The Levy "there is no occupation" report

Caption: Former Israeli justice Edmund Levy: “If it beats like an occupation, if it oppresses like an occupation, if it kills like an occupation, it’s a…” Bibi: “A duck!” (Meme submission by John Brown)
This week, the Netanyahu government set the stage for a clash with its closest allies, the international community and its own Supreme Court by commissioning a kangaroo court to rule on the authorization of settlements in the Palestinian territories. Filled with political appointees and headed by pro-settlement former Supreme Court Justice Edmond Levy, the surprising (or unsurprising?) recommendation of the “Levy report” (Hebrew) is that there is, in fact, no occupation.
The background: The Levy commission was tasked with responding to a prior report under a prior Prime Minister, the “Sasson report,” that exposed violations of Israeli red tape and even whole ministries working cross-purposes to Prime Ministerial direction. In March 2005, then-Prime Minister Ariel Sharon had tasked his state prosecution office, headed by lawyer Talia Sasson, to investigate the status under Israeli law of settlements and outposts built without his permission. Sasson put the state’s imprimatur on what was already publicized by Peace Now and known by the US State Department — that millions of shekels of state funds were being spent on unauthorized outposts, settlement expansion and theft of private land.
Unrepentant of the Sasson report’s revealings and emboldened by a Knesset majority, Israel’s right-wing has been seeking to authorize these outposts — and all settlements — in the face of 45 years of legal challenges. They began advancing a tired legal theory that to date no one in the world believes, not even Israel’s staunchest allies. Namely, that Israel is not an occupying foreign power because the 1917 Balfour Declaration gave all of the British Mandate of Palestine exclusively to the Jewish state.
It’s a common hasbara argument that wasn’t supported by any standing in Israeli court. Making it official policy is what Levy recommended and it sparked exultation in the right-wing and fury among the left. But to the bigger point: both reports discuss the “legality” of settlements under Israeli law but not international law. That is why I’ve used “unauthorized” or “without permission” instead of “illegal.” All settlements are illegal. Israel is in lone disagreement against the US, UK, Canada, every UN court and all other countries in the world. (Two exceptions: only Costa Rica recognizes Israel’s annexation of East Jerusalem; only Micronesia recognizes Israel’s annexation of the Golan Heights.)
JJ Goldberg, Editor-in-Chief of The Forward, explains succinctly:

The notion is that the operative international treaty governing sovereign rights to historic Palestine — today’s Israel, the West Bank and Gaza — is the post-World War I San Remo Resolution. Drafted by the victorious European allies in April 1920 and later incorporated into the League of Nations charter, the treaty assigns Great Britain the Mandate to govern Palestine and orders implementation of the 1917 Balfour Declaration. To be clear, the treaty calls for “the establishment in Palestine of a national home for the Jewish people.” That, advocates say, constitutes a binding, still-valid international commitment to make Palestine into a Jewish state.
Unfortunately, establishing a Jewish homeland in Palestine is not the same thing as making Palestine into a Jewish homeland. Zionist leaders fought mightily throughout the summer of 1917 to win a British declaration “that Palestine should be reconstituted as the National Home of the Jewish people,” but they lost. “The” national home became “a” national home to protect the citizenship of British and other Diaspora Jews. Establishing the home “in” Palestine fudged the question of how much land would be Jewish, to allow future negotiating.

For a longer discussing and rebuttal of the Levy report, then I recommend the (very extensive) comments by Israeli human rights lawyer Noam Wiener following his piece on 972 Mag.
But don’t get upset about it and here’s why:
Two weeks ago, the same issue was addressed regarding a single West Bank outpost, Ulpana. The Supreme Court had ruled it could not be authorized since it was built on appropriated private Palestinian land and set a dismantlement deadline. Netanyahu stood between defying the Israeli courts to appease his base and the international consensus. In the end, Netanyahu backed down. Michael Manekin, director of policy for a new research group, the Center for Renewal of Israeli Democracy, explains why in a policy paper:

In the following days, not only did Netanyahu oppose the bill, he also made sure that the bill would be rejected by all of his ministers. He threatened that any cabinet member who voted in favor of the bill would be fired from his/her post. The bill did not pass, ensuring that this settlement would be evacuated in the coming weeks. […] If the Regularization law had passed, it would be the first time that the Israeli government, as opposed to the Israeli Defense Forces, decides on land allocation in the West Bank. In other words this would be the first time that Israeli lawmakers would decide the fate of Palestinian lands (a role that up until now was the responsibility of the Israeli military). In this way the government would officially challenge the framework of temporary military occupation, and take a step towards annexation.
Up until now, no Israeli government was willing to commit formal acts of land annexation in the West Bank (with the exception of East Jerusalem). No Israeli government, even the most pro-settlement, was willing to formally renounce the two state framework that was created with the Oslo accords in the early 1990s. This is due to the fact that the two state framework is a unanimously accepted within the western world, and a precondition for viewing Israel as a legitimate state, rather than a rogue one. It would also complicate many issues within Israeli bureaucracy from settlement subsidies to ultimately the right of Palestinians to vote.

Thus there are two reasons why you shouldn’t be too concerned or care too much about the Levy report:
If Netanyahu couldn’t steal a cookie, he certainly couldn’t steal the whole bakery. Israel depends on international goodwill for trade, aid and defense against the Palestinian’s meager attempts to change the status quo. Contrary to assertions that Israel could grossly flout international opinion (from the right) or that Israel doesn’t believe it faces any consequences (from the left), these turns out to be only half true. Tellingly, Netanyahu refrained from commenting on the report while promising to review it in another committee. After the Ulpana conclusion, he knows this path has even graver consequences.
Also, were Israel indeed to overrule 45 years of Supreme Court rulings and “legalize” the settlement enterprise in its entirety, this would be the deathknell for Israel’s defenses against charges of apartheid. Civil law would replace military law in the territories. Palestinians would not longer be considered as vote-less military subjects justified under the Geneva Conventions. Noam Sheizaf at 972 Mag mockingly answers right-wing suggestions they be regarded as citizens of Jordan, saying, “Why Jordan, I say? If we are going to make them citizens of another system which has no effect over their life, let’s at least be generous and make them French!”
The Levy report is a landmine for Israel’s international standing. And we haven’t yet considered the delicate sensibilities of American Jewry, who will at large defend Israel’s military actions but is morally torn over settlement growth. Netanyahu walks its recommendations with peril.

21 thoughts on “The Levy "there is no occupation" report

  1. My initial thoughts:
    1) For the most part, you and the 972 Mag article you link to do not do not examine the content of the commission’s arguement. The fact that the international community and the highly politicized Israeli supreme court believe something to be illegal make it so. 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”.
    2)The exception is your point about the language of the San Remo conference. It seems to me that the subsequent allocation of 80% (give or take) of the land under the British mandate to Transjordan would allow the Levy commission’s arguement to stand as an Israel including the West Bank and East Jerusalem is still only “in” the mandate and not a reconstitution of the mandate. This still not does not adress the rest of the legal arguement (Arab rejection of the partition plan, the illegal jordanian occupation of the West Bank and East Jerusalem, and the defensive nature of the six-day war).

  2. This still not does not adress the rest of the legal arguement (Arab rejection of the partition plan, the illegal jordanian occupation of the West Bank and East Jerusalem, and the defensive nature of the six-day war).
    But how do any of these facts change the reality of what’s happened in Gaza and the West Bank since 1967?
    What are we to tell the men and women who live under the soles of our boots in Nablus and Ramallah, that the sins of their grandfathers have dammed them for eternity?

  3. Rsidents of occupied Puerto Rico, American Samoa, etc (all legal US territory gained in war), regardless of US citizenship:
    Can’t vote for President or Senate, and any delegates they have to Congress don’t have their votes included if those votes will affect the outcome.
    To the extent that they can vote for local or territorial leaders, the terms of these elections are determined by the US government.
    These territories:
    Have US military installations on them as determined by the US government. Of course they can’t have their own militaries, foreign policies. And of course they can’t get any seats at the UN, not even as observers.
    Can’t become independent unless the US govenment allows it.
    Only notable difference is that the residents can move to a US state and then vote.

  4. Apparently we tell them “don’t worry, were never officially annexing this land nor are leaving it, so ehhhh, we’ll get back o you in a few more years once things are ehhhhh, more or less the same…” good politicians understand that the key to success is never committing to what you can indefinitely postpone. Nobody, including the US, but especially the PA are providing any impetus to the contrary. Besides this way Bibi can eventually reject the report as evidence that h e’s being reasonable

  5. Jonathan 1 -I was specifically addressing the legal arguement which seems ot by happening in parallel to the moral arguement. Your post seems to address the latter.
    I would say that checkpoints and things of that like are necessary as long as there is a threat of terrorism from Ramallah, Nablus, etc. Yes, the situaion came about because of their predecessors, but it is prolonged by the current lionization of child killers, and other forms of incitement to violence on the part of current Palestinian leadership.

  6. @Avraham
    But just as we fear the threat of terrorism from Ramallah, they view our soldiers as terrorists.
    They view Netanyahu, Barak, and Ganzt as inciters to violence.
    What options are we offering them to turn away from violence? A truncated quasi-state, that you’ve admitted you would never want to arise anyway?
    Do you see what I’m getting at? We can’t just expect our cousins to feel joy that our rule in Judea and Samaria is not akin to the Syrian treatment of its rebels.
    Would we not act as they do were the roles reversed?

  7. Eeeeeeeh, what occupation? Eeeeeh, Mah zeh? Eeeeh, how can a people be occupied if they eeeehhh, aren’t really a people? Eh?
    quak quak quak quak quak quak quak quak quak quak

  8. @Jonathan 1
    I realized that I was mistaken yesterday when I wrote that the legal and moral arguments are parralel. The moral argument seems to based off the legal argument. If Israel was acting legally 1967 in,as the Levy report has argued, then it has no moral obligation to the give the Palestinians a state on all the land it legally took possession of. Rather it’s moral obligation to the residents of the West Bank is to give them some form ofindependent self governance or citizenship. Neither of those things needs. 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.
    If nothing else, an end of Palestinian violence would allow Israel to remove its defensive measure’s which would give the Palestinians more freedom of movement and economic opportunities.

  9. 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.

  10. 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?

  11. 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…

  12. 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.

  13. 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,
    Nathaniel Berman

  14. 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,

  15. 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.

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