Why Does Israel Say It Stays in the West Bank?
The Levy Report of 2012, a 1979 Knesset statement and Oslo II Article XXXI, quoted as Israeli bodies published them.
Paragraph 65 of the Levy Report, signed on 21 June 2012 by the Commission to Examine the Status of Building in Judea and Samaria, states that the classical laws of occupation “cannot be considered applicable” to Israel’s presence there, and that “the establishment of settlements cannot in and of itself be considered to be illegal.” The commission was appointed by the Prime Minister and the Minister of Justice on 13 February 2012, and its report is that commission’s own legal position, published by a body the Israeli government appointed. The other published grounds sit in a Knesset statement of 20 March 1979 and in the Oslo II agreement of 28 September 1995.
| Figure | What it counts | Who published it | Period |
|---|---|---|---|
| Paragraph 65, page 74 | The conclusion that occupation law is inapplicable and settlement not in itself illegal | Commission to Examine the Status of Building in Judea and Samaria | Signed 21 June 2012, released 9 July 2012 |
| Page 78 | The statement that the recommendations require a government decision to be adopted | Commission to Examine the Status of Building in Judea and Samaria | Signed 21 June 2012 |
| 5 justices | The expanded panel that dismissed the Beit El petitions in HCJ 606/78 | Ministry of Justice, Roots in Law project, on the Supreme Court judgment | Judgment of 15 March 1979 |
| Volume 21, page 1896 | The Knesset record of the Prime Minister’s statement on civilian settlement and security | Ministry of Justice, Roots in Law project, citing Divrei HaKnesset | Statement of 20 March 1979 |
| Article XXXI(5) to (7) | Clauses deferring settlements and borders to permanent status and preserving both sides’ claims | Israel and the PLO, English text published by the Israeli Ministry of Foreign Affairs | Signed 28 September 1995 |
| 3 redeployments, 18 months | The further redeployments the Agreement schedules and the period set for them | Israel and the PLO, English text published by the Israeli Ministry of Foreign Affairs | From the inauguration of the Palestinian Council |
The 2012 Levy Report calls occupation law inapplicable to Israel’s presence
The Levy Commission, appointed by the Israeli government, published the fullest Israeli official statement of the legal ground for the presence, and the conclusion is that commission’s own reading of international law rather than a finding of any court or a decision of any cabinet. Its conclusion at paragraph 65, page 74, runs in three limbs.
- The classical laws of occupation set out in the relevant international conventions “cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria spanning over decades.”
- Therefore “the establishment of settlements cannot in and of itself be considered to be illegal.”
- Settlements built without a government decision were established “with the knowledge, encouragement and tacit agreement of the most senior political level,” which the commission treats as implied agreement.
The crispest wording on authorising those settlements sits in the report body at page 55, in a translation produced by an organisation that made submissions to the commission. The Conclusions section, pages 73 to 77, is the government’s own English.
In 1979 the Prime Minister called settlement part of security
The Ministry of Justice records, in its own published account of Israel’s judgments, that the Prime Minister told the Knesset on 20 March 1979 that the Court had ruled “civilian settlement is part of Israel’s security system,” at Divrei HaKnesset volume 21, page 1896. The statement followed HCJ 606/78, Beit El, decided five days earlier. The Ministry of Justice states that attributing the remark to the later Elon Moreh judgment is a widespread error, and that the words spoken were “there are judges in Israel.”
| Element of the Beit El judgment | What the Ministry of Justice records |
|---|---|
| Date and panel | 15 March 1979, an expanded panel of five justices |
| Outcome | The petitions were dismissed |
| Justiciability | The provisions relied on were held to be conventional law between states, not customary law, so the legality of settlement was a political question |
| Requisition | Taking the land was held not to be prohibited expropriation, given the temporary security consideration |
Source: Ministry of Justice of Israel, Roots in Law project, published 21 March 2019, reporting HCJ 606/78, PD 33(2) 113.
Oslo II Article XXXI leaves settlements and borders to permanent status
Oslo II is a bilateral instrument signed by Israel and the PLO, and the English text quoted here is the one published by the Israeli Ministry of Foreign Affairs, a party to it. Its final clauses defer the questions the reader is asking about rather than resolving them.
| Clause | What the text says |
|---|---|
| Article XXXI(5) | Permanent status negotiations “shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors” |
| Article XXXI(6) | Neither party is “deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions” |
| Article XXXI(7) | “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations” |
| Article XVII(4)(a) | Israel, through its military government, has authority over areas not under the Council’s territorial jurisdiction |
| Article XI(3) and XII(5) | Area C is defined residually as the West Bank outside Areas A and B, and “the Settlements” means, in the West Bank, the settlements in Area C |
That residual definition is the basis of the two legal tracks that operate in the area.
Oslo II scheduled 3 further redeployments within 18 months
The same agreement, in the text published by the Israeli Ministry of Foreign Affairs, sets a timetable alongside those deferrals. Article XI(2)(d) and Annex I, Article I(9) provide for three further redeployments “each to take place after an interval of six months,” to be completed “within 18 months from the date of the inauguration of the Council.” Annex I, Article I(5) provides that after that inauguration “the Israeli Civil Administration will be dissolved and the Israeli military government will be withdrawn,” while Article XI(2) transfers to the Council, in Area C, only “civil powers and responsibilities not relating to territory.”
The Levy Report states its recommendations require a government decision
The Levy Commission closes, at page 78, with the status of its own work as the commission itself put it: “Should the government decide to adopt our recommendations, it will be necessary to implement those principles in detail.” At paragraph 65, page 77, the same commission appointed by the Israeli government criticised the state it reported to.
- “The picture that has been displayed before us regarding Israeli settlement activity in Judea and Samaria does not befit the behavior of a state that prides itself on, and is committed to the rule of law.”
- “All actions on this matter can only be done in accordance with the law.”
- No Israeli body in this record publishes a government decision adopting the report’s conclusions.
- No Israeli body in this record publishes a single consolidated statement of the grounds for the continued presence. The grounds above sit in three separate documents, of three different kinds, across 33 years.
Which published text is being quoted here?
The Levy Report’s Conclusions section, pages 73 to 77, is the original Israeli government translation; the report body, including page 55, is a translation by an organisation that made submissions to the commission, so the Hebrew governs. The Oslo II wording is the English text posted by the Israeli Ministry of Foreign Affairs, and the Agreement is bilateral, so the citation runs to Israel and the PLO. The Beit El wording is the Ministry of Justice’s account of the judgment, not the judgment text. The Levy Report publishes no settlement or outpost count, and Oslo II prints no percentage of West Bank territory for any area.
Questions readers ask
What is the Levy Report?
It is the report of the Commission to Examine the Status of Building in Judea and Samaria, appointed on 13 February 2012 by the Prime Minister and the Minister of Justice, signed 21 June 2012 and released 9 July 2012.
Who sat on the commission?
The commission’s own report records three members: a retired Supreme Court justice as chairman, a District Court judge and a retired ambassador.
Did the Israeli government adopt the Levy Report?
The report itself states at page 78 that adoption would require the government to decide to adopt it. No government decision adopting its conclusions appears in the Israeli official record used here.
What did the Supreme Court decide in Beit El?
The Ministry of Justice records that on 15 March 1979 an expanded panel of five justices dismissed the petitions, holding the legality of settlement to be a political question and not justiciable.
Does “not justiciable” mean the Court found settlement lawful?
No. The Ministry of Justice records that the Court declined to adjudicate the question, which is a refusal to decide rather than a decision on the merits.
Did the same reasoning always produce the same result?
No. The Ministry of Justice reports that in HCJ 390/79, Elon Moreh, the Court reaffirmed that military need can justify a settlement but was not persuaded such a need existed at that site, and ordered it evacuated.
Does Oslo II say who has sovereignty in the West Bank?
No. Israel and the PLO stated in Article XXXI(5) that settlements and borders are among the issues for permanent status negotiations, and in Article XXXI(6) that neither party waives any existing rights, claims or positions.
How does Oslo II define Area C?
Article XI(3) defines Area C residually, as the areas of the West Bank outside Areas A and B, with Areas A and B delineated by a red line and shading on map No. 1.
Does Oslo II say Area C is about 60% of the West Bank?
No. The Agreement prints no territorial percentage; any share is a measurement published by some other body.
What did Oslo II schedule for Israeli forces?
Israel and the PLO stated three further redeployments at six-month intervals, to be completed within 18 months of the Palestinian Council’s inauguration, with the Civil Administration dissolved and the military government withdrawn after that inauguration.
Does the record here cover Gaza?
No. The clauses quoted concern the West Bank, and Oslo II states in Article XXXI(8) that the two sides view the West Bank and the Gaza Strip as a single territorial unit.
Where can the Knesset statement be checked?
The Ministry of Justice cites Divrei HaKnesset volume 21, page 1896, for the statement of 20 March 1979.
Sources
- Israel and the PLO, 1995. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II), Articles XI, XII, XVII and XXXI, and Annex I. English text published by the Israeli Ministry of Foreign Affairs, gov.il. Official or primary record.
- Levy, E. E., Shapira, T., and Baker, A., Commission to Examine the Status of Building in Judea and Samaria, 2012. Report on the Legal Status of Building in Judea and Samaria. Signed 21 June 2012, released 9 July 2012, 80 pp. Official or primary record.
- Ministry of Justice of Israel, 2019. There Are Judges in Jerusalem: on the Beit El and Elon Moreh judgments. Roots in Law project, published 21 March 2019, gov.il, reporting HCJ 606/78 Ayyub v. Minister of Defence and HCJ 390/79 Dweikat v. Government of Israel. Official or primary record.
