Jordan never had the status of a sovereign when it controlled Judea and Samaria • "We are convinced that our rights there are no less well-founded than the rights claimed by the Palestinians. These territories are subject to negotiations between us and the Palestinians, and until those negotiations are concluded, there is nothing to prevent us from building there, on condition that the construction is not done on private land,” says Alan Baker, a member of the panel whose recommendations, if adopted, could have far- reaching consequences.

A few years ago, Deputy Attorney-General Mike Blass astounded the political echelon when he submitted a legal opinion that was considered at the time to be revolutionary. The state was in the process of planning a high-speed railway line that would connect Tel Aviv and Jerusalem. Millions of shekels were invested in the planning and construction process, which was viewed as a strategically significant endeavor. Israel Railways and the Transportation Ministry broke ground on the project. Soon afterward, however, Blass found that one of the tunnels encroaches 300 meters over the Green Line.

The laying of track beyond the Green Line would be making use of occupied land, Blass said. Citing the Geneva Conventions, he said this was permissible only if “the occupied population” (in this case, the Palestinians) were the beneficiaries of the project. Blass seemed to be oblivious to the fact that the Palestinians, like the Israelis, could travel on the train, just like they could on Route 443 (the Modi’in-Jerusalem highway) which also stretches over the Green Line.

As compensation, Blass posited that the state should also build a railway line that would link Ramallah and Gaza. Ever since, Blass took the lead on this issue — and effectively adopted the legal positions and worldviews championed by the likes of Peace Now and Yesh Din with regards to the status of Judea and Samaria — the state prosecutors have taken to employ the legalistic phrase “territories that are held in belligerent occupation” much more extensively. In less measured jargon, territories possessed in belligerent occupation are “occupied territories.”

The Levy Committee report which was issued this week wishes to make an about-face and get back on the (legally) correct and familiar path, one with which for years the state prosecutors also closely identified. Retired Supreme Court Justice Edmond Levy, former military advocate and Israeli Ambassador to Canada Alan Baker, and retired Judge Tehiya Shapira restore the legal philosophy against which Blass and his colleagues rebelled in practice. The legal logic of the Levy commission is a simple one. In contrast to the pointless rabble being sounded by the Left, the conclusions are neither unprecedented nor new. It is a logic that appears on every official document that has ever been issued by the state as it relates to the status of the territories.

As Military Advocate General, Meir Shamgar, who would eventually become a Supreme Court justice, articulated this worldview many years ago. According to Shamgar, the State of Israel is not an occupying power in the territories of Judea and Samaria. The principle of limiting the authority of a military administration, which supposedly is derived from the Geneva Conventions, is based on the assumption that the “occupier” conquered the land from a legal sovereign. In Judea, Samaria, and Gaza, however, there never was a legal sovereign that ruled these territories between the War of Independence and the Six-Day War, Shamgar ruled.

The State of Israel and most nations of the world (including a majority of Arab countries) never recognized Jordan’s right to the territories that it gained in the War of Independence.

The Levy Commission essentially reiterates this position, which has been the official position of successive Israeli governments. Whoever doubts this is invited to peruse official state documents that are available for public consumption on the Foreign Ministry website, documents that are dated and which were approved by governments run by Labor, Kadima, and Likud.

In contrast to some of the statements that were made this week, Levy and his two colleagues are not “creating a new order,” but rather seek to restore the old order, the one which Mike Blass and his associates managed to blur and undermine in recent years.

Another prosecutor who subscribes to a similar worldview as that of Blass, Talia Sasson, who authored the report on outposts for the Sharon government, officially joined Meretz and Yesh Din after retiring from public service. She argued this week that the Levy report ignores Supreme Court rulings. But Jacob Turkel, a retired Supreme Court justice, emphasized this week that “the Supreme Court never ruled that Israel is an occupying power in the areas of Judea and Samaria, but that it needs to accept some of the rules dictated by international law, particularly with regards to humanitarian considerations.”

Despite everything, the Levy report is revolutionary — very revolutionary, and not just because it breaks up the philosophical monotony inspired by Talia Sasson that has become the norm among state prosecutors. After many years, Levy and his colleagues seek to introduce other practical tools in support of the position that states that Israel is not an occupying power in the territories of Judea and Samaria, and that the settlements are legal.

At the same time, they fiercely criticize some of the current legal tools that are employed by both the military and civilian prosecutors as well as by the Civil Administration. In fact, they propose that these tools be discarded.

The difference between paperwork

To bring the issues into clearer focus, we need to cite examples. One of them is the story of Moshe Deutsch, a native of the Galilee who is currently an agrarian living in the South Hebron Hills settlement of Susya. Eighteen months ago, the Civil Administration uprooted a vineyard that contained 3,300 trees that Deutsch had planted four years earlier.

Deutsch had made agricultural use of other lands, and the Civil Administration uprooted the vineyard after the Palestinians cited old documents claiming they had worked the land in years past. Deutsch sought to counter this claim in court, but before the facts emerged, the vineyard was destroyed and the land was handed to the Palestinians.

Deutsch is still overcome with grief when recalling the uprooting. His pain could well explain the implied fury that emerges from every line in the Levy report’s chapter detailing the state’s conduct in land disputes in Judea and Samaria.

Levy, Baker, and Shapira do not understand why disputes of this nature are not adjudicated in court, which is the norm in advanced legal systems. “We came away with the impression that the starting point for the authorities in the Civil Administration is that the Israeli inhabitants have a tendency to encroach on the properties of their Palestinian neighbors, and thus the inhabitants need to prove they are the legal owners of the land. If not, their punishment is eviction.”

How did the panel´s members come to this unflattering conclusion about the Civil Administration? The answer can be found on page 71 of their report. The individual who describes the present reality on this page is none other than the head of the Civil Administration, Brig. Gen. Moti Almoz, who claims that “the situation is (inclined toward) the benefit of the Palestinian side.”

According to Almoz, the Palestinian “can present any piece of evidence, and if the Israeli doesn’t show me a document, he leaves the property. The Palestinian, on the other hand, can bring me a receipt that is considered an initial piece of evidence, and the top legal advisor of Judea and Samaria will say that this is enough…”

“In land disputes in Judea and Samaria, I am required by the legal advisor to adopt the jurists’ worldview, even in cases where there is great doubt and I am not at peace with the decisions that are made and I waver after personally checking the facts on the ground,” Almoz admits.

Levy and his colleagues submit that this conduct is unfair and unequal, and that it is testament to “a biased approach.” If they could, it is reasonable to assume that they would tear up “the unlawful usage of land edict.” This ordinance allows the Civil Administration to take action against those who took control of lands that are not state-owned, even without a court order demanding proof of ownership from the resident, and to evict them from the premises.

The committee’s conclusions about this edict are among the most scathing in the entire report. “According to our thinking, this decree is draconian, and an advanced legal system must not reconcile with such an edict,” it said. “It is unclear how working agricultural land that is not state-owned and does not have a claimant to ownership arouses fear of violating the public order.”

“It appears that those who conceived of the edict had a goal in mind — to prevent Israeli settlement in Judea and Samaria from expanding its border,” the report read. “It seems that the cat came out of the bag two years ago when the edict was corrected, when the authority was granted to evict whoever did not take hold of property for a period of five years.”

Dealing with Jordanian law

Levy served on the bench of the Supreme Court for many years. He and his colleagues ruled on many petitions regarding land and property disputes in Judea and Samaria. As someone who was chosen to head a panel examining ways to legalize settlements and outposts, Levy cannot understand “why an issue that is fundamental to personal, private law, like land disputes, isn´t decided upon by the state.”

“In the absence of appropriate tools to ascertain the facts in dispute, the High Court of Justice was primarily forced to rely on state affidavits predicated on probes carried out by military agencies active in that region,” Levy wrote. “This was what was done in the case of the Ulpana, despite the claim that the land was purchased from its owner.”

“It is impossible to make do with a probe of this kind,” the Levy committee wrote. “If private [Palestinian] ownership of land upon which a Jewish settlement was built is proven, then the defense should consider other possible means that are preferable over eviction and demolition, like payment of compensation to the owners, particularly if the settlers in that area acted in good faith.”

The Levy panel members would do well to consider the story of Moshe Zer. The state has thus far refused to permit Zer back onto land which he owns in the Barkan region of Samaria, this despite the fact that permanent housing has been built there. As a result, the state compensated him financially.

Another legal tool that the committee members wish to see the state disassociate itself from is the one known as “the upgrade requirement for lands in military possession.” This is a position taken by the state prosecutors who say that it is forbidden to make civilian use of lands that were captured for military purposes. Some of the alternate sites in Beit El that were proposed as locations to house the evictees from the Ulpana neighborhood were ruled out by the prosecutors for this reason. Levy and his colleagues on the panel do not see much logic in this thinking.

The panel members wish to apply their revolution to the sensitive issue of land purchases. If their suggestions are implemented, then the entire public — both Jewish and Palestinian — would have unprecedented access to all of the land ownership documents as they relate to property in Judea and Samaria. Some of this information is classified and off limits (“Preventing access to these documents is a recipe for forgeries,” the committee posited.) In the second stage, Palestinians and Israelis can claim their rights to the land. Levy proposes that the limitations placed on Jews who wish to purchase land and register as landowners in Judea and Samaria — among them the “transaction permit” that the Civil Administration requires but rarely issues — be canceled.

Levy even tackles Jordanian law, which forbids the sale of land to Jews in Judea and Samaria. He proposes that this law be invalidated by dint of a special military decree. If anyone wishes to get a better idea of what is being discussed, they could revisit the issue of the Machpelah House in Hebron, which was purchased by Jews but evicted on the orders of Defense Minister Ehud Barak because the Jewish buyers did not possess transaction permits and other documents, some of which Levy proposes be canceled.

It is no wonder that the Left is in a panic and the Right is euphoric. Prime Minister Benjamin Netanyahu and the Ministerial Committee for Legislation will have to decide if they are only re- adopting the principle that settlements are legal or if they are using the wide range of legal tools that the Levy committee provided them in order to help the government buttress this claim.

“Transparent to all”

The most jarring bit of information in the report led the committee to exonerate the settlers and the inhabitants of the outpost, who have long been considered by jurists and political adversaries as criminals and lawbreakers. The Defense Ministry’s top legal advisor, Ahaz Ben Ari, told the committee explicitly: “In the 1980s, there was a surge in construction. Planning and building laws were eschewed virtually out of ideological considerations. When the government approved the settlement of Revava, there were already cabins there on the ground… It was anarchy… The people who live there are paying a price, even though it was possible to legalize the place…”

The committee also heard statements from Sara Aharon, the head of the Housing Ministry’s village construction division, who told Sasson: “The unauthorized outposts were approved, recognized, and sanctioned by both government decisions as well as the most senior officials in the Prime Minister’s Office and the Defense Ministry.”

Yossi Segal, who is responsible for abandoned government property, told the committee that the moment it was decided to establish a settlement that wants to expand its municipal boundaries by adding a neighborhood, it is no longer considered a new settlement, thus the addition of the neighborhood is not contingent upon a government decision.

Many pages were devoted to statements made by Yuval Ponak, the deputy director general of the World Zionist Organization’s settlement division, who vociferously disagrees with Sasson’s conclusions.

“In all small-scale, village settlement, since the founding of the state until the present day, the task of physical settlement always preceded the approved planning processes,” he said. “This was how the hilltop settlements in Gush Segev and the Galilee were built in the 1980s. This was how the Adulam strip settlements (the area of land that lies between Beit Shemesh and Beit Guvrin) were built in the 1950s, and this was how all of the relevant state and government agencies involved in the building of towns conducted themselves, including the Civil Administration.”

“The settlement enterprise was transparent to all, beginning from government ministers and prime ministers to the various technocrats, and disavowing them is done with one goal in mind: to push back criticism sounded from various quarters, particularly from abroad,” the committee concluded.

Levy “expresses great reservation with regard to the Sasson report as it relates to the guilt of the settlers,” although he does accept, and even expand upon, the information which sheds light on the building of settlements and outposts, which were done “quietly” and “with a wink of an eye” in the spirit of “a wall and fortress.”

“The conduct of the government and its emissaries in this matter resulted in a number of consequences,” Levy wrote. “Those towns/neighborhoods that were built were later deemed unauthorized. Their ability to expand and develop in order to address issues of natural growth and basic problems in infrastructure was denied to them, and their inhabitants were declared ‘building violators’ and ‘infiltrators’ on land whose ownership rights were obtained by paying money from their own pockets and through bank loans, all after they had received state approval.”

There was no sovereign

Levy and his colleagues also take a bold step in concluding that the burden of proving action in good faith is a greater one when placed on the state than that placed on the citizen.

“The settlers in the disputed settlements were permitted to assume that the government was acting legally in their case, and as such the argument offered by the government — that the establishment of settlements was done illegally, even though the government itself encouraged construction there on the one hand and then ‘froze’ planning processes on the other — attests to behavior that is rife with a lack of good faith of the most severe kind,” the committee found.

Baker told Israel Hayom that the committee on which he sat was not political in nature. “We determined early on, and we wrote this in the beginning of the report, that we would not take a position regarding the diplomatic wisdom in building the settlements, but that we would act as jurists who are charged with drawing conclusions based solely on the law,” he said. “This is not a political report, but a legal report, which is based on an examination of international, Ottoman, Jordanian, and Israeli jurisprudence.”

“We do not necessarily advocate canceling the Sasson report, which cited some irregularities that we also happen to mention in the report,” Baker said. “The difference is that Sasson made do with pointing out the problems and the mishaps while we propose solutions to remedy the situation through a fixed set of actions.”

Is it possible to adequately wage a legal defense in favor of the settlements before international forums like The Hague and to argue that territories are not occupied?

“It won’t be easy,” Baker said. “The dominant international thinking posits that we are a military occupier whose possession of the land is an act of belligerency, but we investigated this issue from a historic and a legal perspective, and we reached the conclusion that we think is well-based. Jordan never had the status of a sovereign when it controlled the area, and in 1988 it even formally renounced all claims of sovereignty there. We need to act in accordance with our interests and our rights, and on the basis of the probe that we conducted pertaining to the right of the Jewish people to the land by dint of international documents, we are convinced that our rights in Judea and Samaria are no less well-founded than the rights claimed by the Palestinians. These territories are subject to negotiations between us and the Palestinians, and until those negotiations are concluded, there is nothing to prevent us from building there, on condition that the construction is not done on private land.”

International law isn’t the only one that considers our hold on these territories as a belligerent act. The state prosecutors have also operated according to this outline.

“I hope there will be a revolution in the prosecutors’ thinking. After all, we are talking about a report issued by a retired Supreme Court justice who has accumulated much experience. We didn’t invent things. It would behoove prosecutors to consider the conclusions in the report.”

Were you surprised by the picture that was painted by the various officials that were summoned by your committee?

“We were mainly surprised by the level of chaos and mayhem that was characteristic of the manner in which the state handled all affairs related to the settlement enterprise. We were also surprised by the tremendous influence wielded by civilian and military prosecutors, who exercised authority to deliberate on matters that are best left to the courts.”