The legal tsunami gathering strength in Israel could engulf the world. A report is soon to be released that says the Fourth Geneva Convention (FGC) does not apply to Judea and Samaria, aka West Bank, and that Israel has every right to build settlements there.
In January of this year, Prime Minister (PM) Netanyahu set up the Levy Committee to investigate the legal status of unauthorized West Bank Jewish building. The Committee was headed by Supreme Court Justice (Ret.) Edmund Levy. It included Tel Aviv District Court Judge (Ret.) Tehama Shapiro and Dr. Alan Baker, an international law expert, who was part of the team that devised the Oslo Accords.
The Committee reviewed legal briefs from right of center groups but also from far left groups such as Peace Now, Yesh Din and Btselem. Its 89 page Report was submitted to PM Netanyahu a few weeks ago and is now under review by his Ministerial Committee on Settlements. Though the Report has yet to be formerly published, the contents are already well known.
It found that the settlements are not illegal. To reach this conclusion it first found that the Fourth Geneva Convention which applies “to all cases of partial or total occupation of the territory of a High Contracting Party” does not apply to Judea and Samaria because "Israel does not meet the criteria of 'military occupation' as defined under international law” … as "no other legal entity has ever had its sovereignty over the area cemented under international law."
Furthermore, it found that there was no provision in international law which prohibited Jews settling in the area.
The UN and the EU have for decades repeated the mantra that the land is occupied and the settlements are illegal, both pursuant to the FGC. However, there has never been a binding legal decision on which they based their assertions. The US has been more cautious and considers the settlements “an obstacle to peace” or “illegitimate”. Nevertheless, it leads the chorus in demanding an end to Israel’s settlement construction.
In 2010, Nicholas Rostow, in The American Interest, regarding the legality of the settlements, wrote:
On February 2, 1981, President Reagan stated that the settlements were “not illegal”, although he criticized them as “ill-advised” and “unnecessarily provocative.” Throughout the Reagan Administration the U.S. government did not question the legality of the settlements; rather, it criticized the settlements on policy grounds as an obstacle to the peace process. In the United Nations, the United States voted against resolutions describing Israeli settlements as illegal.
President George Bush followed suit and so did President Obama.
The Levy Report confirms the opinions of a large list of experts who have long claimed the same including:
Stephen M. Schwebel, Professor of International Law at the School of Advanced International Studies of The Johns Hopkins University (Washington):“Where the prior holder of territory [Jordan] had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense [Israel] has, against that prior holder, better title.” ;
Eugene W. Rostow, former Deputy Legal Advisor of the U.S. State Department and President of the International Court of Justice from 1997 to 2000 , Former U.S. Undersecretary of State for Political Affairs and Distinguished Fellow at the U.S. Institute for Peace:“The Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of Israel was created… The Jewish right of settlement in Palestine west of the Jordan River, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated…” ;
Julius Stone, one of the 20th century’s leading authorities on the Law of Nations, Doctor of Juridical Science from Harvard and Professor of Jurisprudence and International Law at universities in Australia and California;“The terms of Article 49(6) [of the Fourth Geneva Convention] however they are interpreted, are submitted to be totally irrelevant. To render them relevant, we would have to say that the effect of Article 49(6) is to impose an obligation on the state of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever ‘judenrein";
David Matas, world-renowned human rights lawyer and honorary counsel to B’nai Brith Canada:“For there to be an occupation at international law, there has to be an occupying and occupied power both of which are members of the community of nations. The only conceivable occupied power for the West Bank is Jordan. Yet Jordan has renounced all claims over the West Bank.” ; and
David M. Phillips, Professor at Northeastern University School of Law: “Indeed, the analysis underlying the conclusion that the settlements violate international law depends entirely on an acceptance of the Palestinian narrative that the West Bank is “Arab” land. Followed to its logical conclusion – as some have done – this narrative precludes the legitimacy of Israel itself…The ultimate end of the illicit effort to use international law to delegitimize the settlements is clear – it is the same argument used by Israel’s enemies to delegitimize the Jewish state entirely.” .
The question of the applicability of the FGC was considered by the International Court of Justice (IJC), an arm of the UN, in its advisory opinion on the legality of the Israeli security fence.
The IJC held that “the Convention applies, in particular, in any territory occupied in the course of the conflict by one of the contracting parties.” In other words it ignored that the lands occupied must be the lands of “another High Contracting Party”. This is not considered sound law and in any event, is not a binding decision.
The Supreme Court of Israel in its decision approving the security fence as legal said that “the question of the application of the Fourth Geneva Convention is not before us now . . .” Thus, it didn’t decide on the applicability.
The Left in Israel are screaming blue murder and referring to the Levy Report as “born in sin” and a “political manifesto”.
On Monday, while speaking to reporters, State Department spokesman Patrick Ventrell said:
The US position on settlements is clear. Obviously, we’ve seen the reports that an Israeli government appointed panel has recommended legalizing dozens of Israeli settlements in the West Bank, but we do not accept the legitimacy of continued Israeli settlement activity, and we oppose any effort to legalize settlement outposts.
What is interesting about this statement is that Ventrell did not comment on the finding that the FGC did not apply or that the settlements were not illegal. He merely reiterated the US government position without substantiating it. Furthermore, the settlement outposts that the State Department doesn’t want “legalized” are legal save for having not received their final approval from the Government of Israel. If they were really illegal by international law, Israel wouldn’t be able to “legalize” them. Put another way, the US position is that Israel shouldn’t exercise her rights because such exercise would be an obstacle to peace.
Accordingly, the legal conclusions of the Levy Report are sound. What will the fallout be?
For starters, the UN may ask for another advisory opinion from the ICJ on the validity of this report but why bother; it already has one on the applicability of the FGC. It probably will choose to ignore it as just another opinion. Meanwhile the existence of the report will take the wind out of the sails of the US and the EU as they try to condemn the settlements and Israel’s actions. The US will have to acknowledge that since President Reagan, it has considered the settlements to be “not illegal” but only ”ill-advised”.
PM Netanyahu will have to decide whether he will embrace the Levy Report and act accordingly or whether he will wait for the issue to be adjudicated by Israel’s High Court. It is highly unlikely that this Court will fly in the face of the named experts, the US Government and the Levy Report.
From a political point of view, he cannot ignore the Report. A political storm is raging. Likud MK Tzippi Hotovely is preparing a Bill that will endorse the principles of the Levy Report. The Bill will require the establishment of a judicial tribunal in Judea and Samaria which will be given the responsibility of discussing matters related to land ownership, the establishment of an Israeli land registry in Judea and Samaria and applying Israeli building and planning laws in Judea and Samaria.
Where does that leave the international community? The foundation of their attacks on Israel will have been destroyed. It will be hard to ignore the Levy Report and harder still to ignore a confirming decision by Israel’s High Court. It will no longer be able to claim with a straight face that the lands are “occupied Palestinian lands” or that the settlements are illegal.
Congress will no doubt strongly endorse the Levy Report with or without a decision from the Supreme Court of Israel.
The upshot of all this will be that Israel will end the de facto building freeze and start construction of settlements in earnest. It will also signal the end of the pursuit by Israel of the two-state solution. The Israeli center will no longer believe that Israel is an occupier and instead will believe that the land is theirs, which it is.
Presently there is a significant movement in Israel advocating Israeli sovereignty over all of Judea and Samaria, even if that means making citizenship available to qualifying Arabs.
Israel must decide between two risky alternatives; either accept the two-state solution based on ’67 lines with swaps or annex the land and contend with an extra 1.5 million Arabs within its borders. With the latter alternative, the Jews would be left with a stable 2:1 majority. Israelis are already trending to the latter choice and the Levy Report will accelerate that trend.
Arabs in Judea and Samaria will likely not accept such a two state solution because it will preclude the “right of return” and will require them to recognize Israel as the Jewish State. Furthermore it will require them to sign an end-of-conflict agreement. If Israel chooses to claim sovereignty, the Arabs will have to decide whether to push for citizenship or to accept autonomy.
This tsunami will change the political landscape for the better and forever.
What if, in June 1967, Israel had, a few weeks after the end of the Six-Day War, simply annexed the entire "West Bank"? And in doing so, it explained that it was only taking what, by the express provisions and exclusive intent of the Mandate for Palestine, it had a right to do? It would have explained that, had it managed to take those territories through force of arms in the 1948-49 conflict, it would have had every right to consider them part of Israel, and that the fact that Ben Gurion had called a halt to the Haganah's advance, and that the Jordanians had held on to those same territories --then renaming them, absurdly, but for obvious political purposes, the "West Bank" -- no one in the non-Muslim civilized world would have objected. The passage of 18 years, from 1949 to 1967, did not diminish Israel's legal claim. And the passage, from 1949 to 2012, does not diminish the justice of Israel's claim. The only thing that has changed is that the world is suffering from an overdose of Arab and Muslim propganda, that has made it overlook, forget, pretend never to have known, that those territories have a juridical history. We are all supposed to -- and many do -- forget what the Mandates Commission of the League of Nations was doing, what the Great Powers thought they were doing at San Remo. And what they thought, and rightly, that they were doing, was correcting a historical injustice, in the case of the Jews, but not only the Jews. They intended there to be an independent Kurdish state -- which then, when Turkey recovered a bit from its defeat, had the kibosh put on it. They assumed -- they did not say but assumed -- that in Syria and Lebanon, or Syria/Lebanon, the Christians (Maronites) would remain dominant in Lebanon, and Maronites and other minorities -- Alawis, Kurds, Armenians, Christians who were both Maronites and Orthodox -- would be kept save from Sunni Muslim domination. In Egypt, where the administration of Lord Cromer was on the way out, but British influence remained paramount, few could conceive that the Jews, Italians, Greeks would all one day have their property seized and be booted out (as happened under Nasser), and that the Copts, who comprised so many of the educated and the professionals in Egypt, would be permanently made to live in a state again of permanent insecurity, as Islam, and Muslims, reasserted themselves.
Had the Israelis done what made sense to do, and which they had every right to do, back in the summer of 1967, the Muslims would not have been pleased. But they would very likely have adjusted to that reality, and in any case, Israel would have had been able, far more than it has, to lay claim, and to settle, the land which by rights belongs to it, and not to the local Arabs, a great many of whom arrived, attracted by the economic boom, such as it was, caused by the Jewish resurrection of the land, from about 1910 to 1940. The local Arabs can live there, and do, and may be granted not independence, with all that they would do with that independence -- not build a state but, rather, attempt to subvert, in every way, the legitimacy and security of the Jewish state nexty doo -- but something else: a local autonomy consonant with Israeli security. That, and nothing more. And that is great deal more than the Muslim Arabs grant to non-Arabs (Kurds, Berbers, African blacks) or to non-Muslims (Copts, Maronites, Assyrians, Chaldeans, black African Christians, etc.) anywhere, in the twenty-two states, and 14 million square miles -- more than a thousand times the land area of tiny Israel, even with the "West Bank," -- that comprise that sinister organization, the Arab League.
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