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Oliver Javanpour

Olivor Javanpour: Dispelling Occupation Myth & Reaffirming Israel’s Legal Rights to Judea and Samaria

by Oliver Javanpour, Jan 15, 2012

The Levy Report, published on July 9th, 2012, concludes, among other things, that: “According to international law, Israelis have the legal right to settle in Judea and Samaria and that establishment of settlements cannot, in and of itself, be considered illegal”. In another conclusion it states: "the classical laws of 'occupation' as set out in the relevant international conventions cannot be considered applicable to … Israel's presence in Judea and Samaria."

 The report has struck a sour note with many, including the obvious critics of its conclusions: the Palestinians and all those on the left who question the very existence of Israel. However, there are some unexpected critics. Some American Jews are concerned with the report’s narrative, albeit legally correct. Needless to say, the Obama administration was not so keen on the report either, seeing it as a tool to legitimize the settlements in the West Bank.

 The three-person Blue Ribbon Panel, led by former Israeli Supreme Court Justice Edmund Levy, had a Canadian connection. Alan Baker, former Israeli Ambassador to Canada and an international law expert, was one of the three members of the panel. The panel was appointed by Prime Minister Binyamin Netanyahu in late January 2012 to investigate the legal status of West Bank Jewish settlements, which have become a lightening rod for the Obama administration and all those who pride themselves on delegitimizing Israel by any means possible.

 The panel carefully examined Israel’s presence in the West Bank under international law and in accordance with the Fourth Geneva Convention, which deals with occupation and territories occupied by an occupying force. Not only did the Panel find no legal basis for denying Israel’s claims, but also found that Israel has an undeniable historic and legal right to settle within the West Bank under international law.

 The panel clearly details and uncovers the legal basis for such findings, including the lack of a previously recognized sovereign in Judea and Samaria prior to 1967’s six-day-war, in which the area was captured from the Jordanians. Jordan had annexed it in 1950, but there was no recognition of Jordanian sovereignty and Jordan abandoned any claims to the area as of 1988. It is also important to note that when there is no Palestinian state, it cannot be occupied. But we mustn’t let too much legal detail to get in the way of eager delegitimizers who relentlessly misrepresent the term “Occupation”. It is, regretfully, a term loved and used inaccurately by many, including well-meaning Jews who neither appreciate nor comprehend its significance and the long term impact of this term on the global psyche.

 We also need to remember that the matter of occupation was well argued on October 26, 1977 by Israel's former ambassador to the U.N., Chaim Herzog, in the UN General Assembly: "Israel cannot be considered an 'Occupying Power' within the meaning of the Convention in any part of the former Palestine Mandate, including Judea and Samaria."

 While the report won’t change the Palestinian discourse or the opinions of those who work persistently to delegitimize Israel across the planet, it reiterates the legal framework around the settlements and for Israel’s legal right to be there.

 The report has stirred the American diaspora’s sensitivities, prompting some to want to keep their distance from the findings. An open letter to Prime Minister Benjamin Netanyahu, written by over 40 prominent Jewish leaders in the United States and posted on Israel Policy Forum states: “As strong advocates for Israel’s security and well-being as a Jewish and democratic state, we are deeply concerned about the recent findings of the government commission led by Supreme Court Jurist (Ret.) Edmund Levy. We fear that if approved, this report will place the two-state solution, and the prestige of Israel as a democratic member of the international community, in peril.”

 Some Israeli papers and commentators claim that the report was a misadventure on Mr. Netanyahu’s part and was intended to remove constant pressures felt from the settlers. It may, however, have accidently set a collision course with the diaspora, especially American Jews and the Obama Administration. Others speculate that the report was a strategic move on the part of the Israeli Government to apply reverse pressure on the Obama Administration to reach a deal on Iran and a substantive push for Americans to bring the Palestinians to the table. Others attribute the long list of defense-related gifts that the U.S. administration is willing to offer, including 20 F-35s to Israel in exchange for three months of construction freeze in the settlements, is an American strategic response to the Report. Finally, there are speculators who believe Prime Minister Netanyahu is sweeping the report under the carpet for some or all the reasons mentioned above. There are signs that the English copies of sections of the report have been removed from the government website. The Hebrew version was just removed as I started writing this article. I’m not one to speculate or put any value on such speculation, however, it is clear that the report has achieved more than it set out to accomplish.

 While the report is legal advice to the cabinet and reiterates Israel’s legal standing, it certainly leaves the political decision-making to the cabinet. There are nuances found in the report that are more precise in terms of an operational framework for managing existing settlements and their natural growth, while leaving the decisions on new settlements in Judea and Samaria to the government.

 The report reaffirms Israel’s legal right to Judea and Samaria and sets in place a defined operational framework. It can’t, however, be expected to be the tool for dealing with the delegitimizers. They will continue their discourse regarding Israel as an occupier. Certainly, the report hasn’t garnered a positive response from the Palestinian authority and those Palestinian intellectuals who have steadfastly prevented a peaceful resolution with the Israelis time and again. Perhaps a second look with a different lens may identify some of the nuances found in the report that could help them at the negotiating table.

 Mr. Javanpour is a Senior Partner at Cyrus Echo a public policy, and international relations consulting firm in Ottawa.

This article first appeared in the Ottawa Jewish Bulletin. 

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