The 2012 Levy Report: How an Israeli Commissioned Report That Supposedly "Proved" Israel's Settlements Were Legal Was Gutted By the International Commission of the Red Cross

Bibi Netanyahu appointed a commission headed by former Supreme Court Justice Edmond Levy in 2012 to look at the legality of settlements in the West Bank.  Surprise! Surprise! This Commission, appointed by Prime Minister Bibi Netanyahu and Justice Minister Tzipi Livni, found that Article 49 of the Fourth Geneva Convention does not apply to the West Bank because Israeli presence there "does not meet the criteria of military occupation under international law."  And since Article 49 of the Geneva condition does not apply to the West Bank, the report argued, the settlements were perfectly legal. Here is the most relevant part of the Levy Commission Report.  I have added emphasis to its acknowledgement that the International Commission of the Red Cross is the authoritative interpreter of the Geneva  Convention.

As for Article 49 of the Fourth Geneva Convention, many have offered interpretations, and the predominant view appears to be that that article was indeed intended to address the harsh reality dictated by certain countries during World War II when portions of their populations were forcibly deported and transferred into the territories they seized, a process that was accompanied by a substantial worsening of the status of the occupied population . . .

 

This interpretation is supported by several sources: The authoritative interpretation of the International Commission of the Red Cross (IRCC), the body entrusted with the implementation of the Fourth Geneva Convention, in which the purpose of Article 49 is stated as follows: 

"It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race."

 

The report also rejected the claim that Article 49 was applicable to the West Bank because of the territory's unique historical status.  The report claimed that the Israel was not occupying the West Bank because it had a sovereign claim on the land deriving from the Balfour agreement and the Sam Remo Peace Conference which established the Palestinian Mandate.  This claim, the report argued, wasn't invalidated after Jordan annexed the territory in 1950 because the annexation was not internationally recognized.  I highly encourage you to read points 7 - 8 on pages 9 - 12 of the report since this short summary does not do justice to the report's historical argument.

After Israel conquered Gaza, the West Bank, and the Golan Heights in the 1967 Six Day War, the Israeli Foreign Ministry asked Theodor Meron, one of its top legal experts, whether it was legally permissible to settle in the "Administered Territories."  Meron, a Holocaust survivor with a doctorate in international law from Harvard wrote: "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention."  Meron based his opinion largely on Article 49 of the Fourth Geneva Convention--the same article that the Levy Commission dismissed as irrelevant.  I'm sure he's heard all the arguments as to why his 1967 opinion was flawed, and I'd be surprised if he hasn't read the Levy Report.  Yet despite all arguments to the contrary, he recently told Huffington Post that his memo "still represents my best reading of international law."  How did the Levy Commission Report handle Meron's opinion?  By ignoring it.  Meron's name wasn't even mentioned in the report.

But at least the Levy Commission had the International Commission of the Red Cross on its side.  Right?  Well, not exactly  And that's important, because as the Levy Commission pointed out, the ICRC is THE AUTHORITATIVE source for interpreting the Geneva Convention.  So let's hear the ICRC's glowing endorsement of the Levy Commission's report.  Oops, the ICRC didn't exactly endorse the report.  Actually, the ICRC's response nearly completely eviscerated the  Commission's report like a dead fish.  Here is what Juan Pedro Schaerer, head of the ICRC delegation for Israel and the Occupied Territories, had to say:

Since the Edmond Levy report "legalizing" the occupation was released last July, a lot has been said and heard publicly about its conclusions and recommendations. The report, which claims that Israel is not an occupying power, contains a selective and misleading quotation from the commentary published by the International Commission of the Red Cross on the Fourth Geneva Convention, which it uses to support the argument that the Israeli settlement project does not entail a breach of international humanitarian law.  . . .

The report argues that Israel is not an occupier because the West Bank was seized from a state that was not its rightful sovereign, while Israel itself has "a claim to sovereign rights in the territory." However, under the law of occupation, which is part of international humanitarian law, it is of no relevance whether Jordan did or did not have sovereign claim to the territory before it was occupied. The binding definition in the Hague Regulations of 1907 establishes that "[t]erritory is considered occupied when it is actually placed under the authority of the hostile army." . . .

Even those who hold that Israel has "a claim to sovereign rights" in the West Bank cannot claim that Israel was the rightful sovereign of the territory when it seized control over it. Accordingly, contrary to what is claimed in the Levy report, it is manifestly clear that the West Bank is occupied by Israel. Indeed, the Israeli Supreme Court has repeatedly and consistently ruled that the territory of the West Bank is subject to belligerent occupation. . . .

Contrary to what the Levy report maintains, from the viewpoint of international law the West Bank is occupied by Israel. This assertion, like the ICRC's position that the Israeli settlements in the West Bank are unlawful, is based entirely on the relevant provisions of international humanitarian law.

 

I said the ICRC response "NEARLY completely eviscerated" the Levy Report.   It killed the report, but it didn't totally eviscerate it. The ICRC's response left one point in the Levy report unanswered. It is my pleasure to complete the evisceration.  The Levy Report said

After having considered all the approaches placed before us, the most reasonable interpretation of those provisions of international law appears to be that the accepted term “occupier” with its attending obligations, is intended to apply to brief periods of the occupation of the territory of a sovereign state pending termination of the conflict between the parties and the return of the territory or any other agreed upon arrangement. However, Israel’s presence in Judea and Samaria is fundamentally different: Its control of the territory spans decades and no one can foresee when or if it will end


Note this implies that Israeli presence in the West Bank might be an occupation if it was only for a short time, but the longer the presence, the less reasonable it is to declare it an occupation. The absurdity of this logic becomes apparent when it is applied to other crimes. Remember Ariel Castro who kidnapped three women and raped them over a nine to eleven year period? I wonder how the court would take it if he said, "Well, your Honor... kidnapping is only a crime if done for a short period of time. If you had caught me within three years you would have a case, but the longer I held them, the less criminal my activity became."
 

Finally, I leave with two quotes from very prominent Israelis regarding Israel's presence in the West Bank. The Levy report may have used linguistic trickery to try to convince the gullible that what was happening in the West Bank was not an occupation. But check out the this clip from the Gatekeepers where former Shin Bet leader Avraham Shalom said


The future is bleak. It's dark, the future. Where does it lead? To a change in the people's character because if you put most of our young people in the army, they'll see a paradox. They'll see it strives to be a people's army, like the Nahal unit, involved in building up the country. On the other hand, it's a brutal occupation force, similar to the Germans in World War II. Similar, not identical. And I'm not talking about their behavior toward the Jews. That was exceptional, with its own particular characteristics. I mean how they acted to the Poles, the Belgians, the Dutch. . . To all of them... The Czechs. It's a very negative trait that we acquired, to be... I'm afraid to say it, so I won't. We've become cruel, to ourselves as well, but mainly to the occupied population, using the
excuse of the war against terror.


 

And if a former Shin Bet leader isn't good enough to convince you, how about this? In 2003 Ariel Sharon said
 

You cannot like the word, but what is happening is an occupation -- to hold 3.5 million Palestinians under occupation. I believe that is a terrible thing for Israel and for the Palestinians . . . It can't continue endlessly. Do you want to stay forever in Jenin, in Nablus, in Ramallah, in Bethlehem? I don't think that's right.

 

Update 3/23: The title of this post was changed.

Very Mionr Update on 6/22/16