Israel's Illogical Settlement Decision
A committee has advised the government to retroactively legalize settlement activity. The recommendation defies reason and precedent.
“Well, I never heard it before, but it sounds uncommon nonsense.”
From Alice in Wonderland by Lewis Carroll
An Israeli government committee has turned logic, law and Israeli Supreme Court precedent on its head, declaring that Israeli settlement activity in the territories occupied by Israel since 1967 is not illegal and advising the Israeli government to legalize retroactively settlements and outposts previously deemed to have been constructed outside the framework of Israeli law. This is a stunning action with enormous consequences, a serious example of “uncommon nonsense.”
The so-called Levy committee, comprising a former Israeli Supreme Court justice, a former district court judge and a former foreign-ministry legal adviser, conceded that a substantial amount of building in the territories, including the establishment of about one hundred outposts between 1991 and 2005, was unauthorized. However, the committee continued somewhat disingenuously, since these illegal activities were carried out “with the knowledge, encouragement and tacit agreement of the most senior political level . . . such conduct is to be seen as implied agreement.” It seems the committee has no problem with illegal actions by citizens as long as a senior government official winks, nods and joins in the activity. So much for the rule of law.
Levy’s committee, formed at the request of Prime Minister Benjamin Netanyahu, has effectively turned its back on more than four decades of rulings by the Israeli Supreme Court, according to a quote in the Israeli press by Talia Sasson, a noted jurist and author of a 2005 Israeli government report that documented the illegal and unauthorized outpost activity. Sasson’s report, commissioned by and submitted to then prime minister Ariel Sharon, created shock waves in Israel, for it represented legal confirmation of Sharon’s controversial political decision to dismantle the outposts erected during his tenure as prime minister. In the end, however, virtually no outposts were dismantled—despite a written commitment by the Israeli government to the Bush administration to do so—and Sasson’s report was shelved with no further action taken. There is a saying in the Middle East that an issue is not dead until it is dead and buried; Sharon’s government killed the Sasson report, and now Levy’s committee has recommended burying it.
Sasson has also stressed, in private correspondence, that the Levy committee has contradicted more than four decades of Israeli law and policy, which has applied the principles of the Fourth Geneva Convention and the Hague Regulations to the occupied territories, albeit stopping short of formally recognizing their applicability.
The Levy committee’s assertion of “administrative assurance,” that is, the complicity of government officials in supporting settlement activity even when that activity contravened the law, is one of the most troubling aspects of the report. Under such circumstances, citizens in a democracy should expect that government officials who place themselves above the law would be held accountable, not that their activities would be explained away or condoned. Equally, the Levy committee’s recommendation that the outposts and settlement construction completed under these circumstances be legalized retroactively is chillingly Orwellian—as though to say it was wrong and illegal to engage in the activity, but it will now be made right and legal. One normally expects better from an Israeli democracy that, in the past, has enshrined the rule of law.
The Israeli press has made no mention of one of the most serious issues raised in the 2005 Sasson report—namely, the construction of settlements and outposts on privately owned Palestinian land. A landmark decision by the Israeli Supreme Court in 1979 ruled that the government had the right to confiscate private land in the West Bank and Gaza only for military purposes, not for civilian settlement. After that, settlement construction appeared to be confined to what the government legal adviser determined to be “state land”—that is, land not owned privately by Palestinians. Yet, over the years, the NGO “Peace Now” has argued that substantial settlement activity has taken place on private land, and several years ago, a previously classified Israeli government report indeed confirmed that reality. Thus, not only was the complicit activity of government officials and settlers in violation of laws and regulations regarding settlement construction, it was also in violation of a Supreme Court ruling. Does the Levy committee wish also to sweep Supreme Court rulings under the rug?
The Israeli cabinet will soon take up the Levy committee recommendations, and it is coming under pressure from its right-wing base to adopt the report as policy. This would be most unwise, not only because of its impact on whatever small chance still exists to find a way forward to a political agreement with the Palestinians but equally importantly for what it will say about Israel’s commitment to the rule of law. Even before the cabinet’s consideration, the Israeli attorney general must decide whether to approve it, and this is not certain; when the committee was formed, Attorney General Yehuda Weinstein reportedly warned the prime minister that he probably would not approve the committee’s report. Assuming Weinstein follows through, it would be a wise course of action to declare this committee’s report dead on arrival and buried.
Daniel Kurtzer is the S. Daniel Abraham Professor in Middle Eastern Policy Studies at Princeton University's Woodrow Wilson School of Public and International Affairs. He is a former United States ambassador to Egypt and Israel.