The Origin of the Occupation Myth
Howard Grief
Inasmuch as Israel is always
unjustly condemned by the United Nations as an occupier of “Arab land” in regard
to Judea, Samaria and Gaza, a condemnation that has no basis in either fact or
law, it is important to trace the origin of this pernicious myth. This myth has
provided the world body with the necessary pretext to intervene constantly in
the internal affairs of these Jewish lands. The myth originated and has
persisted to this very day, astonishingly enough, with the aid of Israel’s legal
establishment or coterie of eminent jurists ensconced in several centers of
authority, notably (1) the Supreme Court of Israel; (2) the Attorney-General’s
Office; (3) the Ministry of Justice; (4) the International Law section of the
Israel Defense Forces (IDF), operating under the Military Advocate-General’s
Command; and (5) the Law faculties of Israel’s universities. The individual who
bore the greatest responsibility for this myth was Meir Shamgar, who was
Military Advocate-General from 1961 to 1968, and later the Attorney-General of
Israel and the President of the Supreme Court. He was at the epicenter of the
decision made by Prime Minister Levi Eshkol’s National Unity Government during
the Six Day War to apply not Israeli law but the laws of war to all the
liberated Jewish territories, in particular the provisions of the Hague
Regulations of 1907, as well as the Fourth Geneva Convention of 1949. This
application was completely inappropriate to the situation considering the
historical connection and sanctity of these territories to the Jewish People and
their legal inseparability from the Jewish National Home.
What moved Meir Shamgar to invoke
the laws of war? He described what he did without providing the rationale for
doing so in an article he wrote called, “Legal Concepts and Problems of the
Israeli Military Government – the Initial Stage”.1
Shamgar did not conceal his belief that military government based on
international law relating to occupied territories was the proper course to
follow in regard to Judea, Samaria, Gaza, Golan and Sinai. He referred in a
general sense to these territories as “enemy territory” or “occupied enemy
territory”.2
Elsewhere he called the same territories “occupied”, “under military occupation”
or “administered”, but he never called them “liberated territories of the Jewish
National Home”, which was their true legal status under international law after
their liberation from the illegal Jordanian and Egyptian occupation respectively
lasting from May 15, 1948 to June 6-8, 1967.3
In two revealing and significant footnotes, Shamgar admitted that he had
planned the entire legal framework for any territories Israel conquered in a
future war with Arab states. He formulated his plan in the early 1960s before
the Six Day War was either foreseen or its results imagined. He did this to
avoid the situation of a supposed legal vacuum that had prevailed in Sinai after
Israel’s lightning victory in the 1956 war, when no plan existed for the legal
administration of the peninsula during Israel’s three month stay there.
He conducted special courses for
platoon officers belonging to the Military Advocate’s Corps. All military
advocates carried with them “movable emergency kits” which contained the laws of
war (Hague 1907, Geneva IV 1949 etc.) and a large set of precedents of military
government proclamations and orders, as well as detailed legal and
organizational instructions and guidelines. In addition, Shamgar wrote and
published a comprehensive vade-mecum which he called, “Manual for the
Military Advocate in Military Government”.
As a direct result of Shamgar’s
ill-conceived plan of what Israel was supposedly obliged to do under
international law in the event that the IDF re-captured or liberated any
territories of the Land of Israel in Arab hands, a regime of military government
based upon the provisions of the Hague Regulations of 1907, specifically
Articles 42 and 43, was immediately established in the wake of Israel’s total
victory on three fronts in the Six Day War. Military Government was defined by Shamgar as “the form of government established by a country which has occupied
enemy territory, whether the [occupied land] was formally under the sovereignty
of such enemy or whether it could be regarded as former sovereign territory of
the occupying power or any of its allies”.4
Despite Shamgar’s disclaimer that in establishing a military government, Israel was
not necessarily occupying enemy territory that was truly under the sovereignty
of the enemy state, especially in regard to Judea, Samaria and Gaza. That was in
fact the general perception in the rest of the world, made even more believable
by the very application of the provisions of the Hague Regulations relating to
“occupied territories”.
The military government was made
up of four regional entities covering 1) the Gaza Strip and northern Sinai; 2)
central and southern Sinai; 3) Judea and Samaria; and 4) the Golan Heights. The
application of Articles 42 and 43 of the Hague Regulations meant that in the
case of the (single) region of Judea and Samaria, Jordanian law as it existed on
June 7, 1967 that included unrepealed provisions of Mandatory law and remnants
of Ottoman law would continue to be enforced unless amended or repealed by new
security enactments of the Military Government. In the case of Gaza, this meant
that Egyptian military regulations that had been in force in the period from May
15, 1948 to June 6, 1967 would also continue to be applied, as well as
unrepealed Mandatory provisions unless the law was also amended or repealed by
the Military Government. In regard to northern Sinai, which was linked to Gaza
to form a single administrative unit, the pre-1967 legal system remained in
effect under the Military Government. Even Jerusalem came for a brief time under
a
military government from June 7 to June 28, 1967, that ceased to exist only
after “East” and “West” Jerusalem were finally reunited by virtue of a
government order and proclamation.
The Golan Heights indeed
presented a unique problem. As a result of the fighting that took place there in
the Six Day War, none of the judges or lawyers remained in the region after June
10, 1967 to administer the local Syrian law, nor were any Syrian law books
available for use. With the breakdown of the previously existing judicial
administration, and in accordance with the accepted principles of international
law applicable to occupied territories, Israel created new courts for both civil
and criminal proceedings under military administration.5
Security enactments were formulated setting out the substantive law, procedure
and law of evidence in civil matters that followed the laws and practice in
Israel, and this was also done for criminal offenses and trials. The military
administration of the Golan Heights came to an abrupt end with the passage of a
Knesset law on December 14, 1981, that henceforth applied the law, jurisdiction
and administration of the State of Israel to this territory, thus in effect
annexing it.
The setting up of a military
government for all the liberated territories of the Land of Israel formerly
under illegal Jordanian or Egyptian occupation was incredible in the extreme. As
noted above, despite Shamgar’s disclaimer, its effect was to delegitimize or
deny the rights of the Jewish People and its assignee, the State of Israel, to
permanently govern these precious Jewish territories recognized by the Principal
Allied Powers in 1920 as belonging to the Jewish People. The person mainly
responsible for this outrageous, ignorant and unforgivable legal conception that
has caused untold damage to the Jewish Zionist case to this very day was Meir
Shamgar, one of Israel’s most eminent jurists.
The fatal flaw in Shamgar’s plan
that should have flashed a red light was that there was never any true
obligation incumbent upon Israel to apply international law to the areas of the
Land of Israel recaptured in a defensive war by the Israel Defense Forces. This
was because Judea, Samaria and Gaza were previously designated by international
law in 1920 and 1922 as integral parts of the Jewish National Home under the
Mandate for Palestine read in conjunction with the Franco-British Boundary
Convention of December 23, 1920 and hence were being legally repossessed by
Israel. The Golan Heights were also to be considered an integral part of the
Jewish National Home, though illegally removed from the Home by Britain in a
trade-off agreement with France dated February 3, 1922, which took effect only
on March 10, 1923.
Sinai was illegally excluded from
the Jewish National Home which was supposed to include all territories to which
Jews had a proven historical connection and had settled or governed in the days
of the First and Second Temple Periods, when Palestine’s borders were first
delineated on December 23, 1920. It was excluded because Britain had decided in
1906 to attach Sinai to Egypt to protect the Suez Canal which it controlled from
possible Turkish attack. Egypt had been under the sovereignty of the Ottoman
Empire since 1517, but in 1882 it was occupied by Britain which ruled it until
Egypt attained its independence by a treaty concluded in 1922. The British were
apprehensive about the earlier administrative border extending from Rafiah in
the north to the city of Suez at the southern exit-point of the Suez Canal,
since this border afforded the Turks easy access to the Canal, especially at the
southern end. To change the administrative border between the Sanjak of
Jerusalem and the Province of Hedjaz, on the one hand, and the Sinai Peninsula,
on the other, Britain deliberately fomented a crisis with Ottoman Turkey called
the Aqaba Incident, in which they delivered an ultimatum to Sultan Abd-al-Hamid
II on May 3, 1906, demanding a new border in Sinai from Rafiah to the head of
the Gulf of Aqaba (Gulf of Eilat), near Taba. The British backed up their
ultimatum by sending military and naval forces to the area, one gunboat dropping
anchor at Rafiah and another off Taba. Under an imminent threat of war, the
Sultan, acting under duress without the support of any foreign state, had no
choice but to accede to the new administrative dividing line demanded by the
British. An agreement was quickly negotiated and concluded on October 1, 1906,
in which (italics in the original) “Egypt was granted administrative rights
in Sinai up to a line drawn from Rafa to the head of the Gulf of Akaba, Turkey
expressly retaining the right of sovereignty.”6
Meinertzhagen further observed in his Diary that in 1917, General Allenby,
unaided by the Egyptian Army, conquered and occupied Turkish Sinai, which, by
right of conquest, was at Britain’s disposal. In actual fact, since
Britain was then acting on behalf of the Principal Allied Powers (the wartime
coalition of Britain, France, Italy and Japan), Sinai was at the disposal of
these Powers as a group rather than of Britain alone, and since at least half of
Sinai was part of the Land of Israel, it should have been attached to Palestine,
i.e., the Jewish National Home, in 1920 when its borders were demarcated for the
first time in accordance with the spirit and intent of the San Remo Resolution.
Sinai was in fact administered until 1892 from what later became Palestine, and
about half of Sinai was included in the Sanjak of Jerusalem until 1906. In any
event, Egypt was never recognized as the sovereign of Sinai under international
law, but at best its administrator. In fact, in 1906, the Egyptian National
Movement under its leader Mustafa Kamil, opposed British attempts to annex Sinai
to Egypt. Furthermore, until 1948, Egypt never claimed Sinai as part of its
sovereign territory except for the northwestern, triangular area, which the
Turkish Sultan had permitted Egypt to administer during the 19th
century, to compensate it for relinquishing its administration of Crete and not
because it was within Egypt’s “ancient boundaries”.7
The whole of Sinai was subsequently appropriated by Egypt before its exact
status under international law could be ascertained, in order to prevent the
emerging Jewish state from claiming or annexing it.
Prime Minister Menahem Begin
erred grievously in 1978 when, during the peace negotiations with Egypt at Camp
David, he did not challenge President Anwar Sadat’s false assertion that Sinai
was “sacred Egyptian soil” though it was nothing of the kind. Begin, the
erstwhile champion of the Greater Land of Israel, let Israel’s right to Sinai be
lost by default. His costly blunder and probable violation of law resulted in
Israel’s complete and unnecessary withdrawal from Sinai that has had a long and
important historical connection with the Jewish People.
The foregoing pertinent facts
concerning Judea, Samaria, Gaza, Golan and Sinai should have been uppermost in
the mind of anyone given the task to decide whether to apply international law
or Israeli law to these territories. This task was executed by Meir Shamgar, who
made the wrong decision for reasons known only to himself. He was apparently not
adequately familiar with some of the cardinal legal documents in the post World
War I period, which affirmed Jewish legal rights and title of sovereignty to all
of Palestine, as the Jewish National Home, particularly the Smuts Resolution of
January 30, 1919 which became Article 22 of the Covenant of the League of
Nations, the San Remo Resolution of April 25, 1920, the Franco-British Boundary
Convention of December 23, 1920, the Mandate for Palestine confirmed on July 24,
1922 and finally, the Anglo-American Convention of December 3, 1924 respecting
the Mandate for Palestine.
What is even more puzzling and
legally very grave, which reflects badly on Shamgar’s reputation as a jurist,
was the manner in which he overlooked or neglected two fundamental Israeli
constitutional laws that exclusively governed the post-Six Day War situation
before the enactment two and a half weeks later on June 27, 1967 of Section 11B
of the Law and Administration Ordinance. This was not only stupendously wrong,
but also a staggering violation of the Rule of Law. Had he been more aware of
the true significance of these constitutional laws, they would undoubtedly have
steered him in the right direction, or at least warned him against the
application of international law pertaining to the rules of warfare to the
liberated Jewish territories of Judea, Samaria, Gaza, Golan and Sinai. These
laws were the Area of Jurisdiction and Powers Ordinance used in 1948 by Prime
Minister David Ben-Gurion and Justice Minister Pinhas Rosen in applying the
corpus of law of the State of Israel to territories of the Land of Israel beyond
the UN Partition lines, repossessed by the IDF in the War of Independence, as
well as the ubiquitous Law of Return, which entitled Jews to settle in all parts
of the Land of Israel under Israel’s expanded jurisdiction. It is really
dumfounding that Shamgar who was so preoccupied with observing international
precedents and guidelines regarding the procedure to be followed after the
effective conquest of what he perceived was “enemy territory”, failed at the
appropriate moment to utilize the leading precedent established in his own
country when, during the War of Independence, additional areas of the Land of
Israel were recovered by the IDF, that were thenceforth subject to the law of
the State. The above facts and precedent were simply ignored or never even
thought of by either Shamgar or any members of the team of military advocates
who participated in his training program. In several conversations the present
writer has had with the jurist Eliezer Dembitz, who attended the training
courses organized by Shamgar and served as a Justice Ministry official, as well
as a senior legal adviser to the Knesset Finance Committee, Dembitz has
confirmed that, to his knowledge, no one who attended these courses ever
propounded the argument that there was no legal necessity to apply the laws of
war to the territories liberated in the Six Day War. By his unwise actions
calling for and resulting in the application of the norms of international law
to these territories, Shamgar entangled Israel in the morass and endless dispute
about the applicability of the Fourth Geneva Convention and the Hague
Regulations, and moreover, gave credence to the mislabeling of the territories
as being “occupied” and the consequent libeling of Israel as an “occupier” of
“Arab land”. This proved to be an enormous propaganda coup for the Arab cause,
while severely undermining Israel’s legal argument that the liberated
territories were the patrimony of the Jewish People as enunciated in the
Biblical record and confirmed in several post-World War I documents.
Subsequently, Shamgar seems to
have had some second thoughts about what he had planned and overseen to
fruition. While he concurred in the application of the Hague Regulations, which
he viewed as customary international law that was always binding on Israel, in
regard to the conquest of “enemy territory”, he did not accept the fact that
Israel was likewise bound by the Fourth Geneva Convention since the latter
represented conventional international law that the Knesset had never introduced
into Israel’s legal system and in any case applied only to “occupied
territories” over which neither Jordan nor Egypt had been recognized sovereigns
with a valid title. Nevertheless, Shamgar’s second thoughts on the subject were
of no avail since he had already created the mold of a military administrative
framework that (except in the cases of Jerusalem and the Golan Heights) was
never subsequently repudiated or converted into Israeli civilian administration
governed in all cases by Knesset statutory law. The first two proclamations that
were issued by Brigadier-General Chaim Herzog, the future President of the
State, regarding the region of Judea and Samaria that resulted in the
application of Jordanian law and drafted8
by the Director-General of the Ministry of Justice, Zvi Terlow, based on the
organizational legal guidelines and arrangements compiled by Shamgar in the vade-mecum, are still in effect in those parts of this region not governed
by the “Palestinian Authority”.
The fact that Israel never
incorporated Judea, Samaria and Gaza into the State, which since 1967, has been
viewed by foreign opinion and most jurists in Israel as “occupied territory”, is
directly traceable to the Government’s implementation of Shamgar’s plan,
guidelines and arrangements. The “Manual for the Military Advocate in Military
Government” written and expanded by Shamgar proves beyond reasonable doubt that
he is the one most responsible both for the establishment of a military government
in Judea, Samaria and Gaza and the pernicious notion that Israel is an occupying
power. This so bedevils us today.
The tragic mistake and violation
of law committed by Shamgar has now become immeasurably worse by two recent
Supreme Court judgments,9
rendered by the President of the Supreme Court and former Attorney-General,
Aharon Barak, who decided, without reference to any of the aforementioned laws
or international documents that indicated otherwise, that Judea, Samaria and
Gaza are indeed territories held by Israel under “belligerent occupation”.
Barak, in his clever, off-the-mark judgments, did not specify the states or
people whose land Israel has been occupying or when such states or people were
recognized under international law as having the sovereign right to Judea,
Samaria and Gaza.
His judgments which bind the
Government of Israel, unless overturned by legislation, and give great comfort
to Israel’s enemies and detractors both within and without, are therefore even
more damaging than the non-binding, non-enforceable advisory opinion of the
International Court of Justice (ICJ) in the case involving the legality of
Israel’s security fence being constructed in Judea and Samaria. The Court,
sitting in The Hague, established by the Charter of the United Nations (Article
92) as the principal judicial organ of the UN, in a biased, legally
unsupportable opinion delivered on July 9, 2004, declared the security fence
illegal under a false reading of international law. It disregarded the cardinal
fact that the whole of Palestine was set aside by international law in 1920 and
1922 as the Jewish National Home. The relevant documents of international law
noted above were either completely ignored or, in the case of the Mandate for
Palestine, while mentioned, its purpose and principal provisions were not
discussed at all. At the same time, the ICJ recognized the fictitious national
and political rights of a fictitious nation that calls itself “the
Palestinians”, a term that earlier identified the Jews of Palestine prior to
1948, and was scornfully rejected by the Arabs of the country. The ICJ further
stated that Judea and Samaria are “Occupied Palestinian Territory” and that
Israel has the status of an “Occupying Power”. This opinion gives the Arabs a
public-relations bonanza, but has absolutely no legal merit or validity. It
reflects only the twisted, baseless views of the Arab League and the
“Palestinian Authority” as well as the dozens of Islamic nations represented at
the United Nations. The ICJ opinion proves how some respected jurists who had
not already committed themselves to favoring the Arab cause prior to giving
their opinion can be hoodwinked into swallowing nonsensical, illogical
arguments, based on irrelevant UN resolutions and data that lack the force of
law in deciding the issue at hand. Yet this unconscionable advisory opinion has
been praised by none other than the most revered figure in Israel’s judiciary,
Aharon Barak, who found that the ICJ opinion “also contains many things that are
favorable to Israel”. He added, “I can definitely see the possibility in the
not-too-distant future when the State will base many of its arguments
[apparently concerning the route of the fence] on this opinion.”10
Never has Shamgar’s 1967 folly reached such heights of absurdity! If Israel’s
leading jurists treat Judea, Samaria and Gaza as “occupied territories” and
discount Jewish legal rights and title of sovereignty over them, or believe such
rights do not exist at all, little can be expected from leaders and media
figures in foreign countries who have expressed themselves in a similar manner
or have maliciously accused Israel of “stealing” the land of another people. The
tremendous legal and political harm which these jurists have caused to the
Jewish legal case cannot be rectified or reversed in a single stroke. However, a
beginning can certainly be made to overcome this damage by having the Knesset
pass a special law declaring that Judea, Samaria and Gaza are definitely not
occupied territories, but rather the patrimony of the Jewish People.
Endnotes
1 |
See the
volume entitled Military Government in the Territories Administered by
Israel 1967-1980: The Legal Aspects, edited by Meir Shamgar, Hebrew
University Jerusalem – Faculty of Law, Harry Sacher Institute for
Legislative Research and Comparative Law, Jerusalem (1982), Hemed Press,
reprinted 1988, pp. 13-60. |
2 |
Ibid.,
pp. 13, 28, 31. |
3 |
Shamgar did
make one scant reference to “liberated areas” on p. 14 of his article, but
this reference was not explicitly linked to the liberated areas of the
Jewish National Home, but to liberated areas in a broader or general
sense. |
4 |
Ibid.,
p. 28. |
5 |
Ibid.,
p. 55, and also p. 453 which contains the Court’s Order for Ramat HaGolan
(Order 273) issued by the Military Government. |
6 |
See Colonel
Richard Meinertzhagen’s book, Middle East Diary 1917-1956,
Thomas Yoseloff, Publisher, New York (1960), pp. 17-19. |
7 |
See “Myths
and Facts 1978, A Concise Record of the Arab-Israeli Conflict”, published
by Near East Report, Washington, DC (1978), pp. 41-42. |
8 |
The
information regarding the drafting of the first two military proclamations
for Judea and Samaria was conveyed to the present writer by Professor
Ya’akov Meron, an accomplished legal expert and jurist who served in the
Ministry of Justice for 30 years as the adviser on Muslim Law in Arab
countries. |
9 |
See
the case of Beit Sourik Village Council v. the Government of Israel, HCJ
2056/04 (rendered on June 30, 2004); see also the case of Gaza Coast
Regional Council v. Knesset of Israel, HCJ 1661/05 (rendered on June 9,
2005). |
10 |
The
Jerusalem Post, May 10, 2005. |