Mainstream media in a panic over Levy reportFor more than 40 years, the international Left in collusion with the mainstream media (MSM) has attempted to impose a narrative on Israelis that would strip us of the fruits of a defensive war and jeopardize our continued survival at the same time. They have done so using a two-pronged argument: First, that there is a demographic time bomb that will force Israel to choose between being a Jewish state and a democratic state somewhere down the road, and second, that allowing Jews to live in areas liberated from their Jordanian, Egyptian and Syrian occupiers in 1967 is somehow 'illegal.'
In order to sustain this narrative, the international Left and the MSM have turned the United Nations resolutions that were passed in the aftermath of that defensive war on their face by adopting a narrative that was specifically rejected by the Security Council at the time. Moreover, the international Left and the MSM have accepted demographic data from a source that is even less reliable than the City of Chicago's voter rolls: The 'Palestinian Central Bureau of Statistics.'
I'm not going to discuss demography in this post - I have discussed it many, many times previously (sampling here). Instead, I am going to discuss the panic being sown on the Left with the publication of the Levy report last week (I discussed the report previously here, here and here).
In an editorial in Wednesday's editions, the New York Times blasts the Levy report. Of course, the editorial makes it sound like Israel has construction saws revving away around the clock in Judea and Samaria. Unfortunately, nothing could be further from the truth.
The Times blasts the report as "bad law, bad policy and bad politics." I'd like to take each of those arguments and disagree. Let's start with 'bad law.'
Most of the world views the West Bank, which was taken by Israel from Jordan in the 1967 war, as occupied territory and all Israeli construction there as a violation of international law. The world court ruled this way in 2004. The Fourth Geneva Convention bars occupying powers from settling their own populations in occupied lands. And United Nations Security Council resolution 242, a core of Middle East policy, calls for the “withdrawal of Israeli armed forces from territories occupied in the recent conflict.”The fact that 'most of the world' views Judea and Samaria, which were liberated by Israel in 1967 from an illegal occupier (only Britain and Pakistan recognized Jordan's occupation) as 'occupied territory' does not make it so. Nor does the fact that 'most of the world' views Israeli construction there as a violation of 'international law' make that construction a violation of international law.
International law has two sources: Treaties and something known as 'customary international law.' The only treaties that govern Judea and Samaria pre-date the State of Israel and grant sovereignty over Judea and Samaria to the Jewish people. Proceedings of the International Court of Justice are only binding on countries that accept its jurisdiction (Israel did not in that 2004 case), and customary international law is not binding on any country that does not adopt the custom. Thus, the statement "Israeli settlements are illegal" is not a statement of international law; it is an opinion on applying international law to a specific circumstance.
Moreover, any "international consensus" about Israeli settlements cannot possibly be a rule of customary international law. Customary international law is the result of common international practice combined with the belief that the practice is required by international law. Therefore, there cannot be a common international "practice" concerning Israeli settlements. Only Israel can have a "practice" concerning Israeli settlements. There can be a customary law about a country allowing its citizens to settle in territory it has captured, not one about another country's answer to a similar dilemma.
As to whether there is an international customary law concerning practices of this type, more generally (i.e., allowing one's citizens to settle in territory captured in international conflict), there is not. Many states have allowed citizens to settle in such territory, and even encouraged them to do so. In some cases (e.g., Morocco and Western Sahara), the practices have been considered illegal, and in others (e.g., India and Goa), the practices have been considered obviously legal. There is no principled line on which to draw the bounds of a rule. In any event, in no case has the world reacted the way it does to Israel. For instance, the EU does not discriminate against products from Western Sahara "settlements" in its free trade agreement with Morocco. The international anti-Israel consensus certainly exists, but it is just as clearly not an expression of customary international law. It is not even a principled application of a rule of law. It is very clearly a singular standard applied to the Jewish state.
In other words, the world's branding of Jewish settlement in Judea and Samaria as an 'illegal occupation' meets Natan Sharansky's 3-D's test for modern anti-Semitism. And you expected better from America's 'newspaper of record'....
The Times goes on to make its 'bad policy' argument.
The recommendations would annul a number of past Israeli Supreme Court rulings and orders, including a 1979 decision forbidding the expropriation of land for “military needs” when the real goal is settlement construction. It is alarming to see this latest attack on the court, which has tried to temper government excesses, ruling that several outposts and buildings constructed on private Palestinian land should be dismantled. Thirty families were evicted from five such buildings last month.In other words, the Times is arguing that Israel's Supreme Court ought to reign supreme rather than being a co-equal branch of government, and that the Knesset - the closest thing we have to a democratically elected polity in in this country - ought to have no say. Were the Times to adopt that standard for the United States, there would be no income tax today. There would have been no New Deal in the 1930's (some people might argue that the US would be better off that way...). Clearly, declaring an unelected Supreme Court infallible and more equal (to use George Orwell's term) does not comport with democratic values. The Times ought to know better.
The commission, led by Edmund Levy, a former Supreme Court justice, was established in January under pressure from settlement leaders.And therefore? Is that supposed to invalidate its conclusions? Does that mean that it can and should be ignored? The previous report on 'settlements' - the Sasson Report - was the result of pressure from the Left. Why is that more valid in the Times' view (except for the fact that the Times likes its conclusions better)?
If its conclusions are not firmly rejected by Prime Minister Benjamin Netanyahu, there is likely to be new international anger at Israel.There's 'international anger' at Israel because we exist. It has nothing to do with whether or not there are a few hundred Jews living in Beit El or Shilo or Hebron or Kfar Tapuach. So the Arabs will seethe a little more? Let them. The only chance that they might (and admittedly this is unlikely) seriously come to the negotiating table is if they see the status quo on the ground changing to their detriment. The Times would have us continue the limbo of the last 45 years. Where has that gotten us?
That could divert attention from Iran just when the world is bearing down with sanctions and negotiations to curb Tehran’s nuclear program.Linkage was discredited three years ago. Even President Obama (who was its chief proponent) has given up on claiming that there has to be a 'Palestinian state' in order for the West to stop Iran. It's nonsense. Iran has to be stopped for many reasons, many of which have nothing to do with Israel. Ask the Saudis and the Gulf States.
It would also draw attention to a dispiriting anomaly: that a state founded as a democratic homeland for the Jewish people is determined to continue ruling 2.5 million Palestinians under an unequal system of laws and rights.The 2.5 million number is nonsense. For those who don't remember why, go here (among other places). And as to the 'unequal system of laws and rights,' let's leave aside the fact that the Arabs in Judea and Samaria are better off in every way than any Arabs in any other Arab country in the world with the exception of those who live within the 1949 armistice lines. What would the Times say if Israel proposed annexing Judea and Samaria outright? What excuse would the Times have then to decry Jews living in Judea and Samaria as 'bad policy'? Go ahead and do it? Well, isn't that where the Levy Report would have us heading?
Finally, there's the Times 'bad politics' argument. It essentially says, "Netanyahu has a large enough coalition that he can do whatever we want him to do, and therefore if he doesn't do it, that's bad politics."
That is unsustainable, and it is damaging to Israel’s security and regional peace. Now that Mr. Netanyahu has expanded his ruling coalition, his excuse is gone for not ending his counterproductive settlement policy and using his new political clout to advance a peace agreement with the Palestinians.We didn't elect the Times editorial writers to be Prime Minister, did we? So why does Netanyahu have to listen to them?
The Levy report injects a fresh new element into the debate over Judea and Samaria, and gives exposure to a view that is under-represented. It should be taken seriously by all who believe in the pursuit of justice and peace in the Middle East, because for the first time an Israeli government panel has made the legal case for Israel holding onto Judea and Samaria. But it won't be taken seriously. Certainly not by the Times.
UPDATE 10:51 PM
Part of the discussion of international law came from an email that I received this morning from Professor Avi Bell. I redacted parts of that email. A large quotation from that email is contained in Soccer Dad's Middle East Media Sampler, which is a few posts up from here.