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

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


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. 


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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Yisrael Medad on August 9, 2012 at 6:31 am (Reply)
I am amazed that Professors Weiler and Zilbershats refuse to predate any of their discussion to 1967. In a legal sense, the whole core of the argument over the Levy Report is not a modern issue (I hesitate to employ 'post-modern') and yet their framing seems not to take into account law concepts and conclusions older than 45 years.

They write: "Today, most international lawyers, whether friendly or hostile to Israel, are agreed...Likewise, a broad legal consensus, accepted by Israel, recognizes the Palestinians as a people with an attendant right to self-determination within the territories."

Well, when international law decided through the instrument of awarding Gt. Britain a Mandate over Palestine (a) the historical connection of the Jewish people was quite crucial; (b) the term "Arabs" was missing from any of the documents and certainly something now called "Palestinian"; (c) among the rights awarded the Jewish people, as a national collective (for they were reconstituting their national home) was "close settlement on the land" and for that purpose, state and waste lands were to be available. To ignore this abd blithely dwell on the 'now' may be what law professors think but not what law is or should be.

And if I may, one matter the Levy Report could have promoted was the registering of all land including property distributed gratis by any Jordanian monarch, his authority being that truly an illegal occupier, and those sections not built upon, not planted or develioped in any way, should return to its previous status as state/waste land to be redivided to Arabs or Jews.

The Levy Report's major achievement is in its returning the historical element into law not only in terms of what the law was at a previous time but how it developed as a result of the primacy of the Jewish national claims
Larry Snider on August 9, 2012 at 9:05 am (Reply)
The Levy Report provides political cover for the ability of Prime Minister Netanyahu to continue his policy of building in the West Bank and East Jerusalem and simultaneously challenging the status of Palestinian building with demolition orders and bulldozers. It must be stated at the same time that the Israel Supreme Court has found the construction of certain Israeli Outposts in the West Bank to be illegal and ordered their removal. The debate above reviews the liberal and conservative Israeli opinions on the legality and morality of the "belligerent" occupation as defined internationally by the United Nations in Resolution 242. The question remains how the United States and other mediators can work together to support Israeli and Palestinian leadership to return to direct and meaningful negotiations that will enable both governments and their peoples to understand and accept a reasonable compromise that enfranchises peace with liberty and security in two sovereign states.
Cynic on August 9, 2012 at 9:23 am (Reply)
Why is it that the international agreements of San Remo in 1920 and the League of Nations of 1922, which was accepted by the United Nations on its inception, are ignored?
The High Commissioner on the Administration of Palestine 1920-1925, Jerusalem, April 22, 1925, p. 24-25. report also stated that the League of Nations agreement on the Mandate was ‘not to be susceptible of change.’
mrzee on August 9, 2012 at 10:22 am (Reply)
The Israeli Supreme Court has ruled some outposts illegal under Israeli law. That's a completely different issue.
liamalpha on August 9, 2012 at 12:35 pm (Reply)
Why the Levy report is an important milestone for achieving peace: The premise of Israeli-Palestinian peace is based on the formula of "peace for land", whereby Israel gives up land to set up a Palestinian state, and the Palestinians recognize Israel as the Jews' nation state. For this formula to work, Israel *must* have legal rights in the disputed territories (the West Bank, aka Judea & Samaria), that it can trade in exchange for peace. If Israel is an illegal occupier in these territories, it cannot demand peace in return, and must give them up unconditionally. This will be a victory for Palestinian rejectionism, and a recipe for more violence. Therefore, real supporters of peace should support the Levy report.
Michael Several on August 9, 2012 at 1:50 pm (Reply)
Whatever conclusions the Levy Report came to are irrelevant. The fact remains that Israel under international law is in the position of a "belligerent Occupier," and the Fourth Geneva Convention is applicable under Art. 2 of the Convention that it “shall apply in all cases of declared war or any other armed conflict which arise between two or more of the High Contracting Parties,” which both Israel and Jordan were. And under Article 49(6) of the Convention, which states “The Occupying Power shall not deport or transfer parts
of its own civilian population into the territory it occupies” the settlements are illegal. The opinions of the Levy Commission don't change these facts and won't have a scintilla of impact on the opinion of the international community.
shushan mussa on August 9, 2012 at 1:58 pm (Reply)
Only deranged jews would discuss whether they have the right to live anywhere in the world
    William Bilek on August 10, 2012 at 4:31 am (Reply)
    "Only deranged jews would discuss whether they have the right to live anywhere in the world"

    Not anywhere. Only wherever exists that is under no legal sovereignty, and is not legally privately owned. This is especially true when standing, valid international law states that the "anywhere" is land that has been "deeded" to the Jewish People by the international community for "close settlement", in recognition of that People's historic connections and rights.
LT COL HOWARD on August 9, 2012 at 3:04 pm (Reply)
I am surprised that I have never seen a discussion of the Jewish population of the West Bank as it was before various Palestinian riots drove out elements of the then existing Jewish population and before the Jordanian Legion (British trained, British equipped, etc.) drove out all of the remaining, existing Jewish population to make the West Bank entirely Jew-free.

It would seem that at a minimum the Jewish population and the natural increase that would've taken place should enter the calculation. Also, those locations inhabited by Jews should be perpetually considered the nucleus of future and expanded Jewish “settlements”.

Every Israeli and every Jew should demand that the scenario be computed as to Jewish population on the West Bank as it would have been had not Jews been murdered and driven into exile. To do any less is to reward evil.

Further, there is a difference between sovereignty and residence. Since the goal of the Palestinian Authority is to make the West Bank and East Jerusalem Jew-free this is not a demand for sovereignty for the Palestinians over some area . It is a demand that certain areas be forever free of Jewish blood. How can any Jew, no matter how liberal, endorse this position?
Paul Malin on August 9, 2012 at 5:03 pm (Reply)
I'm not a lawyer of any kind and so not competent to evaluate the legal arguments, but Avi Bell's piece basically confirms what I have been thinking about the politics of the report. Law, particularly international law, is not settled until all affected parties agree to be bound by a particular interpretation. The Levy report gives a defensible legal opinion of occupation and settlement which serves the political purpose of keeping the issue in play. It provides a tool for the government to say "We don't accept your interpretation: Here's our own." It doesn't commit Israel to doing any particular thing in the territories — it simply signifies that she won't give a free gift to her enemies. As far as I'm concerned that's a very good thing, because the occupation is first and foremost a political problem not a legal one.
Abbushuki on August 9, 2012 at 10:11 pm (Reply)
The only reason Arabs believe they have an identity called 'Palestinian', is due to the persistence of the West to refer to the land by the Roman denigration of its name by their moniker: Philistina. Had early Christians not hated the Jews as much as the Romans, they might have continued to refer to it by the name all Jews have used: Eretz Yisrael, the Land of Israel. Then, the Arab squatters on the land would have to self-identify by either their tribes (as they always did pre-Arafat) or as Israelis. Thus there would not have been a conflict. The entire land should be only referred to as Israel or Judea by all those who seek a just solution and peace.
Abbushuki on August 9, 2012 at 10:23 pm (Reply)
'Democracy' or 'Apartheid' the only choices? This is the litany of the Left and it's completely false. Those who seek U.S. citizenship must undergo a 7-year naturalization process. New citizens are required to salute the U.S. flag and know U.S. history. There is no 'democracy' reason that Arabs, when placed under the Israeli flag, can't be required to pledge allegiance to the Israeli flag or not be eligible for citizenship and the rights to a national level vote. After all, no immigrants to the U.S. have a vote until or unless they have been sworn in as new citizens. We assume the U.S. is a democratic republic, don't we? Of course, those who choose not accept the obligations and responsibilities of Israeli citizenship earn themselves a status of 'green card' with rights to residency without that vote. It's all kosher, humane and fair.
But those don't seem to be the values that concern the anti-Zionist lefties.
mrzee on August 9, 2012 at 11:54 pm (Reply)
Almost 20 years ago Israel and the PA signed agreements forming the Oslo Accords, in which the PA agreed to an Israeli presence in Area B and Area C of Judea and Samaria until a final status agreement is reached. In fact it isn't only allowed but it is REQUIRED (to provide security, the IDF actually provides security for Abu Mazen when he travels though those areas) according to the agreements.

The same agreements allow Israel to build in existing settlements, again with the agreement of the PA. The text of the agreements is easy enough to find online.
William Bilek on August 10, 2012 at 4:26 am (Reply)
The only correct part of this post is that facts "won't have a scintilla of impact on the opinion of the international community."

Why would the conclusions of the Levy Report have any less relevance than the conclusions of the ICJ, or the UNGA, or Michael Several?

Stating that something is "a fact" does not make it so. The Levy report provides a solid basis for arguing that Israel is not a "belligerent occupier" under international law. That argument may, or may not, be adjudicated to be correct, but no instrument of such adjudication exists today. Until one does, and such adjudication is executed, everyone is entitles to their OPINION, but not to claim it as a "fact".

Was Jordan a "belligerent occupier" of Judea and Samaria from 1949-1967? If so, almost all of the actions it took in the territories during that time are illegal, null and void.

As for the settlements being "illegal", again the Levy Report indicates that no legal body has adjudicated and found this to be the case, and therefore that assumption is not "fact".
vernue on August 10, 2012 at 5:17 am (Reply)
I suppose what troubles me about articles like this is the underlying concept that law actually has something to say in situations like this. Law is a tool, not an end unto itself, and the goal of law is to support justice and order, and to protect rights of individuals and nations. I found the same obtuseness in the Atlantic Journal's video series on the conflict, which treated the issue of borders as if solving the Palestinian/Israel were similar to adjudicating a territorial dispute between Canada and the US.

Two "existential" factors define the conflict, and these factors also have a bearing on the legal argument. Starting with legal analysis without taking the basic underlying fabric into account results in a distorted argument and irrelevant conclusions.

The first factor is that the Palestinian Authority always has and still does relate to Israel with belligerent hostility, engaging in on-going incitement and campaigning to undermine the legitimacy of the State of Israel. I'm not claiming that an actual state of war exists, but classical definitions of war and belligerency do not map well onto modern political dynamics. It should be clear by now to most reasonable people that the Palestinian national myth is founded upon the ashes of a destroyed Israel. As long as that myth is endorsed and propagated by official Palestinian organs, Israel lives under the threat of a war of extermination. Rules and laws change if a condition of belligerency exists between parties.

Second, a long and indisputable archaeological, literary, historical, and religious record ties the people of Israel to the Land of Israel, the land between the sea and the river. It is the ancestral homeland of the Jewish people. For reasons of security or politics, the government of the state may choose not to exercise absolute control, but the underlying fact remains, and that fact also carries with it legal significance.

Trying to present a dry legal analysis without looking at the larger political and social context is futile and warped. A legal analysis taking the larger context into account has yet to be presented.
Ellen on August 10, 2012 at 8:57 am (Reply)
Thank you Shushan for the most appropriate response to this question. The comment that "the international community won't accept blah..blah..blah" is completely laughable. The same fictitious international community supposedly was not willing to accept the slaughter of civilians by the Syrian government, and yet it continues at an ever accelerating pace, as we speak.

The term "international community" is an invention of Europeans and Arabs who have seen their power erode drastically from its high-water mark in the 1970's. The only power they have today is to summon the votes of the corrupt kleptocratic governments who constitute the majority of the UN. Beyond that kangaroo forum, they have minimal power, and minimal sympathy from the people who actually wield power in this world. Hiding behind slogans that the "international community will or won't accept this or that policy by the Israeli government" has long since become an utterly banal and ineffectual ritualistic incantation.
Jerry Blaz on August 10, 2012 at 2:46 pm (Reply)
I really am not reassured by the Levy Report that it is any more germane than any report issued to a government seeking justification for its policies in "the law." Certainly, it has the prestige of Levy's presence and the accompanying eponymy of Levy the man and Levy the report, thereby helping us to overlook the substantive fact that getting a report from Levy is not the same getting a message from Sinai. In disputes over land, as well as in other judicial instances there is the "sanigar" and the "kategar" defense and prosecution. This isn't yet a judicial proceeding so we don't have two sides clearly demarkated. The Levy report is more like a "brief" than a judgment. There is an Oslo agreement which states that the goal of the occupation is a negotiated peace treaty with the opportunity of the second people in the historic Land of Israel to form their own state, which from all appearances to be a "Palestinian" state. It is an agreement signed by the two contending peoples residing in these territories, and it is therefore binding on both sides.
William Bilek on August 10, 2012 at 3:31 pm (Reply)
The Levy Report is a :brief" just as the ICJ report or the UNGA resolutions are "briefs", carrying no force of law. As you say, the Oslo Agreements are binding on both sides, but....what happens when the commitment to end incitement does not occur; or the P.A. undertakes unilateral actions bypassing the required negotiations?

There now exists a fallback position based on clearly arguable "international law".
Avi Bell on August 11, 2012 at 6:06 pm (Reply)
I respond to my colleagues arguments here:
Wallace Edward Brand on August 19, 2012 at 10:51 pm (Reply)
On March 3,4, 2012 a conference on a "one [Arab majority] state solution scheduled for Harvard University motivated me to seek a place on the panel so that I could advocate a one lawful Jewish majority state as a solution to the Arab Israeli conflict. I was unable to secure a place on the panel that Professor Dershowitz later described in an article in Newsmax as an anti-Semitic and anti-Zionist hate-fest.
The panel consisted of "Arab intellectuals" such as Sara Macdisi and Post-Zionist revisionist historians such as Illan Pappe. On May 15, 2012 a second conference was scheduled at UCLA billed as a debate but those debating only had one point of view. These were two Muslim extremists, Reza Aslan and Hussein Ibish. I could not present my point of view at that conference either. Soon after another so-called debate took place at a Los Angeles Jewish temple between the notorious Peter Beinert and David Suissa.
I had appealed to Drew Faust, President of Harvard University for help in presenting my view that the Israelis already had sovereignty over the West Bank but to no avail. All I got was a press release from one of her aides stating that Harvard did not endorse the conference and remained a free and open marketplace of ideas. But not for me. I offered to write my ideas up for an op-ed in the Harvard Crimson but got no reply from President Faust nor the Crimson. Finally, I bought an add in the Crimson and purchased a quarter page to post some links in articles online where my views were more fully developed. The Daily Bruin did not even respond to my request for a price quotation for an ad. Nor did the Trustees of the University of California, the Chancellor of UCLA and the head of Hillel at UCLA.
So I was delighted to learn in July that the Levy Commission had opined just as I had that Israel had sovereignty over Palestine, west of the Jordan ever since the San Remo agreement on April 25, 1920. You can find a copy of my legal opinion on the subject in a two part op-ed in Arutz Sheva at
More recently Professor Nathaniel Berman of Brown derided the Levy Report as not supported by a consensus in an article in the Times of Israel entitled San Remo in Shilo. My reply can be found at
In my view the contention based on the Geneva Convention is pretty far out. The land is not an area subject to "belligerent occupation", it is land over which Israel has sovereignty that has been liberated. Furthermore the settlers have not been coerced to move to Judea and Samaria. They are here motivated by religious convictions. There are those who want to interpret a statute prohibiting transfer of population by coercion to be a law requiring prohibition of those who want to move elsewhere. That prohibition is unlawful under the UN Declaration of Human Rights.
    David Z on August 23, 2012 at 5:53 pm (Reply)
    Why do you call Suissa vs. Beinart a "so-called debate"? Surely Suissa and Beinart don't agree.
David Z on August 23, 2012 at 5:51 pm (Reply)
Practically, these issues are very tough. But legally, I don't understand why we are forced to pretend that the status quo in 1966 vis-a-vis the West Bank (and Gaza) was legal. It's impossible to know what legal means in these cases (certainly, to some extent a war of conquest has meaning -- otherwise the Jews would get their land back from the Roman/Arabs/Ottomans/British who conquered it from them). But once the Arab Palestinians rejected the U.N. Partition Plan in 1948, even if that would have been the new "legal" definition of the Jewish State, the borders of the State were undefined. In that special case, it seems completely ordinary and common sense that whatever land the Jews captured and settled would be part of their State. Obviously at the time, they were just trying to preserve existing settlements and gain control of some contiguous land for a country. And in 1967, of course, they were getting rid of Jordan and Egypt, since none of the wars were just between the Palestinian Arabs and the Palestinian Jews, but between virtually all Arabs and the Palestinian Jews. At any rate, calling Israel a belligerent occupier of land that the countries from whom it took the land have given up claims to, seems inaccurate to say the least. What to do about the large number of Arabs living in the West Bank and Gaza and avoiding apartheid and voting rights seems insurmountable (without voluntary or involuntary population transfer, as with the Jews in Arab lands). But that doesn't mean Israel is a belligerent occupier, however much its supreme court says it is.
Wallace Edward Brand on August 23, 2012 at 10:23 pm (Reply)
My own view is that in 1920, when the WWI Allies adopted the Balfour Policy, they gave the political rights to Palestine to England in trust for the Jews, but not to vest in the Jews until they had attained a population majority in Palestine. This view is based on a memo of Arnold Toynbee and Lewis Namier of the British Foreign Office dated September 19, 1917 responding to allegations just before publishing the Balfour Declaration that it would be antidemocratic to award sovereignty to the Jews as in 1917 in all Palestine they had only a 10% minority of the population of all Palestine. Toynbee and Namier replied that they agreed with the concept raised by the opponents of the policy, but as contemplated in the Balfour Policy it would be imaginary as the political rights would be given in trust to England or the US and the Jews could not exercise them until l they were situated just like any other modern European state to exercise sovereignty, namely, with a population majority, unified control, etc.. This was in 1917, before the San Remo Resolution, but Winston Churchill after WWI had met with an Arab delegation and confirmed this view. The Arab delegation from Palestine asked why they could not have self government and Churchill told them that Palestine would not have self government until the Jews had a population majority. David Lloyd George also confirmed this view during the Paris Peace talks. As trustee England had the legal dominion over the political rights and therefore could exercise them thus exercising sovereignty. The Jews only got a beneficial right and did not have legal dominion until the tacit condition had been satisfied.

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