The legality of the settlements

The Levy Report is Israel’s response to those who unfairly and incorrectly conclude that the settlements are illegal under int'l law.

A view of the Jewish settlement of Maale Ephraim. (photo credit: Reuters)
A view of the Jewish settlement of Maale Ephraim.
(photo credit: Reuters)
“Lawless are they that make their wills their law” – William Shakespeare
Unfortunately, in recent years we have seen a major escalation regarding the issue of the legality of Israeli communities over the 1949 Armistice Line (known as the “Green Line”). When asked about this, many foreign officials give little if any explanation for their accusations of illegality, fostering the inescapable impression that the issue is less about law and more about interests and politicking.
In the history of modern statehood, there is no other disputed territory in the world that has never known independent sovereignty. Other examples which are given in comparison, including Northern Cyprus and the Western Sahara, were part of recognized independent nations, whereas Judea and Samaria, what many call the West Bank, formerly of the Hashemite Kingdom of Jordan, was not.
However, many in Europe, and elsewhere, continue to conduct business with these other territories and only single out Israeli settlements for boycott. In fact, the EU has in recent weeks approved a contentious agreement with Morocco that extends EU-Moroccan fisheries treaties into the territory of Moroccan-occupied Western Sahara.
The deal both applies beyond Morocco’s recognized sovereign territory into occupied territory, and further, actually pays Morocco for access to the Western Saharan fishery. Compare this with the European Union’s position not to fund Israeli institutions located beyond the Green Line.
While every nation is entitled to enact its desired policy or render judgment on any given situation, to shroud such policy in the language of international law necessitates that it rest on a strong legal foundation.
Those that claim that there are no legal parallels to the situation in the territories should necessarily conclude that because the situation is unique, it is highly complex, and should therefore be thoroughly explored and researched before concluding a breach of international law.
Historically, Israel grappled with the status of Judea and Samaria almost immediately following the 1967 Six Day War, and thoroughly investigated the implications of these territories under international law.
Led by Supreme Court Justice Meir Shamgar, Israeli authorities concluded that due to the fact that Judea and Samaria – terms used in United Nations resolutions and not merely biblical terms as many claim – was not sovereign territory of any state, and thus it could not be “occupied” in the sense of international law. This single, crucial point forms a basis for Israel’s long-standing position regarding the settlements and their legality.
In fact, it was at Jordan’s insistence that the 1949 armistice line became not a recognized international border, but only a line separating armies. The Armistice Agreement specifically stated: “No provision of this Agreement shall in any way prejudice the rights, claims, and positions of either Party hereto in the peaceful settlement of the Palestine questions, the provisions of this Agreement being dictated exclusively by military considerations.”
The Armistice Agreement was recognized and supervised by the United Nations, standing in stark contrast to the many United Nations condemnations of Israel’s presence in the territories.
What is more remarkable is that an erosion of Israel’s position on the territories began in earnest after the signing of the Oslo Accords, witnessed by among others the European Union, which implicitly recognized Israeli settlements and placed them under Israeli civil and military administration.
Two years ago, a three-person committee was created, chaired by former High Court justice Edmond Levy, who recently passed away, to reexamine the legality of the settlements. The committee’s report – “The Status of Building in Judea and Samaria” – was released on July 8, 2012.
Rather than representing a radical departure from Israeli government policy as some have painted it, the Levy Report offers a reiteration of what has been normative policy. The report’s findings, based on historical and legal evidence, are that Israel’s position in Judea and Samaria is based on historic right as enshrined by decisions taken by the international community in the 20th century; that Israel is not an occupier; and that the settlements are not illegal.
It further concludes that the provisions of the 1949 Fourth Geneva Convention, regarding transfer of populations, cannot be considered to be applicable and were never intended to apply to the type of settlement activity carried out by Israel in Judea and Samaria.
Therefore, according to international law, Israelis have the legal right to settle in Judea and Samaria and the establishment of settlements there cannot, in and of itself, be considered illegal.
For those who would like to address the facts and how the case is laid out, the Levy Report is available online, as are similar arguments which appear on the website of the Foreign Ministry. No one can argue that Israel’s case is not made, and no one can suggest that Israel has no well-researched and documented claim.
The Levy Report is Israel’s response to those who unfairly, and in our estimation incorrectly, conclude that the settlements are illegal under international law. The Levy Report is our case made before the international community.
It would appear however that no amount of facts, evidence or lack of precedent can dissuade parts of the international community, a few brave voices notwithstanding, that the settlements are illegal.
I recently challenged the local representative of the International Committee of the Red Cross on their rendering of the Hague Regulations and the Geneva Convention regarding their possible application to Judea and Samaria, and have yet to hear a formal response, even while their initial article welcomed a debate on the issue.
Now I call on the international community to explain why the arguments contained in the Levy Report are invalid, rather than simply assert that they are, as is usually done, without addressing the enduring complexity of Israel’s rights in the territories.

The writer is Israel’s minister of agriculture and rural development.