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.
About the Author: Avi Bell is a professor in the Rackman Faculty of Law at Bar-Ilan University and the University of San Diego School of Law.
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