Repeat After Me: Israel's Settlements in Judea and Samaria Are Entirely Legal. Israel Is Not an 'Occupier.'
Dear Friend of FLAME:
"It's the settlements, the settlements!" It'd gotten so the greatest obstacle to peace between Israel and the Palestinians seemed to be Jews building housing in Judea and Samaria (also called the West Bank or the "Palestinian territories").
As you know, the Palestinians currently refuse to meet Israel at the negotiating table until such settlement building ceases. Early in his administration, President Obama demanded that Israel stop the settlements---and Prime Minister Netanyahu actually acquiesced for 11 months (during ten of which the Palestinians still refused to participate in peace talks).
But last month an extraordinary report declared Israel's settlements legal. At the request of Prime Minister Netanyahu, a panel headed by former Israeli Supreme Court Justice Edmund Levi analyzed Jewish settlement building in light of international law and concluded that this activity does not violate it. "Israel does not meet the criteria of 'military occupation' as defined under international law" in Judea and Samaria," the report concluded.
The report's conclusions were immediately condemned by leftists and the Obama administration. These criticisms, however, were not based on the merits of the Levi panel's legal analysis, but rather on the sense that such conclusions were harmful to the so-called peace process. "We do not accept the legitimacy of continued Israeli settlement activity and we oppose any effort to legalize settlement outposts," said a U.S. State Department spokesperson. What this really means is that the administration is afraid the Palestinians are likely to be miffed, which is no doubt true.
But in another way the Levi report is a momentous breakthrough. It clarifies with undeniable legal logic that the West Bank was not part of a sovereign nation when Israel drove the Jordanians out and took it over after the 1967 war. The report gives legitimacy to those who reject the notion that Israel is doing something it has no right to do. What's more the report undermines the entire notion that there's such a thing as "Palestinian territories." The fact is, aside from private, deeded Palestinian land, the Palestinian people do not have, nor have they ever had, inherent, inalienable rights to any of the West Bank.
This is not to say Israel should not negotiate peace with the Palestinians nor to say that the Palestinians should not have a state someday in some part of the West Bank. What it does say is that in negotiating peace with the Palestinians, Israel can justifiably start from a position of legal innocence. The territory is not "occupied," it is "disputed."
This week's FLAME Hotline gives you a quick summary of the Levi report, including the legal basis on which the panel based its conclusion. You'll no doubt find this useful, since most mainstream media completely ignored it.
I hope you agree that this article helps clarify how the Levi report importantly changes the "narrative" around peace negotiations. You'll no doubt find it useful in explaining the situation to friends and colleagues. Finally, I hope you'll take two minutes to help Israel's cause by passing this week's issue along to your email list. Just use the "send to a friend" button at the bottom of this email and paste in your email list, or use the buttons above to share it via social media.
Thanks for your continued support of FLAME, and thank you for your support of Israel.
The Unoccupied Territories
The biggest news story of the week, perhaps of the year, slipped under the media radar yesterday: [A] report drafted by the Committee to Examine the State of Construction in Judea and Samaria, headed by retired Supreme Court Justice Edmond Levi. The report touches upon the heart of the Israeli-Palestinian conflict and makes sense of the matter. One can say that the government received permission to toss attorney Talia Sasson's report on settlement outposts into the dustbin of history. (Editor's note: The Sasson Report, commissioned by Prime Minister Ariel Sharon and published in 2005, concluded that Israeli state bodies had been discreetly supporting West Bank settlements and outposts that were illegal under Israeli law.)
Levi's report concludes that Israel has the right to settle Jews in Judea and Samaria, and that it is incorrect to say that building settlements is illegal according to international law: "According to international law Israelis have the legal right to settle in all of Judea and Samaria, and at the very least in territories under Israeli control based on agreements with the Palestinian Authority; and therefore the creation of settlements in and of itself is not an illegal act."
The committee also concludes: "From the viewpoint of international law, statutes regarding the 'occupation' are inapplicable due to the special legal and historical circumstances regarding the decades-long Israeli presence in Judea and Samaria."
Since the 1970s, senior jurists in Israel and abroad have argued that Israel is completely within its rights to settle its citizens in Judea and Samaria. Among them are the President of the International Court of Justice in The Hague, Judge Stephen Schwebel; Prof. Elihu Lauterpacht of Cambridge University; and Prof. Eugene Rostow, the former Deacon at Yale's school of law, all of whom, along with others, have voiced their clear opinions in regards to Israel's just claim over Judea and Samaria within the historical and legal circumstances.
Since the Six-Day War, however, Israel has refrained from declaring the permanent status of the territories it won, excluding Jerusalem and the Golan Heights.
Into this vacuum Chief Justice Aharon Barak and others inserted the legal paradigm of "Belligerent Occupation," according to which military governance draws its authority from the rules of international law in territories that were won in war. The significance is that Israel is deemed, allegedly, to be a foreign occupier, and it doesn't have the right to apply its sovereignty over, or to move its civilian population into, those territories.
Some of the measures which hostile legal bodies have taken against the settlement enterprise in Judea and Samaria stemmed from this perception. These measures, which aimed at strangling the settlement enterprise, received justification from the State Prosecutor's Office due to its adoption of the Belligerent Occupation paradigm, despite the current government's many objections.
If the territories aren't occupied, the Left has argued over the years, they must be annexed, including the populations there. But the reality isn't a polar one, it is complex. The current report recognizes an intermediate reality: At hand is a disputed territory; two entities hold it; none of the sides is considered an "occupier." There is disagreement regarding ownership, which needs to be clarified through different means, but there is no definition of "occupation" in the international legal sense of the word.
A perception of Belligerent Occupation occurs when one country conquers the territories of another country. In our case, the last sovereign power was the British Mandate, which received its legitimacy from the League of Nations to create a national home for the Jews in the Land of Israel.
The Jordanian occupation was never recognized (aside from Britain and Pakistan), and Israel never conquered "Jordanian territory." Moreover, Jordan renounced its sovereignty over these territories toward the late 1980s.
Another dramatic point in the report is its stance on communities which were built without a government decision ("Unauthorized"). The report concludes that because their creation and development occurred with the knowledge, encouragement and agreement of the most senior government echelons, "this conduct must be considered to be 'authorization.'"
Therefore, "the act of eviction from these communities is impractical and a different solution must be found, such as compensation or alternative land offers. For this reason the committee has suggested to the state that it refrain from carrying out demolition orders in these communities, which it is in essence responsible for creating."
If the government adopts the report's conclusions, it means that the folks working with Mike Blass over at the State Prosecutor's Office will no longer be able to deny, in the state's name, the existence of these communities and won't be able to advance their destruction through dry legal claims.
The government has taken a great step in the right direction on this matter, much to the chagrin of the enemies of the settlement enterprise, and to the joy of its supporters, comprising most of the Jewish population in Israel.
Now a world war will ensue against the report and against Levi.
All the old arguments and slandering tactics will be dusted off and put to use; left-wing organizations will enlist the help of their friends from across the globe, and the alienated juridical elite will fight against the most natural thing to us as a people: the return to our homeland, the cradle of our nationhood.
There is no need to become over-excited; this is exactly what this government was elected for. It is the will of most of the people, and it is also a historical decree.