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| Aún Aprendo by Francisco de Goya |
This translation of the Levy Report was shared by the Blog "Elder of Ziyon" which you are invited to visit if you are interested in reading the Conclusions and Recommendations as well.
Legal Arguments
[...]
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.
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 extermination, 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)
6. 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 initiate it.
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 territory under international law, and for that matter a brief
history is required.
7. 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 of a national home for the Jewish people", 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, but 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 recognizing 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."
8. 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 1988 when Jordan renounced its claim to
the territory.
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 from the territory for several years due to a war imposed on them, and
have now returned to it.
9. 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 in relation 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 it merely issued a statement saying it
will voluntarily implement the humanitarian provisions of the Convention.
As a result, Israel implemented a policy that allows the Israelis to
live voluntarily in the territory in accordance with laws prescribed by the
Israeli government and supervised by the Israeli legal system, while their
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.