Tuesday, August 07, 2012

Avi Bell On How The Levy Report Reinvigorates the Discussion of Israel’s Rights in the West Bank

It is true that like many legal controversies, the questions addressed by the Levy Commission are capable of being analyzed in a number of ways. The Levy Commission’s conclusions are logical applications of reasonable understandings of the rules in an area where no authoritative resolution of the dispute has yet been rendered.
Avi Bell

With the Levy Report on Israel's rights and sovereignty in the West Bank, an issue that has been addressed at best passively and defensively has stepped into the limelight as something that Israel can  boldly talk about.

Israel has real rights and claims upon the Yehudah and Shomron (also known as the West Bank after Jordan's illegal annexation), rights that are directly based on international law that has been ignored and denied both by the those who are knowledgeable about international law and by those who pretend to.

Avi Bell, professor in the Rackman Faculty of Law at Bar-Ilan University and the University of San Diego School of Law has written The Levy Report: Reinvigorating the Discussion of Israel’s Rights in the West Bank:

In contrast with the misinformed and sometimes outright disingenuous criticism, the report’s discussion of the lawfulness of settlements is surprisingly modest in substance. The report does little more than endorse the traditional official Israeli position that the Fourth Geneva Convention does not apply de jure to the West Bank, and in any event does not bar Israeli settlements. While the report’s analysis is far from comprehensive, it is more detailed and more persuasive than that usually offered by anti-settlement activists.
Of the 2 reasons that the laws of belligerent occupation do not apply to the West Bank, one is mentioned in the Levy report itself, the other by Bell:
  • The International Committee of the Red Cross itself defines occupation as taking place on foreign territory, a term traditionally applied only when another state has sovereignty. Since neither Jordan--nor any other state for that matter--had sovereignty in 1967, the legal definition of belligerent occupation does not apply.

  • Bell himself notes that Israel’s peace agreement with Jordan provides another reason that the laws of belligerent occupation do not apply to the West Bank. He quotes Yoram Dinstein, international law Professor Emeritus at Tel Aviv University, who wrote the rules of belligerent occupation cannot be applied to Israel’s presence in the West Bank “in light of the combined effect of ... the Jordanian-Israeli Treaty of Peace of 1994 and the series of agreements with the Palestinians. There is simply no room for belligerent occupation in the absence of belligerence, namely, war.” The majority position is that the rules of belligerent occupation do not apply to an agreed-upon peacetime presence.
Furthermore, even if the Fourth Geneva Convention applied to the West Bank, settlements would still not be in violation of international law.
  • What the Fourth Geneva Convention forbids are "transfers" and "deportations"--not "settlements." While the state of Israel has provided services to settlers and sometimes encouraged them, has not transferred Israelis to the West Bank against their will. Settlement growth has been driven by the preferences of private citizens not by official Israeli population transfers. This is why Arab states had indirect transfers added in the Rome Statute creating the International Criminal Court.Israel, however, is not a party to the Rome Statute and is not bound by that standard.

  • Even if the law regarding "transfers" applied, there are other rules that apply in this case to consider.

    • Article 6 of the Mandate of Palestine demands "encourage[ment], in cooperation with the Jewish Agency … [of] close settlement by Jews on the land, including State lands...” -- and this is preserved by article 80 of the U.N. Charter.

    • Also if Israel’s critics are correct that the International Covenant on Civil and Political Rights applies to Israeli actions in the West Bank--then articles 3, 12 and 26 of the Covenant apply to Israel's efforts to protect Jewish housing rights in the West Bank, considering the Palestinian Authority applies the death penalty for land sales to Jews and senior Palestinian officials themselves have openly call for a Jew-free, apartheid state of Palestine.
Read the whole thing.

Bell rebuts the odd excuse of some critics that by asserting its legal rights, Israel demonstrates it is unwilling to consider compromises based on "land for peace". Putting aside long history of the failure of that approach, Bell notes that despite asserting its legal rights to Jerusalem for decades, Israel has repeatedly offered compromises on its rights in the city.

(Now if Israel can only find someone to negotiate peace with, someone does not consider "land for peace" to be a unilateral concession.)

Bell concludes:
The Levy report has reinvigorated the discussion of the legitimacy of Israel’s position under international law after many years in which Israel has been silent about its legal rights. That is a welcome development.
Yes, it is.


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