Daniel Gordis and the Prestige of Israel

Last month, a panel of three Israeli legal experts (former Supreme Court Judge Edmond Levy, former District Judge Tchia Shapira, and the former legal advisor of Israel’s Foreign Ministry Alan Baker) submitted to the Prime Minister and to the Minister of Justice a “Report on the Status of Building Activities in Judea and Samaria” (the “Levy Report”).  The report was immediately condemned by the US State Department whose spokesman, Patrick Ventrell, declared: “We do not accept the legitimacy of continued Israeli settlement activity and we oppose any effort to legalize settlement outposts.”

Less expected was the condemnation coming from mainstream North American Jewish leaders.  In a letter to Prime Minister Netanyahu, those leaders expressed concern “about the recent findings of government commission led by Supreme Court Justice (Ret.) Edmond Levy.”  They went as far as to claim that the endorsement of the Levy Report by the Israeli government would place the “prestige of Israel as a democratic member of the international community in peril.”  The letter was noticeably signed by Shalem Foundation President Daniel Gordis.

I found it hard to believe that a report whose purpose was to analyze the legal status of Israeli buildings beyond the armistice lines of 1949 would, if officially endorsed, imperil the “prestige of Israel as a democratic member of the international community.”  So I read it.

The three authors clarify (on Page 2) that their report does not constitute an opinion on the wisdom (or lack thereof) of Israel’s settlement activity.  Indeed, the report quotes testimonies from experts and organizations from all sides of the political spectrum (including “Peace Now,” “Betslem,” “Yesh Din” and “Addalah”). 

The Levy Report only repeats a legal opinion that has been known for decades and expressed many times in the past (including by Israel’s Foreign Ministry) regarding the legal status of Judea and Samaria.  This opinion states that Judea and Samaria cannot be defined as “occupied” in international law, since a territory is occupied only if it has been conquered from a recognized sovereign country.  Judea and Samaria were not a sovereign country or part of a sovereign country when Israel conquered that territory in June 1967.

Judea and Samaria were part of the British Mandate until May 1948.  During Israel’s War of Independence, those areas were conquered by Jordan in a war of aggression.  Jordan annexed (in April 1950) the territories it had conquered west of the Jordan River, but this annexation was never recognized by the international community (with the exception of Britain and Pakistan).  Jordan itself waived its sovereignty claims over Judea and Samaria in 1988.  So the 1949 Fourth Geneva Convention does not apply to Judea and Samaria, even though Israel has been respecting the Convention de facto since 1967.    

When Israel conquered Judea and Samaria in June 1967, it lawfully recovered (in an act of self-defense) a territory that had been granted exclusively to the Jewish People for self-determination by the Balfour Declaration (1917), by the San Remo Conference and by the Treaty of Sèvres (1920), by the League of Nations Mandate for Palestine (1922) –a mandate that was confirmed by the UN Charter (1945). 

Claiming that Israel’s civilian presence in Judea and Samaria is “illegitimate” (as President Obama said in his Cairo Speech in June 2009) is historically absurd.  Claiming that it is illegal is factually wrong.

Many Israelis, however, claim that their fellow-citizens’ presence in Judea and Samaria is both illegitimate and illegal.  In 2005, a report was submitted to then-Prime Minister Ariel Sharon by Attorney Talia Sasson.  Sasson is hardy an apolitical figure: she ran for Knesset in 2008 as a Meretz candidate, is a board member of the New Israel Fund and of “Yesh Din,” and was among the initiators of the “Geneva Initiative.”  She has called Israeli settlements in Judea and Samaria a “cancer.”

Talia Sasson’s report listed what she defined as “unauthorized outposts” in Judea and Samaria, but her claim that those constructions were “unauthorized” was firmly disputed by the Jewish Agency and by the Ministry of Housing.  Attorney Shlomo Ben-Elyahu, for instance, wrote on behalf of the Jewish Agency that the outposts labeled “unauthorized” by Talia Sasson had in fact been built with Government approval and according to the law.

The dispute over whether or not some of constructions in Judea and Samaria were “unauthorized” stems from a legal loophole.  In March 1999, the Israeli Government passed a decision that required government approval for the expansion of existing settlements.  Since then, many settlements have been expanded without formal government approval but with the government’s full knowledge as well as funding.  What the Levy Report is saying is that technically and on paper there was no government decision to expand some settlements, but that in fact the government was actively involved in expanding and funding settlement expansions.  Therefore, the Government should take full responsibility for its actions (or for those of its predecessors) and authorize de jure what it has authorized de facto.

Since 1999, Israeli governments have refrained from officially approving settlement expansions by fear of international criticism, but they did expand settlements “under the radar.”  Both the Sasson and the Levy reports point out to this contradiction (if not hypocrisy) and are basically telling the Government that it should decide what it wants.  But while the Sasson Report concludes that all constructions that were not formally approved since 1999 should be demolished, the Levy Report concludes that they should be officially approved a posteriori, as they should have been in the first place.  Moreover, the Levy Report says that if the Government is going to build or expand a settlement, it should pass a formal decision so that new constructions approved by the government cannot be declared “unauthorized” by the High Court of Justice and be demolished.   

Demolishing entire neighborhoods is precisely what the High Court of Justice has recently ordered, and the Court’s orders are based on laws and practices that discriminate against the Jews.  While international law recognizes the rights of Jews to live in Judea and Samaria, Jordanian law forbids them from buying land there.  A Jordanian law from 1953 (by which Israel absurdly still abides), states that only citizens or residents from the Hashemite Kingdom of Jordan are allowed to buy land in Jordan.  Because this law is still valid in Judea and Samaria, Arabs are allowed to buy land there but Jews are not (Jews circumvent this limitation by buying land via corporations registered in Judea and Samaria). 

In property disputes between Jews and Arabs, the latter tend to be believed and the former dismissed –as Colonel Moti Almoz testified to the Levy Commission.  In the case of the Ulpana neighborhood in Beit-El, for instance, an Arab resident petitioned the High Court of Justice, claiming that he was the owner of the land on which the neighborhood was built.  This property claim was never proven in the District Court where the case is still pending, and yet the High Court accepted the unproven claim of the Arab petitioner and ordered the demolition of five buildings.  Even if the property claim had been proven, the Court should have ordered the compensation of the owner and not the demolition of the buildings.  Indeed, this is precisely what the European Court of Human Rights ruled in March 2010 regarding a property dispute in Cyprus. 

The Levy Report rightly argues that citizens who lawfully bought a house or an apartment built by the Government should not be expelled from their home by the High Court of Justice just because the Government did not abide by its own decisions (i.e. not to expand settlements without a formal and official decision).  The Report also states that the High Court of Justice should not order the demolition of houses because of a property claim that has not yet been proven in a District Court. 

I fail to understand why the simple legal facts and the healthy common sense that emerge from the Levy Report should be a source of concern to Mr. Gordis.  Why on earth should Israel’s prestige be imperiled for respecting more carefully the rule of law, as the Levy Report recommends?  I wonder if Daniel Gordis and his co-signatories actually read the Levy Report.  But if saying the truth imperils our prestige, then the lack of prestige is a badge of honor.