A Tale of Two Reports

I’ll say this for the Levy report: It filled my inbox. After the Israeli blue-ribbon commission, headed by former Israeli Supreme Court Justice Edmund Levy, concluded that “Israelis have the legal right to settle in Judea and Samaria,” the usual suspects leapt into action. J Street wants me to “Urge US Opposition to Israeli Settlement Report,” Americans for Peace Now wonders whether it is “1984” in Israel. Lefty friends sent gripes, shrieks, and mockery (best joke so far: a takeoff on a painting by surrealist Magritte, entitled “ceci n’est pas une occupation”).

So what's the big deal? Well, as Likud MK Danny Danon wrote on Facebook, “The report removes the values of the radical left from the court of law in relation to Judea and Samaria and buries the dangerous report of attorney Talia Sasson.” The Sasson report, commissioned under Ariel Sharon and published in 2005, revealed the widespread clandestine financial support for “wildcat” settlements (which had not been authorized by any formal governmental process, and were not necessarily on land claimed to be Israeli state-owned) by the Israeli Ministry of Housing, the Ministry of Defense, and the World Zionist Organization. The Levy report, by contrast, recommends legalizing those outposts.Frankly, though, I think this difference is much less than either Danon or J Street suggest, and that the Levy report is so much hot air.

The key argument of the Levy report is this: “classical laws of ‘occupation’ as set out in the relevant international conventions”—this refers to the Fourth Geneva Convention, which forbids “population transfers” into territories occupied by force—“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… Therefore, according to international law, Israelis have the legal right to settle in Judea and Samaria.”Of course, this is flimsy reasoning. As law professor David Kretzmer points out, the Israeli army explicitly invoked the Fourth Geneva convention (i.e., the one about belligerent occupation) in 1967, in reference to the territories it conquered. Kretzmer suggests Levy may be relying on his lone dissent to a 2005 Supreme Court decision that explicitly affirmed that the West Bank and Gaza were occupied territories. Imagine if, in 2013, Alito were to write executive policy for President Romney arguing that Obamacare is unconstitutional, and you’ll get why this is crazy.

So it’s no surprise that the United States, like the rest of the international community, considers the West Bank occupied. Indeed, the U.S. state department quickly expressed disapproval of the Levy report, saying, “We do not accept the legitimacy of continued Israeli settlement activity and we oppose any effort to legalize outposts.” In fact, the profoundly antinomian idea of a “unique and sui generis” occupation should clarify the basic point: Edmund Levy doesn’t care about the law.

But here’s the catch. If you actually think that the West Bank is occupied, you shouldn’t be lining up behind Sasson either. That report was not against settlements. Sasson just argued they could not be quietly advanced by ministerial funding. They required approval from “the authoritative political echelon,” which outposts lacked. But such approval does not go an inch towards satisfying the U.S. State Department (“We do not accept the legitimacy of continued Israeli settlement activity”), because it does not affect the basic prohibition on population transfers in the Fourth Geneva Convention.

Which means that it’s very difficult to support Sasson’s distinction. Since Levy is correct that outposts were built “with the knowledge, encouragement and tacit agreement of the most senior political level”—he could find all the evidence he needs in Sasson—he is also right that “such conduct is to be seen as implied agreement.” And since the Israeli government has frequently confiscated Palestinian land for “security reasons,” to which the Supreme Court regularly accedes without asking too many questions, the fact that approved settlements are on state lands does not mean much either. The differences between Sasson’s “unauthorized outposts” and settlements she called "legal" were matters of Israeli, rather than international law. When you pay close attention, these differences amount to a few official documents, a little legal trickery.

In the end, Sasson and Levy agree on the facts. The Israeli government continues to heavily support settlers in the West Bank. Given a choice between having that settlement hid in the account books of ministries and non-profits, and having it official and on the books, why is it so important to maintain a legal pretext? As long as the slow annexation of the West Bank is sequestered away in WZO account books, Americans largely ignore it. When it is in the open, as former Prime Minister Ehud Olmert pointed out, the A-word becomes harder and harder to avoid. It becomes harder and harder to explain why Palestinians in the West Bank shouldn’t vote in the elections that their settler neighbors do. Maybe that’ll shock American Jews out of their complacency; if so, three cheers for Edmund Levy.