English translation of the legal
arguments in the Levy Report (updated)
Since
the Levy Report was released, there has been a lot of heat but little light
about its legal reasonings, which were in Hebrew. The only part that was released in
English were its conclusions and recommendations.
Here, for the first time, is an English translation of its legal arguments. Those who try to downplay the report must find reasons why these arguments are invalid, rather than the proof by assertion that they usually resort to.
Here, for the first time, is an English translation of its legal arguments. Those who try to downplay the report must find reasons why these arguments are invalid, rather than the proof by assertion that they usually resort to.
[...]
Having considered the approaches presented
before us [from the Left and from the Right], we think a reasonable
interpretation of the standard term of "occupation",
with all the obligations arising from it, in the provisions of
international law is intended to apply for short periods of occupation of a
territory of a sovereign state until the end of the conflict between the
parties and the return of the land or any other negotiated agreement regarding
it.
But the Israeli presence in
Judea and Samaria is significantly different: the possession of the
territory continues for many decades, and no one can predict its end, if at
all; the territory was conquered from a state (the Kingdom of Jordan) whose sovereignty
over the territory has never been firmly legalized, and in the meantime it even
renounced its claim of sovereignty; the State of Israel claims sovereign
rights to the territory.
As for Article 49 of the Geneva Convention,
many have interpreted it, but it seems the dominant view is that the
article indeed was meant to resolve the harsh reality imposed by some states
during the Second World War, when they expelled and forcibly transferred some
of their inhabitants to the territories they had occupied, a process which was
accompanied by a substantial worsening of the condition of the occupied
population (see this HCJ ruling and this article
by Alan Baker).
This interpretation is supported by a number of
sources: the authoritative interpretation of the International Committee of the
Red Cross (ICRC), responsible for implementing the Fourth Geneva
Convention, which states regarding the purpose of
article 49 of the Convention:
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.
Lawyers Prof. Eugene Rostow, Dean of Yale Law
School in the US , and Prof. Julius
Stone confirmed that Article 49 is intended to prohibit the same
inhuman acts committed by the Nazis, i.e. a massive transfer of people into the
occupied territories for the purpose of extermination, slavery or colonization:
[T]he Convention prohibits many of the inhumane
practices of the Nazis and the Soviet Union during and before
the Second World War - the mass transfer of people into and out of occupied
territories for purposes of extermination, slave labor or colonization, for
example....The Jewish settlers in the West Bank are most
emphatically volunteers. They have not been "deported" or
"transferred" to the area by the Government of Israel , and their movement
involves none of the atrocious purposes or harmful effects on the existing
population it is the goal of the Geneva Convention to prevent. (Rostow)
Irony would...be pushed to the absurdity of
claiming that Article 49(6), designed to prevent repetition of Nazi-type
genocidal policies of rendering Nazi metropolitan territories judenrein, has
now come to mean that...the West Bank...must be made judenrein and must be so
maintained, if necessary by the use of force by the government of Israel
against its own inhabitants. Common sense as well as correct historical and
functional context excludes so tyrannical a reading of Article 49(6.) (Julius Stone)
We do not believe that one can draw an
analogy between this legal provision and those who sought to settle in Judea and Samaria not as a result of
them being "deported" or "transferred" but because of their
world view - to settle the Land of Israel .
We did not ignore the view of those who think
that one should interpret the Fourth Geneva Convention as also prohibiting the
occupying state to encourage or support the transfer of parts of its population
to the occupied territory, even if it did not initiate it (on this
issue see note 13 here).
But even if this interpretation is correct, we
would not change our conclusion that no analogy should be drawn between
Article 49 of the Fourth Geneva Convention and Jewish settlement in Judea and Samaria , in light of the
status of the territory under international law, and for that matter a brief
history is required.
On 2 November 1917 Lord
James Balfour, the British foreign minister, issued a declaration that "His
Majesty's Government view with favour the establishment in Palestine of
a national home for the Jewish people", the document which was
addressed to Lord Rothschild read:
His Majesty's Government view
with favour the establishment in Palestine of a national home for the Jewish
people, and will use their best endeavours to facilitate the achievement of
this object, it being clearly understood that nothing shall be done which may
prejudice the civil and religious rights of existing non-Jewish communities in
Palestine, or the rights and political status enjoyed by Jews in any other
country.
In this declaration Britain
recognized the Jewish people's right to the Land of Israel , and
even expressed its willingness to advance a process that will eventually lead
to the establishment of a national home for them in this part of the world.
This declaration appeared, in
a different version, in the declaration of the April 1920 San Remo peace conference in Italy which
laid the grounds for the Mandate for Palestine which
acknowledged the Jewish people's historic connection to Palestine (see
Preamble):
The Mandatory will be
responsible for putting into effect the declaration originally made on November
2, 1917, by the British Government, and adopted by the other Allied Powers, in
favour of the establishment in Palestine of a national home for the Jewish
people, it being clearly understood that nothing shall be done which may
prejudice the civil and religious rights of existing non-Jewish communities in
Palestine, or the rights and political status enjoyed by Jews in any other
country...
Recognition had thereby been
given to the historical connection of the Jewish people with Palestine and
to the grounds for reconstituting their national home in that country.
It should be emphasized here
that in the Mandate (as well as in the Balfour Declaration) only the "civil
and religious" rights of the inhabitants of Palestine are
mentioned as rendering protection, but there is no mention of the national
rights of the Arab people. And concerning the actual implementation of this
declaration article 2 of the Mandate says:
The Mandatory shall be
responsible for placing the country under such political, administrative and
economic conditions as will secure the establishment of the Jewish national
home, as laid down in the preamble, and the development of self -governing
institutions, and also for safeguarding the civil and religious rights of all
the inhabitants of Palestine, irrespective of race and religion.
And in article 6 of the
Mandate it says:
The Administration of Palestine ,
while ensuring that the rights and position of other sections of the population
are not prejudiced, shall facilitate Jewish immigration under suitable
conditions and shall encourage, in co-operation with the Jewish agency.
referred to in Article 4, close settlement by Jews, on the land, including
State lands and waste lands not required for public purposes.
In August 1922 the League
of Nations approved the Mandate which was given to Britain , and
thus the Jewish people's right to settle in the Land of Israel , their
historic homeland, and to establish their state there, was recognized in
international law.
To complete the picture, we'll
add that with the establishment of the United Nations in 1945, the principle of
recognizing the validity of existing rights of states acquired under various
mandates, including of course the rights of Jews to settle in the Land of
Israel by virtue of the above documents, was determined in article 80 of its charter:
Except as may be agreed upon in
individual trusteeship agreements...nothing in this Chapter shall be construed in or of
itself to alter in any manner the rights whatsoever of any states or any
peoples or the terms of existing international instruments to which Members of
the United Nations may respectively be parties.
In November 1947 the
General Assembly with no legal standing adopted the United Nations committee's
recommendation only to divide the
Land of Israel west of the Jordan river into two states: one Arab and one
Jewish.
But the plan was never
implemented, and therefore was not binding under international law, since the
Arab states rejected it and started a war to prevent its implementation and the
establishment of a Jewish state.
The outcome of the war set
the political reality from now on: the Jewish state was established within
the lines drawn after the war.
However, the Arab state was
not established, and Egypt
and Jordan
controlled the territories they occupied (the Gaza Strip, Judea
and Samaria ).
Later, the Arab states, which did not recognize
the consequences of the war, demanded the armistice agreement include a statement [*] saying
that the cease-fire line should not be construed in any way as a political or
territorial border.
Nevertheless, in April 1950, Jordan annexed the West Bank , unlike Egypt , which has never
claimed sovereignty over the Gaza Strip.
However, Jordan's annexation was not
accepted on any legal basis, and most Arab countries opposed it, until 1988
when Jordan renounced its claim to the territory (on this issue see chief
justice M. Landau's comments in this HCJ
ruling; and this HCJ
ruling).
Thus the original legal status of the territory
was restored, namely, a territory designated as a national home for the
Jewish people, who had a "right of possession" to it during
Jordanian rule while they were absent from the territory for several years due
to a war imposed on them, and have now returned to it.
Together with the international commitment to
govern the territory and ensure the rights of the local population and public
order, Israel also had the full right to claim sovereignty over these
territories, and all Israeli governments believed so, but they chose not to
annex them and take a pragmatic approach in order to allow for peace
negotiations with representatives of the Arab Palestinian people and the Arab
states.
It should be added here, that the Israeli
government did indeed ratify the Convention in 1951, but since it was
not adopted by the Knesset (on this issue see this and this HCJ
rulings) it merely issued a statement saying it will voluntarily implement the
humanitarian provisions of the Convention (here, here, here and here).
As a result, Israel implemented a
policy that allows the Israelis to live voluntarily in the territory in accordance
with laws prescribed by the Israeli government and supervised by the Israeli
legal system, while their continued presence is subject to the outcome of the
negotiation process.
In light of the aforesaid, we have no doubt
that from the perspective of international law, the establishment of Jewish
settlements in Judea and Samaria is legal, and
therefore we can proceed to discussing this question from the perspective of
domestic law.
[...]
NOTE:
[*] According to
article II (2) of the Armistice Agreement with Jordan :
...no provision of
this Agreement shall in any way prejudice the rights, claims and positions of
either Party hereto in the ultimate peaceful settlement of the Palestine
question, the provisions of this Agreement being dictated exclusively by
military considerations.
According to article VI (9)
of the agreement:
The Armistice Demarcation
Lines defined in articles V and VI of this Agreement are agreed upon by the
Parties without prejudice to future territorial settlements or boundary lines
or to claims of either Party relating thereto.
Many, many thanks to Yoel who provided this translation. (He made some minor corrections 7/15.)
I received a somewhat revised translation with paragraph numbers from Hadar, via Emet from CiFWatch. Her comments:
I've tidied up the
translation of the part of the Levy Report which was posted on EoZ.
I've made some slight adjustments to the translation of the text itself which I deemed necessary in order to clarify the points made.
I've reinstated the paragraph numbers - makes it easier to refer back to the original.
I've reinstated the footnotes with their original numbers appearing as they do in the text.
Where footnotes relate to websites, I've provided a link.
In the text, I've provided some links which do not appear in the original report - eg links to HCJ court cases referred to in the text by name/number as examples.
I've made some slight adjustments to the translation of the text itself which I deemed necessary in order to clarify the points made.
I've reinstated the paragraph numbers - makes it easier to refer back to the original.
I've reinstated the footnotes with their original numbers appearing as they do in the text.
Where footnotes relate to websites, I've provided a link.
In the text, I've provided some links which do not appear in the original report - eg links to HCJ court cases referred to in the text by name/number as examples.
So here it is:
Translation Levy
Report
(starting page
6, section 5, para 2)
Having considered the approaches presented before us, we
think a reasonable interpretation of the standard term of
"occupation", with all the obligations arising from it, in
the provisions of international law is intended to apply for short periods
of occupation of a territory of a sovereign state until the end of the conflict
between the parties and the return of the land or any other negotiated
agreement regarding it. But the Israeli presence in Judea and Samaria is
significantly different: the possession of the territory continues
for many decades, and no one can predict its end, if at all; the territory was
conquered from a state (the Kingdom of Jordan) whose sovereignty over the
territory has never been firmly legalized, and in the meantime it even
renounced its claim of sovereignty; the State of Israel claims sovereign
rights to the territory.
As for Article 49 of the Geneva Convention,
many have interpreted it, but it seems the dominant view is that the
article indeed was meant to resolve the harsh reality imposed by some states
during the Second World War, when they expelled and forcibly transferred some
of their inhabitants to the territories they had occupied, a process which was
accompanied by a substantial worsening of the condition of the occupied
population (see HCJ ruling 785/87 Abed Alaziz Alafu & others
against Commander of IDF Forces in the Gaza Strip region
and the article by Alan Baker – 'Distorting the Geneva Convention and
Oslo Accords', January 2011[1])
This interpretation is supported by a number of sources: the
authoritative interpretation of the International Committee of the Red Cross
(ICRC), responsible for implementing the Fourth Geneva Convention[2], which states regarding the
purpose of article 49 of the Convention:
"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."
Lawyers Prof. Eugene Rostow, Dean of Yale Law School in the
US, and Prof. Julius Stone confirmed that Article 49 is intended to
prohibit the same inhuman acts committed by the Nazis, i.e. a massive transfer
of people into the occupied territories for the purpose of extermination,
slavery or colonization[3][4]:
"[T]he Convention prohibits many of the inhumane
practices of the Nazis and the Soviet Union during and before the Second World War - the mass transfer
of people into and out of occupied territories for purposes of extermination,
slave labor or colonization, for example....The Jewish settlers in the West Bank are most emphatically volunteers. They
have not been "deported" or "transferred" to the area by
the Government of Israel, and their movement involves none of the atrocious
purposes or harmful effects on the existing population it is the goal of the
Geneva Convention to prevent. "(Rostow)
"Irony would...be pushed to the absurdity of claiming
that Article 49(6), designed to prevent repetition of Nazi-type genocidal
policies of rendering Nazi metropolitan territories judenrein, has now come to
mean that...the West Bank...must be made judenrein and must be so maintained,
if necessary by the use of force by the government of Israel against its own
inhabitants. Common sense as well as correct historical and functional context
excludes so tyrannical a reading of Article 49(6.)" (Julius Stone)
6. We do not believe that one can draw an
analogy between this legal provision and those who sought to settle in Judea and Samaria not as a result of them being
"deported" or "transferred" but because of their world view
- to settle the Land of Israel . We did not ignore the view of those
who think that one should interpret the Fourth Geneva Convention as also
prohibiting the occupying state to encourage or support the transfer of parts
of its population to the occupied territory, even if it did
not initiate it[5]. But even if this interpretation is
correct, we would not change our conclusion that no analogy should be drawn
between Article 49 of the Fourth Geneva Convention and Jewish
settlement in Judea and Samaria , in light of the status of the
territory under international law, and on that matter we will open with a brief
historical overview.
7. On 2 November 1917 Lord James Balfour, the British
foreign minister, issued a declaration that "His Majesty's Government view
with favour the establishment in Palestine of a national home for the
Jewish people", the document which was addressed to Lord
Rothschild read:
"His Majesty's Government view with favour
the establishment in Palestine of a national home for the Jewish people, and
will use their best endeavours to facilitate the achievement of this object, it
being clearly understood that nothing shall be done which may prejudice the
civil and religious rights of existing non-Jewish communities in Palestine, or
the rights and political status enjoyed by Jews in any other country."[6]
In this declaration Britain recognized the Jewish
people's right to the Land of Israel , and even expressed its
willingness to advance a process that will eventually lead to the establishment
of a national home for them in this part of the world. This declaration
appeared, in a different version, in the declaration of the April 1920 San Remo peace conference in Italy which laid the grounds
for the Mandate for Palestine which acknowledged the
Jewish people's historic connection to Palestine (see Preamble):
"The Mandatory will be responsible for
putting into effect the declaration originally made on November 2, 1917, by the
British Government, and adopted by the other Allied Powers, in favour of the
establishment in Palestine of a national home for the Jewish people, it being
clearly understood that nothing shall be done which may prejudice the civil and
religious rights of existing non-Jewish communities in Palestine, or the rights
and political status enjoyed by Jews in any other country...
Recognition had thereby been given to the
historical connection of the Jewish people with Palestine and to the grounds for
reconstituting their national home in that country."[7]
It should be emphasized here that in the Mandate
(as well as in the Balfour Declaration) only the "civil and
religious" rights of the inhabitants of Palestine are mentioned as subject
to protection, but there is no mention of the national rights, political rights
of the Arab people. And concerning the practical implementation of this
declaration, article 2 of the Mandate says[8]:
"The Mandatory shall be responsible for
placing the country under such political, administrative and economic
conditions as will secure the establishment of the Jewish national home, as
laid down in the preamble, and the development of self -governing institutions,
and also for safeguarding the civil and religious rights of all the inhabitants
of Palestine, irrespective of race and religion."
And in article 6 of the Mandate it says:
"The Administration of Palestine, while
ensuring that the rights and position of other sections of the population are
not prejudiced, shall facilitate Jewish immigration under suitable conditions
and shall encourage, in co-operation with the Jewish agency
referred to in Article 4, close settlement by Jews, on the land, including
State lands and waste lands not required for public purposes."
In August 1922 the League of Nations approved the Mandate
which was given to Britain , and thus was decided, as
a norm anchored in international law, the Jewish people's right to settle in
the Land of Israel , their historic
homeland, and to establish their state there.
To complete the picture, we will add that with the
establishment of the United Nations in 1945, established in article 80 of its
charter [is] the principle of recognizing the validity of existing rights of
states acquired under various mandates, including of course the rights of Jews
to settle in the Land of Israel by virtue of the
above documents.
"Except as may be agreed upon in individual trusteeship
agreements...nothing in this Chapter shall be construed in or of itself to
alter in any manner the rights whatsoever of any states or any peoples or the
terms of existing international instruments to which Members of the United
Nations may respectively be parties." (Article 80, paragraph 1, UN Charter)
8. In November 1947 the UN General Assembly adopted the recommendation of
the committee it had established to divide the Land of Israel west of the Jordan
river into two states: one Arab and one Jewish[9]. But the plan was never implemented, and therefore was
not binding under international law, since the Arab states rejected it and
started a war to prevent its implementation and the establishment of a Jewish
state. The outcome of the war set the political reality from now on: the Jewish
state was established within the lines drawn after the war. However, an
Arab state was not established, and the territories which had been conquered by
Egypt and Jordan (the Gaza Strip, Judea and Samaria ) were ruled by those countries. Later, the
Arab states, which did not recognize the consequences of the war, demanded the
armistice agreement include a statement saying that the cease-fire
line should not be construed in any way as a political or territorial border[10]. Despite that, in April 1950, Jordan annexed the area of Judea &
Samaria[11], unlike Egypt , which has never claimed sovereignty over
the Gaza Strip. However, Jordan's annexation was not accepted on any
legal basis, and most Arab countries opposed it, until 1988 when Jordan
renounced its claim to the territory (on this issue see chief justice M.
Landau's comments in HCJ ruling 61/80 Haetzni
against the State of Israel; and HCJ ruling 69/81, 493
Abu Aita against Commander of Judea & Samaria and others).
Thus the original legal status of the territory
was restored, namely, a territory designated as a national home for the
Jewish people, who had a "right of possession" to it during Jordanian
rule while they were absent from the territory for several years due to a war
imposed on them, and have now returned to it.
9. Alongside the international commitment to govern the
territory and ensure the rights of the local population and public order,
Israel therefore also had the full right to claim sovereignty over these
territories, and all Israeli governments believed so, but they chose not to
annex them and take a pragmatic approach in order to allow for peace
negotiations with representatives of the Palestinian people and the Arab
states. Israel therefore did not see itself as an
occupying power in the classical sense of the word, and so never saw itself
committed to the Fourth Geneva Convention in relation to Judea , Samaria and Gaza . It should be added here, that the
Israeli government did indeed ratify the Convention in 1951, but
since it was not adopted by the Knesset (on this issue see ruling 131/76 Kamiar against the State of
Israel; and HCJ ruling 393/82 Jamat Iscaan against the
Commander of IDF forces in Judea & Samaria) it merely issued a statement
saying it will voluntarily implement the humanitarian provisions of the
Convention (HCJ rulings 337/71 The Christian Association for
Holy Places against the Minister of Defence; 256/72 The Jerusalem District
Electricity Company Ltd against the Minister of Defence & others; 698/80 Qawasma & others against
the Minister of Defence & others; 1661/05 Hof Azza Regional Council
& others against Knesset Israel & others) . As a result, Israel implemented a policy that allows
Israelis to live voluntarily in the territory in accordance with rules set by
the Israeli government and supervised by the Israeli legal system, while their
continued presence is subject to the outcome of the negotiation process.
In light of the aforesaid, we have no doubt that from the
perspective of international law, the establishment of Jewish settlements in Judea and Samaria is legal, and therefore we can proceed
to discussing this question from the perspective of domestic law.
[1] http://jcpa.org/article/the-settlements-issue-distorting-the-geneva-convention-and-the-oslo-accords/
[2] ICRC Commentary to the Fourth Geneva Convention, edited
by Jean S. Pictet, [1958], p.3-9 http://www.icrc.org/ihl.nsf/COM/380-600056?OpenDocument
[4] Phillips, "The Illegal Settlements Myth",
Commentary, 2010 http://www.commentarymagazine.com/article/the-illegal-settlements-myth/
[5] On this issue see [note 13 in] Alan Baker's article
mentioned above in note 5, [article here] on the
subject of the addition of the words "directly or indirectly" in
clause 8 of the constitution of the International Criminal Court.
[6] http://www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/The%20Balfour%20Declaration
[8] http://www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/The%20Mandate%20for%20Palestine
[9] http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/UN+General+Assembly+Resolution+181.htm
[10] According to article II
(2) of the armistice agreement with Jordan: "no provision of this Agreement shall in
any way prejudice the rights, claims and positions of either Party hereto in
the ultimate peaceful settlement of the Palestine question, the provisions of
this Agreement being dictated exclusively by military considerations."
According
to article VI (9) of the agreement: "The Armistice Demarcation Lines defined
in articles V and VI of this Agreement are agreed upon by the Parties without
prejudice to future territorial settlements or boundary lines or to claims of
either Party relating thereto."
Here is the text of the conclusions, taken from UNISPAL:
Conclusions and
Recommendations
(Translation from the
original and authoritative Hebrew text)
After having considered the
terms of reference set out in the Commission's mandate, and in light of what we
have heard, as well as the considerable amount of material that has been
presented to us by a wide range of bodies, our conclusions and recommendations
are as follows:
Our basic conclusion is that
from the point of view of international law, the classical laws of
"occupation" as set out in the relevant international conventions
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.
In addition, the provisions
of the 1949 Fourth Geneva Convention, regarding
transfer of populations, cannot be considered to be applicable and were never
intended to apply to the type of settlement activity carried out by Israel in
Judea and Samaria .
Therefore, according to
International law, Israelis have the legal right to settle in Judea
and Samaria
and the establishment of settlements cannot, in and of itself, be considered to
be illegal.
With regard to the other
issues considered, our recommendations are as follows:
1. The Government is
advised to clarify its policy regarding settlement by Israelis in Judea
and Samaria ,
with a view to preventing future interpretation of its decisions in a mistaken
or overly "creative" manner. We propose that such government decision
include the following principles:
a. Any new settlement in Judea
and Samaria
will be established only following a decision by the government or by a duly
empowered ministerial committee.b. Construction within the bounds of an
existing or future settlement will not require government or ministerial
decision, but such construction must be approved by the planning and zoning
authorities after they have ascertained that the proposed construction is not
contrary to the approved town/area plan applicable to the land in question.
c. Extension of an existing settlement beyond the area of its jurisdiction or beyond the area set out in the existing town plan, will require a decision by the Minister of Defense with the knowledge of the Prime Minister, prior to any of the following stages: commencement of planning and actual commencement of construction.
c. Extension of an existing settlement beyond the area of its jurisdiction or beyond the area set out in the existing town plan, will require a decision by the Minister of Defense with the knowledge of the Prime Minister, prior to any of the following stages: commencement of planning and actual commencement of construction.
2. With regard to settlements established in
Judea and Samaria on state lands or on land purchased by Israelis with the
assistance of official authorities such as the World Zionist Organization
Settlements Division and the Ministry of Housing, and which have been defined
as "unauthorized" or "illegal" due to the fact that they
were established without any formal government decision, our conclusion is that
the establishment of such settlements was carried out with the knowledge,
encouragement and tacit agreement of the most senior political level
—government ministers and the Prime Minister, and therefore such conduct is to
be seen as implied agreement.
Regarding these settlements, as well as those
established pursuant to a government decision but lacking definition of their
municipal jurisdiction, or without having completed the planning and zoning
procedures, and as a result, have been described as "unauthorized" or
"illegal", the remaining outstanding procedures should be completed
as follows:
a. The area of municipal
jurisdiction of each settlement, if not yet determined, must be determined by
order, taking into due consideration future natural growth. b. The
administrative blockages imposed on the planning and zoning authorities must be
removed immediately, so that they may fulfill
their function of examining plans that have been submitted to them by each settlement, without any further need for additional approval by the political level.
c. Pending completion of those proceedings and examination of the possibility of granting valid building permits, the state is advised to avoid carrying out demolition orders, since it brought about the present situation by itself.
d. With a view to avoiding doubt, it is stressed that all the settlements, including those approved pursuant to this proposed framework, may in the future, extend their boundaries in order to respond to their needs, including natural growth, without the need for additional government or ministerial decision, as long as the proposed extension is located within the jurisdiction of the settlement, within its boundaries as set out in the approved town plan, and has received due approval from the planning and zoning authorities.
e. Settlements established wholly or partially on land that is subject to examination as to whether it is public or private land ("seker"), are to be considered settlements whose legal status is pending. Most of these were established years ago, and it is thus necessary to accelerate the slow examination process ("seker") in all areas ofJudea
and Samaria ,
and to complete it within a fixed time period, and to this end, even consider,
utilizing assistance by external bodies. Upon completion, the processing of
each settlement will continue according to the results of the land examination
("seker") and determination of the type of land, in accordance with
the framework proposed by us.
f. In the event of conflicting claimants to land, it would be appropriate to adopt a policy whereby prior to any determination by the state regarding petitions for eviction or demolition, a thorough examination of the conflicting claims be conducted by a judicial tribunal dealing with land issues. This is all the more necessary with respect to claims of prior purchase or prescription, or where the possessor acted in a bona fide manner. Pending such determination, state authorities should be instructed to avoid taking any position in land conflicts and carrying out irreversible measures, such as eviction or demolition of buildings on the property.
g. To this end and with a view to facilitate accessibility by local residents to judicial tribunals, we suggest the establishment of courts for the adjudication of land disputes in Judea and Samaria, or alternatively, extending the jurisdiction of district court judges in order to enable them to handle in their courts, land disputes in Judea and Samaria.
h. It is necessary to draft into the security legislation a right for the public to review data banks administered by the various official bodies, including the Civil Administration, concerning land rights in the area ofJudea
and Samaria .
i. With regard to the "Order concerning Interfering Use inPrivate Land "
— we are of the view that this order must be cancelled. In the event that it is
decided to keep it in force, we propose that it be amended such that any
decision by an Appeals Committee will not be recommendatory but will obligate
the Head of the Civil Administration to act pursuant to such decision. The Head
of the Civil Administration and other interested parties may appeal the
decision of the Appeals Committee before a Court for Administrative Issues,
whose decision will be final. We propose that this arrangement be applied also
to other decisions of the Appeals Committee, including concerning questions of
"Primary Registration" of land in Judea
and Samaria .
j. The composition of the Appeals Committee should be changed. It is presently manned by uniformed reserve officers, jurists, who are, of necessity, perceived at the least to be subordinate to, and even under the command of the Head of the Civil Administration. We feel that this situation is not proper, and therefore recommend that the Appeals Committee be composed of non-uniformed jurists, a factor which would contribute to the general perception of the Appeals Committee as an independent body, acting according to its own discretion.
k) The "Procedure for Dealing with Private Land Disputes" must be revoked. Such disputes must only be considered and adjudicated by a judicial body.
I) Security legislation must be amended to enable Israelis to purchase land inJudea
and Samaria
directly, and not only through a corporation registered in the area. We also
recommend that the procedures for "Primary Registration" of land
rights be accelerated and completed within a reasonable and fixed time period.
m) The Civil Administration should be instructed that there is no prohibition whatsoever on additional construction within the bounds of a settlement built on land initially seized by military order,
and such requests should be considered at the planning stage only.
n) We also recommend advancing the planning and declaration procedures regarding nature preserves and parks in all those areas ofJudea
and Samaria
under Israeli responsibility.
their function of examining plans that have been submitted to them by each settlement, without any further need for additional approval by the political level.
c. Pending completion of those proceedings and examination of the possibility of granting valid building permits, the state is advised to avoid carrying out demolition orders, since it brought about the present situation by itself.
d. With a view to avoiding doubt, it is stressed that all the settlements, including those approved pursuant to this proposed framework, may in the future, extend their boundaries in order to respond to their needs, including natural growth, without the need for additional government or ministerial decision, as long as the proposed extension is located within the jurisdiction of the settlement, within its boundaries as set out in the approved town plan, and has received due approval from the planning and zoning authorities.
e. Settlements established wholly or partially on land that is subject to examination as to whether it is public or private land ("seker"), are to be considered settlements whose legal status is pending. Most of these were established years ago, and it is thus necessary to accelerate the slow examination process ("seker") in all areas of
f. In the event of conflicting claimants to land, it would be appropriate to adopt a policy whereby prior to any determination by the state regarding petitions for eviction or demolition, a thorough examination of the conflicting claims be conducted by a judicial tribunal dealing with land issues. This is all the more necessary with respect to claims of prior purchase or prescription, or where the possessor acted in a bona fide manner. Pending such determination, state authorities should be instructed to avoid taking any position in land conflicts and carrying out irreversible measures, such as eviction or demolition of buildings on the property.
g. To this end and with a view to facilitate accessibility by local residents to judicial tribunals, we suggest the establishment of courts for the adjudication of land disputes in Judea and Samaria, or alternatively, extending the jurisdiction of district court judges in order to enable them to handle in their courts, land disputes in Judea and Samaria.
h. It is necessary to draft into the security legislation a right for the public to review data banks administered by the various official bodies, including the Civil Administration, concerning land rights in the area of
i. With regard to the "Order concerning Interfering Use in
j. The composition of the Appeals Committee should be changed. It is presently manned by uniformed reserve officers, jurists, who are, of necessity, perceived at the least to be subordinate to, and even under the command of the Head of the Civil Administration. We feel that this situation is not proper, and therefore recommend that the Appeals Committee be composed of non-uniformed jurists, a factor which would contribute to the general perception of the Appeals Committee as an independent body, acting according to its own discretion.
k) The "Procedure for Dealing with Private Land Disputes" must be revoked. Such disputes must only be considered and adjudicated by a judicial body.
I) Security legislation must be amended to enable Israelis to purchase land in
m) The Civil Administration should be instructed that there is no prohibition whatsoever on additional construction within the bounds of a settlement built on land initially seized by military order,
and such requests should be considered at the planning stage only.
n) We also recommend advancing the planning and declaration procedures regarding nature preserves and parks in all those areas of
Finally, we wish to stress that the picture
that has been displayed before us regarding Israeli settlement activity in Judea
and Samaria
does not befit the behavior of a state that prides itself on, and is committed
to the rule of law.
If as a result of this report, the message is
conveyed that we are no longer in the formative stages of the creation of our
state when things were done in an informal and arbitrary manner, we will be
satisfied.
The proponents of settlements, including at the
most senior political levels, should internalize and acknowledge the fact that
all actions on this matter can only be in accordance with the law. Similarly,
official governmental bodies should act with alacrity and decisiveness in
fulfilling their functions to ensure that the law is duly observed.
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