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The resolution was painstakingly precise. Israel and America fought to exclude the word “the,” as in “withdraw from the territories,” in order to preserve Israel’s right to try keeping some of the land in negotiations. Israel’s position has remained for 45 years that since the area belonged to nobody, Israel has as much right as anyone else to put in a claim. Notably, nobody objected to the word “occupied.”
That’s where the Levy Report represents a departure. The report calls on Israel to abandon the notion that its legal claim to the West Bank is as good as anyone’s and announce that it has sole claim. It calls on an eccentric legal doctrine that’s been circulating for years on the fringes of the far right and surfacing with increasing vigor in recent months, as settlers and their allies grow bolder.
The notion is that the operative international treaty governing sovereign rights to historic Palestine — today’s Israel, the West Bank and Gaza — is the post-World War I San Remo Resolution. Drafted by the victorious European allies in April 1920 and later incorporated into the League of Nations charter, the treaty assigns Great Britain the Mandate to govern Palestine and orders implementation of the 1917 Balfour Declaration. To be clear, the treaty calls for “the establishment in Palestine of a national home for the Jewish people.” That, advocates say, constitutes a binding, still-valid international commitment to make Palestine into a Jewish state.
Unfortunately, establishing a Jewish homeland in Palestine is not the same thing as making Palestine into a Jewish homeland. Zionist leaders fought mightily throughout the summer of 1917 to win a British declaration “that Palestine should be reconstituted as the National Home of the Jewish people,” but they lost. “The” national home became “a” national home to protect the citizenship of British and other Diaspora Jews. Establishing the home “in” Palestine fudged the question of how much land would be Jewish, to allow future negotiating.
The spurious notion that Balfour and San Remo promised all of Palestine to the Jews has little to do with legal history and everything to do with religious zealotry. And typical of zealots, its advocates ignore the mischief their actions invite.
Netanyahu must have known what he was getting when he chose the panel. Levy was for years the high court’s most reliable supporter of settler interests. He was the sole dissenter to the 2005 court decision that upheld the legality of the Gaza disengagement and reaffirmed Israel’s obligations under “the rules of belligerent occupation.” In choosing Levy, was Netanyahu laying out an ideological marker? Juggling competing interests? Improvising? Or just living dangerously? The only certainty is that he’s slung another noose, and he’s got Israel in there with him.
Contact J.J. Goldberg at email@example.com