By Kenneth Levin
The Palestinians and the Israelis are both entitled to put forward claims to what is disputed territory, and the conflicting claims are to be resolved by negotiations.
In July, the government-appointed Commission to Examine the Status of Building in Judea and Samaria issued its findings.
The Levy Report, named for the head of the three-person commission, former Supreme Court Justice Edmond Levy, has triggered hysterical, damning responses not only from those beyond the Jewish world that are traditionally hostile to Israel but also from much of the Left in Israel and in the American Jewish community. The report’s critics have labeled it contrary to international law, a blow to the two-state solution, and an assault on hopes for peace, among other charges.
But as one of the report’s authors, international law expert and former Foreign Ministry legal adviser Alan Baker, was quoted as stating, the commission’s task was to “examine the situation of building in Judea and Samaria and to advise the Israeli government accordingly, and to that end had to determine the legal nature of Israel’s presence in the area. Nothing more, nothing less. No hidden political agenda.” (The third member of the commission was former Tel Aviv District Court judge Tchia Shapira.) The commission found that the establishment of Israeli communities in Judea and Samaria is consistent with international law.
While it supported the legalization of so-called “illegal outposts” established without full government authorization, it criticized Israeli governments for not creating and expediting more orderly and comprehensive procedures for founding settlements, determining their boundaries, handling Israeli registration of land purchases in the West Bank, and adjudicating land disputes in the area. It offered guidelines for correcting problems related to these issues.
THE LEVY Report’s findings should hardly have been surprising. The right of Jews to settle in Judea and Samaria is founded on grounds much firmer than simply arguments that the Fourth Geneva Convention does not apply to settlements because these communities do not entail forced transfer of populations. Such arguments, while entirely sound, merely offer a generic basis for maintaining that settlements are not contrary to international law.
Much more specific justification comes from the original League of Nations Mandate for Palestine, which called for “close settlement by Jews on the land, including State lands” of the Mandate, and Article 80 of the United Nations charter, which preserved the application of the League of Nations Mandate’s stipulations.
One could argue that the Jews’ governmental body, by accepting the 1947 partition plan for Mandate Palestine, essentially gave up the right to Jewish settlement in areas not allotted to it. But the partition plan addressed issues of sovereignty, not of residence. More importantly, the Palestinian side rejected the plan and failed to establish a successor government in the areas that were to fall under its control. Subsequently, Judea and Samaria were occupied (with the killing or expulsion of all their Jewish residents) and annexed by Transjordan, which then renamed itself Jordan.
But only two nations, Britain and Pakistan, recognized Jordanian sovereignty in the territories. In 1967, Jordan – as King Hussein himself acknowledged – launched hostilities against Israel, and Israel, in its response, gained control of Judea and Samaria. In effect, whatever right to settlement Israel was prepared to give up in 1947 became irrelevant when no legitimate alternative government of Judea and Samaria emerged, and so the right to settlement enshrined in the Mandate and in Article 80 of the UN charter remains in force. (The absence of an alternative sovereign claimant to the land is also relevant to the Fourth Geneva Convention argument, as the Convention specifically addresses a state’s actions in the territory of another sovereign state and there is no such other state vis-à-vis Judea and Samaria.) It is also noteworthy in this context that Jordan and Israel signed a peace treaty in 1994, which established the international boundary between the two nations and entailed Jordan formally giving up any claim to Judea and Samaria.
Also relevant, if less directly so, is UN Security Council Resolution 242, adopted unanimously in the wake of the 1967 war. It calls for peace talks between Israel and its neighbors and, rather than Israel’s return to the prewar armistice lines, for the negotiation of new “secure and recognized” boundaries. Further, the authors of Resolution 242 explicitly stated that the prewar armistice lines made no sense as permanent borders, invited further aggression against Israel, were untenable, and ought to be replaced.
Resolution 242 does not in itself strengthen the already strong legitimacy in international law of Israeli settlements. But it is relevant in several respects. First, most settlements have been established with a view toward reinforcing Israeli claims to key strategic areas in Judea and Samaria, those most germane to providing Israel with defensible borders in the context of a peace agreement. In addition, Resolution 242 does underscore the status of Judea and Samaria as disputed territory, whose ultimate disposition is to be decided by negotiations between Israel and its neighbors.
Those who assert that Judea and Samaria are Palestinian territory and that Israel, by its settlements, is usurping what properly belongs to the Palestinians are distorting the actual status of these areas in international law. (It is also noteworthy that the Palestinians have likewise created new “settlements” in previously empty areas of the territories, have done so largely without Israeli interference, and have done so with a view toward preventing Israel from establishing defensible borders.) But, in fact, not all of Judea and Samaria are currently disputed territories, as Israel ceded parts of these areas to the Palestinians in the context of the Oslo process. The Oslo accords entailed a division of these territories into Areas A, B and C. Area A was placed under full Palestinian Authority control; Area B entailed lands in which Palestinians assumed full civil authority while Israel retained responsibility for security; and Area C remained under Israeli control. Areas A and B comprise about 40 percent of Judea and Samaria and are home to about 96% of the Palestinian population of the territories.
Some have argued that Israel is not obliged to maintain its giving up of these areas as the Palestinian Authority has never fulfilled its obligations under the relevant Oslo accords. In particular, it has never recognized Israel’s right to exist, has never ended incitement promoting the murder of Israelis and delegitimization and destruction of the state, and has never abandoned terror to advance its anti-Israel agenda. But no Israeli government has sought to reverse the ceding of Areas A and B.
THE ISRAEL Policy Forum (IPF) is a left-leaning American Jewish organization created in 1993 at the behest of the Labor-Meretz coalition government that spawned Oslo; it was founded essentially with the mandate of advocating for the Oslo agenda. In a recent IPF-sponsored letter to Prime Minister Binyamin Netanyahu, 41 signatories urged him to reject the Levy Report because, they argued, its adoption would undercut Israel’s pursuit of a territorial compromise in Judea and Samaria that would allow the Palestinians to separate from Israel. The IPF letter is representative of many attacks on the Levy Report from the Left.
But the assertion of Israel’s legal rights in the territories hardly precludes the state’s deciding to forgo aspects of those rights for the sake of a territorial compromise that it finds in the national interest, a compromise that would seek both retention of defensible borders and maximal separation from the Palestinian population.
Netanyahu has expressed a willingness to negotiate creation of a “free, viable and independent Palestinian state” in parts of Judea and Samaria. The Levy Report raises no obstacle to his doing so. The chief obstacle to such a partition remains, as it has always been, Palestinian refusal to recognize Israel’s legitimacy within any borders.
The primary hindrance to peace continues to be Palestinian determination to win world recognition of Palestinian claims to all of Judea and Samaria and parts of Jerusalem and to do so while retaining the freedom to continue pursuing Israel’s demise.
One of the signers of the IPF letter, Daniel Gordis, senior vice president at the Shalem Center in Jerusalem, wrote separately of his concern that the Levy Report would “unleash an international backlash” against Israel. He also felt it “would alienate American Jews struggling to feel and express support for Israel.” Gordis further observed, more particularly, “I… spend a great deal of time with young American Jews. Increasingly, I see them struggling to maintain feelings of loyalty to Israel as they grapple with what they believe is Israel’s failure to move the peace process forward. Unlike many of them, I believe that the disproportionate responsibility for the current impasse in the Israeli-Palestinian conflict rests with the Palestinians. But I’m saddened and worried by the growing numbers of even Orthodox students on college campuses making their way to the J Street bloc.”
There may well be a backlash by those hostile to Israel in response to government adoption of the Levy Report. Israel has rarely asserted its rights in Judea and Samaria under international law. It has largely left the field open to the nation’s enemies to claim that the land in its entirety belongs to the Palestinians and that Israel is merely a usurper there. Obviously, those enemies will not be pleased.
In addition, the broad world sympathy the Palestinians have garnered for their claims of Israeli usurpation has likewise been bolstered by Israel’s failure over the years to put forth its counter-claims and their basis in international law. While the reaction of much of the world may initially be to dismiss such unfortunately too rare assertions, Israel’s vigorous arguing of their solid foundations and their legitimacy can over time eat away at this hostility. Certainly, continuing to be silent on Jewish rights for the sake of not stirring more anti-Israel sentiment is hardly the path to winning support for Israel’s vital national interests.
The perspectives of those American Jews depicted by Gordis as wavering in their support for Israel have also been shaped in large part by Israel’s not putting forward its strong case regarding its rights vis-à-vis the territories.
Israeli governments have too often allowed the characterization of Judea and Samaria as “Palestinian,” or as “occupied,” rather than as “disputed,” to go unchallenged.
They have too often failed to present their right to defensible borders, the bolstering of those rights by Resolution 242, and the legitimacy of settlement in the territories both as a legal undertaking in itself under international law, including the United Nations charter, and as a buttress to securing defensible borders through future negotiations.
On the contrary, the field has not only been left to the nation’s enemies to define the status of the territories. In addition, much of the discussion surrounding the territories has involved Israelis – academics, writers, others within the cultural elite, journalists and commentators, and politicians of particular political stripes – essentially endorsing the arguments of the nation’s enemies and asserting that the territories are indeed properly Palestinian and that the path to peace lies in Israel’s withdrawing essentially to the pre-1967 armistice lines.
THE VIRTUAL monopoly that this formula has had within Israel’s chattering classes has not only contributed much to reinforcing anti-Israel biases around the world (“Israelis themselves say the same thing, so our anti- Israel convictions must be valid”) and to the ambivalence, confusion, and even hostility of many Diaspora Jews regarding Israel’s policies.
It also had a major impact in Israel leading up to the Oslo debacle and during the early years of Oslo.
Israelis, eager for peace, wanted to believe the claims of the chattering classes that Israel’s refusal to be sufficiently forthcoming was the major obstacle to peace and that the right concessions, most importantly leaving the territories, would end the conflict.
Of course, believing this meant ignoring many realities. Those realities went beyond ignoring or dismissing Israel’s legitimate, and vital, claims in Judea and Samaria. It also meant ignoring the fact that, throughout this same period, Yasser Arafat and his followers continued to tell their constituency their goal was Israel’s annihilation and continued to promote terror to achieve that goal. It meant about half the Israeli population averting its eyes from the fact that, then as now, Palestinian and broader Arab media, mosques and schools purveyed not simply the message that Israel must be destroyed but a broader, genocidal anti-Semitism.
Even the dramatic upsurge in terror that accompanied the first years of the Oslo process had only limited impact on public support for the accords and for their promotion by the chattering classes. It was not until Arafat, in 2000, rejected all compromise at Camp David, offered no counter-proposals, and instead launched his all-out terror war – which in the ensuing few years claimed another thousand Israeli lives and maimed thousands more – that Israelis in large numbers abandoned their Oslo delusions. Still more gave up their wishful thinking when Israel’s full withdrawal from Gaza in 2005 led only to more terror, much of it in the form of thousands of rockets targeting Israeli communities from the evacuated territory.
But hardly all Israelis have turned away from their Oslo delusions. And it is particularly, now as then, those within the academic and cultural and journalistic elites, those who write the “news” and opinion columns and essays on national policy and film scripts and political novels, who cling to the delusional convictions of the Oslo years. They continue to purvey the argument, with relatively little push-back from the many who disagree, that Judea and Samaria are properly Palestinian, that settlements are a violation of international law, and that assertions of the need for defensible borders are just an excuse for stealing land from its true owners.
If the great majority of Israelis, shaken from their wishful reveries by bloody realities, now give no credence to such false claims, those claims still have their impact in reinforcing the biases of a hostile world and undermining support for Israel even within elements of Diaspora Jewry.
The absurdity to which those prominent Israeli voices have gone in turning truth on its head regarding the status of Judea and Samaria, and of settlements there, in international law – all in the service of delusional fantasies that sufficient Israeli concessions would win peace – is illustrated by arguments purveyed by two leading Israeli cultural lights, Amos Oz and David Grossman.
It is true, of course, that for much of the four and a half decades since the 1967 war, the Palestinians in Judea and Samaria were living in political limbo while there was no movement toward a political settlement; and that even though some 96% now live under the governance of the Palestinian Authority there has been no establishment of a Palestinian state. Moreover, there is no prospect in the near term of such a state emerging as, again, the Palestinian leadership has no interest in negotiations that would require them to recognize the legitimacy of Israel and end the conflict.
But while there is clearly a Palestinian people whose separate political course has yet to be fully resolved, the land itself, beyond what Israel has already ceded through Oslo and has exhibited no interest in reclaiming, remains – once more, in terms of international law – disputed territory. Yet both Oz and Grossman, engaging in a politicized, almost self-parodying version of the pathetic fallacy – the attribution of human qualities to inanimate objects – declare the land of Judea and Samaria as itself Arab and the Jewish presence there a violation of the land’s essential nature.
For Oz, this argument takes the form of such flourishes as – in, for example, his volume The Land of Israel – depicting Palestinian homes and communities in Judea and Samaria as fitting into the landscape, even as being an organic part of the landscape, whereas Israeli houses or villages in the territories do not belong and are scars on the terrain.
Grossman, in The Yellow Wind, mimics Oz’s mindless rhetoric in this vein, insisting that the Israeli presence in Judea and Samaria is a violation of the land; that, for example, “the architecture of [the settlers’] villages is strange to the landscape, proud and overbearing.”
This is the pabulum that the world has been fed over decades by both Israelis and Israel’s enemies.
FOR A recent example of Israelis parroting, or even cheerleading, the attacks of Israel’s enemies vis-à-vis Judea and Samaria, and turning reality on its head in doing so, consider an August 30 Yediot Aharonot op-ed by Oren Yiftachel, identified as a professor of political geography at Ben-Gurion University. The article also illustrates, in its offering as truth blatant falsehoods and in its propagandizing, the debasement of large swathes of Israeli academia.
The piece, entitled “Continued Colonization of Territories Far More Dangerous to Israel than Nuclear Iran,” attacks the Levy Report by ludicrously declaring that the report bases its claims of Jewish rights in Judea and Samaria on the 1917 Balfour Declaration.
Yiftachel does not even mention the League of Nations Mandate or Article 80 of the United Nations charter.
With similar disregard for factual accuracy and intellectual integrity, he also claims that “Israel has expropriated hundreds of thousands of dunams of private Palestinian land” for settlements. This canard, of settlements being built on privately owned land rather than public or state land as Israeli governments of all political stripes have maintained, echoes a dishonest refrain popularized by Peace Now.
Particularly over the past decade, when it could no longer find wide support for its earlier claims that dismantling the settlements and withdrawing essentially to the pre-1967 lines would win peace, Peace Now has increasingly asserted that the settlements must be taken down because they were constructed on land belonging to Palestinians.
But repeatedly, when the ownership issue has been examined, the organization has been forced to retract its claims.
For example, it declared at one point that 85% of Ma’aleh Adumim, the largest of Israel’s West Bank settlements, had been privately owned Palestinian land. When challenged with the relevant documentation, Peace Now amended its claim to 0.5%, acknowledging a 17,000% overstatement.
Even this claim of 0.5% is highly dubious.
In another instance, Peace Now asserted that more than 70% of the settlement of Revava was built on privately owned Arab land. When challenged, it modified its claim to 22%. The settlement sued Peace Now, insisting Revava was built entirely on state lands. The court ruled in favor of the settlement, and Peace Now and the two authors of its report on Revava had to pay a NIS 20,000 fine and publish a retraction of their false claim in major Israeli newspapers.
To cite just one additional falsehood proclaimed by Yiftachel in his August 30 piece, he states that, “according to international law [the Palestinians] are entitled to sovereignty in the West Bank.”
In fact, international law decrees nothing of the sort. According to the relevant international agreements, the Palestinians and the Israelis are both entitled to put forward claims to what is disputed territory, and the conflicting claims are to be resolved by negotiations.
As long as declarations regarding the proper disposition of Judea and Samaria are put forth almost exclusively by Israel’s enemies and those Israelis and Diaspora Jews who largely agree with them, Israel’s legitimate claims can never gain any traction in the court of public opinion. The Levy Report is an important step in widening the public discourse to include the crucial, well-founded and for too long under-represented counternarrative, the narrative of Jewish rights.
Disseminating its findings, forcefully asserting its conclusions, can help move the less bigoted and ill-disposed among Israel’s critics to rethink their anti-Israel predilections, and can help arm those who are predisposed to be supportive of the Jewish state but have been misled by the bombardment of lies and distortions from Israel’s defamers.
Anything short of such an effort is surrender to Israel’s enemies and the enemies of genuine international lawfulness.
The writer is a psychiatrist an