In January 2012, Israeli prime minister Benjamin Netanyahu and Yaakov Neeman, the justice minister, turned to former Israeli supreme court justice Edmond Levy to head a panel of legal experts that would look into questions of land ownership in the West Bank. The initiative came about when it was discovered that a housing project in the settlement of Beit El, north of Jerusalem, had been built years earlier on Palestinian private land, and the government decided to adhere to the judgment of the Supreme Court to have the Israeli building project removed. The panel was intended to study how Israeli decision-making had been made in the past and what could be done to avoid such situations in the future.
Yet, looking back over the last two weeks, what appeared to hit a raw nerve with the critics of the report, that was just released in July by Levy's committee, was not what it had to say about the issues, for which the committee was appointed, but rather with how it dealt with the broader narrative for describing the Israeli-Palestinian conflict. This became evident in how the reaction focused on the report's conclusion that "the classical laws of 'occupation' as set out in the relevant international conventions cannot be considered applicable to…Israel's presence in Judea and Samaria" (the West Bank). It was this sentence that was paraphrased and plastered on the headlines of Israeli newspapers and became a subject of debate in the international media as well.
How did Levy's panel reach this conclusion along with his two colleagues, Tehiya Shapira, the former deputy president of the Tel Aviv District Court, and Alan Baker, the former legal advisor of the Israeli foreign ministry in the 1990s? It was Baker who brought in a unique expertise having been one of the main drafters of many of the Oslo Accords with the Palestinians. The panel argued that the Israeli presence in the West Bank was sui generis, because there was no previously recognized sovereignty there when it was captured by the IDF in 1967. The Jordanian declaration of sovereignty in 1950 had been rejected by the Arab states and the international community as a whole, except for Britain and Pakistan.
Moreover, as the Levy Report points out, the Jewish people still had residual historical and legal rights in the West Bank emanating from the British Mandate that were never cancelled, but rather were preserved by the U.N. Charter, under Article 80—the famous “Palestine Clause” that was drafted, in part, to guarantee continuity with respect to Jewish rights won at the League of Nations.
Finally, with the advent of the Oslo Agreements in the 1990s, there was no longer an Israeli military government over the Palestinian population. Indeed, the famous 1949 Fourth Geneva Convention on occupied territories stipulates that an occupying power is bound to its terms “to the extent that such a Power exercises the function of government in such territory (Article 6).”
Yet the establishment of the Palestinian Authority in 1994 made the situation complex. For as a result, some functions of government were retained by the IDF, others were exercised by the Palestinians, and there were also shared powers. In other words, the situation on the ground in the West Bank was not black and white, which allowed moral judgments to be easily made about a continuing Israeli occupation. The Palestinians did not have an independent state, but they could not be considered to be under "occupation" when at the same time they were being ruled first by Yasser Arafat and then by his successor, Mahmoud Abbas.
The idea that the West Bank could not be simply characterized as "occupied" comported with traditional Israeli legal opinions. For instance, Israel's former ambassador to the U.N., Chaim Herzog (who would later become Israel's president), appeared in the General Assembly on October 26, 1977, and laid out Israel's legal status in the territories with respect to the Fourth Geneva Convention on occupied territories. He stated: "In other words, Israel cannot be considered an 'occupying Power' within the meaning of the Convention in any part of the former Palestine Mandate, including Judea and Samaria."