Australia/Israel & Jewish Affairs Council

Settlements: What Israeli lawyers really think

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On January 27, the Australian's Middle East correspondent John Lyons reported that a group of "eminent Israelis" and, separately, four "leading lawyers" had written to Australian Foreign Minister Julie Bishop in response to her comments questioning the so-called conventional wisdom that Israel's settlements are illegal. The group, Lyons reported, urged Australia to "continue to support ‘the international consensus'" that the settlements are illegal, and noted Ms Bishop's comments "with deep concern".

Lyons mentioned by name one of the four lawyers, former Israeli Attorney-General Michael Ben-Yair, and four of the "eminent Israelis", "professor emeritus Yehoshua Kolodny; professor emeritus Yehuda Judd Neeman; professor emeritus Ram Loevy; and photographer Alex Levac" who, he noted, have all been winners of the Israel Prize, the country's most prestigious award.

Lyons did also note that:

"Israel insists the settlements are not illegal. Former government legal adviser Alan Baker recently wrote to US Secretary of State John Kerry:

‘Your determination that Israel's settlements are illegitimate cannot be legally substantiated.

‘The oft-quoted prohibition on transferring population into occupied territory (Article 49 of the Fourth Geneva Convention) was, according to the International Committee of the Red Cross's own official commentary of that convention, drafted in 1949 to prevent the forced, mass transfer of populations carried out by the Nazis in the Second World War.
‘It was never intended to apply to Israel's settlement activity'."

But which view better represents the opinions of Israeli lawyers, and who are these eminent Israelis, who felt so concerned by Ms Bishop's comments that they felt the need to write to her to urge her to reconsider?

Michael Ben-Yair was Israel's Attorney-General from 1993-1996, but his views on this issue seem quite extreme. According to Ynetnews.com, Mr. Ben-Yair posted on his Facebook page last year that "The settlements are the most evil and foolish acts since World War II." One of his Facebook friends responded, "Do you claim that the settlements are worse than Pol Pot's regime in Cambodia? Than Stalin's crimes against his people? Than Darfur?" to which Ben-Yair wrote, "Definitely. The settlement movement is a political act by a state against another people and as such is the most evil and immoral act since the end of World War II."

Clearly this is not a perspective that most sensible people would share.

Professor Yehoshua Kolodny won his Israel Prize for his contribution to the study of earth sciences. He has previously signed a petition of Israeli academics boycotting Ariel University, because it is in the West Bank. The petition stated that the contrast between Ariel and the Palestinian areas around it constitute "two different realities that forge an apartheid state."

Last year, together with Ben-Yair and Levac, he was among a group of Israelis who signed a petition supporting "the European Union recommendation to its member states, to avoid signing agreements with Israeli organizations and companies if they are active, directly or indirectly, in the occupied territories over the green line of June 4, 1967."

Yehuda "Judd" Ne'eman, a filmmaker who is strongly critical of Israel's government and establishment, at least had the perspective to accept that there are worse countries than Israel. On being awarded his Israel Prize, he told Ha'aretz, "With all the horrible things Israel does, I know that from the perspective of history, on the scale of evil, we are not at the top of the chart."

In an opinion piece on IsraCampus.Org.il, Alon Ben Shaul was harshly critical of the decision to award the Israel Prize to Ne'eman, writing that "He has accused Israel of Apartheid and war crimes, called to boycott its institutions and supports the right of return."

Ram Loevy is also a filmmaker and documentary maker whose works are constantly critical of Israel's establishment.

Meanwhile, Alan Baker, who was formerly a legal adviser for the Israeli Foreign Ministry, is far from a lone voice in arguing that Israel's settlements are legal.

Australian Julius Stone, who was Challis Professor of Jurisprudence and International Law at the University of Sydney from 1942 to 1972, and Eugene Rostow, a former Dean of Yale Law School and Under Secretary of State for Political Affairs are among a host of international law experts who have argued the case.

Within Israel too, there are copious examples of authoritative legal argument that the settlements are legal. The Levy Report, commissioned by the Israeli Government and produced by a committee consisting of former Supreme Court Justice Edmund Levy, former Deputy President of the Tel Aviv District Court Tchia Shapira, and Alan Baker.

The LevyReport stated:

After having considered the terms of reference set out in the Commission's mandate, and in light of what We have heard, as well as the considerable amount of material that has been presented to us by a wide range of bodies, our conclusions and recommendations are as follows:

Our basic conclusion is that from the point of View of international law, the classical laws of "occupation" as set out in the relevant international conventions cannot be considered applicable to the unique and suf generis historic and legal circumstances of lsrael's presence in Judea and Samaria spanning over decades.

ln addition, the provisions of the 1949 Fourth Geneva Convention, regarding transfer of populations, cannot be considered to be applicable and were never intended to apply to the type of settlement activity carried out by lsrael in Judea and Samaria.

Therefore, according to international law, Israelis have the legal right to settle in Judea and Samaria and the establishment of settlements cannot, in and of itself, be considered to be illegal.

The blog Elder of Ziyon has provided some translations of the legal arguments used to reach these conclusions.

As reported by Canada's Jewish Tribune, a group of 350 lawyers in Israel have joined together with counterparts in the US and Canada to form the International Action Division of the Legal Forum for Israel, specifically to use international law to rebut claims that Israel's settlements are illegal.

When Alan Baker wrote a petition to Catherine Ashton, the High Representative of the Union for Foreign Affairs and Security Policy of the European Union, stating that the EU was wrong to declare the settlements illegal, more than 1,000 jurists worldwide signed, including Israelis.

That's considerably more than the four lawyers who signed the letter to Ms Bishop.

Every democracy, and seemingly every Jewish community, including our own, has members who not only dissent from the mainstream, but brandish their dissent as a badge of honour, gaining prominence they would not otherwise attract and, in some cases, even making a career out of it. Israel, being a more vibrant democracy than most, and having more controversial issues to deal with, sees this phenomenon more than most.

That, of course, is their democratic right, but it's always unfortunate when the views and interpretations of a very small but noisy minority are made to appear as significant as, or even overshadow, the views of the majority.

Jamie Hyams

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