Latest update: July 10th, 2012
Despite criticizing Israeli administrations for failing to prevent unauthorized Jewish outposts to crop up throughout Judea and Samaria, the three legal experts on Prime Minister Benjamin Netanyahu’s “outpost committee” have issued a recommendation to Israel’s highest echelons to legalize and expand them.
Supreme Court Justice Edmund Levy, former Foreign Ministry attorney, international law expert and ambassador to Canada Alan Baker and former deputy president of the Tel Aviv District Court – and daughter of famed Six Day War IDF chief rabbi Rav Shlomo Goren – Tchia Shapira were appointed by the prime minister in late January to investigate the legal status of non-permitted Jewish building in Judea and Samaria.
On Sunday, the team submitted their 89-page “Levy” report on the ramification of the outposts under domestic and international law to the Ministerial Committee on Settlements for approval.
Though the United Nations position is that new Israeli communities in Judea and Samaria are all illegal, the report found that conventional laws on occupation “as set out in the relevant international conventions cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria spanning over decades,” and found “Israel does not meet the criteria of ‘military occupation’ as defined by international law” in Judea and Samaria. Therefore, says the report, Jewish settlements and outposts are legal.
The groundbreaking report found that Israelis have the right to build and develop in the biblical heartland to the north and south of Jerusalem, which include such ancient and famous cities as Hebron, Bethlehem, Shechem and Beit El. “Israelis have the legal right to settle in Judea and Samaria and the foundation of settlements cannot, in and of itself, be considered illegal,” said the report.
Yet the report faulted the government for tacitly agreeing and even encouraging the development of some 100 new Jewish hamlets without permits between 1991 and 2005, saying the building was carried out with the full knowledge – and even assistance – of senior politicians, government ministers, and even the prime minister himself.
Because the building was done with the government’s knowledge, the committee found that the government “implied agreement”, meaning the prime minister could retroactively legalize the construction.
The committee urged the government to make its stand on Jewish settlement activity public and open, to exercise transparency in authorizing building and issuing permits, and to ensure that all building adheres to the code of law.
“Pending completion of these proceedings and examination of the possibility of granting building permits, the state is advised to avoid carrying out demolition orders, since it brought about the present situation by itself,” the report recommended.
Among the recommendations made by the committee are:
• New Jewish communities in Judea and Samaria should be established only by the government or an empowered ministerial committee.
• The Civil Administration should no longer be able to presume that land settled by Jews is Palestinian-owned without a Palestinian complainant demanding that squatters be removed. Jews would therefore not be subject to evictions unless a case is brought against them in court by a bona fide complainant.
• Expansion of community borders or jurisdiction must be done only after receiving the approval of the defense minister, with notification then being sent to the prime minister.
• Construction inside existing or future Jewish communities in Judea and Samaria should not require government or ministerial approval, but will still need to meet planning and zoning standards. This includes communities built on land seized by military order.
• Israelis should be afforded the right to directly purchase and register land in Judea and Samaria, with property and land registration conducted and completed within a reasonable period of time.
• The Land Registry records will be open to the public.
The report was received with cautious optimism by leaders in the movement to reestablish Jewish life in the areas made famous in the bible and reclaimed after 2,000 years of exile in the battles of the Six Day War.
“This new report is long overdue. We see this as a step by this government to right some of the wrongs of the past,” said David HaIvri, Director of the Shomron Liason Office, representing Jewish communities in Samaria. “I hope that the government adopts all recommendations that allow Jewish growth and explanation in Israel’s heart land. For the past many years we have seen the communities in Judea and Samaria unfairly restricted due to the former report written by the extreme left wing activist Talia Sasson. We look forward to the expansion and development of the communities of Judea and Samaria.”
The Levy report stands in stark contrast to the 2005 report by former head of the State Prosecution Criminal Department Sasson, commissioned by then-prime minister Ariel Sharon, which condemned the state for building illegal Jewish communities, calling the government’s support of Jewish growth in the areas a “blatant violation of the law” and urging “drastic steps” be taken to reverse the trend. Just four months later, the religious, Iraqi-born Justice Levy would be the only Supreme Court judge to dissent in a Supreme Court decision declaring the forced expulsion of Jews from their homes in the Gaza Strip communities of Gush Katif legal.
Sasson, a member of the left-wing Meretz party and a formulator of the Geneva Initiative, slammed the Levy report on Monday, stating that the Supreme Court is the only body with standing to determine the legality of Jewish communities in Judea and Samaria, and that the Levy committee’s findings are therefore legally irrelevant. The committee’s report is seen as a threat to the current power of the attorney general as the sole advisor to the government on legal issues.
That position has come under scrutiny in the wake of the Attorney General Yehuda Weinstein’s unilateral determination and presentation to the Supreme Court that the houses of Ulpana Hill in Beit El were built on Palestinian land, despite an ongoing lower court case to determine that fact. The court did not investigate the veracity of the State Attorney’s presentation, but accepted it and issued orders for demolition of the homes.
Yesh Din, the human rights group that conceived and championed the case before the High Court that the Ulpana homes were built on Palestinian land, has refused to cooperate with the Levy committee, saying it will only work with the Attorney General.
In an interview with The Times of Israel, Sasson rejected the notion that Prime Minister Netanyahu aims to create a Palestinian state. She lamented that “everything bad that could be happening is happening,” namely the authorization of new Jewish communities to be built in Judea and Samaria, such as a new community in place of Migron. “I can only look at what he does. And that’s what scares the hell out of me, because from what he’s doing I see that he wants to enlarge as much as he can – building in the territories indiscriminately,” she said.
Despite the historic nature of the findings by a government committee, to what degree the report will be applied in government policy remains to be seen.
On the small scale, the report could have some big ramifications for Jewish communities which have long fought for their rights to expand and build.
“If the government adopts the report’s findings and conclusions, theoretically they could give us back [our recently purchased property] Beit HaMachpela ,” said David Wilder, English spokesperson for the Jewish community of Hebron. “According to reports in Haaretz, the reason [Prime Minister Netanyau] gave [Defense Minister Ehud] Barak the green light to throw us out was for fear of being accused of being a ‘war criminal’ due to the Geneva/Hague convention accords. The Levy report negates this.”
“Look, Bibi owes us,” Wilder told the Jewish Press. “He abandoned most of Hebron to Arafat in 1997, and as such, was responsible for the shooting at us from the hills surrounding the Jewish community. It’s about time he repented. Beit HaMachpela would be a good start.”
While the small scale impacts would be significant, the impact on the country could be historic.
“I think that now the ball is in the prime minister’s hands,” Moshe Feiglin, Jewish activist, and political hopeful in the Manhigut Yehudit faction of Likud told the Jewish Press. “Is he going to go forward and make some action that will change the picture in the area or not? The report is very positive and something to be happy about. The question is how practical it is going to be.” Feiglin said he believes the proper outcome of the findings would be the annexation of all of Judea and Samaria “as we did in the Golan Heights and Jerusalem”.
About the Author: Malkah Fleisher is a graduate of Cardozo Law School in New York City. She is an editor/staff writer at JewishPress.com and co-hosts a weekly Israeli FM radio show. Malkah lives with her husband and two children on the Mount of Olives in Jerusalem.
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