By: Morton A. Klein
July 13, 2012

Major Israeli Legal Commission Report: Jewish Communities in Judea/Samaria Are Legal

knesset

ZOA Praises/Endorses New Report

The Zionist Organization of America (ZOA) has praised and endorsed the Report produced by an Israeli legal commission under the chairmanship of retired Israeli Supreme Court Justice Edmund Levy that has affirmed the legality of Jewish communities in Judea and Samaria (and in Gaza, from which Jewish communities were forcibly uprooted by the government of Ariel Sharon in 2005, which the ZOA, alone among major American Jewish organizations, warned against and opposed). The ZOA is proud to note that the Levy Commission Report affirms the positions that the ZOA has taken over the years. We support Israeli Knesset Member Tzipi Hovotely in her quest to have the Report’s conclusions adopted by the Knesset.

Main conclusions of the Levy Report:

“… from the point of view of international law, the classical laws of ‘occupation’ as set out in the relevant international conventions cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria spanning over decades.”

“ … the provisions of the 1949 Fourth Geneva Convention, regarding transfer of populations, cannot be considered to be applicable and were never intended to apply to the type of settlement activity carried out by Israel in Judea and Samaria.”

“Therefore, according to International law, Israelis have the legal right to settle in Judea and Samaria and the establishment of settlements cannot, in and of itself, be considered to be illegal.”

“Any new settlement in Judea and Samaria will be established only following a decision by the government or by a duly empowered ministerial committee. Construction within the bounds of an existing or future settlement will not require government or ministerial decision, but such construction must be approved by the planning and zoning authorities after they have ascertained that the proposed construction is not contrary to the approved town/area plan applicable to the land in question.”

“Extension of an existing settlement beyond the area of its jurisdiction or beyond the area set out in the existing town plan, will require a decision by the Minister of Defense with the knowledge of the Prime Minister, prior to any of the following stages: commencement of planning and actual commencement of construction.”

“With regard to settlements established in Judea and Samaria on state lands or on land purchased by Israelis with the assistance of official authorities such as the World Zionist Organization Settlements Division and the Ministry of Housing, and which have been defined as “unauthorized” or “illegal” due to the fact that they were established without any formal government decision, our conclusion is that the establishment of such settlements was carried out with the knowledge, encouragement and tacit agreement of the most senior political level – government ministers and the Prime Minister, and therefore such conduct is to be seen as implied agreement.”

“Regarding these settlements, as well as those established pursuant to a government. decision but lacking definition of their municipal jurisdiction, or without having completed the planning and zoning procedures, and as a result, have been described as “unauthorized” or “illegal” … The area of municipal jurisdiction of each settlement, if not yet determined, must be determined by order, taking into due consideration future natural growth …The administrative blockages imposed on the planning and zoning authorities must be removed immediately … Pending completion of those proceedings and examination of the possibility of granting valid building permits, the state is advised to avoid carrying out demolition orders, since it brought about the present situation by itself … all the settlements, including those approved pursuant to this proposed framework, may in the future, extend their boundaries in order to respond to their needs, including natural growth, without the need for additional government or ministerial decision, as long as the proposed extension is located within the jurisdiction of the settlement, within its boundaries as set out in the approved town plan, and has received due approval from the planning and zoning authorities.”

“Settlements established wholly or partially on land that is subject to examination as to whether it is public or private land (“seker”), are to be considered settlements whose legal status is pending. Most of these were established years ago, and it is thus necessary to accelerate the slow examination process (“seker” ) in all areas of Judea and Samaria, and to complete it within a fixed time period, and to this end, even consider, utilizing assistance by external bodies.”

“In the event of conflicting claimants to land, it would be appropriate to adopt a policy whereby prior to any determination by the state regarding petitions for eviction or demolition, a thorough examination of the conflicting claims be conducted by a judicial tribunal dealing with land issues… Pending such determination, state authorities should be instructed to avoid taking any position in land conflicts and carrying out irreversible measures, such as eviction or demolition of buildings on the property … To this end and with a view to facilitate accessibility by local residents to judicial tribunals, we suggest the establishment of courts for the adjudication of land disputes in Judea and Samaria, or alternatively, extending the jurisdiction of district court judges in order to enable them to handle in their courts, land disputes in Judea and Samaria.”

“Security legislation must be amended to enable Israelis to purchase land in Judea and Samaria directly, and not only through a corporation registered in the area. We also recommend that the procedures for “Primary Registration” of land rights be accelerated and completed within a reasonable and fixed time period.”

“The Civil Administration should be instructed that there is no prohibition whatsoever on additional construction within the bounds of a settlement built on land initially seized by military order” (‘Conclusions and Recommendations: The Commission to Examine the Status of Building in Judea and Samaria,’ July 10, 2012).

ZOA National President Morton A. Klein said, “We praise and endorse the Levy Commission Report and support Israeli lawmaker Tzipi Hovotely in her quest to have the Report’s conclusions adopted by the Knesset.

“The Levy Report is an important and timely document. Not because it tells us something that was not known before – the legality of Jewish settlement in Judea and Samaria, as in any other part of the territory earmarked for Jewish settlement by the 1920 San Remo Conference, is a known but ignored fact. (Indeed, the ZOA has frequently pointed out that the San Remo decision has never been superseded by any subsequent, internationally-binding agreement).

“Rather, it is important that a respected legal commission under the chairmanship of one of the Supreme Court’s retired justices has both reaffirmed this truth as well as making recommendations for avoiding in the future the complications and arbitrary procedures whereby Jewish life and construction in Judea and Samaria have become unnecessarily fraught. This situation has helped contribute to the utterly false notion that Jewish communities in Judea and Samaria are both illegal and an obstacle to peace.

“Jewish growth in Judea and Samaria and eastern Jerusalem has a fundamental legitimacy and poses no obstacle to a true peace if Palestinians are ready for one, so the repeated, periodic international calls for a Jewish construction freeze, or even the removal of Jewish communities, would remain inappropriate even if the prospect of genuine peace negotiations with a truly peaceful Palestinian partner were possible.

“Why may not 300,000 Jews live among 2 million Arabs in Judea and Samaria while 1.2 million Arabs live among 6 million Jews in Israel? No peace can be built on the notion that the biblical, historical and religious heartland of the Jewish people, or any territory for that matter, must be judenrein. For anyone to say that no Jews should live in these territories simply because they are Jews is to endorse a racist, anti-Semitic policy.

“If Palestinians cannot accept a Jewish presence in any future Palestinian state that might ever emerge, then that fact itself is indication enough that they are not prepared to live in peace with Israel. Who is prepared to argue that a people that resolutely insists on throwing all Jews out of their country, that criminalizes the sale of land to Jews and that lynches those deemed guilty of ‘collaborating’ with Israel by having sold land to Jews is actually ready to live in peace alongside the Jewish state of Israel?”

“We also must recall that there were no Jews in these territories when they were under illegal Jordanian occupation (1948-67), yet there was no peace and no Arab acceptance of Israel. To the contrary, there were three major wars – in 1948, 1956 and 1967 – as well as sometimes continuous terrorist assaults from both Egyptian-controlled Gaza and from Jordan. The territory in question is unallocated territory under international law and did not belong to the unlawful occupiers, Jordan and Egypt, from whom Israel captured Judea /Samaria and Gaza respectively in a war of self-defense. Only two Jordanian allies, Britain and Pakistan, recognized Jordan’s unlawful annexation of Judea and Samaria and even Jordan’s King Hussein officially rescinded his claim to the territory in 1988.

“We are also pleased that the false, indeed malicious, claim that Jewish settlement and construction beyond the 1949 armistice lines violates the Fourth Geneva Convention has been specifically repudiated. This is the fraudulent basis on which Jewish communities in Judea and Samaria have been called ‘illegal.’

Article 49 of the Fourth Geneva Convention prohibits ‘Individual or mass forcible transfers … to the territory of the Occupying Power or to that of any other country, occupied or not … The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’ Clearly, this has no bearing on the legality of Jewish communities in the West Bank. Palestinians are not being deported or forcibly transferred from the Judea and Samaria to another territory. And Jews are not being deported or forcibly transferred from Israel to Judea and Samaria. They are moving there freely of their own will.

“Add to that the commonsensical consideration that there can be no valid law that prohibits Jews, and only Jews, because they Jews, from living somewhere, least of all in the Jewish biblical and historical heartland.”