West Bank: should Australia be concerned?

The canard - supported by countless United Nations General Assembly Resolutions - that Jewish settlements in the West Bank are illegal in international law - has been dealt a crushing blow with the the recent release of the Levy Committee Report in Israel rebutting that claim.

The Committee comprised a retired Supreme Court Judge - Edmund Levy - a Tel Aviv District Court Judge - Tchia Shapira - and a former Foreign Ministry legal adviser Alan Baker. They were appointed by Israeli Prime Minister Benjamin Netanyahu in January 2012 to consider among other matters the legality of Jewish settlements established in the West Bank.

The San Remo Conference held in Italy in April 1920 was the Committee’s starting point.

That Conference had laid the grounds for the eventual creation of the Mandate for Palestine as part of a Mandate system involving the disposition of vast tracts of territory held by the Ottoman Empire for 400 years - but lost by it following its defeat in World War I .

Whilst Arab self-determination was to occur in 99.99% of the captured territory - the right of the Jewish people to reconstitute the Jewish National Home was limited to the remaining 0.01%. of that territory.

The Levy Report elaborates:

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

The International Court of Justice had failed to consider the Mandate and article 80 when it delivered its non-binding advisory opinion on 9 July 2004 that Israel had no legal right to erect part of Israel’s security barrier in the West Bank.

That decision has since been used by the United Nations and detractors of Israel to repeatedly discredit and delegitimise Israel’s right to maintain its claim to sovereignty in any part of the West Bank and for Jews to live there.

Surprisingly it was Egyptian appointee to the International Court - Judge El-Araby - who in fact had cautioned the other 14 Justices against ignoring an examination of the legal effect of the Mandate:

The international legal status of the Palestinian Territory (paras. 70-71 of the Advisory Opinion), in my view, merits more comprehensive treatment. A historical survey is relevant to the question posed by the General Assembly, for it serves as the background to understanding the legal status of the Palestinian Territory on the one hand and underlines the special and continuing responsibility of the General Assembly on the other. This may appear as academic, without relevance to the present events. The present is however determined by the accumulation of past events and no reasonable and fair concern for the future can possibly disregard a firm grasp of past events. In particular, when on more than one occasion, the rule of law was consistently side-stepped. The point of departure, or one can say in legal jargon, the critical date, is the League of Nations Mandate which was entrusted to Great Britain.

Regrettably Judge El-Araby’s sage advice was ignored - as the Levy Report now makes very clear.

In one respect the International Court could be excused for failing to consider the Mandate and Article 80 - since the then Secretary General of the United Nations - Kofi Annan - had failed to include these vital documents in the dossier of 88 documents he was required to submit to the Court that were “likely to throw light upon the question” - as he was legally required to do under Article 65 of the Court‘s statute.

The International Court’s decision was fatally flawed as a result.

If you only submit half the relevant documents - you are sure to get only half an answer.

Those persons who prepared the dossier of documents and Mr Annan himself now need explain how documents - deemed so relevant by the Levy Committee - were omitted from the dossier submitted to the International Court.

The Levy Committee - after having considered the Mandate and Article 80 - concluded:

.. we have no doubt that from the perspective of international law, the establishment of Jewish settlements in Judea and Samaria is legal

The Levy Committee dismissed the opinion of the International Court that the legal status of this tiny sliver of land between Jordan and Israel - the size of Delaware - was solely governed by the provisions of the Fourth Geneva Convention 1949 - when stating:.

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

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.

It would surely be the height of folly for the United Nations and Israel’s denigrators to continue to categorically spruik that Israel’s presence in the West Bank is illegal following the release of the Levy Report.

The United Nations needs to come clean and investigate why highly relevant documents to support the legal claim of Jews to settle in the West Bank were withheld from the International Court.

Will the egg splattered all over the United Nations following the release of the reasoned and considered Levy Report deter it from conducting such an investigation?

The continuing use of the International Court's decision relying on the Fourth Geneva Convention to assert that Israel has no legal right to remain in even one square meter of the West Bank must now be seriously questioned.

Ironically Judge El-Araby is now the Secretary General of the Arab League and meets with Mr Annan frequently in Mr Annan’s new job with the United Nations trying to stop the slaughter in Syria.

Maybe Mr Annan can explain the cover up to Judge El-Araby over a cup of Turkish coffee.

Australia should be concerned at what appears to have been an attempt by the United Nations to pervert the course of justice in the International Court - but will it?