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EXECUTIVE SUMMARY: The Commission to Examine the Status of Building in Judea and Samaria (the “Levy report”) has drawn a flurry of overwrought criticism due to its inclusion of a section concerning the lawfulness of Israeli settlement activity. But the report’s argument is surprisingly modest in substance; it does little more than endorse the traditional official Israeli position that the Fourth Geneva Convention does not apply de jure to the West Bank, and in any event does not bar Israeli settlements. Some have argued that the Levy report is foolish politically, arguing that by asserting its legal rights, Israel will signal that it is unwilling to entertain “land for peace” compromises. This seems a doubtful thesis. Israel has asserted its legal rights to Jerusalem for decades, but yet repeatedly offered compromises on its rights in the city. What the Levy report has done is to reinvigorate the discussion of the legitimacy of Israel’s position under international law after many years in which Israel has been silent about its legal rights. That is a welcome development.
Earlier this month, Prime Minister Binyamin Netanyahu was presented with the report of the Commission to Examine the Status of Building in Judea and Samaria, headed by former Supreme Court Justice Edmond Levy (the “Levy report”). The report has drawn a flurry of overwrought criticism due to its inclusion of a section concerning the lawfulness of Israeli settlement activity.
In contrast with the misinformed and sometimes outright disingenuous criticism, the report’s discussion of the lawfulness of settlements is surprisingly modest in substance.
The report does little more than endorse the traditional official Israeli position that the Fourth Geneva Convention does not apply de jure to the West Bank, and in any event does not bar Israeli settlements. While the report’s analysis is far from comprehensive, it is more detailed and more persuasive than that usually offered by anti-settlement activists.
The Levy report adduces one of two fairly compelling reasons for concluding that the laws of belligerent occupation do not apply de jure to Israel’s presence in the West Bank.
One of the sine quibus non of belligerent occupation, as reaffirmed recently in an expert conference organized by the International Committee of the Red Cross, is that the occupation take place on foreign territory. While recent years have seen some debate on the meaning of foreign territory, considerable state practice supports the traditional view that captured territory is “foreign” only when another state has sovereignty. The Levy Commission is on solid ground in observing that neither Jordan nor any other foreign state had territorial sovereignty over the West Bank in 1967 and that the territory cannot therefore be “foreign” for purposes of the law of belligerent occupation.
Indeed, had the Levy Commission chosen to so argue, it could have argued cogently that Israel itself was already the lawful sovereign over the West Bank in 1967.
Unmentioned by the report, Israel’s peace agreement with Jordan constitutes a second reason for questioning the de jure application of the laws of belligerent occupation to the West Bank. As Yoram Dinstein wrote some time ago, the rules of belligerent occupation
cannot be applied to Israel’s presence in the West Bank “in light of the combined effect of … the Jordanian-Israeli Treaty of Peace of 1994 and the series of agreements with the Palestinians. There is simply no room for belligerent occupation in the absence of belligerence, namely, war.” While Dinstein qualified his observation by holding several idiosyncratic views regarding the definition of occupation and the status of the Palestinians, as well as by joining a small group of legal scholars who believe in a “post belligerent occupation” that shares many of the rules of belligerent occupation, the majority position is still clearly that the rules of belligerent occupation do not apply to an agreed-upon peacetime presence.
On settlements, the Levy report likewise adduces several strong arguments to the effect that even if the laws of belligerent occupation applied to Israel’s presence in the West Bank, the Fourth Geneva Convention poses no bar to the kinds of actions that are subsumed under the term “settlement activities.”
The Fourth Geneva Convention forbids “transfers” and “deportations” by the occupying state of parts of its population into occupied territory, but not “settlements.”
Officials of the state of Israel have provided services to settlers and sometimes encouraged them, but the state of Israel has not transferred any Israeli to the West Bank against his or her will. In fact, as even anti-settlement activists like Talia Sasson acknowledge, “there was never a considered, ordered decision by the state of Israel, by any Israeli government” on settlements. While some governments of Israel have favored the physical expansion of settlements or the increase of their population, settlement growth has been driven by the preferences of private citizens not by official Israeli population transfers. There is no precedent for any other state being adjudged to have violated the Fourth Geneva Convention simply on the basis of permitting or facilitating private preferences in the way Israel has done. Indeed, this is the reason that the Arab states sought to redefine the bar on “transfers” in international law by including a crime of “indirect” transfers in the Rome Statute creating the International Criminal Court. However, Israel is not a party to the Rome Statute and it is therefore not bound by the alternative, more restrictive standard.
The Levy Commission notes that even if facilitating private Jewish residential preferences in the West Bank were otherwise suspect “transfers,” sui generis rules apply to the area. Article 6 of the Mandate of Palestine demands “encourage[ment], in cooperation with the Jewish Agency … [of] close settlement by Jews on the land, including State lands…” As the late Eugene Rostow, one-time dean of Yale Law School, noted, this command is preserved by article 80 of the U.N. Charter, and, if the West Bank is under belligerent occupation, by article 43 of the Hague Regulations.
Additionally, if, as Israel’s critics contend, the International Covenant on Civil and Political Rights applies to Israeli actions in the West Bank, articles 3, 12 and 26 of the Covenant lend urgency to Israeli efforts to protect Jewish housing rights in the West Bank in light of the Palestinian Authority death penalty for land sales to Jews coupled with senior Palestinian officials’ open call for a Jew-free state of Palestine.
Talia Sasson, author of her own controversial 2005 report on outposts, has criticized the Commission on the grounds that its conclusions are contradicted by Israeli Supreme Court rulings. But contrary to Sasson’s assertions, while the Supreme Court has adjudicated cases on the basis of Israel’s voluntary assumption of selected duties of a belligerent occupant, the Court has never ruled that the Fourth Geneva Convention applies de jure to the West Bank.
In opposing the Levy report, Aeyal Gross and David Kretzmer have claimed that if the laws of belligerent occupation do not apply de jure to the West Bank, Israel lacked the authority to empower a military commander to undertake actions such as seizing property in the territory. However, Gross and Kretzmer err. Israel’s administrative law determines the powers given to an Israeli military commander, not international law, and there is nothing to prevent Israel granting various powers to its commander in the
West Bank, in the absence of a de jure belligerent occupation. History supplies more extreme examples: the United States applied full military regimes to defeated Confederate states after the civil war, and to Puerto Rico following a peace treaty with Spain, even though the states were American territory and there was clearly no de jure belligerent occupation.
Some have argued that the Levy report is foolish politically, arguing that by asserting its legal rights, Israel will signal that it is unwilling to entertain “land for peace” compromises. This seems a doubtful thesis. Israel has asserted its legal rights to Jerusalem for decades, but yet repeatedly offered compromises on its rights in the city.
Others have objected that the Levy report’s conclusions can be disputed by international jurists, including by a controversial and non-binding advisory opinion of the International Court of Justice. It is true that like many legal controversies, the questions addressed by the Levy Commission are capable of being analyzed in a number of ways. The Levy Commission’s conclusions are logical applications of reasonable understandings of the rules in an area where no authoritative resolution of the dispute has yet been rendered.
The Levy report has reinvigorated the discussion of the legitimacy of Israel’s position under international law after many years in which Israel has been silent about its legal rights. That is a welcome development.
Avi Bell is a professor in the Rackman Faculty of Law at Bar-Ilan University and the University of San Diego School of Law.
BESA Perspectives is published through the generosity of the Greg Rosshandler Family
I disagree with Professor Bell. I think the Levy Report went further than existing Government of Israel claims. The GOI claims are based on facts occurring in 1948 and thereafter. These are Jordan’s aggressive war against the Jews in 1948 and the liberation of Judea and Samaria and East Jerusalem in 1967 in a defensive war.. But the Levy Report relies instead, as it should, on the 1920 San Remo agreement based on the seminal research of Howard Grief. My own view varies slightly from that of Grief. I believe that World Jewry received not the legal interest in the political right to sovereignty in 1920 but only a beneficial interest. It was intended that the legal interest to sovereignty was not to vest until the Jews had attained a population majority in Palestine. At the time of the framing of the Balfour Declaration, while the Jews had had a population plurality in Jerusalem since 1845 and a majority since 1863, it had only 60,000 out of 600,000 total population in the entire country. Many opposed the plan to give the Jews exclusive political rights to the country when they had only a 10% minority. Was that wrong? Later, the French gave the Alawites sovereignty over Syria and look at the bloodshed now. A memo of the British Foreign Office written by Arnold Toynebee and Lewis Namier said that they agreed in concept with the antidemocratic view, but as applied to the Balfour policy it was “imaginary”. That is because the political rights would not vest until the Jews had attained a majority population and were ready to exercise sovereignty just as any modern European nation state.
This view also shows that as trustee, England had a fiduciary responsibility that it abused by 1. Its 1922 White Paper in which Churchill claimed that the National Home (that was to be until a population majority was achieved by the hard work of the Jews) would not necessarily cover all of Palestine. Of course that is belied by the former memo of the British Foreign office as to what had been contemplated It they had wanted to give the Jews a part of Palestine, they could have given them metropolitan Jerusalem with sovereignty vesting immediately.
The fiduciary relationship helps in that it can be shown that England acted in its 19922, and 1939 White Papers and in its administration of its trust for the purpose of securing its own political interests rather than the interest of the beneficiary of the trust res and ward of England’s guardianship, namely World Jewry. The mandate was drafted pursuant to Article 22 of the League Covenant or charter that shows that it was built on the British legal concepts of the trust and guardianship. It was in order to solve its problems with the French under the Sykes Picot agreement that led it to first temporarily suspend close settlement on the land of Jewish settlers in TransJordan, and then a few years later, get the League to draft a new mandate for TransJordan in which Abdullah and his Hashemite tribe were to be granted political rights to land East of the Jordan.
2. In the Sykes Picot agreement, the French were to have Syria in their sphere of influence. But after the war, England installed Feisa, son of Hussein (of the McMahon Hussein correspondence) on the throne of Syria. After the Battle of Maysaun, the French deposed him. Abdullah, his brother, marched his tribe from the Hejaz to Eastern Palestine and made ready to do battle with the French. It was to solve this political problem that Churchill made two moves. He installed Feisal as King of Iraq, and he gave Eastern Palestine to Abdullah. This was a clear violation of the mandate that prohibited cession of any land to a foreign power. In the 1939 White Paper, Britain again served its own interests. It wanted to favor the Arabs. Its Navy was heavily dependent on oil and it wanted oil from the Middle East. So it blocked Jewish immigration from Israel even though the mandate clearly required that it facilitate immigration. This was on the poor excuse that the absorbative capacity for new immigration was lacking.
In 1948, the Jews still only had about one third of the population but by 1950 they clearly had a majority created largely by 700,000 Arabs fleeing before they saw a single Jewish soldier, and the immigration of many Sephardic Jews from Middle Eastern countries that had driven them out permitting them to leave only without any of their property, real, personal, and intangible. It seems to me that in the 1948-1950 period Israel had unmistakeable sovereignty over the area assigned to it by the UN and as an agent for World Jewry, the trust res devolved to it so it could legitimately exercise sovereignty in areas outside the part designated by the UN for Israel. It is good that it did because it defended Jerrusalem against attack, not the UN who had assigned it at least temporarily to themselves. Jews defended it with their blood and treasure against aggressors — that is historically how sovereignty was gained.
A demand for the US govt and barack Hussein Obama that the US fulfill its obligations as guarantor to the treaty of San Remo and as signatory to the UN Charter to cease and desist in all statements and actions which contravene the treaties and to facilitate and “encourage the settlement of Jews west of the JOrdan river” according to treaties signed by the US and to facilitate the state of Israel to “encourage the settlement of Jews west of the Jordan River” in Israels capacity as Administrator of the relevant territories. I believe that this demand can be legally made by any member of the collective class of Jewry and by any party to the relevant treaties and organizations. The bringing of this suit, or demand, will shine a light on Obama govt. at pre-election time.
The state of Israel should not only fulfill its own obligations, to the Jewish people, under international law to “encourage the settlement of Jews west of the Jordan River” but it should remain in charge of administrating the relevant territory where this obligation has gone unfulfilled until the mandate is fulfilled. The basis for this is that ALL the guarantors have breached their duties in this regard and more specifically the UK in recognising JOrdans sovereignty during its occupation of the west bank while not demanding of JOrdan that it settles the Jews. Also, Jordan as administrator and Occupier was obligated to fulfill the mandate and breached its duty. Within the UN body,only the state of Israel has demonstrated any level of fulfillment of the binding obligation and duty. However, the state of Israel has also been derelict in its obligation and duties and should therefore adopt an AFFIRMATIVE ACTION PROGRAM to settle Jews on a fast track basis in order to mitigate past damage of the breaches and in order to restore justice to the damaged rights of the Jewish People. Affirmative action programs are a globally accepted method for restoring Justice to the damaged rights of collective classes of peoples, SO WHY NOT THE JEWS??? As part of such a program I suggest a US style Homestead act which gives free land grants to Jewish people on a first serve basis beginning with a race similar to the Land Rush in the US 1800’s.SO WHY NOT FOR THE JEWS TOO??? On your mark, get set, GO!
I want to add that demanding the fulfillment of guarantees and obligations of the various signatories towards the JEWISH PEOPLE will expose world hypocrisy. How can they be seen to “encourage settlement of Jews WEST OF JORDAN RIVER”, as obligated by treaties and Charters, and at the same time demanding Jews leave west bank??? It will be shown to be absurd and the end of the topsy turvy double standards will begin.
this is because it focuses on Israeli state rights rather than the internationally guaranteed rights of the Jewish people.
This is a very good analyses and it is a pleasure to see the shift to demanding rights of settlement rather than defense against occupation charges. It is my continuing view that the emphasis should be focused on internationally guaranteed JEWISH RIGHTS TO SETTLE WEST OF JORDAN RIVER rather than discussions of the STATE of Israel’s obligations as bellligerent or non belligerent occupier. The only relevance of the state of Israel to Jewish settlement which should be pursued is its duty and obligation as Administrator and/or Mandate Trustee Successor to Britain and/or Successor Agent of the Jewish People to encourage the settlement of Jews west of the Jordan River according to UN Charter and its relevant antecedents. To separate Jewish rights from state of Israel issues is to allow the pursuing of fulfillment of guarantees and obligations of signatories to San Remo, LofN Mandate and UN Charter. This means the “JEWISH PEOPLE” as a collective class demanding of the US, EU, UN etc the fulfillment of their guarantees and obligations under binding international treaties and laws. This will disallow the red herrings, which blur Jewish rights and international relevant obligations,from muddying the waters which are actually quite clear regarding the rights of the jewish people. Israel can only demand signatories and guarantors obligation fulfillment if it claims to be the successor agent of the Jewish people. It can however move to fulfill its own obligations to settle Jews as administrator of the territories or as Successor Trustee of the mandate from Britain. IN any case it is mote advantageous that the detractors are seen to be denying the rights of the Jewish people rather than impeding an occupying power. In any case the discussion and narrative are beginning to move in the right directin and kudos to Ted for fanning the flames of claimg rights. Now it is time to begin to demand the main powers to fulfill their internationally, legal binding obligations to the Jewish people.