The Levy Report on legitimizing Israel’s West Bank outposts cannot legitimize Israel’s actions in the territories. One cannot curb millions of Palestinians’ demands for freedom via legal reports. At the end of the day, the report will be shelved, and its main contribution would be the boosting cynicism and suspicions towards judges. In this context, the report provides an opportunity to recognize the limits of our legal system.
Now, the settlers and their fans have an apparent case. They can claim that the government must adopt a report drafted by a Supreme Court judge, and that should it fail to do so it could be attacked at the High Court of Justice. Should someone suggest that the report be ignored while hinting that its results are affected by the personal views of those who drafted it, it would be possible to claim that he this claim is undermining the rule of law. We have been accustomed to saying that judges are not affected by their own political views or by the current mood, but rather, only by objective principles.
Yet still, it’s clear that all of this is nonsense. Most jurists would object to the Levy Report’s analysis. At most, the report proves the theory of legal realism, whereby two jurists can reach the opposite legal conclusions just because the positions they hold are different.
The report is an unusual example of the shortcomings of the system, which insists on translating moral and political questions into a legal conflict. Asking whether the territories are occupied according to international law is twisted question and misses the essence. The question should not focus on the territories, but rather, on the people who live there.
These people are subjected to an occupation regime, live under military rule, are tried at military courts, face limitations on movement, work and education, and most of all lack human rights, liberty, and the freedom to shape their own future. Have you ever heard of liberated territory with occupied residents?
Scent of apartheid
The fact that the territories are also home to settlers, which are subjected to Israeli law and are entitled to all civil rights, merely aggravates the problem and serves as a mirror highlighting the occupation’s results. Doesn’t this outrageous discrimination give off the scent of apartheid? Can this terrible discrimination be justified by resorting to legal arguments premised on Jordan’s status in the occupied territories?
Those who think so don’t want to get an honest answer. At the end of the day, the people who drafted the report were chosen by a government in which residents of the territories have no say whatsoever.
Residents of the territories are also not parties to producing the law or choosing the judges who wrote this report. Hence, these reports, or rulings on issues pertaining to the territories, cannot be legitimate in the residents’ view.
One who is not entitled to serve as a judge or affect the identity of his judges cannot be subjected to the law they produce, because this is a law of occupation and force, rather than a law of voluntary agreement.
The Levy Report will make some noise, but it will not be able to change reality. And reality will teach us a lesson: Judges cannot turn occupied territories into unoccupied territory, as if this was decaffeinated coffee. Those who assign judges with making political decisions will ultimately discover that political decisions will determine judge selection.