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From the field

Levy Committee Report: Where are the Palestinians?

On 9 July 2012, the media published the recommendations of the Levy Committee established to examine “steps to be taken to regularize construction” in Israeli settlements in the West Bank and to recommend “an appropriate process to clarify land issues in the area.” The Committee, composed of retired High Court Justice Edmund Levy, retired Tel Aviv District Court Judge Tehiya Shapira and former Foreign Ministry legal adviser Attorney Alan Baker, was appointed in February 2012 and submitted its conclusions to the prime minister four months later.

The committee was flawed from its creation, given that its purpose was to find ways of legalizing violations of the law. After years in which all organs of the government permitted the establishment of settlements without official government approval, without land having been allocated or master plans approved for them, the government appoints a committee to find ways of making these acts legal.

Palestinian-Bedouin children near the Adummim settlement bloc. Photo:
Palestinian-Bedouin children near the Adummim settlement bloc. Photo:

Considering the committee’s mandate – legalizing illegal acts – its conclusions, tailored to the settlers’ agenda, are no surprise.

The committee has concluded that the West Bank is not occupied territory. This revolutionary finding is based on three arguments, all completely baseless: that an occupation must be temporary – although no such principle was ever defined and the committee did not even bother trying to substantiate the point; that the territory was taken by conquest from Jordan, whose sovereignty in the West Bank was never recognized – never mind that this fact is irrelevant since the laws regarding occupation are intended to protect the people who find themselves under foreign military control, regardless how this control was attained; and that Israel has rights of a sovereign in this territory.

The committee based this last claim on the Balfour Declaration of 1917 which the committee views as having provided the grounds for “the Jewish people’s right to set up its home in the land of Israel.” According to the committee, in 1947 the UN voted for a partition plan, but this plan was not implemented due to opposition by the Arab states, which launched a war. Jordan gained control of the West Bank but in 1988 relinquished any claim to it. Thus, the committee asserts, “the legal status of the territory reverted to its original status, that is, territory intended for the national home of the Jewish people, which during Jordanian rule [of the West Bank] had the status of ‘the rightful owner’ who was absent for some years due to a war forced upon it, and now has returned to it.” This historical description, itself a subject of dispute, creates a legal vacuum on the West Bank, as the Committee has only determined that the area is not occupied territory but has not demanded that the State of Israel annex the West Bank. Thus, if this territory is not part of the State of Israel, nor is it occupied territory, there is no clear legal basis for Israel's operations in the West Bank and the committee has not bothered to provide one. This conclusion by the committee contradicts the official position of the State of Israel, which claimed shortly after the 1967 Six Day War that it was functioning in the West Bank under the laws of occupation. The Israeli MAG Corps justifies the actions of the military in the West Bank based on the laws of occupation, as does the Attorney General in submissions to the High Court of Justice for decades. The HCJ has accepted this position and determined in hundreds of ruliings that the West Bank is occupied territory. This position is grounded in international law and accepted by the entire international community, by international jurists and by the International Court of Justice in The Hague.

The Levy Committee also offers an unsubstantiated interpretation for Article 49 of the Fourth Geneva Convention, the source of the prohibition on establishing settlements in occupied territory. Although the committee is of the opinion that this Convention does not apply to the West Bank, the committee hastens to clarify that, in any case, this article “is intended to provide a response to the harsh reality imposed by some states during the Second World War, in forcibly transferring some of their population to the territories they conquered, a process accompanied by a substantial worsening of the situation of the occupied population.” Even if the committee is correct and the actions taken during World War II were the rationale behind this prohibition, the claim that therefore it is limited in application only to the most heinous acts is unfounded. The prohibition is clear and absolute, and covers both forcible and voluntary transfer of populations. In addition, the construction of settlements has completely changed the West Bank map and substantially worsened the situation of the Palestinian population.

The committee states that with regard to all aspects of the construction it was charged to address – construction in what are known as “outposts” – not all the conditions required for establishing a community exist, including a decision by the government, issuance of required military authorizations and an approved master plan. The committee acknowledges that these outposts were established with the knowledge of government ministries, public authorities, the Civil Administration and the regional councils in the West Bank. The committee argues that this conclusion raises only one question, namely “whether this construction can be authorized retroactively.” Questions as to whether this is the appropriate way for a democratic state to conduct itself, whether a criminal investigation should be launched and measures taken against those who broke the law, and how to go about making sure that these actions are not repeated – none of this concerns the committee, and it makes do with one paragraph in the report’s conclusions in which it states that this conduct is not appropriate for "a state which champions the rule of law.” Almost totally absent from the committee’s report are the 2.5 million Palestinians who live in the West Bank, who are the ones principally harmed by the settlement enterprise. Not a single word of the report refers to their right to use “state lands,” to their exclusion from broad swathes of the West Bank, or to the exploitation of natural resources by the settlers, to name some of the many aspects of the impact of the settlements on the lives of the Palestinian residents. The committee does not address the fact that the planning regime in the West Bank – which is described in minute detail – is intended to serve the settlers and to thwart any possibility of construction by Palestinians. The only harm to human beings mentioned in the report is harm to the settlers – harm to the ability of their communities to develop, and to respond to the natural growth of their population; the difficulties in building basic infrastructure; and the transformation of the residents into building code violators and trespassers against their will, after having taken out loans approved by the State.

Whatever the fate of this report, clearly any recommendation adopted concerning the status and future of the West Bank must address the Palestinians who live there. The Israelis living in the West Bank are Israeli citizens, and as such their rights are protected and they can influence the decisions that shape their fate. The Palestinians in the West Bank, in contrast, live under a military regime and the only law protecting them and their rights is the law of occupation. If the committee’s claim is accepted that Israel is not obliged to act in accordance with these laws, some other normative framework must be offered, one that will meet international legal standards. Ignoring 2.5 million human beings, as the committee proposes to do, is not an option that the State can accept.