Earlier this year Benjamin Netanyahu formed an Israeli government panel to judge on the legality of the settlements. The panel was headed by former Supreme Court justice Edmond Levy and was intended to respond to the 2005 Sasson Report on government complicity with the settlement project (and possibly head off an impending UN study into the settlements). Today, the “Levy Committee” issued its findings and among other things declared that Israel is not an occupying force in East Jerusalem and the West Bank.
With regard to Israel’s legal status in the West Bank, the Levy Committee declared that Israel is not an occupying power. The panel arrived at that conclusion after considering two conflicting legal approaches on the question.
The first approach, presented by elements generally identified with the left, holds that Judea and Samaria are “occupied territories” under international law, ever since they were captured from the Jordanian kingdom in 1967.
According to this approach, as a military occupier, Israel is subject to international restrictions governing occupation, first and foremost the Hague Regulations with regard to the laws and customs of ground warfare, and the Fourth Geneva Convention with regard to protecting civilian populations in times of war.
Under these covenants, an occupier must manage the area and maintain order while taking care of its security needs and the needs of the civilian population until the occupation ends. There is a prohibition against damaging private property, and the occupier is also banned from moving any of its own population to settle in the occupied area.
The committee also heard conflicting legal opinions, submitted by elements identified with the right, such as the Regavim movement and the Binyamin Regional Council. They presented the position that because Judea and Samaria were never a legitimate part of any Arab state, including Jordan, Israel is not an occupying power.
As such, the conventions dealing with management of occupied territories and their populations are not relevant to Israel’s presence in Judea and Samaria.
With regard to the Geneva Convention and its Section 49, which forbids an occupier from transferring any of its population to settle in the occupied area, the right-wing groups argued that this section was formulated after World War II and was aimed at preventing the forced transfer of populations, a situation that isn’t relevant to Judea and Samaria.
Members of the panel accepted the legal opinion presented by the right. They explained that the generally accepted concept of occupation relates to short periods in which territory is captured from a sovereign state until the dispute between the two sides is resolved. But Judea and Samaria have been under Israeli control for decades, and it is impossible to foresee a time when Israel will relinquish these territories, if ever.
The Israeli NGO Yesh Din issued the following press release in response to Levy:
Attorney Michael Sfard, Yesh Din’s Legal Advsior: The Levy Committee was Conceived in Sin to Legalize a Crime, and Has Accomplished its Mission
There are basic errors in the committee’s conclusions that contradict Israeli and international law
The committee’s conclusions will detract from the little protection afforded to Palestinian rights in the West Bank
Adoption of the committee’s recommendations will legalize land theft and complicate Israel’s relations with the entire world
Yesh Din refused to appear before the committee because its purpose was to bypass the State Attorney’s Office, and its very establishment violates the principles of the rule of law. Yesh Din will present a legal opinion to the Attorney General.
Following the publication of the conclusions of the Edmund Levy Committee, Attorney Michael Sfard, the legal advisor to the human rights organization Yesh Din, said today: “The Levy Committee was conceived in sin to legalize a crime, and it has fully accomplished its mission. Its report is not a legal report but an ideological report that ignores the basic principles of the rule of law. The members of the Levy Committee apparently fell down the rabbit hole, and their report was written in Wonderland, governed by the laws of absurdity: there is no occupation, there are no illegal outposts and there is apparently no Palestinian people either. To that we must say in the words of Alice: ‘This is the silliest tea party I have ever been to.’”
Attorney Sfard explained that the committee’s conclusions suffered from elementary errors: “For example, the committee’s ruling that the government’s conduct ought to be viewed as consent to establishing the outposts is no less than embarrassing. According to law, the Government of Israel expresses its consent to establish settlements solely by explicit decisions of its plenum or by a committee it authorizes to do so. The Levy Committee’s suggestion to view illegal statements or actions by various ministers as government consent undermines the principles of the rule of law and good governance.”
As for the determination that Israel is not occupying the West Bank, Sfard says that “the members of the Levy Committee are living in ‘La La Land.’ Israel occupied the West Bank by armed force and even though Jordan ceded the territory, the international community, via its binding resolutions (such as the Partition Resolution and many others) has designated it for a Palestinian state. Therefore, Israeli rule of the territory is a rule of occupation as long as there has been no agreement otherwise between the parties.”
Adoption of the committee’s recommendations would lead to widespread land theft and complicate Israel’s relations with the rest of the world. The committee’s recommendations are a targeted assassination of the rule of law and, consequently, of the protection of the rights of Palestinians in the occupied territories.
From the outset, Yesh Din refused to appear before the committee, because it was established with the goal of bypassing the Attorney General and the State Attorney’s Office, and, accordingly, the organization’s position was that the committee’s formation was itself a violation of the principles of the rule of law. In a letter sent to the committee upon its establishment, and signed by Yesh Din’s Public Council, which includes several former senior officials of the State Attorney’s Office: Michael Ben Yair (the former Attorney General), Talia Sasson (the author of the Sasson Report on the unauthorized outposts), and Yehudit Karp (the former Deputy Attorney General), Yair Rotlevy, Chair of Yesh Din’s Public Council, emphasized that the Attorney General is the sole authority that is supposed to advise the Government of Israel on legal matters.
“The leaders of the State were displeased with the advice they received from the Attorney General,” the letter stated, “and set out to seek advice from an external source. And thus, in the search for advice to bypass that of the Attorney General, the committee was conceived. The committee was conceived in sin and is contrary to the rule of law and the status of the head of law enforcement in Israel – the Attorney General. Accordingly, Yesh Din, which has devoted itself to the struggle to defend human rights by strengthening the rule of law, cannot lend its hand to a process that is essentially an act of defiance against the authority responsible for law enforcement.”
Yesh Din will present the Attorney General, the sole authorized interpreter of the law for the Government of Israel, with the organization’s opinion on the issue of the unauthorized outposts, before he decides how to act on the Levy Committee’s recommendations.
Even Jeff Goldberg isn’t buying it (or doesn’t want to):
What this means, if implemented, is simple: The Israeli government would treat West Bank land as if it were land in Israel proper (pre-1967 Israel). Now, of course, if Israel were to treat the land of the West Bank as part of Israel, it would necessarily follow that it would have to treat the people who live on that land as Israeli citizens, extending them full voting rights, just as it extends citizenship to people who live in Israel proper, regardless of ethnicity. So: The natural consequence of this notion, if it is carried through to law, would be to extend voting rights to the Palestinians of the West Bank. This would spell the end of Israel as a Jewish-majority democracy, but the right-wing in Israel seems more enamored of land-ownership than it does of such antiquated notions as, you know, Zionism.