More on the Levy report
See our earlier posting Defiance of law, case for one state, proof of apartheid: responses to Levy which contains 9 items on the Leyy report. Below is a statement from Acri, an analytical piece by Jonathan Cook suggesting that the report might open the way to annexation of Area C of the West Bank, and a Guest Post published on Opinio Juris by human-rights advocate Sari Bashi, executive director of Gisha, the Legal Centre for Freedom of Movement in Israel.
Tamar Feldman, Director of ACRI’s Human Rights in the Occupied Territories Department, emailed on 18 July:
As you have probably heard, last week, conclusions of the Committee for the Arrangement of Outposts, headed by Justice (ret.) Edmund Levy were published.
A whirlwind of media coverage ensued, including this piece in the New York Times, among others.
To view a summary of the conclusions in English, click here.
Following the release of these conclusions, as Director of ACRI’s Human Rights in the Occupied Territories Department, I made a statement to the press saying: “The Conclusions of the Levy Committee are legally unfounded and their purpose is to authorize and deepen the injustice that Israeli governments are performing in the Occupied Territories in the past 45 years.
“The settlement enterprise created a wrongful situation of absolute preference, in all areas of life, to the interests of settlers over those of Palestinians, while appropriating the land and water resources of the occupied population and injuring this population’s most basic rights – such as the right to property, to freedom of movement, to personal safety, and above all to equality before the law. The devastating consequences of Israeli settlements on the human rights of the Palestinian population are the ultimate proof of the importance of following the directives of international law in general and the laws of occupation in particular.
“Despite the fact that the State of Israel has been violating these obligations for 45 years, it is not within the powers of one committee or another to change international law, one of the main goals of which is to protect human rights.
“Since 1967, consecutive Israeli governments held a steadfast and unequivocal position that the Occupied Territories are being held in belligerent occupation, meaning a military occupation, and they do not constitute a part of the State of Israel. There is complete agreement on this mater between Israel and the rest of the world, and rejecting this position – through a committee appointed by the Prime Minister – is outrageous.”
Tamar, Dan, Liza, Libby and the rest of our team at ACRI
Way cleared for annexation
By: Jonathan Cook, 18 July 2012
The recently published report by an Israeli judge concluding that Israel is not in fact occupying the Palestinian territories – despite a well-established international consensus to the contrary – has provoked mostly incredulity or mirth in Israel and abroad.
Leftwing websites in Israel used comically captioned photographs to highlight Justice Edmond Levy’s preposterous finding. One shows an Israeli soldier pressing the barrel of a rifle to the forehead of a Palestinian pinned to the ground, saying: “You see – I told you there’s no occupation.”
Even Binyamin Netanyahu, Israel’s prime minister, seemed a little discomfited by the coverage last week. He was handed the report more than a fortnight earlier but was apparently reluctant to make it public.
Downplaying the Levy report’s significance may prove unwise, however. If Netanyahu is embarrassed, it is only because of the timing of the report’s publication rather than its substance.
It was, after all, the Israeli prime minister himself who established the committee earlier this year to assess the legality of the Jewish settlers’ “outposts”, ostensibly unauthorised by the government, that have spread like wild seeds across the West Bank.
He hand-picked its three members, all diehard supporters of the settlements, and received the verdict he expected – that the settlements are legal. Certainly, Levy’s opinion should have come as no surprise. In 2005 he was the only Supreme Court judge to oppose the government’s decision to withdraw the settlers from Gaza.
Legal commentators too have been dismissive of the report. They have concentrated more on Levy’s dubious reasoning than on the report’s political significance.
They have noted that Theodor Meron, the foreign ministry’s legal adviser in 1967, expressly warned the government in the wake of the Six-Day War that settling civilians in the newly seized territory was a violation of the Fourth Geneva Convention.
Experts have also pointed to the difficulties Israel will face if it adopts Levy’s position.
Under international law, Israel’s rule in the West Bank and Gaza is considered “belligerent occupation” and, therefore, its actions must be justified by military necessity only. If there is no occupation, Israel has no military grounds to hold on to the territories. In that case, it must either return the land to the Palestinians, and move out the settlers, or defy international law by annexing the territories, as it did earlier with East Jerusalem, and establish a state of Greater Israel.
Annexation, however, poses its own dangers. Israel must either offer the Palestinians citizenship and wait for a non-Jewish majority to emerge in Greater Israel; or deny them citizenship and face pariah status as an apartheid state.
Just such concerns were raised on Sunday by 40 Jewish leaders in the United States, who called on Netanyahu to reject Levy’s “legal maneuverings” that, they said, threatened Israel’s “future as a Jewish and democratic state”.
But from Israel’s point of view, there may, in fact, be a way out of this conundrum.
In a 2003 interview, one of the other Levy committee members, Alan Baker, a settler who advised the foreign ministry for many years, explained Israel’s heterodox interpretation of the Oslo accords, signed a decade earlier.
The agreements were not, as most assumed, the basis for the creation of a Palestinian state in the territories, but a route to establish the legitimacy of the settlements. “We are no longer an occupying power, but we are instead present in the territories with their [the Palestinians’] consent and subject to the outcome of negotiations.”
On this view, the Oslo accords redesignated the 62 per cent of the West Bank assigned to Israel’s control – so-called Area C – from “occupied” to “disputed” territory. That explains why every Israeli administration since the mid-1990s has indulged in an orgy of settlement-building there.
According to Jeff Halper, head of the Israeli Committee Against House Demolitions, the Levy report is preparing the legal ground for Israel’s annexation of Area C. His disquiet is shared by others.
Recent European Union reports have used unprecedented language to criticise Israel for the “forced transfer” – diplomat-speak for ethnic cleansing – of Palestinians out of Area C into the West Bank’s cities, which fall under Palestinian control.
The EU notes that the numbers of Palestinians in Area C has shrunk dramatically under Israeli rule to fewer than 150,000, or no more than 6 per cent of the Palestinian population of the West Bank. Settlers now outnumber Palestinians more than two-to-one in Area C.
Israel could annex nearly two-thirds of the West Bank and still safely confer citizenship on Palestinians there. Adding 150,000 to the existing 1.5 million Palestinian citizens of Israel, a fifth of the population, would not erode the Jewish majority’s dominance.
If Netanyahu is hesitant, it is only because the time is not yet ripe for implementation. But over the weekend, there were indications of Israel’s next moves to strengthen its hold on Area C.
It was reported that Israel’s immigration police, which have been traditionally restricted to operating inside Israel, have been authorised to enter the West Bank and expel foreign activists. The new powers were on show the same day as foreigners, including a New York Times reporter, were arrested at one of the regular protests against the separation wall being built on Palestinian land. Such demonstrations are the chief expression of resistance to Israel’s takeover of Palestinian territory in Area C.
And on Sunday it emerged that Israel had begun a campaign against OCHA, the UN agency that focuses on humanitarian harm done to Palestinians from Israeli military and settlement activity, most of it in Area C. Israel has demanded details of where OCHA’s staff work and what projects it is planning, and is threatening to withdraw staff visas, apparently in the hope of limiting its activities in Area C.
There is a problem, nonetheless. If Israel takes Area C, it needs someone else responsible for the other 38 per cent of the West Bank – little more than 8 per cent of historic Palestine – to “fill the vacuum”, as Israeli commentators phrased it last week.
The obvious candidate is the Palestinian Authority, the Ramallah government-in-waiting led by Mahmoud Abbas. Its police forces already act as a security contractor for Israel, keeping in check Palestinians in the parts of the West Bank outside Area C. Also, as a recipient of endless international aid, the PA usefully removes the financial burden of the occupation from Israel.
But the PA’s weakness is evident on all fronts: it has lost credibility with ordinary Palestinians, it is impotent in international forums, and it is mired in financial crisis. In the long term, it looks doomed.
For the time being, though, Israel seems keen to keep the PA in place. Last month, for example, it was revealed that Israel had tried – even if unsuccessfully – to bail out the PA by requesting a $100 million loan from the International Monetary Fund on the PA’s behalf.
If the PA refuses to, or cannot, take on these remaining fragments of the West Bank, Israel may simply opt to turn back the clock and once again cultivate weak and isolated local leaders for each Palestinian city.
The question is whether the international community can first be made to swallow Levy’s absurd conclusion.
* Jonathan Cook is a writer and journalist based in Nazareth, Israel. His latest book, released this month, is “Disappearing Palestine: Israel’s Experiments in Human Despair” (Zed Books). His website is www.jkcook.net. – firstname.lastname@example.org
Sari Bashi, executive director of Gisha, an Israeli human rights organization protecting the right to freedom of movement in the occupied Palestinian territory
Last week, a committee appointed by Israeli Prime Minister Benjamin Netanyahu to recommend disposition of about 100 Israeli outposts in the West Bank established in violation of Israeli military zoning laws released its conclusions (English summary here). The committee members, hand-picked by Netanyahu, were expected to recommend authorizing the outposts retroactively, and they did. What was less expected were 11 double-spaced pages in the report that renounced the existence of a state of occupation in the West Bank.
To be sure, official declarations denying Israel’s occupation of the territory captured in 1967 are not new, but thus far, they have been limited to the Gaza Strip, as this spring’s Opinio Juris symposium highlighted. This latest report, the work of a committee headed by former Supreme Court Justice Edmond Levy, is further reaching. Its recommendations have yet to be considered by the Israeli government.
The Levy Committee reverted to an old argument by the government, namely that the Fourth Geneva Convention’s rules on occupied territory do not apply in the West Bank and Gaza because they did not form part of the territory of a High Contracting Party, meaning a sovereign state, prior to being captured by Israel in 1967. However, it added a far-reaching and somewhat puzzling twist: the committee found that Israel is not an occupying power at all in the West Bank.
To quote the committee report (in my unofficial translation to English):
“The accepted term ‘occupation’, with the obligations attached to it, was intended to apply for short periods of occupation of a territory of a sovereign country, pending the conclusion of the dispute between the parties and the return of the territory or any other agreed-upon arrangement for its disposal. Yet the Israeli presence in Judea and Samaria [the biblical name for the West Bank-sb] is substantially different: the seizure of the territory continues for decades, and no one can predict when it will end, if ever; the territory was captured from a state (the Kingdom of Jordan) whose sovereignty in the territory never attained a firm legal basis, and in the meantime it [Jordan-sb] has even given up on its claim to sovereignty; the State of Israel claims sovereign rights in the territory” (page 6).
In other words, the Levy Committee denies the application not just of the Fourth Geneva Convention, with its prohibition on transferring civilian populations into the occupied territory, but presumably also of the laws of belligerent occupation in their entirety, including the 1907 Hague Regulations (although at other parts of the report, the committee appears to rely on the Hague Regulations and their entrenchment of Ottoman and Jordanian law to justify compensating Palestinian land owners for land used by Jewish settlers, rather than returning the land). These regulations, by the way, limit the authority of an occupying power to protecting security and facilitating public life for residents of the occupied territory and therefore by implication – would also prohibit the establishment of settlements for the benefit of citizens of the occupying state.
While predictably, progressive jurists and many from the intellectual left inside Israel vilified the report (see this editorial by Israel’s respected Haaretz daily), others, myself included, appreciate the report’s revolutionary potential. Well, maybe revolutionary is too strong a word, but for those of us troubled by the transfer of 350,000 Jewish settlers into the West Bank (exclusive of east Jerusalem), the creation of separate and unequal systems of law, transportation and infrastructure for Palestinians and Israelis there and the de facto annexation of large swaths of the West Bank, the report unmasks the comfortable lie that Israeli government lawyers have told the courts and the rest of the world for decades, namely that Israel’s presence in the West Bank is temporary and that measures designating Palestinian land and natural resources for Israeli use are motivated by security concerns.
Here are some conclusions by the committee that I wholeheartedly endorse:
1. The so-called “unauthorized” outposts, built without the proper building permits and zoning plans, were as a matter of fact approved and funded by the State of Israel, which provided military protection, installed water and electricity lines, built access roads and funded public services for them.
2. There is little difference between “authorized” and “unauthorized” outputs and settlements. If some are legal under international law – all are legal under international law. If some are illegal under international law – all are illegal under international law.
3. Israel’s presence in the West Bank is not a temporary belligerent occupation, pending an arrangement to evacuate the territory and restore it to its lawful sovereign, but rather is intended to further claims to Jewish sovereignty over the Biblical Land of Israel.
In the words of the Committee (again, unofficially translated):
“Thus the legal status of the territory was restored to its original status, namely territory intended to serve as a national home for the Jewish people, which, during the period of Jordanian rule, constituted the party ‘holding the stronger claim’ that was absent from the territory for a number of years, due to a war that was forced upon it, and now has returned to it” (emphasis in original-sb) (page 12).
The Levy Committee justifies Israel’s claim to the West Bank by reference to the pre-state British Mandate which approved the establishment of a Jewish homeland in Palestine, without specifying its borders. To further the claims of Jewish settlers, the committee recommends streamlining bureaucratic obstacles to construction in the Jewish settlements, retroactively approving homes built without permits and relaxing restrictions on building on land claimed to be privately owned by Palestinians.
Without subscribing to the recommendations of the Levy Committee or its justification for Israel’s territorial claims to the West Bank, I enthusiastically endorse its candor. For decades, Israeli government lawyers have argued that the laws of belligerent occupation give the military commander in the West Bank broad authority to enact measures in the name of security – ignoring the obvious fact that the towns, factories, colleges and cultural centers serving Jewish settlers in the West Bank are not temporary installations erected to protect security but rather permanent settlements treated as part of Israel for most practical and legal purposes. The facade of temporariness has served as cover for Israel to claim the authority of a belligerent occupier, while in fact using West Bank land for the benefit of Israelis, without formally annexing it and without granting citizenship rights to its Palestinian inhabitants.
The Levy Committee tells it like it is. And in telling it like it is, it pushes Israelis to decide: Do we want to adopt the committee conclusions, which endorse exercising sovereignty over the West Bank while denying its 2.6 million Palestinians not just the rights of citizens but even – the basic protections of the Fourth Geneva Convention? Or do we want to preserve Israel as a democratic state by ending four and half decades of control over 4 million Palestinians, in the West Bank and Gaza, who have a right to freedom from foreign rule?
- April 27, 2012 — Operationalising Functionality: Questioning the Term ‘Functional’
- April 27, 2012 — The Status of the Gaza Strip – a Short Response
- April 26, 2012 — Occupation Law Symposium: Response by Matthew Saul
- April 26, 2012 — Responsibility without Control; Control without Responsibility
- April 26, 2012 — The Binary Approach to Occupation: A Double Bind?
- April 26, 2012 — Israel, Gaza, and the End of “Effective Control”
- April 25, 2012 — Is the Gaza Strip Still Occupied by Israel?
- April 25, 2012 — The Functional Approach to the Occupation of the Gaza Strip and the Right to Self-Determination
- April 24, 2012 — Disingenuous ‘Disengagement’: Israel’s Occupation of the Gaza Strip and the Protective Function of the Law of Belligerent Occupation
- April 24, 2012 — In Reluctant Defense of the Law of Occupation
- April 23, 2012 — Rethinking Occupation: The Functional Approach
- April 23, 2012 — Symposium on the Functional Approach to the Law of Occupation
- July 26, 2011 — More International Law at the U.S. Supreme Court: Where is Jerusalem?
- February 19, 2010 — Dershowitz Defends Israeli Assassinations in Dubai
- July 21, 2009 — 60 Years of Occupation – Guess Where
- July 9, 2009 — Response to Kevin and commenters
- July 8, 2009 — Freezing Natural Growth – “Measures Intended to Prevent Births”?