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The art of legitimizing occupation

Resting on documents older than the state itself, the Bibi-commissioned Levy Report claimed that there is no occupation in the West Bank. The problem? Levy’s findings are still being quoted in other reports.

By Yossi Gurvitz for Yesh Din

As some may remember, two years ago the Netanyahu government commissioned the Levy Committee Report in a desperate attempt to find a modicum of legal justification for the ongoing presence of the illegal outposts in the West Bank. The head of the committee, the late Justice Edmond Levy, who passed away recently, is perhaps best remembered as the only justice in Israel’s Supreme Court who took the position that Israel’s Disengagement Plan was unlawful.

Yesh Din on Monday published a new report entitled “Unprecedented,” discussing – or rather dissecting – one of the strangest documents that has been published in Israel in recent years: the Levy Committee Report. The Yesh Din report was written by attorneys Anu Deuel-Lusky and Keren Michaeli and prepared jointly by Yesh Din and the Emile Zola Chair for Human Rights at Tel Aviv University.

Illustrative photo: An activist puts a Palestinan flag on the Separation Wall facing the Modi'in Illit settlement (Photo: Anne Paq/ Activestills.org)

Illustrative photo: An activist puts a Palestinan flag on the Separation Wall facing the Modi’in Illit settlement (Photo: Anne Paq/ Activestills.org)

Netanyahu was quick to declare his full confidence in Justice Levy, but the government never adopted his report.

Why not? Because the Levy Report is a bit like the reports commissioned by the major tobacco companies in the 1960s and 1970s that claimed smoking was not dangerous, or at least that no risks had been proven. It later emerged that these reports were thrifty with the truth at best, and completely fabricated at worst. As Lusky and Michaeli show, the Levy Report is so negligent in legal terms that had the Netanyahu government adopted it, it would have run the risk of becoming a laughing stock.

WATCH: Yesh Din presents ‘the solution to Israel’s occupation problem’:

What is the Levy report’s basic argument? Firstly, it claims that there is no occupation: the territories seized by Israel in 1967 are not occupied territories. This claim is highly problematic, since the status of the territories is determined not by those who control them but by international law – a fact that even the Levy Committee did not attempt to deny.

As our report explains (p. 7):

The status of any area in general, and of the West Bank in particular, is regulated not by the domestic laws of states, but in accordance with the rules of international public law. Thus, for example, a state cannot declare its sovereignty over the open sea or over outer space, since both domains have been recognized (separately) as belonging to humankind as a whole in accordance with conventions and international customary law. The vast majority of the means by which a state may acquire a territory, or is prevented from so doing, are regulated in accordance with international law […] Similarly, the status of the areas of the West Bank can also not be determined solely in accordance with Israeli law. Even the Levy Committee concurred on this point. In the relevant framework of international law, the question of Israeli sovereignty in this area depends on the circumstances in which Israel assumed control of the area; the manner in which it regulated its control therein over the years; and the agreements it has reached with the representatives of the Palestinian population of this area.

International law is unequivocal on this matter. Security Council Resolution 446, adopted in 1979, establishes that the Territories are indeed occupied and the settlements illegal. We should recall that the Security Council resolution was adopted unanimously – the United States did not object, though it abstained. Security Council Resolution 465, adopted in 1980, states that the settlements constitute an attempt to change the demography of the West Bank, and condemns this policy. The Levy Report failed to mention this resolution, along with dozens of other resolutions of the UN General Assembly, as if they had simply evaporated into thin air.

The Levy Report also ignores the explicit ruling of the International Court of Justice (ICJ) in The Hague. Discussing the separation barrier, the ICJ ruled that the Occupied Territories and the settlements are unlawful. The Israeli Supreme Court has declared that it will not discuss the ICJ’s decision regarding the settlements, but it at least acknowledged that it exists. The Levy Committee chose to do not even that much.

In fact, the Levy Report essentially ignores the entire history of the Israeli occupation in the territories. The IDF and the Israeli government regarded the territories as occupied almost from day one of the occupation. Communiqué No. 3, which established the provisions of the Order Concerning Security Provisions in the Territories, explicitly established that the courts would observe the provisions of the Fourth Geneva Convention, “and where there is a contradiction between this order and the said convention, the provisions of the Convention take precedence.” (This clause was, however, nullified shortly thereafter.) As early as 1967 an Israeli jurist established that the settlements were unlawful, and the Supreme Court related to the territories as occupied in dozens of rulings. The Levy Committee should have been well aware of this – after all, its chairperson served for many years as a justice on the Supreme Court.

None of these basic facts are reflected in the Levy Report. But as we mentioned, even the report itself acknowledges that an international legal framework is essential as a basis for Israel’s conduct in the territories. So what can serve as this framework? The Levy Committee’s imaginative solution was to take us back to the days of the Balfour and the San Remo declarations.

Havat Gilad outpost, just south of Nablus. (photo: Yuval Ben-Ami)

Havat Gilad outpost, just south of Nablus. (photo: Yuval Ben-Ami)

There are two central problems with this approach. The first is that it placed Levy and his colleagues in a position similar to that of climate change deniers: so far away from the broad consensus of thought that they can no longer be seen with the naked eye. But that’s the lesser of the two problems.

The second problem has much graver ramifications for the State of Israel. The truth is that neither the Balfour Declaration nor the San Remo Declaration even mention a “state.” They speak of a “political home.” I can assure you that the diplomats of the time were well acquainted with the word “state” and more than capable of using it where they saw fit. The Levy Report claimed that, “they thereby recognized […] the right of the Jewish people to establish its home in the Land of Israel, its historical homeland, and to establish its state therein.” This assertion is frugal with the truth, to put it mildly. By rejecting the UN resolutions relating to Israel, the Levy Report undermines Israel’s very right of existence.

If there is no occupation, what is the status of Palestinians in the territories? Once again, the Levy Report prefers to ignore this issue. Allow me to quote a phrase in the San Remo Declaration that the report chose to omit: “it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine.” If there is no occupation, then the Levy Report should recommend following San Remo and granting Palestinians full “civil and religious rights.” Otherwise the outcome will be a system known as apartheid.

It is safe to assume that this dilemma is one of the reasons that the Netanyahu government has declined to adopt the Levy Report. But it is still out there, quoted in other reports as it attempts to pretend that this is an issue on which there are two reasonable positions. Well, there are still people who believe the earth is flat.

Written by Yossi Gurvitz in his capacity as a blogger for Yesh Din – Volunteers for Human Rights. A version of this post was first published on Yesh Din’s blog.

Related:
Resource: Inventing retroactive ‘solutions’ for land theft
Panel appointed by Netanyahu concludes: There is no occupation
Report that claims ‘there is no occupation’ presents an opportunity

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    1. Rab

      Unless I’m mistaken, UNSCR 446 is under Title VI of the Charter, not VII, and therefore is considered advisory, not law.

      The ICJ ruling is also advisory. What is worse, is that they almost entirely ignore 242 and 338, and certainly don’t address the issues those resolutions raise. They could argue that 242 is also under Title VI, but in fact it resides as an underlying clause in the Oslo Accords and therefore presents a binding obligation on both Israel and the Palestinians. That’s without getting into the absurdity of having a Russian and a Chinese judge determine the legality of anything Israel does.

      Along the same lines, it would be nice if pro-Palestinian activists, especially Israeli ones, would stop pretending that “international law” is something that is locked in or that it isn’t tainted with the stench of politics and particularly the strength of the Muslim bloc. For example, if you look at the Rome Statute, the Arabs actually succeeded in changing the definition of apartheid to suit their anti-Israel goals.

      Finally, the key problem with this article is that while it’s quaint to poo poo San Remo, Balfour and the UN Charter which grandfathered San Remo into the charter, you shouldn’t be so quick to dismiss just because it’s convenient for you. On the one hand, if Israel chose to annex Judea and Samaria, then there is a strong legal basis to presume that it could argue that San Remo grants this right. Also, the point of Levy’s report was the legality of settlement building. Well, if San Remo permits Jews to build a “home,” state or non-state, in this territory, then that is precisely what the settlements represent. They are a way of establishing a home for the Jewish people on this land.

      The Mandate granted by the League of Nations specified that all the land west of the Jordan River would be used for this Jewish home, not just the parts not conquered illegally in 1948 by Jordan. The only argument you have left is that settlements civil and religious rights of Palestinians are constrained by settlements, but in fact an equally compelling case can be made that Israel has given Palestinians ability to govern themselves (Areas A, B) and that its actions are security-related (look at terror numbers before Israel moved back into Areas A in 2002 and after, or before security barrier and after).

      Perhaps the author can present a more compelling argument than “Edmond Levy believes in fairy tales like a flat earth?” His report is actually fairly compelling, even if the politics don’t appeal to you. As to Netanyahu shelving it, perhaps he’s just taking prudent diplomatic steps?

      Reply to Comment
      • directrob

        Rab,
        The occupation is called occupation by the ICJ and security council resolutions. To deny the occupation is like claiming the earth is flat.

        1. Reaffirms the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem;

        Reply to Comment
        • Rab

          That there is an occupation is something I can’t dispute because both the Israeli government and its High Court have said that this is belligerent occupation.

          However, what is far from clear is whose territories these are, or what portion belongs to whom. You are obviously completely cleat about this so you should have no problem explaining to me what makes Judea and Samaria Arab territories. Go ahead.

          Oh, and the claim “because that’s what the international community says” isn’t good enough. You need to provide the legal framework to back this claim.

          My contention is the same as Edmond Levy’s and Dore Gold’s – that this land is disputed. Specifically, I note that the land in question has not had a sovereign since the Ottomans and therefore was nobody’s territory in 1948 and 1967; that the Arabs killed UNGAR 181 and therefore it has no effect on division of land; that without a state in sovereign control, the land under discussion had and has no party under whose sovereignty it resides; that the Quartet as well as the PLO and Israel have agreed that final ownership of this land will be determined by negotiations on the basis of 242/338 which stipulate that Israel must only leave “territories” not “the territories,” the best interpretation of which, as far as the Palestinians go, is that most of Judea and Samaria will be given to them and the worst interpretation of which would indicate that Israel has already met these requirements by forgoing any design on Jordan and on Gaza and therefore does not have to give up another inch; and, that the international community has granted this area as a Jewish home, and this was grandfathered into the UN Charter.

          So what is your case?

          Reply to Comment
          • directrob

            Israel cannot occupy Israeli land. The security council resolution states clearly the land is occupied and Arab (read Palestinian).

            To cite the article your view is “so far away from the broad consensus of thought that they can no longer be seen with the naked eye.”

            Reply to Comment
          • Rab

            You know, it’s okay sometimes to just admit that you don’t know or that the facts which with you’re presented contradict your views to such a degree that you can’t bring yourself to see things differently. Indeed, the word “Arab” is used with respect to this land, except that neither the countries voting on these resolutions nor you can demonstrate why this is Arab land. Just because isn’t good enough.

            Edmond Levy’s report doesn’t even bother spending much time on proving the legality of the settlements with respect to San Remo, the Mandate and the UN Charter because the case is so clear, straightforward and simple.

            Reply to Comment
      • Hostage

        Re: Unless I’m mistaken, UNSCR 446 is under Title VI of the Charter, not VII, and therefore is considered advisory, not law.

        Well you are mistaken. During the United Nations Conference on International Organization which met in San Francisco in 1945, attempts to limit obligations of Members under Article 25 of the Charter to those decisions taken by the Council in the exercise of its specific powers under Chapters VI, VII and VIII of the Charter failed. It was stated at the time that those obligations also flowed from the authority conferred on the Council under Article 24(1) to act on the behalf of the members while exercising its responsibility for the maintenance of international peace and security. See page 5, The Repertory of Practice of United Nations Organs, Extracts Relating to Article 25 http://legal.un.org/repertory/art25/english/rep_supp5_vol2-art25_e.pdf#pagemode=none

        Article 24, interpreted in this sense, becomes a source of authority which can be drawn upon to meet situations which are not covered by the more detailed provisions in the succeeding articles. see The Repertory of Practice of United Nations Organs, Extracts Relating to Article 24 http://legal.un.org/repertory/art24.htm

        The Repertory on Article 24 says: “The question whether Article 24 confers general powers on the Security Council ceased to be a subject of discussion following the advisory opinion of the International Court of Justice rendered on 21 June 1971 in connection with the question of Namibia (ICJ Reports, 1971, page 16)”. See Note 2 on page 1 of Sup. 6, vol. 3, Article 24 http://legal.un.org/repertory/art24/english/rep_supp6_vol3_art24_e.pdf

        Reply to Comment
        • Rab

          No, it turns out I am correct.

          https://en.wikipedia.org/wiki/Chapter_VI_of_the_United_Nations_Charter

          Do what I did and follow all the links in this article, particularly the ones following the statement, “There is a general agreement among legal scholars outside the organization that resolutions made under Chapter VI (Pacific Settlement of Disputes) are not legally binding.[4][5][6][7][8][9][10][11][12]”

          Then continue reading the article and follow other links. You will quickly be disabused of your confusion about this matter.

          Enjoy.

          Reply to Comment
      • Hostage

        Re: Yesh Din on Monday published a new report entitled “Unprecedented,” discussing – or rather dissecting – one of the strangest documents that has been published in Israel in recent years: the Levy Committee Report.

        Why should you guys get all of the fun? I’d pay for your smokes and the coffee. plus and a little for +972 to boot, if you’d just translate the portions of the report into English that the Prime Minister’s office left out and post it online somewhere, like Docstoc or Scribd, for scholarly use. You’ve got my email, just let me know.

        Reply to Comment
      • tod

        Rab, it is more complicated than what your words would seem to imply.
        http://www.iai.it/pdf/DocIAI/iaiwp1306.pdf
        The mandate made any Jewish immigration subject to “suitable conditions” and contained safeguards for the rights and position of the non-Jewish communities.

        The right granted to the Jewish people to settle in the mandated territories was never framed in exclusive terms. The British White Paper of June 1922 – the first document that officially clarified how the various issues at stake had to be interpreted – pointed out that the Balfour Declaration does “not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded ‘in Palestine’”. Zionist consent to this interpretation was requested, and received, before the Mandate was confirmed in July 1922. In Chaim Weizmann’s words: “It was made clear to us that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper [of 1922], and my colleagues and I therefore had to accept it, which we did, though not without some qualms”. It is only in light of these clarifications that the preamble and Article 2 of the Mandate text can and should be understood.

        Furthermore, after the United Nations General Assembly suggested the partition of Palestine in 1947 and the State of Israel was unilaterally established, the Jewish people’s rights under the Mandate have been fulfilled and they no longer have the unilateral right to settle in the former Mandate territory except for the State of Israel. In the words of Marcelo Kohen, international law professor at the University of Geneva, “une fois que le Foyer national a été établi sur une partie de la Palestine, et qui plus est, sous une forme étatique, l’immigration vers d’autres parties de la Palestine ne se justifie plus au titre de la Déclaration Balfour ou de l’accord de Mandat”.

        Reply to Comment
    2. shachalnur

      “War is peace.
      Freedom is slavery.
      Ignorance is strenght.”

      Reply to Comment
      • Tzutzik

        “War is peace.
        Freedom is slavery.
        Ignorance is strenght.”

        Don’t stop there Shaky baby. You and your kind perfected this sort of nonsense …

        Black is white
        Night is day
        Right is wrong
        Pink elephants fly …

        Reply to Comment
        • shachalnur

          Proof that for people like you there’s no difference between 1984 and 1948.

          Thank you for making my point.

          Reply to Comment
    3. This is all to answer a question about the “ongoing presence of the illegal outposts”?

      This seems a bit of bad editing. Israeli municipal (national) law seems to declare some settlements (in OPTs) legal and others not. International law appears to regard all the settlements (with their nearly 650,000 settlers as residents)(including Golan and East Jerusalem) as violating Fourth Geneva Convention adn other law.

      As to rab’s query (roughly: who owns the land?): we don’t know exactly yet who will own the land after the peace treaties (Palestine, Syria, Lebanon) are signed, because, obviously, they haven’t been signed yet. But that question doesn’t matter much, does it? If Israel wants to claim that it inherited the entire territory of the Palestine Mandate, let it claim away. Such a claim means, BTW, that Israel is ALREADY an apartheid state.

      But as OPTs are “occupied territory”, Israel has no right to do many things inside them, and building settlements and the wall are among them. Allowing Israelis to reside there is another. seizing land except for military necessity is another. You get the point.

      Reply to Comment
      • Rab

        My point is, precisely, that they are not “OPT.” There is a reason that Israel has claimed throughout that while it will respect the provisions of the Geneva Conventions, it is not bound by them in the instance of the territories.

        As for the tendentious use of the A word, it might influence some of the naive readers, but to me it’s just indicative of either someone who is terribly ignorant or terribly malicious.

        Reply to Comment
    4. Samuel

      But Pabel …

      How can any serious person take people like you sriously?

      Don’t you guys call Jews who live in the Jewish quarter of East Jerusalem settler occupiers?

      Are you people serious? Aren’t you aware that the Jewish quarter existed even before the Arab invasion of the 7th century? And it was already named the Jewish quarter.

      Reply to Comment
      • Haifawi

        In virtually all the cases it’s not prior residents living there. Just because I’m Jewish doesn’t mean I have a title deed to the Old City.

        And if I were to move there, I would be obtaining title under an Occupation legal system, where only Jewish residents of Jerusalem have the freedom to choose where to live in Jerusalem. ILA property is approximately 90% of West Jerusalem (and all of the Jewish places on the other side), and the ILA prohibits non-citizens (except Jews) from leasing their property.

        Reply to Comment
    5. Samuel

      So tell me, Haifawi, if we Jews are occupiers of East Jerusalem, how come the Arabs are not occupiers too? Didn’t they conquer East Jerusalem by force in 1948? Wasn’t Jerusalem meant to be an international city under UN Resolution 181?

      Of course it was. So according to your logic, between 1948 and 1967, the Arabs were an occupying power in East Jerusalem, right?

      But according to you, after Jordan attacked Israel in 1967 as a consequence of which East Jerusalem came under Israel’s control, suddenly now the Arabs are the rightful owners of East Jerusalem?

      Does that sound sane to you Haifawi? A war of aggression by the Arabs makes East Jerusalem a Jew free ethnically pure Arab city because they lost that war of aggression?

      This really is Alice in wonderland stuff, you do realize that Haifawi, don’t you?

      Reply to Comment