Australia / Israel Review

Daniel Meyerowitz-Katz

The “Levy Report” (officially the “Commission to Examine the Status of Building in Judea and Samaria”, led by retired Supreme Court judge Edmond Levy) had been released in Israel for barely two hours when critics began accusing it of “undermining Israeli democracy” and signifying the “final death blow” to the peace process. (So many “final death blows” seem to have struck the peace process over the past decade that I can only conclude that it is continually reanimating in some form of undead state, only to be killed again by yet another announcement or report released by one party or another.)

The full report has yet to be translated into English, however I have had the benefit of reading the Conclusions and Recommendations section, as well as some key aspects of the legal reasoning. Unsurprisingly, the report is not quite as unprecedented or surprising as it has been made out to be.

The most controversial aspect of the report has been the allegation that it declared that the West Bank is not “occupied”. This is not strictly the case – what the Commission actually said was that “the classical laws of ‘occupation’ … cannot be considered applicable … to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria.”

The argument the Commission made was one that is neither new nor particularly unfair. The Commission considered evidence from across the political spectrum regarding the legality of Israel’s presence in the West Bank, and determined that the laws of belligerent occupation under the Fourth Geneva Convention were 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.”

In contrast, the Israeli presence in the West Bank has been protracted and is not over the territory of a sovereign state. As the Commission noted, no recognised state has held any claim over the territory since the British Mandate ended in 1948.

The conclusion the Commission reached, therefore, was that, for all intents and purposes, the Mandate still applies to the West Bank, giving Israel a claim to it under the provisions of both the League of Nations Mandate and the UN Charter.

With regards to the settlements, the Commission noted that the provisions in the Convention preventing the transfer of population into occupied territory was intended to prevent a phenomenon that occurred during the Second World War, whereby some powers forcibly transferred large segments of their population for political and racial ends. In contrast, settlement in the West Bank has occurred voluntarily and never at the direct behest of the Israeli Government.

On this basis, the Commission concluded that the Israeli settlement in the West Bank is not of itself illegal and determined that Israel has a full right to claim sovereignty over the territories. However, the Commission very explicitly qualified this conclusion with the observation that Israel had not actually done so and has instead taken a “pragmatic approach” to allow for peace negotiations with the Palestinian people and the Arab states.

In fact, the bulk of the recommendations that the Commission made were highly critical of the manner in which Israel has conducted settlement policy. The recommendations begin by stating that “[t]he Government is advised to clarify its policy regarding settlement by Israelis in Judea and Samaria, with a view to preventing future interpretation of its decisions in a mistaken or overly ‘creative’ manner.”

The Commission went on to recommend that new settlements may only be established by the government; and that the municipal boundaries of settlements be finally established, with local planning authorities empowered to approve planning within these boundaries and Ministerial approval being required for any construction beyond these boundaries.

With regards to settlements that already exist beyond official municipal boundaries, the Commission determined that it is a fallacy to suggest that these were not done with government approval given that, despite there being no formal order that they be established, they were established with the full knowledge and tacit consent of Israeli authorities. The Commission recommended that the Government accept its responsibility for these settlements and endeavour to determine their legal boundaries.

Where there are disputes over the ownership of land, the Commission recommended that all current orders for eviction or demolition be suspended, pending determination by a judicial tribunal on land issues. The Commission considered it “improper” that the current Appeals Committee is comprised of uniformed reserve officers who make non-binding recommendations, arguing that it should be reconstituted as an independent and transparent judiciary with the power to make binding decisions.

While some have interpreted these conclusions and recommendations as somehow calling for Israel to formally annex the West Bank, a closer reading reveals something very different. The Levy Commission was damning of the informal and arbitrary manner in which the West Bank has been settled and is calling for a more orderly and controlled process with fair adjudication. The crux of the report is that the Israeli Government has for too long been pursuing an ad hoc and poorly administered program with regard to construction of and in settlements, and that it is time to fix this and put proper processes in place – a substantially different message from the one attributed to it by many commentators.