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The land feud is back on!

Levy Report reenergizes national debate over Israel’s claim to territories

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22 Aug 2012 (All day)
The land feud is back on!

A committee of legal experts commissioned by Israeli Prime Minister Binyamin Netanyahu to render advice on how to deal with the controversial issue of settlement outposts recently delivered a report which instantly reinvigorated Israel’s national debate over its presence in the West Bank, with the Right welcoming the study’s reassertion of Jewish historic rights in Judea and Samaria and the Left warning it could spell the end of the two-state solution.

Netanyahu had commissioned the study to better assess what Israel should do with dozens of small outposts established outside the approved boundaries of settlements that existed when Israel first entered the Oslo agreements. They were often set up with support from lawmakers on the Right, but Israeli governments have pledged to the United States to remove them in order to facilitate the peace process with the Palestinians.

The Levy Report – named for its chief author, former Supreme Court Justice Edmond Levy – essentially found that not only were the outposts lawful but the government was shirking its duty in not authorizing them retroactively. The legal panel also concluded that Israel's presence in the West Bank is not an “occupation” under international law and affirmed the state’s legal right to settle Jews there.

Immediately hailed by the settler movement and denounced by Left-wing opponents, the Levy Report has reignited the traditional clash between Israel’s hawks and doves after years of inertia due to a collective sense the Palestinians were not ready to conclude a peace agreement. It must still be accepted by Netanyahu and a special ministerial committee he has set up to deal with the fate of the outposts, a decision that could have major diplomatic implications for the peace process and Israel’s relations with the international community.

As could be expected, PA President Mahmoud Abbas quickly rejected the Levy Report, saying he considers all settlements illegal under international law.

The US State Department also issued a hasty statement saying, “We do not accept the legitimacy of continued Israeli settlement activity and we oppose any effort to legalize outposts.”

Meanwhile, an editorial in The New York Times slammed the report as “bad law, bad policy, bad politics,” and deemed it “a potentially disastrous blow” to Palestinian hopes for an independent state.

Several dozen prominent Jewish figures worldwide, including some with conservative credentials, even signed a letter to Netanyahu urging that he ignore the Levy Report on the grounds that it “will place the two-state solution, and the prestige of Israel as a democratic member of the international community, in peril.”

Yet the actual findings and recommendations of the Levy panel may not be as earth-shattering as some contend.

Land rush
The question of how to dispose of the outposts issue has been festering for years, ever since then Foreign Minister Ariel Sharon urged settlers to “grab hilltops” in 1988, in the latter stages of the Oslo talks.

Since the outset of the Oslo peace process in 1993, successive Israeli governments have adopted a policy of not building new settlements but allowing “natural growth” to continue in the 130-plus existing Jewish communities in Judea and Samaria. Under this formula, the work of various local planning and zoning boards was severely restricted or entirely frozen.

Nevertheless, some new neighborhoods were built and even received funding and support from friendly government ministers. This took on a new dimension after Sharon called on the settlers to grab what lands they could before the rest fell into Palestinian hands in approaching final-status talks. This gave rise to the problematic “hilltop outposts.”

Later as prime minister, Sharon promised the Bush administration to uproot dozens of such outposts lying beyond the approved boundaries of existing settlements, a pledge that he and his successor Ehud Olmert were slow to carry out given the intransigence on the Palestinian side.

Israeli settlers protest in Jerusalem against an outpost removal (AP)With the Palestinians entrenched as ever and the settler movement now fiercely determined to obstruct any further outpost evacuations in the wake of the Disengagement disaster in Gaza, Netanyahu has also been reluctant to uproot any outposts and thereby risk domestic unrest and a mutiny in his coalition.

But the issue came to a head last year in connection with the Migron outpost and again this spring at the Ulpana outpost, both of which were under court-ordered evacuations for having been built on private Palestinian lands. In each case, the Jewish families insisted they had lawfully purchased the tracts from Palestinians but the courts ruled the Arab sellers did not have any proper legal title to convey.

In a bid to clarify his options for handling the thorny issue, Netanyahu tasked a panel of international jurists last April to compile an advisory report. The team was headed by Justice Levy and included Alan Baker, a former Foreign Ministry senior legal adviser and Ambassador to Canada, as well as former deputy president of the Tel Aviv District Court Tehiya Shapira. The committee delivered their report in July and its conclusions are a potential watershed for Israel.

The Levy panel concluded that Israel's presence in the West Bank is not an “occupation” under international law and endorsed the state’s legal right to settle Jews there. It recommended that the state finally authorize many of the settlement outposts and also suggested that more new Israeli settlements be approved in Area C – the some 60% of the West Bank where Israel has retained both security and civilian control under the Oslo Accords.

The report also proposed stripping the IDF military administration of its authority to force settlers off land claimed by Palestinians, urging instead that local planning and zoning boards be allowed to resume their work and that any land disputes be resolved by duly-constituted courts of law with competence in such legal matters.

One-state hawkers
In his initial response, Netanyahu described the report as “important because it deals with the legalization and the legitimization of the settlement enterprise in Judea and Samaria on the basis of facts, a variety of facts and arguments that should be seriously considered.”

Several leading politicians offered similarly balanced perspectives on the Levy findings, recognizing that its basic conclusions on the legal status of the territories have been Israel’s stated position for decades. But on the Left and Right, some reactions have tended to the extremes.

In a public debate in Jerusalem sponsored by Media Central, Peace Now director Yariv Oppenheimer argued that the three Levy panelists were all Likud loyalists bent on “ignoring reality… and avoiding the term ‘occupation’ and the damage it does to Israeli democracy.”

“The report will create more resistance to Israel,” he warned.

Marc Zell, a prominent attorney in the nationalist camp and resident of the settlement of Tekoa, responded that Oppenheimer’s attempt to discredit the well-qualified jurists was “a cheap shot, below the belt.”

“The report raises a lot of important issues which have been forgotten,” noted Zell. “It’s about time that a committee like the Levy commission created a report like this in order to show the right of Jews to settle in these areas… It’s a positive development. I bless the report. The more it gets into the international debate the better it will be.”

Meantime, several Knesset members from the ruling Likud party addressed a rally in Hebron which, emboldened by the Levy Report, openly advocated Israel’s annexation of the West Bank.

“Friends, everybody here today knows that there is a solution — applying sovereignty [over Judea and Samaria]. One state for the Jewish people with an Arab minority,” said MK Tzipi Hotovely, according to Israeli media reports of the event.

She added that just annexing Area C, as some settler leaders have called for, would not be enough.

“We need to demand sovereignty over all of Judea and Samaria, and nothing less than that,” she declared.

Even coalition chairman MK Ze’ev Elkin of Likud endorsed the idea of annexing the territories, contending in a videotaped message that “regardless of the world’s opposition, it’s time to do in Judea and Samaria what we did in [East] Jerusalem and the Golan.”

Netanyahu is still on record as accepting a demilitarized Palestinian state on certain conditions, but it does appear that many in his Likud faction have lost faith in the Palestinian Authority and are ready for unilateral actions that would assert full Israeli sovereignty over the West Bank regardless of the demographic problems it would create.

Panning the critics
In an interview with The Christian Edition, Levy committee member Alan Baker defended the report from misinformed criticism on the Left and over-exuberance on the Right.

Answering the US State Department and New York Times, Baker suggests neither probably read the report before hastily denouncing it, since it was “regrettably” written only in Hebrew.

“Had they read the report they would have understood that most of what we were saying is nothing new, and secondly the main gist of the report is a series of 15 or so practical recommendations on how to deal with planning and zoning, land disputes, and things like that,” Baker explained.

“We criticized the government. We said the government has to act in a consistent manner and has to come out with a well-defined policy with respect to settlement activity. What we recommend is that the various bodies and committees set up to administer the territories should be allowed to continue their work, rather than ad hoc decisions by the Defense Ministry on land ownership questions they are not qualified to address.”

Regarding warnings that the settler movement will now use the report to dig in their heels and derail the two-state solution, Baker described such criticism as “vastly exaggerated and taken completely out of context.”

“Assuming the government agrees to enable the various planning and zoning committees to do their work, then there might well be situations where some of these settlements or outposts… will have to be relocated. So the settler movement should not be overly happy,” Baker cautioned. “There’s no carte blanche authorizing settlements that are inherently illegal. In our concluding paragraph we’re saying that it is high time everything was done in accordance with the law. Israel is a country that prides itself on the rule of law.”

 “We traced Israel’s legal and historical claim to Palestine, from the Balfour Declaration of 1917 through the San Remo Conference in 1920 and the League of Nations Mandate in Palestine in 1922,” Baker explained. “Based on these documents, Israel considers that it has a legitimate and very strong claim to sovereignty over the entire West Bank.”

“However, Israel has committed itself to negotiate with the Palestinians,” he also insisted. “Israel’s underlying title has already been compromised.”

Still, he noted that “the world community says Israel’s presence in the West Bank is an illegal occupation under the Fourth Geneva Convention, but we concluded that this does not apply. This has been Israel’s position, that it not an occupation.”

Rabbi Daniel GordisA welcome debate
Surprisingly, Baker’s defense of the Levy Report has yet to convince one of Israel’s rising conservative voices, author Daniel Gordis of the Shalem Center. In a recent op-ed in Ha’aretz, he argued that although the Levy panel’s conclusions may be legally sound, wise Israeli leaders should be focused instead right now on testing and proving that the Palestinians alone are blocking peace.

“Adopting the Levy Commission report would make it impossible for Israel to make that point,” Gordis wrote. “Observers everywhere would read [it] as tantamount to annexing the West Bank. It would be read as putting the Palestinians on notice that Israel plans never to evacuate any settlements, and that hopes for a Palestinian state are dead. The damage to Israel – in the international community and even among more Zionists than this government realizes – would be profound,”

 He added that “Zionism at its best is aspirational,” and thus Israelis must not give up on teaching their children to hope for peace one day, even if it takes generations to reach it.

Prof. Avi BellA less troubled tone was adopted by Prof. Avi Bell, a member of the law faculties at both Bar-Ilan University and the University of San Diego.

“Some have argued that the Levy Report is foolish politically, arguing that by asserting its legal rights, Israel will signal that it is unwilling to entertain “land for peace” compromises. This seems a doubtful thesis. Israel has asserted its legal rights to Jerusalem for decades, but yet repeatedly offered compromises on its rights in the city,” Bell stated.

“The Levy Report has reinvigorated the discussion of the legitimacy of Israel’s position under international law after many years in which Israel has been silent about its legal rights. That is a welcome development,” he concluded.

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Making the Case
-by David Parsons

After three decades of extensive research, no one makes a stronger legal case for Israel’s claim to Judea and Samaria than Howard Grief.

Born in Montreal and educated in the law at McGill University, Grief began delving into Israel’s legal chain-of-title to the land in 1982. His 30 years of in-depth research and analysis was eventually compiled in the treatise The Legal Foundation and Borders of Israel under International Law, published in 2008.

 Recently, Greif laid out his findings for The Christian Edition and they are quite fascinating.

 The San Remo Conference in April 1920Grief maintains that Israeli politicians, diplomats and jurists have always set out a claim of sovereignty to the Land of Israel which is missing several key elements – and the recent Levy Report would be no exception. The main flaw, he contends, is that they have failed to grasp the full import of the San Remo resolution of April 1920.

Insisting he was the first to draw attention to the wider scope of the San Remo decision, Grief described its historic context. The Allied powers who won the First World War negotiated a treaty with Germany at the Paris conference in 1919 and then met with the Turks the following spring at the Italian resort of San Remo to divvy up the lands the Ottoman Empire had just lost in the Middle East.

“The Principal Allied Powers – Great Britain, France, Italy and Japan – did an unusual thing at San Remo,” Grief recounted. “Most victors annex territory conquered in war. But they decided to ‘subjugate’ the Ottoman lands and hold the sovereign title in trust for the benefit of the local inhabitants until they were ready to govern themselves. This is the origins of the mandate system.”

“In Palestine, the national beneficiaries were deemed to be the entire Jewish people worldwide,” he continued. “Palestine was a case of sui generis – one of a kind. This did not exist for all the other mandates. Few people remember that today” insisted Grief.

“The San Remo resolution specifically references the Balfour Declaration of 1917 and the British commitment to establish a ‘national home’ for the Jews in Palestine,” added Grief. “That’s the reason why I submit that sovereignty was vested in the Jewish people at San Remo, and not in the League of Nations mandate two years later. The League’s mandate just obligated Britain to serve as a trustee until the Jews were ready to govern themselves.”

This all occurred when colonialism was dying and the Wilsonian concept of national self-determination was being birthed. Grief credits the San Remo decision to Jan Christiaan Smuts, a British statesman and field marshal who later served as prime minister in South Africa. The year before, Smuts had drafted a memorandum setting out the mandate concept which later became Article 22 of the Covenant of the League of Nations. Grief says the Smuts document specifically mentions Palestine as a mandated territory to be developed into a Jewish state in accordance with the Balfour Declaration.

Grief uncovered other unique aspects of the Palestine mandate which have been largely lost to history. First, the mandate entrusted to Britain in 1922 specifically states in Article 5 that the land cannot be divided.

“That means the UN Partition Plan of 1947 was an illegal act,” declared Grief. “Even the government of Israel cannot divide the land, so the Olso process was also unlawful.”

“This is something that is really unbelievable! The state of Israel doesn’t assert its rights and doesn’t even know their rights,” Grief added. “I don't want to be too pompous to say that before my book was published, government leaders were not aware as to how strong the legal case of the Jewish people was to all of Palestine.”

In addition, Grief found that the United States, both in a joint act of Congress in 1922 and in a treaty with Great Britain two years later, endorsed the Mandate in Palestine and pledged to be a guarantor of its provisions, which included the obligation to encourage “close settlement of Jews on the land.”

“This means the US is breaching its duty by opposing the settlements. By the doctrine of estoppel, the US is estopped [legally barred] from denying Jewish legal rights to the Land of Israel, in particular to Judea and Samaria, Gaza and Jerusalem.”

This article was first published in the September 2012 issue of The Jerusalem Post Christian Edition; www.jpost.com/ce

 

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