Every lawyer is familiar with that embarrassing situation. A friend or acquaintance asks you an everyday legal question they came across. While you get carried away explaining different legal schools of thought and indications that could lead one way or another, you see in the questioner’s eyes that they were expecting a yes or no answer. A childhood friend once scolded me: "Three years of law school, a year of internship in a leading office, you passed the bar exams and you still can't answer a simple question with a simple answer?”
When a report comes out like the one written by the Committee to Examine the State of Building in Judea and Samaria headed by retired Supreme Court Justice Edmund Levy, the legal profession suffers a severe blow to its reputation. Nobody would blame a poet for writing about flying people or an artist for painting Tel Aviv in a snowstorm in July or August. “Poetic license,” everyone would say, the license given to poets to lift off from the ground of reality and sever the bonds of the laws of science known to man. Poets have no obligation to describe the world uniformly. But do jurists have similar license, allowing each one of them to reinvent the (legal) world afresh? Could jurists possibly disagree on basic legal questions? If one lawyer says it is day, can another one say it is night? Is everything open to interpretation? Is there such a thing as “legal license?”
The government of Israel hand-picked the members of the Levy Committee. Each member of the committee was selected because he or she was believed to deny the accepted legal basis for the status of the territories Israel occupied in the Six-Day War. That basis, according to which the territories are occupied and subject to the international laws of occupation, is accepted throughout the entire legal and diplomatic world (without exception) and has even been accepted in Israel for at least three decades. There are few scientific principles discovered since 1967 that have gained a level of consensus in the scientific community approaching the level of consensus in the legal community on the legal understanding that the West Bank is an occupied territory.
But the prime minister and justice minister did not like that legal truth, which was probably reflected in the opinions of the attorney general – the official interpreter of the law for the government of Israel. So like the kings of yore, who beheaded advisers who delivered bad news and replaced them with ones who told them what they wanted to hear, they decided to switch advisers. Thus was the Levy committee appointed in an undue process meant to bypass the attorney general and provide a custom-made legal opinion.
And sure enough, the Levy committee delivered the goods. The West Bank is not occupied, it announced, but rather "a territory designated as the national home of the Jewish people… which the governments of Israel… chose not to annex but to approach pragmatically to allow peace negotiations." And why is that? Because the Balfour Declaration of 1917, the committee tells us, and the British Mandate, designated the territory for the Jewish state. There, in 1922, ended legal history, as far as the committee is concerned. It wants to be Galileo and prove everyone is wrong and it is right, but unlike the Italian astronomer it evades confronting the other opinion by ignoring it: It dismisses the Partition Resolution of 1947, that established the principle of founding two states between the Jordan River and the Mediterranean, with the strange statement that it was "a plan that did not gain purchase in international law.” The committee does not even bother to mention dozens of statements and declarations by almost all the countries in the world and the many international bodies that actually do recognize the right of the Palestinian people to establish an independent state in the West Bank and Gaza. Nor does it mention the advisory opinion of the International Court in Hague. The same goes for all of the experts on international law, who in a rare consensus, agree that this is a clear case of occupation. The report does not try to contend with the enormous existing discourse, it tries to silence it.
The Levy Committee report is an attempt to change reality by denying it. Such attempts usually end in disappointment when they crash into the rocks of the denied reality. That is likely to be the fate of the attempt to adopt Levy's "newspeak."
Michael Sfard is an Israeli attorney who represents various Israeli and Palestinian human rights and peace organizations, movements and activists. He is an expert in international humanitarian law and international human rights law.
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