As of late BESA Center Perspective Paper declared that the Levy report has a lot of substance, is legally correct and does not circumvent official Israeli position that the Fourth Geneva Convention does not apply de jure in Judea and Samaria. HB The Levy Report: Reinvigorating the Discussion of Israels Rights in the West Bank ~by Avi Bell BESA Center Perspectives Paper No. 176, July 31, 2012 http://www.biu.ac.il/SOC/besa/docs/perspectives176.pdf 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 reports 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 Israels 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 reports 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 reports 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 Israels 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, Israels 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 Israels 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 Israels 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. to be continued
continued from previous 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 Israels 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 Sassons assertions, while the Supreme Court has adjudicated cases on the basis of Israels 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. Israels 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 reports 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 Commissions 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 Israels 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 -------------------------------------------- IMRA - Independent Media Review and Analysis Website: www.imra.org.il
You mean it doesn’t surprise you that a commission appointed by Netanyahu, that is pro-settlements, decided that there is no occupation and that the settlements are legal…? Argument #1: This argument is rather illogical. They claim that Jordan was nothing more than an occupying power following the 1948 war, and thus, has no claim to the West Bank. On the other hand, Israel seized the West Bank through an act of war in 1967, and thus it would be consistent to assume that Israel would have no claim to the land either. So if we are to follow this argument, then the West Bank would belong to neither Jordan, nor Israel. Moreover the laws regarding occupation are intended to protect the people under foreign military control, regardless of how this control was attained, and not the rights of the evicted states. The claim that Israel is not an occupier is negated by the provisions of the Regulations Concerning the Laws and Customs of War on Land of 1907 (Article 42) and by the Fourth Geneva Convention (Article 2). The article provides that “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party…” There is absolutely no reference to the validity or otherwise of titles to ownership and no distinction between de facto and de jure requisition of territory. The term “territory of a High Contracting Party” is used. The ICRC commentary of the convention even describes it as “the first time that a set of international regulations has been devoted not to State interests, but solely to the protection of the individual.” Considering Israel hasn’t even annexed the West Bank in its entirety, this leaves no legal basis for Israel being in the West Bank. Argument #2: This part of the report deals with article 49 of the Fourth Geneva Convention. Let’s take a look at what some legal scholars have to say about it: Yoram Dinstein wrote: “Article 49(6) of the [Fourth] Geneva Convention touches on the core of the question of civilian settlement [in the occupied territories]. According to this rule, it is prohibited for an occupying state to transfer parts of its civilian population into occupied territory. The emphasis here is on the transfer and civilian nature of the population. Accordingly, on the one hand, there is no obstacle to the establishment of civilian settlements in the West Bank if they are required by military necessity and governed as are ordinary military installations. On the other hand, there is no defect in the establishment of outposts which are not directed from above [by government], on land purchased on the open market from local residents. When a clearly civilian settlement is established in the West Bank, under a direct decision of the Israeli government and entailing the expropriation of private land, it is difficult not to regard this as a violation of the Geneva Convention.” Antonio Cassese wrote that “The prohibition on using land belonging to the occupied state or to its inhabitants for purposes other than those referred to above (military needs of the occupant, etc.) is strengthened by Article 49(6) of the Fourth Geneva Convention of 1949, which provides that 'the Occupying Power shall not deport or transfer parts of its civilian population into the territory it occupies.' This provision is but the logical corollary of the requirement of customary international law whereby the occupant is not allowed to use the property of the occupied country, or of its inhabitants, for the furtherance of its own economic or other interests. Plainly, the transfer of civilians from the occupying state into the occupied territory cannot but serve economic, social or 'strategic' needs of the occupying state as such. To this extent it is strictly prohibited.” Also the judges of the ICJ found that “As regards these settlements, the Court notes that Article 49, paragraph 6, of the Fourth Geneva Convention provides: "The Occupying Power shall not dlrport or transfer parts of its ow11 civilian population into the territory it occupies." That provision prohibits not only depor- tations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to oirganize or encourage transfers of parts of its own population into the occupied territory. In this respect, the information provided to the Court shows that, since 1977, Israel has condiucted a policy and developed practices involving the establishment of Settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6, just cited” The Israeli government provides incentives for Israelis to move into the West Bank settlements. The Israel government then is responsible for providing the infrastructure, and supplies like water, for the settlements. It cannot be claimed that everything is done voluntarily by Israeli citizens. Or as Adam Roberts has wrote: “... As with deportations, so with settlements: there have been some claims that Israeli practices are compatible with international norms, including those of the fourth Geneva Convention. A distinction has been drawn between the transfer of people - which is forbidden under article 49 - and the voluntary settlement of nationals on an individual basis; and it has been asserted that there is nothing wrong with settlements in the sense of army bases where soldiers are engaged in agriculture for part of the time. Civilian settlements have also been called necessary for the occupying power's security, and therefore essential if the occupying power is to preserve public order and safety. Such arguments are far from convincing. In particular, even if voluntary settlement of nationals on an individual basis were permissible under article 49, the ambitious settlement program of the 1980s, which was planned, encouraged and financed at the governmental level, does not meet that description. Moreover, it is doubtful whether the settlement program was primarily intended to contribute to the occupying power's security and whether, in any event, it has contributed to that end; by causing friction with the Palestinian inhabitants of the territories, the program may even have added to the work of the IDF. The settlement program is quite simply contrary to international law.” The ICRC commentary on Article 49(6) states that this paragraph was “intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories.” And this is exactly what Israel is currently doing, colonizing the West Bank. B’Tselem says that “the construction of these settlements has completely changed the West Bank map and substantially worsened the situation of the Palestinian population.”
LOL, Khalil. It should be self-evident, shouldnt it? :weeps: But you you know that matters Israel are not subject to the same scrutiny as, say Iran or Iraq or Nicaragua or South Africa. We have seen many cases in the past where Israel and its apologists find self-auditing to be a perfectly acceptable process; even though it is equally dismissible as Enron directors analysing their own managerial illegalities. We have seen the nauseating results in the form of justifications for Operation Cast Lead, when it is clear to the rest of the planet that without USA protection Israeli leaders would (and may yet still) be tried for war crimes; but for the apologists there is nothing wrong, improper or even notable about the IDF auditing itself. So yes, WanRen, HBendor, Borat and that ilk will likely find this report perfectly without conflicts of interest and hence of laudable value, as we have just seen. Such are the way blinkers that the ultra-nationalist apologists provide for themselves.
From the Jerusalem Post: The incessantly repeated claim that the Levy report declared the West Bank is not occupied is not quite accurate. What reasons for this statement are provided. Well it seems that Jewish leaders in the USA calling for the reports rejection are not justified in doing so: Sorry, but does this mean that these US Jewish leaders cannot read Hebrew? Oy vey!! But it is quite OK when this route is followed by Zionists regarding Ahmedinajads infamous October 2005 speech. If you dont mind I will use the numerous translations of the Levy report freely available on the web until something more official comes along in English. Hey Ahmy when are you going to translate your speech officially. So on that basis let me supplement Khalids solid observations with what is available
Awesome Khalil. But nonetheless it is a reasoning that is well-known; Quigley published it many times. So how come this logical consequence is not equally obvious to these "blue ribbon" Israeli legal experts? Are they professionally biased or are they incompetent - the same rules apply to everyone except to Israel and the USA. Either way I would suggest that the credibility of the Levy report has cratered solely on that crutial point. Your analysis that followed, Khalil, is impeccable. Any chance of providing us with references to Dinstein, Cassese and Roberts? Let's see what Avi Bell (see OP) had to say about the report: Huh? How do you deport a settlement? STRAWMAN ALERT!!! Second STRAWMAN ALERT!!! Arn’t those just the most naïvely bad examples of reasoning that you readers have seen for a long time. And those are meant to be the two pillars on which the legality of the ‘settlements’ are to be justified!! And this was provided by "blue ribbon" Israeli lawyers headed by former Israeli Supreme Court justice Edmund Levy!! I repeat - "Oy vey!!" What does that say for the Israeli legal system and its courts? Maybe that question is answered by this Jewish source (click blue): And that might be the REAL reason why the US Jewish leaders are so keen to squash the Levy report.
The Levy Report really dances around some of the realities on the ground. An occupying power has a lot of ways of putting pressure on the occupied in order to get what it wants. Some of the ways Israel has used include: forced sale for reasons of defense (the Wall/Security Barrier), cutting off travel and economic activity until the landowner is destitute, allowing and abetting the Settler movement to squat on Palestinean land and harass the local Palestineans (not legally the fault of the State of Israel), using detention laws to incarcerate Palestineans who violently object to such behavior, allowing small civilian settlements to adjoin military bases, and denying the land rights of the Bedouin nomads on narrow legal grounds (no registered ownership documents over historical usage and seasonal occupation). The Levy Report is much more noteworthy for what it DIDN'T say than for what it did say. It reminds me of Nazi legal manouevering in the mid-1930s against the Jews (before they cast off all but a semblance of legality) where the issues were defined very narrowly and the broader situation and implications were ignored. Nice to see where Israel is getting its inspiration from!
