“The West Bank is not Occupied” says Levy Committee
The established nature and routine life of the settlements was interesting to me during the 2 1/2 months I recently spent in Israel living and conducting some research in the settlements. The notion that some of these large settlements such as Ariel will ever be moved defies imagination. Construction in the town of Ariel continues along with new additions to the University Center and upgrades of city services. Even though settlements have questionable legal status the state continues to provide necessary infrastructure for the maintenance of the settlements. Inside Israel proper are road signs, mileage markers, and general information facilitating travel as well as the provision of necessary services.
A couple of weeks ago Prime Minister Netanyahu organized a panel about the status of the West Bank. The panel was headed by Justice Levy, and the panel’s primary conclusion was that Israel cannot be seen as “occupying” the West Bank. The original report is available here. The Levy committee concluded that the concept of occupation did not apply on the basis of international law. The main argument is that there was no established sovereign state on what is now called the West Bank and therefore Israel cannot be accused of occupying this land. The report goes on to explain how Israel has a right to the land and this includes the right to transfer populations if necessary. The report continues with a long list of laws that should be annulled in order to encourage settlement in the West Bank, followed by a list of suggestions and procedures that will facilitate Jewish settlement in Judea and Samaria.
The “left” in Israel maintains that Judea and Samaria are occupied on the basis of international law ever since they were captured in 1967. But the panel accepted the argument from the “right” by explaining that the idea of “occupation” relates to short periods of time in which one state captures or makes incursions into another until their differences are resolved. Judea and Samaria, according to the argument from the right, has been under Israeli control for a long time and there seems to be no timetable for dispute resolution or expectation that Israel will simply withdraw. Essentially, the report concluded that Israel can treat the West Bank as if it were part of the internationally recognized state of Israel. Take note of a few problems:
If the West Bank and its settlements are part of Israel proper then the people currently living in the West Bank would be Israeli citizens with full political rights – regardless of religion or ethnicity. The slippery slope here is that the Palestinians of the West Bank would overwhelm the Jewish majority democracy and pose almost insurmountable political problems. The presence of the Palestinians in the West Bank, regardless of what one thinks of their political and cultural rights, will be a very difficult problem, a management and political problem, for the Israelis. Israel simply must get out of the business of lording over large numbers of people who are not Israelis. Again political nuances do not even matter much because the reality of managing large numbers of noncitizens is always a loser for the dominant culture.
It should be noted that there is nothing particularly new about this legal argument. Israeli legal scholars have attempted to justify Israel’s presence in the West Bank by arguing that it is not subject to the conditions of international law. Their arguments have not been accepted by most other legal scholars or the international community in general.
Third, trying to do something about occupation on the basis of international law is pretty futile. The Israeli Supreme Court has consistently ruled on the side of security arguments with respect to the West Bank. Those arguments have been tempered, and always subject to conditions, but have remained supportive of Israel’s presence. The court has, for example, allowed settlements but not on privately owned land; it has allowed targeted assassinations but only under specific conditions; it has even allowed Israel to use and sell natural resources in the West Bank.
Attitudes about the green line (see the Michael Freund article on the “articles of interest” tab on the top of this blog page) and the settlements are beginning to change in Israel. There is creeping support and sympathy for settlers. And a more casual and optimistic attitude about ownership of the West Bank is a byproduct of the diminished interest in the two state solution. If there is no genuine two state solution, then Israel might as well appropriate the land. As Israelis grow tired of dealing with the Palestinians their attitude about the West Bank becomes more predatory.