Settlements: What Israeli lawyers really think.

AIJAC

On January 27, the Australian‘s Middle East correspondent John Lyons reported that a group of “eminent Israelis” and, separately, four “leading lawyers” had written to Australian Foreign Minister Julie Bishop in response to her comments questioning the so-called conventional wisdom that Israel’s settlements are illegal. The group, Lyons reported, urged Australia to “continue to support ‘the international consensus'” that the settlements are illegal, and noted Ms Bishop’s comments “with deep concern”.

Lyons mentioned by name one of the four lawyers, former Israeli Attorney-General Michael Ben-Yair, and four of the “eminent Israelis”, “professor emeritus Yehoshua Kolodny; professor emeritus Yehuda Judd Neeman; professor emeritus Ram Loevy; and photographer Alex Levac” who, he noted, have all been winners of the Israel Prize, the country’s most prestigious award.

Lyons did also note that:

“Israel insists the settlements are not illegal. Former government legal adviser Alan Baker recently wrote to US Secretary of State John Kerry:

‘Your determination that Israel’s settlements are illegitimate cannot be legally substantiated.
‘The oft-quoted prohibition on transferring population into occupied territory (Article 49 of the Fourth Geneva Convention) was, according to the International Committee of the Red Cross’s own official commentary of that convention, drafted in 1949 to prevent the forced, mass transfer of populations carried out by the Nazis in the Second World War.
‘It was never intended to apply to Israel’s settlement activity’.”

But which view better represents the opinions of Israeli lawyers, and who are these eminent Israelis, who felt so concerned by Ms Bishop’s comments that they felt the need to write to her to urge her to reconsider?

Michael Ben-Yair. Attorney-General from 1993-1996.

Michael Ben-Yair was Israel’s Attorney-General from 1993-1996, but his views on this issue seem quite extreme. According to Ynetnews.com, Mr. Ben-Yair posted on his Facebook page last year that

“The settlements are the most evil and foolish acts since World War II.”

One of his Facebook friends responded,

“Do you claim that the settlements are worse than Pol Pot’s regime in Cambodia? Than Stalin’s crimes against his people? Than Darfur?”

to which Ben-Yair wrote,

“Definitely. The settlement movement is a political act by a state against another people and as such is the most evil and immoral act since the end of World War II.”

Clearly this is not a perspective that most sensible people would share.

Professor Yehoshua Kolodny won his Israel Prize for his contribution to the study of earth sciences. He has previously signed a petition of Israeli academics boycotting Ariel University, because it is in the West Bank. The petition stated that the contrast between Ariel and the Palestinian areas around it constitute “two different realities that forge an apartheid state.”

Last year, together with Ben-Yair and Levac, he was among a group of Israelis who signed a petition supporting “the European Union recommendation to its member states, to avoid signing agreements with Israeli organizations and companies if they are active, directly or indirectly, in the occupied territories over the green line of June 4, 1967.”

Yehuda “Judd” Ne’eman, a filmmaker who is strongly critical of Israel’s government and establishment, at least had the perspective to accept that there are worse countries than Israel. On being awarded his Israel Prize, he told Ha’aretz,

“With all the horrible things Israel does, I know that from the perspective of history, on the scale of evil, we are not at the top of the chart.”

In an opinion piece on IsraCampus.Org.il, Alon Ben Shaul was harshly critical of the decision to award the Israel Prize to Ne’eman, writing that “He has accused Israel of Apartheid and war crimes, called to boycott its institutions and supports the right of return.”

Ram Loevy is also a filmmaker and documentary maker whose works are constantly critical of Israel’s establishment.

Meanwhile, Alan Baker, who was formerly a legal adviser for the Israeli Foreign Ministry, is far from a lone voice in arguing that Israel’s settlements are legal.

Australian Julius Stone, who was Challis Professor of Jurisprudence and International Law at the University of Sydney from 1942 to 1972, and Eugene Rostow, a former Dean of Yale Law School and Under Secretary of State for Political Affairs are among a host of international law experts who have argued the case.

Levy reportWithin Israel too, there are copious examples of authoritative legal argument that the settlements are legal. The Levy Report, commissioned by the Israeli Government and produced by a committee consisting of former Supreme Court Justice Edmund Levy, former Deputy President of the Tel Aviv District Court Tchia Shapira, and Alan Baker.

The LevyReport stated:

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 suf generis historic and legal circumstances of lsrael’s presence in Judea and Samaria spanning over decades.

ln 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 lsrael 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.

The blog Elder of Ziyon has provided some translations of the legal arguments used to reach these conclusions.

As reported by Canada’s Jewish Tribune, a group of 350 lawyers in Israel have joined together with counterparts in the US and Canada to form the International Action Division of the Legal Forum for Israel, specifically to use international law to rebut claims that Israel’s settlements are illegal.

When Alan Baker wrote a petition to Catherine Ashton, the High Representative of the Union for Foreign Affairs and Security Policy of the European Union, stating that the EU was wrong to declare the settlements illegal, more than 1,000 jurists worldwide signed, including Israelis.

That’s considerably more than the four lawyers who signed the letter to Ms Bishop.

Every democracy, and seemingly every Jewish community, including our own, has members who not only dissent from the mainstream, but brandish their dissent as a badge of honour, gaining prominence they would not otherwise attract and, in some cases, even making a career out of it. Israel, being a more vibrant democracy than most, and having more controversial issues to deal with, sees this phenomenon more than most.

That, of course, is their democratic right, but it’s always unfortunate when the views and interpretations of a very small but noisy minority are made to appear as significant as, or even overshadow, the views of the majority.

– Jamie Hyams

Australia Israel Jewish Affairs Council

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7 comments

  1. It is about time this was said.

    This issue was moot under the Oslo Fraud because we were conned into thinking that Arafat wanted a two state solution. So it was ignored. Everyone was too focused on building up this grand and retrospective notion of “Palestine” out of thin air and stoking their egos in the hope they would be nice. In the meantime the “illegal” thing became taken as a given. It was conceded by default in the propaganda war.

    This “illegal under international law” that is tossed around became tiresome long ago and not just because it is wrong. It is because it is only ever tossed at the Israelis.

    • Geoff the whole narrative is wrong and Israel is wrong, very wrong for not setting the record straight to start with.

      • 1967 when Israel defeated Jordan and claimed back Judaea and Samaria, the name should have reverted to its original one. The Jordanians named the area the ‘West Bank of Jordan’ to differentiate it from Jordan proper. Why in G-d’s name did Israel start calling it the West Bank?

      • In June 4th 1967, when the Arabs took the Jordanian flag , removed the star and invented a whole new race of people calling themselves Palestinians, we should not have carried on with the fairy tale.

      • Settlements are COMMUNITIES, not settlements. How on earth can they be illegal? The land these communities are built on belonged to no one. How on earth can the fictitious Palestinians say it is stolen land?

      • In 1948, they choose to go to war rather than accept the UN’s decision to partition Palestine between its Jewish and Arab populations. They never claimed the land.

      • In 1967 Israel offered to relinquish the land it had acquired in exchange for peace with its neighbours, the Arab world’s response issued at a summit in Khartoum, was not one no, but three:

      “No peace with Israel, no negotiations with Israel, no recognition of Israel.”

      • In 2000 at Camp David the Arabs were offered a sovereign state with shared control of Jerusalem and billions of dollars in compensation for Arab refugees. Yasser Arafat refused the offer, and returned to launch the deadly terror war known as the Second Intifada. Whilst we are at it offering compensation for 700,000 people, most of whom fled at the insistence of their own leaders ( all well documented ), why isn’t Israel demanding compensation for the million or so Jews who were forced to leave Arab/Muslim lands. Leaving behind thriving businesses, homes etc.?

      • In 2008 Ehud Olmert offered Mahmoud Abbas a peace agreement that would have guaranteed a Palestinian state in virtually all the West Bank, Gaza, and part of Jerusalem. Once again, the offer was turned down.

      • Why when the ignorant ratbag leftists starting calling Israel an ‘Apartheid State’ didn’t we knock that idiocy on the head straight away.?

      • How can the world believe Abbas wants peace when we see videos and junk coming daily from the PA?
      MEMRI – Middle East Media Research Institute http://www.memritv.org/
      Palestinian Media Watch http://www.palwatch.org/

      • How can the world believe Abbas wants peace when even whilst Kerry is there ‘talking peace’ and the Prime Minister of Canada is there, the rockets are still landing? Another 3 today. Why doesn’t the world see this?

      • How on earth can Kerry even discuss ‘peace with Abbas, when he has no legal right to be there.

      He is now in the 10th year of a 4 year presidency?

      • The worst thing of all Israel did was to withdraw from Gaza for peace. What a pathetic joke that was/is.

  2. Shirlee’s synopsis exacts the most relevant issues. The Khartoum declaration and all subsequent ( not to mention up to its event ) statements and political attitudes of the Arab world and specifically the “palestinian” contimgent DO NOT keep the settlements as the essential or even a secondary reason for refusing to arrive at a reliable agreement with israel on anything at all.
    The settlements are a very residual, UNIMPORTANT pretext. The legality or otherwise of the few Jews residing in minuscule pieces of land is a farcical platform on which various types of IRRITANTS vent off their ineptitudes. It is not at all accidental that the vast majority of those involved in political kibitzing, side-line petulant redundants, hold NO official tenures in institutions relevant to the political process. Most of them are retired frustrated ignored neurotics. That Arab governments and other Islamic entities close ranks against anything Israel or its citizens do is only a organic phenomenon. The non-Arab, non Muslim fellow travellers are characterised by that notion of side-lined non-entities.
    More the reason for our reasonable FA Minster Lady to ignore them completely.

    Just imagine, if the ‘settlements” would never had occured, would then the current enemies of Israel be more amiable, more affable, more willing to acceed to ANY reasonable gestures toward Israel !!?? Without a doubt, with or without settlements, we’d be precisely where we are right now !!

    • Spot on Otto.

      The Communities are only built on about 7% of the land around, and protecting Jerusalem. That 7% is including roads.

      I am heartily sick of this. The Arab population of the REGION known as Palestine has had plenty of opportunity to claim their land and to live in peace. Their leaders have stolen their money. I have lists and lists of the ‘paper trail’ left by Arafat of the money he stole.

      Abbas’ two sons are multimillionaires on the backs of their own people.

      “EU says PA ‘squandered’ 1.95 billion euros in aid

      European Court of Auditors’ report says billions given by European Union to economically struggling Palestinian Authority have been “lost to corruption” • Report finds “significant shortcomings” in spending of aid funds allotted between 2008 and 2012.”
      http://www.israelhayom.com/site/newsletter_article.php?id=12563&r=1

    • “Just imagine, if the ‘settlements” would never had occured, would then the current enemies of Israel be more amiable, more affable, more willing to accede to ANY reasonable gestures toward Israel !!?? Without a doubt, with or without settlements, we’d be precisely where we are right now !!”

      Good point.

      Here’s another. If Israel had never existed there would have not been a “Palestine” in its place. Why would there have been given that such an entity was unknown in the Arab/Muslim world? The modern concept of “Palestine” is not so much a state but an anti-state. The first in all of history.

      Nor would there have been peace.

      What would have been there instead of Israel would have depended on who won the most recent war.

      • I can tell you stories galore about my father’s childhood in eretz Israel in the 1920.
        The Arabs were fighting and killing then, even though they were the majority population.

        In 1922, when my father was two years old, his 19 year old brother, who was in the Hagannah, was killed in an Arab riot.

  3. Ben-Yair is an idiot. Everything he writes on his FB page proves this.
    Relying on Geneva IV against the settlements is evidence of stupidity and legal illiteracy.