Undoing the State of Israel

The Levy Committee ignored the international consensus on the ‘occupied’ territories.

By DAVID KRETZMER
Undoing the State of Israel (photo credit: AVI KATZ)
Undoing the State of Israel
(photo credit: AVI KATZ)
The Committee to Examine the Status of Building in Judea and Samaria, headed by retired Supreme Court Justice Edmond Levy, was established by the government in order to find a way to “regularize” unauthorized settlements on the West Bank. In its report published in July, the three-member panel opines that the West Bank is not occupied territory and that there is no legal impediment to the establishment there of settlements for Israeli nationals.
This opinion flies in the face of international consensus and the considered view of almost all experts in international law.
Rather than referring to leading works on international law, the views of international organs, such as the UN Security Council and the International Court of Justice, and the view of all other states, including the US, the committee chooses to rely on a position paper written by one of its members for a Jerusalem public affairs institute. This is not the way serious lawyers approach international law.
The report is riddled with egregious deficiencies.
For over 40 years, government lawyers have appeared before the Supreme Court and defended government actions on the West Bank – such as land requisitions, imposition of new taxes and “assigned residence” – on the basis of the international law of belligerent occupation. The court has ruled time and again that this is the regime that applies on the West Bank. The Levy Report ignores both the government’s position and that of the Supreme Court itself.
In an opinion written at the request of the prime minister in September 1967, Theodor Meron, the Foreign Ministry’s then legal adviser, wrote that the establishment of civilian settlements would involve violation of Article 49 (6) of the Fourth Geneva Convention.
Meron explained that since the first order promulgated by the military commander on the West Bank had expressly referred to this convention, Israel could not argue that it did not apply. For the Levy Committee, which included one of Meron’s successors, this opinion does not exist.
The legal argument against the establishment of settlements on the West Bank rests, inter alia, on Article 49 of the Geneva Convention, which prohibits the transfer of the occupying power’s own civilian population into the occupied territory. The article does not refer to the ethnic, religious or national affiliations of that population. Thus the prohibition in Article 49 applies to all Israeli nationals, Jews and Arabs alike. The committee creates the false impression that the prohibition is aimed at denying the right of Jews to settle in all parts of Palestine.
The committee rests the right of Jews to settle in the West Bank on the 1917 Balfour Declaration and the 1922 League of Nations Mandate over Palestine. It fails to explain why these instruments have legal implications for the international obligations of the independent State of Israel.
Even if one were to regard the commitment in the Balfour Declaration and the Mandate as relevant today, every student of Zionist history knows that they both refer to the establishment of a home for the Jewish people in Palestine, rather than the establishment of Palestine as the home of the Jewish people. How then do they amount to recognition of the right of Jews to settle anywhere in Palestine? Between 1949 and 1967 Israeli decisionmakers were fearful that attempts would be made to force Israel back to the 1947 partition boundaries. Thus despite the stipulation in the 1949 armistice agreements that the boundaries were merely military lines, the Israeli position was that over time these boundaries had become recognized as the political borders of the state.
Yet, the committee claims that all Israeli governments have raised claims of sovereignty to the West Bank. Apparently, for the committee, the history of Israel begins after 1967.
Ironically, the Levy Report is another instance of the undoing of the State of Israel.
The legal opinions of its government and highest court are ignored; the relevant documents in international law are not the treaties to which the state is a party, but the pre-state Balfour Declaration and League of Nations Mandate; there are no nationals of the state, only Jews; history begins only after 1967. If an official committee takes this line, who needs other efforts to delegitimize the State of Israel?