By Ted Belman
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, in the American Interest , regarding the
legality of the settlements, wrote:
“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”
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 over 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
Israel’s 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.
From a political point of view, he cannot ignore the Report. A political storm is raging. MK Tzippi
Hotovely, Likud, 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 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.
Could this lead to 'confirming the covenant?'
ROYAL HEIR
Posts
