by Dror Eydar
1. Justice Edmond Levy
did not come from the old elite. His biography and life path were
different, as was his choice to live and in Ramla and be buried there
after he died. From his early job as a tea server in court, he reached
the position of Supreme Court justice. Throughout his career, not once
did he bow down to or efface himself before the stars of the legal
system or people in power. He obeyed the command Moses gave in the book
of Deuteronomy: "Do not show partiality in judging: hear both small and
great alike. Do not be afraid of anyone, for judgment belongs to God."
Our sages interpreted the phrase "Do not be afraid of anyone" as meaning
"Do not cover over your words for fear of anyone."
When Levy was appointed
a justice of the Supreme Court, the chattering classes reminded us of
his "sin" in having grown up in Ramla. But he saw that as an advantage. A
man from "the other Israel," he always knew where he had come from,
where he was going and before whom he would one day have to render an
accounting. His profound relationship with the other Israel led him wage
an uncompromising war against public corruption. He knew that wealthy,
well-connected people would always do well, while the main victims of
corruption -- ordinary citizens, some of whom were of limited means --
would continue to suffer from it unless the legal system helped them.
Levy also set an
example regarding the legal system's automatism in relation to our
lives' fundamental truths. As someone who had immigrated from Iraq at 10
years of age, he never forgot the miracle of Israel's existence as the
only home for the world's Jews or the miracle of the return to Zion
despite enormous obstacles. With simplicity and depth, he countered the
security-related discourse that had taken over all public and
international debate with the Jewish people's rights to their ancient
homeland. He spoke not only of our historical and religious rights to
the land, but also, and mainly -- as part of his long career as a judge
-- of our legal rights to it.
Shortly after his
retirement from the Supreme Court bench, Levy was appointed to head a
committee that was to examine the legal status of construction in Judea
and Samaria. The committee's full report, which was published in July
2012, may be seen as testament of Levy, a man of justice and truth whose
personal integrity mattered to him more than anything else.
It is important to read
the historical-legal background contained in the report. It is the key
to supporting the justice of our argument before the international
community. Levy's well-supported, justified explanation utterly
disproved the widespread view of Israel as a "foreign military occupier"
in Judea and Samaria, with its erroneous corollary that the settlements
established there were illegal.
2. "Having considered
the approaches presented before us [from the Left and from the Right],
we think a reasonable interpretation of the standard term of
'occupation,' with all the obligations arising from it, in the
provisions of international law is intended to apply for short periods
of occupation of a territory of a sovereign state until the end of the
conflict between the parties and the return of the land or any other
negotiated agreement regarding it."
"But the Israeli
presence in Judea and Samaria is significantly different: the possession
of the territory continues for many decades, and no one can predict its
end, if at all; the territory was conquered from a state (the Kingdom
of Jordan) whose sovereignty over the territory has never been firmly
legalized, and in the meantime it even renounced its claim of
sovereignty; the State of Israel claims sovereign rights to the
territory."
The widespread claim is
that the settlements "violate" the Fourth Geneva Convention,
particularly Article 49, which states: "The Occupying Power shall not
deport or transfer parts of its own civilian population into the
territory it occupies." But according to the authoritative
interpretation of the International Committee of the Red Cross, which is
responsible for implementing the convention, the purpose of this
article is "intended to prevent a practice adopted during the Second
World War by certain Powers, which transferred portions of their own
population to occupied territory for political and racial reasons or in
order, as they claimed, to colonize those territories. Such transfers
worsened the economic situation of the native population and endangered
their separate existence as a race." In other words, Article 49 refers
to the forcible exile or expulsion by the occupying power of its own
population into the occupied territory, as happened to tens of millions
of people in Europe.
In 1990, Professor
Eugene V. Rostow, the dean of Yale Law School, pointed out that the
Fourth Geneva Convention prohibited "many of the inhumane practices of
the Nazis and the Soviet Union during and before the Second World War --
the mass transfer of people into and out of occupied territories for
purposes of extermination, slave labor or colonization, for example."
Nevertheless, "the Jewish settlers in the West Bank are most
emphatically volunteers. They have not been 'deported' or 'transferred'
to the area by the Government of Israel, and their movement involves
none of the atrocious purposes or harmful effects on the existing
population it is the goal of the Geneva Convention to prevent." Indeed,
Levy wrote that those who settled in Judea and Samaria were under no
compulsion, but did so because of their belief in the principle of
settling the Land of Israel.
3. Here the report
begins a comprehensive historical survey based on the region's status in
international law. First, from the Balfour Declaration of November
1917: "His Majesty's Government view with favour the establishment in
Palestine of a national home for the Jewish people...." Later, its
confirmation and expansion in the San Remo conference of April 1920:
"The Mandatory will be responsible for putting into effect the
declaration originally made on November 2nd, 1917, by the British
Government, and adopted by the other Allied Powers, in favour of the
establishment in Palestine of a national home for the Jewish people, it
being clearly understood that nothing shall be done which may prejudice
the civil and religious rights of existing non-Jewish communities in
Palestine, or the rights and political status enjoyed by Jews in any
other country."
This was followed by
the Mandate for Palestine, ratified by the League of Nations in August
1922: "Whereas recognition has been given to the historical connection
of the Jewish people with Palestine and to the grounds for
reconstituting their national home in that country." These statements
were confirmed once again in the Charter of the United Nations in 1945.
The Levy report resumes:
"In November 1947 the
General Assembly adopted the United Nations committee's recommendation
to divide the Land of Israel west of the Jordan River into two states:
one Arab and one Jewish.
"But the plan was never
implemented, and therefore was not binding under international law,
since the Arab states rejected it and started a war to prevent its
implementation and the establishment of a Jewish state.
"Nevertheless, in April
1950, Jordan annexed the West Bank, unlike Egypt, which has never
claimed sovereignty over the Gaza Strip.
"However, Jordan's
annexation was not accepted on any legal basis, and most Arab countries
opposed it, until 1988 when Jordan renounced its claim to the territory.
"Thus the original
legal status of the territory was restored, namely, a territory
designated as a national home for the Jewish people, who had a 'right of
possession' to it during Jordanian rule while they were absent from the
territory for several years due to a war imposed on them, and have now
returned to it.
"Together with the
international commitment to govern the territory and ensure the rights
of the local population and public order, Israel also had the full right
to claim sovereignty over these territories, and all Israeli
governments believed so, but they chose not to annex them and take a
pragmatic approach in order to allow for peace negotiations with
representatives of the Palestinian people and the Arab states.
"Israel therefore did
not see itself as an occupying power in the classical sense of the word,
and so never saw itself committed to the Forth Geneva Convention in
relation to Judea, Samaria and Gaza."
The Levy report
concludes: "In light of the aforesaid, we have no doubt that from the
perspective of international law, the establishment of Jewish
settlements in Judea and Samaria is legal, and therefore we can proceed
to discussing this question from the perspective of domestic law."
This is where the starting point
of any negotiation with our neighbors and with the world should be.
Israel is no "occupier" in the heart of its own homeland. At worst,
these are disputed territories held by Israel. We claim ownership of all
the land on the basis of our historic, religious and legal rights to
it.
Dror Eydar
Source: http://www.israelhayom.com/site/newsletter_opinion.php?id=7697
Copyright - Original materials copyright (c) by the authors.
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