In January 2012, in the midst of proceedings in the Israeli Supreme Court concerning the construction of settlements in the occupied Palestinian territory, Israeli Prime Minister Benjamin Netanyahu established the Committee to Examine the State of Building in Judea and Samaria. On July 9, 2012, the Committee, headed by retired Supreme Court of Israel Justice Edmund Levy, published its report. The Levy report concludes that Israel is not an occupying power, but the sole sovereign over the Palestinian territory. The report reflects long-term Israeli policies and practices, but also contests them with numerous, far-reaching recommendations. Most importantly, the report's rationale calls upon states to evaluate their understanding of Israel's legal status in the Palestinian territory.
Territorial Status in the Levy Report
The Levy report, which purports to conduct a legal analysis of the issues at hand, concludes in favor of the legality of Israel's settlement project under both domestic and international law. Among its recommendations, it calls on the Israeli government to retroactively approve all settlement construction, including plans that were deemed illegal under Israeli domestic law in August 2011.
In providing their views to the Committee, Israeli human rights groups have affirmed the position of the international community that Israel's legal status in the Palestinian territory is that of an occupying power, and that Article 49 of the Fourth Geneva Convention, which prohibits all transfers of its population to the occupied territory, entails the immediate removal of all Israeli settlements. Ultimately, the Committee adopted the position that Israel is not an occupying power since the West Bank was never under the sovereignty of any other state. The Levy report adds that "occupation" is understood to be a temporary situation while in the case of Israel's control over the West Bank, referred to as Judea and Samaria, "no one can predict its termination, if at all."
To bolster this rationale, the Committee adduces the British government's 1917 Balfour Declaration, which, it claims, recognized the "civil and religious" rights of the residents of Palestine with no particular reference to the national rights of the Arab nation. The Committee's historical narrative seems to preclude any claim by the Palestinian people to sovereignty or self-determination in the form of statehood by discarding the relevance of the 1947 UN Partition Plan, which sought to create two states for two nations in the territory of Mandatory Palestine.
Notably, the Committee also disregards key developments in international law that supersede the Balfour Declaration, namely the rejection of the right to conquest and the prohibition of the use of force in acquiring territory, in affirmation of the right to self-determination. Instead, the Committee states that Israel "did not see itself as an occupying power in the classical meaning of the term, and therefore never committed to fulfilling the Fourth Geneva Convention," and that it maintains "the right to claim full sovereignty over this territory." Furthermore, Israeli state authorities have consistently supported the settlement project. This support for settlement construction, including nominally "illegal" construction, has created legitimate expectations among settlers. On this basis, the Committee argues that the government is obligated to regularize all "illegal" construction retroactively.
A Mantle of Occupation
Several commentators have pointed out that the Levy report's assertion that the West Bank is not an occupied territory has far-reaching consequences that seem to have escaped the Committee, most notably that Israel would be claiming the rights of a legitimate military administrator in the territory. More fundamentally, in some respects the report appears both to adopt and upset the understanding of Israel's obligations reflected by government policy, military practice and Israeli Supreme Court jurisprudence. Like the report, Israel's practice and policy have long represented the view that the occupied Palestinian territory is neither occupied nor Palestinian. The legal position held by the branches of Israel's government is that the Palestinian territory is "disputed," which only acknowledges the non-acceptance by other states of Israel's claim to sovereignty over the territory.
In that regard, Israel has painstakingly woven a mantle of international legal legitimacy for its practices in the Palestinian territory. Israel nominally applies customary Hague rules of occupation in the West Bank, but not the Geneva Conventions because they are not incorporated into Israeli law. Aeyal Gross recalls that after 1967 Israel took the official position that the Palestinian territory is not occupied in the sense of international humanitarian law, but nevertheless proceeded to take on different aspects of a military administrator — including some of the duties and powers of an occupying power. Israel's dualist legal system gives precedence to domestic law in all cases of conflict with international law obligations, including the status of those territories and their relationship to the State of Israel as defined by Israel's national law.
Although the Israeli High Court of Justice applies the international law of belligerent occupation to Israel's acts in the territory of the West Bank, this application is often confused and misunderstood. The Court has applied specific provisions enshrined in the Geneva Conventions, Hague regulations and even instruments of international human rights law, but it has done so selectively and without adhering to a coherent, en bloc application of the international law of belligerent occupation. For instance, the Supreme Court's June 2005 judgment on Israel's "disengagement" from the Gaza Strip — which purported to unilaterally terminate Israel's occupation of the Gaza Strip — stated that the Palestinian territory is "held by Israel by way of belligerent occupation," and "[t]he legal regime that applies there is determined by the rules of public international law and especially the rules relating to belligerent occupation." The court has never upheld the application of Article 49 of the Geneva Conventions, instead consistently refusing to make any determination concerning the status of the Palestinian territory by deferring the question of the legality of settlements to the political arena.
In short, the court has not contradicted the Israeli government's interpretation of Israel's responsibilities as an occupying power. It has tailored its judicial practice to exist within the Israeli political context by giving effect to Israel's sole sovereign competence to administer any part of the territory of Mandatory Palestine. For instance, a group of prominent Israeli jurists criticized the court for a January 2012 ruling that sought to legitimize Israel's exploitation of Palestinian natural resources in West Bank quarries for the primary benefit of Israel's private market in violation of the "usufruct" rule. Commentators have critiqued many of the Court's judgments, like the Levy report, for appearing to apply international humanitarian law while undermining its essential tenets.
If Israeli jurisprudence has legitimated Israel's practices in the Palestinian territory through the application of some international humanitarian law rules and the scrupulous avoidance of proclaiming on the question of Palestinian sovereignty and self-determination, the Levy report takes a more disclosing tack by arguing that Israel's status in the Palestinian territory is that of the sole legitimate sovereign. The report's call on the government to retroactively approve all settlement construction frames Israel's treatment of the West Bank as part of its territory that it had placed under a military administration, thereby applying some customary principles of the law of occupation which make up the law of military administration.
The Levy report instructs third-party states to re-examine their understanding of Israel's relation to the West Bank, and the effects of Israel's institutional practice on their legal obligations under their national law. Many have sought to resolve the issue by restating Israel's obligations under international humanitarian law and the High Contracting Parties obligation 'to ensure respect' for the Conventions. Evidently, Israel's institutional practice proves the very limits and deficiencies of this framework. Most actors have yet to appreciate the relevance of other applicable principles of public international law, such as the prohibition on the acquisition of territory through the use of force, the principle of territorial integrity and the principle of the equal sovereignty of all states.
A recent expert opinion prepared by Professor James Crawford of the University of Cambridge and published by the Trade Union Congress indicates a shift in conventional wisdom about the way third-party states should address Israel's relation to the Palestinian territory. Crawford's opinion condemns Israel's de facto annexation of Palestinian territory and upholds that Israel's transfer of its population to settlements most probably amounts to a war crime. The opinion considers the rights of governments to take measures, beyond verbal condemnation, to put an end to and reverse all settlement construction. It demonstrates that neither European Union (EU) nor World Trade Organization (WTO) law prevents the United Kingdom or the EU from instituting a ban on trade in settlement products and concludes that third-party states' engagements with Israel sometimes constitutes support to Israel's violations of international law, referring to the "Namibia principle," elaborated in the International Court of Justice (ICJ) Advisory Opinion on Namibia [PDF].
Meanwhile, Israel announced its refusal to cooperate with the UN Human Rights Council (UNHRC) fact-finding mission established specifically to examine settlement construction in occupied Palestinian territory, which is expected to restate the view that Israel's unlawful practices as an occupying power consist of an intention to annex parts of the Palestinian territory. Thereby reinforcing the said predicament: Israel applies customary rules of military administration enshrined in the law of occupation in the course of its military administration of West Bank territory, that it in fact considers part of its own territory; meanwhile, the international community relentlessly continues to apply the law of occupation en bloc and demand Israel's conformity.
As affirmed by the ICJ's 2004 Advisory Opinion on the construction of a wall in the Palestinian territory, these violations invoke erga omnes obligations for third-party states — particularly states engaged in relations with Israel. Specifically, they entail the duties of non-recognition, of abstaining from rendering aid or assistance and of ensuring that any impediment to the respect of international law and the exercise of rights, including the Palestinian people's right to self-determination, is brought to an end. As for private actors, states are under a duty of due diligence to ensure that such actors are not complicit in violations, as part of the obligation to ensure respect for international humanitarian law under Common Article 1 of the Geneva Conventions.
Crawford's approach, it should be noted, does not primarily seek to engage the political will of states to bring inter-state action against Israeli violations. Instead, it recalls the examples of the UK's engagements with Israel — such as the joint convention on double taxation [PDF] — to determine whether they lend recognition to Israel's violations of international law. He concludes that if Israel were applying either instrument to the occupied Palestinian territory, the UK would be under an obligation to regard it as ineffective and demand assurances from Israel that for the purpose of the latter's engagements with the UK, the area of operation of its authorities does not extend beyond Israel's internationally-recognized borders.
Read in conjunction, the Levy report and Crawford's opinion indicate Israel's growing resentment towards international law and its institutions. Operationally, they highlight the urgency of galvanizing the international community to reassess the legal consequences of Israel's acts as an administrator of the Palestinian territory. Their capacity to bring Israel to desist from its unlawful acts may have been undermined by their failure to ensure that their engagements with Israel take proper account of its institutional practice, particularly that which regards the Palestinian territory as part of its territory. Failure to take account of this practice by third-party states engaged with Israel could result in their inability to respect their own policies and laws, while lending recognition to Israel's unlawful acts.
Valentina Azarov is a lecturer in Human Rights and International Law and the Chair of the Human Rights Program at the Al-Quds Bard College, Al-Quds University. She previously worked as a legal researcher with Al-Haq, a Palestinian human rights organisation, with consultative UN ECOSOC status, and the HaMoked-Centre for the Defense of the Individual, a legal aid human rights group that submits petitions before the Israeli High Court on violations of Palestinian rights in the occupied Palestinian territory. She is also a writer for the International Law Observer.
Suggested citation: Valentina Azarov, Shifting Paradigms: Israel, Palestinian Territory and International Law, JURIST - Forum, July 25, 2012, http://jurist.org/forum/2012/07/valentina-azarov-israel-occupation.php.
This article was prepared for publication by Caleb Pittman, head of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org