On the 8th Anniversary of the International Court of Justice Advisory Opinion of The Wall – Israel is openly discussing annexation of the West Bank

Today is the 8th anniversary of the International Court of Justice’s Advisory Opinion of the Wall — declaring it illegal, and noting that the West Bank [including East Jerusalem] is under an Israeli military occupation.

The Wall is being extended in the Jerusalem area, particularly around Atarot [which Ehud Olmert reportedly offered to Mahmoud Abbas, along with Qalandia Airport, in September 2008].

Israel is also rushing to complete another wall on its border with Egypt, and is contemplating other walls on the northern border as well…and Israel’s current Prime Minister Benyamin Netanyanu has apparently asked a committee, another committee, to study the possibility of a wall along the Jordan River…

Also today, on this 8th anniversary, Israeli media have reported that an Israeli committee headed by retired Israeli Supreme Court judge Edmond Levy, and appointed by Prime Minister Netanyahu to investigate the legality of building settlement outposts in the West Bank, determined that construction in the occupied territory is not illegal — because, it says,  the West Bank is not occupied.

It is indisputably true that, as the New York Times says the Levy Report argues, “the outposts now deemed unauthorized were established with the knowledge and encouragement of Israel’s most senior government echelons”. The Levy Committee therefore concluded that “this amounted to ‘implied agreement’.” [i.e. = implied agreement of the Israeli government and/or its senior officials]. The NYTimes piece is published here.

    UPDATE:Israeli Attorney Michael Sfard wrote in Haaretz on Tuesday 10 June that the Levy committee was “appointed in an undue process meant to bypass the attorney general and provide a custom-made legal opinion”.  He said that “The government of Israel hand-picked the members of the Levy Committee. Each member of the committee was selected because he or she was believed to deny the accepted legal basis for the status of the territories Israel occupied in the Six-Day War. That basis, according to which the territories are occupied and subject to the international laws of occupation, is accepted throughout the entire legal and diplomatic world (without exception) and has even been accepted in Israel for at least three decades”. And, Sfard added: “sure enough, the Levy committee delivered the goods. The West Bank is not occupied, it announced, but rather ‘a territory designated as the national home of the Jewish people… which the governments of Israel… chose not to annex but to approach pragmatically to allow peace negotiations’. And why is that? Because the Balfour Declaration of 1917, the committee tells us, and the British Mandate, designated the territory for the Jewish state. There, in 1922, ended legal history, as far as the committee is concerned…It dismisses the Partition Resolution of 1947, that established the principle of founding two states between the Jordan River and the Mediterranean, with the strange statement that it was ‘a plan that did not gain purchase in international law’. The committee does not even bother to mention dozens of statements and declarations by almost all the countries in the world and the many international bodies that actually do recognize the right of the Palestinian people to establish an independent state in the West Bank and Gaza. Nor does it mention the advisory opinion of the International Court in Hague. The same goes for all of the experts on international law, who in a rare consensus, agree that this is a clear case of occupation. The report does not try to contend with the enormous existing discourse, it tries to silence it”. This commentary by Michael Sfard is published here.

What the report does seem to do [it is not available in English translation] is to assert a Jewish claim to parts of the West Bank — pending final resolution of the nature of the territory,  which is admittedly not currently a part of Israel.

Some commentators say that the Levy Report argues that “international law” allows Israeli Jews to live there.   But, the Levy Report could possibly be arguing instead is that “international law” does not apply.  Could it be saying that the West Bank is not-occupied, but parts of it are disputed  [a legal concept elaborated decades ago by Israel’s former Ambassador to the UN in the early 1980’s, Professor Yehuda Blum]?

Also on the Levy committee was a former adviser at the Israeli Foreign Ministry, Dr. Alan Baker, who now works at the Jerusalem Center for Policy Affairs run by Netanyahu confidante Dore Gold, and former Tel Aviv District Court Judge Tchia Shapira.

In any case, the Levy Report justifies  — decades after the fact — the Israeli government’s decisions not only to allow the settlements to be built, but also to provide all the infrastructure for the settlements, from Army bases to protect them, and roads to electricity to mobile phone signals to water and [in a rare few places, sewage], while private banks and organizations were allowed to offer concessionary credit for home building.  [On the delicate matter of sewage, in most places there is none, because the whole construction was done in haste — making this omission the only suggestion that the whole settlement enterprise was ever anything but permanent].

Israelis, who naturally believe their own government and Army, did somehow come to believe that, even without establishing title to the West Bank, what they wanted of it was theirs…and they could build settlements and live there as Israeli citizens.

Although the Levy report does not apparently make an outright recommendation of annexation, it comes at a time when a number of Israeli politicians have joined settler representatives to urge annexation of  Israeli settlements in the West Bank — and it seems to lend strength to that argument.

The report apparently states that “it is impossible to foresee a time when Israel will relinquish these territories”.

But the non-occupation state that the Levy report gives the West Bank would not be a one-state solution, for what’s left over would be Palestinian — and thus there would continue to be two legal systems…and the Palestinians in the West Bank would apparently not be offered either Israeli citizenship or residency.

This seems to be in direct contradiction to a 2005 report on commissioned by former Prime Minister Ariel Sharon, and carried out by Talia Sasson, a lawyer and former employee of the Israeli Attorney General’s office, who classified West Bank settlements as legal or “illegal” — those built on private Palestinian land, something which Israel’s Supreme Court had proscribed.

Chaim Levinson wrote in Haaretz here that “The committee determined that Israel is not an occupying force in the West Bank, and recommended to authorize all outposts without the need for retroactive government decisions, to repeal regulations requiring permission from ranking government officials for each and every stage of the building process, and not to carry out demolition orders”.

The same Haaretz article quoted Talia Sasson as saying: “If the Levy Committee is pushing the government to determine that Israel’s presence in the West Bank does not violate international law, Israel is in a dangerous position facing the rest of the world”. She added, according to Haaretz, that “The state Attorney General is responsible for enforcing laws, and he is forced to follow the rulings of the High Court of Justice on this issue handed down over the last few decades. Without the Attorney General’s approval, it does not matter who wrote the report, however lofty their legal position might be”. Haaretz said Sasson noted that “instead of reflecting various legal procedures and High Court rulings on the issue, the committee decided to make its own ruling. ‘For 45 years, different compositions of the High Court of Justice stated again and again that Israel’s presence in the West Bank violates international law, which is clearly opposed to Levy’s findings. This is a colossal turnaround, which I do not think is within his authority. He can tell the government that he recommends changing legal status, and that’s all’.” She added that “In 2005 [note = it was in 2004], the International Court ruled on the case of the fence, and stated unanimously that the occupation of the West Bank and the settlements are in violation of fourth Geneva Convention … If the Levy committee is pushing for the government to determine that international law does not forbid a presence in the West Bank, it is putting Israel in a difficult position facing the rest of the world. I’m not even speaking about how it looks when a supreme court makes a certain ruling for 45 years, and suddenly one judge comes and gives a contradictory opinion”.

UPDATE: The Associated Press reported Tuesday 10 June that “Since Prime Minister Benjamin Netanyahu was elected more than three years ago, the Jewish population in the West Bank has ballooned by 18 percent, drawing tens of thousands of Israelis to the territory the Palestinians claim as the heartland of a future state, according to figures obtained by The Associated Press.The rate of growth — nearly twice that of Israel proper— has deep implications for an already moribund peace process. The issue is at the heart of a three-year-old impasse in Mideast peace efforts … The rising settler numbers are ‘consistent with Netanyahu’s commitment to maintain the Israeli control over the Palestinian territories and consistent with his lack of commitment to the establishment of a Palestinian state as part of a two-state solution’, Palestinian {Authority] government spokesman Ghassan Khatib said … Israel, which has a population of almost 8 million, has long sought to cement its hold on the West Bank, captured from Jordan in the 1967 Mideast war, by having masses of Jewish settlers live there. For years, the two sides had discussed the possibility that in a final peace deal, Israel would maintain some settlements while uprooting others … But the numbers in the West Bank are much higher, more than tripling since the first interim peace accord of 1993 to more than 342,000 at the end of 2011, according to Interior Ministry figures. That includes a rise of more than 50,000, or 18 percent, since Netanyahu was elected in early 2009, driven by a high settler birth rate and the migration of Israelis to the West Bank”.

The AP said that these numbers “do not include some 200,000 Jews living in areas of Jerusalem [n.b. – this should read the Old City of East Jerusalem and adjacent areas in the West Bank]  that Israel captured in the 1967 war”.  These areas were annexed two weeks or so after the June 1967 war.  Israel is almost alone in considering these annexed areas to be part of Jerusalem [though a South Sudanese official recently said his government was considering placing its embassy in Jerusalem].

In any case, because Israel argues [almost alone] that this annexation is legal, it says that the settlements in areas that it renamed, in late June 1967, “the Greater Jerusalem Municipality” to be legal as well.

The AP article added that “With nearly 10 percent of Israel’s 6 million Jews now living on occupied territory, the growing settler population has in effect erased the pre-1967 frontier, said pro-settler Jerusalem Post commentator Michael Freund”.

AP noted that “the Palestinians express additional alarm over the leadership of Netanyahu, a longtime settler patron who repeatedly has ruled out the type of broad withdrawal the Palestinians demand.  Netanyahu has rejected the Palestinian demand for a construction freeze, saying the fate of settlements should be decided in negotiations. In the meantime, his government has authorized the construction of thousands of settler apartments. Just last week, Netanyahu vowed to continue settling the West Bank, including areas deep inside the territory.  A government-commissioned report released Monday could clear the way for further construction. It recommended that Israel legalize dozens of unsanctioned West Bank settlement outposts despite international opposition to the enclaves and proposed other measures to facilitate settlement construction. That could give Netanyahu ammunition to support new settlement activity and fend off pressure from a Supreme Court that has ordered the government to take action against the existing outposts.  The report was not binding and it was not clear whether the prime minister planned to follow through on it. In a statement, he said he would study the document with top advisers”. This AP article is published here.

As the AP also noted, the U.S. keeps making statements that it does not recognize “the legitimacy of continued settlement activity” — it is not clear from what date the U.S. considers this activity “continued”.

The U.S. State Department also said that “we oppose any effort to legalize settlement outposts” — this seems to mean that the U.S. prefers the Sasson report to the Levy report, at least for now…

Oh, and yes, the UN Human Rights Council in Geneva will eventually be studying and reporting on “the implications of Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people in the occupied Palestinian territory”, following a vote in March, after which Israel said it would no longer cooperate with the Human Rights Council. The Chairman of the Human Rights Council has just appointed an expert committee [Christine Chanet, Unity Dow, and Asma Jahangir] to conduct the study.

And the Palestinian leadership said last week that they want to return to the UN Security Council in New York on the matter of settlements — despite the veto used by the USA on a draft resolution on the matter in early 2011…

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