The West Bank is not “occupied territory” and outposts considered illegal should be immediately legitimized. These were two of the findings of the Levy Commission headed by former Israeli Supreme Court Justice Edmund Levy. English As expected, the Levy Report came under immediate fire – not only from US Ambassador Susan Rice and various EU government spokespeople who declared that its conclusions violated international law, but also from within certain American Jewish quarters. The very next day, the Israel Policy Forum, consisting of leading US rabbis and community leaders, penned a pointed response to Prime Minister Netanyahu Israel Policy Forum asserting that the report imperils Israel’s international standing. Instead of “political maneuvering”, the letter stated, what was needed was “diplomatic and political leadership” to assure the international community of Israel’s stalwart commitment to a two-state solution. By affirming Israel’s legal and historic rights and claims to the West Bank, they wrote, the Levy Report undermines that commitment. Prime Minister Netanyahu, therefore, must prevent its adoption.
Taking umbrage with the tone and content of the letter, Ambassador Alan Baker, former Israel Ambassador to Canada, former legal advisor to Israel’s Ministry of Foreign Affairs, and a member of the three-person Levy Commission, accused the Forum of not reading the report and, instead, basing its conclusions on “selective media reports”. Alan Baker Response The report, he claimed, does not imperil the two-state solution. On the contrary – despite Israel’s legal right to retain and settle all public lands in the West Bank (as long as it’s done in conformance with the governing rules and regulations), the land’s final status, clearly acknowledged in the report, will be negotiated within the context of a peace agreement. The bulk of the report, he pointed out, comprises of administrative recommendations concerning settlement issues that have plagued the courts for years. The report, in fact, stresses the need to respect the genuine land-ownership rights of the Palestinians “in accordance with all accepted humanitarian norms and principles of justice and due process,” Baker writes.
In asserting Israel’s legitimate claims and rights to land the international community, for the most part, avers to be “occupied” how far afield did the Levy Report go from previously held Israeli positions? According to BESA’s Prof. Avi Bell, it has remained within the ballpark. In his article “Levy Report: Reinvigorating Debate on Israel’s Rights” he notes that the Levy Report, whose prime purpose was to examine the status of building in the West Bank and Samaria and nothing more, merely endorses the “traditional Israeli position that the Fourth Geneva Convention [that addresses the responsibilities of an occupying state towards its conquered populace] does not apply de jure to the "West Bank", and, in any event, does not bar Israeli settlements.”
Equally inapplicable, for a variety of reasons, are the rules of “belligerent occupation” generally attributed to Israel’s status within the West Bank. A recent International Committee of the Red Cross Conference affirmed that belligerent occupation only applies to territory that was sovereign upon capture – clearly not the case here. As well, the 1994 peace treaty between Jordan and Israel and agreements between Israel and the Palestinians has done away with a state of belligerency between them – namely war. As such, Bell concludes, settlement-building is not in violation of international law.
David Kretzmer, in his article “Bombshell for the settlement enterprise in Levy Report” disagrees. He writes, “In reaching this conclusion the report totally ignores both the position that the governments of Israel have taken before the Supreme Court for 45 years and the hundreds of judgments of the Court on this very question.” He cites a 2005 ruling wherein 10 judges, upon affirming the legality of the Gaza disengagement, state, “According to the legal outlook of all Israel’s governments as presented to this court – an outlook that has always been accepted by the Supreme Court – these areas are held by Israel by way of belligerent occupation….The legal regime that applies there is determined by the rules of public international law and especially the rules relating to belligerent occupation.”
According to Kretzmer, the judges, that included Chief Justice Aharon Barak, went even further asserting that the territories are not a part of Israel. Israel can’t have it both ways, Kretzmer argues. If the territories are not part of Israel, they can only be settled by right of belligerent occupation. If they are part of Israel, Israel breaches international law by not conferring upon the Palestinians social equality and citizenship.
Ambassador Baker vigorously disputes Kretzmer’s assertions by raising subtle, yet significant distinctions regarding the legalities associated with belligerent occupation. Alan Baker Letter He writes, “The legal situation has been summarized by the international lawyer Prof. Nathan Lerner in an article on “Human Rights, Humanitarian Law and the Occupied Territories” published in the Palestine-Israel Journal of Politics, Economics and Culture in 2003 as follows:
“The official Israeli position in this regard was first stated in 1971 by the then Attorney General Meir Shamgar, who took the view that the Fourth Geneva Convention does not apply to what was then called the “administered territories” because of the character of those territories. Still, the attorney-general announced that the Israeli government would act, de facto, in accordance with the humanitarian rules of the Hague Regulations and the conventions. The IDF forces were required to act accordingly. “In other words, although the courts never acknowledged Israel’s status within the territories as that of belligerent occupation, it treated the territories, under its own volition, as if it did in accordance with “the accepted humanitarian norms of international law.”
Furthermore, he continues, because Israel never annexed the territories it never conferred Israeli citizenship upon the Palestinians. Until the territory’s future is definitively settled (within the context of a negotiated peace agreement) “Israel’s Supreme Court … (will continue to monitor) the conduct of Israel's security authorities in the territories in light of the humanitarian provisions of the convention – but, the court has not determined that Israel's status is that of a belligerent occupant pursuant to that convention,” he writes.
Israel’s legal and historical rights to the West Bank stand on “firmer ground” than its dependence upon the Fourth Geneva Convention that outlaws the forced transfer of populations into occupied territory Kenneth Levin writes in “The Levy Report: A Vital Beginning.” Of greater significant was the Arabs’ rejection of the original League of Nations Mandate for Palestine and article 80 of the United Nations charter that called for “close settlement of the Jews on the land, including State land” which left “the land devoid of any successor government.” Jordan’s subsequent annexation of the territory was not internationally recognized. As well, its 1994 peace treaty with Israel established an international boundary between the two countries relinquishing any claims to the territory.
Furthermore, Levin points out, UN Security Council Resolution 242 rejected the pre-’67 armistice lines as untenable. He writes, “Although Resolution 242 does not in itself strengthen the already strong legitimacy in international law of Israeli settlements,” its underlying contention that Israel must procure defendable borders reinforces Israel’s “claims to key strategic areas in Judea and Samaria, those most germane to providing Israel with defensible borders in the context of a peace agreement. In addition, Resolution 242 does underscore the status of Judea and Samaria as disputed territory, whose ultimate disposition is to be decided by negotiations between Israel and its neighbors.”
Levin goes further. Not all of the West Bank is, in fact, disputed territory. The Oslo Accords divides the land into three territories: Areas A, B, and C – the latter falling exclusively under Israel’s jurisdiction and control. The disputed settlements all lie within Area C.
Despite the West Bank’s unique status – not having been under the recognized ownership of a sovereign country upon capture and further complicated following the Oslo Accords that assigned shared governance to the territories – Dore Gold notes in “The Levy Report and the ‘Occupation’ Narrative,” the international community continues to refer to Israel’s presence there as “occupation”.
It doesn’t do so, he points out, in other, more clear-cut cases. Turkey’s annexation of Northern Cyprus, as an example, has not been internationally recognized; still, the international community has never referred to this territory as “occupied”. The same applies to Western Sudan as well as numerous other contentious territories. Gold writes, “The decision to use the term “occupation” appears to emanate as much from political considerations as it does from any legal analysis …“occupation” is a term of opprobrium.”
Although Gold acknowledges Israel will not succeed in convincing the international community, or even some Israelis, that it is not “occupying” Palestinian land in a legal sense, the Levy commission’s conclusions can go a long way towards strengthening Israel’s bargaining position when it comes to a future peace settlement. He writes, “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.”
- Bell, Avi. “Levy Report: Reinvigorating Debate on Israel’s Rights.” BESA Center Perspectives Paper No. 176, July 31, 2012
The Levy Report has reinvigorated the issue after years of Israel's silence about its legal rights in Judea and Samaria: The rules of belligerent occupation do not apply to an agreed-upon peacetime presence. Prof. Avi Bell …
- Kretzmer, David. “Bombshell for the settlement enterprise in Levy Report.” Haaretz. July 10, 2012.
The far-reaching consequences of the Levy report mean Israeli must either recognize that the legal system in the West Bank resembles apartheid – or extend political rights for all …
- Levin, Kenneth. “The Levy Report: A Vital Beginning.” Jerusalem Post. October 5, 2012.
Some have argued that Israel is not obliged to maintain its giving up of these areas as the Palestinian Authority has never fulfilled its obligations under the relevant Oslo Accords…
- Gold, Dore. “The Levy Report and the “Occupation” Narrative”. The Algeimeiner. July 20, 2012.
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 …
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