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.
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