumed their work on the claims for Palestine, Syria and Mesopotamia in the Mideast at San Remo and made their decision on April 25, 1920 by adopting the British Balfour Policy. A more detailed version was the draft of the Mandate for Palestine which recognized Jewish ownership of the political rights to Palestine both East and West of the Jordan River — to the East, extending to the Hejaz Railroad and Arab claims for Syria and Mesopotamia. For British political relations with France, Churchill decided to truncate the lands that were recognized as Jewish in a conference in Cairo on March 21, 1921. The new Mandate draft with the Jewish rights as truncated in a new Article 25 was approved by the League of Nations in 1922 and also by the US that had declined membership — a total of 53 nations. In it the Jews got cisJordan, West of the Jordan and the Arabs got transJordan,, East of the Jordan River, now the country of Jordan. Since 1920 the Arabs in Palestine and elsewhere have used threats of violence and actual violence in an attempt to extort the Jewish political rights. Initially the rights in the Mandate were only beneficial rights which were to mature into legal rights when the population had a Jewish majority and the Jews were as capable of any modern European state in exercising sovereignty. (Both standards were met by 1950 following the abandonment of its trust by Britain in 1948). And in 1922 and thereafter the British violated their fiduciary obligations to World Jewry, the beneficiary of those rights. The worst violation, blocking Jewish Immigration was criticized in a ruling of the League’s Permanent Mandates Commission on the 1939 White Paper as unauthorized, and the League Council,the only body that had authority to modify the mandate under Article 27, never acted to do so. The British in White Papers of 1922, 1928, 1930 and especially that of 1939 violated the express terms of the trust contributing to the death of 6 million Jews. The obsessed Bevin continued to enforce this illegal policy against Holocaust survivors until May, 1948.
The Israelis are losing the battle for World public opinion because they claim at best that the West Bank is not “occupied” but it is “disputed” and they hint at a better Jewish claim in the dispute. The Levy report traverses the Arab claim of inalienable rights. I have written a 38 page article covering these matters that I am advised will appear in the Think-Israeld blog in their May-June edition. The world should know that in 1967 Israel “liberated” the so called West Bank from illegal Jordanian occupation and that these are still Jewish “Liberated” lands” whether or not the Israelis want to annex them. The so called “peace process” is a charade invented by Breznev who told Arafat that if he pretended to renounce violence and pretended to seek peace the West would shower him with gold and glory. It has. The issue of Arab or Jewish rights in the West Bank is “res judicata. To all those who criticize the Levy Report as a new right wing fabrication, let me point to an excellent article by Douglas Feith in 1993 reaching the same conclusion. Others reaching the same conclusion are Jacques Gauthier, Howard Grief, Salomon Benzimra, and Cynthia Wallace. If you look carefully at the facts there are three bases under International Law that favor the Jews, one under domestic law of the US and the UK, and one under Canon law in the Bible and the Koran.,
In other words: it is ok to swindle global jewry of their legal rights in YS as long as it furthers some percived interest of the state of israel. Another example of how the state of Israels interests conflict with the sole interest of global jewry in YS and how citizens and the state of Israel are willing to sellout the rights of global Jews in YS. If they want to withdraw they can do that but they should make it clear that they do not represent the rights and claims of the Jewish people but only those of the state of Israel.
Someone should be representing the rights of the Jewish people in this matter, it is evident that the state of Israel does not.