David Ben-Gurion’s Forgotten 1948 Land of Israel Proclamation
for the Annexation of Judea and Samaria
Howard Grief
The 1978 Camp David Framework Agreement for
Peace in the Middle East, the so-called Oslo “Peace Process” (1992-2000) and the
Disengagement Implementation Plan (late 2003-August 2005) have all undermined
Israel’s legal rights and title of sovereignty over the Land of Israel. One of
the most important remedial steps that could be taken by any future nationalist
government of Israel to reaffirm and clarify those legal rights and to put an
end to ongoing Arab attempts and foreign initiatives to usurp them is for Israel
to exercise the sovereignty it already enjoys by applying the law, jurisdiction
and administration of the State under present Israeli constitutional legislation
over those parts of Judea and Samaria remaining under its military rule.
This was legally required to be done in
June 1967, at the end of the Six Day War, by virtue of the constitutional law
known as the Area of Jurisdiction and Powers Ordinance enacted on September 16,
1948 by the Provisional State Council and promulgated on September 22, 1948, but
made retroactive to May 15, 1948, the date on which the Jewish state was reborn.
This law, sometimes called Ben-Gurion’s law, was used by Prime Minister David
Ben-Gurion in his capacity as Defense Minister of the State to annex areas of
the Jewish National Home and Land of Israel recaptured beyond the frontiers
demarcated in the UN Partition Plan of November 29, 1947.
However, the National Unity Government of
Levi Eshkol did not apply Ben-Gurion’s law aiming to bring all such areas freed
in the Six Day War within the framework of the State. It decided instead, almost
three weeks after the end of the Six Day War, to draft an amendment to an
existing law, Section 11B of the Law and Administration Ordinance, that was
enacted by the Knesset on June 27, 1967 and promulgated the next day.1
This amendment to the law, non-existent on June 7, 1967, when Judea and Samaria
were repossessed and liberated by the IDF, gave the Government a choice whether
or not to incorporate these areas of the Land of Israel into the State, while
Ben-Gurion’s law left no choice as to what had to be done once the Minister of
Defense defined in a proclamation that a particular area of the Land of
Israel was being held by Israel’s Army. The step of defining the additional
areas of the Land of Israel held by the IDF was a prerequisite before any
announcement or proclamation could be made to the inhabitants of the affected
areas that the IDF had assumed control there. The Minister of Defense had no
discretion in the matter. He was obligated to define the areas held by the IDF,
otherwise no local resident, let alone Israelis and the rest of the world, would
have known that the Israeli army had imposed a military government over those
areas, thus replacing the previous ruler. The obligatory nature of the law is
apparent from the fact that without a proclamation of this kind, the directives
that were to be issued by the Military Commander to maintain proper
administration, security and public order, in the IDF-held areas including, for
instance, the imposition of a curfew, could not be expected to be heeded by the
local population unless the Minister of Defense had acted in strict accordance
with the Ordinance formulated by the Ben-Gurion Government. An appropriate
proclamation was thus needed to avoid the chaos of a legal vacuum.
It is true that international law does not
absolutely require the issuance of a proclamation, as soon as the territory of a
foreign state is occupied by a hostile army, though it is customary for this to
be done.2
However, the situation is entirely different under Israeli constitutional law
for areas of the Land of Israel liberated by the Israel Defense Forces that
cannot be labeled “occupied territories” under international law. The Area of
Jurisdiction and Powers Ordinance was enacted for the sole purpose of recovering
for the Jewish state those lands that had been recognized as integral parts of
the Jewish National Home under international law in 1920 and that had always
been considered the patrimony of the Jewish people under Jewish law. If the IDF
liberated various areas of the Land of Israel and no proclamation had been
issued under the aforesaid Ordinance, then the purpose of the law would have
been defeated and the law left with neither meaning nor effect. Moreover, if the
Minister of Defense did not issue a proclamation defining the IDF-held areas,
this would have meant that the Jewish people, represented by the State of
Israel, had no sovereign right to the liberated areas and would have been
required in due course to restore these areas to the Arab states that had
illegally occupied them in 1948, a requirement that negated the underlying
assumption of the Ordinance that they belonged to the Jewish people. To avoid
these consequences, it was therefore incumbent upon the Minister of Defense to
issue a proclamation under the Ordinance to define the area of the Land of
Israel taken over by the IDF as soon as this occurred. This was the way the
Ordinance was actually interpreted and implemented throughout the War of
Independence in 1948. It seems logical to conclude that it was the obligatory
nature of the Ordinance that prompted the Eshkol Government in 1967, shortly
after the end of the Six Day War, to devise an alternative law (Section 11B of
the Law and Administration Ordinance), to give the Government a choice in
deciding whether or not to incorporate into the State the areas of the Land of
Israel liberated in that war.
The area so defined in the
proclamation meant that any law applying to the whole of the State of Israel
would thereafter also apply to that defined area and thus such area would
automatically be incorporated into the State. This procedure was adopted by
Defense Minister Ben-Gurion on September 2, 1948 when he issued Proclamation No.
1 of the Israel Defense Forces Government in the Land of Israel, hereafter “the
Land of Israel Proclamation”, that had attached to it an illustrative map of the
Land of Israel indicating by red lines the precise extent of the areas held by
the IDF, which he signed and dated. On the same date and bearing the same title
as Proclamation No. 1, Ben-Gurion issued Proclamation No. 2, in which he
appointed a military governor for the held areas referred to in Proclamation No.
1 and its accompanying map.3
The Land of Israel Proclamation established
the precedent or basic norm upon which the structure of Israeli rule was to be
erected in any part of the Land of Israel repossessed or liberated by the IDF.
It applied the law of the State to the repossessed area in accordance with the
stipulation in Section 2 of the Proclamation, rather than international law
relating to belligerent occupation. It was only because of this stipulation that
Beersheba, Nazareth, Ramle, Lod, Ashdod (Isdud), Ashkelon (Majdal), Eilat and
other places that were not yet part of the State on May 15, 1948, were
automatically incorporated into its boundaries as soon as the IDF effectively
held them, as confirmed and denoted on a map of Eretz-Israel or simply by the
application of Israeli law to the IDF-held area, in the event that no map was
used for this purpose.
These IDF-held areas of the Land of Israel
were not considered “occupied territories”, even though they extended beyond the
UN Partition lines, because they were part and parcel of the Jewish National
Home and the Land of Israel, as recognized under international law as early as
1920. Moreover, there was no recognized Arab sovereign over any of the IDF-held
areas in 1948 that had previously been part of an Arab state, which ruled out
the possible applicability of the Hague Regulations or any other international
convention. It is certain that if any part of Judea and Samaria had been
repossessed by the IDF in the War of Independence, the Land of Israel
Proclamation used for Beersheba, Nazareth, etc. would have mandated the
application of Israeli law to that part, as is clear even from a cursory reading
of it. This Proclamation was definitely part of the existing constitutional law
when the IDF liberated Judea and Samaria on June 7, 1967 and should have been
applied at that time. It can still be invoked today since substantial parts of
the Land of Israel remain under Arab rule and await liberation by the IDF! This
conclusion is apparent from the language used in the open-ended Land of Israel
Proclamation where it states in both Sections 1 and 5 the following:
1. Interpretation: The term “held areas”4
(quotation marks in the original text) – shtahim muhzakim – means all the
areas in the Land of Israel included within the boundaries of the areas
delineated in red, on the map of Land of Israel signed by me,5
bearing the date of today, the 28th of Av, 5708 (September 2, 1948),
or on any other map replacing it (italics added) which will be signed by
me and delineated as mentioned above.
5. Validity of Proclamation: This proclamation shall be deemed to be in
force in all respects as from midnight on the night of the Sabbath, the 6th
of Iyar, 5708 (May 15, 1948); however, in respect of those parts of the held
areas the possession of which passed to the Israel Defense Forces afterwards
(italics added), this proclamation shall be in force only from that date.
In regard to Section 5 of the Land of
Israel Proclamation, it is important to note that it refers to only one
proclamation which was intended to cover all past or future territorial
acquisitions in Eretz-Israel or Palestine on whatever date, apart from the area
of Jerusalem and its environs. It did not matter if these acquisitions were made
prior to September 2, 1948 (the actual date of the Land of Israel Proclamation)
or afterwards.
In regard to Jerusalem, which has always
required special treatment, there was a separate proclamation that was issued a
month before, on August 2, 1948, formally called Proclamation No. 1 of the
Israel Defense Forces Government in Jerusalem, hereafter “the Jerusalem
Proclamation”. This proclamation also had an illustrative map attached to it. As
in the case of the Land of Israel Proclamation, the Jerusalem Proclamation
applied the law of the State to the area of Jerusalem and its environs, held by
the IDF in 1948 and was followed up by Proclamation No. 2, which appointed a
military governor over this area.6
The Land of Israel Proclamation could, as
noted above, also have been used on June 7, 1967, when the IDF repossessed Judea
and Samaria. All that had to be done in this respect was to define the area
recaptured by the IDF, by simply drawing red lines on a map of the Land of
Israel and having this map signed and dated by the Minister of Defense,
replacing Ben-Gurion’s original map, as provided for in the Proclamation itself,
and, at the same time, invoking Section 2 thereof to apply the law of the State
to the area so defined on the map. This procedure did not preclude the issuing
of an entirely new proclamation under the Area of Jurisdiction and Powers
Ordinance accompanied by an appropriate map, had the Government chosen to do so.
But in the absence of any new proclamation, the original one of September 2,
1948 should have been implemented whenever the IDF liberated additional areas of
the Land of Israel not yet included in the borders of the State. Indeed, it
cannot be gainsaid that if a new proclamation had not been issued on June
7, 1967, illegally applying international law to Judea and Samaria when the IDF
entered the region and assumed control, then the existing Israeli constitutional
law would automatically have applied, i.e., the Land of Israel Proclamation, and
this entire region would have thus immediately become part of the State, without
further ado. Furthermore, what applied to the territory covered by the
provisions of the Land of Israel Proclamation applied no less to
Jordanian-occupied eastern Jerusalem that came within the scope of the Jerusalem
Proclamation.
A careful analysis of the Area of
Jurisdiction and Powers Ordinance of September 16, 1948 reveals that this law
incorporates within its provisions the Land of Israel Proclamation issued two
weeks earlier on September 2, 1948, because this Ordinance was made retroactive
to May 15, 1948, as was also the case with the Land of Israel Proclamation. This
Ordinance also incorporated within its provisions the Jerusalem Proclamation
issued even earlier, on August 2, 1948, having the same retroactive application
as the Land of Israel Proclamation. Therefore, the word “proclamation” as used
in sections 1 and 2 of the Ordinance can only be interpreted as referring to
both these Proclamations. The use of similar language in all three documents
(the Ordinance and the two Proclamations) regarding the application of Israeli
law to IDF-held areas of Eretz-Israel indicates the existence of a definite link
between them. The two proclamations and the law under which they were
retroactively deemed to have been issued marked an official end to the Jewish
Agency's acceptance of the UN General Assembly Partition Resolution of November
29, 1947.
The extreme irony of the situation was that
the Military Commander of Judea and Samaria – Brigadier-General Chaim Herzog,
the future President of the State – did in fact issue two military proclamations
on June 7, 1967 defining the precise area of the Land of Israel being
held by the IDF where military government was imposed, though this was done by
descriptive words, rather than by an illustrative map, the method employed by
Ben-Gurion. The first one concerned the assumption of power by the IDF in what
was simply called “the region”. However, it was the second Proclamation that
actually defined the area involved as “the region of the West Bank” and stated
that “the law that is in force in the region today (June 7, 1967) remains in
force”. This was a clear reference to the law of the Hashemite Kingdom of Jordan
as if it was sovereign Jordanian land that had been occupied by the IDF, a mis-application
of international law by the Eshkol Government, which should have been apparent
at the time. What was highly unusual and illegal was that the 1967 Proclamations
issued by Herzog acting on superior orders from the Government did not follow
the aforesaid guiding and binding precedent of 1948, even though the land in
question at both times was indisputably the Land of Israel, that matched in a
general sense the definition of a “held area” contained in the Land of Israel
Proclamation, without however marking the held area on a map. Instead of
Herzog’s proclamations being based on the Area of Jurisdiction and Powers
Ordinance, as required by it, they were unlawfully based on the Hague
Regulations of 1907, specifically articles 42 and 43 thereof. This procedure
followed by the Military Commander was tantamount to having official
proclamations issued by the wrong party under the wrong source of law to apply
the wrong law, a triple error committed simultaneously in total disregard for
the correct legal procedure. To comply with the constitutional law in force
on June 7, 1967 and still in force (Ben-Gurion’s law and the two aforementioned
proclamations of 1948 have never been repealed and coexist with Section 11B),
the June 7, 1967 Proclamations affecting Judea and Samaria should have been
issued not by the IDF Military Commander but by the Minister of Defense, not
under the Hague Regulations of 1907 governing occupied territories, but under
the Area of Jurisdiction and Powers Ordinance concerning liberated areas of the
Land of Israel, and last but not least, not for the purpose of continuing in
force the law of the Kingdom of Jordan, but to apply the law of the State of
Israel. This egregious and monumental violation of Israeli law and the triple
error it entailed has never been corrected, nor even discussed or acknowledged
by Israel’s legal elite. The Government of Israel chose this short-sighted
course to keep the option of “peace” open and to avoid increasing the Arab
population of the State, which were considerations outside the realm of law and
could have been resolved by other means.7
The non-observance of the existing constitutional law in June 1967 was the folly
and root of all the trouble Israel faces today in the battle to preserve Jewish
rights to the Land of Israel under the Rule of Law. Had the Eshkol Government
done what it was legally obligated to do, no one, apart from the Arab states and
their close supporters, would have dared call the ancestral Jewish lands
liberated in the Six Day War by the IDF “occupied territories” subject, after
the end of active hostilities, to the laws of war embodied principally in the
Hague Regulations and the Fourth Geneva Convention.
It is tragic to record that the Land of
Israel Proclamation, so diligently and comprehensively applied by Ben-Gurion in
1948 as a means for annexing non-State parts of the Land of Israel restored to
the Jewish people by the IDF, was simply forgotten or ignored in 1967, and has
been forgotten or ignored ever since. As a direct result, the course of Israeli
history, politics and law from 1967 to the present day has been radically
different from what it should normally have been. The uncritical acceptance or
lack of protest by any respected Israeli jurist in 1967 and in the ensuing
decades against the issuance of the aforementioned military proclamations by
Brigadier-General Herzog for Judea and Samaria that applied international law
(i.e., the Hague Regulations and also the Fourth Geneva Convention) instead of
Israeli law, as well as those proclamations issued for Gaza, the Golan and
Sinai, is not only deeply shameful and scandalous, but also exposes an amazing
ignorance of Israel’s legal rights and title of sovereignty to the whole of the
Land of Israel and Palestine under both international law and Israeli
constitutional law. The Arabs of the country and the neighboring Arab states
could not have asked for a better gift from Israel’s legal authorities while,
conversely, it was a betrayal of the Jewish-Zionist cause by those who ought to
have known better.
The Herzog Proclamations led to the birth
of the erroneous concept that the combined region of Judea and Samaria (as well
as Gaza, the Golan Heights and Sinai) was truly “occupied territory”, governed
by the rules of war, dictated by international law. By acting on this fallacious
premise, Israel shot itself in the foot, greatly undermining its legal case for
retaining these regions of the Jewish National Home and Land of Israel, as
evidenced by its complete withdrawal from Sinai and Gaza and partial withdrawal
from about two-fifths of Judea and Samaria. The damage has been catastrophic and
never-ending, paving the way for foreign intervention and the eventual entry of
the Palestine Liberation Organization into Judea, Samaria and Gaza to set up its
own administration known as the “Palestinian Authority”. It is too late to undo
the damage inflicted by Israel on itself, but Israel can still abrogate the
illegally-drafted military proclamations still in force in regard to those parts
of Judea and Samaria remaining under its control, abolish the military regime
set up there, and apply Israeli law rather than foreign law in those areas. If
this is done, then the constitutional law and legal norm that prevailed in 1948
during the War of Independence will be restored to its proper place in Israel’s
legal system, as originally intended by Ben-Gurion.
It is bizarre that Justice Moshe Landau,
the former President of the Supreme Court, in a 1979 judgment when he was then
Deputy-President, declared that8
“the basic norm upon which the structure of Israeli rule in Judea and Samaria
was erected is still today, as I have said, the norm of military government and
not the application of Israeli law that entails sovereignty”. In making this
pronouncement, Justice Landau believed wrongly that the norm of military
government automatically excluded the application of Israeli law and
sovereignty. He was apparently unaware of the fact that in 1948, Ben-Gurion
created and repeatedly implemented the norm (as in the cases of Beersheba,
Nazareth etc.) that Israeli law and sovereignty were to be applied over all
areas of the Land of Israel repossessed by the IDF, even though these areas were
placed under military government. It was this norm that should legally have been
invoked in deciding the question of which law to apply to the territories
liberated in the Six Day War. The only person in June 1967 who recognized the
necessity of applying this norm was the then-M.K. Eliezer Shostak of the Free
Center Party, who impatiently called for the issuance of a new proclamation
under the Area of Jurisdiction and Powers Ordinance, a call ridiculed at the
time by the Government and curtly dismissed.
The alleged norm cited by Justice Landau ignored the legal structure that had
been in place for the Land of Israel between 1948 and 1967 that naturally
included Judea and Samaria. His failure to recognize the earlier norm dating
back to the rebirth of the State was an inversion of Israel’s rights to Judea
and Samaria and also changed completely the legal reality created by Ben-Gurion.
The Landau norm was a severe deviation from the Ben-Gurion norm as expressed in
the Land of Israel and Jerusalem Proclamations that recouped for the Jewish
state lands that rightfully belonged to it but which the UN “generously” but
illegally recommended for inclusion in a new Arab state, contrary to Article 5
of the Mandate for Palestine that was still in force at the time of the
Partition Resolution. The adoption of the Landau norm was a legal travesty that
paved the way to the grave situation Israel now finds itself in.
Author’s Note:
The scope of the Land of Israel
Proclamation of September 2, 1948, as well as the meaning to be attached to
Ben-Gurion’s law, the Area of Jurisdiction and Powers Ordinance, is further
discussed by the author in his Eretz-Israel Letters to Justice Meir Shamgar,
President Emeritus of the Supreme Court of Israel, 2005-2007, edited by Yoel
Lerner and published by the Office for Israeli Constitutional Law, May 2007.
This further discussion took place after the present article was written, and is
therefore not included in this article.
Endnotes
1 See the author’s work on this important subject, A Petition to Annul
the Interim Agreement, Policy Paper 77, published by the Ariel
Center for Policy Research (ACPR), Shaarei Tikva, January 1999, p. 10-28;
35-67.
2 See article by Meir Shamgar, former President of the Supreme Court of
Israel, entitled “Legal Concepts and Problems of the Israeli Military
Government – The Initial Stage”, in the book he edited, Military Government
in the Territories Administered by Israel 1967-1980, The Legal Aspects,
Hemed Press 1982, reprinted 1988, Vol. 1, p. 14.
3 The Military Governor appointed by Defense Minister David Ben-Gurion to
head the IDF government in the held areas of the Land of Israel was
Major-General Elimelech Avner (Zelikovich). See Itton Rishmi (Official
Gazette), Special Issue, 29th of Av, 5708 (September 3, 1948), no.
19, p. 114.
4 “Held
areas” – a term found in the literature – otherwise referred to by the
present writer as “repossessed”
areas.
5 The pronoun “me” as used in the Interpretation section of the Land of
Israel Proclamation (Section 1) does not mean that it applied only during
the time that David Ben-Gurion was Minister of Defense. This proclamation,
which is legally classified as a regulation issued on behalf of the Government
of Israel, cannot be interpreted as being personal in nature, limited only to
him, unless specifically stated to be so. Therefore, the word “me” simply
refers to the Minister of Defense at the time the Land of Israel Proclamation
was proclaimed and promulgated, but it could have been invoked by any later
Minister of Defense who succeeded Ben-Gurion. The same explanation applies to
the Jerusalem Proclamation of August 2, 1948.
6 The Military Governor for the IDF Government in the held area of
Jerusalem was Dr. Dov (Bernard) Joseph. See Itton Rishmi, Special
Issue, 26th of Tammuz 5708 (August 2, 1948), no. 12, p.66.
7 The author discusses the resolution of this question in the concluding
chapter of his forthcoming book, The Legal Foundation and Borders of
Israel under International Law. This chapter is entitled: “Arab Population
Transfer: The Best of Solutions.”
8 Dwaikat v. Government of Israel (Elon Moreh case), HCJ 390/79: (1980)
Supreme Court Judgments, Vol. 34 part I, at p. 12. The English translation of
this case appears in Appendix A: Selected Judgments of the Supreme Court of
Israel, in: Military Government in the Territories Administered by Israel
1967-1980, The Legal Aspects, edited by Meir Shamgar, pp. 404 ff. The
above quotation by Justice Moshe Landau is found on p. 417.
