Efrat settlement 370.
(photo credit: REUTERS/Baz Ratner )
Opponents of Israeli settlements in the West Bank and supporters of a two-state
solution should support the Levy Commission’s affirmation of Israel’s rights in
The commission concluded that “Israelis have the legal
right to settle in Judea and Samaria and the establishment of a settlement
cannot, in and of itself, be considered illegal.” It did not say, however, that
the settlements should stay where they are.
The objection made to many or
all of the settlements is that they are thought to interfere with peace
negotiations and/or block a two-state solution. These arguments are just as
strong if the settlements are considered legal as they are if they are thought
to be illegal; the question of legality is separate from that of prudence about
Israel’s settlement policy.
The Levy Commission didn’t claim that its
findings about the legal status of settlements and Israel’s claims to Judea and
Samaria meant that Israel should keep the settlements, nor did it reject the
idea of transferring the bulk of Judea and Samaria to a Palestinian state. It
also did not speak of the disputes about private ownership of particular pieces
of land used for settlements.
There are two problems with the common
assumption that one who feels strongly about restricting settlements and
negotiating a two-state solution should strengthen his case by supporting the
international position that the settlements are not just imprudent but also
illegal. First, it is based on a falsehood – the settlements are not illegal.
The director of the Israel Policy Forum (IPF) essentially conceded as much to
Haaretz, while attacking the Levy Commission: “[Former Foreign Ministry legal
adviser and Ambassador to Canada Alan] Baker seems to have misunderstood the
nature of our concerns, which stem from the added impediments the Levy Report
poses for achieving a diplomatic solution to the Israeli-Palestinian conflict –
not the technical and legal reasoning used to arrive at its conclusions, which
is irrelevant to our concern.”
In other words, he said, the legal
arguments of the commission may be correct, but they make it harder to achieve
what we think is the best diplomatic solution. The correct response to the Levy
Commission for those who share the IPF’s concerns is to say – as many supporters
of the commission do – that even though the report is correct, it is not a
reason to keep the settlements or to object to a Palestinian state.
second problem is that rejection of the Levy Report has the effect of helping
the attack on Israel’s legitimacy. The report’s conclusion permits Israel to
say, “Our settlements are legal, and we have a legal claim to the land, but
because of our desire for peace we will agree to restrict settlements and try to
negotiate a division of the land.” This is very different than Israel admitting
that it had no right to make the settlements in the first place.
up land you own – or may own – to make peace is very different from giving up
land that you took with no right.
If Israel is seen as a thief who drops
the stolen goods, the situation is different than if Israel is viewed as
pursuing a compromise towards peace by relinquishing its claim to disputed
Israel has very little basis to resist any terms of an imposed
international plan concerning the territories if it must admit that Judea and
Samaria are “Palestinian land” to which it never had any legal claim, which it
has been occupying only because it had the military strength to take it, and
because it served security interests. There will be little international
sympathy for Israel as an admitted thief.
Fortunately, Israel has not
stolen anyone’s land. Even if it is ultimately decided that the way to achieve
peace is for almost all of Judea and Samaria to become Palestine, it was not yet
Palestinian land when Israel took it. Israel does not have to go into
negotiations as a guilty party. The purpose and point of creating the Levy
Commission to address the question of law was to enable Israel to stand up
against those who want to treat Israel as a thief.
who believe that Israel can only prevent its destruction by restricting or
retreating from settlements should endorse the Levy Commission so that they can
urge Israel’s government to demonstrate its commitment to peace by not standing
on its legal rights, and so that Israel can go into negotiations as a
self-respecting and lawful member of the international community. Loyal citizens
of Israel should not deny Israel’s rights – and its fundamental moral position –
in order to improve the argument for their diplomatic strategy.
advocates of Israeli withdrawal from the West Bank are so convinced that only
such a withdrawal can save Israel that they are willing to brand Israel as a
thief of Palestinian land if such a false brand is necessary to compel Israel to
end the occupation. Unfortunately, a byproduct of that strategy is that it
undermines the legitimacy of Israel’s claim to its territory within the pre-1967
The Levy Commission – like many previous legal opinions – says
that the League of Nations’ Mandate for Palestine, which was reaffirmed in the
UN Charter, is still valid. The mandate was an international decision to
designate part of the former Ottoman Empire called Palestine as the Jewish
homeland, and it specifically authorized Jewish settlement in all the land west
of the Jordan River.
This mandate is the legal authority for the Jewish
state, and it applies equally to both sides of the pre-1967 lines. Anyone who
denies its application to the West Bank denies its application to Tel Aviv and
Haifa. While the mandate doesn’t determine what the borders should be in the
future, it does say that Israeli settlements were legal – however unwise they
may have been, and however much they may now stand in the way of
The previous Netanyahu administration created the Levy Commission
because it thought it important to increase recognition of the legal basis of
Israeli actions in Judea and Samaria.
But in the face of attacks by
settlement opponents, the government hasn’t stood up for the commission and its
report. The government was right to appoint the Levy Commission. The new
Netanyahu government should go one step further and adopt the Levy Report, and
challenge the myth that Israel stole Palestinian land.
The writer is a
founder of the Hudson Institute and a senior research associate at the
Begin-Sadat Center for Strategic Studies. ■ BESA Center Perspectives Papers are
published through the generosity of the Greg Rosshandler Family.