by Ted Belman
A legal tsunami gathering strength in Israel will soon engulf the region. An official 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; Eugene W. Rostow, former U.S. Undersecretary of State for Political Affairs and Distinguished Fellow at the U.S. Institute for Peace; Julius Stone, one of the 20th century's 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; David Matas, world-renowned human rights lawyer and honorary counsel to B'nai Brith Canada and David M. Phillips, Professor at Northeastern University School of Law.
The question of the applicability of the FGC was considered by the International Court of Justice (ICJ), an arm of the UN, in its advisory opinion on the legality of the fence.
The ICJ 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.
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.
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 borders 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 choice 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. If Israel chooses to claim sovereignty, the Arabs will have to decide whether to whether to push for citizenship or to accept autonomy.
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