Monday, July 16, 2012

English translation of the legal arguments in the Levy Report


English translation of the legal arguments in the Levy Report

Since the Levy Report was released, there has been a lot of heat but little light about its legal reasonings, which were in Hebrew. The only part that was released in English were its conclusions and recommendations.

Here, for the first time, is an English translation of its legal arguments. Those who try to downplay the report must find reasons why these arguments are invalid, rather than the proof by assertion that they usually resort to.

[...]

Having considered the approaches presented before us [from the Left and from the Right], we think a reasonable interpretation of the standard term of "occupation", with all the obligations arising from it, in the provisions of international law is intended to apply for short periods of occupation of a territory of a sovereign state until the end of the conflict between the parties and the return of the land or any other negotiated agreement regarding it. 

But the Israeli presence in Judea and Samaria is significantly different: the possession of the territory continues for many decades, and no one can predict its end, if at all; the territory was conquered from a state (the Kingdom of Jordan) whose sovereignty over the territory has never been firmly legalized, and in the meantime it even renounced its claim of sovereignty; the State of Israel claims sovereign rights to the territory.

As for Article 49 of the Geneva Convention, many have interpreted it, but it seems the dominant view is that  the article indeed was meant to resolve the harsh reality imposed by some states during the Second World War, when they expelled and forcibly transferred some of their inhabitants to the territories they had occupied, a process which was accompanied by a substantial worsening of the condition of the occupied population (see this HCJ ruling and this article by Alan Baker).

This interpretation is supported by a number of sources: the authoritative interpretation of the International Committee of the Red Cross (ICRC), responsible for implementing the Fourth Geneva Convention, which states regarding the purpose of article 49 of the Convention:

It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.

Lawyers Prof. Eugene Rostow, Dean of Yale Law School in the US, and Prof. Julius Stone confirmed that Article 49 is intended to prohibit the same inhuman acts committed by the Nazis, i.e. a massive transfer of people into the occupied territories for the purpose of destruction, slavery or colonization:

[T]he Convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before the Second World War - the mass transfer of people into and out of occupied territories for purposes of extermination, slave labor or colonization, for example....The Jewish settlers in the West Bank are most emphatically volunteers. They have not been "deported" or "transferred" to the area by the Government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population it is the goal of the Geneva Convention to prevent. (Rostow)

Irony would...be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that...the West Bank...must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context excludes so tyrannical a reading of Article 49(6.) (Julius Stone)

We do not believe that one can draw an analogy between this legal provision and those who sought to settle in Judea and Samaria not as a result of them being "deported" or "transferred" but because of their world view - to settle the Land of Israel.

We did not ignore the view of those who think that one should interpret the Fourth Geneva Convention as also prohibiting the occupying state to encourage or support the transfer of parts of its population to the occupied territory, even if it did not instigated it (on this issue see note 13 here).

But even if this interpretation is correct, we would not change our conclusion that no analogy should be drawn between Article 49 of the Fourth Geneva Convention and Jewish settlement in Judea and Samaria, in light of the status of the area under international law, and for that matter a brief history is required.

On 2 November 1917 lord James Balfour, the British foreign minister, issued a declaration that "His Majesty's Government view with favour the establishment in Palestine", the document which was addressed to lord Rothschild read:

His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.

In this declaration Britain recognized the Jewish people's right to the Land of Israel, and even expressed its willingness to advance a process that will eventually lead to the establishment of a national home for them in this part of the world.

This declaration appeared, in a different version, in the declaration of the San Remo peace conference in Italy which laid the grounds for the Mandate for Palestine which acknowledged the Jewish people's historic connection to Palestine (see Preamble):

The Mandatory will be responsible for putting into effect the declaration originally made on November 2, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country...
Recognition had thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.

It should be emphasized here that in the Mandate (as well as in the Balfour Declaration) only the "civil and religious" rights of the inhabitants of Palestine are mentioned as rendering protection, and there is no mention of the national rights of the Arab people. And concerning the actual implementation of this declaration article 2 of the Mandate says:

The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self -governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.

And in article 6 of the Mandate it says:

The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency. referred to in Article 4, close settlement by Jews, on the land, including State lands and waste lands not required for public purposes.

In August 1922 the League of Nations approved the Mandate which was given to Britain, and thus the Jewish people's right to settle in the Land of Israel, their historic homeland, and to establish their state there, was recognized in international law.

To complete the picture, we'll add that with the establishment of the United Nations in 1945, the principle of recognition of the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter:

Except as may be agreed upon in individual trusteeship agreements...nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.

In November 1947 the General Assembly adopted the United Nations committee's recommendation to divide the Land of Israel west of the Jordan river into two states: one Arab and one Jewish. 

But the plan was never implemented, and therefore was not binding under international law, since the Arab states rejected it and started a war to prevent its implementation and the establishment of a Jewish state.

The outcome of the war set the political reality from now on: the Jewish state was established within the lines drawn after the war.

However, the Arab state was not established, and Egypt and Jordan controlled the territories they occupied (the Gaza Strip, Judea and Samaria).

Later, the Arab states, which did not recognize the consequences of the war, demanded the armistice agreement include a statement  [*] saying that the cease-fire line should not be construed in any way as a political or territorial border.

Nevertheless, in April 1950, Jordan annexed the West Bank, unlike Egypt, which has never claimed sovereignty over the Gaza Strip.

However, Jordan's annexation was not accepted on any legal basis, and most Arab countries opposed it, until in 1988 announced that Jordan does not see itself as having the status of that area (on this issue see chief justice M. Landau's comments in this HCJ ruling; and this HCJ ruling).

Thus the original legal status of the territory was restored , namely, a territory designated as a national home for the Jewish people, who had a "right of possession" to it during Jordanian rule while they were absent for several years due to a war imposed on them.

Together with the international commitment to govern the territory and ensure the rights of the local population and public order, Israel also had the full right to claim sovereignty over these territories, and all Israeli governments believed so, but they chose not to annex them and take a pragmatic approach in order to allow for peace negotiations with representatives of the Palestinian people and the Arab states.

Israel therefore did not see itself as an occupying power in the classical sense of the word, and so never saw itself committed to the Forth Geneva Convention with regards to Judea, Samaria and Gaza.

It should be added here that the Israeli government did indeed ratify the Convention in 1951 but since it was not adopted by the Knesset (on this issue see this and this HCJ rulings) it merely issued a statement saying it will voluntarily implement the humanitarian provisions of the Convention (hereherehere and here).

As a result, Israel implemented a policy that allows the Israelis to live voluntarily in accordance with rules prescribed by the Israeli government and supervised by the Israeli legal system, while the continued presence is subject to the outcome of the negotiation process.

In light of the aforesaid, we have no doubt that from the perspective of international law, the establishment of Jewish settlements in Judea and Samaria is legal, and therefore we can proceed to discussing this question from the perspective of domestic law.

[...]

NOTE:

[*] According to article II (2) of the Armistice Agreement with Jordan:

 ...no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations.

According to article VI (9) of the agreement:

The Armistice Demarcation Lines defined in articles V and VI of this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.


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