Reading the report of the Levy Commission,
appointed by the Israeli government to study legal aspects of Jewish
settlement construction on the West Bank, is bound to give the vast
majority of international lawyers a rather uncanny feeling. The report
announced decisively pro-settlement conclusions in relation to both
Israeli domestic and international law. These conclusions have by now
been exhaustively analyzed in the press, with its international law dimensions ably dissected by writers such as professors David Kretzmer and Aeyal Gross.
In the following paragraphs, therefore, I will refrain from giving an
overall analysis, and will focus only on those aspects that set it in
the context of legal history. The Commission’s report operates in
something of a parallel legal-historical universe, one in which legal
evolution stopped sometime in the 1920s and in which the majority of
international lawyers writing after that era simply do not exist.
The Commission’s brief international law
analysis consists of an amalgam of a small number of articles written by
firm advocates of the pro-settlement position in the decade or so after
the 1967 war. It particularly draws on arguments first made by Yehuda
Blum, an Israeli legal academic and ambassador to the UN under the first
Likud government, and the late Eugene Rostow, an American legal
academic and government official, whose writings on Israel coincided
with his transformation from liberal Cold Warrior into neo-conservative
hawk.
For my purposes here, two of the report’s
assertions stand out. First, that Israeli rule in the West Bank cannot
be considered an “occupation” in the legal sense because the land was
not conquered from an internationally recognized sovereign (what Blum
calls the “missing reversioner” theory), and that international law
applicable to occupations, including the Geneva Conventions, does not,
therefore, apply. Second, that Jewish settlement activity today is
legally authorized under the 1917 Balfour declaration calling for the
“establishment in Palestine of a national home for the Jewish people;”
the Four-Power 1920 San Remo Resolution that, among other things,
adopted the Balfour Declaration; and the 1922 British League of Nations
Mandate for Palestine. The idea being that the provisions of all these
documents that facilitate Jewish settlement in Mandatory Palestine apply
to the West Bank as long as it has not become legally incorporated into
a recognized State (in Rostow’s terms, as long as it remains an “an
unallocated part of the British Mandate”). The report’s conclusion –
that there is “no doubt that, from the point of view of international
law, the establishment of Jewish settlements in the region of Judea and
Samaria does not suffer from illegality” – actually understates its
case: its logic is that such settlement is strongly encouraged by
international law.
Edmond Levy (left) submits his committee’s report to Benjamin Netanyahu last month (photo credit: Flash90)
The uncanny quality of the Commission’s report
for most international lawyers stems, in the first place, from the fact
that its international legal arguments have virtually no support within
the discipline, beyond the narrow circles of former or present Israeli
government officials and a handful of non-Israeli Jews associated with
staunchly right-wing views on Israel. It would not be an exaggeration to
say that at least 90% of international lawyers – including the
International Court of Justice – firmly reject the position that the
report announces as representing the “point of view of international
law.” Of course, one can argue that the overwhelming majority of
international lawyers are wrong, either legally or morally or both. But
it is odd, to say the least, to declare a position the “point of view of
international law” without even bothering to mention that all but a
handful of international lawyers, and all states but Israel, reject it.
The oddity of this would be true in any discipline, but even more so in
international law, where “legal opinion,” known to lawyers under the
Latin phrase “opinio juris,” plays such a large role in the
determination of legal rules. It is as though the Commission were
operating in an alternative legal universe, populated only by a handful
of pro-settler lawyers. Although the report does describe the
anti-settlement legal arguments, it attributes them to a few Israeli
human rights organizations and makes no mention of the extreme
marginality of its own views within the discipline of international law.
But the uncanniness of the report does not
stop with the Commission’s ostensible unawareness or indifference to its
own marginality. Rather, it goes to the substance of the positions it
embraces. The notion that there is no “occupation” due to the absence of
a recognized pre-occupation sovereign (the “missing reversioner”), and
that Jewish settlement in the West Bank is legally justified by a string
of early 20th century documents, suggests that the report is
operating in a parallel temporal universe – much in the way that its
seeming ignorance of the quasi-consensus of legal opinion against its
views suggests that it is operating in a parallel disciplinary universe.
I note, first, that the three documents it cites are of variable legal
significance. The Balfour Declaration, however much it inspired hope
among many Zionists, was simply of no legal significance; it was a
statement of British policy in relation to territory over which, at the
time, it had neither control nor any legal claim. The San Remo
Resolution was adopted by four of the victorious States of World War I —
Britain, France, Italy, and Japan — and announced their intentions with
regard to the breakup of the Ottoman Empire, including the placing of
Palestine under a British Mandate. The Resolution, however, was not a
treaty and not formally binding; it was a statement of intent by its
signatories to embody its conclusions in a treaty. It was also the
culmination of a set of secret meetings undertaken during the war by the
two major colonial powers of the period — the British and French
empires — to divide up the Ottoman Empire between them.
By contrast, the Mandate instrument granting
Palestine to British rule, obliging the British to pursue the goals of
establishing a “national home for the Jewish people,” and encouraging
“close settlement by Jews on the land,” was a clearly legally binding
international treaty. The ultimate basis for the Palestine Mandate was
the Covenant of the League of Nations, which provided for Mandatory rule
over territories of the empires defeated in World War I inhabited by
“peoples not yet ready to stand up under the strenuous conditions of the
modern world.”
The history whose broad outlines I have just
recited has given rise to interminable debates over the intentions of
the imperial states that were its agents. I do not intend here to engage
those debates, but rather to note that what has developed in
international law in the intervening century has been precisely a
powerful current rejecting the notion that the interests and intentions
of powerful states are the alpha and omega of legal analysis. The two
key principles of this current – the self-determination of peoples and
the human rights of individuals – have considerably diminished the legal
import of minute analyses of imperial memoranda and pronouncements.
Rather, this current has elaborated the principle articulated by Woodrow
Wilson in 1918 that “peoples and provinces are not to be bartered about
from sovereignty to sovereignty as if they were mere chattels and pawns
in a game.” This current ultimately led to the delegitimation of
classical colonialism and the emergence of the view, expressed by a
judge of the International Court of Justice, that institutions such as
the League Mandate system were “forms disguising, by means of a verbal
fiction, a colonialist practice and doctrine, the unlawfulness of which
has been stigmatized at the United Nations.”
These developments make the Commission’s
reliance on the Blum/Rostow line of argumentation very puzzling. As to
the notion that the Fourth Geneva Conventions’ protections for civilians
in occupied territory do not apply because the territories were not
conquered from a legally recognized sovereign: this argument relies on
the outdated notions that the absence of a legally recognized sovereign
means that a territory is essentially up for grabs from a legal point of
view. It ignores the legal consensus that emerged gradually over the
past century, but particularly since 1960, for which the absence of a
legally recognized sovereign means that the principle of
self-determination of the inhabitants should be the decisive
consideration in deciding the disposition of the territory. This
principle has been clearly declared by the International Court of
Justice in decisions such as those in the 1971 Namibia case, the 1975
Western Sahara case, the 1995 East Timor case, and the 2004 Israeli Wall
case.
Moreover, the notion that the Geneva Conventions’ protections are
based solely on the rights of a sovereign ousted from the territory by
the occupant – rather than on the inherent rights of the human beings
resident on that territory – was firmly rejected by tribunals such as
the International Tribunal for Yugoslavia in its 1995 Tadic opinion.
Turning to the Rostow-inspired argument that
the Mandate’s provisions for “close settlement” have survived the demise
of the League of Nations, the end of the Mandate system, and the
establishment of the State of Israel: this argument ignores, in the
first place, the venerable legal doctrine that a change in circumstances
– known to international lawyers as “rebus sic stantibus,” can
nullify a treaty provision. It is hard to think of a clearer case for
the application of this doctrine than here. The policy of encouraging
“close settlement of Jews” was aimed at furthering the establishment of a
“national home” and can hardly be relevant when not only a “national
home” has been established, but an internationally recognized state, a
UN member for 64 years.
A
Jewish settler walks up the hill, at the Yeshuv Hada’at Jewish outpost
near Shilo in the West Bank (photo credit: Kobi Gideon/Flash90)
But the “change of circumstances” goes more
deeply, to the core legal values at stake. The Mandate system, based on
the racially paternalist, if not simply racist, notion of “peoples not
yet ready to stand up under the strenuous conditions of the modern
world,” cannot be used today to deem the wishes of a population to be of
no legal weight. On the contrary, current international law requires
that, to the extent that the Mandate system continues to be relevant to a
particular territory, it must be reinterpreted to dictate the
implementation of self-determination for the population. As the
International Court of Justice stated in its 1971 Namibia opinion,
referring to territories formerly under League Mandate, “the subsequent
development of international law in regard to non-self-governing
territories, as enshrined in the Charter of the United Nations, made the
principle of self-determination applicable to all of them.” It is the
Levy Commission’s seeming ignorance of such decisive legal developments
which enables it to have recourse to such dusty artifacts of imperial
history as the San Remo Resolution.
Short of the theorem of “parallel universes,”
how can one explain the relatively recent new wave of resurrections by
pro-settler publicists of documents like San Remo? I offer one
speculative suggestion: it is the legal equivalent of the pro-settler
placards, placed within the Green Line in the ’90s, declaring, “Yesha zeh kan”
(“Judea, Samaria and Gaza are here”). Those signs aimed at asserting
that the legitimacy of Jewish settlement in the occupied territories is
no different from the legitimacy of the Jewish presence within the
borders of the State of Israel. It is a rather high-risk slogan, for its
contention that the State of Israel is no more and no less legitimate
than the most remote “illegal outpost” on a hilltop near Nablus risks
convincing some that the State of Israel is, indeed, illegitimate. It is
thus something of a slogan of desperation, for it is willing to gamble
the State of Israel as such on the survival of the settlement project in
all its manifestations. It seeks to convince all Zionists that the only
Zionism is pro-settler Zionism.
The resurrection of documents such as the San
Remo Resolution seems to proceed from a similar desperation: in an era
in which many critics of the settlements are, rightly or wrongly, using
the labels of “colonialism” or even “apartheid” to describe them,
pro-settler lawyers have begun arguing anew that the legitimacy of the
State of Israel as a whole rests on colonial-era documents such as the
San Remo Resolution and the Mandate system. If you condemn colonialism
when it takes the form of the occupation, they seem to be arguing, then
you must condemn colonialism when it took the form of the international
legal and diplomatic actions that led to the establishment of the State
of Israel. This strategy, like the “Yesha zeh kan” strategy, seeks to convince all Zionists that the only Zionism is pro-settler, indeed colonial, Zionism. “San Remo zeh kan”
– “San Remo is here.” To which those who support progressive forms of
Zionism must firmly articulate their very different vision with the
evocative Hebrew version of “Heaven forbid”: “Chas ve-Shalom” – compassion and Peace.
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