C1. the Levy Commission, Report on the Legal Status of Building In

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!gures. Not surprisingly, the commission’s report supported the long-held Israeli contention that the West Bank is not “occupied” and that therefore the prohibitions of international law (par- ticularly those of the Geneva Convention [IV] relative to the Protection of Civilian Persons in Time of War of 1949) against settlement do not apply. The U.S. State Department responded to the report by saying the United States “do[es] not ac- cept the legitimacy of continued Israeli settlement activity.” Palestinian of!cials observed that the report’s release coin- cided with the anniversary of the 2004 advisory opinion of the International Court of Justice on the Wall, which re- af!rmed the West Bank’s legal status as occupied territory (see JPS 133 [vol. 34, no. 1, Autumn 2004], Doc. A3, pp. ISRAEL 152–54). Israeli human rights organizations, including Yesh Din, B’Tselem, C1. THE LEVY COMMISSION, “REPORT Peace Now, and ACRI, severely criticized ON THE LEGAL STATUS OF BUILDING IN the report (see this issue’s Settlement JUDEA AND SAMARIA,” CONCLUSIONS AND Monitor), and even centrist American RECOMMENDATIONS, JERUSALEM, 9 JULY Jewish organizations such as the Ameri- 2012. can Jewish Committee and the Israel In January 2012, the Israeli cabi- Policy Forum found fault with it, albeit net created an advisory committee later on political rather than legal grounds upgraded to the “Commission to Exam- (see also the Quarterly Update in this ine the Status of Building in Judea and issue). Reproduced here is the of!cial Samaria,” better known as the “Levy English translation of the commission’s Commission” after its chairman, for- conclusions and recommendations, as mer Israeli High Court justice Edmund provided by the Israeli Prime Minister’s Levy. Establishment of the commission Of!ce at www.pmo.gov.il. was partly a response to pressure from (Translation from the original and settlement leaders to overturn the 2005 authoritative Hebrew text.) Sasson Report (see JPS 135 [vol. 34, no. 3, Spring 2005], Doc. C2, pp. 177–81), After having considered the terms commissioned by the government of of reference set out in the Commis- Ariel Sharon, which had established the sion’s mandate, and in light of what we illegality under Israeli law of “unau- have heard, as well as the considerable thorized” settlement outposts. The Levy amount of material that has been pre- Commission was tasked with examining sented to us by a wide range of bodies, the legality under international law of our conclusions and recommendations the entire settlement project in the West are as follows: Bank, not merely the outpost question. Our basic conclusion is that from the Levy and his fellow commissioners (for- point of view of international law, the mer Foreign Ministry legal adviser Alan classical laws of “occupation” as set out Baker and former deputy president of in the relevant international conventions the Tel Aviv District Court Tchia Sha- cannot be considered applicable to the pira) were all closely linked to the settler unique and sui generis historic and legal movement: Levy was the sole High Court circumstances of Israel’s presence in Judea justice to oppose the 2005 Gaza disen- and Samaria spanning over decades. gagement, because it violated settlers’ In addition, the provisions of the rights; Baker resides in a settlement and 1949 Fourth Geneva Convention, regard- worked to legalize outposts; and Sha- ing transfer of populations, cannot be pira is related to prominent right-wing considered to be applicable and were

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never intended to apply to the type of Settlements Division and the settlement activity carried out by Israel Ministry of Housing, and which in Judea and Samaria. have been defined as “unau- Therefore, according to International thorized” or “illegal” due to the law, Israelis have the legal right to settle fact that they were established in Judea and Samaria and the establish- without any formal government ment of settlements cannot, in and of decision, our conclusion is that itself, be considered to be illegal. the establishment of such settlements was carried out with the With regard to the other issues con- knowledge, encouragement and sidered, our recommendations are as tacit agreement of the most senior follows: political level—government min- 1. The Government is advised to clar- isters and the Prime Minister, and ify its policy regarding settlement therefore such conduct is to be by Israelis in Judea and Samaria, seen as implied agreement. with a view to preventing future Regarding these settlements, as interpretation of its decisions in well as those established pursuant a mistaken or overly “creative” to a government decision but lack- manner. We propose that such ing definition of their municipal government decision include the jurisdiction, or without having following principles: completed the planning and zoning procedures, and as a result, a. Any new settlement in Judea have been described as “unauthor- and Samaria will be estab- ized” or “illegal,” the remaining lished only following a deci- outstanding procedures should be sion by the government or by completed as follows: a duly empowered ministerial committee. a. The area of municipal jurisdic- b. Construction within the bounds tion of each settlement, if not of an existing or future settle- yet determined, must be deter- ment will not require govern- mined by order, taking into due ment or ministerial decision, consideration future natural but such construction must growth. be approved by the planning b. The administrative blockages and zoning authorities after imposed on the planning and they have ascertained that the zoning authorities must be proposed construction is not removed immediately, so that contrary to the approved town/ they may fulfill their function of area plan applicable to the land examining plans that have been in question. submitted to them by each c. Extension of an existing settle- settlement, without any further ment beyond the area of its need for additional approval by jurisdiction or beyond the area the political level. set out in the existing town c. Pending completion of those plan, will require a decision by proceedings and examination the Minister of Defense with of the possibility of granting the knowledge of the Prime valid building permits, the state Minister, prior to any of the fol- is advised to avoid carrying lowing stages: commencement out demolition orders, since it of planning and actual com- brought about the present situ- mencement of construction. ation by itself. d. With a view to avoiding doubt, 2. With regard to settlements estab- it is stressed that all the lished in Judea and Samaria on settlements, including those state lands or on land purchased approved pursuant to this by Israelis with the assistance proposed framework, may in of official authorities such as the future, extend their bound- the World Zionist Organization aries in order to respond to

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their needs, including natural residents to judicial tribunals, growth, without the need for we suggest the establishment additional government or min- of courts for the adjudica- isterial decision, as long as the tion of land disputes in Judea proposed extension is located and Samaria, or alternatively, within the jurisdiction of the extending the jurisdiction of settlement, within its boundar- district court judges in order to ies as set out in the approved enable them to handle in their town plan, and has received courts, land disputes in Judea due approval from the plan- and Samaria. ning and zoning authorities. h. It is necessary to draft into the e. Settlements established wholly security legislation a right for or partially on land that is the public to review data banks subject to examination as to administered by the various whether it is public or pri- official bodies, including the vate land (“seker”), are to be Civil Administration, concerning considered settlements whose land rights in the area of Judea legal status is pending. Most of and Samaria. these were established years i. With regard to the “Order ago, and it is thus necessary to concerning Interfering Use in accelerate the slow examina- Private Land”—we are of the tion process (“seker”) in all view that this order must be areas of Judea and Samaria, and cancelled. In the event that it to complete it within a fixed is decided to keep it in force, time period, and to this end, we propose that it be amended even consider, utilizing assis- such that any decision by an tance by external bodies. Upon Appeals Committee will not completion, the processing of be recommendatory but will each settlement will continue obligate the Head of the Civil according to the results of the Administration to act pursuant land examination (“seker”) and to such decision. The Head of determination of the type of the Civil Administration and land, in accordance with the other interested parties may framework proposed by us. appeal the decision of the f. In the event of conflicting Appeals Committee before a claimants to land, it would be Court for Administrative Issues, appropriate to adopt a policy whose decision will be final. We whereby prior to any determi- propose that this arrangement nation by the state regarding be applied also to other deci- petitions for eviction or demoli- sions of the Appeals Committee, tion, a thorough examination including concerning questions of the conflicting claims be of “Primary Registration” of land conducted by a judicial tribunal in Judea and Samaria. dealing with land issues. This j. The composition of the Appeals is all the more necessary with Committee should be changed. respect to claims of prior pur- It is presently manned by uni- chase or prescription, or where formed reserve officers, jurists, the possessor acted in a bona who are, of necessity, perceived fide manner. Pending such at the least to be subordinate determination, state authorities to, and even under the com- should be instructed to avoid mand of the Head of the Civil taking any position in land con- Administration. We feel that flicts and carrying out irrevers- this situation is not proper, and ible measures, such as eviction therefore recommend that the or demolition of buildings on Appeals Committee be com- the property. posed of non-uniformed jurists, g. To this end and with a view to a factor which would contribute facilitate accessibility by local to the general perception of the

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Appeals Committee as an inde- pendent 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. l. Security legislation must be amended to enable Israelis to purchase land in Judea and Samaria directly, and not only through a corporation regis- tered 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 advanc- ing the planning and decla- ration procedures regarding nature preserves and parks in all those areas of Judea and Samaria under Israeli responsibility. 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 mes- sage 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 lev- els, 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 decisive- ness in fulfilling their functions to en- sure that the law is duly observed.

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