Guest Post: Israeli Committee Declares End to West Bank Occupation

by Sari Bashi

[Sari Bashi is the executive director of Gisha, an Israeli human rights organization protecting the right to freedom of movement in the occupied Palestinian territory]

Last week, a committee appointed by Israeli Prime Minister Benjamin Netanyahu to recommend disposition of about 100 Israeli outposts in the West Bank established in violation of Israeli military zoning laws released its conclusions (English summary here). The committee members, hand-picked by Netanyahu, were expected to recommend authorizing the outposts retroactively, and they did.  What was less expected were 11 double-spaced pages in the report that renounced the existence of a state of occupation in the West Bank.

To be sure, official declarations denying Israel’s occupation of the territory captured in 1967 are not new, but thus far, they have been limited to the Gaza Strip, as this spring’s Opinio Juris symposium highlighted. This latest report, the work of a committee headed by former Supreme Court Justice Edmond Levy, is further reaching. Its recommendations have yet to be considered by the Israeli government.

The Levy Committee reverted to an old argument by the government, namely that the Fourth Geneva Convention’s rules on occupied territory do not apply in the West Bank and Gaza because they did not form part of the territory of a High Contracting Party, meaning a sovereign state, prior to being captured by Israel in 1967. However, it added a far-reaching and somewhat puzzling twist: the committee found that Israel is not an occupying power at all in the West Bank.

To quote the committee report (in my unofficial translation to English):

“The accepted term ‘occupation’, with the obligations attached to it, was intended to apply for short periods of occupation of a territory of a sovereign country, pending the conclusion of the dispute between the parties and the return of the territory or any other agreed-upon arrangement for its disposal. Yet the Israeli presence in Judea and Samaria [the biblical name for the West Bank-sb] is substantially different: the seizure of the territory continues for decades, and no one can predict when it will end, if ever; the territory was captured from a state (the Kingdom of Jordan) whose sovereignty in the territory never attained a firm legal basis, and in the meantime it [Jordan-sb] has even given up on its claim to sovereignty; the State of Israel claims sovereign rights in the territory” (page 6).

In other words, the Levy Committee denies the application not just of the Fourth Geneva Convention, with its prohibition on transferring civilian populations into the occupied territory, but presumably also of the laws of belligerent occupation in their entirety, including the 1907 Hague Regulations (although at other parts of the report, the committee appears to rely on the Hague Regulations and their entrenchment of Ottoman and Jordanian law to justify compensating Palestinian land owners for land used by Jewish settlers, rather than returning the land). These regulations, by the way, limit the authority of an occupying power to protecting security and facilitating public life for residents of the occupied territory and therefore by implication – would also prohibit the establishment of settlements for the benefit of citizens of the occupying state.

While predictably, progressive jurists and many from the intellectual left inside Israel vilified the report (see this editorial by Israel’s respected Haaretz daily), others, myself included, appreciate the report’s revolutionary potential. Well, maybe revolutionary is too strong a word, but for those of us troubled by the transfer of 350,000 Jewish settlers into the West Bank (exclusive of east Jerusalem), the creation of separate and unequal systems of law, transportation and infrastructure for Palestinians and Israelis there and the de facto annexation of large swaths of the West Bank, the report unmasks the comfortable lie that Israeli government lawyers have told the courts and the rest of the world for decades, namely that Israel’s presence in the West Bank is temporary and that measures designating Palestinian land and natural resources for Israeli use are motivated by security concerns.

Here are some conclusions by the committee that I wholeheartedly endorse:

1. The so-called “unauthorized” outposts, built without the proper building permits and zoning plans, were as a matter of fact approved and funded by the State of Israel, which provided military protection, installed water and electricity lines, built access roads and funded public services for them.

2. There is little difference between “authorized” and “unauthorized” outputs and settlements. If some are legal under international law – all are legal under international law.  If some are illegal under international law – all are illegal under international law.

3. Israel’s presence in the West Bank is not a temporary belligerent occupation, pending an arrangement to evacuate the territory and restore it to its lawful sovereign, but rather is intended to further claims to Jewish sovereignty over the Biblical Land of Israel.

In the words of the Committee (again, unofficially translated):

Thus the legal status of the territory was restored to its original status, namely territory intended to serve as a national home for the Jewish people, which, during the period of Jordanian rule, constituted the party ‘holding the stronger claim’ that was absent from the territory for a number of years, due to a war that was forced upon it, and now has returned to it” (emphasis in original-sb) (page 12).

The Levy Committee justifies Israel’s claim to the West Bank by reference to the pre-state British Mandate which approved the establishment of a Jewish homeland in Palestine, without specifying its borders. To further the claims of Jewish settlers, the committee recommends streamlining bureaucratic obstacles to construction in the Jewish settlements, retroactively approving homes built without permits and relaxing restrictions on building on land claimed to be privately owned by Palestinians.

Without subscribing to the recommendations of the Levy Committee or its justification for Israel’s territorial claims to the West Bank, I enthusiastically endorse its candor. For decades, Israeli government lawyers have argued that the laws of belligerent occupation give the military commander in the West Bank broad authority to enact measures in the name of security – ignoring the obvious fact that the towns, factories, colleges and cultural centers serving Jewish settlers in the West Bank are not temporary installations erected to protect security but rather permanent settlements treated as part of Israel for most practical and legal purposes. The facade of temporariness has served as cover for Israel to claim the authority of a belligerent occupier, while in fact using West Bank land for the benefit of Israelis, without formally annexing it and without granting citizenship rights to its Palestinian inhabitants.

The Levy Committee tells it like it is. And in telling it like it is, it pushes Israelis to decide: Do we want to adopt the committee conclusions, which endorse exercising sovereignty over the West Bank while denying its 2.6 million Palestinians not just the rights of citizens but even – the basic protections of the Fourth Geneva Convention? Or do we want to preserve Israel as a democratic state by ending four and half decades of control over 4 million Palestinians, in the West Bank and Gaza, who have a right to freedom from foreign rule?

http://opiniojuris.org/2012/07/19/guest-post-israeli-committee-declares-end-to-west-bank-occupation/

6 Responses

  1. Given that Israel has offered the Palestinians full statehood numerous times, I wouldn’t say anything is being “denied” privileges; rather, they have foregone them.

    One thing the Levy Report seems not to address (at least in the parts I’ve seen) is the impact of Oslo. The vast majority of Palestinians do not need the privileges of Israeli citizenship, since they have the privilege of Palestinian citizenship, and Palestine often – with admirable candor – calls itself and independent, functioning state. Giving them Israeli citizenship would entail a complete dismantling of the Palestinian government, a deal I assume the latter would not accept: indeed, Oslo represents the opposite deal.

    The real dispute now is over Area C. The Palestinian strategy is to say, if you want to have any of the land, including those parts where Jews live, you have to take all of it. The dominant Israeli position is that they would like to keep only some parts. The Palestinians have always refused. The real point of the Levy Report is that, if the legal argument is accepted, which it wont be, it would support Israel’s annexation of settlement blocks, which do not raise the same issues.

  2. And Israel has offered Palestinians “full statehood” when exactly? Cause the offers I remember are akin to the ones South African apartheid regime offered to a bunch of Bantustans. Disconnected pieces of land with no control over their airspace, radio frequencies, no armed forced and etc is far from what “full statehood” stands for these days.

  3. I think the question, at least from the point of view of international law, is the exercise of control. A state can be under occupation, and then the protections of occupation law would apply, including the prohibition on transferring the civilian population of the occupier to the territory. Or, if we follow the logic of the Levy Committee, a territory can be the sovereign territory of the force that controls it – Israel – and then we would expect all its residents to be granted citizenship and equal rights. It is the interim path proposed by the Committee – control without obligations – that is disturbing, because it leaves Palestinian residents without protection, as we can see from the practical measures suggested by the Committee, which would make it easier for Jewish settlements to be built even on private Palestinian land. The Committee also recommends the establishment of quasi-judicial bodies to consider land disputes between Israelis and Palestinians – staffed by Israelis only.
    If Israel were not controlling the West Bank, as Eugene suggests, the issue of its obligations toward Palestinians living there and the authorities it is exercising (including land confiscation, planning regulations, and arrest) would not arise.

  4. As all know from the VCLT and customary international law, a state can not use its internal law to extract itself from its international obligations. Israel is free to characterize what it is doing in anyway it wants. This flip demonstrates the question ability of earlier positions taken. Looks like electoral games for Bibi. The Palestinians appear to be on their own path to self-determination. Israel will have to decide how many it will kill in trying to suppress These settlements and the Wall are looked at as facts on the ground, but they are only illusions on the ground. This report is like an OLC memo – internal stuff. Gisha spoke at ASIL a couple of years ago. One thing that moved me was the speaker’s talking about the Palestinians normal desire to live a free and full life – not just some circumscribed existence dictated by those with more guns. I saw the kids, dads, and moms in that speech and was moved again. I have people I love on all sides of this thing. They will figure it out. Right now, young folks on both sides talk macho tough. They get old and realize they should come to an agreement. Just when they get close one or the other old guy dies (or was Arafat poisoned) or is disabled (Sharon). How long will this cycle continue? Until it stops.

  5. Response..
    Judea and Samaria are integral parts of Israel historically and were so envisioned by the San Remo Convention. As for the Arab residents, some on the Right have proposed offering them citizenship and contend that even in the event that all accept there will not be a demographic problem.
    A survey taken eight years ago ( http://www.jerusalemsummit.org/eng/news.php?news=102) showed that 42% are considering leaving and 71% would leave if they were offered inducements> A majority have no faith in the PA either in the present or for the future. Thus voluntary emigration with just compensation would also be a viable solution. This would also benefit those countries that need immigrants with money to invest. It would also prevent the rise of another terror state next to Jerusalem and only a few miles from Tel Aviv and other major Israeli cities.
     

  6. “Judea and Samaria are integral parts of Israel historically and were so envisioned by the San Remo Convention.”

    Surresponse – Israel is free to characterize what it is doing in anyway it wants.

    I am seeing UNSR 242 and 1967 borders and all that also in this space – but what do I know.

    Best,
    Ben

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