The Origin of the Occupation Myth
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 19thcentury, 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.
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 Court’s Order for Ramat HaGolan (Order 273) issued by the Military Government.
See Colonel Richard Meinertzhagen’s 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 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.
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.