A settlement in East Jerusalem. Photo by Emil Salman
A report by a committee formed by Prime Minister Benjamin Netanyahu to examine the legal aspects of West Bank land ownership recommended to sanction all Israeli outposts, rejecting the claim that Israel’s presence in the territory is that of an occupying force.
The Levy Committee, headed by former court vice president Edmond Levy, recommends a fundamental change in the legal regime in the West Bank, including the annulment of a long list of laws, High Court of Justice Rulings and procedures in order to permit Jews to settle in all of Judea and Samaria.
The report has been submitted to Prime Minister Benjamin Netanyahu, who is considering how to respond. The committee was comprised of Levy, retired Tel Aviv District Court Judge Tchia Shapira, and attorney Alan Baker, an expert in international law.
The committee was set up in January following pressure by settlement leaders to produce a legal report in response to the report submitted by Talia Sasson in 2005 on illegal outposts that had been commissioned by then Prime Minister Ariel Sharon.
The convening of the Levy Committee came following a lengthy dispute between Netanyahu and Attorney General Yehuda Weinstein, who saw the convening of the committee as undermining his authority. In the end, the committee was convened as an advisory committee. It was also decided that all its recommendations would be accepted subject to Weinstein’s review and approval.
A considerable portion of the Levy Report deals with refuting the conclusions of the Sasson Report, which dealt with construction from the 1990s and onward of neighborhoods and outposts on government land, with the encouragement of certain government elements but without building permits or official government approval.
While the Sasson Report described the steps taken at that time as a type of conspiracy between certain government elements and settlement leaders that resulted in illegal construction, the Levy Committee avers that government encouragement of any construction conferred an “administrative assurance,” even if there were no legal and official permits issued.
The Levy Committee reviewed the testimonies submitted to Sasson, and stated that given the continuous and consistent government activity in their favor, the settlers had reason to believe they were acting with permission.
“Thus they [the settlers] had an administrative assurance to settle in a place, an assurance that cannot be violated. The argument heard from the government, that the building of these communities was done illegally, even though it, itself, was encouraging the construction on the one hand while freezing planning processes on the other, is behavior characterized by lack a of good faith of utmost seriousness. “
The committee recommends legalizing all the outposts even without a retroactive government decision, and to do so as follows: To issue an order delineating the settlement and designating the adjacent areas as needed to accommodate natural growth; to cancel the need to get permission from the political echelons for every single stage in the planning process, and to not implement demolition orders that have already been issued.
The panel also recommended renewing the Jordanian land registry arrangements that Israel halted in 1967, and to once again allow landowners to register land in the West Bank under their own names. Israel had suspended this arrangement after the Six Day War out of a desire to protect the land rights of the many Palestinians who had presumably fled to Jordan during the war, and because at that point the Israeli occupation was thought to be temporary.
The committee believes that this situation is no longer suitable, and that the Jews who settled these lands should be allowed to register their rights to them within four-five years. The panel also recommends canceling the order from 1967 that requires a permit from the Civil Administration for every land transaction, and to change the Jordanian law that allows only Jordanian residents or corporations in the area to buy land. The panel also recommends opening the Land Registry in the area to public review.
The committee also recommends the cancelation of the “bothersome use order” that allows the head of the Civil Administration to force settler-farmers off ostensibly Palestinian land, even if there is no Palestinian complainant. The settlers pressed hard to have this order revoked, and Levy accepted their position, saying the order was “draconian,” and that “its existence cannot be accepted, even if it is explained by the need to maintain public order.”
Levy believes that these are land disputes that the state should not involve itself in, but that should be sorted out before the courts. The committee, in fact, recommends setting up a special court to deal with land disputes in the West Bank. The panel also makes a rather strange recommendation – to broaden the authority of district courts to hear such disputes. But the district courts already have that authority, as evidenced by the dozens of proceedings they’ve heard on such issues.
Regarding outposts built on private Palestinian land, the committee states that there is an alternative to demolishing them, namely paying compensation to the landowners, in cases where the construction was done in good faith. The panel also recommends that the state decide on its position only after there have been court proceedings to determine the status of the land.
One of the committee’s most far-reaching recommendations is to annul the High Court of Justice decision of 1979 that forbids the expropriation of land for “military needs” when the intent is to build settlements. Since that decision, the authorities have forbidden construction on land seized by the army. The panel recommends canceling this regulation and allowing construction to proceed freely on such land. If the land is outside the jurisdiction of any specific town or city, construction should be allowed on it subject to the opinion of the security authorities.
With regard to Israel’s legal status in the West Bank, the Levy Committee declared that Israel is not an occupying power. The panel arrived at that conclusion after considering two conflicting legal approaches on the question.
The first approach, presented by elements generally identified with the left, holds that Judea and Samaria are “occupied territories” under international law, ever since they were captured from the Jordanian kingdom in 1967.
According to this approach, as a military occupier, Israel is subject to international restrictions governing occupation, first and foremost the Hague Regulations with regard to the laws and customs of ground warfare, and the Fourth Geneva Convention with regard to protecting civilian populations in times of war.
Under these covenants, an occupier must manage the area and maintain order while taking care of its security needs and the needs of the civilian population until the occupation ends. There is a prohibition against damaging private property, and the occupier is also banned from moving any of its own population to settle in the occupied area.
The committee also heard conflicting legal opinions, submitted by elements identified with the right, such as the Regavim movement and the Binyamin Regional Council. They presented the position that because Judea and Samaria were never a legitimate part of any Arab state, including Jordan, Israel is not an occupying power.
As such, the conventions dealing with management of occupied territories and their populations are not relevant to Israel’s presence in Judea and Samaria.
With regard to the Geneva Convention and its Section 49, which forbids an occupier from transferring any of its population to settle in the occupied area, the right-wing groups argued that this section was formulated after World War II and was aimed at preventing the forced transfer of populations, a situation that isn’t relevant to Judea and Samaria.
Members of the panel accepted the legal opinion presented by the right. They explained that the generally accepted concept of occupation relates to short periods in which territory is captured from a sovereign state until the dispute between the two sides is resolved. But Judea and Samaria have been under Israeli control for decades, and it is impossible to foresee a time when Israel will relinquish these territories, if ever.
The panel also stated that while the territory was captured from the Jordanian kingdom, Jordan’s sovereignty in those areas was never based on solid legal grounds. Most Arab states opposed Jordan’s seizing of the area after the war in 1948, and meanwhile Jordan has also withdrawn its claims to sovereignty in those areas.
Members of the panel accepted the opinion that Section 49 of the Geneva Convention was aimed at providing a response to the difficult realities imposed on some countries during World War II, when their populations were exiled and forcibly transferred to occupied areas.