Australia/Israel & Jewish Affairs Council

The Levy Committee, "Occupation" and Settlements

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Update from AIJAC

July 12, 2012
Number 07/12 #02

This Update deals with the implications of the Levy Committee report into settlements and outposts set up by Israel's Netanyahu Government. Its three legal expert members, led by a retired Israeli Supreme Court judge, found that the law of belligerent occupation "as set out in the relevant international conventions cannot be considered applicable to the West Bank" and that therefore settlements are not illegal, as is so often claimed in international discourse. The report has sparked some controversy both in Israel and internationally. (A translation of the conclusions and recommendations of the committee can be downloaded here.)

First up, the Jerusalem Post, in an editorial, does a good job of summarising the key findings and the legal reasoning behind them. The key point is that these laws were written for an occupation of the recognised sovereign territory of another state, and that no such state has a recognised claim on the West Bank - while Israel can cite the clear intention of the League of Nations to allocate the area as part of a "Jewish National home" grants it as good a claim as anyone else's. The paper notes that this invalidates the effort to paint the thousands of ordinary and productive Israelis living in the area as essentially criminals. For the Post's view of the significance of this legal report, CLICK HERE.

Next up, Canadian historian Gil Troy takes on the misrepresentations being made of this committee's findings both on the Israeli left and on the right.  In particular, while largely supporting the legal findings involved, he strongly objects to the argument that the claim that the status of the West Bank is not occupation as the term is generally used means that Israel should or even can hold on to all of the territory concerned. He makes a strong argument that this finding does not alter Israel's interests in a two-state resolution - and insists "The core issue remains how two stubborn peoples in love with the same land learn to live together." For his complete argument, CLICK HERE. Also making a strong argument that this legal finding is not opposed to peace, and indeed may facilitate it by encouraging a Palestinian recognition of the need to compromise, is American writer Jonathan Tobin.

Finally, the executive summary of a major new report on American policy on the issue of settlements from veteran Washington insider Steve Rosen. The complete report - available here - reviews the history of US-Israel agreements and disagreements over settlements. The report includes background on how the Obama Administration's early focus on a settlements building freeze as the key to restarting peace talks resulted in the creation of a new obstacle to negotiations. This short summary only briefly canvasses the full report's key points, which is well worth reading in full, but it does discuss the reality of the Bush-Sharon understanding of 2004, the complexities of Jerusalem, and some realities about current rates of settlement population growth. For the summary, CLICK HERE.

Readers may also be interested in:

  • Israel criticises a UNESCO decision to fund an astronomy chair at the Islamic University of Gaza, an organisation with strong links to Hamas.
  • Raymond Ibrahim on a call by Islamists for Egypt’s pyramids to be destroyed.
  • Analyst Elliot Abrams on the corrosive influence of corruption on the Palestinian political establishment.
  • A look at how unauthorised building activity by Palestinians in the last decade has erased the historic Kings Garden in the Jerusalem village of Silwan and the ongoing denial of historic Jewish links there.
  • Michael Rubin argues that Iran’s leaders will only seriously negotiate to end their nuclear program when faced with broad based sanctions and not the current narrowly targeted sanctions.
  • Daniel Pipes & Cynthia Farahat note that Islamist parties may have won Egypt’s presidential and parliamentary elections but General Mohamed Tantawi, Chairman of the Supreme Council of the Armed Forces, is the real ruler of Egypt.
  • Jonathan Spyer on how civil war in Syria is fomenting growing Sunni-Shi’ite tensions in Lebanon.
  • Some examples from the many stories and comments now appearing at AIJAC's daily "Fresh AIR" blog:
    • A post examining the improbability that former PLO chairman Yasser Arafat might have been poisoned by polonium.
    • Palestinians are disinterested in allegations Arafat was poisoned because they automatically believe Israel was responsible.
    • AIJAC’s weekly round-up of the good, the bad and the ugly in the Australian media on Israel and Jewish issues.

 

 


EDITORIAL: Settling truths

Jerusalem Post, 07/09/2012 22:45

At least the plain truth has now been reiterated – for the record. And it should be officially recognized as such by the government.

After nearly six months of investigations, three legal experts known colloquially as “the outpost committee” – a government-appointed advisory body – submitted some clear-cut conclusions.

For instance, the trio – former Supreme Court justice Edmond Levy, former Foreign Ministry legal adviser Alan Baker and former deputy president of the Tel Aviv District Court Tehiya Shapira – found that the hundreds of thousands of patriotic, productive Israeli citizens living in Judea, Samaria and the Golan Heights are not criminals, as many of Israel’s adversaries – and allies – would argue.

They also found that the 45-year-old settlement project, which has reunited the Jewish people to land resonating with Jewish history dating back thousands of years, cannot in any way be construed as an international crime.

The three men’s argument, backed up by their intimate knowledge of international law, is based on a few simple facts.

First, the British Mandate, which came into effect in September 1922 after being ratified by the League of Nations, called for the creation of “a national home for the Jewish people” in the territory west of the Jordan River, including Judea and Samaria.

Second, the 1947 UN Partition Plan for Palestine never replaced the British Mandate as intended. It was accepted by the Jewish community in Palestine represented by the Jewish Agency, but was rejected by both the Palestinian Arab Higher Committee and by the states belonging to the Arab League.

Third, in the wake of Israel’s War of Independence, when first local Palestinian militias and later the combined armies of Jordan, Egypt, Syria, Iraq and Lebanon tried but failed to snuff out the Jewish state. Jordan seized control of Judea and Samaria (the West Bank) and parts of Jerusalem, but its sovereignty over these areas was never recognized by the international community.

Fourth, after the Six Day War, when once again the combined armies of Egypt, Syria and Jordan, with the help of numerous other countries and organizations – including the PLO – tried and failed to wipe Israel off the map, Israel found itself in control of Judea, Samaria and Gaza, along with the Sinai Peninsula and the Golan Heights.

In 1988, Jordan ceded its claims to the West Bank to the PLO. But these so-called claims were less substantial than Israel’s for a number of reasons. First, the British Mandate never recognized Jordan’s right to the land west of the Jordan River.

Also, Jordan seized the territory in an aggressive offensive against the fledgling Jewish state. And the newly created Jordanian state – essentially a British construction – had absolutely no historical ties to Judea and Samaria, while for Jews, it is the cradle of Jewish civilization and statehood from the biblical era.

Far from “occupied,” the status of Judea and Samaria – if one is being generous with regard to Palestinian demands – can at best be described as sui generis.

The territory enjoys a unique status in international law as land that has never been unequivocally set aside for a specific people by the international community.

Even UN Resolution 242, which introduced the “land-for-peace” formula, calls on Israel to withdraw from “territories” in exchange for peace with its neighbors, but not all territories.

It was clear to the international community immediately after the Six Day War that Israel would retain an undetermined portion of Judea, Samaria and Gaza. (Israel has since magnanimously ceded the Gaza Strip to the Palestinians.) Unfortunately, the outpost committee’s conclusions are not so obvious to everyone. Just three months ago, for instance, UN Secretary-General Ban Ki-moon, in response to moves by Israel to legalize outposts, declared that all settlement activity was “illegal.” Ban’s position reflected the general perception of most of the international community and certain segments of the Israeli Left.

Unsurprisingly, Levy, Baker and Shapira might not succeed in convincing Israel’s detractors that settlements are legal and the men, women and children who populate them are law-abiding citizens by any criterion.

But at least the plain truth has now been reiterated – for the record. And it should be officially recognized as such by the government.

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Yes, There is No Occupation – Legally and Historically not Morally or Practically

Gil Troy

Jerusalem Post, "Center Field" blog
July 10, 2012

With the mind-numbing predictability of ants entranced by food, Israeli leftists and rightists are instinctively condemning or praising the former Supreme Court Justice Edmond Levy’s Committee for declaring that “Israelis have the legal right to settle in Judea and Samaria.” The report concluded that the laws of occupation “as set out in the relevant international conventions cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria spanning over decades.” I agree. Israel’s control over the West Bank is legal. But that does not mean it is practical, advisable, tenable, moral or should be perpetual.
 
 Both the Left’s hysteria and the Right’s euphoria distort the debate.  Rather than condemning the three-person commission report as “born in sin,” “stupid,” “ideological” not “legal,” and authorizing “crime” – as Yesh Din’s attorney Michael Sfard did -- leftists should acknowledge the arguments’ validity. July 24 will mark the 80th anniversary of the League of Nations’ confirmation of the British Mandate in 1922 which granted Jews the rights to settle between the Mediterranean Sea and the Jordan River, given “the historical connection of the Jewish people with Palestine.” Those rights remain.  November 29 will mark the 65thanniversary of the UN partition plan which due to the 1948 war was not fully implemented. This created a legally ambiguous situation in the West Bank, both when Jordan, ahem, “occupied” it until 1967, and continues today, after Israel seized the disputed, legally undefined territory in a legitimate war of self-defense. And the post-Six Day War, UN Resolution 242 called for “Withdrawal of Israeli armed forces from territories occupied in the recent conflict” – not “the territories” or “all the territories,” while using the o-word, occupied.
 
 These arguments are legally and historically valid. Leftists who profess to love peace should accept them, then confront Israeli rightists by saying, “Yes, we have legitimate, legal ties to this land. But I love peace so much I am willing not to exercise those valid rights because hundreds of thousands of Palestinians live there with their own national rights and needs.”  Israeli leftists lose credibility by minimizing the importance of Judaea and Samaria, of Hebron and Gush Etzion, to the Jewish people and the Zionist story. Returning something you believe you stole is meaningless.  Giving away something you know is yours, for pressing practical or ethical reasons, is magnanimous.
 
Israeli rightists have foolishly allowed their accurate reading of history and law to blind them to the complicated realities. Most Israelis do not want to control millions of Palestinians. A workable two-state solution would be good for the Jews, not just the Palestinians.
 
Just as Americans frequently misuse the word “constitutional” as a synonym for “good,” the international community often declares actions it likes “legal” and actions it dislikes “illegal.” This intellectual tic reflects the elaborate international legal structure developed after World War II which hoped to prevent another worldwide catastrophe. Unfortunately, the post-1960s politicization of these once universal principles, and the promiscuous labeling of phenomena as legal and illegal, have frequently confused matters, especially in the Middle East.
 
Rather than quibbling about legalities, let’s address the complicated realities. I reject the international community’s assumption – increasingly shared by many American Jewish elites – that the “occupation” is “illegal,” that settlements present the main obstacle to peace, and that the Palestinians have valid rights to the entire West Bank while the Jews do not.
 
Instead, I start with the historical understanding that in the area of historic Palestine, borders shifted and populations moved. Anyone’s monism – treating the messy Middle Eastern story as based on one single unifying idea – makes me moan. Accepting the chaos of the past encourages compromising in the present. In that spirit, the 70 percent Israeli peace consensus – the mainstream of the country consistently open to compromise – would keep the historic Jerusalem suburb of the Gush Etzion Bloc but would sacrifice historic Hebron, while affirming valid legal and historic rights there too.
 
The history that concerns me more is the tragic, destructive and self-destructive history of the Palestinian National movement, which has consistently rejected compromise. We should mark today, July 11, as the End of Arafat Delusion Day, the 12th anniversary of the start of the Bill Clinton-Ehud Barak-Yasir Arafat Camp David talks. Remember that Arafat did not even offer a counter-proposal in July 2000 to Barak’s sweeping proposal for a two-state solution – as Clinton himself confirmed. Arafat then proved to be the terrorist he was rather than the Nelson Mandela many dreamed he would be by unleashing a wave of terror. In his gripping, enlightening, stunningly fair book, The Anatomy of Israel’s Survival, Hirsh Goodman reminds us that: “The failure at Camp David and the ensuing violence were seen by both the Israeli Left and the Israeli Right as a total renunciation of the concept that peace was possible if Israel returned to the 1967 borders. Barak offered Arafat a deal considered by all to be substantial, fair, and beyond what any other Israeli had offered in the past. Still, the Palestinians wanted it all.”
 
Goodman notes that the pattern persisted through Mahmoud Abbas’s repudiation of Ehud Olmert’s generous proposals. Goodman wants to end the “occupation.” But he has too much integrity to manufacture a distorted history to serve his ideology, and instead acknowledges Israel’s “ball of thorns.”
 
Arguing about the legality of settlements and occupation is like neighbors quarreling about which one will have to pay the water bill as their row house burns. The core issue remains how two stubborn peoples in love with the same land learn to live together. Ideologues ignoring realities from all sides make peace more elusive, whether they label themselves “peaceniks” or not.

Gil Troy is Professor of History at McGill University and a Shalom Hartman Research Fellow in Jerusalem. The author of “Why I Am a Zionist: Israel, Jewish Identity and the Challenges of Today,” his next book, “Moynihan’s Moment: America’s Fight Against Zionism as Racism” will be published by Oxford University Press this fall.

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Israeli Settlements, American Pressure, and Peace

Steven J. Rosen

Strategic Perspectives, No. 12
Jerusalem Centre for Public Affairs,
June 14, 2012

Executive Summary

•    President Obama apparently believed that pressuring Israel to halt construction of homes in Jewish neighborhoods in parts of Jerusalem formerly controlled by Jordan would advance peace. In reality, the opposite ensued. As a result, he was the first president since the Madrid conference in 1991 to have had no sustained high-level, direct negotiations between the parties. Never before were peace negotiations held up by putting the wish for a settlement freeze first. Mahmoud Abbas participated in 18 years of direct negotiations with seven Israeli governments, all without the settlements freeze that he now insists is an absolute precondition to begin even low-level talks.

•    Obama's failure to distinguish construction in east Jerusalem from settlement activity in the West Bank put him at odds with the Israeli consensus. No major party in Israel, and no significant part of the Jewish public, is willing to count the Jewish neighborhoods that fall within the juridical boundaries of Jerusalem as “settlements” to be “frozen.” Moreover, the concept of agreed settlement blocs laid the basis for a compromise between the Israeli and American governments. In his letter of April 14, 2004, President George W. Bush acknowledged that, “In light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949.”

•    The Sharon government reached an understanding with the Bush administration to ban outward geographic expansion of established settlements, while reserving the right to continue expansion inside the“construction line”of existing houses.The New York Times reported on August 21, 2004, “The Bush administration...now supports construction of new apartments in areas already built up in some settlements, as long as the expansion does not extend outward.” Almost all the construction that the Netanyahu administration has allowed is either in Jerusalem or in the settlement blocs, the two categories that Israel had thought were protected by understandings with the Americans. From the Israeli point of view, then, Obama violated an Executive Agreement that Sharon had negotiated with President Bush.

•    Elliott Abrams, who negotiated the Bush administration's compromises on the natural growth of settlements, wrote in the Wall Street Journal: "There were indeed agreements between Israel and the United States regarding the growth of Israeli settlements on the West Bank. The prime minister of Israel relied on them in undertaking a wrenching political reorientation...the removal of every single Israeli citizen, settlement and military position in Gaza....There was a bargained-for exchange." Israelis were bitterly disappointed by the Obama administration’s refusal to acknowledge agreements with a prior U.S. government that the Israelis considered vital and binding. Sharon aide Dov Weissglas said, "If decision-makers in Israel...discover, heaven forbid, that an American pledge is only valid as long as the president in question is in office, nobody will want such pledges."

•    Stalled peace negotiations in the Obama years cannot be blamed on Netanyahu’s policies of accelerating settlement construction. He has in fact slowed it down. What has undermined peace negotiations, rather, is Obama's policy on the settlements – and the unrealistic expectations that policy has nourished.

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