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 Israels lightning victory in the 1956 war, when no plan
existed for the legal administration of the peninsula during Israels
three month stay there.
He conducted special courses for platoon officers belonging to the Military
Advocates 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 Shamgars 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 Israels 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 Shamgars 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 Shamgars 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
Israels most eminent jurists.
The fatal flaw in Shamgars 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 Palestines 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 Britains 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
Egypts 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
Sadats 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 Israels right to Sinai be lost by default. His
costly blunder and probable violation of law resulted in Israels 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
Shamgars 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 Israels 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 Israels 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 Israels
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, Shamgars 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
Governments implementation of Shamgars 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 Israels 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 Israels 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 Israels 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 Shamgars 1967 folly reached such heights of absurdity! If
Israels 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
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.
-
Ibid., pp. 13, 28, 31.
-
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.
-
Ibid., p. 28.
-
Ibid., p. 55, and also p. 453 which contains the Courts Order for Ramat
HaGolan (Order 273) issued by the Military Government.
-
See Colonel Richard Meinertzhagens book, Middle East Diary 1917-1956,
Thomas Yoseloff, Publisher, New York (1960), pp. 17-19.
-
See Myths and Facts 1978, A Concise Record of the Arab-Israeli
Conflict, published by Near East Report, Washington, DC (1978), pp.
41-42.
-
The information regarding the drafting of the first two military proclamations
for Judea and Samaria was conveyed to the present writer by Professor
Yaakov 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.
-
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).
-
The Jerusalem Post, May 10, 2005.
-
See also Belief
Statements#Legality