December 9, 2018

Law, politics and the settlements

There are two striking features about the recent report written by retired Israeli Supreme Court Justice Edmond Levy about the status of Israel’s settlements in the West Bank.  The first is that the Levy Commission’s “finding” that Israel is not an occupying power — and, thus, settlements and outposts alike are legal — flies in the face of decades of informed judgments by international lawyers, American government officials, and Israeli diplomats and experts themselves. It is no surprise that the U.S. State Department hastened to reject these claims following the release of the Levy Commission report.

At the heart of the matter is the interpretation of the 49th clause of the Fourth Geneva Convention from 1949, which states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” The Levy Committee rejected the standard reading of this key clause and instead accepted the argument of a number of right-wing Israeli organizations. Thus, it maintained that Israel does not occupy the West Bank since, prior to 1967, the territory of Judea and Samaria was “never a legitimate part of any Arab state.”

It is true that the status of Jordanian control over the West Bank from 1948 was never clearly settled. The United States and Britain recognized Jordan’s annexation of 1950, whereas Israel and the Arab states did not. But the Levy Commission leaps to a number of dubious conclusions. Not only does the contested status of the West Bank make it a kind of tabula rasa that defies the regulative authority of international law, but the fact that Israel’s occupation has lasted for decades, rather than months, inexplicably lifts the burden of enforcing the Fourth Geneva Convention. Even more disconcerting is the certainty of the Commission in its assertion that “we have no doubt that, from the perspective of international law, the establishment of Jewish settlements in Judea and Samaria is not illegal.”

It has not been lost on observers that this set of claims runs against the grain of the report commissioned by Prime Minister Ariel Sharon in 2005 to address the legality of outposts in the West Bank. That report, authored by attorney Talia Sasson, summarized large bodies of government documents in maintaining that Israeli settlement activity in the West Bank was based on illegal expropriation of land from local Palestinians. The upshot was that Israel has responsibilities as an occupying power that require it to abide by international law in terms of land purchase and settlement of its citizens.

The juxtaposition of the Levy and Sasson reports reminds us of the fickleness of law, which so often tumbles from its Olympian heights into the messy cauldron of mundane politics. But this episode is not just a case of Levy v. Sasson, one lawyer’s opinion against another’s. The overwhelming preponderance of legal observers accepts the view that the West Bank is occupied territory and, accordingly, Israeli settlements should not be constructed there. Setting the tone for every subsequent United States administration, the State Department under Lyndon Johnson spelled out its position in a diplomatic cable to the American Embassy in Tel Aviv with unmistakable clarity in April 1968: “(T)he transfer of civilians to occupied areas, whether or not in settlements which are under military control, is contrary to Article 49 of the Geneva Convention.” 

Tellingly, this was also the view of the legal adviser to the Israeli Foreign Ministry, Theodor Meron, who was asked by Prime Minister Levi Eshkol in 1967 to issue an opinion on the status of the newly conquered territories. Meron, who would go on to establish a career as one of the most distinguished scholars and practitioners of international law in the world, stated simply in a memo from September 18, 1967 that “my conclusion is that civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention.”

It is striking enough that the Levy Commission saw fit to rebut this long-established view, which has been echoed by many subsequent Israeli legal commentators and American diplomats, not to mention the international community. What is more striking is that the debate may no longer matter. It is deeply unsettling and more than a little annoying to have to listen to apologists try to work themselves out of the Geneva Convention pretzel by arguing that the occupation is not an occupation, that settlements are not intrusions on Palestinian land, and that Kiryat Arba or now Ulpana have the same legal status as Tel Aviv. 

But the more germane point is that the legal acrobats seem to have won the day, at least for now. Some commentators such as Shmuel Rosner dismiss the Levy report as irrelevant, arguing that the territories are essentially a political, rather than legal, matter. Alas, no, the report is quite relevant in adding powerful evidence of and validation for the irreversibility of Israel’s hold on the territories. As such, it hammers another nail into the coffin of a two-state solution. For indeed, if the settlements and the newer outposts are deemed legal — and remain where they are — there will not be a territorially viable Palestinian state. And without a Palestinian state, the populations of Jews and Arabs between the Jordan and the Mediterranean will dwell under one political sovereign. Either that sovereign will be a democracy, in which case Israel will cease to exist as a Jewish state; or it will not be a democracy, in which case Israel will treat Jews as first-class citizens and Arabs as second-class subjects.   

Israeli President Shimon Peres, as shrewd an observer of his country’s history as any, understands well the implications of dispatching with established international law and reasoned legal opinion. As he stated after the Levy Commission issued its report: “It is doubtful that a Jewish state without a Jewish majority can remain Jewish.” 

So the apologists can continue to promote their view of the settlements’ legality. But they should be mindful of the fact that this very position pushes the State of Israel ever closer to the precipice.

David N. Myers teaches Jewish history at UCLA.