What are Israel's Rights in Judea and Samaria? Two Views

By JHH Weiler, Yaffa Zilbershats, and Avi Bell
Thursday, August 9, 2012

Israel’s presence in the territories seized in the Six-Day War of 1967—a presence now signaled mainly by Jewish settlement activity especially in Judea and Samaria—has been for decades the object of intense opposition by the “international community.” Indeed, most governments, including that of the United States, regard those settlements as illegal under international law. 

Now an official Israeli commission, headed by former Supreme Court Justice Edmond Levy, has concluded that, to the contrary, the settlements are lawful and “Israelis have the legal right to settle in Judea and Samaria.”  The commission’s 90-page report—so far, only portions of the Hebrew original have been translated—was published last month to a storm of criticism in Israel and abroad.

With the aim of clarifying the issues involved, we present here two differing views of the Levy report, the reasoning of its authors, and the implications of its conclusions for Israel’s legal, political, and diplomatic position. —The Editors

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The Levy Report: A Note of Caution
By JHH Weiler and Yaffa Zilbershats

A 90-page report by a commission appointed by the government of Israel to look into the international legal status of Judea and Samaria has provoked a media brouhaha in Israel and beyond.  To understand why, it helps to know that in reaching its conclusions, the commission, headed by Justice Edmond Levy, draws on legal arguments that are themselves the objects of controversy.

For the most part, those arguments were developed in the period following the Six-Day War of 1967 in which Israel, defending itself against concerted Arab aggression, seized Jordanian, Syrian, and Egyptian territories.  The arguments are associated principally with the names of such distinguished American authorities as Eugene Rostow, Julius Stone, Arthur Goldberg (then the American ambassador to the United Nations), Judge Stephen Schwebel of the International Court of Justice (also known as the World Court), and, most notably among Israeli scholars and diplomats, our esteemed friend Yehuda Blum.

But the case advanced by these figures was hardly accepted universally at the time—in Israel itself, it was subjected to strong criticism by, among others, Yoram Dinstein of Tel Aviv University—and it has been rendered increasingly irrelevant by later developments.

Most states, including Israel, accept Resolution 242 of the United Nations Security Council, adopted in the aftermath of the Six-Day War, as the political and legal “cornerstone” of efforts to resolve the conflict.  The resolution balances Israel’s right “to live in peace within secure and recognized boundaries free from threats or acts of force”—a statement that opens the prospect of security-driven border adjustments in the context of any eventual peace treaty—with (a) “the inadmissibility of the acquisition of territory by war” and (b) the principle of “[w]ithdrawal of Israeli armed forces from territories occupied in the recent conflict.”

The hard-won wording of the last of these principles, especially the carefully phrased formula “from territories” rather than “from the territories” or “from all the territories,” was intended by 242’s drafters to safeguard the possibility that, in Ambassador Goldberg’s words, “territorial adjustments to be made by the parties in their peace settlements could encompass less than a complete withdrawal of Israeli forces.”  In the intervening years, however, some have construed this formula as indicating an Israeli right either to hold on indefinitely to the bulk of the conquered territories or to act as sovereign in them, or both.

The late Dean Nathan Feinberg of the Hebrew University law school characterized that view as being “without a firm legal foundation . . . unconvincing, not helpful to peace, and one that does not add honor to Israel.”  A similar judgment might be entered on the conclusions of the Levy report.

Today, most international lawyers, whether friendly or hostile to Israel, are agreed that although Israel legitimately seized the conquered territories in a war of self-defense, and that therefore its occupation of those territories was not illegal, Israel’s status, pending an agreed-upon peace agreement with the Palestinians, remains that of a “belligerent occupier.”  This is also the position of the World Court and of practically all governments, friend or foe.  Israeli governments of both the Left and the Right have proceeded under this assumption, and the Supreme Court of Israel has operated under the same premise.  A statement in a 2004 case is typical: "The point of departures of all parties—and this is our point of departure as well—is that Israel is holding the territories under [the law of] belligerent occupation.”  Likewise, a broad legal consensus, accepted by Israel, recognizes the Palestinians as a people with an attendant right to self-determination within the territories.

The status of “belligerent occupier” bestows neither sovereignty over the territories nor permanent title to them, but instead grants certain rights and imposes certain duties.  According to the prevailing view, most Israeli settlements, for example, are unlawful under the law of belligerent occupation.  The Supreme Court of Israel has stated that since the occupation of the territories is temporary, the future of the settlements will be decided in international agreements to which Israel will be a signatory.

All this militates against the relevant conclusions of the Levy report—specifically, its position that Israel is not an occupying power under the law of belligerent occupation, and that Israelis have a legal right to settle in the West Bank.  Indeed, if the legal approach of the Levy report were to be adopted, it could ultimately lead to making the territories part of Israel proper.  This in turn would issue in two equally unpalatable choices: either Israel would grant citizenship to the Arabs living in the territories, with demographic consequences that would compromise and potentially undermine the Zionist ideal of Israel as the state of the Jewish people, or Israel would adopt a governing structure for the territories amounting to a form of apartheid, thereby compromising and undermining the state’s democratic character—another core aspect of the same Zionist ideal.

The logic of the arguments developed in the Levy report thus opens a juridical Pandora’s box. In recent times, Israel’s very legitimacy has come under increasing international attack, reminiscent in its intensity of the precarious early years of the state.  One front in that campaign is the relentless and increasingly sophisticated use of international law to wage “lawfare” against Israel, its leaders, and its soldiers.  In these circumstances, to destabilize the internationally accepted status of the territories risks creating a perverse legal boomerang, further destabilizing the status of Israel itself within its present, internationally recognized boundaries. 

So far, the government of Israel has neither endorsed nor adopted the conclusions of the Levy report.  Instead, the report is “being studied.” In our view, this is a wise and a good thing. 

JHH Weiler is University Professor and Joseph Straus chair at New York University’s law school, and co-director of NYU’s Tikvah Center for Law & Jewish Civilization and the Straus Institute for the Advanced Study of Law & Justice. He is editor-in-chief of the European Journal of International Law.

Yaffa Zilbershats is a professor of international law at Bar-Ilan University, where she also currently serves as deputy president. 

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The Levy Report: A Welcome Advance
By Avi Bell

In mid-July, Prime Minister Benjamin 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 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 UN 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.

Avi Bell is a professor in the Rackman faculty of law at Bar-Ilan University and the University of San Diego school of law. This essay was originally published on July 31 by the Begin-Sadat Center for Strategic Studies as a BESA Center Perspectives Paper (No. 176), and is republished with permission.


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