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August 27, 2014 / 1 Elul, 5774
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US Agrees, Settlements are “Not Illegal”

Prime Minister Benjamin Netanyahu receives the Levy Committee Report

Prime Minister Benjamin Netanyahu receives the Levy Committee Report
Photo Credit: GPO

http://www.israpundit.com/archives/47484

The  legal tsunami gathering strength in Israel will soon engulf the world. A report is soon to be released that says, the Fourth Geneva Convention (FGC) does not apply to Judea and Samaria aka West Bank and that Israel has every right to build settlements there.

In January of this year,  PM Netanyahu set up the Levy Committee to investigate the legal status of unauthorized  West Bank  Jewish building. The Committee was headed by Supreme Court Justice (ret) Edmund Levy. It included Tel Aviv District Court Judge (Ret.) Tehiya Shapira and Dr. Alan Baker an international law expert, who was part of the team that devised the Oslo Accords.

The Committee reviewed legal briefs from right of center groups but also from far left  groups such as Peace Now, Yesh Din and Btselem. Its 89 page Report was submitted to PM Netanyahu a few weeks ago and is now under review by his Ministerial Committee on Settlements. Though the Report has yet to be formerly published, the contents are already well known.

It found that the settlements are not illegal. To reach this conclusion it first found that the Fourth Geneva Convention which applies “to all cases of partial or total occupation of the territory of a High Contracting Party” does not apply to Judea and Samaria because “Israel does not meet the criteria of ‘military occupation’ as defined under international law” … as  “no other legal entity has ever had its sovereignty over the area cemented under international law.”

Furthermore it found that there was no provision in international law which prohibited Jews settling in the area.

The UN and the EU have for decades repeated the mantra that the land is occupied and the settlements are illegal, both pursuant to the FGC but there has never been a binding legal decision on which they based their assertions. The US has been more cautious and considers the settlements “an obstacle to peace” or “illegitimate.” Nevertheless, it leads the chorus in demanding an end to Israel’s settlement construction.

In 2010, Nicholas Rostow  wrote in the American Interest regarding the legality of the settlements:

      “On February 2, 1981, President Reagan stated that the settlements were “not illegal,” although he criticized them as “ill-advised” and “unnecessarily provocative.” Throughout the Reagan Administration the U.S. government did not question the legality of the settlements; rather, it criticized the settlements on policy grounds as an obstacle to the peace process. In the United Nations, the United States voted against resolutions describing Israeli settlements as illegal.”

President George Bush followed suit and so did President Obama.

The Levy Report confirms the opinions of a large list of experts who have long claimed the same, including:

  • Stephen M. Schwebel, Professor of International Law at the School of Advanced International Studies of The Johns Hopkins University (Washington), former Deputy Legal Advisor of the U.S. State Department and President of the International Court of Justice from 1997 to 2000:“Where the prior holder of territory [Jordan] had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense [Israel] has, against that prior holder, better title.”
  • Eugene W. Rostow, Former U.S. Undersecretary of State for Political Affairs and Distinguished Fellow at the U.S. Institute for Peace:“The Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of Israel was created… The Jewish right of settlement in Palestine west of the Jordan River, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated…”
  • Julius Stone, one of the 20th century leading authorities on the Law of Nations, Doctor of Juridical Science from Harvard and Professor of Jurisprudence and International Law at universities in Australia and California:“The terms of Article 49(6) [of the Fourth Geneva Convention] however they are interpreted, are submitted to be totally irrelevant. To render them relevant, we would have to say that the effect of Article 49(6) is to impose an obligation on the state of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever ‘judenrein’.”
  • David Matas, world-renowned human rights lawyer and honorary counsel to B’nai Brith Canada:“For there to be an occupation at international law, there has to be an occupying and occupied power both of which are members of the community of nations. The only conceivable occupied power for the West Bank is Jordan. Yet Jordan has renounced all claims over the West Bank.”
  • David M. Phillips, Professor at Northeastern University School of Law:Indeed, the analysis underlying the conclusion that the settlements violate international law depends entirely on an acceptance of the Palestinian narrative that the West Bank is “Arab” land. Followed to its logical conclusion – as some have done – this narrative precludes the legitimacy of Israel itself…The ultimate end of the illicit effort to use international law to delegitimize the settlements is clear – it is the same argument used by Israel’s enemies to delegitimize the Jewish state entirely.”
  • Jeffrey S. Helmreich, author and writer for the Jerusalem Center for Public Affairs:“The settlements are not located in ‘occupied territory.’ The last binding international legal instrument which divided the territory in the region of Israel, the West Bank, and Gaza was the League of Nations Mandate, which explicitly recognized the right of Jewish settlement in all territory allocated to the Jewish national home in the context of the British Mandate. These rights under the British Mandate were preserved by the successor organization to the League of Nations, the United Nations, under Article 80 of the UN Charter.”

The question of the applicability of the FGC was considered by the International Court of Justice (IJC), an arm of the UN, in its advisory opinion on the legality of the fence.

The IJC held that “the Convention applies, in particular, in any territory occupied in the course of the conflict by one of the contracting parties.”  In other words it ignored that the lands occupied must be the lands of “another High Contracting Party.”  This is not considered sound law and in any event, is not a binding decision.

The Supreme Court of Israel in its decision approving the fence as legal,  said  that “the question of the application of the Fourth Geneva Convention is not before us now since the parties agree that the humanitarian rules of the Fourth Geneva Convention apply to the issue under review.”  Thus it didn’t decide on the applicability.

The Left in Israel are screaming blue murder and referring to the Report as “born in sin” and a “political manifesto.”

On Monday, while speaking to reporters, State Department spokesman Patrick Ventrell said:

    “The US position on settlements is clear. Obviously, we’ve seen the reports that an Israeli government appointed panel has recommended legalizing dozens of Israeli settlements in the West Bank, but we do not accept the legitimacy of continued Israeli settlement activity, and we oppose any effort to legalize settlement outposts.”

What is interesting about this statement is that Ventrell did not comment on the finding that the FGC did not apply or that the settlements were not illegal.  He merely reiterated the US government position without substantiating it. Furthermore, the settlement outposts that the State Department doesn’t want “legalized” are legal, save for having not received their final approval from the Government of Israel. If they were really illegal by international law, Israel wouldn’t be able to “legalize” them. Put another way, the US position is that Israel shouldn’t exercise her rights because such exercise would be an obstacle to peace. It prefers to recognize the non-existing Arab rights rather than the real rights of the Jews/Israel.

Accordingly, the legal conclusions of the Report are sound.  What will the fallout be?

Well for starters, the UN may ask for another advisory opinion from the ICJ on the validity of this report but why bother, it already has one on the applicability of the FGC. It probably will choose to ignore it as just another opinion. Meanwhile the existence of the report will take the wind out of the sails of the US and the EU as they try to damn the settlements and Israeli actions. The US will have to acknowledge that since President Reagan, it has considered the settlements to be “not illegal” but only, ”ill-advised.”

PM Netanyahu will have to decide whether he will embrace the Report and act accordingly or whether he will wait for the issue to be adjudicated by Israel’s High Court. It is highly unlikely that this Court will fly in the face of the named experts, the US Government and the Levy Report. The Court has previously held that the settlements were legal.

From a political point of view, he cannot ignore the Report.  A political storm is raging. Likud MK Tzippi Hotovely is preparing a Bill that will “endorse the principles of the Levy Report and will require the establishment of a judicial tribunal in Judea and Samaria which will be given the responsibility of discussing matters related to land ownership, the establishment of an Israeli land registry in Judea and Samaria and applying Israeli building and planning laws on Judea and Samaria.”

Where does that leave the international community?  The foundation of their attacks on Israel will have been destroyed. It will be hard to ignore the Report and harder still to ignore a confirming decision by Israel’s High Court. It will no longer be able to claim with a straight face that the lands are “occupied Palestinian lands” or that the settlements are illegal.

Congress will no doubt strongly endorse the Report with or without a decision of the Supreme Court of Israel.

The upshot of all this will be that Israel will end the de facto building freeze and start construction of settlements in earnest. It will also signal the end of the pursuit by Israel of the two-state solution. The Israeli center will no longer believe that Israel is an occupier and instead will believe that the land is theirs, which it is.

Presently there is a significant movement in Israel advocating Israeli sovereignty over all of Judea and Samaria, even if that means making citizenship available to qualifying Arabs.

Israel must decide between two risky alternatives; either accept the two-state solution based on ’67 lines with swaps or annex the land and contend with an extra 1.5 million Arabs within its borders. With the latter alternative, the Jews would be left with a stable 2:1 majority. Israelis are already trending to the latter and this Report will accelerate that trend.

The Arabs in Judea and Samaria will not accept such a two state solution because it will preclude the “right of return” and will require them to recognize Israel as the Jewish State. Furthermore it will require them to sign an end-of-conflict agreement which they will never do. If Israel chooses to claim sovereignty, the Arabs will have to decide whether to push for citizenship or to accept autonomy.

This tsunami will change the political landscape for the better and forever.

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6 Responses to “US Agrees, Settlements are “Not Illegal””

  1. Charlie Hall says:

    This article is so misleading as to be in effect an actual lie. In fact, the US government's position on settlements was set out on April 8, 1968, and has not changed since. Since this is so important I will give the link to the State Department Archives page, and the full text of the Airgram sent to the government of Israel:

    http://history.state.gov/historicaldocuments/frus1964-68v20/d137

    Airgram From the Department of State to the Embassy in Israel 1.

    Washington, April 8, 1968, 3:04 p.m.

    SUBJECT
    Israeli Settlements in Occupied Territories.
    REF
    Tel Aviv 2722, A-716, Jerusalem A-1762.
    CA-7122

    We have noted press and posts' reporting that the GOI is under increasing pressure to authorize and facilitate the establishment of civilian settlements in the occupied areas. Existing settlements in the Golan Heights, Sinai, and at Etzion were justified by the GOI as para-military encampments serving security purposes. Recent reports (Tel Aviv A-716) indicate that these settlements are taking on aspects of permanent, civilian, kibbutz-like operations and some are, in fact, civilian kibbutzim with Nahal covers. Thus far, we have no information on the establishment of settlements by the 17 groups which Prime Minister Eshkol announced in the Knesset February 26 he had approved. While there was no suggestion in his statement that these groups would be associated with Nahal, we note that the groups filed applications with the GOI and it seems probable they are non-Nahal.

    Although we have expressed our views to the Foreign Ministry and are confident there can be little doubt among GOI leaders as to our continuing opposition to any Israeli settlements in the occupied areas, we believe it would be timely and useful for the Embassy to restate in strongest terms the US position on this question.

    You should refer to Prime Minister Eshkol's Knesset statement and our awareness of internal Israeli pressures for settling civilians in occupied areas. The GOI is aware of our continuing concern that nothing be done in the occupied areas which might prejudice the search for a peace settlement. By setting up civilian or quasi-civilian outposts in the occupied areas the GOI adds serious complications to the eventual task of drawing up a peace settlement. Further, the transfer of civilians to occupied areas, whether or not in settlements which are under military control, is contrary to Article 49 of the Geneva Convention, 3 which states “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Finally, you should emphasize that no matter what rationale or explanation is put forward by the GOI, the establishment of civilian settlements in the occupied areas creates the strong appearance that Israel, contrary to the principle set forth in the UNSC Resolution and to US policy expressed in the President's speech of June 19, does not intend to reach a settlement involving withdrawal from those areas.

    There is no country in the world that disagrees with the position stated in the last paragraph.

  2. Charlie Hall says:

    There is of course the possibility that President Obama could have quietly reversed a 44 year US policy. If that has indeed happened, why have we not heard of it? Where was the press release? Why have not the Greater Israel supporters given him loud and lavish praise for doing so?

  3. Gil Gilman says:

    Apparently you didn't actually read the post. Be that as it may, what do you think politics is about, if not actual lies? Without heads of state constantly prevaricating to each other and to their constituents, the current world would be vastly different. There hasn't been a Staesman of note since the fall of the Berlin Wall. The Cold War was replaced by the Tall Tale War, and now we are moving into the Every Man And Nation For Himself War.

  4. Don't underestimate the strength of the anti-Israel opinion – worldwide. I don't think that e.g. European Governments (or EU for that matter) will be able to turn around and admit that the international law they have been peddling for 45 years was… no law. It will be interesting to see what the Government of Israel and the few, but dedicated, advocates for Israel in the world can do to gradually change the dominating public opinion. In final analysis, the Levy Report is asking the world to terminate anti-Semitism… Quite a challenge!

  5. Charlie Hall says:

    Yes, I read the article. It shows no evidence that the US has changed its position regarding settlements; all you can show is that the US has not been pushing Israel on this. Is that bad? Is that something Israel should use to take advantage of its most reliable ally?

    The Wikileaks showed beyond any doubt that the US is one of the few countries in the world that actually says pretty much the same thing in public as in private — through multiple Presidents.

    And regarding the rest of the article, do we really want to become OneStaters? Based on the 2006 election results in both Israel and the PA, Hamas and Fatah would get between 30 and 40 MKs betwen them. They would never be able to control the government, but they could easily decide which Jew gets to become PM. If all the settlements are to be legalized I don't see any other long term outcome.

  6. Charlie Hall says:

    FWIW, here is the relevant part of the Fourth Geneva Convention, Article 49:

    "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."

    From 1977 to 1992, that was the explicit policy of every Israeli government.

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