The Levy Report claims that there is no occupation and goes back to the Balfour Declaration to support its case. So where does that leave us?
Yesh Din has just published a new report entitled “Unprecedented,” written by Attorneys Anu Deuel-Lusky and Keren Michaeli. The report was prepared jointly by Yesh Din and the Emile Zola Chair for Human Rights at Tel Aviv University. The report discusses – or rather dissects – one of the strangest documents that have been published in Israel in recent years: The Levy Report.
As some may remember, the Netanyahu government commissioned the report of the Levy Committee in a desperate attempt to find a modicum of legal justification for the ongoing presence of the illegal outposts in the West Bank. The head of the committee, the late Justice Edmond Levy, who passed away recently, is perhaps best remembered as the only justice in Israel’s Supreme Court who took the position that Israel’s Disengagement Plan was unlawful. Let’s see what Minister Silvan Shalom had to say about Justice Levy: “I’ll tell you the secret: Edmond Levy was the deputy mayor of Ramle on behalf of the Likud. A Likud supporter, a resident of Ramle, deputy mayor of the city for the Likud. A legal genius. Minister Meir Sheetrit appointed Levy to the Supreme Court as part of a series of deals with Aharon Barak. He did not fit into the atmosphere in the Supreme Court and didn’t show up for any of the ceremonies. He was a lone wolf. So when the prime minister appointed him, do you think he didn’t realize who he was appointing?” And Shalom continues to make his point. Netanyahu was quick to declare his full confidence in Justice Levy, but the government never adopted his report.
Why not? Because the Levy Report is a bit like the reports commissioned by the major tobacco companies in the 1960s and 1970s that claimed that smoking was not dangerous, or at least that no risks had been proven. It later emerged that these reports were thrifty with the truth at best, and completely fabricated at worst. As Lusky and Michaeli show, the Levy Report is so negligent in legal terms that had the Netanyahu government adopted it, it would have run the risk of becoming a laughing stock.
What is Levy report’s basic argument? Firstly, it claims that there is no occupation: the territories seized by Israel in 1967 are not occupied territories. This claim is highly problematic, since the status of the territories is determined not by those who hold the area but by international law – a fact that even the Levy Committee did not attempt to deny. As our report explains (p. 7): “The status of any area in general, and of the West Bank in particular, is regulated not by the domestic laws of states, but in accordance with the rules of international public law. Thus, for example, a state cannot declare its sovereignty over the open sea or over outer space, since both domains have been recognized (separately) as belonging to humankind as a whole in accordance with conventions and international customary law. The vast majority of the means by which a state may acquire a territory, or is prevented from so doing, are regulated in accordance with international law […] Similarly, the status of the areas of the West Bank can also not be determined solely in accordance with Israeli law. Even the Levy Committee concurred on this point. In the relevant framework of international law, the question of Israeli sovereignty in this area depends on the circumstances in which Israel assumed control of the area; the manner in which it regulated its control therein over the years; and the agreements it has reached with the representatives of the Palestinian population of this area.”
International law is unequivocal on this matter. Security Council Resolution 446, adopted in 1979, establishes that the Territories are indeed occupied and the settlements illegal. We should recall that the Security Council resolution was adopted unanimously – the United States did not object (though it abstained). Security Council Resolution 465, adopted in 1980, states that the settlements constitute an attempt to change the demography of the West Bank, and condemns this policy. The Levy Report failed to mention this resolution, along with dozens of other resolutions of the UN General Assembly, as if they had simply evaporated into thin air.
The Levy Report also ignores the explicit ruling of the International Court of Justice in The Hague. Discussing the Separation Barrier, the ICJ ruled that the Occupied Territories and the settlements are unlawful. The Israeli Supreme Court has declared that it will not discuss the ICJ’s decision regarding the settlements, but it at least acknowledged that it exists. The Levy Committee chose to do not even that much.
In fact, the Levy Report essentially ignores the entire history of the Israeli occupation in the Territories. The IDF and the Israeli government regarded the Territories as occupied almost from the first day of the occupation. Communiqué No. 3, which established the provisions of the Order concerning Security Provisions in the Territories, explicitly established that the courts would observe the provisions of the Fourth Geneva Convention, “and where there is a contradiction between this Order and the said Convention, the provisions of the Convention take precedence” (this clause was, however, nullified shortly thereafter). As early as 1967 an Israeli jurist established that the settlements were unlawful, and the Supreme Court related to the Territories as occupied in dozens of rulings. The Levy Committee should have been well aware of this – after all, its chairperson served for many years as a justice in the Supreme Court.
None of these basic facts are reflected in the Levy Report. But as we mentioned, even the Levy Report acknowledged that an international legal framework is essential as a basis for Israel’s conduct in the Territories. So what can serve as this framework? The Levy Committee’s imaginative solution was to take us back to the days of the Balfour Declaration and the San Remo Declaration.
There are two central problems with this approach. The first is that it placed Levy and his colleagues in a position similar to that of climate change deniers: so far away from the broad consensus of thought that they can no longer be seen with the naked eye. But that’s the lesser of the two problems.
The second problem has much graver ramifications for the State of Israel. The truth is that neither the Balfour Declaration nor the San Remo Declaration even mention a “state.” They speak of a “political home.” I can assure you that the diplomats of the time were well acquainted with the word “state” and more than capable of using it where they saw fit. The Levy Report claimed that “they thereby recognized […] the right of the Jewish people to establish its home in the Land of Israel, its historical homeland, and to establish its state therein.” This assertion is frugal with the truth, to put it mildly. By rejecting the UN resolutions relating to Israel, the Levy Report undermines Israel’s very right of existence.
If there is no occupation, what is the status of the Palestinians in the Territories? Once again, the Levy Report prefers to ignore this issue. Allow me to quote a phrase in the San Remo Declaration that the report chose to omit: “it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine.” If there is no occupation, then the Levy Report should recommend following San Remo and granting Palestinians full “civil and religious rights.” Otherwise the outcome will be a system known as Apartheid.
It is safe to assume that this dilemma is one of the reasons that the Netanyahu government has declined to adopt the Levy Report. But it is still out there, quoted in other reports as it attempts to pretend that this is an issue on which there are two reasonable positions. Well, there are still people who believe the earth is flat.
To read the full report: “Unprecedented: A Legal Analysis of the Report of the Committee to Examine the Status of Construction in Judea and Samaria (“the Levy Committee”)”, click here.
To read the next blogpost, “When a legal committee tries to make a case for theft”, click here.