Reinvigorating the Discussion of Israel's Rights in Judea & Samaria
By Prof. Avi Bell
Bar Ilan University and University of San Diego Law Schools
BESA Center Perspectives Paper No. 176
31 July, 2012
Earlier this month, Prime Minister Binyamin Netanyahu was presented with the report of the Commission to Examine the Status of Building in Judea and Samaria, headed by former Supreme Court Justice Edmond Levy (the "Levy report”). The report has drawn a flurry of overwrought criticism due to its inclusion of a section concerning the lawfulness of Israeli settlement activity.
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.
The Levy report adduces one of two fairly compelling reasons for concluding that the laws of belligerent occupation do not apply de jure to Israel's presence in the West Bank. One of the sine quibus non of belligerent occupation, as reaffirmed recently in an expert conference organized by the International Committee of the Red Cross, is that the occupation take place on foreign territory. While recent years have seen some debate on the meaning of foreign territory, considerable state practice supports the traditional view that captured territory is "foreign” only when another state has sovereignty. The Levy Commission is on solid ground in observing that neither Jordan nor any other foreign state had territorial sovereignty over the West Bank in 1967 and that the territory cannot therefore be "foreign” for purposes of the law of belligerent occupation. Indeed, had the Levy Commission chosen to so argue, it could have argued cogently that Israel itself was already the lawful sovereign over the West Bank in 1967.
Unmentioned by the report, Israel's peace agreement with Jordan constitutes a second reason for questioning the de jure application of the laws of belligerent occupation to the West Bank. As Yoram Dinstein wrote some time ago, 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.” While Dinstein qualified his observation by holding several idiosyncratic views regarding the definition of occupation and the status of the Palestinians, as well as by joining a small group of legal scholars who believe in a "post-belligerent occupation” that shares many of the rules of belligerent occupation, the majority position is still clearly that the rules of belligerent occupation do not apply to an agreed-upon peacetime presence.
On settlements, the Levy report likewise adduces several strong arguments to the effect that even if the laws of belligerent occupation applied to Israel's presence in the West Bank, the Fourth Geneva Convention poses no bar to the kinds of actions that are subsumed under the term "settlement activities.”
The Fourth Geneva Convention forbids "transfers” and "deportations” by the occupying state of parts of its population into occupied territory, but not "settlements.” Officials of the state of Israel have provided services to settlers and sometimes encouraged them, but the state of Israel has not transferred any Israeli to the West Bank against his or her will. In fact, as even anti-settlement activists like Talia Sasson acknowledge, "there was never a considered, ordered decision by the state of Israel, by any Israeli government” on settlements. While some governments of Israel have favored the physical expansion of settlements or the increase of their population, settlement growth has been driven by the preferences of private citizens not by official Israeli population transfers. There is no precedent for any other state being adjudged to have violated the Fourth Geneva Convention simply on the basis of permitting or facilitating private preferences in the way Israel has done. Indeed, this is the reason that the Arab states sought to redefine the bar on "transfers” in international law by including a crime of "indirect” transfers in the Rome Statute creating the International Criminal Court. However, Israel is not a party to the Rome Statute and it is therefore not bound by the alternative, more restrictive standard.
The Levy Commission notes that even if facilitating private Jewish residential preferences in the West Bank were otherwise suspect "transfers,” sui generis rules apply to the area. 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...” As the late Eugene Rostow, one-time dean of Yale Law School, noted, this command is preserved by article 80 of the U.N. Charter, and, if the West Bank is under belligerent occupation, by article 43 of the Hague Regulations. Additionally, if, as Israel's critics contend, the International Covenant on Civil and Political Rights applies to Israeli actions in the West Bank, articles 3, 12 and 26 of the Covenant lend urgency to Israeli efforts to protect Jewish housing rights in the West Bank in light of the Palestinian Authority death penalty for land sales to Jews coupled with senior Palestinian officials' open call for a Jew-free state of Palestine.
Talia Sasson, author of her own controversial 2005 report on outposts, has criticized the Commission on the grounds that its conclusions are contradicted by Israeli Supreme Court rulings. But contrary to Sasson's assertions, while the Supreme Court has adjudicated cases on the basis of Israel's voluntary assumption of selected duties of a belligerent occupant, the Court has never ruled that the Fourth Geneva Convention applies de jure to the West Bank.
In opposing the Levy report, Aeyal Gross and David Kretzmer have claimed that if the laws of belligerent occupation do not apply de jure to the West Bank, Israel lacked the authority to empower a military commander to undertake actions such as seizing property in the territory. However, Gross and Kretzmer err. Israel's administrative law determines the powers given to an Israeli military commander, not international law, and there is nothing to prevent Israel granting various powers to its commander in the West Bank, in the absence of a de jure belligerent occupation. History supplies more extreme examples: the United States applied full military regimes to defeated Confederate states after the civil war, and to Puerto Rico following a peace treaty with Spain, even though the states were American territory and there was clearly no de jure belligerent occupation.
Some have argued that the Levy report is foolish politically, arguing that by asserting its legal rights, Israel will signal that it is unwilling to entertain "land for peace” compromises. This seems a doubtful thesis. Israel has asserted its legal rights to Jerusalem for decades, but yet repeatedly offered compromises on its rights in the city.
Others have objected that the Levy report's conclusions can be disputed by international jurists, including by a controversial and non-binding advisory opinion of the International Court of Justice. 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.
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.
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Avi Bell is a professor in the Rackman Faculty of Law at Bar-Ilan University and the University of San Diego School of Law.
BESA Perspectives is published through the generosity of the Greg Rosshandler Family.