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Judgment on Levy: report is selective and perverse nonsense

For previous postings on the Levy report see: Panel tells Netanyahu West Bank not occupied land so all settlements are legalDefiance of law, case for one state, proof of apartheid: responses to Levy, More on the Levy report

Alan Baker, British Israeli lawyer, member of the 3-person Levy Commission, who lives in an illegal settlement and was legal adviser to an organisation working to get settlements recognised as legal. Photo by Email Salman/Haaretz
Justice Levy’s Legal Tinsel

The Recent Israeli Report on the Status of the West Bank and Legality of the Settlements

By Iain Scobbie, blog EJIL Talk/European Journal of International Law
September 6, 2012

In February 2012, the Israeli government appointed a commission, headed by former Supreme Court Justice Levy, to “examine the status of building in Judea and Samaria”—in other words, to examine the legality of settlements, whether authorised by the Israeli government or not, in the West Bank. On 9 July 2012, the Commission’s report was released. The report is in Hebrew, but its conclusions and recommendations have been translated into English by one of the Commission’s members, Alan Baker, and an unofficial translation of its arguments regarding international law has been published on a pro-Israeli US blog.

The reasoning of the Report, such as there is, is a travesty of legal argumentation. It is selective in the issues it chooses to address, and perverse in its interpretation of international law. The arguments employed with regard to the status of the West Bank and legality of the Israeli settlements there are not novel. Indeed, they are well-worn, tired, and have been thoroughly discredited in the past. They contradict established legal opinion, both international and Israeli.

The Commission’s conclusions fall into two categories, one dealing with international law and the other with domestic Israeli law. The Report states:

Our basic conclusion is that from the point of view of international law, the classical laws of “occupation” as set out in the relevant international conventions cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria [ie, the West Bank] spanning over decades.

In addition, the provisions of the 1949 Fourth Geneva Convention, regarding transfer of populations, cannot be considered to be applicable and were never intended to apply to the type of settlement activity carried out by Israel in Judea and Samaria.

Therefore, according to International Law, Israelis have the legal right to settle in Judea and Samaria and establishment of settlements cannot, in and of itself, be considered to be illegal.

The Report’s most important conclusions on points of Israeli law are that construction within the bounds of an existing or future settlement will not require ministerial or governmental decision; that “outposts”, settlements deemed illegal under Israeli law because they were not authorised by governmental decision, were established “with the knowledge, encouragement and tacit agreement of the most senior political level—government ministers and the Prime Minister, and therefore such conduct is to be seen as implied agreement” and should be regularised; and that legislation should be amended “to enable Israelis to purchase land in Judea and Samaria directly”.

Apparently without irony, the Report concludes by stressing “that the picture that has been displayed before us regarding Israeli settlement activity in Judea and Samaria does not befit the behaviour of a state that prides itself on, and is committed to the rule of law”.

The Commission comprised three members: former Supreme Court Justice Edmund Levy retired District Court Judge Techia Shapiro, and Mr Baker, who is a former legal advisor to Israel’s Ministry of Foreign Affairs and Ambassador to Canada. Some have claimed that the members of the Commission were “hand-picked” to deliver the conclusions the government sought on the status of the West Bank and legality of settlements, pointing out that Justice Levy (see this Haaretz piece on him) was the sole dissenter in Gaza Coast Regional Council v Knesset of Israel, HCJ 1661/05 (2005). In this case, an expanded Supreme Court bench of eleven held that Gaza was occupied territory and that Israeli settlers in Gaza were not protected persons for the purposes of Article 4 of the 1949 Fourth Geneva Convention. Justice Levy disagreed. It has also been pointed out that Mr Baker is, himself, a West Bank settler. Indeed, the legal arguments regarding the existence of occupation and the legality of settlements contained in the Levy Report uncannily echo the views expressed by Mr Baker in an article published in 2011.

Although the Report’s conclusions on issues of Israeli law are not without interest, the focus here is on the Commission’s views on international law. These have been roundly criticised by Israeli international lawyers, various human rights NGOs, and by the Palestinian Authority. Is this criticism justified?

Hell, yes!

The Report’s analysis of international legal issues starts from the proposition that the law of occupation is intended to apply only for short periods where “territory of a sovereign state” is occupied until the end of the conflict between the parties and the return of the territory or any other negotiated settlement. This is not the case in the West Bank:

The Israeli presence in Judea and Samaria is significantly different: the possession of the territory continues for many decades, and no one can predict its end, if at all; the territory was conquered from a state (the Kingdom of Jordan) whose sovereignty over the territory has never been firmly legalized, and in the meantime it even renounced its claim of sovereignty; the State of Israel claims sovereign rights to the territory.

The Report argues that, by the Balfour Declaration of 2 November 1917 (and commentary), Britain “recognized the Jewish people’s right to the Land of Israel”. Noting that the terms of the Balfour Declaration were incorporated into the Mandate for Palestine granted to Britain by the League of Nations, the Report emphasised that “only the ‘civil and religious’ rights of the inhabitants of Palestine are mentioned as subject to protection, but there is not mention of the national rights of the Arab people”. It continues that Article 6 of the Mandate required the Mandatory to “facilitate Jewish immigration…and encourage…close settlement by Jews”, and concludes:

In August 1922 the League of Nations approved the Mandate which was given to Britain, and thus was decided, as a norm anchored in international law, the Jewish people’s right to settle in the Land of Israel, their historic homeland, and to establish their state there.

The Report then argues that General Assembly resolution 181 (29 November 1949) recommended the division of “the Land of Israel west of the Jordan river into two states: one Arab and one Jewish”, but this was never implemented and the outcome of the resulting Arab-Israeli war “set the political reality from now on: the Jewish state was established within the lines drawn after the war. However, an Arab state was not established, and the territories which had been conquered by Egypt and Jordan (the Gaza Strip, Judea and Samaria) were ruled by those countries”.

The Report then draws its principal conclusion regarding international law:

Thus the original legal status of the territory was restored, namely, a territory designated as a national home for the Jewish people, who had a “right of possession” to it during Jordanian rule while they were absent from the territory for several years due to a war imposed on them, and have now returned to it.

Accordingly, Israel had the right to claim sovereignty over these areas “and all Israeli governments believed so, but they chose not to annex them and take a pragmatic approach in order to allow for peace negotiations with representatives of the Palestinian people and Arab states”. Consequently Israel has not seen itself as an occupying power, and was not bound by the Fourth Geneva Convention in relation to Gaza and the West Bank, but rather “Israel implemented a policy that allows Israelis to live voluntarily in the territory in accordance with rules set by the Israeli government and supervised by the Israeli legal system, while their continued presence is subject to the outcome of the negotiation process”.

The Report’s claim that “from the perspective of international law” the establishment of Jewish settlements in the West Bank is lawful relies not only on the conclusion that the Fourth Geneva Convention does not apply because the West Bank is not occupied, but also on its interpretation of Article 49 of the Fourth Convention.

Article 49(6) provides,

 “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”. The Report claims that the “dominant” interpretation of this provision is that “the article was meant to resolve the harsh reality imposed by some states during the Second World War, when they expelled and forcibly transferred some of their inhabitants to the territories they had occupied, a process which was accompanied by a substantial worsening of the condition of the occupied population”. Thus, because coercion is absent, the Levy Report concludes that an analogy cannot be drawn between Article 49(6) and “those who sought to settle in Judea and Samaria not as a result of them being ‘deported’ or ‘transferred’ but because of their world view—to settle the Land of Israel”.

In support of this interpretation, the Report quotes from the commentary on the Fourth Convention, claiming that the purpose of Article 49 is:

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. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.

The Commission also buttressed its interpretation of Article 49(6) by reference to the views of Eugene Rostow and Julius Stone. The latter argued:

Irony would…be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that…the West Bank…must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context excludes so tyrannical a reading of Article 49(6.)

Is the West Bank occupied, or not?

What is one to make of the findings of the Levy Commission on the status of the West Bank and the legality of settlements, given that they confound established legal opinion, both international and Israeli?

To start with the Commission’s conclusion that the West Bank is not occupied by Israel, one should note that this argument contradicts itself internally. On the one hand, the Report affirms that “the State of Israel claims sovereign rights to the territory” but claims that successive Israeli governments have chosen not to annex the West Bank, preferring instead to negotiate its status. How may one annex territory over which one already possesses sovereignty? And if, as the Levy Commission does, one places emphasis on the Balfour Declaration as a vital recognition of the Jewish people’s right to the Land of Israel, how does one account for the fact that the United Kingdom has consistently and frequently affirmed that Jewish settlements are illegal (see here, Section VI)?

The substance of the Commission’s argument contradicts express findings of both the International Court of Justice and Israel’s Supreme Court. The Commission bases itself on the “missing reversioner” argument—that as Jordan did not possess sovereignty over the West Bank in 1967 when it was seized by Israel, the latter could not be in “occupation of the territory of a sovereign state”.

In the Legal Consequences of The Construction of A Wall in the Occupied Palestinian Territory Advisory Opinion, the International Court of Justice noted that Israel, “contrary to the great majority of the other participants” in the proceedings, had argued that because Jordan and Egypt did not possess sovereignty over the West Bank and Gaza when Israel seized them in 1967, they were not territories of a High Contracting Party for the purposes of the application of the Fourth Convention (see 173, para.90).

The International Court of justice rejected this claim. It ruled that the Fourth Geneva Convention applies to any armed conflict between High Contracting Parties, and that it was irrelevant whether territory occupied during that conflict was under the sovereignty of one or other of the combatants. This interpretation was based on textual exegesis, the drafting history of the Fourth Geneva Convention, the practice of parties to the Convention, the views of the International Committee of the Red Cross, General Assembly and Security Council, and also that of the Israel Supreme Court (see, 173-177, paras.90-101). This was a unanimous finding by the Court, as the sole dissenting judge, Judge Buergenthal, expressly concurred in this ruling (see his declaration, para.2).

Israel’s Supreme Court, sitting as the High Court of Justice, has also clearly and consistently held that Israel is the belligerent occupier of Palestine. Thus, for example, in Beit Sourik Village Council v Government of Israel, President Barak observed (at para.24):

The general point of departure of all parties—which is also our point of departure—is that Israel holds the area in belligerent occupation (occupatio bellica)…The authority of the military commander flows from the provisions of public international law regarding belligerent occupation.

Similarly, in Mara’abe v Prime Minister of Israel, the Court ruled “The Judea and Samaria areas are held by the State of Israel in belligerent occupation” (opinion of President Barak, para.14: similarly Morar v IDF Commander in Judea and Samaria, opinion of Justice Beinisch, para.12), and in Matar v Commander of the IDF in Gaza that “The Gaza Strip is under the belligerent occupation of IDF” (cited in Mara’abe, para.18).

Was Justice Levy simply attempting to rewrite the jurisprudence of the Supreme Court with which he disagreed and from which he had dissented? Or, for that matter, the views of the Government of Israel itself. In Gaza Coast Regional Council v Knesset of Israel, the Supreme Court observed (para.29):

The Government clarifies that, also on its merits, the decision to evacuate settlements was legal, let alone after it was promulgated in Knesset’s legislation. This emanates from the fact that the evacuated territory is held under belligerent occupation which is temporary in nature, as well as the settlements that were established on its basis.

Given the weight of legal authority stacked against the conclusion adopted by the Levy Commission, it can only be seen as perverse.

If it is accepted that the West Bank is subject to Israeli occupation then, as the International Court unanimously ruled, it follows that the Fourth Geneva Convention forms the legal framework regulating the governance of the territory. In Public Committee Against Torture in Israel v the Government of Israel, Israel’s Supreme Court noted that “The normative system which applies to the armed conflict between Israel and the terrorist organizations in the area is complex. In its center stands the international law regarding international armed conflict…This law includes the laws of belligerent occupation.” It continued, however, that “the position of the Government of Israel is that, in principle, the laws of belligerent occupation in The Fourth Geneva Convention do not apply”, but that “Israel honors the humanitarian provisions of that convention”. For the purposes of the case, the Court deemed it unnecessary to decide whether the Fourth Geneva Convention applied as a matter of law (see opinion of President Emeritus Barak, paras.18 and 20).

Nonetheless, the Supreme Court has also repeatedly indicated that the Fourth Geneva Convention applies in occupied Palestine. Thus, in Physicians for Human Rights v Commander of the IDF Forces in the Gaza Strip, it ruled that “The military operations of the IDF in Rafah, to the extent they affect civilians, are governed by Hague Convention IV Respecting the Laws and Customs of War on Land 1907…and the Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949″; and in Beit Sourik Village Council v Government of Israel, President Barak observed (para.24):

The authority of the military commander flows from the provisions of public international law regarding belligerent occupation. These rules are established principally in the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907…These regulations reflect customary international law. The military commander’s authority is also anchored in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949.

Settlements: lawful or unlawful?

If it is accepted that the Fourth Geneva Convention applies to the West Bank, then the question arises of the interpretation of Article 49(6). The Levy Commission, relying primarily on the ICRC commentary, argues that this does not apply to settlers in the West Bank who are not there because they were “deported” or “transferred” but rather “because of their world view—to settle the Land of Israel”. But the Commission’s quotation from the commentary is partial. While Article 49(1) prohibits forcible deportations and transfers of protected persons from occupied territory, there is no indication in the text of Article 49(6) or its published travaux that this requirement of coercion is necessary where the movement of nationals of the occupying power is concerned. While coercion is expressly included as a necessary condition for a breach of Article 49(1), this is absent from the text of Article 49(6). The commentary explicitly states that the concepts of deportation and transfer in Article 49(6) differ from those contained in Article 49(1).

To buttress its interpretation of Article 49(6), the Levy Commission relies on the views of Rostow and Stone. Stone is the more significant international lawyer, but his views of the Israel-Palestine conflict have been seen as controversial, with one commentator arguing that his analysis demonstrates a legal formalism that is anomalous in his work, particularly when seen in the light of his theoretical work on legal reasoning.

The Levy Report chose, however, to ignore the views of another prominent international lawyer, which can be seen as more significant than those of either Rostow or Stone. In September 1967, in the immediate aftermath of the Six-Day War, Theodor Meron, then legal advisor to the Israeli Foreign Ministry, prepared a memorandum entitled Settlement in the administered territories for Israel’s Foreign Minister (original Hebrew text; English translation). The Levy Commission was not unaware of this memorandum, as it had been expressly drawn to the Commission’s attention by ACRI, an Israeli NGO.

The memorandum concluded that “civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention.” Meron further noted that the international community had rejected Israel’s claim that the territories were not occupied:

We must nevertheless be aware that the international community has not accepted our argument that the [West] Bank is not “normal” occupied territory and that certain countries (such as Britain in its speeches at the UN) have expressly stated that our status in the [West] Bank is that of an occupying State. In truth, even certain actions by Israel are inconsistent with the claim that the [West] Bank is not occupied territory.

Like the Levy Report, Meron cited the authoritative official International Committee of the Red Cross commentary on Article 49(6) of the Fourth Geneva Convention, and stated that the Article 49(6) prohibition was “categorical and is not conditional upon the motives for the transfer or its objectives. Its purpose is to prevent settlement in occupied territory of citizens of the occupying state,” therefore if Israeli citizens were to settle in the occupied territory it was “vital, therefore, that settlement is carried out by military and not civilian entities” within temporary camps.

Finally, the Levy Report focuses on the conventional prohibition contained in Article 49(6) of the Fourth Geneva Convention, but fails to mention the parallel customary prohibition set out in Rule 130 of the ICRC’s customary international humanitarian law study (supporting practice here). Even if, contrary to the views of the International Court, Security Council, General Assembly, ICRC, and apparently all States but Israel, the provisions of the Fourth Geneva Convention are not applicable to the West Bank, Israel is still bound by the customary prohibition of settling its nationals in territory it occupies.

One is left with the impression that the Levy Commission Report inhabits a legal monoverse (and yes, I did make that word up) where the correct, and only, interpretation of international law is that placed upon it by Israel to forward its own interests. In 1972, John Dugard described South African apartheid legislation as “legal tinsel”, as [the laws] provided:

a convenient facade for the outside world. The Promotion of Bantu Self-Government Act, the Transkei Constitution and the Bantu Homelands Constitution Act are useful for foreign consumption as they adopt the rhetoric of self-determination and self-government without disclosing the realities of South African life. Legal tinsel is used to conceal the fact that most of the African population lives outside the homelands and cannot in fact participate in the homelands’ political process; that the African people themselves have not been consulted about their future; and that self-determination inside or outside the homelands is meaningless while the harsh security laws remain in force.

The Levy Report seems equally to be intent on obfuscating reality by presenting an ostensible legal justification for settlements. It is nothing more than legal tinsel which attempts to distract and conceal but which proves to be a weak façade incapable of standing up to serious legal analysis. The reasoning employed in the Levy Report is not simply legal nonsense, it is nonsense with added ingredients: as Jeremy Bentham would say, this is nonsense on stilts.

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