Arlene Kushner On Israel's Rights As Defined By Conclusions Of The Levy Reports

From Arlene Kushner:

August 1 3, 2012

The Levy Conclusions

Whatever else is going on in this unsettled and fairly insane world of ours, it's important for us to not lose sight of the need to stand up for Israel's rights.  In fact, given the state of the world, it's more important than ever that we do so, and recent events right here in Israel provide us with a clear basis for declaring those rights.

What I'm referring to are the legal conclusions of the Levy Committee:
In January, Prime Minister Netanyahu appointed a committee to consider the status of "questionable settlements" (see more on this below) in Judea and Samaria.  Headed by retired Supreme Court Justice Judge Edmund Levy, it included Alan Baker, former Israeli Ambassador to Canada and former legal advisor to the Israeli Foreign Ministry, and Judge Tchia Shapira, former Deputy President of the Tel Aviv District Court. 

The Committee released its report on July 8.  Most significantly, it concluded that from the perspective of international law, Israel has the legal right to settle in Judea and Samaria, and, further that the laws of ‘occupation’ do not apply to the unique historic and legal circumstances surrounding Israel’s decades-long presence in Judea and Samaria. 

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To date, PM Netanyahu, who is not automatically bound by these conclusions, has not moved to accept them as government policy.  He referred the 90 page Levy Report to his Ministerial Committee on Settlements, which has made no statement on the conclusions.  

For this reason, in particular, it is imperative that the conclusions of this report be clearly understood and kept in the public eye.  

I am not referring to any policy recommendations by the Committee.  Focus here is on the legal conclusions -- which provide a foundation for asserting Israel's rights. 

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I begin by recommending an article on this matter written for the Weekly Standard by Dore Gold, President of the Jerusalem Center for Public Affairs and former Israeli ambassador to the UN. 

Gold's piece -- The Political Battle Over the 'Occupation' Narrative -- considers the Committee findings, that charges that Israel is an "occupier" are without a legal basis.  

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The Report had concluded that "the classical laws of 'occupation' as set out in the relevant international conventions cannot be considered applicable to…Israel's presence in Judea and Samaria" 

"The panel," writes Gold, "argued that the Israeli presence in the West Bank was sui generis, because there was no previously recognized sovereignty there when it was captured by the IDF in 1967. The Jordanian declaration of sovereignty in 1950 had been rejected by the Arab states and the international community as a whole, except for Britain and Pakistan."

Sui generis means unique, constituting a class of one. There are no precedents for what happened here and other principles do not apply.  This is enormously important and something I would hope that all of my readers might understand and utilize in making the case for Israeli rights to Israel's detractors. 

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"Moreover, as the Levy Report points out, the Jewish people still had residual historical and legal rights in the West Bank emanating from the British Mandate that were never cancelled, but rather were preserved by the U.N. Charter, under Article 80—the famous 'Palestine Clause' that was drafted, in part, to guarantee continuity with respect to Jewish rights won at the League of Nations.  (Emphasis added)

"Finally, with the advent of the Oslo Agreements in the 1990s, there was no longer an Israeli military government over the Palestinian population..."

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"...the establishment of the Palestinian Authority in 1994," continues Gold, "made the situation complex. For as a result, some functions of government were retained by the IDF, others were exercised by the Palestinians, and there were also shared powers. In other words,the situation on the ground in the West Bank was not black and white [allowing] moral judgments to be easily made about a continuing Israeli occupation. The Palestinians did not have an independent state, but they could not be considered to be 'under occupation' when at the same time they were being ruled first by Yasser Arafat and then by his successor, Mahmoud Abbas.  (Emphasis added)

Gold notes that, Alan Baker..."brought in a unique expertise [to consideration of this situation] having been one of the main drafters of many of the Oslo Accords with the Palestinians."

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In a very enlightening section of his article, Gold then reviews "how the international community looks at far clearer cases of territories that came under military control of foreign forces as a result of armed conflict."  And -- surprise! -- the term "occupation" is not utilized:

All three cases [discussed in the article] of Northern Cyprus, Western Sahara, and the Kuril Islands are open and shut cases of foreign occupation under international law and yet in the diplomatic arena the term 'occupation' is not formally applied to them. Ironically, in the case of the West Bank, where the Israeli presence is a far more complex legal issue, the term 'occupation' has been uncritically applied, even by Israelis.

Thus the decision to use the term 'occupation' appears to emanate as much from political considerations as it does from any legal analysis. For 'occupation' is a term of opprobrium. In much of Europe, the term still invokes memories of the Nazi occupation of France. Those being constantly bombarded by the term 'occupation' in Europe undoubtedly make subconscious links between Israeli behavior in the territories and the events of the Second World War. Indeed, that is the intention, in many cases, of those using and promoting this language, despite the fact that such analogies are repulsive to anyone with the least bit of Jewish historical memory.

Nonetheless, pro-Palestinian groups, and their allies on the far left, use the charge of 'occupation' as part of their rhetorical arsenal—along with other epithets, like 'colonialist, apartheid state'—for waging political warfare against Israel. The charge of "occupation" has evolved into one of the most potent weapons in the delegitimization campaign against Israel.

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Gold then writes:

"Levy's committee has restored Israel's legal narrative about its rights in the West Bank. There are those who charged that in rejecting the application of the term 'occupation' to the Israeli presence in the West Bank, the Levy committee's report will set the stage for eventual Israeli annexation of the territories. Of course these concerns are baseless. The report of the Levy committee says absolutely nothing about what political solution for the future of the West Bank is desirable."  (Emphasis added)

He is, of course, correct. The fact that it has been convincingly demonstrated that Israel has legal rights in Judea and Samaria does not mean ipso facto that Israel will annex all of Judea and Samaria.

In fact, he makes the point that the Levy conclusions are:

still important for one diplomatic scenario, in particular: a negotiated end of the Israeli-Palestinian conflict in the future. For at the end of the day, there is a huge difference in how a compromise will look if Israel's negotiating team comes to the peace table as 'foreign occupiers,' who took someone else's land, or if they come as a party that also has just territorial claims."

Moreover, as long as the international community constantly fuels the 'occupation' narrative, the Palestinians’ propensity to consider making a real compromise, which is critical for any future agreement, will be close to nil."

Fair enough, and a point that undoubtedly needs to be reinforced with those who would reject the Levy conclusions under the mistaken impression that they automatically rule out a future negotiated settlement (and, as some would have it, will thus generate international hostility to Israel).  In and of themselves the conclusions absolutely do not rule out future negotiations.

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My perspective is somewhat different, however.  I do not believe that the Palestinian Arabs are about to make real compromises under any circumstances -- I see the prospect of genuine negotiations as simply moot.  And from that viewpoint, establishing our unquestioned legal right to be in Judea and Samaria is a step towards establishing our right to extend Israeli law to all of the land to the Jordan River.   

(Gold does say that those who advocate for Israel's full withdrawal from Judea and Samaria "strip Israel of the rights it acquired in U.N. Security Council 242 that did not require it to pull back to the pre-1967 lines...") 

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One additional point to add here in the interests of clarity:

Gold begins his piece by explaining:

"The initiative [for commissioning the Levy Committee] came about when it was discovered that a housing project in the settlement of Beit El, north of Jerusalem, had been built years earlier on Palestinian private land, and the government decided to adhere to the judgment of the Supreme Court to have the Israeli building project removed." 

In point of fact, to this day it is not clear that the Ulpana neighborhood of Beit El (which is what he is referring to) was built on Palestinian land. 

The claim was made by a Palestinian Arab that this was his land, but residents of Beit El said they had purchased it legally.  Documents regarding this purchase are in the possession of a lower court and as this is written the matter has not yet been adjudicated.  That is, there has been no court ruling on whose land this is legally.  When the case was brought to the Supreme Court, the government went into the court having accepted the Palestinian Arab claim, and it was on this basis that the Court ordered the project removed. It might well not have done so, had the government position been different.

This is a significant point.  And the Levy Committee actually had something to say about the government establishing clearer policies.  But this was a recommendation, not a question of law, and so I have not dealt with it here.

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I will touch only briefly on what is happening in Egypt, because it is very much a situation that requires close watching before definitive conclusions can be drawn.

There are, I am well aware, those who see this as the final stage of the takeover of Egypt by the Brotherhood. 

Analyst Ehud Yari refers to what happened as a "civilian coup" against the military, but "civilian" is not synonymous with "Brotherhood" in this phraseology.  There is also talk, you see, about a "democratic" process in Egypt.

And consider...

• Tantawi and others -- including Chief of Staff Sami Anan -- who were forced into retirement are being replaced by secular figures and not Brotherhood persons.  Tantawi's replacement, Abdul Fatah Khalil Al-Sisi, according to a "senior official in Jerusalem" cited by Maariv, "is well acquainted with Israel’s security elites — from Defense Ministry Policy Director Amos Gilad, to the prime minister’s special envoy Yitzhak Molcho, and of course Defense Minister Ehud Barak."   According to The Times of Israel, top Israeli military figures believe that "Israeli-Egyptian security cooperation is not at risk."
  
  
• Morsi has appointed Tantawi and Anan as his "advisors."  Clearly these are only token positions, but is this what happens when there is a genuine coup?  Morsi went out of his way to say he meant to insult no one.
  
  
• Perhaps most interesting: Reuters reported yesterday that, according to Deputy Defense Minister General Mohamed El-Assar, "Morsi's decision...was taken in consultation with Field Marshal Hussein Tantawi." 

"The decision was based on consultations with the field marshal and the rest of the military council," said General El-Assar, who had been in charge of the military's armaments division under Tantawi.

If this is true, it certainly is not typical of how a coup works.  Consultations with the person whom the president is anticipating retiring forcibly regarding whether this action should be taken?  

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That Morsi acted to significantly bolster his strength is irrefutable; the point is that he, and not the military, is now in charge.  Especially is this the case as Morsi altered military-inspired sections of the constitution that had limited his power. 

Although there are those who imagine that we've not heard the last from the military yet.

It seems highly unlikely that this could have happened if not for the jihadist terror attack against Egyptian soldiers.  The unrest and distress in the populace gave Morsi the latitude to move.  What surprised me is that, as I first read it, distress was with Morsi and other Brotherhood figures, attacked at the funeral for the murdered Egyptian soldiers.  But Morsi seems to have turned this around to his distinct advantage.  Apparently there was also public anger that military leaders slipped up badly enough so that this could happen.

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A key issue now is what will happen when the Egyptian military operation against jihad terrorists in the Sinai is complete.

My own opinion on this situation is that Israel was in-between that proverbial rock and a hard place.  We were demanding that Egypt regain control of the Sinai, where radical terrorists were running rampant and presenting a growing threat to the Israeli populace.

Could we have demanded that the Egyptian government act, and then not have permitted into Sinai equipment and troops that the Egyptians said they needed to do the job? Technically, yes. But not without putting a strain on an already somewhat tenuous relationship.  Worse, Egyptians wanted to take out the jihadists who had killed their soldiers -- their honor demanded this.  How would we have complicated the relationship had we denied them what they sought?

But at the very same time we do not want those troops in the "demilitarized" Sinai for an extended period.  At the end of the operation, the troops are supposed to be pulled out. Morsi says he's in charge. Let's see what he does.

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© Arlene Kushner. This material is produced by Arlene Kushner, functioning as an independent journalist. Permission is granted for it to be reproduced only with proper attribution.

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