The Levy Report: Reinvigorating the Discussion of Israel’s Rights in the West Bank

By: Avi Bell

Published: July 27th, 2012

First published at: BESA Center Perspectives Paper No. 176, July 31, 2012

Earlier this month, Prime Minister Binyamin Netanyahu was presented with the report of the Commission to Examine the Status of Building in Judea and Samaria, headed by former Supreme Court Justice Edmond Levy (the “Levy report”). The report has drawn a flurry of overwrought criticism due to its inclusion of a section concerning the lawfulness of Israeli settlement activity.

In contrast with the misinformed and sometimes outright disingenuous criticism, the report’s discussion of the lawfulness of settlements is surprisingly modest in substance. The report does little more than endorse the traditional official Israeli position that the Fourth Geneva Convention does not apply de jure to the West Bank, and in any event does not bar Israeli settlements. While the report’s analysis is far from comprehensive, it is more detailed and more persuasive than that usually offered by anti-settlement activists.

The Levy report adduces one of two fairly compelling reasons for concluding that the laws of belligerent occupation do not apply de jure to Israel’s presence in the West Bank. One of the sine quibus non of belligerent occupation, as reaffirmed recently in an expert conference organized by the International Committee of the Red Cross, is that the occupation take place on foreign territory. While recent years have seen some debate on the meaning of foreign territory, considerable state practice supports the traditional view that captured territory is “foreign” only when another state has sovereignty. The Levy Commission is on solid ground in observing that neither Jordan nor any other foreign state had territorial sovereignty over the West Bank in 1967 and that the territory cannot therefore be “foreign” for purposes of the law of belligerent occupation. Indeed, had the Levy Commission chosen to so argue, it could have argued cogently that Israel itself was already the lawful sovereign over the West Bank in 1967.

Unmentioned by the report, Israel’s peace agreement with Jordan constitutes a second reason for questioning the de jure application of the laws of belligerent occupation to the West Bank. As Yoram Dinstein wrote some time ago, the rules of belligerent occupation cannot be applied to Israel’s presence in the West Bank “in light of the combined effect of ... the Jordanian-Israeli Treaty of Peace of 1994 and the series of agreements with the Palestinians. There is simply no room for belligerent occupation in the absence of belligerence, namely, war.” While Dinstein qualified his observation by holding several idiosyncratic views regarding the definition of occupation and the status of the Palestinians, as well as by joining a small group of legal scholars who believe in a “post-belligerent occupation” that shares many of the rules of belligerent occupation, the majority position is still clearly that the rules of belligerent occupation do not apply to an agreed-upon peacetime presence.

On settlements, the Levy report likewise adduces several strong arguments to the effect that even if the laws of belligerent occupation applied to Israel’s presence in the West Bank, the Fourth Geneva Convention poses no bar to the kinds of actions that are subsumed under the term “settlement activities.”

The Fourth Geneva Convention forbids “transfers” and “deportations” by the occupying state of parts of its population into occupied territory, but not “settlements.” Officials of the state of Israel have provided services to settlers and sometimes encouraged them, but the state of Israel has not transferred any Israeli to the West Bank against his or her will. In fact, as even anti-settlement activists like Talia Sasson acknowledge, “there was never a considered, ordered decision by the state of Israel, by any Israeli government” on settlements. While some governments of Israel have favored the physical expansion of settlements or the increase of their population, settlement growth has been driven by the preferences of private citizens not by official Israeli population transfers. There is no precedent for any other state being adjudged to have violated the Fourth Geneva Convention simply on the basis of permitting or facilitating private preferences in the way Israel has done. Indeed, this is the reason that the Arab states sought to redefine the bar on “transfers” in international law by including a crime of “indirect” transfers in the Rome Statute creating the International Criminal Court. However, Israel is not a party to the Rome Statute and it is therefore not bound by the alternative, more restrictive standard.

The Levy Commission notes that even if facilitating private Jewish residential preferences in the West Bank were otherwise suspect “transfers,” sui generis rules apply to the area. Article 6 of the Mandate of Palestine demands “encourage[ment], in cooperation with the Jewish Agency … [of] close settlement by Jews on the land, including State lands...” As the late Eugene Rostow, one-time dean of Yale Law School, noted, this command is preserved by article 80 of the U.N. Charter, and, if the West Bank is under belligerent occupation, by article 43 of the Hague Regulations. Additionally, if, as Israel’s critics contend, the International Covenant on Civil and Political Rights applies to Israeli actions in the West Bank, articles 3, 12 and 26 of the Covenant lend urgency to Israeli efforts to protect Jewish housing rights in the West Bank in light of the Palestinian Authority death penalty for land sales to Jews coupled with senior Palestinian officials’ open call for a Jew-free state of Palestine.

Talia Sasson, author of her own controversial 2005 report on outposts, has criticized the Commission on the grounds that its conclusions are contradicted by Israeli Supreme Court rulings. But contrary to Sasson’s assertions, while the Supreme Court has adjudicated cases on the basis of Israel’s voluntary assumption of selected duties of a belligerent occupant, the Court has never ruled that the Fourth Geneva Convention applies de jure to the West Bank.

In opposing the Levy report, Aeyal Gross and David Kretzmer have claimed that if the laws of belligerent occupation do not apply de jure to the West Bank, Israel lacked the authority to empower a military commander to undertake actions such as seizing property in the territory. However, Gross and Kretzmer err. Israel’s administrative law determines the powers given to an Israeli military commander, not international law, and there is nothing to prevent Israel granting various powers to its commander in the West Bank, in the absence of a de jure belligerent occupation. History supplies more extreme examples: the United States applied full military regimes to defeated

Confederate states after the civil war, and to Puerto Rico following a peace treaty with Spain, even though the states were American territory and there was clearly no de jure belligerent occupation.

Some have argued that the Levy report is foolish politically, arguing that by asserting its legal rights, Israel will signal that it is unwilling to entertain “land for peace” compromises. This seems a doubtful thesis. Israel has asserted its legal rights to Jerusalem for decades, but yet repeatedly offered compromises on its rights in the city.

Others have objected that the Levy report’s conclusions can be disputed by international jurists, including by a controversial and non-binding advisory opinion of the International Court of Justice. It is true that like many legal controversies, the questions addressed by the Levy Commission are capable of being analyzed in a number of ways. The Levy Commission’s conclusions are logical applications of reasonable understandings of the rules in an area where no authoritative resolution of the dispute has yet been rendered.

The Levy report has reinvigorated the discussion of the legitimacy of Israel’s position under international law after many years in which Israel has been silent about its legal rights. That is a welcome development.

  

About the Author: Avi Bell is a professor in the Rackman Faculty of Law at Bar-Ilan University and the University of San Diego School of Law.

The decision that will change everything: 1948, 1967, 1973…. 2012?

1948, 1967, 1973 ... 2012? There are those who deem this critical argument that is being waged now as “the campaign of our lives,” and there are indeed various signs which attest to the fact that the moment in which a decision on the Iranian issue must be made is fast approaching.  The decision that will change everything There are those who deem this critical argument that is being waged now as “the campaign of our lives,” and there are indeed various signs which attest to the fact that the moment in which a decision on the Iranian issue must be made is fast approaching. Nadav Shragai A ballistic missile is launched in a demonstration of Iranian military might. | Photo credit: Reuters << 1 2 >> In a country where there is never a dull moment, the media this week pushed the really critical issue of Iran off the front pages. The real debate is happening behind closed doors. In simple Hebrew, the dilemma comes down to three words: p’tzatza o’ haftzatza ("An [Iranian] A-bomb or an [Israeli] bombing campaign") but the reality is not that simple. In fact, it is far more complex. Defense Minister Ehud Barak says that Israel is currently “at the point in which security challenges are likely to become no less fateful than the challenges that stood before the founding fathers at the establishment of the state; no less fateful than the challenges that stood before the state’s leaders in the period leading to the start of the Six-Day War; no less fateful than the challenges that stood before the decision-makers who were called upon to lead in the days leading up to and during the Yom Kippur War.” There are those who deem the critical argument that is being waged now as “the campaign of our lives,” and there are indeed signs attesting to the fact that the moment in which a decision on the Iranian issue must be made is fast approaching. It is possible that we are talking about a matter of months. The public is not well-versed in the details, and perhaps it should be this way, but a concise summary of this dilemma is testament to the difficulty of this issue. On the one hand, we have the alarming signals that are ringing louder as the prospect of a nuclear Iran becomes more real. Iran currently possesses 7,000 kilograms of enriched uranium up to 3.5 percent and 160 kilograms of enriched uranium up to 20%. To manufacture an atomic bomb, Mahmoud Ahmadinejad and his friends need enriched uranium of up to at least 90%. If the Iranians decide to make a sprint — which they have done in the last few months — they could enrich uranium up to 90% within a matter of months. Leon Panetta, the American secretary of defense, confided to Israeli officials his fear that this January could mark the Iranians’ “finish line” in their race to attain the bomb. In the last three months, Iran has enriched 700 kilograms of uranium. Since the current government came to power, the number of centrifuges capable of enriching uranium in Iran has doubled from 5,000 to 10,000. The technological mishap which slowed down the centrifuges caused by the Stuxnet computer virus has already been rectified. There is almost wall-to-wall agreement that a nuclear Iran would render our lives here a living hell while posing a real threat to the existence of the State of Israel. The recent assessments even predict an arms race that would proliferate throughout the region. In response to Iran’s going nuclear, other Muslim countries such as Turkey, Egypt, and Saudi Arabia would make every effort to get their own atomic weapons. On the other hand, there is the price that Israel would pay — namely, an Iranian threat to retaliate against any Israeli attack on its nuclear facilities — by launching rockets at Israeli cities. The projected number of casualties is vague, although it is expected to include “hundreds of deaths.” There are also threats that a number of other fronts are liable to heat up as a result of an Israeli strike on Iran’s nuclear facilities. Hezbollah, which is based in south Lebanon, possesses an arsenal of 60,000 rockets capable of hitting any point in the north. It also has a few thousand missiles that are capable of reaching the center of the country, and hundreds that can threaten towns in southern Israel. In the Gaza Strip, Hamas continues to grow stronger. It and other armed organizations possess some 8,000 rockets, a few of which could reach central Israel. The rise of the Muslim Brotherhood in Egypt and, more importantly, the recent events in Syria, make the Iranian story even more complex. For Israel’s decision-makers, there are other factors that come into play. If Israel decides to strike Iran, it could find itself under assault on a number of fronts. Attack as long as it’s possible Over the past year, Israel and the West have developed a strategy that Haaretz journalist Ari Shavit calls “the third way” — a combination of economic sanctions and covert activity. The problem is that the third way does not eliminate the Iranian threat. It simply postpones it to a later date. There is a growing sense among members of the Israeli establishment that this option has been all but exhausted. Professor Yehezkel Dror (83), a member of the Winograd Commission which probed the decision-making process up to and during the Second Lebanon War, had firsthand access to two Israeli prime ministers (Yitzhak Shamir and Shimon Peres). His expertise lay in the planning and decision-making process in the diplomatic, security, and public spheres. Behind the scenes, he helped craft a number of strategic processes of great importance for the State of Israel. A few weeks ago, Dror authored a policy paper on behalf of the Begin-Sadat Center for Strategic Studies. In short, Dror came out in favor of an attack on Iran, adding that he recommended combining a military offensive with a regional diplomatic overture for peace. The position articulated by Dror — who is renowned as one of the world’s foremost thinkers in the field of administrative science and policy doctrine thanks to many years of research which he devoted to the topic of decision-making processes, policy planning, statesmanship, defense doctrine, and Jewish policy — rocked the establishment. Dror’s views, which have at times been critical of the manner in which sensitive decisions are made in Israel, carry great weight. Up to a year ago, Dror believed that Israel could live with a nuclear Iran. He thought Israel’s deterrent capability and the threat of a nuclear second strike was enough to make Iran think twice before attacking. Now he thinks differently. “A sometimes expressed view is that initiating a preventive war is morally wrong, all the more so when one cannot be sure that without it a harsh war is sure to occur in the future,” Dror writes. “However, this view, though honorable, is primitive and should be rejected. It lacks understanding of the nature of policy as a tool that, by nature, must deal with the future, which is never certain; and it does not give any weight to the important value of preventing pain in the future. Furthermore, such a view clings to what is ‘certain,’ ignoring what ‘may come’ even when very likely or very significant, thus further negating every effort to influence the future, which is always contingent and uncertain.” “The possession of nuclear weapons by Iran poses serious dangers to Israel because of the real possibility that the rulers of Iran may use them, directly or indirectly, against Israel,” he writes. “There also exists the likelihood that Iranian nuclear weapons will cause nuclear proliferation in the Middle East, further increasing the danger. Hopefully, international sanctions will prevent Iran from acquiring nuclear weapons or the U.S. will launch a pre-emptive attack if necessary. But Israel cannot leave the future of its national security to the uncertain decision making of others. If Iranian advances towards construction of a nuclear weapon are not halted, Israel will have no choice but to attack Iranian nuclear and military facilities while they are still vulnerable.” The professor acknowledges that while one can expect a violent reaction from Iran in the case of an Israeli attack, assessments of the damage should not be exaggerated. “Even pessimistic assumptions about the scope of Iranian retaliation make it clear that the expected damage to Israel will be less, by many orders of magnitude, than the destructive potential of an Iranian nuclear attack on Israel,” he writes. Dror’s arguments stirred up a firestorm, with many wondering whether it was possible to place the public’s faith in the hands of the current leadership. Just a few years ago, Dror said that Israel’s leaders were problematic and mediocre. Now, he posits: “If we cannot trust our leadership with regards to an attack against Iran, we cannot trust them also in the event that they refrain from taking a decision for such an attack.” “The decision to refrain from attacking bears consequences and repercussions to the same extent as deciding to attack,” Dror told Israel Hayom. “Both of these decisions are far-reaching. So it’s irrelevant if I trust [the leadership] more or less. My personal tendency is to trust the current leadership. These are serious people who have plenty of experience. I don’t know, but I am convinced that they are doing very thorough staff work on this issue.” In contrast with the criticism that others interviewed for this article have expressed regarding the public nature of the discussions surrounding the Iranian nuclear issue, Dror actually welcomes the debate. “On the one hand, as someone who filled a number of senior positions in the defense establishment, I told myself that once I left these positions I wouldn’t conceive of criticizing the government,” he said. “On the other hand, if those same people think that this is a dangerous decision, it is their duty to say so. As long as they don’t reveal classified information, it is their right.” Still, Dror makes clear that public opinion is not a factor in his thinking. “The public knows nothing, and it has no factual basis to judge these things, and it is also impossible to present the public with all the facts on this issue,” he said. “So its opinion has no weight in my mind.” Dror also doesn’t shy away from taking political considerations into account. “People at the time thought that taking action against the Iraqi nuclear reactor was motivated by electoral considerations,” he said. “I worked in Shamir’s office, and I also got to know Begin. I think that this is slanderous. On the Iranian issue, I believe that the aspects are weighed independent of political considerations, and the decision will be taken purely with the best interests of the future of the State of Israel in mind. Other factors, if they exist, will be particularly marginal, and they will not make the difference.” Fact-checking and agreement Dror is one of a number of public figures from whom we sought comment this week in an effort to examine the decision-making process during two other critical periods in Israel’s history — the days leading up to the Six-Day War and the bombing of the Iraqi nuclear reactor — and to compare them with the critical juncture in which Israel currently finds itself as it relates to the Iranian nuclear issue. Yeshayahu Gavish served as GOC Southern Command in 1967. He remembers well the tremendous pressure that the generals placed on the government to start the war after the Egyptians closed the Straits of Tiran and essentially cut off Israeli shipping to Africa and the east. Gavish acknowledges that he is not privy to sensitive information today, though he does note that at the time the key question was gauging the risk. “Under these circumstances, you have to take into account, among other things, if you go with a pre-emptive strike or if you absorb an enemy blow,” he said. “In the Yom Kippur War, we didn’t hit them with a pre-emptive strike. In the Six-Day War, we saw this as the right solution. The question is not just risk assessment, but who is doing the assessment. In 1967, the generational gaps between the ministers and the generals were especially significant. The generals were young, 40-year-old men who were experienced in warfare. The ministers, almost all of them, were not born in the country, and they were relatively older.” “We had to convince the government that there was no other solution,” he said. “Ben-Gurion was adamantly against the war, and he really had a moderating effect on Yitzhak Rabin, who was chief of staff at the time. I remember the major fear among the ministers who kept asking me whether I was certain of victory, and how we could be so certain we would succeed. They had serious concerns, but the argument was not public. The awareness of the importance of guarding defense secrets was much higher in those days. Today the excessive preoccupation and discussion of the Iranian issue doesn’t contribute to a weighty, serious discussion, in my opinion. Another key factor which we had to deal with then — and I assume that this is the case today as well — is the position of the U.S. Abba Eban, who was foreign minister at the time, thought that the U.S. would oppose our plan. It was only after Meir Amit returned from abroad that it became clear this wasn’t exactly the case.” Shlomo Nakdimon, a journalist and renowned researcher, chronicled the decision-making processes in his book about the Six-Day War (“Towards the Zero Hour”) and the bombing of the Iraqi nuclear reactor (“Tammuz in Flames”). He, too, notes the importance of the debate that unfolded between the generals and the politicians in those days. “One of the generals, Ezer Weizman, even threw his ranks down on the desk of the director-general of the Prime Minister’s Office,” he said. “The other generals, among them Ariel Sharon and Avraham Yoffe, lobbied hard, while Levi Eshkol, who wanted to exhaust all diplomatic options, told them: ‘Patience, children.’” As for “Tammuz,” as the Iraqi nuclear reactor was known, Begin oversaw the portfolio from the moment he received it from his predecessor, Rabin. It was Begin who personally handled the affairs of this issue from that moment all the way until the actual bombardment. Begin left no stone unturned, even going so far as to appoint an external committee of inquiry headed by Maj. Gen. Aharon Yariv. Coordination with the U.S., which the Israeli leadership sought to attain in each of the three cases, is certainly the common denominator. Today, Netanyahu naturally wishes to reach an accommodation with the U.S. to the greatest extent possible. Nakdimon notes that the plan to bomb the Iraqi reactor was kept secret, while today the public freely discusses the consequences of an attack on Iran. “With regards to the Iraqi reactor, everything was under Begin’s control, and the key people who helped him were the commander of the air force, David Ivry, and the chief of staff, Raful (Rafael Eitan),” he said. “Today, Netanyahu is the minister responsible for the Mossad, and, with Ehud Barak, the defense minister, he is perfectly in synch. They are functioning flawlessly together, as if they were Siamese twins.” “They have an outstanding group of seven ministers, three of whom have all the time in the world to devote to national security issues: Dan Meridor, Benny Begin, and Bogie Ya’alon,” he said. “They are also helped by the head of the National Security Council, Maj. Gen. Yaakov Amidror.” This is the spearhead that will accompany Netanyahu every step of the way toward the final decision on whether to bomb Iran. It is a group that includes the chief of staff, the head of military intelligence, and the head of the Mossad. Nakdimon views the many years during which the Iranian nuclear issue was examined, the run-up to the Six-Day War, and the “nearly six-year-long” period during which the authorities carefully weighed and examined the circumstances surrounding the Iraqi nuclear reactor as a necessary time of due diligence. Col. (res.) Ami Gluska, the author of “Eshkol, Give the Order!,” filled a number of senior positions in the military and civilian leadership. He notes that in contrast to the Six-Day War, in which the civilians held back while the generals agitated, the situation today is different. The military is holding back, while the civilians are hawkish. “Nonetheless, it is clear to all that if the government makes the decision, the army will do the deed,” he said. Enough public chatter One of the key figures who closely followed Begin just prior to the decision on bombing Saddam's nuclear reactor was former minister Moshe Nissim, who today works as a private attorney and who is also an advisory member of the committee that recommends senior appointments in the civil service. He notes that disagreements over the bombardment of the reactor crossed military-civilian lines. “The head of the Mossad, Yitzhak Hofi, was completely against,” he said. “His deputy, Nachum Admoni, was in favor. The chief of staff, Raful, was in favor. The head of military intelligence, Yehoshua Sagi, fought bitterly against it. His deputy, a former Hashomer Hatzair youth movement member Aviezri Ya’ari, was in favor. Mottke Tzipori, the deputy defense minister, opposed. Simha Erlich, a political dove, was very much in favor. Shustak Hentz was opposed.” “Back then, there were also fears as to how the Iraqis would respond,” Nissim said. “There was a fear that Iraq would retaliate by bombing the reactor in Dimona, or by launching missiles at the civilian population, or launch a regional war. Those who opposed the plan were also concerned that Egypt may abrogate the peace treaty with Israel or that the U.S. might impose sanctions on us. The supporters, chief among them Begin and myself as well, were of the opinion that the U.S. would ‘punish’ us lightly, and that the chances for successfully carrying out the mission were quite high, and that Iraq did not possess the capability to retaliate. Obviously, the factors that one needs to take into consideration today [with regards to Iran] are much weightier.” Nissim is incapable of understanding how public figures take it upon themselves to openly discuss the Iranian issue. He is particularly furious with former Mossad chief Meir Dagan and former Shin Bet director Yuval Diskin. “What is going on today is an open-air market, and the statements made by Diskin and Dagan are irresponsible and they are causing immeasurable damage to Israel,” he said. “As people who occupied senior posts, they mustn’t be permitted to speak publicly.” Deception as a tool Gavish recalls that two hours before Israel’s opening salvo in the Six-Day War, then-Defense Minister Moshe Dayan appeared on a radio broadcast and declared that Israel had no desire for war. Gavish does not rule out the possibility that the Israeli leadership is using a similar tactic today, assuming a bellicose posture while behind the scenes spurring the U.S. and the international community to take action. “Deception is one of the tools used in this game,” he said. In a detailed paper entitled “For a Slightly Different Mode of Thinking,” Dror raises the possibility that “it would behoove the U.S. for Israel to attack Iran’s nuclear installations, a move which would minimize the damage to U.S. interests.” “The U.S. will intervene after the fact in order to ‘restore the peace,’ and it will take preventative measures to ensure that Iran does not restart its nuclear program,” he wrote. Dror adds: “Many who oppose an Israeli military strike against Iran’s nuclear installations on moral grounds, preferring to avoid exacting casualties in the present over the possibility of preventing even more massive casualties in the future, are enthusiastic supporters of taking definitive security risks in the present for the sake of a peace that is uncertain.” Nonetheless, he says: “Mapping out a responsible policy requires avoiding this flawed line of thinking, both on a moral and a practical level, certainly when the topic at hand is one involving the fate of the nation.” Dror recommends that “we give great weight to preventing risks in the future, even at the price of taking risks in the present.” Barak backed up this opinion recently, saying: “Refraining from action ensures that Iran goes nuclear, and dealing with a nuclear Iran will be more dangerous than stopping it today. In other words, whoever says ‘later’ may find that ‘later is too late.’”

Reflections for Tisha B'Av   David M. Weinberg 7-27-12 Tisha B'Av, the mournful commemoration of Jewish national destruction and self-destruction which falls this weekend, hasn’t quite reached the status of Yom Kippur as a day of reflection and repentance. But it should. Especially here in modern Israel. We are repeating so many of the mistakes made by our ancestors in the First and Second Jewish Commonwealth periods; mistakes which have, in past, brought about social decay, moral decline and political disintegration. All of us ought take a spell from our regular regimen this Sunday, have a seat on the floor, and take a hard, contemplative look at the social or political group we each respectively belong to, and at the state we are building. Or should I say — at the state we are in danger of mangling into ruin. Of course, doing so requires a capacity for self-criticism and a hefty dose of humility. In Israel these days, humility is in short supply. The rich and the successful, and the politically powerful, exude a preening pride and overbearing self-confidence that leaves no room for self-doubt, change or compromise. Israelis are, as a rule, unrepentantly certain that their individual viewpoint is absolutely correct, barring all others. Nevertheless, our society as a whole has a few things to mend. Among the issues we all might want to reflect about this Tisha B'Av are: Violence in society: We’re cavalierly murdering each other in disputes over beach chairs, parking spots, and TV programs. Last week, yet another husband murdered his wife. To that, you can add over 20,000 cases of violence within the family each year; 60,000 burglaries; 14,000 drug related offenses, and so on. Who is going to act to reduce the violence in our schools? Fifty percent of our kids have experienced classroom violence in grades six through ten; 45% report “a lot” of hooliganism, bullying or property destruction in their school; and 14% have required medical attention from injuries sustained in school violence. Economic injustice in society: The average gross income among the top decile of Israelis — the richest ten% of the population — is 48 times the average income in the lowest decile. Put another way, 25 times more money goes to the richest fifth of the population than to the poorest fifth. There is not one Western country, not even the U.S., which comes even close to Israel in the inequality of income distribution. Who is going to ensure socio-economic justice? Educational failures: Seven percent of our youth drop-out of school every year in grades nine through eleven — that is 20,000 kids. In Sderot the drop-out rate is a whopping 21%; 28% in Netivot. New immigrants are also dropping out of high school at a higher-than-acceptable rate. Only 48% of high school students pass their matriculation exams. Who is going to overhaul our educational system? Hatred sowed by politicians: Once upon a time we tended to chalk-up the rough talk to Israeli ‘character’ and shrug it off. But the disgraceful level to which some politicians have sunk over the past year — particularly in the debate over draft of Haredi men — is alarming. Moderation, nuance, restraint and reasonableness have become orphan concepts in this country’s political landscape. The prevailing culture is 'kasach' — unbridled, untamed confrontation. It’s no wonder that there is no exact Hebrew translation for ‘civility’ and ‘subtlety’. We probably wouldn’t know what to make of the words or how to apply them. So on Tisha B'Av it’s worth remembering that a previous Jewish commonwealth disintegrated, our sages say, because everybody hated each other. And because leaders led the vulgarization of society, instead of preventing it. Thus we need leaders who eschew inflammatory, seditious demagoguery. We ought to be able draft many haredim, for example, without demonizing them. The opposition ought to be able to challenge the prime minister for national leadership without having to portray him as a profligate liar in order to get across its messages of hope and peace. The politics of defamation have been tried before in this country with disastrous and tragic results. Beware. Jewish and Zionist identity of society: The attenuation of a proud Zionist-Jewish perspective in our schoolbooks, media, culture and arts scene dangerously threatens to strip us of the moral strength necessary to persevere in the continuing struggle for Israel’s place in the Middle East. It is time to stop and ask ourselves: Has our heightened capacity for self-criticism gone too far? Isn’t it time to re-energize our national spirit with a little historical perspective that allows us to recognize the essential morality of the Jewish return to Zion? What better moment than Tisha B'Av to remind ourselves of our unassailable and unmatchable claim to Jerusalem; to reaffirm the deep roots of Jewish identity and Israeli nationality that run through ancient Jerusalem — far beyond the practical calculus of municipal demographics, security concerns and political timetables? So this Tisha B'Av, let us recommit ourselves to an overhaul of society: to more refined use of language in public discourse, just a little less hacking at each other politically, a touch more tolerance in education, more honesty in business and increased philanthropy, a crackdown on crime, fairer distribution of the national burden, more concern for the widow, orphan and unemployed, and some reverence for heritage and Zionist achievement.

Incorrect And Ill-Advised Assumptions: A Response To Critics Of The Levy Report

By: Alan Baker

Published: July 25th, 2012

Permit me to introduce myself. I am Ambassador Alan Baker, a member of the Edmond Levy Commission established to examine the status of building in Judea and Samaria and to make recommendations to the government on this and related issues.

As you may know, I am the former ambassador of Israel to Canada and former legal adviser to Israel’s Ministry of Foreign Affairs. In the latter capacity, since the early ‘90s I have served as a member in the Israeli delegations to the peace process negotiations with Israel’s neighbors, including the negotiation and drafting of the various agreements between Israel and the PLO.

I read with considerable dismay the letter to Prime Minister Netanyahu, dated July 13, 2012, sponsored by IPF and signed by 41 prominent personalities in the U.S. Jewish community, urging him to reject the Levy Commission's findings and recommendations.

Rather than responding to each individual signatory directly, I am forwarding this response to you both, as chairman and executive director respectively of IPF, in the hope you will ensure that it is circulated among all the other signatories to the letter.

From the content and tenor of the letter, I suspect the signatories are basing themselves on selective media reports and other sources that in fact bear no relation whatsoever to the actual content of the Levy Commission report itself. This is perhaps understandable because, to the best of my knowledge, no English language version of the report exists (apart from a translation by me of the brief summary of the basic conclusion and recommendations).

Accordingly one may presume that none of the signatories have actually read the content of the report. In this context, one may wonder on what basis 41 prominent, important and responsible leaders of the U.S. Jewish community could seriously proffer criticism of a report that they have not read and presume to advise the prime minister of Israel to reject it.

Permit me, with respect, to presume that had the signatories read the report, they would not find any reason to claim, as stated in the letter, that the report "will place the two-state solution, and the prestige of Israel as a democratic member of the international community, in peril.”

Similarly, the description of the report as "legal maneuverings" and as something that will "add fuel to those who seek to delegitimize Israel's right to exist," other than insulting to myself and the other members of the commission in light of our respective contributions to the welfare and prestige of Israel, is totally devoid of any basis.

The central and reasoned conclusion of the report, reaffirming the legal and historic rights and claims of Israel with regard to the area and the nature of Israel's presence therein, is no different from Israel's policy statements over the years, including speeches by all of Israel's leaders and ambassadors in the United Nations, as well as in official policy documents issued over the years by Israel's Foreign Ministry.

There is nothing in the report that could in any way be interpreted as placing the "two-state solution" in peril. The opposite is in fact the case. The report reiterates, in paragraph 9, that despite Israel’s well-based and solid legal and historical claims to sovereignty over the area and the right of Israelis to settle therein in accordance with the requisite legal norms and requirements, as set out in the body of the report, consecutive Israeli governments have chosen to opt and continue to opt in favor of conducting bone fide and pragmatic negotiations with the representatives of the Palestinian people and the Arab states, with a view to determine the fate of the area.

This is completely compatible with the address by Prime Minister Netanyahu to the U.S. Congress last May, quoted in your letter.

The main body of the Levy Report deals with practical ways of resolving the outstanding issues concerning planning, zoning and building in the area, in light of the confusing situation in this field that has developed over the last few years. The report proffers recommendations for adjudicating land-ownership disputes between Palestinian and Israeli claimants – all with a view to ensuring just, proper and fair administration.

The report stresses the need to ensure that genuine land-ownership rights of the local Palestinian population are respected by all related authorities and individuals. It refers to the need for protection of parks and nature reserves, as well as ensuring that all residents of the area – Palestinians and Israelis – are dealt with by the authorities in a fair and proper manner in accordance with all accepted humanitarian norms and principles of justice and due process.

In light of the above, it is difficult to understand the reasoning, if any exists, behind the fears expressed by the signatories that the report will add fuel to those who seek to delegitimize Israel's right to exist.

With great respect, it is surely the publication of incorrect and ill-advised assumptions regarding the report, including those echoed in the above-noted letter, that adds the fuel to those who seek to delegitimize Israel's right to exist.

Without in any way doubting the deep commitment of all the signatories to Israel’s well-being as a Jewish and democratic state, it is to be regretted that they have permitted themselves to be drawn so hastily into criticizing the Levy Report, without justification.

Needless to say I place myself at the disposal of IPF and all the signatories to the letter, in order to assist those interested in understanding the content of the Levy Commission Report.

I am copying this letter to Prime Minister Netanyahu.

Alan Baker is a veteran Israeli diplomat, ambassador and negotiator. 

About the Author: Alan Baker is a veteran Israeli diplomat, ambassador and negotiator.

         Closing a dark chapter

Op-ed: Seven years after disengagement, we must ensure that every Gaza evacuee has a job

Zuri Genish

Published:  07.22.12, 10:36 / Israel Opinion

Seven years seem like a day. Gush Katif remains in our memories and hearts, but for those expelled it touches their pockets and is on their tables as well. As Jews around the world gather this month to mourn the destruction of the Temple and our historical dispersion as a people, we are bound also to remember the bitterest Jewish tragedy of the last decade – a modern-day willfully imposed exodus which continues to plague us until this very day. Afthermath Forgotten victims of social protests? / Shmulik Haddad Six years after disengagement and former residents of Nisanit settlement are still waiting for solutions to financial, residential woes Full story Seven years ago, I was forced out of my home together with 8,600 fellow residents of Gush Katif – the "disengagement." The evictors were not a foreign army or some anti-Semitic despot, but our own democratically elected Israeli government, led by many of the very same individuals who had earlier encouraged us to take up residence in that tiny strip of land along the sparkling blue Mediterranean coast. Although this act was fiercely debated within Israeli society, today there is a widespread feeling across the Israeli political spectrum that disengagement from Gaza was a complete and utter failure of leadership and strategic thinking. The most obvious proof of its failure is that once peaceful townships of Jewish families are today launching pads of terror for thousands of missiles, rockets and mortars raining down on Israeli communities. While this was undoubtedly a national failure and all Israelis and friends should mourn this tragedy, the most affected victims of the expulsion remain those who lost their homes and livelihoods in Gush Katif. Disengagement is pretty much forgotten, yet far too many of those expelled remain in a state of crisis. Families who had been living in large and comfortable homes were forced into makeshift trailers in under-developed parks, sometimes detached from basic infrastructure and commercial centers. Many parents who had dedicated their lives to professions in agriculture and literally turned Gaza sand dunes into bountiful gardens were left homeless and jobless, dependent on charity and assistance from family just to feed their children. Some people may harbor the unspoken thought: "So much time has passed, why hasn't everyone resolved their issues and moved on?" Believe me, this is easier said than done. An employment network אישא I help lead called JobKatif has successfully employed over 2,000 people by launching an excess of 230 new small businesses defined by the unique Israeli attributes of entrepreneurship and tenacity in the face of challenge. This is an amazing feat and a story largely untold. Despite our work, seven years on, over 800 of these Israeli pioneers, people who heeded their government’s call to move to the Gaza Strip, remain jobless. In the greater picture, this is a relatively small number. But each of these individuals who lost so much desperately wants to work. We are committed to taking every last expelled family member off the unemployment rolls. We accomplish this through re-training and systematically matching job opportunities geared to the person’s capabilities. Personal quest I have put my heart into this effort in large part as a personal quest to remedy an injustice that I and my family ourselves endured. Prior to the expulsion my life was defined by love for the land and State of Israel - both of which I retain despite what I have witnessed in recent years. I rose in the ranks of the IDF to the position of lieutenant colonel as a career officer. When I realized that the disengagement was on the horizon, I retired from the military and dedicated every waking hour first to preventing this ill-advised decree from being realized and subsequently, in helping to heal the human damage done by it. I will never forget the moment when I turned away from my home for the last time - the home where my wife and I had forged a family. That beautiful home, previously filled with children and love, was razed. I shudder to even guess at what lies in its place now. Within a year of that harrowing day, I and my family had moved no fewer than five separate times. Throughout that difficult period, I worked tirelessly to help my fellow residents of Gush Katif reclaim their dignity by finding employment. I take great pride in what we have accomplished so far. Yet if we truly claim that the Israeli people and the Jewish people around the world have truly spared no effort to support the Gush Katif evacuees, we must close this bitter chapter in our history by finding a solution for every last person forced out of his or her home. This effort will not be easy, yet the finish line is clearly in sight. To illustrate just how challenging the solution is: One fellow resident, who was shot in the shoulder by terrorists just months before the disengagement, remains handicapped and without work. Once a proud owner of a multi-acre farm producing lettuce and organic vegetables, today he feels largely broken and unable to support his family and face the world. I remain confident that he will again return to gainful employment. Yes, this is an ambitious vision but at this time of year when we mourn our nation’s losses – both ancient and modern - we honestly have no alternative but to remove the blemish of errors committed and reclaim the lives of the Israelis who most directly paid the price of the Disengagement. Zuri Genish is a Lieutenant Colonol (ret.) in the IDF and volunteers as a life coach at Job Katif. He and his family lived in Alei Sinai until the disengagement in August 2005. Joined by his daughter Moran, the writer will be visiting the New York and Toronto areas to discuss his program and vision in an attempt to realize its completion. For more details please visit www.jobkatif.or

Why History Matters: The 1967 Six-Day War The Huffington Post and The Jerusalem Post David Harris, AJC Executive Director June 5, 2012 Mention the word "history" and it can trigger a roll of the eyes. Add "Middle East" to the equation and folks might start running for the hills, unwilling to get caught up in the seemingly bottomless pit of details and disputes. But without an understanding of what happened, it's impossible to grasp where we are -- and where we are has profound relevance for the region and the world. Forty-five years ago this week, the Six-Day War broke out. While some wars fade into obscurity, this one remains as relevant today as in 1967. Many of its core issues remain unresolved and in the news. Politicians, diplomats, and journalists continue to grapple with the consequences of that war, but rarely provide context. Yet without context, some critically important things may not make sense. First, in June 1967, there was no state of Palestine. It didn't exist and never had. Its creation, proposed by the UN in 1947, was rejected by the Arab world because it also meant the establishment of a Jewish state alongside. Second, the West Bank and eastern Jerusalem were in Jordanian hands. Violating solemn agreements, Jordan denied Jews access to their holiest places in eastern Jerusalem. To make matters still worse, they destroyed many of those sites. Meanwhile, the Gaza Strip was under Egyptian control, with harsh military rule imposed on local residents. And the Golan Heights, which were regularly used to shell Israeli communities far below, belonged to Syria. Third, the Arab world could have created a Palestinian state in the West Bank, eastern Jerusalem, and the Gaza Strip any day of the week. They didn't. There wasn't even discussion about it. And Arab leaders, who today profess such attachment to eastern Jerusalem, rarely, if ever, visited. It was viewed as an Arab backwater. Fourth, the 1967 boundary at the time of the war, so much in the news these days, was nothing more than an armistice line dating back to 1949 -- familiarly known as the Green Line. That's after five Arab armies attacked Israel in 1948 with the aim of destroying the embryonic Jewish state. They failed. Armistice lines were drawn, but they weren't formal borders. They couldn't be. The Arab world, even in defeat, refused to recognize Israel's very right to exist. Fifth, the PLO, which supported the war effort, was established in 1964, three years before the conflict erupted. That's important because it was created with the goal of obliterating Israel. Remember that in 1964 the only "settlements" were Israel itself. Sixth, in the weeks leading up to the Six-Day War, Egyptian and Syrian leaders repeatedly declared that war was coming and their objective was to wipe Israel off the map. There was no ambiguity. Twenty-two years after the Holocaust, another enemy spoke about the extermination of Jews. The record is well-documented. The record is equally well-documented that Israel, in the days leading up to the war, passed word to Jordan, via the UN and United States, urging Amman to stay out of any pending conflict. Jordan's King Hussein ignored the Israeli plea and tied his fate to Egypt and Syria. His forces were defeated by Israel, and he lost control of the West Bank and eastern Jerusalem. Seventh, Egypt's President Gamal Abdel Nasser demanded that UN peacekeeping forces in the area, in place for the previous decade to prevent conflict, be removed. Shamefully, the UN complied. That left no buffer between Arab armies being mobilized and deployed and Israeli forces in a country one-fiftieth the size of Egypt -- and just nine miles wide at its narrowest point. Eighth, Egypt blocked Israeli shipping lanes in the Red Sea, Israel's only maritime access to trading routes with Asia and Africa. This step was regarded as an act of war by Jerusalem. The United States spoke about joining with other countries to break the blockade, but did not act. Ninth, France, which had been Israel's principal arms supplier, announced a ban on the sale of weapons on the eve of the June war. That left Israel in potentially grave danger if a war were to drag on and require the resupply of arms. It was not until the next year that the U.S. stepped into the breach and sold vital weapons systems to Israel. And finally, after winning the war of self-defense, Israel hoped that its newly-acquired territories, seized from Egypt, Jordan, and Syria, would be the basis of a land-for-peace accord. Feelers were sent out. The formal response came on September 1, 1967, when the Arab Summit Conference famously declared in Khartoum "No peace, no recognition, no negotiations" with Israel. Today, there are those who wish to rewrite history. They want the world to believe there was once a Palestinian state. There was not. They want the world to believe there were fixed borders between that state and Israel. There was only an armistice line between Israel and the Jordanian-controlled West Bank and eastern Jerusalem. They want the world to believe the 1967 war was a bellicose act by Israel. It was an act of self-defense in the face of blood-curdling threats to vanquish the Jewish state, not to mention the maritime blockade of the Straits of Tiran, the abrupt withdrawal of UN peacekeeping forces, and the redeployment of Egyptian and Syrian troops. All wars have consequences; this one was no exception. But the Arab aggressors have failed to take responsibility for the actions they instigated. They want the world to believe post-1967 Israeli settlement-building is the key to the Arab-Israeli conflict. The Six-Day War is proof positive that the core issue is, and always has been, whether the Arab world accepts the Jewish people's right to a state of their own. If so, all other contentious issues, however difficult, have possible solutions. And they want the world to believe the Arab world had nothing against Jews per se, only Israel, yet trampled with abandon on sites of sacred meaning to the Jewish people. In other words, when it comes to the Arab-Israeli conflict, dismissing the past as if it were a minor irritant at best, irrelevant at worst, won't work. Can history move forward? Absolutely. Israel's peace treaties with Egypt in 1979 and Jordan in 1994 prove the point. At the same time, though, the lessons of the Six-Day War illustrate just how tough and tortuous the path can be.

The Levy Report and the 'occupation' narrative Dore Gold  7-20-12 Looking back over the last two weeks, what appeared to hit a raw nerve with critics of the report of Justice Edmond Levy's committee was not what it had to say about the specific issues for which it was appointed, like zoning and planning in the West Bank, 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." How did Justice Levy, who recently retired from Israel's Supreme Court, reach this conclusion along with his two colleagues? They argued that the Israeli presence in the West Bank was unique, sui generis, because there was no previously recognized sovereign there when it was captured by the Israel Defense Forces during the Six-Day War 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 from the League of Nations. There were other issues that made the Israeli presence in the West Bank unique. 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, in accordance with the Oslo Accords, also made the situation complex: as a result, some functions of government were retained by the IDF, other functions 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. True, 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" also did not diverge from traditional Israeli legal opinions. 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." It is instructive to see how the international community looks at far clearer cases of territories that came under military control of foreign forces as a result of armed conflict. On July 20, 1974, the Turkish Army invaded Cyprus, which had been an independent state since 1960, taking over 37 percent of the island. The Turkish zone declared its independence in 1983, but no state, except Turkey, recognized the new government. How does most of the international community refer to the territory of Northern Cyprus? The fact of the matter is that they don't label it an "occupation." When the EU accepted Cyprus as a new member state in 2004, it prepared a memorandum explaining that the accession to the EU was suspended "in the area of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control." There is also the example of Western Sahara, which was taken over completely by the Moroccan Army in 1979. After Spain withdrew from the territory and a joint administration with Mauritania failed to emerge, Morocco viewed Western Sahara as Moroccan territory. Morocco's claim was challenged by the Polisario, backed by Algeria. The International Court of Justice in The Hague formally rejected the Moroccan claim of sovereignty, recognizing the right of the people of Western Sahara to self-determination. In repeated resolutions in the U.N. over the future of Western Sahara, it was not called "occupied territory," even though the Moroccan Army has been sitting on land beyond the borders of Morocco. At the end of World War II, the Soviet Army invaded Japan and occupied the Kuril Islands, which had been previously Japanese territory. Here again, the Japanese Foreign Ministry's recent paper on the Kuril Islands doesn't even speak about ending the Russian occupation, but rather about the need to "reach a settlement of this unresolved issue of the Northern Territories." All three cases, Northern Cyprus, Western Sahara, and the Kuril Islands, are open and shut cases of foreign occupation under international law and yet in the diplomatic arena the term "occupation" is not formally applied to them. Ironically, in the case of the West Bank, where the Israeli presence is a far more complex legal issue, the term "occupation" has been uncritically applied, even by Israelis. Thus the decision to use the term "occupation" appears to emanate as much from political considerations as it does from any legal analysis. For "occupation" is a term of opprobrium. In much of Europe, the term still invokes memories of the Nazi occupation of France. Those being constantly bombarded by the term "occupation" in Europe undoubtedly make subconscious links between Israeli behavior in the territories and the events of the Second World War. Indeed that is the intention, in many cases, of those adopting this language, despite the fact that such analogies are repulsive to anyone with the least bit of Jewish historical memory. Nonetheless, pro-Palestinian groups, and their allies on the far left, use the charge of "occupation" as part of their rhetorical arsenal, along with "colonialist, apartheid state," for waging political warfare against Israel. The charge of "occupation" has evolved into one of the most potent weapons in the delegitimization campaign against Israel. It is noteworthy that the International Committee of the Red Cross (ICRC) in Geneva published a study on the subject of occupation in April 2012 that concluded that the term had unquestionably acquired a "pejorative connotation." Experts attending the meetings of the ICRC recommended replacing the term with new legal nomenclature to get wider adherence to international humanitarian law by those who were occupying foreign territory but wanted to avoid the occupation label. There are also well-meaning Israelis who call for an "end to the occupation" to build internal political support for a full Israeli withdrawal from the West Bank, by appealing to the conscience of Israelis who do not want to think of themselves as occupiers nor have the world community see them this way. But in making this call, its advocates take away from Israel the rights it acquired in U.N. Security Council 242 that did not require it to pull back to the pre-1967 lines, which have been regarded by most Israeli leaders from Rabin to Netanyahu as indefensible. Levy's committee has restored Israel's legal narrative about its rights in the West Bank. There are those who charged that in rejecting the application of the term "occupation" to the Israeli presence in the West Bank, the Levy committee's report will set the stage for eventual Israeli annexation of the territories. Of course these concerns are baseless. The report of the Levy committee says absolutely nothing about what political solution for the future of the West Bank is desirable. Israel is not going to persuade its international critics to change their views on the status of the territories. Nonetheless its conclusions are still important for one diplomatic scenario, in particular: a negotiated end of the Israeli-Palestinian conflict in the future. For at the end of the day, there is a huge difference in how a compromise will look if Israel's negotiating team comes to the peace table as "foreign occupiers," who took someone else's land, or if they come as a party that also has just territorial claims. The Levy Report is first of all for Israelis who need to understand their rights which unfortunately have been forgotten since the days of Abba Eban and Chaim Herzog. Levy's discourse is relevant for the Palestinian side in one important respect. If the Palestinians are constantly fed by the international community the "occupation" narrative, their propensity to consider making a real compromise, which is critical for any future agreement, will be close to nil. In fact, this false narrative only reinforces their mistaken belief in the delegitimization campaign against Israel as an alternative to seeking a negotiated settlement of the conflict. Rather than creating a setting for diplomacy to succeed, it only makes a real Middle Eastern peace more remote than ever.