By Sari Bashi

A segregated street in Hebron. Palestinian are allowed only on the left side (photo: activestills.org)

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?

Sari Bashi is Executive Director of Gisha, an Israeli human rights organization that protects the right to freedom of movement in the occupied Palestinian territories, focusing on Gaza. This article was originally published in Opinio Juris.

Related Articles:

Panel appointed by Netanyahu concludes: There is no occupation
Re-thinking the role of international law in the Middle East conflict
Report that claims ‘there is no occupation’ presents an opportunity
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]]> http://972mag.com/israeli-human-rights-lawyer-occupation-is-not-temporary/51594/feed/ 28 http://972mag.com/govt-committed-to-saving-illegal-west-bank-neighborhood/43297/ http://972mag.com/govt-committed-to-saving-illegal-west-bank-neighborhood/43297/#comments Tue, 24 Apr 2012 14:18:04 +0000 Dahlia Scheindlin http://972mag.com/?p=43297 Just weeks after the Supreme Court ruling against any further delay in evacuating the outpost settlement of Migron, the government is now working industriously to legalize or otherwise legitimize the status of Givat Ha’ulpana, a neighborhood of the West Bank settlement of Beit El, near Ramallah.

In 2008, human rights organization Yesh Din petitioned to have the neighborhood dismantled on behalf of its Palestinian owners; in September 2011, the Court found that Givat Ha’ulpana was indeed built on privately-owned Palestinian lands – in simple terms, this is property theft. The state agreed to demolish the neighborhood (Hebrew) then, and the Court ruling set a deadline of April 2012 – or up to the first of May.

Now eight ministers are seeking any possible means to reverse that ruling: they have asked the State Prosecutor’s office to find a way to delay the evacuation, and the delay will be used to explore all possible means of ensuring that the neighborhood remain in place. Likud Knesset Member Danny Danon posted his party’s explicit support for the settlement on his Facebook page, writing that “the evacuation of Ulpana crosses the line for Likud.”  The government thus hopes to openly circumvent the original Supreme Court ruling and actually wants no less than to force the legal system to become the body that justifies and regularizes settlement expansion.

The government now seems passionate and creative in its commitment to saving the 30 families of the five-building neighborhood in Beit El: Defense Minister Barak has proposed that they be moved – to other buildings inside Beit El, and only if his preferred option of legalizing it fails completely. Today, Maariv reports (Hebrew) that the government is considering two further options: To ask retired Supreme Court Justice Edmond Levi to lead a committee that will provide a legal arrangement for the illegal settlements (there are others awaiting permanent government approval) or else to establish a new committee to re-consider how this specific neighborhood can be legalized.

With the original ruling against Givat Ha’ulpana one year ago, the Prime Minister agreed that the neighborhood must indeed go. His current position is that “the public cannot tolerate” the evacuation of the settlers, a total reversal – apparently in light of impending danger that the policy might actually be implemented.

Each development highlights the bizarre and dangerous operating rules of this government.

Netanyahu’s statement about the public is insulting, but typical: the vast majority have never heard of Givat Ha’ulpana and has no clue where it is. The statement is quite obviously intended to make the public think that this is what it thinks. Maybe that way, herds of citizens will dutifully think of those 30 families instead of their own, forget about gasoline prices, rising electricity and water bills, low salaries, high rents, consumer abuse. Netanyahu’s statement also seems calculated to convince the world that the Israeli public is consumed with these five buildings and may dissolve into a civil war if they are moved.

Barak’s position is indefensible for someone who still maintains a lame show of support for a two-state solution. Moving the families back to “Beit El proper” is a compromise? Beit El lies north of Ramallah, well beyond the separation wall, which is fast losing relevance as a de facto border. No one even seems to remember the former-former de facto border of the Green Line.

The developments surrounding Givat Ha’ulpana showcase of the government’s prized policy: expand settlements at all costs, in all regions, in all ways; circumvent the Supreme Court; overturn the leadership’s own policies at will; push the bar of settlement acceptability in public discourse as far beyond the separation wall as possible, by making claims so wild that retreating to completely illegitimate starting points is seen as moderation and restraint. And finally, the real goal: strengthen the existing reality of one sovereign ruler over the territory from the Jordan to the sea.

Carmel settlement seen behind Umm el Kheir demolition (Photo: Operation Dove)

This week, national-religious MK Zevulun Orlev (Habayit Hayehudi) was interviewed on an Israeli news show called London & Kirschenbaum about his proposal for a bill to legalize illegal settler outposts in the West Bank (yes, you read correctly –  to make legal what is illegal). The private bill, which has been tabled due to the Prime Minister’s objection, would bar the state from demolishing and evacuating settler outposts in the West Bank that have been around for four years and have at least twenty families living in them.

One such outpost is Migron, which has been the center of controversy in the news in recent days as the government has once again demonstrated its pro-settler agenda.  The Supreme Court has ruled the outpost must be demolished by March 2012, but Prime Minister Netanyahu has circumvented the decision by reaching an agreement with the settlers to move their illegal outpost two kilometers over and turn where they live now into a farm. Peace Now has an informative report on the Migron situation which can be found here.

So getting back to MK Orlev: In his interview, he defended the bill with the argument that (paraphrasing from the Hebrew): families who moved to the West Bank in good will and with government support cannot be evacuated from their homes because no civilized country in the world has a policy of house demolitions.

MK Orlev must therefore be unaware of his government’s deep-rooted policy of home demolitions, including the 200 house demolitions that took place in the West Bank and East Jerusalem in 2011 alone, as well as the demolitions that took place on Wednesday in Umm al Kheir, and the day before that, in Anata.

The Bedouin village of Umm al Kheir in Area C in the Southern West Bank has been suffering from repeated demolitions in recent months. The state claims that the Palestinians who bought the land as refugees following the war in 1948 do not have the rights to the land, even though they have been living there since the 1950s. In reality, the settlement of Carmel established in the 1980s is the reason for the demolition. Without moving these Palestinians out, the settlement cannot expand.

(Photo: Guy Hircefeld, Ta'ayush)

An Israeli soldier can be seen smiling at the wreckage:

(Photo: Guy Hircefeld, Ta'ayush)

(Photo: Guy Hircefeld, Ta'ayush)

Aftermath (Photo: Guy Hircefeld, Ta'ayush)

Those $100 billion (or 80, or 120, I don’t care, it’s all estimates) wouldn’t have made our situation any better. And we, the middle and lower class, Israel’s 99%, would still have had to go to the streets. Let me tell you why:

It’s the system.

It’s the corporate capitalism.

It’s the Bibiconomy.

That Bibiconomy, a system based on that trickle-down-economy-that-doesn’t-really-trickle-down doctrine from Wall St., would have made sure that none of us would ever see much from that stash – if anything at all. Nor will we see it if the occupation ends tomorrow.

Because it’s not about saving money and suddenly everybody’s rich. It’s about how the state spends, how the state takes, and who it gives to.

Peace Now believes settlements cost at least 2 billion shekels a year. That’s a nice chunk of cash. I wonder how the state would allocate it? Hmmm, maybe we can learn by looking at how the state allocated funds during Israel’s economic, start-up boom? You know, that Israeli success that everybody’s talking about? I mean, you can’t go to a dinner party around here without someone mentioning the now famous “Start-up Nation” book and how Israel is an economic wonder that managed to get through the economic crisis unscathed, and how Bibi knows his numbers, and how Governor of the Bank of Israel Stanley Fischer is actually God and so on and so on.

As Shaul Amsterdamski, Head of News at the financial daily Calcalist, pointed out today[HEB], according to all numbers from the Finance Ministry, the Israeli economy did indeed grow over the past decade. Lots of money was made. But only by a certain amount of people.

Amsterdamski has some astonishing numbers:

The top ten percentiles in Israel hold 35.2% of the net income (as opposed to 32.4% in 2000 – an increase of 8.6% over a decade)

The bottom ten percentiles hold 1.2%

Between 2000-2010, the top ten percentile was the only of all percentiles to go up – all the other 90% went down.

The annual net income of the bottom ten percentiles grew between 2000-2010 by 15.2%.

But the annual net income of the top ten percentiles grew by 62.6% – four times as much.

The average income in the bottom ten percentiles is 889 shekels ($240) a month.

The average income in the top ten percentiles was 25,703 shekels ($6946) a month. That’s 29 times higher. 29!!!

So, while it’s true that more money was made – by everyone – the gaps just kept on getting bigger and bigger. And that’s without taking into consideration the cost of living, which has basically crippled everyone from the middle class down. Corporate capitalism, orchestrated under Netanyahu’s two terms as Prime Minister and also a term as Finance Minister, literally gave money to the rich and took from the poor. It was his tax reform that did this.

This is how the money that could have been saved – and the money that will be saved – from the occupation will end up. Those 2 billion shekels ($540 million) a year won’t trickle down. They’ll just stay right up there and keep going to the rich and to the defense ministry, who will find a new threat to scare us into pumping up its enormous budget even without an occupation.

If Israel were a more egalitarian society that didn’t pander to the rich, then yes – I would have agreed: ending the occupation will boost the socio-economic status of Israelis. But until Israelis – and protesters across the world – change the system and how that money is spent, you can keep on dreaming about seeing a penny.

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More gas, anyone?

The good news just keeps on rolling in for Israe’s mega-tycoon Issac Tshuva. After the huge success in finding gas at Leviathan, opposite the coast of Haifa, Tshuva does it again in a license called Dolphin 1. Although on a much smaller scale, this find raises some interesting questions:

Issac Tshuva (phoyo: wikimedia commons)

Just how much luckier is Tshuva going to get, and if he does, will he still ask the state to go easy on his profits? Pretty please? With oil on top?

It’s starting to look like these gas finds off the coast of Israel aren’t just a one-off. If it keeps going like this, it’ll change geo-political statuses in too many ways to count. Some regional powers are already getting jealous…

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It’s good to be Chief

Former Chief of Staff, Gabi Ashkenazi (photo: wikimedia commons)

Not many people noticed this little one, but big ‘ole former IDF Chief of Staff Gabi Ashkenazi, just got a nice cozy job at a gas company.

He’ll be getting 100,000 shekels ($27,000) a month for ¾-time job as consultant on strategic issues.

Good way to pass those three years he has to wait by Israeli law before entering politics. Which is what you do when you’re Chief of Staff in Israel.

Haaretz also pointed out an interesting little tidbit:

His ties in the military community could serve Shemen well, as it will need Defense Ministry permits to drill by the Palmahim shore. Back in 1993, the first time the seabed off Palmahim was explored, the military effectively halted the drilling by requiring that on demand, the rig be capable fo being evacuated from the site within 24 hours.

Only in 2006 did the Defense Ministry reach an agreement with the explorers. Upon the ministry’s order, the agreement states, most of the team running the site would have to decamp immediately, leaving behind a skeleton staff – and the rig. That won’t have to move. Only now, however, has Shemen applied for formal approval from the ministry, which remains pending.

Sure, he’s got connections with the Defense Ministry – but we can’t say that he and Defense Minister Barak are best pals, now, can we?

It should surprise few that the announcement is just another smokescreen – a fraud, really – that is meant to protect the settlement enterprise from legal and international pressures bearing on it.

Building in the settlement of Hahashmonaim (photo: Oren Ziv/activestills.org)

Netanyahu’s announcement that he would have only three outposts dismantled is actually a major step backward. Previous Israeli prime ministers committed several times to dismantling all outposts, as per the Road Map and various other agreements. Previous heads of government repeatedly announced they were about to execute this decision – but none of these promises was ever carried out. Of over a hundred outposts, only nine homes in Amona were dramatically demolished, after the courts left the government no choice. And the bulk of Amona itself remains standing to this day.

Last year’s 10-month settlement freeze applied only to ‘legal’ settlements; the freeze was not enforced in the outposts, which are illegal according to Israeli law (although all settlements are illegal according to international law); there, building continued as usual.  The legalization of outposts built on state land will presumably include the legalization of all this construction as well. If it were not already clear that the freeze was a sham, now Netanyahu has managed to violate it retroactively.

It is important to remember, too, that the term “state land” is highly misleading when applied to the West Bank.  A lot of private Palestinian land was declared to be state land by IDF lawyers, utilizing questionably legal ruses. Although public land, according to international law, is to be used for the benefit of the occupied population, Palestinians are allowed nowhere near it. These lands have been almost exclusively reserved for the construction of the settlements. The unauthorized outposts built on this “state land”, which Netanyahu now intends to legalize, are often built intentionally to block access to Palestinian private land, even those plots which are still recognized by the Israeli authorities as such. All of this is ignored.

The prime minister said yesterday, “We need to do things that will placate the international community so that we can protect the settlements.” That is exactly what he is doing.  By declaring his intention to dismantle three illegal outposts, he is making a show of responding to demands not just from the international community, but also from the Israeli courts.

The legal strategy adopted by the current government – brazenly claiming it will implement the law whenever and however it likes – has not found favor with the justices. In recent months, high court judges have harshly criticized the government on this issue, signaling on several occasions that they would issue a time-bound order to demolish outposts, and even parts of authorized settlements that were built on private land. Netanyahu’s decision reflects a reversion to tactics employed previous governments: making hollow promises that will never be fulfilled in order to give the courts an excuse to avoid this explosive issue, while they wait for an eviction that never happens. Only now this tactic is packaged with a decision to legalize vast amounts of recent construction, adding dozens of new authorized settlements to the current stock.

Although Netanyahu is unlikely to evict all or even most construction on private land, it is quite possible that he intends to choose one site and create an evacuation spectacle. The forced evacuation of Amona, for example, was a huge and dramatic media show. Images of mounted riot control police charging defiant teenage settlers, and thousands of police officers and soldiers mobilized, made a strong impression on the Israeli public, with many analysts raising the dreaded specter of civil war. These evacuations provided an excellent excuse to avoid the evacuation issue at home, while presenting the government as courageous and relieving pressures from foreign governments.

In fact, it is not necessary to evict the settlers from the illegal outposts. As in most cases, turning off the money tap is much more effective than violent confrontations. The truth is that the government, for all its protestations, supports the outposts. The regional councils, as well as other organizations and public bodies financed by the government, divert funds to sustain the outposts, providing fuel for their electricity generators and trailers to live in. Since this is an illegal activity, all the government has to do is stop the transfer of funds. There are other legal means to avoid confrontations and media spectacles, too. But this government is not looking for a way to tackle the problem of the settlements – they are looking for ways to protect and extend it.