The West Bank May Never Be the Same (AMERICAN THINKER) By Ted Belman 07/11/12)
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A legal tsunami gathering strength in Israel will soon engulf the
region. An official report is soon to be released that says the
Fourth Geneva Convention (FGC) does not apply to Judea and Samaria
aka West Bank and that Israel has every right to build settlements
In January of this year, PM Netanyahu set up the Levy Committee to
investigate the legal status of unauthorized West Bank Jewish
building. The Committee was headed by Supreme Court Justice (ret)
Edmund Levy. It included Tel Aviv District Court Judge (Ret.) Tehiya
Shapira and Dr. Alan Baker an international law expert, who was part
of the team that devised the Oslo Accords,
The Committee reviewed legal briefs from right of center groups but
also from far left groups such as Peace Now, Yesh Din and Btselem.
Its 89 page Report was submitted to PM Netanyahu a few weeks ago and
is now under review by his Ministerial Committee on Settlements.
Though the Report has yet to be formerly published, the contents are
already well known.
It found that the settlements are not illegal. To reach this
conclusion it first found that the Fourth Geneva Convention which
applies "to all cases of partial or total occupation of the territory
of a High Contracting Party" does not apply to Judea and Samaria
because "Israel does not meet the criteria of ´military occupation´
as defined under international law" ... as "no other legal entity
has ever had its sovereignty over the area cemented under
Furthermore it found that there was no provision in international law
which prohibited Jews settling in the area.
The UN and the EU have for decades repeated the mantra that the land
is occupied and the settlements are illegal, both pursuant to the
FGC, but there has never been a binding legal decision on which they
based their assertions. The US has been more cautious and considers
the settlements "an obstacle to peace" or "illegitimate."
Nevertheless, it leads the chorus in demanding an end to Israel´s
In 2010, Nicholas Rostow, in the American Interest , regarding the
legality of the settlements, wrote:
On February 2, 1981, President Reagan stated that the settlements
were "not illegal", although he criticized them as "ill-advised"
and "unnecessarily provocative." Throughout the Reagan
Administration the U.S. government did not question the legality of
the settlements; rather, it criticized the settlements on policy
grounds as an obstacle to the peace process. In the United Nations,
the United States voted against resolutions describing Israeli
settlements as illegal.
President George Bush followed suit and so did President Obama.
The Levy Report confirms the opinions of a large list of experts who
have long claimed the same, including Stephen M. Schwebel, Professor
of International Law at the School of Advanced International Studies
of The Johns Hopkins University (Washington), former Deputy Legal
Advisor of the U.S. State Department and President of the
International Court of Justice from 1997 to 2000; Eugene W. Rostow,
former U.S. Undersecretary of State for Political Affairs and
Distinguished Fellow at the U.S. Institute for Peace; Julius Stone,
one of the 20th century´s leading authorities on the Law of Nations,
Doctor of Juridical Science from Harvard and Professor of
Jurisprudence and International Law at universities in Australia and
California; David Matas, world-renowned human rights lawyer and
honorary counsel to B´nai Brith Canada and David M. Phillips,
Professor at Northeastern University School of Law.
The question of the applicability of the FGC was considered by the
International Court of Justice (ICJ), an arm of the UN, in its
advisory opinion on the legality of the fence.
The ICJ held that "the Convention applies, in particular, in any
territory occupied in the course of the conflict by one of the
contracting parties." In other words, it ignored that the lands
occupied must be the lands of "another High Contracting Party."
This is not considered sound law and in any event, is not a binding
The Supreme Court of Israel in its decision approving the fence as
legal, said that "the question of the application of the Fourth
Geneva Convention is not before us now, since the parties agree that
the humanitarian rules of the Fourth Geneva Convention apply to the
issue under review." Thus it didn´t decide on the applicability.
The Left in Israel are screaming blue murder and referring to the
Report as "born in sin" and a "political manifesto."
On Monday, while speaking to reporters, State Department spokesman
Patrick Ventrell said:
The US position on settlements is clear. Obviously, we´ve seen the
reports that an Israeli government appointed panel has recommended
legalizing dozens of Israeli settlements in the West Bank, but we do
not accept the legitimacy of continued Israeli settlement activity,
and we oppose any effort to legalize settlement outposts.
What is interesting about this statement is that Ventrell did not
comment on the finding that the FGC did not apply or that the
settlements were not illegal. He merely reiterated the US government
position without substantiating it. Furthermore, the settlement
outposts that the State Department doesn´t want "legalized" are legal
save for having not received their final approval from the Government
of Israel. If they were really illegal by international law, Israel
wouldn´t be able to "legalize" them. Put another way, the US position
is that Israel shouldn´t exercise her rights because such exercise
would be an obstacle to peace.
Accordingly, the legal conclusions of the Report are sound. What
will the fallout be?
Well for starters, the UN may ask for another advisory opinion from
the ICJ on the validity of this report but why bother, it already has
one on the applicability of the FGC. It probably will choose to
ignore it as just another opinion. Meanwhile the existence of the
report will take the wind out of the sails of the US and the EU as
they try to damn the settlements and Israel´s actions. The US will
have to acknowledge that since President Reagan, it has considered
the settlements to be "not illegal" but only, "ill-advised."
PM Netanyahu will have to decide whether he will embrace the Report
and act accordingly or whether he will wait for the issue to be
adjudicated by Israel´s High Court. It is highly unlikely that this
Court will fly in the face of the named experts, the US Government
and the Levy Report.
From a political point of view, he cannot ignore the Report. A
political storm is raging. MK Tzippi Hotovely, Likud, is preparing a
bill that will endorse the principles of the Levy Report and will
require the establishment of a judicial tribunal in Judea and Samaria
which will be given the responsibility of discussing matters related
to land ownership, the establishment of an Israeli land registry in
Judea and Samaria and applying Israeli building and planning laws on
Judea and Samaria.
Where does that leave the international community? The foundation of
their attacks on Israel will have been destroyed. It will be hard to
ignore the Report and harder still to ignore a confirming decision by
Israel´s High Court. It will no longer be able to claim with a
straight face that the lands are "occupied Palestinian lands" or that
the settlements are illegal.
The upshot of all this will be that Israel will end the de facto
building freeze and start construction of settlements in earnest. It
will also signal the end of the pursuit by Israel of the two-state
solution. The Israeli center will no longer believe that Israel is
an occupier and instead will believe that the land is theirs, which
Presently there is significant movement in Israel advocating Israeli
sovereignty over all of Judea and Samaria, even if that means making
citizenship available to qualifying Arabs.
Israel must decide between two risky alternatives; either accept the
two-state solution based on ´67 borders with swaps or annex the land
and contend with an extra 1.5 million Arabs within its borders. With
the latter alternative, the Jews would be left with a stable 2:1
majority. Israelis are already trending to the latter choice and this
Report will accelerate that trend.
The Arabs in Judea and Samaria will not accept such a two state
solution because it will preclude the "right of return" and will
require them to recognize Israel as the Jewish State. Furthermore it
will require them to sign an end-of-conflict agreement. If Israel
chooses to claim sovereignty, the Arabs will have to decide whether
to whether to push for citizenship or to accept autonomy.
This tsunami will change the political landscape for the better and
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