In July, the government-appointed Commission to Examine the Status of Building
in Judea and Samaria issued its findings. The Levy Report, named for the head of
the three-person commission, former Supreme Court justice Edmond Levy, has
triggered hysterical, damning responses not only from those beyond the Jewish
world that are traditionally hostile to Israel but also from much of the Left in
Israel and in the American Jewish community.
Its critics have labeled it
contrary to international law, a blow to the two-state solution, and an assault
on hopes for peace, among many condemning glosses.
But as one of the
report’s authors, international law expert and former Foreign Ministry legal
adviser Alan Baker, was quoted as stating, the commission’s task was to “examine
the situation of building in Judea and Samaria and to advise the Israeli
government accordingly, and to that end had to determine the legal nature of
Israel’s presence in the area. Nothing more, nothing less. No hidden political
agenda.” (The third member of the commission was former Tel Aviv District Court
judge Tchia Shapira.) The commission found that the establishment of Israeli
communities in Judea and Samaria was consistent with international law. While it
supported the legalization of so-called “illegal outposts” established without
full government authorization, it criticized Israeli governments for not
creating and expediting more orderly and comprehensive procedures for founding
settlements, determining their boundaries, handling Israeli registration of land
purchases in the West Bank, and adjudicating land disputes in the area. It
offered guidelines for correcting problems related to these issues.
LEVY Report’s findings should hardly have been surprising. The right of Jews to
settle in Judea and Samaria is founded on grounds much firmer than simply
arguments that the Fourth Geneva Convention does not apply to settlements
because these communities do not entail forced transfer of
Such arguments, while entirely sound, merely offer a generic
basis for maintaining that settlements are not contrary to international
Much more specific justification comes from the original League of
Nations Mandate for Palestine, which called for “close settlement by Jews on the
land, including State lands” of the Mandate, and article 80 of the United
Nations charter, which preserved the application of the League of Nations
One could argue that the Jews’ governmental body,
by accepting the 1947 partition plan for Mandate Palestine, essentially gave up
the right to Jewish settlement in areas not allotted to it. But the partition
plan addressed issues of sovereignty, not of residence.
the Palestinian side rejected the plan and failed to establish a successor
government in the areas that were to fall under its control. Subsequently, Judea
and Samaria were occupied (with the killing or expulsion of all their Jewish
residents) and annexed by Transjordan, which then renamed itself Jordan. But
only two nations, Britain and Pakistan, recognized Jordanian sovereignty in the
In 1967, Jordan – as King Hussein himself acknowledged –
launched hostilities against Israel, and Israel, in its response, gained control
of Judea and Samaria. In effect, whatever right to settlement Israel was
prepared to give up in 1947 became irrelevant when no legitimate alternative
government of Judea and Samaria emerged, and so the right to settlement
enshrined in the Mandate and in article 80 of the UN charter remains in force.
(The absence of an alternative sovereign claimant to the land is also relevant
to the Fourth Geneva Convention argument, as the Convention specifically
addresses a state’s actions in the territory of another sovereign state and
there is no such other state vis-a-vis Judea and Samaria.) It is also noteworthy
in this context that Jordan and Israel signed a peace treaty in 1994, which
established the international boundary between the two nations and entailed
Jordan formally giving up any claim to Judea and Samaria.
if less directly so, is UN Security Council Resolution 242, adopted unanimously
in the wake of the 1967 war. It calls for peace talks between Israel and
its neighbors and, rather than Israel’s return to the pre-war armistice lines,
for the negotiation of new “secure and recognized” boundaries. Further, the
authors of Resolution 242 explicitly stated that the pre-war armistice lines
made no sense as permanent borders, invited further aggression against Israel,
were untenable, and ought to be replaced.
Resolution 242 does not in
itself strengthen the already strong legitimacy in international law of Israeli
But it is relevant in several respects. First, most
settlements have been established with a view toward reinforcing Israeli claims
to key strategic areas in Judea and Samaria, those most germane to providing
Israel with defensible borders in the context of a peace agreement. In addition,
Resolution 242 does underscore the status of Judea and Samaria as disputed
territory, whose ultimate disposition is to be decided by negotiations between
Israel and its neighbors.
Those who assert that Judea and Samaria are
Palestinian territory and that Israel, by its settlements, is usurping what
properly belongs to the Palestinians, are distorting the actual status of these
areas in international law. (It is also noteworthy that the Palestinians have
likewise created new “settlements” in previously empty areas of the territories,
have done so largely without Israeli interference, and have done so with a view
toward preventing Israel from establishing defensible borders.) But in fact, not
all of Judea and Samaria are currently disputed territories, as Israel ceded
parts of these areas to the Palestinians in the context of the Oslo process. The
Oslo Accords entailed a division of these territories into Areas A, B and C.
Area A was placed under full Palestinian Authority control; Area B entailed
lands in which Palestinians assumed full civil authority while Israel retained
responsibility for security; and Area C remained under Israeli control. Areas A
and B comprise about 40 percent of Judea and Samaria and are home to about 96%
of the Palestinian population of the territories.
Some have argued that
Israel is not obliged to maintain its giving up of these areas as the
Palestinian Authority has never fulfilled its obligations under the relevant
Oslo Accords. In particular, it has never recognized Israel’s right to exist,
has never ended incitement promoting the murder of Israelis and delegitimization
and destruction of the state, and has never abandoned terror to advance its
anti-Israel agenda. But no Israeli government has sought to reverse the ceding
of Areas A and B.
As for the rest of Judea and Samaria, it has served
Israel poorly to be silent on asserting its rights, under international law,
both to security claims and to settlement there. Allowing the false assertions
and accusations of the nation’s enemies to go unanswered only undermines
Israel’s vital interests.
Kenneth Levin is a psychiatrist and historian
and author of The Oslo Syndrome: Delusions of a People under Siege.