Comments on: The Levy “there is no occupation” report http://jewschool.com/2012/07/13/29092/the-levy-there-is-no-occupation-report/ Progressive Jews & Judaism Tue, 21 May 2013 18:38:38 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: #wib: A new woman in black is born « Her Eyes Only http://jewschool.com/2012/07/13/29092/the-levy-there-is-no-occupation-report/comment-page-1/#comment-700640 #wib: A new woman in black is born « Her Eyes Only Fri, 27 Jul 2012 23:28:00 +0000 http://jewschool.com/?p=29092#comment-700640 [...] Edmond Levy said: “There is no occupation in Israel“, and I partially agree with him: we cannot see the occupation because the Apartheid is [...] [...] Edmond Levy said: “There is no occupation in Israel“, and I partially agree with him: we cannot see the occupation because the Apartheid is [...]

]]> By: Nathaniel Berman http://jewschool.com/2012/07/13/29092/the-levy-there-is-no-occupation-report/comment-page-1/#comment-700486 Nathaniel Berman Mon, 23 Jul 2012 19:35:48 +0000 http://jewschool.com/?p=29092#comment-700486 Dear Avraham, Let’s take your last comment first: international law is not, I repeat, Torah le-Moshe Mi-Sinai! It is formed through agreements between states, state practice, and interpretations by authoritative experts. You can’t speak of international law (and domestic law, as well), without looking to authoritative interpretations by states, courts, and the writings of experts. Your analogy to religious practice is just not relevant. There is no unchanging, “true” international law handed down by God and not subject to development and change! (And Boruch Hashem for that, since international law was for centuries thoroughly pervaded by colonialism and racism!). Why would you even think of making an analogy to religious practice? International law is a very human artifact, made by very fallible human beings – and that’s all! Now to your questions: “1)Seeing that the only difference between “Israel Proper” and the Territories is the 1949 Armistice line (which all parties agreed was not a final border), what is the legal difference between the two?” – In the years since 1949, the international community and Israel itself have recognized the Green Line as the border of the State of Israel. The 1949 line may have started as an Armistice Line but has since been recognized as Israel’s border. No State, including Israel, has recognized Israel’s sovereignty over the area beyond the Green Line. The one exception, of course, is Jerusalem, claimed by Israel as its capital but not so recognized by most in the international community. “2)What of the Oslo accords which give Israel the right to administer Area civilly and militarily until a final agreement is reached?” The Oslo Accords did not, for political expediency, attempt to resolve the fate of the settlements. However, it certainly did not authorize Israel to violate generally recognized international law, including the application of the Geneva Conventions, to the territories. The Oslo Accords neither require, nor authorize, Israel to violate any of its responsibilities as an Occupying Power. They certainly did not give Israel the right to annex territory in violation of generally accepted international law. “3)What of Resolution 242 which requires Israel to relinquish territories, but specifically not all territories as part of a final agreement?” Without going into the well-worn polemics over the relationship between the English and French versions of the resolution, we can say the following: the resolution declares the inadmissibility of the acquisition of territory by war and specifically refers to the territories as “occupied.” To the extent that we can give continuing significance to the absence of the definite article (“the”) in the English version, this could refer to the fact that it would be perfectly in keeping with international law for a negotiated agreement to involve the relinquishment of some territory by one party or another, or to a swap of territory. It could not, however, given the clear statement about the inadmissibility of acquisition of territory by war, be interpreted as simply giving Israel the right to unilaterally annex any of the territory. “4)I am no legal scholar, but if the San Remo agreement was incorporated into international treaties, wouldn’t that make it legally relevant?” No, not as such – the portion of the Resolution that was incorporated into a treaty would be binding on the parties to the treaty because it was now part of the treaty, but that wouldn’t make the Resolution itself a part of the treaty. It might be relevant as evidence of the intent of the parties to the treaty if they were the same as the parties to the Resolution, but to the extent the language differs, it might provide contrary evidence (e.g., “they must have changed their minds if they changed the language”). Note that the first treaty to incorporate parts of the San Remo language was the Treaty of Sevres, which never went into effect! Finally, as I argued in my essay, the continuing legal relevance of colonial-era documents like the San Remo Resolution and the Mandate Instruments must be very carefully handled. The World Court has explicitly said several times that self-determination must be now viewed as the goal of all the Mandates, even though that was clearly not the intent of some of the major players at the time (especially the French and British!) The change between international law as an overtly pro-colonial discipline to international law as an overtly anti-colonial discipline (which took place sometime between the 1920s and 1960s) was as momentous a change as the change between the US Consitution and US legal system generally as overtly pro-slavery to the Constitution and US legal system as anti-slavery. Imagine if the US Supreme Court, in deciding the Brown v. Board case in 1954 had looked to US law in effect before the end of the Civil War and the adoption of the XIIIth and XIVth Amendments (about the same amount of time as has elapsed between the 1922 Palestine Mandate instrument and today)! “5)If Israel does not have rights to the land it conquered in 1967, then who does?” As explicitly stated in countless UN resolutions on the subject, and as one can infer by analogy with numerous legal documents and court decisions in analogous situations: the fate of the land should be decided in accordance with the self-determination of its inhabitants, otherwise known as the Palestinian people. Now, you can throw out international law if you like, and that would be the honest path for those who wish to legitimate the settlements, but to claim, as does the Levy Commission, that an utterly marginal opinion held only by a handful of lawyers for a party (and even then, only for lawyers who represent one controversial view of that party’s position), and completely contrary to every legal development over the past 90 years, is the “point of view of international law” is simply dishonest. Dear Avraham,
Let’s take your last comment first: international law is not, I repeat, Torah le-Moshe Mi-Sinai! It is formed through agreements between states, state practice, and interpretations by authoritative experts. You can’t speak of international law (and domestic law, as well), without looking to authoritative interpretations by states, courts, and the writings of experts. Your analogy to religious practice is just not relevant. There is no unchanging, “true” international law handed down by God and not subject to development and change! (And Boruch Hashem for that, since international law was for centuries thoroughly pervaded by colonialism and racism!). Why would you even think of making an analogy to religious practice? International law is a very human artifact, made by very fallible human beings – and that’s all! Now to your questions:
“1)Seeing that the only difference between “Israel Proper” and the Territories is the 1949 Armistice line (which all parties agreed was not a final border), what is the legal difference between the two?” – In the years since 1949, the international community and Israel itself have recognized the Green Line as the border of the State of Israel. The 1949 line may have started as an Armistice Line but has since been recognized as Israel’s border. No State, including Israel, has recognized Israel’s sovereignty over the area beyond the Green Line. The one exception, of course, is Jerusalem, claimed by Israel as its capital but not so recognized by most in the international community.
“2)What of the Oslo accords which give Israel the right to administer Area civilly and militarily until a final agreement is reached?” The Oslo Accords did not, for political expediency, attempt to resolve the fate of the settlements. However, it certainly did not authorize Israel to violate generally recognized international law, including the application of the Geneva Conventions, to the territories. The Oslo Accords neither require, nor authorize, Israel to violate any of its responsibilities as an Occupying Power. They certainly did not give Israel the right to annex territory in violation of generally accepted international law.
“3)What of Resolution 242 which requires Israel to relinquish territories, but specifically not all territories as part of a final agreement?” Without going into the well-worn polemics over the relationship between the English and French versions of the resolution, we can say the following: the resolution declares the inadmissibility of the acquisition of territory by war and specifically refers to the territories as “occupied.” To the extent that we can give continuing significance to the absence of the definite article (“the”) in the English version, this could refer to the fact that it would be perfectly in keeping with international law for a negotiated agreement to involve the relinquishment of some territory by one party or another, or to a swap of territory. It could not, however, given the clear statement about the inadmissibility of acquisition of territory by war, be interpreted as simply giving Israel the right to unilaterally annex any of the territory.
“4)I am no legal scholar, but if the San Remo agreement was incorporated into international treaties, wouldn’t that make it legally relevant?” No, not as such – the portion of the Resolution that was incorporated into a treaty would be binding on the parties to the treaty because it was now part of the treaty, but that wouldn’t make the Resolution itself a part of the treaty. It might be relevant as evidence of the intent of the parties to the treaty if they were the same as the parties to the Resolution, but to the extent the language differs, it might provide contrary evidence (e.g., “they must have changed their minds if they changed the language”). Note that the first treaty to incorporate parts of the San Remo language was the Treaty of Sevres, which never went into effect! Finally, as I argued in my essay, the continuing legal relevance of colonial-era documents like the San Remo Resolution and the Mandate Instruments must be very carefully handled. The World Court has explicitly said several times that self-determination must be now viewed as the goal of all the Mandates, even though that was clearly not the intent of some of the major players at the time (especially the French and British!) The change between international law as an overtly pro-colonial discipline to international law as an overtly anti-colonial discipline (which took place sometime between the 1920s and 1960s) was as momentous a change as the change between the US Consitution and US legal system generally as overtly pro-slavery to the Constitution and US legal system as anti-slavery. Imagine if the US Supreme Court, in deciding the Brown v. Board case in 1954 had looked to US law in effect before the end of the Civil War and the adoption of the XIIIth and XIVth Amendments (about the same amount of time as has elapsed between the 1922 Palestine Mandate instrument and today)!
“5)If Israel does not have rights to the land it conquered in 1967, then who does?” As explicitly stated in countless UN resolutions on the subject, and as one can infer by analogy with numerous legal documents and court decisions in analogous situations: the fate of the land should be decided in accordance with the self-determination of its inhabitants, otherwise known as the Palestinian people.
Now, you can throw out international law if you like, and that would be the honest path for those who wish to legitimate the settlements, but to claim, as does the Levy Commission, that an utterly marginal opinion held only by a handful of lawyers for a party (and even then, only for lawyers who represent one controversial view of that party’s position), and completely contrary to every legal development over the past 90 years, is the “point of view of international law” is simply dishonest.

]]> By: Avraham http://jewschool.com/2012/07/13/29092/the-levy-there-is-no-occupation-report/comment-page-1/#comment-700478 Avraham Mon, 23 Jul 2012 06:26:43 +0000 http://jewschool.com/?p=29092#comment-700478 Professor Berman – Thank you for responding to my post. I am sure you are busy, so I would greatly appreciate it if you can reply to the following points 1)Seeing that the only difference between “Israel Proper” and the Territories is the 1949 Armistice line (which all parties agreed was not a final border), what is the legal difference between the two? 2)What of the Oslo accords which give Israel the right to administer Area civilly and militarily until a final agreement is reached? 3)What of Resolution 242 which requires Israel to relinquish territories, but specifically not all territories as part of a final agreement? 4)I am no legal scholar, but if the San Remo agreement was incorporated into international treaties, wouldn’t that make it legally relevant? 5)If Israel does not have rights to the land it conquered in 1967, then who does? I am afraid that I do not understand the relevance of what happens to be mainstream opinion short of the cogency of that opinion’s content. If I put weight into opinion on the sole basis of them being mainstream at the moment, then I would probaly not have remained a practicing Jew. Based on what I see happening in the UN and other realms, I have no problem believing that the minority opinion can be correct. Thank you for your time. Wishing the best for you, Avraham Professor Berman – Thank you for responding to my post. I am sure you are busy, so I would greatly appreciate it if you can reply to the following points
1)Seeing that the only difference between “Israel Proper” and the Territories is the 1949 Armistice line (which all parties agreed was not a final border), what is the legal difference between the two?

2)What of the Oslo accords which give Israel the right to administer Area civilly and militarily until a final agreement is reached?

3)What of Resolution 242 which requires Israel to relinquish territories, but specifically not all territories as part of a final agreement?

4)I am no legal scholar, but if the San Remo agreement was incorporated into international treaties, wouldn’t that make it legally relevant?

5)If Israel does not have rights to the land it conquered in 1967, then who does?

I am afraid that I do not understand the relevance of what happens to be mainstream opinion short of the cogency of that opinion’s content. If I put weight into opinion on the sole basis of them being mainstream at the moment, then I would probaly not have remained a practicing Jew. Based on what I see happening in the UN and other realms, I have no problem believing that the minority opinion can be correct.

Thank you for your time. Wishing the best for you,
Avraham

]]> By: Jonathan1 http://jewschool.com/2012/07/13/29092/the-levy-there-is-no-occupation-report/comment-page-1/#comment-700471 Jonathan1 Sun, 22 Jul 2012 21:55:41 +0000 http://jewschool.com/?p=29092#comment-700471 Professor Berman writes: <i>Now, you can reject international law as a whole </i> Thank you. Professor Berman writes:

Now, you can reject international law as a whole

Thank you.

]]> By: Nathaniel Berman http://jewschool.com/2012/07/13/29092/the-levy-there-is-no-occupation-report/comment-page-1/#comment-700466 Nathaniel Berman Sun, 22 Jul 2012 19:01:56 +0000 http://jewschool.com/?p=29092#comment-700466 Hello Avraham! Just a quick note about your comment about my 'selective look' at international law. If you look carefully at the legal arguments given to support the Levy Commission, they all rely on documents from before 1925 and arguments from a tiny handful of legal writers who are committed to pro-settlement positions. This is truly a 'selective' look! They ignore about 90 years of legal evolution and the opinions of almost all international lawyers who have written directly or analogously on the issues raised by Levy. What makes something 'law' is a complicated question, but relying on nearly century old texts and the writings of a handful of lawyers for one side of a dispute, while ignoring all the authoritative texts that have been concluded in the intervening 9 decades, the decisions of every international court that has decided analogous issues, and the writings of all major experts in the field (except for those writing as lawyers for the pro-settler position) is not a very good way of proceeding within the field. Now, you can reject international law as a whole, and one can certainly debate whether international law is good thing or not, but you can't rely on obsolete texts and extremely marginal writings and claim, as does the Levy Commission, that an extremely marginal position reflects the "point of view of international law." You might say, "international law as a discipline went off the tracks decades ago, and I reject all texts, court decisions, and the writings of the vast majority of legal authorities since then." But that's a very different thing than a legal argument in the discipline of international law - and, of course, a truly 'selective' approach. The legal arguments I recited in my Times of Israel piece reflects mainstream opinion in the field. International law is not "Torah le-Moshe mi-Sinai" - it's something that, by its very nature, changes over time - and certainly has changed in the past 90 years!! Best wishes for a meaningful fast, Love, Nathaniel Berman Hello Avraham!
Just a quick note about your comment about my ‘selective look’ at international law. If you look carefully at the legal arguments given to support the Levy Commission, they all rely on documents from before 1925 and arguments from a tiny handful of legal writers who are committed to pro-settlement positions. This is truly a ‘selective’ look! They ignore about 90 years of legal evolution and the opinions of almost all international lawyers who have written directly or analogously on the issues raised by Levy. What makes something ‘law’ is a complicated question, but relying on nearly century old texts and the writings of a handful of lawyers for one side of a dispute, while ignoring all the authoritative texts that have been concluded in the intervening 9 decades, the decisions of every international court that has decided analogous issues, and the writings of all major experts in the field (except for those writing as lawyers for the pro-settler position) is not a very good way of proceeding within the field. Now, you can reject international law as a whole, and one can certainly debate whether international law is good thing or not, but you can’t rely on obsolete texts and extremely marginal writings and claim, as does the Levy Commission, that an extremely marginal position reflects the “point of view of international law.” You might say, “international law as a discipline went off the tracks decades ago, and I reject all texts, court decisions, and the writings of the vast majority of legal authorities since then.” But that’s a very different thing than a legal argument in the discipline of international law – and, of course, a truly ‘selective’ approach. The legal arguments I recited in my Times of Israel piece reflects mainstream opinion in the field. International law is not “Torah le-Moshe mi-Sinai” – it’s something that, by its very nature, changes over time – and certainly has changed in the past 90 years!!
Best wishes for a meaningful fast,
Love,
Nathaniel Berman

]]> By: Avraham http://jewschool.com/2012/07/13/29092/the-levy-there-is-no-occupation-report/comment-page-1/#comment-700413 Avraham Fri, 20 Jul 2012 11:05:14 +0000 http://jewschool.com/?p=29092#comment-700413 KFJ - Thank you for addressing my comment. As I said, I rarely see any serious attempts to strike at the actual points of the legal arguement. That being said, I think the comments on the article you linked to do a pretty good job at exposing the many flaws Professor Berman's selective look at history/intl law. KFJ – Thank you for addressing my comment. As I said, I rarely see any serious attempts to strike at the actual points of the legal arguement.

That being said, I think the comments on the article you linked to do a pretty good job at exposing the many flaws Professor Berman’s selective look at history/intl law.

]]> By: Jew Guevara http://jewschool.com/2012/07/13/29092/the-levy-there-is-no-occupation-report/comment-page-1/#comment-700393 Jew Guevara Thu, 19 Jul 2012 17:43:02 +0000 http://jewschool.com/?p=29092#comment-700393 Love of the Occupation is idolatry. Time to smash the idols. Love of the Occupation is idolatry. Time to smash the idols.

]]> By: Kung Fu Jew 18 http://jewschool.com/2012/07/13/29092/the-levy-there-is-no-occupation-report/comment-page-1/#comment-700387 Kung Fu Jew 18 Thu, 19 Jul 2012 14:53:11 +0000 http://jewschool.com/?p=29092#comment-700387 <em>The commission’s arguement seems pretty strong and it seems strange to counter a legal arguement with “well that’s not what everyone else thinks”.</em> Here's a more thorough explanation by legal scholar Prof. Nathaniel Berman of the invalid legal arguments made by Edmund Levy, which when examined, are quite breathtaking: <blockquote>But the uncanniness of the report does not stop with the Commission’s ostensible unawareness or indifference to its own marginality. Rather, it goes to the substance of the positions it embraces. The notion that there is no “occupation” due to the absence of a recognized pre-occupation sovereign (the “missing reversioner”), and that Jewish settlement in the West Bank is legally justified by a string of early 20th century documents, suggests that the report is operating in a parallel temporal universe – much in the way that its seeming ignorance of the quasi-consensus of legal opinion against its views suggests that it is operating in a parallel disciplinary universe. I note, first, that the three documents it cites are of variable legal significance. The Balfour Declaration, however much it inspired hope among many Zionists, was simply of no legal significance; it was a statement of British policy in relation to territory over which, at the time, it had neither control nor any legal claim. The San Remo Resolution was adopted by four of the victorious States of World War I — Britain, France, Italy, and Japan — and announced their intentions with regard to the breakup of the Ottoman Empire, including the placing of Palestine under a British Mandate. The Resolution, however, was not a treaty and not formally binding; it was a statement of intent by its signatories to embody its conclusions in a treaty. It was also the culmination of a set of secret meetings undertaken during the war by the two major colonial powers of the period — the British and French empires — to divide up the Ottoman Empire between them.</blockquote> I recommend reading the rest <a href="http://blogs.timesofisrael.com/san-remo-in-shilo-the-settlements-and-legal-history/" rel="nofollow">here</a>. What follows is an explanation of how "unowned land up for grabs" has been expunged as an anachronism by the post-colonial legal regime and replaced carefully with rights to self-determination balanced by human rights. "Land up for grabs" is a legal concept dead since the 1920s... The commission’s arguement seems pretty strong and it seems strange to counter a legal arguement with “well that’s not what everyone else thinks”.

Here’s a more thorough explanation by legal scholar Prof. Nathaniel Berman of the invalid legal arguments made by Edmund Levy, which when examined, are quite breathtaking:

But the uncanniness of the report does not stop with the Commission’s ostensible unawareness or indifference to its own marginality. Rather, it goes to the substance of the positions it embraces. The notion that there is no “occupation” due to the absence of a recognized pre-occupation sovereign (the “missing reversioner”), and that Jewish settlement in the West Bank is legally justified by a string of early 20th century documents, suggests that the report is operating in a parallel temporal universe – much in the way that its seeming ignorance of the quasi-consensus of legal opinion against its views suggests that it is operating in a parallel disciplinary universe. I note, first, that the three documents it cites are of variable legal significance. The Balfour Declaration, however much it inspired hope among many Zionists, was simply of no legal significance; it was a statement of British policy in relation to territory over which, at the time, it had neither control nor any legal claim. The San Remo Resolution was adopted by four of the victorious States of World War I — Britain, France, Italy, and Japan — and announced their intentions with regard to the breakup of the Ottoman Empire, including the placing of Palestine under a British Mandate. The Resolution, however, was not a treaty and not formally binding; it was a statement of intent by its signatories to embody its conclusions in a treaty. It was also the culmination of a set of secret meetings undertaken during the war by the two major colonial powers of the period — the British and French empires — to divide up the Ottoman Empire between them.

I recommend reading the rest here. What follows is an explanation of how “unowned land up for grabs” has been expunged as an anachronism by the post-colonial legal regime and replaced carefully with rights to self-determination balanced by human rights. “Land up for grabs” is a legal concept dead since the 1920s…

]]> By: Jonathan1 http://jewschool.com/2012/07/13/29092/the-levy-there-is-no-occupation-report/comment-page-1/#comment-700343 Jonathan1 Tue, 17 Jul 2012 14:39:28 +0000 http://jewschool.com/?p=29092#comment-700343 <i>However, that moral obligation should not override the safety and security of Israel’s current citizens and is predicated on the Palestinians accepting a reasonable solution. </i> Right, this is the crux of the argument we've been having with ourselves for a quarter-century: Will the violence end because we have reached a settlement . . . or does the violence need to end in order to reach a settlement? If we granted them all full citizenship then the motivation for violence would plummet, IMO. Or, we know for sure that denying them citizenship isn't a recipe for peace, based on the past four decades. <i>an end of Palestinian violence would allow Israel to remove its defensive measure’s </i> But it was in fact Palestinian violence, in the form of the first Intifada, which spurred Israel to make some moves to address the situation over the Green Line. There wasn't substantial Palestinian violence before 1987, so why didn't Israel move to rectify the situation then? However, that moral obligation should not override the safety and security of Israel’s current citizens and is predicated on the Palestinians accepting a reasonable solution.

Right, this is the crux of the argument we’ve been having with ourselves for a quarter-century: Will the violence end because we have reached a settlement . . . or does the violence need to end in order to reach a settlement?

If we granted them all full citizenship then the motivation for violence would plummet, IMO.

Or, we know for sure that denying them citizenship isn’t a recipe for peace, based on the past four decades.

an end of Palestinian violence would allow Israel to remove its defensive measure’s

But it was in fact Palestinian violence, in the form of the first Intifada, which spurred Israel to make some moves to address the situation over the Green Line.

There wasn’t substantial Palestinian violence before 1987, so why didn’t Israel move to rectify the situation then?

]]> By: Tarik Hussein http://jewschool.com/2012/07/13/29092/the-levy-there-is-no-occupation-report/comment-page-1/#comment-700342 Tarik Hussein Tue, 17 Jul 2012 13:47:29 +0000 http://jewschool.com/?p=29092#comment-700342 Interesting discussion. From my viewpoint, the fundamental illegality, or certainly amorality, is first and foremost, since 1947, in violently evicting an indigenous people, solely on the basis of their ethnicity and religion, from their villages and towns, stealing all their property and and for decades denying them the right to live as equal citizens in the state the governs them. I have no problem with Jewish immigration to Palestine, indeed I welcome it, and if they want to annex the West Bank and Gaza, go ahead, it is not the border question but the Jewish supremacism and oppression of Palestinian non-Jews that is intolerable and must be resisted by all means. Interesting discussion. From my viewpoint, the fundamental illegality, or certainly amorality, is first and foremost, since 1947, in violently evicting an indigenous people, solely on the basis of their ethnicity and religion, from their villages and towns, stealing all their property and and for decades denying them the right to live as equal citizens in the state the governs them. I have no problem with Jewish immigration to Palestine, indeed I welcome it, and if they want to annex the West Bank and Gaza, go ahead, it is not the border question but the Jewish supremacism and oppression of Palestinian non-Jews that is intolerable and must be resisted by all means.

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