Legal Panel Frames New Debate on Judea, Samaria Jewish Development

In center is retired Israeli Supreme Court judge Edmond Levy, who is now in the news for heading the Commission to Examine the Status of Building in Judea and Samaria. Photo: Kobi Gideon/Flash90.

Sparking intense debate over an area whose Israeli-Arab disputes are already the subject of frequent international scrutiny, the Commission to Examine the Status of Building in Judea and Samaria issued a report stating the case for legalizing Jewish communities in that area.

The committee—a legal panel headed by retired Israeli Supreme Court Justice Edmond Levy—concluded that there is no provision making the Jewish population in the West Bank illegal under international law.

Israelis “have the legal right to settle in Judea and Samaria and the establishment of settlements cannot, in and of itself, be considered to be illegal,” the committee’s report said. Furthermore, no legal entity—including Jordan—“has ever had its sovereignty over [Judea and Samaria] cemented under international law,” according to the report, meaning that the classical definition of “occupation” cannot be applied to West Bank Jewish communities.

Allan Gerson—former counsel to the U.S. Delegation to the United Nations under President Ronald Reagan and author of the book Israel, the West Bank, and International Law—said in a phone interview that Israeli building in the West Bank is not “inherently unlawful” because “there are claims that Israel has” to do so. He said those claims, put up against the claims of the Palestinians, “really out to be resolved in negotiations.”

“The key point is that during [my] five years in the Reagan administration, we vetoed [UN] resolutions that condemned the settlements as illegal, and we did so not because they said settlements were illegal, but because getting into [an argument on legality] is a distraction from the pursuit of an approach that takes both parties to the negotiating table,” Gerson told JNS.org.

The Levy Committee echoed that sentiment in its report. Israeli Ambassador to Canada Alan Baker, a member of the three-person committee, told Israel Hayom the committee was convinced that territories in the West Bank “are subject to negotiations between [Israel] and the Palestinians, and until those negotiations are concluded, there is nothing to prevent [Israel] from building there, on condition that the construction is not done on private land.”

Gerson said Israel can stop building in the West Bank simply to “be nice to the other side,” but “If you have a claim [as Israel does] that you’re entitled to [build in the area], there’s an argument to be made that you don’t forfeit that claim.”

Reacting to the report, U.S. State Department spokesman Patrick Ventrell said, “we do not accept the legitimacy of continued Israeli settlement activity, and we oppose any effort to legalize settlement outposts.”

Gerson told JNS.org that it is notable how Ventrell did not say outright that Israeli settlements are themselves illegal, but instead opposed settlement activity and the “effort” to make them legal. Therefore, the U.S. opposed Israeli building on political—not legal—grounds, he said.

“It’s conspicuous by its absence,” Gerson said of Ventrell’s omission of a direct legal opposition to settlements. “That’s the key thing, [it] is that the State Department did not oppose [settlements] because they are illegal.”

Analyst Ted Belman wrote for Israpundit that Ventrell “merely reiterated the U.S. government position without substantiating it.”

“If [the Jewish communities in the West Bank] were really illegal by international law, Israel wouldn’t be able to ‘legalize’ them,” according to Belman. “Put another way, the U.S. 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.”

The Levy Committee consisted of Levy, Baker, and retired Israeli judge Tehiya Shapira.

Baker told Israel Hayom that the committee was not political in nature.

“We determined early on, and we wrote this in the beginning of the report, that we would not take a position regarding the diplomatic wisdom in building the settlements, but that we would act as jurists who are charged with drawing conclusions based solely on the law,” Baker said. “This is not a political report, but a legal report, which is based on an examination of international, Ottoman, Jordanian, and Israeli jurisprudence.”

Gerson told JNS.org that ultimately, there is “no neutral outside body” that could have issued a report such as this one. He called the Supreme Court of Israel “highly respected.”

Talia Sasson, who authored a report on West Bank Jewish communities for the government of Prime Minister Ariel Sharon, argued that the Levy Committee report ignored Israeli Supreme Court rulings. Sasson’s 2005 report for Sharon concluded that Israel secretly diverted millions of shekels to build Jewish communities that were illegal under Israeli law. The report mentioned 150 communities in the West Bank with incomplete or nonexistent permits.

The Levy Committee expressesed “great reservation with regard to the Sasson report as it relates to the guilt of the settlers,” although it did accept—and even expanded upon—the Sasson report’s information which shed light on the building of West Bank Jewish communities. Those communitiues, the Levy report said, were built by Israel “quietly,” “with a wink of an eye” and in the spirit of “a wall and fortress.”

“The conduct of the government and its emissaries in this matter resulted in a number of consequences,” the Levy Committee wrote. “Those towns/neighborhoods that were built were later deemed unauthorized. Their ability to expand and develop in order to address issues of natural growth and basic problems in infrastructure was denied to them, and their inhabitants were declared ‘building violators’ and ‘infiltrators’ on land whose ownership rights were obtained by paying money from their own pockets and through bank loans, all after they had received state approval.”

New York Sun contributing editor Jerold Auerbach agreed with the Levy report’s conclusion that international law supports “the right of Jewish settlement” in the West Bank.

“The League of Nations Mandate, drafted at the San Remo Conference in 1920 and adopted unanimously two years later, recognized ‘the historical connection of the Jewish people with Palestine’ and guaranteed to Jews the right of ‘close settlement’ between the Jordan River and the Mediterranean,” Auerbach wrote in a column.

That mandate, Auerbach added, was “never modified or terminated.”

Writing in the Jerusalem Post, historian Moshe Dann called the Levy report “a setback for the international community,” which considers the designation of “occupation” for Israeli control of West Bank territory as “sacrosanct.”

Dann wrote that the report “presented Israel’s unique legal claims” to West Bank land, bucked widely accepted notions that Israel “violates international and humanitarian law” and the “rights of Palestinians,” and “strikes a major blow to the ‘two states for two peoples’ position and therefore to the misconceptions that formed the basis of the Oslo Accords and the ‘peace process.’”

“The report decisively ends the delusion that Israel will withdraw to the 1949 Armistice Lines, which would essentially be an act of national suicide,” according to Dann.

Yesh Din—an Israeli NGO which provides legal assistance to Palestinians—had a different take, decrying the Levy report as “written in Wonderland, in which the laws of the absurd rule.” The left-leaning Jewish group Peace Now accused the report of being “pre-ordered” by the political right and said the committee’s members “live in perpetual denial.”

Member of Knesset Shlomo Molla, of the Kadima party, said Prime Minister Benjamin Netanyahu should not adopt the Levy report “because it will bury the peace process for good.”

“The report badly tarnishes Israel’s image and prevents all possibility of advancing toward the peace process,” Molla said. “This report only supports the settlers’ rampages and gives a stamp of approval to a transgression of the law.”

The New York Sun’s Auerbach, however, wrote that the “final word” on Jewish building in the West Bank “belongs to Yehuda Z. Blum, former ambassador of Israel to the United Nations, who declared in 1979: ‘Jews are not foreigners anywhere in the Land of Israel.’”

“The Levy Commission affirmed the obvious,” Auerbach wrote. “For that alone, however, it made history.”