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The Levy report vs. international law

By Juan Pedro Schaerer*
Since the Edmond Levy report "legalizing" the occupation was released last July, a lot has been said and heard publicly about its conclusions and recommendations. The report, which claims that Israel is not an occupying power, contains a selective and misleading quotation from the commentary published by the International Committee of the Red Cross on the Fourth Geneva Convention, which it uses to support the argument that the Israeli settlement project does not entail a breach of international humanitarian law. In its role as guardian of international humanitarian law, and in response to this misrepresentation, the ICRC considers it important to provide a public clarification.

The report argues that Israel is not an occupier because the West Bank was seized from a state that was not its rightful sovereign, while Israel itself has "a claim to sovereign rights in the territory." However, under the law of occupation, which is part of international humanitarian law, it is of no relevance whether Jordan did or did not have sovereign claim to the territory before it was occupied. The binding definition in the Hague Regulations of 1907 establishes that "[t]erritory is considered occupied when it is actually placed under the authority of the hostile army."

For the purpose of the law of occupation, it is sufficient that the state whose army established effective control over the territory was not itself the rightful sovereign of the place when the conflict broke out. Nowhere in the law of occupation can one find the suggestion that only territory whose title is clear and uncontested can be considered occupied for the purposes of international humanitarian law. Indeed, it would be in complete contravention of the humanitarian purpose of such law to deprive people living under occupation of the protection afforded by the law because of disputes between belligerents regarding sovereignty over the territory concerned.

The West Bank is under the effective control of Israel. Israel acquired this control through a military campaign and maintains it through military force. Even those who hold that Israel has "a claim to sovereign rights" in the West Bank cannot claim that Israel was the rightful sovereign of the territory when it seized control over it. Accordingly, contrary to what is claimed in the Levy report, it is manifestly clear that the West Bank is occupied by Israel. Indeed, the Israeli Supreme Court has repeatedly and consistently ruled that the territory of the West Bank is subject to belligerent occupation.

Furthermore, concerning the settlements in the West Bank, it has to be emphasized that Article 49 (6 ) of the Fourth Geneva Convention, which prohibits a state from transferring parts of its own civilian population to territory it occupies, does not merely prohibit the occupying state from forcefully transferring parts of its population; it also prohibits any action by the occupier which facilitates such transfer.

The ICRC commentary on the Fourth Geneva Convention makes clear that Article 49 (6 ), like the convention as a whole, aims to protect the local population in the occupied territory and not the population of the occupying state. Furthermore, international humanitarian law prohibits any action by an occupying power aimed at altering the intrinsic characteristics of the occupied territory, including any measures that affect its demographic, cultural or social composition.

Contrary to what the Levy report maintains, from the viewpoint of international law the West Bank is occupied by Israel. This assertion, like the ICRC's position that the Israeli settlements in the West Bank are unlawful, is based entirely on the relevant provisions of international humanitarian law.

[The article was published on November 4, 2012 in Haaretz]
*Juan Pedro Schaerer is head of ICRC delegation for Israel and the Occupied Territories