LEGAL RIGHTS AND TITLE OF SOVEREIGNTY OF
THE JEWISH PEOPLE TO THE LAND OF ISRAEL PALESTINE
by Howard Grief
The
objective of this paper is to set down in a brief, yet clear and precise manner
the legal rights and title of sovereignty of the Jewish people to the Land of Israel Palestine
As
part of the settlement in which the Arabs received most of the lands formerly
under Turkish sovereignty in the Middle East , the whole of Palestine Jordan
Under
the terms of the settlement that were made by the Principal Allied Powers
consisting of Britain, France, Italy and Japan, there would be no annexation of
the conquered Turkish territories by any of the Powers, as had been planned in
the secret Sykes-Picot Agreement of May 9 and 16, 1916. Instead, these
territories, including the peoples for whom they were designated, would be
placed under the Mandates System and administered by an advanced nation until
they were ready to stand by themselves. The Mandates System was established and
governed by Article 22 of the Covenant of the League of Nations , contained in the Treaty of Versailles
and all the other peace treaties made with the Central Powers - Germany Austria-Hungary Bulgaria Turkey Palestine
The
moment of birth of Jewish legal rights and title of sovereignty thus took place
at the same time Palestine Judea in fulfillment of the Balfour Declaration
and the general provisions of Article 22 of the League Covenant. This meant
that Palestine
The
details for the planned independent Jewish state were set forth in three basic
documents, which may be termed the founding documents of mandated Palestine Israel April 25, 1920 , the Mandate for Palestine Britain League
of Nations on July
24, 1922 , and the
Franco-British Boundary Convention of December 23, 1920 . These founding documents were
supplemented by the Anglo-American Convention of December 3, 1924 respecting the Mandate for Palestine Palestine Land of Israel
The
San Remo Resolution converted the Balfour Declaration of November 2, 1917 from
a mere statement of British policy expressing sympathy with the goal of the
Zionist movement to create a Jewish state into a binding act of international
law that required specific fulfillment by Britain of this object in active
cooperation with the Jewish people. Under the Balfour Declaration as originally
issued by the British government, the latter only promised to use their best
endeavors to facilitate the establishment in Palestine April 24-25, 1920 , the Principal Allied Powers as a
cohesive group charged the British government with the responsibility or legal
obligation of putting into effect the Balfour Declaration. A legal onus was
thus placed on Britain Britain France Germany Suez Canal .
The
term "Jewish National Home" was defined to mean a state by the
British government at the Cabinet session which approved the Balfour
Declaration on October 31, 1917 . That was also the meaning originally
given to this phrase by the program committee which drafted the Basel Program
at the first Zionist Congress in August 1897 and by Theodor Herzl, the founder
of the Zionist Organization. The word "home" as used in the Balfour
Declaration and subsequently in the San Remo Resolution was simply the
euphemism for a state originally adopted by the Zionist Organization when the
territory of Palestine was subject to the rule of the Ottoman Empire, so as not
to arouse the sharp opposition of the Sultan and his government to the Zionist
aim, which involved a potential loss of this territory by the Empire. There was
no doubt in the minds of the authors of the Basel Program and the Balfour
Declaration regarding the true meaning of this word, a meaning reinforced by
the addition of the adjective "national" to "home".
However, as a result of not using the word "state" directly and
proclaiming that meaning openly or even attempting to hide its true meaning
when it was first used to denote the aim of Zionism, ammunition was provided to
those who sought to prevent the emergence of a Jewish state or who saw the Home
only in cultural terms.
The
phrase "in Palestine Transjordan . It was absurd to imagine that this
phrase could be used to indicate that only a part of Palestine was reserved for
the future Jewish National Home, since both were created simultaneously and
used interchangeably, with the term "Palestine" pointing out the
geographical location of the future independent Jewish state. Had "Palestine
There
is therefore no juridical or factual basis for asserting that the phrase
"in Palestine
The
San Remo Resolution on Palestine Palestine Palestine Palestine February 27, 1919 , which called for the development of Palestine Palestine Palestine
The
San Remo Resolution on Palestine became Article 95 of the Treaty of Sevres
which was intended to end the war with Turkey, but though this treaty was never
ratified by the Turkish National Government of Kemal Ataturk, the Resolution
retained its validity as an independent act of international law when it was
inserted into the Preamble of the Mandate for Palestine and confirmed by 52
states. The San Remo Resolution is the base document upon which the Mandate was
constructed and to which it had to conform. It is therefore the pre-eminent
foundation document of the State of Israel and the crowning achievement of
pre-state Zionism. It has been accurately described as the Magna Carta of the
Jewish people. It is the best proof that the whole country of Palestine Land of Israel
The
Mandate for Palestine Britain Palestine
In
conferring the Mandate for Palestine Britain Britain League of Nations as the supervisor of the Mandatory to
ensure that all the terms of the Mandate Charter would be strictly observed.
The Mandate was drawn up in the form of a Decision of the League Council
confirming the Mandate rather than making it part of a treaty with Turkey League of Nations and Britain
The
first drafts of the Mandate for Palestine October 24, 1919 , took personal charge of the Mandate
drafting process in March 1920. He shut out the Zionist Organization from
further direct participation in the actual drafting, but the Zionist leader,
Chaim Weizmann, was kept informed of new changes made in the Draft Mandate and
allowed to comment on them. The changes engineered by Curzon watered down the
obvious Jewish character of the Mandate, but did not succeed in suppressing its
aim - the creation of a Jewish state. The participation of the Zionist
Organization in the Mandate drafting process confirmed the fact that the Jewish
people were the exclusive beneficiary of the national rights enshrined in the
Mandate. No Arab party was ever consulted regarding its views on the terms of
the Mandate prior to the submission of this instrument to the League Council
for confirmation, on December 6, 1920 . By contrast, the civil and religious
rights of all existing religious communities in Palestine, whether Moslem or
Christian, were safeguarded, as well as the civil and religious rights of all
the inhabitants of Palestine, irrespective of race and religion. The rights of
Arabs, whether as individuals or as members of religious communities, but not
as a nation, were therefore legally assured. In addition, no prejudice was to
be caused to their financial and economic position by the expected growth of the
Jewish population.
It was
originally intended that the Mandate Charter would delineate the boundaries of Palestine France Palestine Syria December 23, 1920 . The borders were based on a formula
first put forth by the British Prime Minister David Lloyd George when he met
his French counterpart, Georges Clemenceau, in London on December 1, 1918 and
defined Palestine as extending from the ancient towns of Dan to Beersheba. This
definition was immediately accepted by Clemenceau, which meant that Palestine Palestine Jordan River . The very words "from Dan to Beersheba Palestine Palestine Syria Palestine February 3, 1922 , which took effect on March
10, 1923 . It
illegally removed the portion of the Golan that had previously been included in
Palestine Sea of Galilee ) wholly within the bounds of the Jewish National Home, and made
other small territorial adjustments. The British and French negotiators had no
legal right to remove or exclude any "Palestine Palestine Palestine Palestine Britain France
The
1920 Convention also included Transjordan in the area of the Jewish National Home, but a surprise
last-minute intervention by the US June 3, 1922 and led directly to the sabotage of the
Mandate. Thereafter, the British never departed from the false interpretation
they gave to the Jewish National Home which ended all hope of achieving the
envisaged Jewish state under their auspices.
The
question of which state, nation or entity held sovereignty over a mandated
territory sparked great debate throughout the Mandate period, and no definitive
answer was ever given. That is extremely surprising because the Treaty of
Versailles, signed on June 28, 1919 and ratified on January 10,
1920 , stated
flatly in Article 22 that the states which formerly governed those territories
which were subsequently administered by a Mandatory had lost their sovereignty
as a consequence of World War I. That meant that Germany Africa and the Pacific, while Turkey Middle
East , prior to
the signing of the Treaty of Versailles. The date when the change of
sovereignty occurred could only have been on January 30, 1919, the date when it
was irrevocably decided by the Council of Ten in adopting the Smuts Resolution,
that none of the ex-German and ex-Turkish territories would be returned to
their former owners. These territories were then placed in the collective hands
of the Principal Allied and Associated Powers for their disposition. In the
case of Palestine April 24, 1920 when the Balfour Declaration was adopted as the reason for creating
and administering the new country of Palestine Palestine Palestine Palestine Palestine
This
situation continued so long as the Mandate was in force and the Jewish people
living in Palestine
The
decisive moment of change came on May 14, 1948 when the representatives of the Jewish
people in Palestine Palestine Land of Israel Israel Land of Israel Israel
The
most amazing development concerning the question of sovereignty over Palestine Jordan June 5-10, 1967 , did not do so - except in the case of Jerusalem Israel Israel Land of Israel
Israel's
legal rights and title of sovereignty over all of the Land of Israel -
specifically in regard to Judea, Samaria and Gaza - suffered a severe setback
when the Government of Prime Minister Menahem Begin approved the Camp David
Framework Agreement for Peace in the Middle East, under which it was proposed
that negotiations would take place to determine the "final status" of
those territories. The phrase "final status" was a synonym for the
word "sovereignty". It was inexcusable that neither Begin nor his
legal advisers, including Aharon Barak, the future President of the Israel
Supreme Court, knew that sovereignty had already been vested in the Jewish
people and hence the State of Israel many years before, at the San Remo Peace
Conference. The situation became much worse, reaching the level of treason when
the Government of Prime Minister Yitzhak Rabin signed the Declaration of
Principles (DOP) with the Palestine Liberation Organization (PLO) and agreed to
give it about 90% or more of Judea and Samaria and most of Gaza over a
five-year transitional period in order to "achieve a just, lasting and
comprehensive peaceful settlement and historic reconciliation through the
agreed political process" with the Arabs of Palestine. The illegal
surrender of territory to the "Palestinian Authority" originally
called the "Council" in Article IV of the DOP was hidden by the use
of the word "jurisdiction" instead of "sovereignty" in that
article. Further dissimulation was shown by the sanitized reference to
"redeployment of Israeli military forces in Judea , Samaria
To
understand why even the State of Israel does not believe in its own title of
sovereignty over what are wrongfully termed "occupied territories"
even by leading politicians and jurists in Israel
1. The non-ratification of the Treaty of
Sevres of August 10, 1920 with Turkey which contained the San Remo Resolution
on Palestine and the non-inclusion of this Resolution in the Treaty of Lausanne
of July 24, 1923. This gave the wrong impression that the legal status of Palestine Turkey
2. The non-enforcement of most of the terms
of the Mandate within Palestine
3. The deliberate misinterpretation of the
meaning of the Mandate by the British government to include obligations of
equal weight which it supposedly had undertaken in favor of the Arabs of
Palestine, when in actual fact no such obligations ever existed, particularly
the obligation to develop self-governing institutions for their benefit, which
- on the contrary - were meant for the Jewish National Home.
4. The issuance of several White Papers
beginning with the Churchill White Paper of June 3, 1922 and culminating with
the Malcolm MacDonald White Paper of May 17, 1939, whose effect was to nullify
the fundamental terms of the Mandate and prevent a Jewish state covering the
whole of Palestine from ever coming into being during the British
administration of the country. What the British essentially did in governing Palestine
5. The illegal introduction of Article 25
into the Mandate Charter that after its application on September 16, 1922 led
to the dislocation of Transjordan from the Jewish National Home and also had a
deleterious influence on the administration of Cisjordan by encouraging the
false idea that Arab national rights existed not only in the severed part of
the Jewish National Home across the Jordan, but in the remaining part as well.
The
end result of British sabotage, misinterpretation, distortion and outright
denial of what the Mandate stood for was that Jewish legal rights and title of
sovereignty over the whole of Palestine as originally envisaged in the San Remo
Resolution and the Mandate became so blurred, obfuscated and confused by the
time the Mandate ended that it was no longer understood or held to be true. Not
even the legal experts of the Jewish Agency for Palestine League of Nations .
The
mutilation of the Mandate Charter was continued by the United Nations when this
new world organization considered the question of Palestine August 31, 1947 , the United Nations Special Committee on
Palestine (UNSCOP) proposed an illegal partition plan which recognized Arab
national rights in western Palestine Galilee , Judea , Samaria Ashdod Negev including Beersheba November
29, 1947 as
Resolution 181 (II). The Jewish Agency for Palestine Palestine Palestine December 23, 1920 . The Jewish Agency should have relied on
these three documents exclusively in declaring the Jewish state over all of Palestine Syria Lebanon
Another
facet of the story that concerned the illegal denial of Jewish legal rights and
title of sovereignty over Palestine United States May 17, 1939 . The United States Palestine December 3, 1924 . This imposed a solemn obligation on the US US US
American
inaction against the British government was particularly unforgivable in view
of the fact that the articles of the Mandate were a part of American domestic
law and the US was the only state which could have forced the British to
repudiate the malevolent White Paper and restore the right of the Jews of
Europe to gain refuge in their homeland.
Both
the Mandate and the Anglo-American Convention have ceased to exist. However,
all the rights of the Jewish people that derive from the Mandate remain in full
force. This is the consequence of the principle of acquired legal rights which,
as applied to the Jewish people, means that the rights they acquired or were
recognized as belonging to them when Palestine was legally created as the
Jewish National Home are not affected by the termination of the treaty or the
acts of international law which were the source of those rights. This principle
already existed when the Anglo-American Convention came to an end
simultaneously with the termination of the Mandate for Palestine May 14-15, 1948 . It has since been codified in Article
70(1)(b) of the 1969 Vienna Convention on the Law of Treaties. This principle
of international law would apply even if one of the parties to the treaty
failed to perform the obligations imposed on it, as was the case with the
British government in regard to the Mandate for Palestine
The
reverse side of the principle of acquired legal rights is the doctrine of
estoppel which is also of great importance in preserving Jewish national
rights. This doctrine prohibits any state from denying what it previously
admitted or recognized in a treaty or other international agreement. In the
Convention of 1924, the United States Palestine Land of Israel US Israel Judea , Samaria Gaza Israel United States December
5, 1925 . This
convention has terminated, but not the rights granted under it to the Jewish
people. The American policy opposing Jewish settlements in Judea , Samaria Gaza United States
The
gravest threat to Jewish legal rights and title of sovereignty over the Land of Israel Syria Jordan Lebanon Iraq
It is
a matter of the greatest irony and astonishment that the so-called Palestinian
nation has received its greatest boost from Israel Judea , Samaria Gaza
The
situation in which the Arabs of Palestine and the Land of Israel claim the same
legal rights as the Jewish people violates the authentic international law that
was created by the San Remo Resolution, the Mandate and the 1920 Franco-British
Convention. It is part of the worldwide folly that has occurred since 1969 when
the "Palestinian people" were first accorded international
recognition, that authentic international law has been replaced by an ersatz international law composed of illegal
UN Resolutions. The Fourth Geneva Convention of 1949 and the Hague Regulations
of 1907 are acts of genuine international law, but they have no direct
application or relevance to the legal status of Judea, Samaria and Gaza which
are integral territories of the Jewish National Home and the Land of Israel
under the sovereignty of the State of Israel. These acts would apply only to
the Arab occupation of Jewish territories, as occurred between 1948 and 1967,
and not to the case of Israeli rule over the Jewish homeland. The hoax of the
Palestinian people and their alleged rights to the Land of Israel
The
Arabs of the Land of Israel Israel Land of Israel Israel
Howard Grief was born in
This article was
published in "Nativ Online", February 2004 #2.
(http://www.acpr.org.il/ENGLISH-NATIV/02-issue/grief-2.htm) It isAriel Center
(http://www.acpr.org.il/ENGLISH-NATIV/02-issue/grief-2.htm) It is
THE LEGAL CONSEQUENCES OF THE ISRAELI
GOVERNMENT'S ABANDONMENT OF JUDEA AND SAMARIA
by Howard Grief
TO Members of the Lev Ha'Aretz Group
The core thesis of my book, The Legal Foundation and Borders of
Israel under International Law, is that de
jure sovereignty over all of
Eretz-Israel was vested in the Jewish People, i.e., world Jewry, as a result of
the adoption of the San Remo Resolution of April 25,1920 by the Principal
Allied Powers of World War I (Britain, France, Italy and Japan), a coalition of
nations that defeated and dismembered the Ottoman Turkish Empire and then
allotted those lands to various national beneficiaries.
In 1920, there was of course no State of Israel,
but the Zionist Organization (now called the World Zionist Organization)
represented the national aspirations of the Jewish People to bring about a
future independent Jewish State. In 1929, a second representative body was
formed: the Jewish Agency for Palestine Israel Palestine May 15,1948 . In point of law, de jure sovereignty over the land of the Jews
was devolved or transferred from the Jewish People via the Zionist Organization
and the Jewish Agency to the State of Israel as of that date. However, the
devolution of sovereignty was exercisable — in a de facto sense — only over those areas of the Land of Israel
The situation was drastically changed by the
Six-Day War of June 5-10, 1967 when eastern Jerusalem Judea , Samaria Gaza Golan Heights and Sinai were all
liberated from foreign Arab occupation by the Israel Defense Forces. The
astounding Israeli victory in the war was, however, accompanied by a legal
farce perpetrated by the legal advisers of the Eshkol National Unity
Government, chief among whom was the then-Military Advocate-General Meir
Shamgar, the future Attorney General and President of the Israel Supreme Court.
Instead of applying Israeli law to the liberated territories, as required by
the then-existing Israeli constitutional law, the Eshkol Government — acting on
Shamgar's misguided advice — shortsightedly and unconstitutionally applied
international law (i.e., the laws of war, embodied in the Hague Regulations of
1907 and the Fourth Geneva Convention of 1949), thus creating the harmful
world-wide impression that Israel was henceforth an Occupying Power of
"foreign lands" belonging to Arab states. That is the only reason why
Judea , Samaria Gaza Israel Israel
Under Israeli constitutional law that existed at
the outset of the Six-Day War, the government of Israel was legally obliged to
apply the law of the State of Israel — and not international law — to the
liberated territories. This obligation was inherent in the 1948 law known as
the Area of Jurisdiction and Powers Ordinance and the two Proclamations issued
under its provisions, namely, the Jerusalem Proclamation of August 2, 1948 and the all-embracing and open-ended Land of Israel Proclamation September 2, 1948 . These enactments had one purpose only: to
extend the area of the Jewish State beyond its narrow borders as recommended in
the UN General Assembly Partition Resolution of November 29, 1947 in order to embrace and incorporate into the
State all other areas of the Land of Israel
The pressing question that arises at this point
is what would happen if, instead of incorporation or annexation, the Israeli
Government decides to abandon or cede Judea , Samaria Gaza Samaria Judea and Samaria
The sovereignty now vested in the State of
Israel over Judea and Samaria, but which is inexplicably neither asserted nor
even recognized by the Israeli Government, can, in my opinion, be exercised by
the 300,000 or more Jewish residents of Judea and Samaria in the event and only
in the event that the Government of Israel withdraws completely from this
territory and leaves it once again to the mercies of Arab terrorists. As a
matter of law, it should always be remembered that the State of Israel acts
only in the role and capacity of agent and assignee of the Jewish People, and
simply has no legal authority to renounce the right or rights that legally
belong eternally to the Jewish People as a whole, not only of this generation
but also of all future generations, as Ben-Gurion noted at Basel in 1937. Thus
if the State acts contrary to its power as agent and assignee of the Jewish
People who are directly and adversely'affected by its renunciation of the right
of sovereignty over Judea and Samaria and its transfer of de facto control over the land to an Arab
entity, i.e., to the "Palestinian Authority" or the "Palestine
Liberation Organization", then the right of sovereignty reverts back to
the Jewish People, the original and implied sovereign of Palestine under the
San Remo Resolution, and as a result other representatives of the Jewish People
can legally act in its place and stead. This applies particularly to the Jews
of Judea and Samaria who are part and parcel of the Jewish People in whom
sovereignty over all areas of Eretz-Israel ultimately vests, who presently
implement Israel's de facto sovereignty over Judea and Samaria and
who would suffer great injury by any decision of the Government of Israel to
cede Judea and Samaria to foreigners.
The Jews of Judea and Samaria would, in fact and
in law, be well within their constitutional rights to remain living in those
territories under the most significant law of the State of Israel, the Law of
Return, that enshrines in its provisions the two-thousand-year-old Jewish Right
of Return and, assuming Government abandonment, to take the necessary steps to
govern themselves in an independent State of Judea and Samaria.
Howard Grief is an eminent international lawyer and author
of "The Legal Foundation and Borders of Israel June
15, 2010 .
A LANDMARK WORK
by William Mehlman
Author: Howard Grief "The Legal Foundation and Borders of Israel under International Law"
Pub Date: October 2008
ISBN-10: 9657344522,
ISBN-13: 9789657344521
Publisher: Mazo
(mazopublishers@gmail.com)
With The
Legal Foundation and Borders of Israel under International Law (Mazo Publishers, Jerusalem Israel
It is a lengthy treatise — 660 pages plus a
50-page appendix — but the Jewish people's long and tortuous struggle to
retrieve their stolen patrimony deserves nothing less than full disclosure.
Anyone who has ever been at a loss to counter the slanders and calumnies that
are the stock in trade of the Israel-bashers and anti-Semites on both the Left
and Right will treasure every one of its 20 illuminating chapters.
Rooted in the premise that the best antidote to
a myriad of small and medium sized fabrications is the exposure of the whole
cloth from which they've been woven, The
Legal Foundation lays bare
two dominant myths that have shaped popular perspectives on Israel land of Israel May
15th, 1948 termination of the British Mandate for Palestine Palestine
How "binding" may be construed from
the fact that its wording gave effect to the provisions of Article 22 of the
Covenant of the League of Nations and became incorporated into the Mandate
for Palestine
That the Jewish People were unable to exercise
their sovereignty in Palestine for 28 years — it being assigned to the British
Mandatory power as their de
facto agent — did in no way
detract from their de jure rights to the land under international
law during that interregnum. In this thesis, Grief is ironically supported by
both a passionate Zionist, U.S. Supreme Court Justice Louis D. Brandeis and one
of Zionism's most implacable opponents, post World War I British Foreign
Secretary Lord George Nathaniel Curzon. Brandeis believed that with the passage
of the San Remo Resolution, the debate over who owned Palestine
From the initial misattribution of Jewish
sovereignty in Palestine to the 1947 Partition Plan rather than the 1920 San
Remo Resolution, it was just a hop and a skip to a second major misrepresentation
of Israel's international legal status — the erroneous assumption that the
Partition Plan and the May 1948 termination of the British Mandate somehow
erased the Jewish People's rights to Palestine in all its historical parts and
dimensions enunciated at San Remo, and implemented under the terms of the
League of Nations Covenant. Those "parts and dimensions" were defined
inter alia, as including the northwestern portions of the Golan and most of
present day Jordan Paris
The presumptive cancellation of those rights,
Grief submits, is thoroughly discredited by "the principle of acquired
rights," codified in the 1969 Vienna Convention on the "Law of
Treaties," and the "doctrine of estoppel."
The first, he asserts, insures that "the fundamental rights of the Jewish
people did not lapse with the international process [the San Remo Resolution]
which brought them into existence. The second further guarantees that these
rights cannot "simply be abrogated or denied by those states which
previously recognized their existence." Taken together, they provide what
the author terms a "definitive answer [to] anyone who claims that Jewish
legal rights and title of sovereignty over all of Palestine and the land of
Israel did not continue after the end of the Mandate for Palestine...except in
the allotted boundaries of the UN Partition Plan..."
Noteworthy among the states that wholeheartedly
endorsed Jewish sovereignty over Palestine United States of
America Israel Judea and Samaria Palestinian State
It needs to be borne in mind, Grief notes, that
the Mandate for Palestine U.S. U.S. Judea and Samaria Palestinian State Palestine America
The Legal Foundation and Borders of
Israel under International Law is the product of 25
years of independent research by Grief, a former adviser on international law
to the late Professor Yuval Ne'eman, Minister of Energy and Infrastructure in
the Shamir government and the father of Israel's nuclear energy program. It is
the kind of seminal work that seems destined to become both an indispensible
source for defenders of Israel's rights under international law and a mirror on
the events and personalities that transformed a November 2, 1917 letter from
British Foreign Secretary Lord Arthur James Balfour to Lord Lionel Walter
Rothschild into the trumpet call that awakened Jewish nationhood from a
1,900-year coma.
The author's unsparing portrayal of France's
opposition to the creation of a Jewish state at San Remo and, when thwarted,
its efforts at the Franco-British Boundary Convention to confine it to the
narrowest geographical limits, should dismiss any notion that French
anti-Zionism began with De Gaulle. By the same token, the Zionist sympathies
attributed to Winston Churchill by Martin Gilbert and other historians withers
in the face of the 1922 "White Paper" attached to his name as then
Colonial Secretary. Grief offers irrefutable evidence of its having not only
"negated" the Jewish state in Palestine that the Mandate
"required" of Britain, but of having elevated "Arab pretensions
and aspirations to such an extent that everything thereafter became
muddled...subject to continuous disputes as to what was really intended in the
Mandate for Palestine."
For the actual authorship of that document and
the wreckage it made of the original plan for the establishment of a Jewish
state in all its "historic parts and dimensions" under British
tutelage, we have Herbert Samuel to thank–the same Herbert Samuel who worked
closely with Chaim Weizmann in the Zionist Organization and was later to pack
it in for a "Lordship" and an appointment as British High
Commissioner to Palestine. In ironic contrast, Lord Curzon, Balfour's successor
as Foreign Secretary, who "detested" the idea of a Jewish state, put
loyalty above personal feelings at San Remo Paris
On the Jewish side, nobody comes off better in
this saga than Brandeis, who Grief portrays as "the only Zionist
leader...who properly understood the natural consequences of the legal
recognition of the Balfour Declaration embodied in the San Remo
Resolution." Had Brandeis headed the Zionist Organization, the author
believes, "there is little doubt that he would have successfully halted Britain
At the end of the day, it was Menachem Begin who
provided the most heartbreaking counterpoint to Lloyd George's vision of a
Jewish state reconstituted in most, if not all of its Biblical parts, Grief
submits. Begin, national Zionism's anointed champion, bearer of the torch lit
by Herzl and passed to Jabotinsky, not only failed to make Israel
constitutionally whole by annexing Judea, Samaria and Gaza (as he was expected
to do), but in what the author describes as an act of "unimaginable
folly," brought to the Knesset in 1977 a plan to establish Arab
"self-rule" over those critical portions of the Jewish estate. In so
doing, he opened the portals wide for their identification as
"unalloted," "disputed" and finally "occupied" territories.
Nine months later, in September 1978, Begin
crowned his "achievement" by injecting the "self-rule"
proposal into the negotiations with Egypt Camp David , offering to leave the
final determination of sovereignty over Judea , Samaria Gaza Israel
William Mehlman is Americans for a Safe Israel Israel Mideast Outpost
(http://mideastoutpost.com/archives/000590.html).
THE QUESTION OF THE APPLICABILITY OF THE
FOURTH GENEVA JUDEA , SAMARIA GAZA
by Howard Grief
The legal question of the applicability of the
Fourth Geneva Convention of 1949 to Judea , Samaria Gaza
The
relevant paragraphs of Article 2 read as follows:
In addition to the
provisions which shall be implemented in peacetime, the present Convention
shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance (emphasis added).
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance (emphasis added).
The relevant paragraphs
of Article 6 state:
The present Convention
shall apply from the outset of any conflict or occupation mentioned in Article
2.
In theterritory of Parties
In the
In light of the fact that Article 2(1) of the
Convention applies to all cases of declared
war or armed conflict between
two or more of the High Contracting Parties and that the states engaged in the
Six-Day War were and remain parties to the Convention, there can be no doubt
that at the outset of the war on June 5, 1967 until its conclusion on June 10,
1967, all the provisions of the Convention applied to each of the combatant
states of Israel, Egypt, Jordan and Syria and to the territories that Israel
brought under its military control as a result of the war, regardless of their
legal status or sovereignty at the time and regardless of whether or not they
were to be considered "occupied territories" under international law.
During the war, the Convention also applied regardless of the formalistic
question of whether it represented treaty law that required incorporation into
the domestic law or customary law that did not require such incorporation. The
discussion here will be limited to the applicability of the Fourth Geneva
Convention to Judea , Samaria Gaza June 10, 1967 when the state of active war or hostilities
between Israel
To begin with, it is important to note that the
"military operations" referred to in Article 6 of the Convention
ceased altogether on June 10, 1967, in accordance with three UN Security
Council resolutions passed during the Six-Day War demanding an immediate
cease-fire.[1] This call for a cease-fire was accepted by Israel and Syria
between whom active fighting was still raging on the Golan Heights. The state
of war may have technically continued to exist between Israel Syria Egypt Jordan
Article 6 distinguishes between two kinds of
territory: 1) the territory of the parties to the conflict, and 2) occupied
territory. In the case of the former, the application of the Fourth Geneva
Convention ceases "on the general close of military operations". But
in the case of the latter — "occupied territory" — the Convention
continues to apply until one year after the close of military operations and
even beyond that date if the Occupying Power exercises the functions of
government in such territory.
Inasmuch as the Six-Day War was not fought,
neither within the existing borders of the State of Israel, nor within the
borders of Jordan on the east bank of the Jordan River — the only recognized borders
of the country under international law, the Convention was no longer applicable
to those specific areas after the cease-fire or cessation of hostilities,
except for those provisions of the Convention "which shall be implemented
in peacetime". The question of the further applicability of the Convention
then turns on the question of whether Judea, Samaria and Gaza were
"occupied territories" belonging to the Kingdom of Jordan and/or
Egypt within the meaning of both Article 6 of the Convention and Article 42 of
the Hague Regulations of 1907. These regulations constitute an annex to the
Fourth Hague Convention Respecting the Laws and Customs of War on Land.
Article 42 of the Hague Regulations defines
territory as being occupied when
the territory of the Hostile State Hostile State
At the conclusion of the Six-Day War, the
territories of Judea , Samaria Gaza Jordan Egypt Jordan Egypt Palestine
Despite the fact that Israel never occupied the
sovereign territory of another Arab state or people, within the meaning of the
Fourth Geneva Convention and the Hague Regulations, it has been falsely branded
as an occupier of "Arab land". This accusation has no basis in law
but has persisted because of the false belief that has been nurtured since 1969
by the United Nations and the Arab States Israel Palestine Palestine Israel Israel Israel
Finally, it should be noted that the legal term
"occupation", as defined in international law, refers only to the
occupation by a hostile army of territory belonging to a state. It does not
refer to the people living in "occupied territory", who as
non-nationals of the Occupying Power enjoy the status of "protected persons"
under the Fourth Geneva Convention. In reconquering areas of the Land of Israel
in June 1967, what the Israeli Defense Forces really did was
"repossessing" lands internationally recognized ever since 1920 as
belonging to the Jewish People, as originally reflected by the Hebrew phrase
for those lands: shtahim
muhzakim ("held"
areas). This stressed that it was land, rather than people, that was
repossessed. It is therefore a gross misuse of the term "occupation"
to refer to Israel Israel Judea , Samaria Gaza United States Iraq Israel Israel land of Judea Samaria Gaza Israel Israel Land of Israel
End Notes
[1] The
three Security Council resolutions calling for a cessation of all military
activities, all of which were adopted unanimously, were: 1) Resolution No. 233
of June 6, 1967; 2) Resolution No. 234 of June 7, 1967; 3) Resolution No. 235
of June 9, 1967.
[2] In interpreting the text of a treaty or
of an annex to it such as the Hague Regulations, recourse may be had according
to Article 31 of the Vienna Convention on the Law of Treaties to the context to
be given to the terms of the treaty and also to the treaty's object and
purpose. Based on this general rule of interpretation, the term
"territory" as used in Article 42 of the Hague Regulations can only
refer to the "territory of the hostile state" over which the army of
the other state (i.e., the Occupying state) has assumed military authority.
[3] The principle of international law that
applied to the situation was jus
ex injuria non oritur [a
right does not arise from a wrong]. Even the Council of the Arab League refused
to recognize the Jordanian annexation of Judea and Samaria, and four states —
Egypt, Saudi Arabia, Syria and Lebanon — voted to expel Jordan for violating
the League's anti-annexation resolution of April 13, 1950.
[4] The International Committee of the Red
Cross (ICRC) principally formulated the four 1949 Geneva Conventions that were
approved at a Diplomatic Conference for the Establishment of International
Conventions for the Protection of the Victims of War, held in Geneva from April
21 to August 12, 1949. The ICRC has a special position in the implementation of
these Conventions, charged with providing relief and affording protection for
members of armed forces who are wounded, sick or shipwrecked; prisoners of war;
and civilian persons in time of war (see, for example, Articles 3(2), 63 and
142 of Geneva Convention IV). Under the erroneous assumption of the ICRC that Judea , Samaria Gaza Land of Israel Basle
[5] The Knesset on July 15, 2003 took an
initial step in this direction when it passed, by a margin of 26 to 8, a
resolution submitted by Gideon Sa'ar that read as follows: "...the Knesset
affirms that the territories of Judea and Samaria are not occupied territories,
either historically or from the standpoint of international law, and not
according to the diplomatic accords signed by Israel...".
Howard Grief was born in
Howard Grief has written extensively on Israel's ownership of the West Bank. See, for example, "Is Israel Occupying The West Bank?"; "The origin of the Occupation Myth" ; and "Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law."
Except for the last paragraph of the article, which is
completely new, the present article -- which is also being posted on the
website of the Ariel Center for Policy Research, to whom it was originally
submitted -- is an excerpt from the last chapter of Grief's book "The
Legal Foundation and Borders of Israel under International Law", "The
Legal Foundation and Borders of Israel under International Law" offers a
comprehensive and systematic legal treatment of Jewish national and political
rights to all of the Land of Israel. Howard Grief, is the originator of the
thesis that de juresovereignty
over the entire Land of Israel and Palestine was vested in the Jewish People as
a result of the San Remo Resolution adopted at the San Remo Peace Conference on
April 24, 1920.
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APPENDIX
1: Basic documents regarding
Title:
Caption: This resolution, consisting of the Balfour Declaration and
Article 22 of the Covenant of the
Title: The Franco-British [Boundary]
Convention of
Caption: The Franco-British [Boundary] Convention which delineated
the boundaries between
Title: Mandate for
Caption: The Mandate for
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APPENDIX
II: The Franco-British [Boundary] Convention Of
The British and French Governments,
respectively represented by the undersigned Plenipotentiaries, wishing to
settle completely the problems raised by the attribution to Great Britain of
the mandates for Palestine and Mesopotamia and by the attribution to France
of the mandate over Syria and the Lebanon, all three conferred by the Supreme
Council at San Remo, have agreed on the following provisions:-
Article 1
The boundaries between the territories under
the French mandate of Syria and the Lebanon on the one hand and the British
mandate of Mesopotamia and Palestine on the other are determined as follows:-
On the east, the
On the south-east and south, the aforesaid
boundary of the former vilayets southwards as far as Roumelan Koeui; thence a
line leaving in the territory under the French mandate the entire basin of
the western Kabur and passing in a straight line towards the Euphrates, which
it crosses at Abu Kemal, thence a straight line to Imtar to the south of
Jebul Druse, then a line to the south of Nasib on the Hedjaz Railway, then a
line to Semakh on the Lake of Tiberias, traced to the south of the railway,
which descends towards the lake and parallel to the railway. Deraa and its
environs will remain in the territory under the French mandate; the frontier
will in principle leave the valley of the Yarmuk in the territory under the
French mandate, but will be drawn as close as possible to the railway in such
a manner as to allow the construction in the valley of the Yarmuk of a
railway entirely situated in the territory under the British mandate. At
Semakh the frontier will be fixed in such a manner as to allow each of the
two High Contracting Parties to construct and establish a harbour and railway
station giving free access to the
On the west, the frontier will pass from
Semakh across the
From Metullah the frontier will reach the
watershed of the valley of the
Article 2
A commission shall be established within three
months from the signature of the present convention to trace on the spot the
boundary line laid down in article 1 between the French and British mandatory
territories. This commission shall be composed of four members. Two of these
members shall be nominated by the British and French Governments
respectively, the two others shall be nominated, with the consent of the
Mandatory Power, by the local Governments concerned in the French and British
mandatory territories respectively.
In case any dispute should arise in connection
with the work of the commission, the question shall be referred to the
Council of the
The final reports by the commission shall give
the definite description of the boundary as it has been actually demarcated
on the ground; the necessary maps shall be annexed thereto and signed by the
commission. The reports, with their annexes, shall be made in triplicate; one
copy shall be deposited in the archives of the
Article 3
The British and French Governments shall come
to an agreement regarding the nomination of a commission, whose duty it will
be to make a preliminary examination of any plan of irrigation formed by the
Government of the French mandatory territory, the execution of which would be
of a nature to diminish in any considerable degree the waters of the Tigris
and Euphrates at the point where they enter the area of the British mandate
in Mesopotamia.
Article 4
In virtue of the geographic and strategic
position of the
Article 5
1.The French Government agrees to facilitate
by a liberal arrangement the joint use of the section of the existing railway
between the
2.The British Government may carry a pipe line
along the existing railway track and shall have in perpetuity and at any
moment the right to transport troops by the raiiway.
3.The French Government consents to the
nomination of a special commission, which, after having examined the ground,
may read just the above-mentioned frontier line in the valley of the Yarmuk
as far as Nasib in such a manner as to render possible the construction of
the British railway and pipe line connecting Palestine with the Hedjaz
Railway and the valley of the Euphrates, and running entirely within the
limits of the areas under the British mandate. It is agreed, however, that
the existing railway in the Yarmuk valley is to remain entirely in the
territory under the French mandate. The right provided by the present
paragraph for the benefit of the British Government must be utilized within a
maximum period of ten years.
The above-mentioned commission shall be
composed of a representative of the French Government and a representative of
the British Government, to whom may be added representatives of the local
Governments and experts as technical advisers to the extent considered
necessary by the British and French Governments.
4.In the event of the track of the British
railway being compelled for technical reasons to enter in certain places the
territory under French mandate, the French Government will recognize the full
and complete extra-territoriality of the sections thus lying in the territory
under the French mandate, and will give the British Government or its
technical agents full and easy access for all railway purposes.
5.In the event of the British Government
making use of the right mentioned in paragraph 3 to construct a railway in
the valley of the Yarmuk, the obligations assumed by the French Government in
accordance with paragraphs 1 and 2 of the present article will terminate
three months after the completion of the construction of the said railway.
6.The French Government agrees to arrange that
the rights provided for above for the benefit of the British Government be
recognized by the local Governments in the territory under the French
mandate.
Article 6
It is expressly stipulated that the facilities
accorded to the British Government by the preceding articles imply the
maintenance for the benefit of
Article 7
The French and British Governments will put no
obstacle in their respective mandatory areas in the way of the recruitment of
railway staff for any section of the Hedjaz Railway.
Every facility will be given for the passage
of employees of the Hedjaz Railway over the British and French mandatory
areas in order that the working of the said railway may be in no way
prejudiced.
The French and British Governments agree,
where necessary, and in eventual agreement with the local Governments, to
conclude an arrangement whereby the stores and railway material passing from
one mandatory area to another and intended for the use of the Hedjaz Railway
will not for this reason be submitted to any additional customs dues and will
be exempted so far as possible from customs formalities.
Article 8
Experts nominated respectively by the
Administrations of Syria and Palestine shall examine in common within six
months after the signature of the present convention the employment, for the
purposes of irrigation and the production of hydro-electric power, of the
waters of the Upper Jordan and the Yarmuk and of their tributaries, after
satisfaction of the needs of the territories under the French mandate. In
connection with this examination the French Government will give its
representatives the most liberal instructions for the employment of the
surplus of these waters for the benefit of
In the event of no agreement being reached as
a result of this examination, these questions shall be referred to the French
and British Governments for decision.
To the extent to which the contemplated works
are to benefit Palestine, the Administration of Palestine shall defray the
expenses of the construction of all canals, weirs, dams, tunnels, pipe lines
and reservoirs or other works of a similar nature, or measures taken with the
object of reafforestation and the management of forests.
Article 9
Subject to the provisions of Articles 15 and
16 of the mandate for Palestine, of Articles 8 and 10 of the mandate for
Mesopotamia, and of Article 8 of the mandate for Syria and Lebanon, and
subject also to the general right of control in relation to education and
public instruction, of the local Administrations concerned, the British and
French Governments agree to allow the schools which French and British
nationals possess and direct at the present moment in their respective
mandatory areas to continue their work freely; the teaching of French and
English will be freely permitted in these schools.
The present article does not in any way imply
the right of nations of either of the two parties to open new schools in the
mandatory area of the other.
The present convention has been drawn up in
English and French, each of the two texts having equal force.
Done at
HARDINGE OF
PENSHURST
G. LEYGUES |
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APPENDIX
III: Jewish Legal Rights and Title of Sovereignty to the
by Howard Grief
April 2004 published on Jerusalem Summit website www.jerusalemsummit.org
The legal title of the Jewish People to the
mandated territory of Palestine in all of its historic parts and dimensions
was first recognized under international law on April 25, 1920 by a Decision
taken at the San Remo Peace Conference by the Supreme Council of the
Principal Allied Powers to entrust Palestine to Great Britain under the
Mandates System for the purpose of establishing a national home for the exclusive
benefit of the Jewish People, in accordance with the terms of the Balfour
Declaration of November 2, 1917.
The Supreme Council of the Allies was made up
of the top political leaders and officials of Great Britain, France, Italy
and Japan, and it was they in their meeting in the Italian resort city who
decided the future fate of all the Asiatic possessions which, as a
consequence of World War I, had ceased to be under the sovereignty of the
Ottoman Turkish Empire which formerly governed them.
These possessions included all the area then
called the
British determination and influence in the
wartime group of nations officially called the Principal Allied Powers in
relation to Turkey excluded other areas under former Ottoman rule in Asia
from being part of the new system of mandatory government, particularly the
Hedjaz and the whole Arabian Peninsula.
This was the global settlement that was made
after World War I, that conferred enormous benefits to the Arabic-speaking
world. The "Arabs" received the lion's share of the territories
that formerly belonged to
Other peoples who were originally included in
this global settlement fared badly. Kurds and Armenians were supposed to get
their own autonomous homelands or states, and the Assyro-Chaldeans, who were
a Christian community centered in
When the settlement and division of land was
devised at the San Remo Conference, it was clear to all concerned parties,
Arab and Jew alike and to all European, American and Japanese statesmen, that
Palestine, within its historic frontiers according to the biblical formula,
from Dan to Beersheba, but which still needed to be marked out in a separate
agreement, was exclusively reserved for the benefit of the Jewish people all
over the world, of which only a fraction then actually lived in the ancient
Jewish country. What this obviously meant to one and all was an independent
Jewish State in all of the historic
Jewish legal rights and title to all of
historic Palestine, including Transjordan and Golan, whose association with
the Jewish People goes back to the earliest days of Jewish history, was
indeed then formally recognized in the Franco-British Convention of December
23, 1920, even though no specific words were used to that effect but was well
understood by the parties, both from the negotiations that were conducted
prior to the conclusion of the Convention in consultation with Zionist
leaders who pressed the British to obtain the best possible frontiers for the
Jewish National Home, and from the reference to the Mandate for Palestine
contained in the Convention itself. Some parts of historic
Jewish legal rights and title to the country
of
1.The
historical connection of the Jewish People with
2.The right enshrined
in Article 22 of the Treaty of Versailles of 1919 which provided for national
independence or self-determination for those peoples, inhabitants and
communities living in the colonies and territories formerly under Turkish and
German sovereignty. This principle of self-determination was also adopted for
the benefit of the Jewish People by the Principal Allied Powers when they
created the Mandates System even though the vast majority of Jews did not
live in any of the territories described in Article 22 of the Treaty of
Versailles that were destined for eventual independence. That was the most
unique element of the Mandate for
3.The right of the
Jewish People to reconstitute their State of old in accordance with the
Balfour Declaration of November 2, 1917, as adopted by the Principal Allied
Powers on April 25, 1920 at the San Remo Conference. The Balfour Declaration
was a declaration of sympathy with Jewish Zionist aspirations as stated in
the brief letter sent to Lord Lionel Walter Rothschild which contained the
text of the famous Declaration. It viewed with favour "the establishment
in
The "home" referred to in the
Declaration was a euphemistic term for "state" already used 20
years earlier by the Jewish leaders attending the World Zionist Congress
convoked by Theodor Herzl and held at Basel, Switzerland, in August 1897, so
as not to offend Turkish sensibilities on the projected loss of Palestine
from their recognized sovereign domains under international law. The word
"national" was later appended to the word "home" by Nahum
Sokolow, the long-time Zionist leader at the time he participated in the drafting
of the Balfour Declaration with British officials. The addition of this word
was to make it even clearer what the ultimate goal of the Zionist
Organization was, on behalf of the scattered Jewish people. Strangely, what
was evident by the words "national home" then became muddled by the
originator of the term, Sokolow himself, who, in a display of inane and
unnecessary deception, wrote in the introduction to his two-volume monumental
work, History of Zionism,
published in 1919, that the word "home" as used in the Basel
Program of 1897, did not mean the creation of an independent "Jewish
State", which was an interpretation he attributed to anti-Zionists who
were opposed to the revival of the Jewish People as an independent nation in
its ancestral homeland. This denial of the term's true meaning was contrary
to what both Balfour and Lloyd-George themselves stated, both at the time the
Balfour Declaration was approved by the War Cabinet and in the years
afterwards. It was also contrary to President Wilson's own pronouncement on
the subject, influenced by the great American Supreme Court Justice, Louis
Dembetz Brandeis, both of whom had a major role in the approval of the
Balfour Declaration. The matter became further confused by Ahad Ha'Am, the
pompous pseudonym used by Asher Ginsberg, who stated erroneously in a
deliberate trouble-provoking exegesis that the words "in
As a result of Sokolow's and Ginsberg's
unconscionable and unforgivable misrepresentations which created heavy
roadblocks on the way to Jewish independence, it thereafter became easy for
succeeding British Governments to exploit their false interpretation of the
Balfour Declaration and to change the policy embedded in the Declaration to
the great detriment of the Jewish National Home.
Despite British backtracking, the Balfour
Declaration did become in any case an act of international law of supreme
importance to the cause of Zionism, when it was officially adopted by the
Principal Allied Powers at the San Remo Conference. It is without doubt the
linch-pin or essential foundation of all Jewish legal rights to
The foregoing three components of the Jewish
legal title to Palestine were then rolled into one comprehensive
international instrument, the Mandate for Palestine, which thereafter became
the primary cited source for Jewish legal rights to the re-constituted Jewish
National Home that was called Palestine in English, a name originally chosen
by the Zionist leaders in the Basel Program of 1897, and translated into
Hebrew as the Land of Israel.
These rights were included specifically in the
first three recitals of the Preamble of the Mandate Agreement, each one of
the recitals being of great importance by itself. Recital One refers to
Article 22 of the Covenant of the
The instrument containing the Mandate for
This constituted official recognition under
international law of Jewish legal rights and title to all of
In this regard, it is worthwhile to assess the
claim that Jewish legal rights and title to the whole country including
Second, the doctrine of estoppel also applies
with even greater force to the
Finally, the doctrine of estoppel applies with
equal validity to all Arab states whose own creation under international law
derived from the very same global settlement made by the Principal Allied
Powers at
One additional note related to this matter is
that it is unnecessary to base the continuation of Jewish legal rights and
title to all of former
Unfortunately what was clearly established in
regard to Jewish legal rights and title to all of
After taking complete control of the Turkish
Government, Ataturk refused to accede to the loss of any Turkish territories
in
The various provisions of the Treaty of Sevres
which had clearly set out the new legal structure for Palestine and that of
Syria and Mesopotamia in an unambiguous way were not repeated in the Treaty
of Lausanne, but simply omitted altogether, replaced by a vague clause
(Article 16), which referred to the future of territories "being settled
or to be settled by the parties concerned" among which was Palestine,
over which Turkey again renounced all rights and title, as it had done
previously when the Sultan's representatives signed the Treaty of Sevres.
The change in regime in
As a result, many renowned jurists have
wrongly maintained that Turkey only lost its sovereignty over Palestine and
the rest of the Fertile Crescent when it agreed to the Treaty of Lausanne of 1923,
though the Treaty of Versailles of 1919, also recognized by Kemal's Turkey,
expressly rebuts that incorrect contention, as does the first recital in the
Preamble of the Mandate for Palestine as well as Turkey's earlier acceptance
of Wilson's Fourteen Points, delivered in an address to the U.S. Congress on
Jan. 8, 1918, one point of which dealt specifically with Turkey limiting its
control to its own peoples. In any event, the provisions of the Treaty of
Sevres still have great evidentiary value despite its non-ratification, to
show what the Principal Allied Powers actually intended to do or had in mind
when they adopted the Balfour Declaration as the only basis of the Mandate
for
The changes produced by Ataturk's rise to
power were also accompanied by a sudden American intervention in the involved
process then underway to confirm all the new mandates that were allotted to
Mandatories under the Mandates System. The
The American maneuver produced very
deleterious effects for Jewish legal rights and title to all of
The damage done soon became evident enough.
Thanks to the unwelcome American intrusion, the British deviously sneaked in
a new provision into the Mandate, that of Article 25, using as a lame excuse
Abdullah's threatened advance into Syria to protest his brother's eviction by
the French, which had no chance of succeeding but amounted to mere bluster
and feigned action. This additional provision to the Mandate for
The British engaged in other shady maneuvers
and artifices whose combined effect was to distort the true legal meaning of
the Mandate for
The author of this article served as a legal
adviser to Professor Yuval Ne'eman in international law matters affecting the
status of the
However, these methods or devices were so
skillfully contrived and artfully executed, they fooled most people at the
time. And because they were also based on Zionist antecedents provided by the
likes of Nahum Sokolow and Asher Ginsberg and supported to a certain extent
by the statements of Chaim Weizmann himself, the British were able to get
away with their brazen undermining of the Jewish National Home until it
became obvious what they had done. By that time, it was already too late to
do anything to reform the situation and execute the Mandate according to its
original true meaning. The British methods or devices included the following
acts of sabotage of the Jewish National Home:
A.
Changing the meaning of the words "the establishment in Palestine of a
national home for the Jewish People" to connote not the establishment of
an independent Jewish State, but rather a cultural or spiritual center, as
earlier advocated by both Ahad Ha'Am and Nahum Sokolow.
B. Misrepresenting the
Mandatory's solemn obligations under the Mandate to include not only
obligations in favour of the Jewish People, but also undertakings of equal
weight designed to satisfy Arab aspirations for self-government in
C. Introducing the
illegal principle of partition into the Mandate Agreement, which was expressly
forbidden by Article 5 of the text of the Mandate. Here the British showed
great ingenuity, using all their brilliant grammatical skills to find a
mother lode of new meaning from the simple phrase "in
D. Administering
Palestine in such a way as to bring about the establishment of an independent
Arab Government for Palestine, which was, of course, the complete opposite of
what was required to be done under the Mandate's provisions. This British
policy of converting a Jewish Palestine into an Arab Palestine reached its
outrageous apex in the infamous White Paper of
Those British figures who were chiefly
responsible for tearing asunder the definitive peace settlement reached at
San Remo and Sevres and concomitantly with obfuscating Jewish legal rights
and title to all of Mandated Palestine are among the most revered personages
in British and Zionist history, specifically George Nathaniel Curzon, Herbert
Samuel and Winston Churchill.
Curzon was a leading member in Prime Minister
Lloyd George's War Cabinet, who became Foreign Secretary upon the retirement
of Arthur James Balfour. He was placed in charge of
Despite Curzon's best attempts to prevent a
Jewish state from being seen as the real and most important objective of the
Mandate for
The nefarious work begun by Curzon was
ironically taken over and completed by the erstwhile Zionist, Herbert Samuel,
who just before his appointment as British High Commissioner in
It was this White Paper of
The British circumvention of the Mandate for
The question now arises in light of what
occurred in the past just what
Next,
It is safe to assume that the foregoing advice
will never be acted upon so long as there is an anti-nationalist Labour party
and other "peace parties" who advocate a spurious peace, instead of
believing in and fighting for the integrity and non-partition of the
Only a future Government of Israel infused
with the proper Jewish nationalist and religious spirit, knowledge and pride
can change what is today a murky and forlorn situation.
As for what can be done actually now,
[1] immediately scrap the "Oslo Peace
Process" which, incredibly, recognizes the national and political rights
of a motley Gentile people to substantial parts of the Land of Israel;
[2] evict the so-called and falsely-denominated "Palestinian Authority" and its entire leadership from the Jewish country, and [3] annex or incorporate all of Judea, Samaria and Gaza into the Jewish State; [4] All Arabs who do not profess loyalty to the Jewish State must leave the country and be re-settled in other Moslem countries, just as happened between the Greeks and the Turks after World War I; [5] No Arab parties professing national and collective rights for Arabs in the Jewish country should be allowed to sit in the Knesset.
The Moslems who live in the
The future steps that need to be taken to
restore all of the Jewish country to its sovereign owner, the Jewish People,
are at this point clear enough.
It is fervently
hoped that the day is not far off, especially under the new Sharon
Government, that Israel will finally abandon what has been the most dangerous
and suicidal course for a Jewish government to have ever followed: a policy
which illegally transfers integral parts of the Jewish homeland to an enemy
bent on destroying it and which has allowed it to create foreign rule and the
rudiments of a state and army in the very midst of the Jewish country, led by
a gang of bloody terrorists and murderers as seen only too well today.
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Appendix
IV:
It was agreed — (a) To accept the terms of the
Mandates Article as given below with reference to Palestine, on the
understanding that there was inserted in theproces-verbal an undertaking by the Mandatory
Power that this would not involve the surrender of the rights hitherto
enjoyed by the non-Jewish communities in Palestine; this undertaking not to
refer to the question of the religious protectorate of France, which had been
settled earlier in the previous afternoon by the undertaking given by the
French Government that they recognized this protectorate as being at an end.
(b) that the terms of the Mandates Article should be as follows:
The High Contracting Parties agree that Syria and
Mesopotamia shall, in accordance with the fourth paragraph of Article 22,
Part I (Covenant of the League of Nations), be provisionally recognized as
independent States, subject to the rendering of administrative advice and
assistance by a mandatory until such time as they are able to stand alone.
The boundaries of the said States will be determined, and the selection of
the Mandatories made, by the Principal Allied Powers.
The High Contracting
Parties agree to entrust, by application of the provisions of Article 22, the
administration of
La Puissance
mandataire s'engage a nommer dans le plus bref delai une Commission speciale
pour etudier toute question et toute reclamation concernant les differentes
communautes religieuses et en etablir le reglement. Il sera tenu compte dans
la composition de cette Commission des interets religieux en jeu. Le
President de la Commission sera nomme par le Conseil de la Societe des
Nations.
The terms of the
mandates in respect of the above territories will be formulated by the
Principal Allied Powers and submitted to the Council of the
(c) Les mandataires
choisis par les principales Puissances allies sont: la France pour la Syrie,
et la Grand Bretagne pour la Mesopotamie, et la Palestine.
In
reference to the above decision the Supreme Council took note of the
following reservation of the Italian Delegation:
La Delegation
Italienne en consideration des grands interets economiques que l'Italie en
tant que puissance exclusivement mediterraneenne possede en Asie Mineure,
reserve son approbation a la presente resolution, jusqu'au reglement des
interets italiens en Turquie d'Asia.
Footnote:
1.
The actual date was November 2, 1917.
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Appendix
V: SECURITY COUNCIL RESOLUTION 242: A VIOLATION OF LAW AND A PATHWAY TO DISASTER
Howard Grief
November 2007
Resolution 242, adopted by the United Nations
Security Council five and a half months after the outbreak of the Six-Day War
of June 1967, stated the principles for the establishment of a just and
lasting peace in the
As a consequence of Resolution 242 being only
a recommendation to the states involved in the Six-Day War of June 1967
concerning the best way to achieve a just and lasting peace in the Middle
East, it cannot be classified as "international law" nor can it
produce "legal rights" in favour of any parties to whom it is meant
to apply. Neither, for that matter, does the Resolution produce "legal
obligations" that are imposed upon all the states concerned, requiring
them to act in conformity with the resolution unless those states agree
mutually to do so. It is also important to note that Resolution 242 is
applicable to states only, and not to non-state entities such as the
"Palestine Liberation" Organization.
Two principles, supposedly in fulfillment of
the U.N. Charter, are enunciated in the Resolution to attain "a just and
lasting peace in the
The American position on the extent of the
Israeli withdrawal was first enunciated by President Johnson in a speech
delivered on
There
are some who have urged, as a single, simple solution, an immediate return to
the situation as it was on June 4. As our distinguished and able Ambassador,
Mr. Arthur Goldberg, has already stated, this is not a prescription for
peace, but for renewed hostilities.
Certainly troops must
be withdrawn, but there must also be recognized rights of national life, progress
in solving the refugee problem, freedom of innocent maritime passage,
limitation of the arms race, and respect for political independence and
territorial integrity.
(Bernard Reich [ed.], Arab-Israeli Conflict and Conciliation: A Documentary History, Praeger Publishers, Westport, Connecticut (1995), Document Entitled: Johnson's Five Principles of Peace, p. 97 at p. 99.)
President Johnson thus linked any Israeli
withdrawal of troops with the attainment of all five principles that he set
out in his speech. He emphasized strongly that the withdrawal of Israeli
forces was not to be immediate, but would take place only when the other
conditions he listed were also fulfilled.
The American position on
If any further evidence is needed to prove
that Resolution 242 did not oblige Israel to withdraw completely to the June
4, 1967 lines, it is provided by three of the formulators of this resolution,
Arthur J. Goldberg, U.S. Ambassador to the U.N., George Brown, the British
Foreign Secretary in 1967 at the time the resolution was adopted, and Lord
Caradon, the sponsor of the resolution.
In the words of Ambassador Goldberg in a
speech he delivered on
Resolution
242(1967) does not explicitly require that
Resolution 242 (1967)
simply endorses the principle of "withdrawal of
The notable omissions
— which were not accidental — in regard to withdrawal are the words
"the" or "all" and "the
Substantiating Ambassador Goldberg's
interpretation of Resolution 242, George Brown stated in January 1970:
I
formulated the Security Council resolution. Before we submitted it to the
Council we showed it to the Arab leaders. The proposal said
More corroboration is provided by Lord
Caradon:
Withdrawal
shall take place to secure and recognized boundaries, and these words were
very carefully chosen: they have to be secure, and they have to be
recognized. They will not be secure unless they are recognized. And that is
why one has to work for agreement. This is essential. If we had attempted to
draw a map, we would have been wrong. We did not. And I would defend absolutely
what we did. It was not for us to lay down exactly where the border should
be. I know the 1967 border very well. It is not a satisfactory border, it is
where troops had to stop in 1947, just where they happened to be that night.
That is not a permanent boundary (Tekoah, Yosef, op. cit., pp. 263-64).
Later, in an interview with a Lebanese
newspaper, the Beirut Daily Star, on
It
would have been wrong to demand that
The second principle in Resolution 242 taken
directly from the U.N. Charter to achieve a just and lasting peace in the
The Arab states of Egypt and Jordan both
initially accepted Resolution 242 in the hope that Israel would then withdraw
from the territories they had just lost to Israel in the Six-Day War, which
either they had illegally acquired in the 1948 War or which never legally
belonged to them under international law. In regard to Jordan, the pro-Arab,
anti-Israeli journalist and author, Donald Neff, claims in a book he wrote
that a secret agreement existed between the U.S. and Jordan under which the
U.S. gave what he called "ironclad assurances" to King Hussein of
Jordan, "that the U.S. was prepared to support the return of a
substantial part of the West Bank to Jordan with boundary adjustments, and
would use its influence to obtain compensation to Jordan for any territory it
was required to give up" (see his book, Warriors for Jerusalem: The Six
Days that changed the Middle East, Linden Press/Simon & Shuster, New
York (1986), pp. 341, 345). The assurances given to Hussein, writes Neff,
were made by U.S. Secretary of State Dean Rusk, U.N. Ambassador Arthur J.
Goldberg and President Johnson himself in a meeting with Hussein at the White
House on
Goldberg for his part not only denied the
accuracy of the assertion that Resolution 242 presupposed only minor border
changes, but emphatically denied that any assurance or commitment had ever
been given to King Hussein by the American Government that it would ensure
In
1967, I was the permanent representative of the
In the course of these
meetings, I made it clear to King Hussein that I was speaking at the express
authorization of President Lyndon Johnson. It was, I stated, the U.S. view
that in light of the fact that Jordan had entered the 1967 war after Israel
had urged it not to do so, and had been defeated, the United States could not
guarantee that the West Bank would be returned to Jordan. The most we could
do, I made clear, would be to use our influence to help
I did say that we did
not visualize a
Goldberg's robust rebuttal of King Hussein's
allegation of a secret commitment made to him by the
The other principal enemy combatant,
Taken together, the two principles of
Resolution 242, if implemented by the parties to the conflict, would require
Israel's withdrawal, not, as already noted, from "all" the
territories it allegedly "occupied" in the Six-Day War — the term
"occupied" is fraught with legal meaning under the Hague
Regulations of 1907 and the Fourth Geneva Convention of 1949 — but only a
withdrawal to "secure and recognized boundaries".
The Arab and Russian interpretation of this
resolution, i.e., that
Aside from any mis-interpretation of
Resolution 242 by
In addition to the resolution's
incompatibility with international law that bestowed the legal right to all
of Palestine on the Jewish People, the resolution also violated Israel's own
constitutional law in the form of the Area of Jurisdiction and Powers
Ordinance and the Proclamation issued on September 2, 1948 by Defense
Minister David Ben-Gurion, formally known as "Israel Defense Forces
Government in the Land of Israel" (or simply "the Land of Israel
Proclamation"). Israeli constitutional law as it existed when Resolution
242 was adopted on
From another aspect, it is sterile to argue
that Israel is not obliged to withdraw from liberated Jewish territories
(Judea, Samaria, Gaza, Golan and Sinai) merely because of the fact that
Resolution 242 uses indefinite language rather than the definite article
'‘the" before the word "territories" in the official English
version in which the resolution was drawn up, but not incidentally in the
text of the U.N.'s four other official languages (French, Spanish, Russian
and Chinese). While it is undoubtedly true that Resolution 242, based on the
indefinite language employed therein, does not require a complete Israeli
withdrawal, Israel's rights to lands constituting its ancient and modern
patrimony should not be founded on this grammatical argument, as it so often
is by those who mistakenly believe that this resolution is a beneficial
document in support of Israel's position and rights.
Resolution 242 adds two more requirements for
achieving a just and lasting peace in the
Second, Resolution 242 "affirms further
the necessity for achieving a just settlement of the refugee problem".
The "refugee problem" had more than one meaning. It was naturally a
reference to the existing Arab refugee problem that has been immune to
resolution and has grown exponentially over the years by illogically adding
to the original number of refugees in 1948 and 1967 most of whom have already
passed away, all of their descendants including, amazingly enough, even
grandchildren and great-grandchildren who never lived in or fled from
Mandated Palestine, and providing them with free rations, medical care,
educational facilities and other services. Most of these so-called refugees
live in
"A just solution of the refugee
problem" also carried with it a reference to the problem of Jewish
refugees from Arab countries who were driven out or escaped from Moslem
persecution both before and after the rebirth of the State of Israel. In
fact, the number of Jewish refugees exceeded the number of Arab refugees who
fled
No mention is made in Resolution 242 of the
so-called "Palestinians" and their alleged right of
self-determination. That would only come later, on December 10, 1969, when
the General Assembly adopted Resolution No. 2535 (XXIV) which affirmed
"the inalienable rights of the people of Palestine", followed in
later years by a slew of other resolutions of the same type that converted
the "refugees" into a new "nation" unknown in history and
no different from other Arabs living in Israel and the Arab states.
To carry out Resolution 242, a special
Representative was designated by the Secretary-General "to proceed to
the
Resolution 242 was further re-affirmed in
Security Council Resolution 338 adopted on
In the years that followed the adoption of
Resolution 242, the American position on Israeli withdrawal moved much closer
to the Arab position as originally understood by King Hussein of
The
United States considers that the part of Jerusalem that came under the
control of Israel in the June war, like other areas occupied by Israel, is
occupied territory and hence subject to the provisions of international law
governing the rights and obligations of an occupying power. Among the
provisions of international law which bind
As seen by the foregoing statement of
Ambassador Yost, the U.S. Administration under President Richard Nixon now
formally considered eastern
Resolution
242 in no way refers to
In a number of
speeches at the U.N. in 1967, I repeatedly stated that the armistice lines
fixed after 1948 were intended to be temporary. This, of course, was
particularly true of
My speech of
This is a far cry from
Ambassador Yost's statement that we conceived
[* ] Hodding Carter,
the assistant secretary of state for public affairs in the Jimmy Carter
Administration.
The Yost statement to the U.N. Security
Council was followed by the unanimous adoption of Resolution 267 on
The
Security Council resolution neither endorses nor precludes [the] armistice
lines as the definitive political boundaries. However, it calls for
withdrawal from occupied territories, the non-acquisition of territory by
war, and the establishment of secure and recognized boundaries. We believe
that while recognized political boundaries must be established and agreed
upon by the parties, any changes in the pre-existing [armistice] lines [of
1949] should not reflect the weight of conquest and should be confined to
insubstantial alterations required for mutual security. We do not support
expansionism. We believe troops must be withdrawn as the resolution provides.
We support
By saying that Israel's borders should not
reflect the weight of conquest and that any changes in the June 4, 1967 lines
should be confined to insubstantial alterations and by opposing Israeli
"expansionism", Rogers was adopting an unmistakable pro-Arab
position that Israel should give up almost all its territorial gains in the
Six-Day War and go back to the pre-existing lines of June 4, 1967 that
clearly were not the defensible borders required under Resolution 242.
President Nixon himself stated on
One of the strangest reactions to Resolution
242 came from Menahem Begin. He was a minister of the National Unity
Government of Israel in December 1967 when it was decided to accept the
resolution, but he was apparently not privy to this decision. After he
learned of it, he expressed his disapproval, but did not resign from the
Government. However, when the Government in which he served accepted the
Second Rogers Plan on July 31, 1970, to renew a cease-fire and
"standstill" in the military situation between Egypt (then
officially called the United Arab Republic) and Israel and also to pursue an
agreement for the establishment of a just and lasting peace between Jordan
and Israel as well as between Egypt and Israel, Begin and the Gahal bloc of
the Herut and Liberal parties quit the Government. He did so because the new
Rogers Plan was explicitly based on Resolution 242 which required Israeli
withdrawal "from territories occupied" in the 1967 conflict that
under the American interpretation included Jerusalem and the Jordanian
"West Bank", and also all other fronts. For Begin that meant a new
partition of the
Begin's acceptance of Resolution 242 was a
stark repudiation of all that he previously professed. His volte-face contrasted with the steadfast
position taken by his successor, Prime Minister Yitzhak Shamir, who stoutly
believed that
Finally, in a radical shift from President
Johnson's position, President George W. Bush, acting in concert with the
United Nations, Russia and the European Union, gave American support to the
Road Map Peace Plan advocating "an independent, democratic and viable
‘Palestinian' state living side by side in peace and security with Israel
and its other neighbors" in Judea, Samaria and Gaza. This plan, which
grew out of Resolution 242 and cited it in the preamble as one of its
foundations, envisages an end of
Over the years, Resolution 242 became a
cornerstone document in international diplomacy seeking to bring about a just
and lasting peace between
UNITED NATIONS
SECURITY COUNCIL RESOLUTION NO. 242 OF
STATING THE PRINCIPLES
OF A JUST AND LASTING PEACE IN THE MIDDLE EAST
The Security Council,
Expressing its continuing concern with the
grave situation in the Middle East, Emphasizing the inadmissibility of the
acquisition of territory by war and the need to work for a just and lasting
peace in which every State in the area can live in security,
Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter,
1.
Affirms that the fulfillment of Charter principles requires the establishment
of a just and lasting peace in the
(a)
Withdrawal of Israeli armed forces from territories occupied in the recent
conflict;
(b) Termination of all
claims or states of belligerency and respect for and acknowledgement of the
sovereignty, territorial integrity and political independence of every State
in the area and their right to live in peace within secure and recognized
boundaries free from threats or acts of force;
2. Affirms further the
necessity
(1) For
guaranteeing freedom of navigation through international waterways in the
area;
(2) For achieving a
just settlement of the refugee problem;
(3) For guaranteeing
the territorial inviolability and political independence of every State in
the area, through measures including the establishment of demilitarized
zones;
3. Requests the
Secretary-General to designate a Special Representative to proceed to the
Middle East to establish and maintain contacts with the States concerned in
order to promote agreement and assist efforts to achieve a peaceful and
accepted settlement in accordance with the provisions and principles in this
resolution;
4. Requests the
Secretary-General to report to the Security Council on the progress of the
efforts of the Special Representative as soon as possible.
Adopted unanimously at
the 1382nd meeting.
|
APPLYING CONSTITUTIONAL LAW TO THE 1967
LIBERATION OF JUDEA , SAMARIA GAZA ISRAEL
by Howard Grief
|
The five letters presented in the enclosed
booklet tell a story of utmost national significance, about which few have
any true knowledge. It is a historical fact that ever since
This mis-application of law, a step taken by
the Eshkol Government on the basis of erroneous legal advice proffered by the
then Military Advocate-General and future President of the Supreme Court, Mr.
Justice Meir Shamgar, who was responsible for setting up the military
administration for the reconquered areas of the Land of Israel, is the
subject-matter of the five letters published here. It resulted in the
pernicious Occupation Myth and provided our enemies with an enormous propaganda
victory in the eyes of the world, for the term "occupation" implied
that Israel had taken over by war the land of another people to which it had
no right under international law, an absolutely false implication. This
widespread myth then received the stamp of approval from the Supreme Court of
Israel, especially from Mr. Justice Moshe Landau in the Eilon Moreh case and
from recently retired President Aharon Barak in cases dealing with Israel's
security fence and the implementation of the Sharon Disengagement Plan.
The author hopes that the publication of his
letters to Mr. Justice Meir Shamgar, the originator of the international law
thesis that gave direct rise to the Occupation Myth, despite Shamgar's
intentions, will enlighten the public about the violation of law committed 40
years ago, the effects of which are felt to this very day. Recognition of
this 1967 error is a vital first step in an attempt to undo the colossal
legal damage done to the rights of the People and State of
Howard
Grief
May 2007 |
PRESENTING THE TERMS OF THE ARGUMENT
|
11 Heshvan 5766 --
The Honourable
Mr. Justice Meir Shamgar
Rehov Shahar 12
Dear Mr. Justice
Shamgar,
Please find
enclosed a copy of a letter dated November 2, 2005 I have sent to Mr. Eliezer
Dembitz, in which I amplify the point why you were, in my opinion, in breach
of the existing constitutional law when you conceived the plan in the early
1960s to apply international law, instead of Israeli law, to re-conquered
areas of the Land of Israel and the Jewish National Home that were placed
under military government.
Any reply you
may wish to make would be most welcome and instructive.
Yours
truly,
Howard Grief |
30 Tishri, 5766 --
Mr.
Eliezer Dembitz, Attorney
Jerusalem
Dear
Eliezer,
Concerning
our two conversations on October 31st and November 1st, 2005, I firmly adhere
to my view that on June 7, 1967, when Brigadier-General Herzog issued
Proclamations Numbers 1 and 2 (Proclamation on the Assumption of Power by the
IDF in the Region of the West Bank; Proclamation on Law and Administration),
there was a clear violation of the existing constitutional law, as of that
date. Section 11B of the Law and Administration Ordinance was not enacted until
three weeks later, on June 27, 1967 .
The
existing relevant constitutional law that was in force on June 7, 1967,
consisted of the Area of Jurisdiction and Powers Ordinance of September 16,
1948, made retroactive to May 15, 1948, and the two Proclamations issued
thereunder by the Ben-Gurion Government, namely, the Israel Defense Forces
Government in the Land of Israel (hereafter the Land of Israel Proclamation) of
September 2, 1948, made retroactive to May 15, 1948, as well as the Israel Defense
Forces Government in Jerusalem of August 2, 1948 (which I call the Jerusalem
Proclamation), made retroactive to May 15, 1948.
When Israel Judea and Samaria June 7, 1967 , and Gaza June 6, 1967 , the 1948 Ordinance and the two Proclamations
associated with it required the application of Israeli law, not international
law. The application of Israeli law was required even though the regions were
thenceforth governed by a military government, exactly as happened in 1948.
Thus, when Advocate-General Meir Shamgar in the early 1960s decided long before
the outbreak of the Six-Day War to apply international law concerning what he
called "enemy territory" (a strange non-Jewish and non-Zionist
reference to integral parts of the Land of Israel) if and when Israel acquired
such territory, he was in breach of the existing constitutional law.
Two
questions arise concerning Shamgar's decision to apply international law
instead of Israeli law in the early 1960s, at a time when David Ben-Gurion was
still Prime Minister:
1. Who gave Shamgar the right to violate the
existing constitutional law on the re-acquisition of areas of the Land of Israel
2. Which government person or persons could
possibly have had the authority to back Shamgar in making this decision to
violate the existing constitutional law?
In the
period from 1961 until June 1963, i.e., the early sixties, when Shamgar
conceived his illegal plan, there was no Eshkol Government, no need to worry
about demography, no pressure on Israel to apply Jordanian law to Judea and
Samaria, which under Jordanian law was called the West Bank, a name
subsequently changed by the Menahem Begin Government to Judea and Samaria. The
only obligation then incumbent upon Shamgar was to obey the existing constitutional
law.
However,
Shamgar acted otherwise, contrary to the vaunted principle of the Rule of Law.
He admitted in the book he edited, entitled "Military Government in the
Territories Administered by Israel 1967-1980, The Legal Aspects" and
published in 1982, that he wrote a comprehensive vade mecum, the Manual for the Military Advocate in
Military Government, in the early sixties, when he was Military
Advocate-General (1961-1968) in which he detailed the laws of war which he
decided should be followed in the next war that he surmised would break out
with the surrounding Arab states. His plan was then implemented several years
later during and after the Six-Day War. For confirmation of this fact, I refer
you to Shamgar's footnotes, numbers 25, 27 and 28 of his article in the
aforementioned book, which he entitled "Legal Concepts and Problems of the
Israeli Military Government -- The Initial Stage", pages 13-60. These
footnotes are found on pages 25 and 27 of his article and are enclosed
herewith.
As a
direct result of Shamgar's conception adopted by the Eshkol Government in June
1967, every person in the world today outside Israel and indeed a very
substantial number of Israel's own population call Judea, Samaria and, until
very recently, Gaza "occupied territories", when they are in truth
integral parts of the Land of Israel and the Jewish National Home under both
Israeli constitutional law and international law, as I have made crystal clear
in several past articles I have written on the subject and in my forthcoming
book, The Legal Foundation and
Borders of Israel under International Law. Shamgar's conception, which
would never have seen the light of day had he abided by the prevailing
constitutional law dating back to Ben-Gurion's day, as was expected of him, has
backfired in the most hideous way: Israel is today seen as a violator of
so-called international law and as an occupying power that has taken over
(stolen!) another nation's patrimony, the so-called "Palestinians", a
term that was formerly reserved for the Jews of the Yishuv (1920-1948) living
in Mandatory Palestine, and not for a fake nation that has no right to this
designation. The entire judicial travesty that Shamgar created has now been
given the imprimatur of truth by none other than Justice Aharon Barak,
President of the Supreme Court, in his recent decisions on Israel Judea , Samaria Gaza
As to
Deputy-President Justice Moshe Landau's decision in the 1979 case of Dwaikat v
Government of Israel (the Elon Moreh case), Landau misstated the legal norm
that was then applicable, in June 1967. In fact, he mixed up two separate legal
norms, one dealing with the imposition of Military Government over re-acquired
areas of the Land of Israel Land of Israel Israel
You
have received two recent articles I wrote on the subject discussed here, one
dealing with the "Origin of the Occupation Myth" (published in Hebrew
in the September 2005 issue of Nativ)
and the other entitled "David Ben-Gurion's Forgotten 1948 Land of Israel
Proclamation for the Annexation of Judea and Samaria" (scheduled for
future publication). To refresh your memory and recapitulate what should have
been legally done on June 7, 1967, after the liberation of Judea and Samaria
from enemy occupation, instead of what was in fact illegally done by the Eshkol
Government, acting undoubtedly on the proffered advice of Meir Shamgar, Zvi
Terlo and others, I summarize the matter as follows:
1. In the first proclamation prepared by the
Military Advocate's Unit for Judea and Samaria formally issued by Haim Herzog,
the Commander of the Israel Defense Forces in this region, dated June 7, 1967,
it was announced to the inhabitants living there that the Israel Defense Forces
have "entered the region and assumed control", meaning that they have
set up a military government there. The establishment of military government
was in accordance with the 1948 Land of Israel Proclamation
2. In the second proclamation issued by
Herzog, entitled "Proclamation on Law and Administration", the region
over which military government was established was defined in the proclamation as the West Bank , a reference to what the Hashemite
Kingdom of Jordan called Judea
and Samaria West Bank , Herzog was acting unknowingly in
accordance with the requirement of the Area of Jurisdiction and Powers
Ordinance that said that the IDF held area must be defined by proclamation before the Ordinance
could be implemented. In contrast to the 1967 Proclamation, the 1948 Land of Israel Proclamation Land of Israel West Bank ", which in any event was already a
well-defined and well-known area that needed no particular delineation on a map
to identify it. In both cases, defining this area was not discretionary, but
obligatory, otherwise no one would have known that the IDF was in complete control
of the area establishing a military government that replaced the previous
government under Jordanian rule. Without such a proclamation, chaos and
confusion, both at home and abroad, would have prevailed.
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 hostile forces, though it is customary for this to be done.
However, the situation is entirely different under Israeli constitutional law
for areas of the Land of Israel Land of Israel Land of Israel
3. Once the foregoing proclamations
establishing military government in the West Bank region had been issued by
Herzog on June 7, 1967, both the Area of Jurisdiction and Powers Ordinance and
the Land of Israel Proclamation required the application of the law of Israel
to the IDF-held region, which meant its incorporation into the State of Israel.
Instead, the Proclamation on Law and Administration approved by the Eshkol
Government and issued under Herzog's Command as Proclamation No. 2 applied the
local law of Jordan West Bank , in accordance with Article 43 of the Hague Land of Israel Israel
It is
past time to denounce and renounce what Shamgar and Landau and now Barak have
done to the legal infrastructure that was created in 1948 by the Ben-Gurion
Government regarding the absorption of integral areas of the Land of Israel Israel Judea , Samaria Gaza Land of Israel
Sincerely,
Howard
Howard
Copies
of this letter will be sent to:
1.Professor
Ya'akov Meron
2.Justice (Ret.) Meir Shamgar
3.Justice (Ret.) Moshe Landau
4.Justice Aharon Barak
5.JusticeEdmond
6.Military Judge (Ret.) Baruch Koroth
7.Professor Yuval Ne'eman
2.Justice (Ret.) Meir Shamgar
3.Justice (Ret.) Moshe Landau
4.Justice Aharon Barak
5.Justice
6.Military Judge (Ret.) Baruch Koroth
7.Professor Yuval Ne'eman
Howard
Grief
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Jerusalem
11 Heshvan, 5767 -- November 2, 2006
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Jerusalem
11 Heshvan, 5767 -- November 2, 2006
Mr.
Justice Meir Shamgar,
Shahar 12
96263Jerusalem
Shahar 12
96263
Dear
Mr. Justice Shamgar,
I
enclose herewith for your attention and perusal the letter and attached
documents I have sent to the Jerusalem
Post columnist, Mrs. Sarah
Honig, concerning the proposed building of a Jewish cemetery on state land on
the Mount of Olives, situated in the region of Judea and Samaria, the
realization of which was prevented by then-State Attorney Dorit Beinisch, based
on an unfounded legal opinion submitted by Attorney Meni Mazuz, prior to his
being appointed Attorney-General.
This matter
relates directly to your original plan in the early 1960's, long before the
Six-Day War erupted, to treat any area beyond the armistice borders of the
State as occupied territory governed by the laws of warfare. The Eshkol
Government of National Unity accepted your plan in 1967, when Judea and Samaria
were restored to the Jewish People during the Six-Day War, and invoked the
Hague Rules in regard to this region. It was your advice to the Government in
1967, when you were Military Advocate-General, which created the world-wide
belief that Israel was occupying the land of another country, when in truth
this land (i.e., Judea and Samaria) was the sovereign patrimony of the Jewish
People under both Israeli constitutional law and international law, that devolved
upon the State of Israel upon its establishment. What you did has haunted Israel Land of Israel
When
you launched your plan in the early 1960's, were you not aware that Israel's
first prime minister, David Ben Gurion, aided by Pinchas Rosen, had set up a
constitutional structure for reclaiming all parts of the Land of Israel that
had earlier been transferred or otherwise lost to neighboring Arab states? For
that purpose Ben-Gurion issued two separate proclamations in 1948, one
pertaining to Jerusalem Land of Israel Land of Israel
1. shilton tsva-hagana le-yisrael
biyrushalayim, minshar mispar 1, nittan ha-yom, kaf-vav be-tammuz 5708 -- Israel Defense Forces Government in Jerusalem
2. shilton tsva-hagana le-yisrael
be-eretz-yisrael, nittan ha-yom, kaf-het be-av 5708 -- Israel Defense Forces Government in the Land of Israel
This
is how places such as Nahariya, Nazareth Beersheba Ashdod Ashkelon , etc. became part and parcel of the State
of Israel in 1948, even though they lay outside the boundaries of the Jewish
State recommended under the United Nations Partition Plan. No special proclamation
was needed for these places, for they all came under the scope and purview of
the open-ended Land of Israel Proclamation Judea and Samaria Gaza Land of Israel Proclamation
The
day is late to undo the damage you chiefly are responsible for, but we must try
to save what is left in our possession of patrimonial Jewish lands recaptured
in 1967. You would be able to help to save what can still be saved if you were
to issue a public statement restating your position on the legal status of Judea , Samaria Gaza Land of Israel Proclamation
A
restatement by you, as I recommend, would do much to change public perceptions,
particularly in Israel Judea and Samaria
Yours
truly,
Howard Grief, Attorney
Howard Grief, Attorney
1 Kislev, 5767 --
Mr.
Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263Jerusalem
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263
Dear Mr.
Justice Shamgar,
I
thank you for acknowledging and replying in the briefest terms to my letter of November
2, 2006 .
I do
not find it instructive when you state that I wrote you:
(1)without a
total knowledge of the facts;
(2)without bothering to check the information beforehand.
(2)without bothering to check the information beforehand.
It
would have been more enlightening for me had you informed me what the true
facts were in regard to the legal status of Judea and Samaria and the rest of
the territories restored to the Jewish People in June 1967.
I read
your article entitled "Legal Concepts and Problems of the Israeli Military
Government -- The Initial Stage" in the book edited by you called Military Government in the
Territories Administered by Israel, 1967-1980, the Legal Aspects, Volume 1,
published in a reprint edition, 1988, by the Hebrew University of Jerusalem --
Faculty of Law and the Harry Sacher Institute for Legislative Research and
Comparative Law.
In
your article, you confirm the fact that everything was planned in advance as to
what must be done when the IDF entered Judea and Samaria West Bank , the name of which was subsequently
changed to Judea and Samaria Judea and Samaria Land of Israel
The
question to be answered is: why did you give special courses teaching the laws
of war when Ben-Gurion had promulgated a law and a proclamation in 1948 to
apply the law of the State whenever areas of the Land of Israel November 2, 2006 , were you not aware of this law and
proclamation, which were still in force when you were giving your courses? You
never answered this question and it still requires an answer.
Do you
think that in applying the norms and principles of international law, the
Israeli Military Government set up upon your advice did the right thing?
Ben-Gurion, too, set up a military government in 1948 for areas of the Land of
Israel conquered beyond the UN Partition lines of November 29, 1947, but he
never applied the norms and principles of international law that were applied
in 1967.
I have
studied the facts as they have been revealed by you in your article. I do not
know what other facts you are referring to when you say I lack total knowledge
of the situation in trying to understand what happened in 1967. If you would
kindly enlighten me about those facts, I would be very grateful. Of course, if
you truly believed in 1967 that the region of Judea and Samaria
If you
held the opinion in 1967 that the supposed expectation of Arab demography
overwhelming the Jewish population of Israel and the idea of possible peace
negotiations with the neighboring enemy Arab states prevented absolutely the
annexation of Judea, Samaria and Gaza to the State, then I can fully comprehend
what motivated you in advising the application of the laws of war to these two
regions, instead of Israeli law, as Ben-Gurion did not hesitate to do in 1948.
Of course, I assume that you advised the Eshkol National Unity Government to
adopt this course of action, because it corresponded perfectly with the plan
that you formulated in the early sixties. However, your plan violated existing
Israeli constitutional law (the Area of Jurisdiction and Powers Ordinance;
Ben-Gurion's Proclamation of September 2, 1948 ) and therefore should have been
discarded. If I am mistaken about this central point and your personal role in
this matter, I stand to be corrected and would very much appreciate your
response.
Yours
truly,
Howard Grief
Howard Grief
19 Tevet, 5767 --
Mr.
Justice Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263Jerusalem
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263
Dear
Mr. Justice Shamgar,
I
acknowledge, with many thanks, your letter dated December 1, 2006 explaining in
more detail your legal perspective on what had to be done in June 1967
following Israel's victory in the Six-Day War when the IDF took possession of
various areas of the Land of Israel that were not part of the State of Israel.
For
purposes of this letter, I have re-read your article entitled "Legal
Concepts and Problems of the Israeli Military Government -- The Initial
Stage", which only had the effect of confirming what I originally thought:
your great responsibility in introducing to Judea and Samaria and the rest of
the held or re-possessed territories the norms of international law pertaining
to the laws of war embodied in the Hague Rules and the Fourth Geneva
Convention, when this was completely unnecessary and contrary to existing
Israeli constitutional law.
Inasmuch
as you have divided your answer to me into several paragraphs to express
various points of substance, I will follow the same format in presenting my
reply:
1) In
paragraph aleph, you state
that "political decisions in a democratic state are not taken by a
military body but by the Government". In the context of your letter, this
appears to be a misleading statement because the application of international
law to Judea and Samaria on June 7, 1967 was not only a "political
decision", i.e., a matter of policy, but first and foremost a legal
decision, since there existed at the time two constitutional laws (apart from
the very important Law of Return) that directly governed the situation and that
had to be complied with: the statutory law called the Area of Jurisdiction and
Powers Ordinance (hereafter: Ben-Gurion's
law) and the non-statutory proclamation issued under its umbrella by means
of retroactivity, known as the Israel Defense Forces Government in the Land of
Israel Proclamation (hereafter:the Land of Israel Proclamation or, alternatively, Ben-Gurion's Proclamation) of
September 2, 1948. You state in your article (p. 46 of the First Reprint
edition, 1988), that "pending a political solution", the norms that
were applied to the areas not incorporated into Israel
Applying
the
Hague Judea and Samaria Jordan Judea and Samaria Judea and Samaria
"repeatedly
admonished the Israeli legal authorities serving in the territories not to be
content with the minimum standards laid down by the rules of warfare on land,
but to be alert in ensuring that in any situation not foreseen or not provided
for in the customary rules [of international law, i.e., the Hague Regulations]
the solutions applied should accord with the consistent safeguarding of the
rule of law."
Instead
of admonishing the platoon officers to apply international law as it pertains
to the laws of warfare in Judea
and Samaria
Further
evidence of your personal role in advising the application of the norms of
international law to the redeemed territories was the fact that under your
direction, the legal officers of the platoons were provided with "movable
emergency kits" that contained precedents and forms, guidelines and
instructions for implementing these norms of international law. The kit
contained the manual or vade mecum, which they carried about detailing what
legally had to be done in administering the military government of a particular
region. This manual or ready-reference aid was written and re-edited by you
long before the outbreak of the Six-Day War that required the officers of the
Military Advocate's Corps to advise the Military Commander of the Region to
implement the Hague Regulations and the humanitarian norms or provisions of the
Fourth Geneva Convention. I quote directly from your article on this point (p.
31):
"The Manual
included the full text of the vital initial enactments [of military
government], in Hebrew and Arabic (e.g., Proclamations concerning the
Commencement of Occupation, concerning Law and Order and concerning the Entry
into Force of the Security Code; furthermore, different Orders relating to
security provisions, essential services, jurisdiction in relation to ordinary
criminal offences, etc.) [brackets in the original].
The
above-mentioned "Proclamations concerning the Commencement of
Occupation" -- your actual words -- were, according to your article,
prepared by the Military Advocate's Unit on the entry of the IDF into the
region originally denoted as the "West Bank " (p. 24). This Unit was under the
direct command of the Military Advocate-General, i.e., yourself (p. 25). This
confirms your personal role in overseeing and introducing Proclamation No. 1 on
the Assumption of Power by the Israel Defense Forces in Judea and Samaria June 7, 1967 in the name of the Commander of Forces of
the Israel Defense Army, General Haim Herzog, as well as Proclamation No. 2 on
Law and Administration. You were therefore instrumental in advising and
convincing the Government of Israel in June 1967 to apply the norms of
international law to all of the territories the IDF entered and took possession
of. Thanks largely to your plan and program, these territories became known to
almost everyone in the world as "occupied territories" instead of
what they actually represented, the restored territories and patrimony of the
Jewish People as originally envisaged by international law and embodied in
various documents subscribed to by the Principal Allied Powers in 1920 and
1922. Your plan and program were implemented by the Government not as a matter
of law, but as a matter of policy, and has haunted the State of Israel ever
since, causing it incalculable damage. This result was brought about by what
appears to be your fixation on applying the norms of international law to
redeemed Jewish territories, that contradicted Ben-Gurion's law and
proclamation. The Government took a political decision, it is true, but it was
not taken in a vacuum. As the evidence shows, i.e., the special courses you
gave, the movable emergency kit with all the material it contained relating to
international law, and your own articles on the subject, the government
decision was based largely on faulty legal advice that was not only terribly
wrong but violated the existing Israeli constitutional law, as noted above.
2) As
regards your allegation in paragraph beth that I overlooked section 11B of the
Law and Administration Ordinance (hereafter: section 11B), as well as section
8A(a) of the Municipalities Ordinance, it brought a smile to my lips for I
discussed these two laws in detail in a 1996 Petition to Annul the Interim
Agreement, submitted on behalf of eight Petitioners to the Supreme Court of
Israel (HCJ 3414/96). This Petition was subsequently published in English in
booklet form by the Ariel Center
In my letters
to you, I did not discuss section 11B and the amended provision of the
Municipalities Ordinance that you refer to, for the simple reason that they did not exist on June 7, 1967 when international law was illegally
applied to Judea and Samaria June
27, 1967 , three
weeks after the entry of the IDF into the region, that they were enacted by the
Knesset. These laws thus have no relevance in replying to the question why
Ben-Gurion's law and proclamation, which were in force on June
7, 1967 , were
never invoked. Had that law and proclamation been duly adhered to by the
Government, there would have been no need to enact section 11B. The enactment
of the new law was completely unnecessary and superfluous. I also wonder who the
people were who advised the Government to enact section 11B, rather than to
enforce the existing laws that were Ben-Gurion's legacy.
3) I
am very puzzled by what seems to be the unfounded distinction you make in
paragraph gimmel between the purpose of the Land of
Israel Proclamation (which I have also called "Ben-Gurion's
Proclamation" in this letter) -- incidentally, the date of its publication
in the Official Gazette is September 3, 1948, and not September 13 as your
typist wrote -- and the purpose of section 11B, as well as the distinction you
make in regard to Ben-Gurion's law (i.e., the Area of Jurisdiction and Powers
Ordinance) between the territory included in the State of Israel and the
territories held by the IDF. In all your articles, I do not find any mention of
the Land of Israel Proclamation
I do
not understand how you can say that the territory referred to in Ben-Gurion's
proclamation differs from the territory referred to in section 11B. The Land of Israel Land of Israel
While
there is no difference between the 1948 held-territories of Ben-Gurion's law
and the re-conquered Land of Israel Land of Israel Land of Israel
In
regard to the meaning of shetah
muhzak (or any variation
thereof) as used in both the Land of Israel Proclamation and Ben-Gurion's law
and the term shetah kavush,
I refer you to the legislative debate that took place on September 16, 1948
between the Minister of Justice Pinhas Rosen (then called Felix Rosenblueth)
and Zerah Wahrhaftig, of the Ha-Po'el Ha-Mizrahi party (later the National
Religious Party) -- see pp. 49-54 of the enclosed Petition to Annul the Interim
Agreement (see also "Proceedings of the Provisional State Council, Sitting
18, Sept. 16, 1948, pp. 7-8). Shetah
muhzak, before being corrupted by mis-translation, referred to an area of
the Land of Israel May 14, 1948 . Shetah
kavush, on the other hand, refers to "occupied territory" or
foreign territory under the sovereignty of another state and not part of the Land of Israel
Regarding
your point that the map attached to the Land of Israel Proclamation Land of Israel September 2, 1948 . All areas captured by Jewish forces,
excluding Jerusalem, before this date, that were part of the Land of Israel but
outside the U.N. Partition lines, such as Jaffa (captured May 13, 1948), Acco
(captured May 17, 1948 after a Hagana onslaught that began 4 days earlier, that
gave Israel tentative control of Acco and caused most of its Arab inhabitants
to flee) and Nahariya in western Galilee (captured in May 1948 after the fall
of Acco), would not have been included on a map delineated in red, signed and
dated by the Defense Minister, when those areas had already become integral
parts of the State of Israel by the immediate application of Israeli law. It
would have been redundant to do so. Most of western and southern Galilee, destined
for the proposed Arab state under the UN Partition Plan, was taken by Jewish
forces between May and July 1948, including such places as Hanita and nearby
villages, as well as Yehi'am, Zippori (Sepphoris) and Nazareth. These areas,
located in the proposed Arab state, as also in the cases of Jaffa, Acco and
Nahariya, were all included in the State of Israel, not by marking their
location on a map as provided for in Ben-Gurion's proclamation, but, as already
noted, by applying the law of the State to them, as provided for in
Ben-Gurion's law. In this matter, due attention must be paid to the fact that
once Ben-Gurion's Proclamation was issued on September 2, 1948, it was
open-ended in nature and therefore applied to all areas -- apart from Jerusalem
and its environs -- of the Land of Israel then not part of the State of Israel,
without specifically naming these areas in compliance with Ben-Gurion's law
which required a proclamation to be issued to define the area of the Land of
Israel being held by the IDF.
Ben-Gurion's
proclamation also provided for supplementary maps for areas of the Land of
Israel held by the IDF after September 2, 1948 (see Article 1 of the
Proclamation as regards its Interpretation, and Article 5 dealing with the
validity of the Proclamation), a situation which would have applied to
Beersheba (captured Oct. 21, 1948), Ashkelon (Majdal -- captured in October
1948 from the Egyptian army), Ashdod (Isdud -- captured in October 1948 after
the Egyptian forces were cut off and the local Arabs left) and Eilat (Umm
Rashrash, taken by Israel on March 13, 1949, and originally included within the
UN Partition lines). Ben-Gurion's law and proclamation were definitely in force
on June 7, 1967, which meant that Judea and Samaria, Gaza, the Golan Heights
and the Sinai Peninsula (assuming it is part of the Land of Israel, as
Ben-Gurion believed in 1956), should have been automatically incorporated into
the State. That was the law, and that was not done. The Government of Israel
has violated the sacred "Rule of Law" ever since.
Incidentally,
I have twice written to the Ministry of Defense in Tel-Aviv to obtain the map
or maps referred to in Ben-Gurion's Proclamation of September 2,
1948 . They sent
me a copy of the map attached to the Jerusalem Proclamation of August
2, 1948 but could
not locate the map or maps attached to the Land of Israel Proclamation September 2, 1948 . If you have the citation for obtaining
the latter map, I would greatly appreciate getting it from you, to enable me
obtain this map.
4)
There is no disagreement as far as paragraph daleth is concerned, relating to the
Jerusalem Proclamation of August 2, 1948, that was also promulgated by Prime
Minister and Defense Minister David Ben-Gurion.
5) In
paragraph heh you mention your position about the
inapplicability of the Fourth Geneva Convention. Though you hold this position
in theory, you as a judge -- and the Government as a matter of policy --
actually implemented the humanitarian provisions of the Fourth Geneva
Convention in practice, especially its penal provisions. There seems therefore
to be a great contradiction between what you profess to be the situation in law
and what you actually did in conforming to the Convention during your terms of
office as Military Advocate General, Attorney-General and Supreme Court
Justice. In fact, it would have served no purpose for you to give courses on
the Fourth Geneva Convention in anticipation of a possible war and also have
the Convention included in the movable emergency kit of each platoon officer in
the Military Advocate's Corps -- if you, as the superior in charge, did not
think that the Convention applied. Why prepare these legal officers regarding
the ins and outs of the Convention if it was inapplicable to the regions of the
Land of Israel
You
were meticulous in assuring the rights of Arabs in the held or repossessed
territories and in urging the Government to grant them a right of appeal to the
Supreme Court, even though such rights have never been granted to enemy aliens
in the courts of other countries. You were so concerned with the observance of
the Geneva Convention de facto and applying the norms of international law, but
at the same time you did not express any special concern about preserving the Land of Israel
To my
thinking, it should have been inconceivable or repugnant for you as a former
member of the underground movement in pre-State Israel, the Irgun Zvai Leumi,
who supposedly was not hindered by a ghetto mentality, to be so ready to honour
the Arabs of Judea and Samaria, who wanted nothing more than to destroy the
Jewish State, by gratuitously applying to them the norms of international law
so that they were thus able afterwards to protest vociferously the settling of
Jews in this region as being "illegal" and to denounce Israel's
so-called "occupation" of "their" land. By applying the
Convention to the local Arabs, they were also empowered to claim the status of
"protected persons" under the Convention, and this in turn allowed
the International Committee of the Red Cross and the hostile United Nations to
monitor their treatment and intervene in Israel Land of Israel Judea
and Samaria Land of Israel
These
are simple truths that you and your fellow justices on the Supreme Court should
be truly remorseful for. You undoubtedly and understandably do not like to hear
or read what I have to say on this subject, but this is the terrible end result
of what you and your colleagues on the bench caused the people of Israel Land of Israel
6) In
paragraph vav of your letter, you seem to take
liberties with Ben-Gurion's view of retaining Judea and Samaria Jerusalem
Ben-Gurion
uttered this opinion when he was no longer active in public life and had
already begun to fall ill, according to what the late Professor Yuval Ne'eman,
who knew him well, told me. On other occasions, he expressed a diametrically
opposite opinion, once in 1937 and once again in 1956. In 1937, at the 20th
Zionist Congress (August 3-16, 1937, Zurich), he gave a speech at Basel
No Jew is
entitled to give up the right of establishing (settling) the Jewish nation in
the Land of Israel
In
1948, when Ben-Gurion became Prime Minister of the State of Israel, he provided
for the eventual expansion of the boundaries of the State to encompass all of
the Land of Israel Land of Israel Proclamation
On November
7, 1956 ,
Ben-Gurion delivered an address to the Knesset which is sometimes called his
"Third Kingdom of Israel" speech, although he did not use those
actual words. In that speech, coming after the capture of the Sinai Peninsula in a seven-day campaign code-named
Operation Kadesh, Ben-Gurion stated clearly and repeatedly that Israel land of Egypt
As I
write this letter, the former long-serving Mayor of Jerusalem, Theodor (Teddy)
Kollek, has passed away. In reading his obituary, I noticed a striking parallel
between the position he held for many years in regard to Jerusalem Land of Israel Jerusalem Israel Jerusalem Land of Israel Israel
Despite
Ben-Gurion's change of heart in 1967, I prefer to think of him as a pragmatic
exponent and loyalist of the Land of Israel who was loath to surrender any part
of the Land of Israel unless compelled to do so under duress, as occurred in
1956 immediately after the capture of Sinai and Gaza. John Foster Dulles, the
then-U.S. Secretary of State, threatened to cut off all financial aid to Israel Israel Russia Israel Gaza Egypt Land of Israel Land of Israel Land of Egypt
I wish
to conclude my letter by referring to the 1979 landmark case of Dvikat (or
Dwaikat) v. Government of Israel et
al., famously known as the Elon Moreh case, that you favourably cite in
your article. This judgment, rendered by Deputy-President Moshe Landau, is a
judicial travesty directly traceable to your doorstep, that serves today as a
pillar for labeling Judea and Samaria Land of Israel Proclamation Land of Israel Judea
and Samaria Judea and Samaria Land of Israel Proclamation June 7, 1967 by Brigadier-General Haim Herzog which,
he thought, exclusively determined the legal status of Judea and Samaria July 5, 1950 , which overrides the Hague Regulations
that permit requisition of land only for military needs. The Law of Return and Article
6 of the Mandate for Palestine sanction Jewish settlement not merely on land
located in the State of Israel, whether publicly or privately owned or simply
ownerless, but also in the rest of the Land of Israel, outside the State's
boundaries, in IDF or Jewish possession, as indicated by use of the Hebrew word artza in section 1 of the Law of Return and
also by what Ben-Gurion said in personally introducing this law in the Knesset
on July 3 and July 5, 1950. When Ben-Gurion explained that every Jew has the
right to come and settle in Israel, he certainly did not mean to limit this
right to the existing boundaries of the State of Israel, otherwise the Law of
Return, read in conjunction with the Area of Jurisdiction and Powers Ordinance
and the Land of Israel Proclamation, would have made no sense nor served any
purpose. When Ben-Gurion further said that this right was recognized in the law
of nations and existed even before the State did, and was, in fact, that which
built the State, he undoubtedly had in mind Article 6 of the Mandate for Palestine Land of Israel Land of Israel Land of Israel
The
recently retired President of the Supreme Court, Justice Aharon Barak, has
proceeded along the same path as Justice Landau and gone even further, basing
several of his recent judgments on the false premise that Judea and Samaria are
governed by the rules of belligerent occupation, including the Fourth Geneva
Convention and even the Geneva Protocols of 1977, which eradicates the rights
of the Jewish People and its assignee, the State of Israel, to Judea, Samaria
and -- formerly -- Gaza. This I stress and repeat is the dire consequence of
your original plan and program to apply the norms of international law to the
areas of the Jewish homeland lying outside the technically temporary borders of
the State. I have written to Justices Landau and Barak in the same vein that I
wrote to you, even sending Justice Landau a copy of Ben-Gurion's Proclamation,
but neither he nor Justice Barak have bothered to respond or even acknowledge
my letters.
With
all due respect to you as a learned and eminent judge and jurist, I ask you
once again in all earnestness to reconsider and restate your position on the
legal status of Judea and Samaria Israel the Hague Judea and Samaria
In
closing, I may not know, as you state, all the facts of inner government
workings and decisions that took place in 1967 as I was not privy to them, as
you were. Your reproach that I also lack knowledge of the relevant law to
support my position is refuted, as can be judged by this letter and my
published Petition. Anyone, like myself, who has observed and studied the
results of what was done by the decision-makers of that time can only gasp in
disbelief at the errors and violations of law that were made at the highest
levels. Instead of following Ben-Gurion's wise and patriotic path as expressed
in the laws he was responsible for enacting in 1948 and 1950, that embraced the
Land of Israel as the eternal treasure and patrimony of the Jewish People, the
Eshkol Government and you included appear to have embraced a non-Zionist,
bizarre and illegal policy to treat the Land of Israel as part of foreign
territory, the rights to which were viewed, in the eyes of most people in the
world, as being vested not in the Jewish People but in Arab pretenders. This
shame must be expunged, and you, who inspired the application of international
law to liberated Jewish territories, are the one person who can make that
happen!
Yours
truly,
Howard Grief
Howard Grief
Howard
Grief
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
9 Adar, 5767 --
Mr.
Justice Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263Jerusalem
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263
Dear
Mr. Justice Shamgar,
I
thank you for your letter of January 21, 2007, and for the time you have
evidently taken to present further explanations and elaborations of your
position in regard to the exact meaning of the Area of Jurisdiction and Powers
Ordinance of September 22, 1948 (hereafter: the AJPO) and the proclamation validated
by the AJPO, namely, Proclamation No. 1 of the Israel Defense Forces Government
in the Land of Israel, of September 2, 1948 (hereafter: the Land of Israel
Proclamation). I sharply disagree with your interpretation of these two
constitutional enactments by the Provisional State Council and hereby provide
you again with my own exposition as to their true meaning and import.
My
first disagreement with you centers on your argument that the "area of
application of law" is not the same as "an area within the State of
Israel". This distinction of yours harks back to an old legal controversy
that has been dealt with in the case-law of the Supreme Court and the legal
literature. Please see the excellent article pertaining to this controversy in
regard to the Golan Heights Law of December 14, 1981 and the Law and
Administration Order (No. 1), 5727-1967, in regard to eastern Jerusalem,
applying Israeli law to both these territories -- written by Professor Asher
Maoz of Tel-Aviv University, Faculty of Law (Asher Maoz, "Application of
Israeli Law to the Golan Heights is Annexation", Brooklyn Journal of International
Law, 1994, Number 2, pp. 355 to 396). The opposite view is taken by
Professor Leon Sheleff in an adjoining article ("Application of Israeli
Law to the Golan
Heights is not
Annexation", op. cit., pp. 333 to 353).
The
distinction that you cite between the "area of application of law",
which is the heading of section 1 of the AJPO and the "area of the State
of Israel" was explained by the Minister of Justice, Pinchas Rosen (then
Felix Rosenbleuth), in the legislative debate on the AJPO that took place on
September 16, 1948 (the 12th of Elul, 5708), at the 18th Session of the
Provisional State Council. Here is what Rosen said about this law (in English
translation):
"By virtue
of this law, we are setting up a kind of administrative unity by creating a
concept which is in the nature of a legal fiction, which is 'the whole of the
area' -- ha-shetah ha-kolel,
-- also to be translated as "the over-all area" or "the
comprehensive area" [defined as] an area including both the area of the
State of Israel and the re-possessed area or the held area [please note: I
translate the Hebrew term ha-shetah
ha-muhzak as either the
"re-possessed area" or "held area"; the "re-" as
used in "re-possessed" means that that area of the Land of Israel was
part of the Jewish National Home that was restored to the Jewish People and the
State of Israel; for the same reason I use the word "re-conquered"
and never "conquered" to refer to the territories restored in 1967].
And this law states that a person appointed to any position [or office],
meaning principally a central or high position -- le-tafkid merkazi -- who is located in the area of the
State, will be competent to act also in the re-possessed (held) area. Were it
not for this law, doubts might arise, whether, for example, the
Attorney-General is able to institute lawsuits and criminal complaints in Nazareth Jerusalem Jerusalem
For
the purpose of clarifying the situation and for removing all doubts, we have
found it proper, and the Legislation Committee has approved this position, to
propose to the [Provisional State
Further
on in the legislative debate, Pinchas Rosen replied to a proposed amendment
made by Zerah Warhaftig of the Ha-Po'el Ha-Mizrahi party, who asked that the words
in sections 1 and 2 of the AJPO, i.e., "the area including both the area
of the State of Israel and also any part of Palestine [Eretz-Israel],
etc." be deleted and replaced by the words "any law applying to the
whole of the State of Israel shall be deemed to apply to any part of Palestine
[Eretz-Israel] which the Minister of Defense has defined by Proclamation as
being held, etc.". Warhaftig's proposed amendment was rejected by Rosen
and the Provisional State Council, on the ground that the Land of Israel
Proclamation of September 2, 1948, issued two weeks before the discussion on
the AJPO took place, said exactly what Warhaftig was proposing and therefore
there was no need to repeat the same thing in the law. Rosen added the
following comment concerning the need to enact the AJPO:
...For purposes
of administration and law, there is a need for an innovation regarding what was
said in the Proclamations [these Proclamations to which Rosen referred were the
Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation September 2, 1948 , both of which were validated by the
AJPO]. There is a need to create the concept of an area, which includes the
held area -- ha-shetah
ha-muhzak -- and the area of
the State -- hetah ha-medina.
From
the foregoing two quotations of Pinchas Rosen, we learn the real reason why an
apparent distinction was made between the "area of application of
law" and the "area of the State". It was for the purpose of
creating a uniformity of law as well as an administrative unity between these
two areas. The totality of the two areas -- described in the AJPO by the term
"the whole of the area" -- was, according to Rosen, a "legal
fiction", an "innovation" or a new legal "concept".
This concept of the "whole of the area" covered not only the area of
the State of Israel allocated in the U.N. General Assembly Partition Plan of
November 29, 1947, but also part of the area that was intended for inclusion in
the proposed Arab State but was re-possessed by the IDF in the War of Independence,
to which was also added the city of western Jerusalem and its approaches. This
new concept was, in my opinion, a "sleight of hand", or clever
deception to mislead the U.N. by feigning compliance with the Partition
Resolution that the Jewish Agency had accepted before the State was proclaimed.
By phrasing the AJPO in this way, it gave Israel Israel Jerusalem Nazareth Land of Israel
If we
are to accept your interpretation of the AJPO and the two proclamations of
August 2, 1948 and September2, 1948 that the application of Israeli law to any
area of the Land of Israel outside the U.N. Partition line was not equivalent
to making that area a part of the State of Israel, then western Jerusalem and
its approaches would not have been part of the State as soon as it came under
Israel's full control. Nor would Jaffa Nazareth Beersheba Ashkelon and Ashdod Land of Israel
1. by marking a map of the Land of Israel in
red with the names of the re-possessed areas, as was done in the specific cases
of Jerusalem, Lod and Ramla, in conformity with the method set out in the
Jerusalem Proclamation and the Land of Israel Proclamation;
2. by application of the law of the State to
the repossessed area, without delineating this area on a map of the Land of
Israel, as also provided for in the aforementioned Proclamations, as well as in
the AJPO. Concerning this method, I venture to say that the words "defined
by proclamation" -- asher
sar ha-bitahon higdir otan be-minshar ke-muhzak 'al-yedei tzva-hagana
le-yisrael -- as appears in
sections 1 and 2 of the AJPO are a direct reference to any past (the two
proclamations already issued) or future proclamations applying the law of the
State to the held areas wherever situated in the Land of Israel beyond the U.N.
Partition line.
The
phrase "area of application of law" was a euphemism or semantic
invention to conceal the fact that the repossessed areas were being annexed to
the State of Israel. The name of the law -- the AJPO -- did not reflect its
true purpose. It was really intended to be a law of annexation, as proved by
the result that followed its implementation, but was adroitly drafted by Rosen
and his team in the Ministry of Justice as a law to extend Israel Land of Israel
Applying
the law of the State to an area not previously included within it is certainly
an act to assert sovereignty over that area, or, as Justice Haim Cohn called
it, "an act of state" (quoted in the article by Professor Maoz, p.
361, footnote 31; see also p. 369, footnote 71). The consequence of this act of
sovereignty is to join that area to the State of Israel. According to Justice
Cohn (as quoted by Professor Maoz):
Both the
proclamation of the Minister of Defense according to the Order issued in 1948
and the order of the government according to the law passed in 1967, are both
acts of state par excellence,
and as such require prior consideration as well as a political decision, for
both of the actions were intended to convert the areas to which they related
into part of the area of the State of Israel.
The
citation for Justice Cohn's statement is given by Professor Maoz as: The Status of Jerusalem in the
Legal System of the State of Israel, 1967-1987, at 246, 249 (Joshua Prawer
& Ora Ahimeir, eds., 1988), reprinted in 1 HAIM H. COHN SELECTED ESSAYS 361
(1991).
An act of state
is defined as an assertion of sovereign power by the Government on the
international level, and this is exactly what occurred when Israel
Justice
Cohn had apparently changed his mind on this subject, for in an earlier
statement he made in the case of Ravidi v. Military Court, Hebron Zone, [24] 2
P.D. 419 (1969), he stated:
the thesis that
the application of Israeli law to a particular area, is equivalent to the
annexation of the area to the State of Israel still requires proof. In the
Justice's opinion "there is ...nothing to prevent the application of the
law of Israel
What
Justice Cohn said in the Ravidi case in 1969 would agree with your own
distinction, but what he later said in his above-quoted article in 1988 agrees
with my opinion that annexation is the legal result of applying Israeli law to
an area of the Land of Israel
In
this regard, Professor Maoz also cites the statement of Justice Yitzhak Kahan
in the above-noted Ravidi case as to the consequence of the government order
under the Law and Administration Order (No. 1), 5727-1967 applying Israeli law
to eastern Jerusalem that had been illegally ruled by Jordan from May 15, 1948
to June 7,1967.Justice Kahan maintained that eastern Jerusalem was annexed to
the State of Israel as a result of the application of Israeli law to eastern
Jerusalem, a statement which "echoed opinions voiced by other justices of
the Supreme Court" (pp. 361-362 of Prof. Maoz's article). The "other
justices" mentioned by Prof. Maoz included Justice Halevi, Justice
Berenzon and President Justice Agranat. Moreover, a majority of constitutional
or academic jurists in Israel Jerusalem
After
the judgment rendered by Justice Barak in the case of Awad v. Prime Minister
and Minister of the Interior, [42] 2 P.D. 424 (1988), it is now settled case-law
that the application of Israeli law, jurisdiction and administration to any
area of the Land of Israel, outside its present borders, effectively annexes
that area to the State, making it a part thereof, whether the area in question
is eastern Jerusalem, the Golan Heights or any other area of the Land of
Israel.
That
also appears to be the strong underlying assumption of the new law passed in
1999 entitled the Law and Administration Law (Cancellation of the Application
of the Law, Jurisdiction and Administration), 5759-1999: hok sidrei ha-shilton u-mishpat -
bittul hehalat ha-mishpat, ha-shipput ve-ha-minhal, 5759. Under this law, a
decision taken by the Government as set down in an international treaty or
agreement, the purpose of which is to cancel or withdraw the application of the
law, jurisdiction or administration of the State of Israel to an
"area", as it is termed simply in the law, presumably an area located
anywhere in the State, needs both the approval of the majority of the Knesset
members, as well as the approval of the majority of votes cast by the
participants in a public referendum or plebiscite. The entire basis of this law
is to remove or "de-annex" a pre-existing "area" from the
State to which the law, jurisdiction and administration of Israel
One
final observation concerning the definition of "an area of the State of
Israel" should be brought to your attention. This phrase was actually
defined in the 2001 law called the "Denial of the Right of Return
Entrenchment Law" -- hok
shiryun shelilat zechut ha-shiva, 5761 --
as follows:
Area of the State
of Israel: "an area located within the borders of the sovereign rule of Israel
In my
opinion, this would equate the "application of law" to an area of the
State of Israel with the sovereign rule of Israel
I have
written elsewhere that Israeli sovereignty also extends to Judea , Samaria Gaza Land of Israel Proclamation Judea , Samaria Gaza April
25, 1920 , but the
regrettable fact is that the State of Israel has never formally acknowledged or
asserted its own inherited sovereignty over these areas. I treat this subject
in my forthcoming book on The
Legal Foundation and Borders of Israel under International Law, and
therefore refrain from further discussing this question here.
The
fact that the AJPO was amended in 1956 to include section 2 A, which uses the expression
"shall be deemed to be part of the area of the State of Israel" in
regard to any vessel (ship) or aircraft, wherever situated, does not prove what
you strongly impute to it, that the legislator deliberately avoided the use of
the same expression in AJPO as is found in section 2A, because "the area
of application of law" was not tantamount to "the area of the State
of Israel". However, in the case of a ship or aircraft, an express
identification was needed to prove that the ownership of the vessel or aircraft
was that of the State of Israel and not of another, foreign state, for the
purpose of determining the jurisdiction of the courts of Israel in the event
that a crime is committed on board the vessel or aircraft or if a lawsuit for
damages was brought by an injured passenger or his heirs, etc. This case
obviously differs from sections 1 and 2 of the AJPO where the law is talking
about dry land and not about movable property (wood and iron) located outside
the boundaries of the State. The legislator acted wisely in identifying these
carriers or public conveyances as being a part of the State of Israel, to
remove any doubts about their legal status. Consequently, an attack on an
Israeli vessel or aircraft that takes place outside Israel
You
tell me in your letter that only the Government of Israel has the authority to
decide if an area or region of the Land of Israel
It is
not my intention or wish to embarrass you about who originated the term the
"held areas" -- shetahim
muhzakim -- but it was first
used in 1948 in the two afore-mentloned Proclamations and could not therefore
have originated with you. You can verify for yourself that this term was
specifically defined in section 1 of Proclamation No. 1 of the IDF Government
in the Land of Israel Jerusalem Israel Palestine
English
translations of the Hebrew legal terms shetah
muhzak and shetah kavush are, it is agreed, irrelevant from the
point-of-view of Israeli law, but on the contrary they are of utmost importance
from the point-of-view of international law and also popular understanding of
what Israel did in 1967. Had the term shetah
muhzak been correctly
translated as a "held area" and not as an "occupied area",
there would probably not have arisen such a fierce world outcry against Israel Israel United States Land of Israel Land of Israel Proclamation
I also
take issue with your statement that the law in force in Israel on September 22,
1948, the date when the AJPO came into operation, was completely identical to
the law that applied in the other areas of the Land of Israel which were part
of the Mandate, the implication being that it did not matter whether Israeli
law or international law was applied since they were both the same. This is an
intriguing argument, but it, too, falls apart upon closer examination. First,
the corpus of law in the new State of Israel was not identical to the
pre-existing law, because important changes were introduced right at the
inception of the State of Israel, as set out in section 13 of the Law and
Administration Ordinance and also in the Proclamation issued by the Provisional
Council of State on May 14, 1948 that accompanied the Declaration of the
Establishment of the State. These changes were necessitated by the continued
existence of several provisions of laws dating from the White Paper of May 17,
1939, that would have remained in force had not the new legislative authority,
the Provisional State Council, declared them null and void. These provisions of
law were: sections 13 to 15 of the Immigration Ordinance, 1941; Regulations 102
to 107C of the Defence (Emergency) Regulations, 1945; and the Land Regulations,
1940. In addition, the Law and Administration (Further Provisions) Ordinance of
July 1, 1948 stated as follows:
Construction of
laws
Section 2: For the removal of doubts it is hereby declared:
Section 2: For the removal of doubts it is hereby declared:
(a)
where any law enacted by or on behalf of the Provisional Council of State is
repugnant to any law which was in force in Palestine on the 5th of Iyar, 5708
(14th May, 1948), the earlier law shall be deemed to be repealed or amended
even if the new law contains no express repeal or amendment of the earlier law.
By
passing this kind of legislation the Provisional State Council made it clear
that the body of law that was in force prior to the establishment of the State
was not identical to the law that existed afterwards.
Moreover,
if international law had been applied to the "held areas" in 1948,
instead of the law of the State, this would have created the same type of legal
damage and controversy as occurred in 1967 when this is what was actually done,
apparently on your advice and based on your preparatory work. The laws and
customs of war as embodied in the Hague Rules of 1907 would then have applied
to all territories beyond the UN Partition line for the Jewish State held by
the IDF, based on the premise that they were "occupied territories"
or were acquired through war, especially if the Arab state proposed in the
Partition Plan had come into existence in the areas not held by the IDF, or
also if Trans-Jordan, as Jordan was then called, had purported to act on behalf
of this aborted Arab state. In seizing the land allotted for the proposed Arab
state under the UN Partition Plan, the Arab state of Trans-Jordan effectively
replaced the aborted Arab state with the consent of the Arab notables living in
Judea and Samaria, thus giving it a supposed right to argue that "Arab
land" held by Israel that had been earmarked for the Arab state was being
occupied by the Jewish State under the Hague Rules of international law. We are
talking here only of theoretical possibilities, but since you raised this
subject, a future mess could have been created if the Government of Israel had
acted in 1948 as it did in 1967 by applying international law to areas of the
Land of Israel not included in the State's boundaries under the UN Resolution
of November 29, 1947.
Of course,
Israel August 2, 1948 and September 2, 1948 , but it cannot be denied that this kind
of Arab complaint supported by the U.N. could have theoretically popped up and
weakened Israel Land of Israel
In
summary, this application of Israeli law to the held areas avoided the
application of British Mandatory enactments that were discriminatory against
Jews and contrary to the provisions of the Mandate, and also avoided the
possible invocation of the Hague Rules to the held areas, or as the Arabs may
have called them, the "occupied areas" of the proposed Arab state,
seized by Transjordan in the name of that state.
As to
section 2 of the AJPO, this provision extends Israel
In our
correspondence, I have staked my whole argument as to why the law of the State
had to be applied in regard to all areas of the Land of Israel Land of Israel Proclamation January
21, 2007 you
adopt a very restrictive view of the meaning of this pivotal Proclamation when
you affirm that it related only to Ramla and Lod and that my assumptions
regarding the scope of its applicability have no factual foundation. You base
your interpretation on the map attached to this Proclamation which depicted
only Ramla and Lod. However, if we take a good look at the legislative debate
on the AJPO and also examine the language of the text of the Land of Israel Proclamation
In the
legislative debate on the bill containing the AJPO before it became law, the
following are the exact words of Justice Minister Pinchas Rosen explaining its
meaning and scope:
pekuda zo,
she-'avra et va'adat ha-hakika ve-ushra 'al-yadah peh ehad, ba'a kedei
le-faresh uke-hashlim et ha-minsharim, she-lefihem hutal hok ha-medina 'al
ha-shetahim ha-muhzakim/ attem be-vaddai zokhrim ahe-pursemu shnei minsharim
ka-elleh, minshar ehad she-hetil et hok ha-medina 'al shetah yerushalayim,
u-minshar sheni she-hetil et hok medinat yisrael 'al yeter ha-shetahim
ha-muhzakim.
In the
above-quoted paragraph, Rosen states explicitly, first that the Jerusalem
Proclamation imposed the law of the State on the area of Jerusalem Land of Israel Proclamation Jerusalem Nazareth August 2, 1948 , and the latter -- by the Proclamation of September
2, 1948 . He does
not specifically mention Ramla and Lod, but they are naturally included when he
refers to "the rest of the held areas". Zerah Warhaftig, who
participated actively in the debate, mentions the area of Jaffa May
13, 1948 , two
days prior to the establishment of the State, after its Arab inhabitants
abandoned the city.
Warhaftig
also spoke directly about the question whether or not the held areas outside
the U.N. lines were part of the State. Here is what he said on the subject:
shama'nu kama hatzharot bishivot mo'etzet-ha-medina
u-mi-hutza lah mi-pi sar ha-hutz ve-gam mi-pi rosh ha-memshala 'atzmo,
she-anahnu lo kibbalnu et ha-gevulot shel kaf-tet be-November ke-muhlatim,
ve-she-be'ekev ha-devarim she-halu me-az ve-'ad ha-yom nidrosh shinui
ba-gevulot im ha-davar yuva bifnei ha-um. be-khol ofen, ha-shetahim ha-nimtza'im
mi-hutz la-gevulot halalu einam mi-hutz li-gevulot medinat yisrael. yeshnam
sham halakim she-yihyu kelulim bim'dinat yisrael.
There
was no doubt in Warhaftig's mind that Jerusalem, Jaffa, Nazareth and the rest
of the held areas were part of the State of Israel and that the provisional
borders of the State as delineated in the UN Partition Plan no longer coincided
with those borders, but had been expanded to include the held areas.
It
will be recalled, as previously discussed in this letter, that Warhaftig wanted
to amend the bill for the AJPO to include the words "any law applying to
the whole of the State shall be deemed to apply to all parts of the Land of Israel Land of Israel Proclamation Land of Israel Proclamation Land of Israel
In
addition to the foregoing evidence of the wide scope of the Land of Israel Proclamation Land of Israel Jerusalem Land of Israel
Moreover,
Article 1 of the Land of Israel Proclamation refers to the held areas that may
be delineated on any other map replacing the map attached to the proclamation
of September 2, 1948, and the concluding part of Article 5 refers to the held areas
the possession of which passed to the IDF afterwards, i.e., after September
2,1948. The wording of the proclamation in Articles 1 and 5 makes it evident
that it applies to all areas held by the IDF that were either recovered in
battle or abandoned or surrendered by their Arab inhabitants, whether such
areas were re-captured prior to September 2, 1948 or after that date, and not
just to the held areas of Ramla and Lod.
It
seems to me that the delineation of areas re-conquered by the IDF as shown on a
map of the Land of Israel and then incorporated into the State was a makeshift
or temporary method, that was replaced by a better method for accomplishing the
same purpose, which was simply to apply the law of the State to the held areas,
as provided for in Article 2 of the Land of Israel Proclamation and Article 1
of the AJPO. This is exactly what happened when Beersheba Ashdod Ashkelon were repossessed by the IDF more than a
month after the Proclamation was originally issued. There is no disputing the fact
that this proclamation, the scope of which I have shown is open-ended, applied
to these newly re-conquered areas and would also have applied to other areas of
the Land of Israel such as Ramallah or Hebron or, for that matter, to all of
Judea and Samaria had they too been re-conquered in the War of Independence.
The same method of annexing areas of the Land of Israel Judea
and Samaria Land of Israel Israel Land of Israel
Moving
on to your next point, you refer to "the end of section 3 of the
Ordinance" as being derived from customary public international law. This
provision of law validated retroactively all acts done "which but for the
provisions of this Ordinance would be without effect". This section
validated the two proclamations issued by the Minister of Defense, which
extended the law of the State to all the held areas. However, I am mystified by
your statement that section 3 represents customary public international law. In
any event, I agree with you that customary international law is part of the law
of the State which is taken from English common law. This is independent of the
fact that the Hague Rules, having the status of customary international law,
were inapplicable to any area of the Land of Israel re-conquered by the IDF,
both in 1948 and in 1967, since such areas were not occupied lands governed by
international law.
As to
your final point, you reiterate that section 11B of the Law and Administration
Ordinance, 1948 deals with the inclusion of territory in the State of Israel,
in supposed contrast to the AJPO which, in your opinion, does not. I believe
that in its essence Section 11B is hardly different from the AJPO, except that
the former is implemented by the Government as a whole and is optional in
nature, while the latter is implemented by the Minister of Defense on behalf of
the Government and is mandatory. Section 11B never explicitly states that an
area of the Land of Israel
On
this point, you justify your position by referring to the statement made by the
Minister of Justice, Ya'akov Shimshon Shapiro, in the Knesset debate when
section 11B was presented as an amendment to the Law and Administration
Ordinance. I have read Shapiro's speech. He said in effect that to join an area
of the Land of Israel to the State, in particular to an existing municipality
under section 8A(a) of the Municipalities Ordinance, an act of sovereignty was
required, and that could be accomplished by applying the law of the State to
any part of the Land of Israel actually under the de facto control of the State. What Shapiro was
saying in 1967 -- about applying Israeli law, jurisdiction and administration
to liberated areas beyond the borders of the State was really no different from
what Rosen said in 1948 about applying Israeli law and administration to the
held areas. Shapiro was even more emphatic than Rosen in this matter because he
said that not only had the IDF taken control of considerable, but not
contiguous areas of the Land of Israel in the Six-Day War, but had
"liberated" them "from the yoke of foreigners" ...
...hu she-tzva
hagana le-yisrael shihrer me-'ol zarim halakim nikkarim me-eretz yisrael, lav
davka retzufim' ve-ha-nimtza'im zeh le-ma'ala mi-shevu'ayim bishelitat tzahal
To
conclude this letter, I feel I understand fully your reluctance to admit any
error in your legal position affecting the Land of Israel
You
have also greatly influenced other members of the judiciary, particularly
Justices Moshe Landau and Aharon Barak in their judgments that served to
reinforce your original view that the liberated Jewish territories of Judea and Samaria
I
continue to hope that you will realize the truth of what I have written and
will decide to act accordingly.
Yours
truly,
Howard Grief
Howard Grief
Editor's Comment: For technical reasons words originally
written in Hebrew have been transliterated. The original Hebrew may be obtained
by writing Attorney Grief at 13/2 David Goitein
St. Jerusalem Israel
|
From Yoel Lerner,
Editor of the "Howard Grief Eretz-Israel Letters"
The Howard Grief Letters to Meir Shamgar,
being one side of the correspondence conducted by the author, a Jerusalem
attorney specializing in Israeli constitutional law and international law
regarding Eretz-Israel, and Meir Shamgar, President (Emeritus) of the Israeli
Supreme Court, focus on the part played by the latter in the crucial years
between 1961 and 1968 when Shamgar served as Military Advocate General and
Israel came into de facto possession of much of the land
outside the borders of the State but already allocated to the Jewish People
at the conclusion of the First World War in the global settlement that
brought into existence many states in South East Europe as well as in the
predominantly Arab Middle East. These Letters, written in the English
language in which Howard Grief expresses himself most eloquently, provide the
basis for a desperately-needed thorough revision of the Israeli legal
treatment of Yehuda v'Shomron --
The Howard Grief Letters to Meir Shamgar
were written in two stages, the first being an abortive stage (November 2005)
where Attorney Grief sent President (Emeritus) Shamgar a copy of a letter he
had written to a mutual acquaintance, Mr. Eliezer Dembitz, a former Military
Court Judge appointed to his post by Shamgar himself, "in which [Grief] amplif[ies]
the point why [Shamgar] was... in breach of the existing constitutional law
when [he, Shamgar] conceived the plan in the early 1960s to apply
international law, instead of Israeli law, to re-conquered areas of the Land
of Israel and the Jewish National Home," actually repossessed in 1967.
No comment on the contents of the letter, with which the Correspondence
begins, was forthcoming from President Shamgar at that time.
The second and far more fruitful stage of
this unique Correspondence began a year later when Howard Grief wrote
directly to President [Emeritus] Shamgar. Shamgar's reply initiated a
fascinating exchange of letters and of thoughts that took place over a period
of several months. It was President [Emeritus] Shamgar's categorical
objection to the publication of the letters he himself had contributed to the
Correspondence that led to the decision to publish Howard Grief's letters in
the present format. The discerning reader will be able to reconstruct many of
the arguments made by President [Emeritus] Shamgar, to which Howard Grief has
responded.
Yoel
Lerner, Editor
April, 2007 |
Howard Grief was
born in Montreal, Canada, educated in law at McGill University Land of Israel Israel
He formulated the
original thesis that sovereignty over the entire Land of Israel and Palestine
was devolved upon the Jewish People at the San Remo Peace Conference in April
1920 as part of the global settlement that dismembered the
Ottoman Turkish Empire and created the Middle Eastern states of today; as a
consequence, the British White Papers published during the Mandate period, as
well as the UN General Assembly Partition Plan of 1947, were illegal. He is the
author of two forthcoming books on The
Legal Foundation and Borders of Israel
The "Howard
Grief Eretz-Israel Letters to Meir Shamgar, 2005-2007 -- on Eretz-Israel and
Israeli Constitutional Law" edited by Yoel Lerner was published by the
Office For Israeli Constitutional Law (Registered Amuta), Iyar 5767 -- May
2007. It was submitted to Think-Israel
[Editor's
note: You can read Howard Grief, "The Origin of the Occupation Myth,"
by clicking here. And his article on "Legal Rights
and Title of Sovereignty of the Jewish People to the Land of Israel Palestine
HE ORIGIN OF THE OCCUPATION MYTH
by 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 the Hague
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 Israel
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
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 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 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 Jerusalem June 28, 1967 , that ceased to exist only after
"East" and "West" Jerusalem
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 Israel
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 Gaza Palestine December 23, 1920 and hence were being legally repossessed
by Israel Golan Heights were also to be considered an integral
part of the Jewish National Home, though illegally removed from the Home by Britain France 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 December
23, 1920 . It was
excluded because Britain Egypt Suez Canal which it controlled from possible Turkish
attack. Egypt Ottoman Empire since 1517, but in 1882 it was occupied
by Britain Egypt Suez 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 Gulf of Akaba Turkey
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 Egypt Egypt
Prime
Minister Menahem Begin erred grievously in 1978 when, during the peace
negotiations with Egypt 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 Israel
The
foregoing pertinent facts concerning Judea , Samaria Gaza
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
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
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 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 drafted[8] 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 Gaza Israel
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 Judea , Samaria 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 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
The
relevant documents of international law noted above were either completely
ignored or, in the case of the Mandate for Palestine Judea and Samaria Occupied Palestinian Territory Israel
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 Israel
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 Gaza
Endnotes
1.
See the volume entitled Military Government in the Territories Administered by Israel Jerusalem
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
7.
See "Myths and Facts 1978, A Concise Record of the Arab-Israeli
Conflict", published by Near
East Report, Washington , DC
8.
The information regarding the drafting of the first two military proclamations
for Judea and Samaria
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 May 10, 2005 .
Howard Grief was
born in Montreal , Canada Land of Israel Israel
This article
appeared in Nativ, Volume 8, October 2005
(http://www.acpr.org.il/ENGLISH-NATIV/08-issue/grief-8.htm). Nativ is a journal
of politics and the arts. It is published by the Ariel Center Jerusalem
Thanks
are due Ted Belman of IsraPundit for bringing this article to our attention.
APPLYING CONSTITUTIONAL LAW TO THE 1967
LIBERATION OF JUDEA , SAMARIA GAZA ISRAEL
by Howard Grief
|
The five letters presented in the enclosed
booklet tell a story of utmost national significance, about which few have
any true knowledge. It is a historical fact that ever since
This mis-application of law, a step taken by
the Eshkol Government on the basis of erroneous legal advice proffered by the
then Military Advocate-General and future President of the Supreme Court, Mr.
Justice Meir Shamgar, who was responsible for setting up the military
administration for the reconquered areas of the Land of Israel, is the
subject-matter of the five letters published here. It resulted in the
pernicious Occupation Myth and provided our enemies with an enormous
propaganda victory in the eyes of the world, for the term
"occupation" implied that Israel had taken over by war the land of
another people to which it had no right under international law, an absolutely
false implication. This widespread myth then received the stamp of approval
from the Supreme Court of Israel, especially from Mr. Justice Moshe Landau in
the Eilon Moreh case and from recently retired President Aharon Barak in
cases dealing with Israel's security fence and the implementation of the
Sharon Disengagement Plan.
The author hopes that the publication of his
letters to Mr. Justice Meir Shamgar, the originator of the international law
thesis that gave direct rise to the Occupation Myth, despite Shamgar's intentions,
will enlighten the public about the violation of law committed 40 years ago,
the effects of which are felt to this very day. Recognition of this 1967
error is a vital first step in an attempt to undo the colossal legal damage
done to the rights of the People and State of
Howard
Grief
May 2007 |
PRESENTING THE TERMS OF THE ARGUMENT
|
11 Heshvan 5766 --
The Honourable
Mr. Justice Meir Shamgar
Rehov Shahar 12
Dear Mr. Justice
Shamgar,
Please find
enclosed a copy of a letter dated November 2, 2005 I have sent to Mr. Eliezer
Dembitz, in which I amplify the point why you were, in my opinion, in breach
of the existing constitutional law when you conceived the plan in the early
1960s to apply international law, instead of Israeli law, to re-conquered
areas of the Land of Israel and the Jewish National Home that were placed
under military government.
Any reply you
may wish to make would be most welcome and instructive.
Yours
truly,
Howard Grief |
30 Tishri, 5766 --
Mr.
Eliezer Dembitz, Attorney
Jerusalem
Dear
Eliezer,
Concerning
our two conversations on October 31st and November 1st, 2005, I firmly adhere
to my view that on June 7, 1967, when Brigadier-General Herzog issued
Proclamations Numbers 1 and 2 (Proclamation on the Assumption of Power by the
IDF in the Region of the West Bank; Proclamation on Law and Administration),
there was a clear violation of the existing constitutional law, as of that
date. Section 11B of the Law and Administration Ordinance was not enacted until
three weeks later, on June 27, 1967 .
The
existing relevant constitutional law that was in force on June 7, 1967,
consisted of the Area of Jurisdiction and Powers Ordinance of September 16, 1948,
made retroactive to May 15, 1948, and the two Proclamations issued thereunder
by the Ben-Gurion Government, namely, the Israel Defense Forces Government in
the Land of Israel (hereafter the Land of Israel Proclamation) of September 2,
1948, made retroactive to May 15, 1948, as well as the Israel Defense Forces
Government in Jerusalem of August 2, 1948 (which I call the Jerusalem
Proclamation), made retroactive to May 15, 1948.
When Israel Judea and Samaria June 7, 1967 , and Gaza June 6, 1967 , the 1948 Ordinance and the two
Proclamations associated with it required the application of Israeli law, not
international law. The application of Israeli law was required even though the
regions were thenceforth governed by a military government, exactly as happened
in 1948. Thus, when Advocate-General Meir Shamgar in the early 1960s decided
long before the outbreak of the Six-Day War to apply international law
concerning what he called "enemy territory" (a strange non-Jewish and
non-Zionist reference to integral parts of the Land of Israel) if and when
Israel acquired such territory, he was in breach of the existing constitutional
law.
Two
questions arise concerning Shamgar's decision to apply international law
instead of Israeli law in the early 1960s, at a time when David Ben-Gurion was
still Prime Minister:
1. Who gave Shamgar the right to violate the
existing constitutional law on the re-acquisition of areas of the Land of Israel
2. Which government person or persons could
possibly have had the authority to back Shamgar in making this decision to
violate the existing constitutional law?
In the
period from 1961 until June 1963, i.e., the early sixties, when Shamgar
conceived his illegal plan, there was no Eshkol Government, no need to worry
about demography, no pressure on Israel to apply Jordanian law to Judea and
Samaria, which under Jordanian law was called the West Bank, a name
subsequently changed by the Menahem Begin Government to Judea and Samaria. The
only obligation then incumbent upon Shamgar was to obey the existing
constitutional law.
However,
Shamgar acted otherwise, contrary to the vaunted principle of the Rule of Law.
He admitted in the book he edited, entitled "Military Government in the
Territories Administered by Israel 1967-1980, The Legal Aspects" and
published in 1982, that he wrote a comprehensive vade mecum, the Manual for the Military Advocate in
Military Government, in the early sixties, when he was Military
Advocate-General (1961-1968) in which he detailed the laws of war which he
decided should be followed in the next war that he surmised would break out
with the surrounding Arab states. His plan was then implemented several years
later during and after the Six-Day War. For confirmation of this fact, I refer
you to Shamgar's footnotes, numbers 25, 27 and 28 of his article in the
aforementioned book, which he entitled "Legal Concepts and Problems of the
Israeli Military Government -- The Initial Stage", pages 13-60. These
footnotes are found on pages 25 and 27 of his article and are enclosed
herewith.
As a
direct result of Shamgar's conception adopted by the Eshkol Government in June
1967, every person in the world today outside Israel and indeed a very
substantial number of Israel's own population call Judea, Samaria and, until
very recently, Gaza "occupied territories", when they are in truth
integral parts of the Land of Israel and the Jewish National Home under both
Israeli constitutional law and international law, as I have made crystal clear
in several past articles I have written on the subject and in my forthcoming
book, The Legal Foundation and
Borders of Israel under International Law. Shamgar's conception, which
would never have seen the light of day had he abided by the prevailing
constitutional law dating back to Ben-Gurion's day, as was expected of him, has
backfired in the most hideous way: Israel is today seen as a violator of
so-called international law and as an occupying power that has taken over
(stolen!) another nation's patrimony, the so-called "Palestinians", a
term that was formerly reserved for the Jews of the Yishuv (1920-1948) living
in Mandatory Palestine, and not for a fake nation that has no right to this
designation. The entire judicial travesty that Shamgar created has now been
given the imprimatur of truth by none other than Justice Aharon Barak,
President of the Supreme Court, in his recent decisions on Israel Judea , Samaria Gaza
As to
Deputy-President Justice Moshe Landau's decision in the 1979 case of Dwaikat v
Government of Israel (the Elon Moreh case), Landau misstated the legal norm
that was then applicable, in June 1967. In fact, he mixed up two separate legal
norms, one dealing with the imposition of Military Government over re-acquired
areas of the Land of Israel Land of Israel Israel
You
have received two recent articles I wrote on the subject discussed here, one
dealing with the "Origin of the Occupation Myth" (published in Hebrew
in the September 2005 issue of Nativ)
and the other entitled "David Ben-Gurion's Forgotten 1948 Land of Israel
Proclamation for the Annexation of Judea and Samaria" (scheduled for
future publication). To refresh your memory and recapitulate what should have
been legally done on June 7, 1967, after the liberation of Judea and Samaria
from enemy occupation, instead of what was in fact illegally done by the Eshkol
Government, acting undoubtedly on the proffered advice of Meir Shamgar, Zvi
Terlo and others, I summarize the matter as follows:
1. In the first proclamation prepared by the
Military Advocate's Unit for Judea and Samaria formally issued by Haim Herzog,
the Commander of the Israel Defense Forces in this region, dated June 7, 1967,
it was announced to the inhabitants living there that the Israel Defense Forces
have "entered the region and assumed control", meaning that they have
set up a military government there. The establishment of military government
was in accordance with the 1948 Land of Israel Proclamation
2. In the second proclamation issued by
Herzog, entitled "Proclamation on Law and Administration", the region
over which military government was established was defined in the proclamation as the West Bank , a reference to what the Hashemite
Kingdom of Jordan called Judea
and Samaria West Bank , Herzog was acting unknowingly in
accordance with the requirement of the Area of Jurisdiction and Powers Ordinance
that said that the IDF held area must be defined by proclamation before the Ordinance
could be implemented. In contrast to the 1967 Proclamation, the 1948 Land of Israel Proclamation Land of Israel West Bank ", which in any event was already a
well-defined and well-known area that needed no particular delineation on a map
to identify it. In both cases, defining this area was not discretionary, but
obligatory, otherwise no one would have known that the IDF was in complete
control of the area establishing a military government that replaced the
previous government under Jordanian rule. Without such a proclamation, chaos
and confusion, both at home and abroad, would have prevailed.
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 hostile forces, though it is customary for this to be done.
However, the situation is entirely different under Israeli constitutional law
for areas of the Land of Israel Land of Israel Land of Israel
3. Once the foregoing proclamations
establishing military government in the West Bank region had been issued by
Herzog on June 7, 1967, both the Area of Jurisdiction and Powers Ordinance and
the Land of Israel Proclamation required the application of the law of Israel
to the IDF-held region, which meant its incorporation into the State of Israel.
Instead, the Proclamation on Law and Administration approved by the Eshkol
Government and issued under Herzog's Command as Proclamation No. 2 applied the
local law of Jordan West Bank , in accordance with Article 43 of the Hague Land of Israel Israel
It is
past time to denounce and renounce what Shamgar and Landau and now Barak have
done to the legal infrastructure that was created in 1948 by the Ben-Gurion
Government regarding the absorption of integral areas of the Land of Israel Israel Judea , Samaria Gaza Land of Israel
Sincerely,
Howard
Howard
Copies
of this letter will be sent to:
1.Professor
Ya'akov Meron
2.Justice (Ret.) Meir Shamgar
3.Justice (Ret.) Moshe Landau
4.Justice Aharon Barak
5.JusticeEdmond
6.Military Judge (Ret.) Baruch Koroth
7.Professor Yuval Ne'eman
2.Justice (Ret.) Meir Shamgar
3.Justice (Ret.) Moshe Landau
4.Justice Aharon Barak
5.Justice
6.Military Judge (Ret.) Baruch Koroth
7.Professor Yuval Ne'eman
Howard
Grief
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Jerusalem
11 Heshvan, 5767 -- November 2, 2006
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Jerusalem
11 Heshvan, 5767 -- November 2, 2006
Mr. Justice
Meir Shamgar,
Shahar 12
96263Jerusalem
Shahar 12
96263
Dear
Mr. Justice Shamgar,
I
enclose herewith for your attention and perusal the letter and attached
documents I have sent to the Jerusalem
Post columnist, Mrs. Sarah
Honig, concerning the proposed building of a Jewish cemetery on state land on
the Mount of Olives, situated in the region of Judea and Samaria, the
realization of which was prevented by then-State Attorney Dorit Beinisch, based
on an unfounded legal opinion submitted by Attorney Meni Mazuz, prior to his
being appointed Attorney-General.
This
matter relates directly to your original plan in the early 1960's, long before
the Six-Day War erupted, to treat any area beyond the armistice borders of the
State as occupied territory governed by the laws of warfare. The Eshkol
Government of National Unity accepted your plan in 1967, when Judea and Samaria
were restored to the Jewish People during the Six-Day War, and invoked the
Hague Rules in regard to this region. It was your advice to the Government in 1967,
when you were Military Advocate-General, which created the world-wide belief
that Israel was occupying the land of another country, when in truth this land
(i.e., Judea and Samaria) was the sovereign patrimony of the Jewish People
under both Israeli constitutional law and international law, that devolved upon
the State of Israel upon its establishment. What you did has haunted Israel Land of Israel
When
you launched your plan in the early 1960's, were you not aware that Israel's
first prime minister, David Ben Gurion, aided by Pinchas Rosen, had set up a
constitutional structure for reclaiming all parts of the Land of Israel that
had earlier been transferred or otherwise lost to neighboring Arab states? For
that purpose Ben-Gurion issued two separate proclamations in 1948, one
pertaining to Jerusalem Land of Israel Land of Israel
1. shilton tsva-hagana le-yisrael
biyrushalayim, minshar mispar 1, nittan ha-yom, kaf-vav be-tammuz 5708 -- Israel Defense Forces Government in Jerusalem
2. shilton tsva-hagana le-yisrael
be-eretz-yisrael, nittan ha-yom, kaf-het be-av 5708 -- Israel Defense Forces Government in the Land of Israel
This
is how places such as Nahariya, Nazareth Beersheba Ashdod Ashkelon , etc. became part and parcel of the State
of Israel in 1948, even though they lay outside the boundaries of the Jewish
State recommended under the United Nations Partition Plan. No special
proclamation was needed for these places, for they all came under the scope and
purview of the open-ended Land of Israel Proclamation Judea and Samaria Gaza Land of Israel Proclamation
The
day is late to undo the damage you chiefly are responsible for, but we must try
to save what is left in our possession of patrimonial Jewish lands recaptured
in 1967. You would be able to help to save what can still be saved if you were
to issue a public statement restating your position on the legal status of Judea , Samaria Gaza Land of Israel Proclamation
A
restatement by you, as I recommend, would do much to change public perceptions,
particularly in Israel Judea and Samaria
Yours
truly,
Howard Grief, Attorney
Howard Grief, Attorney
1 Kislev, 5767 --
Mr.
Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263Jerusalem
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263
Dear
Mr. Justice Shamgar,
I
thank you for acknowledging and replying in the briefest terms to my letter of November
2, 2006 .
I do
not find it instructive when you state that I wrote you:
(1)without a
total knowledge of the facts;
(2)without bothering to check the information beforehand.
(2)without bothering to check the information beforehand.
It
would have been more enlightening for me had you informed me what the true
facts were in regard to the legal status of Judea and Samaria and the rest of
the territories restored to the Jewish People in June 1967.
I read
your article entitled "Legal Concepts and Problems of the Israeli Military
Government -- The Initial Stage" in the book edited by you called Military Government in the
Territories Administered by Israel, 1967-1980, the Legal Aspects, Volume 1,
published in a reprint edition, 1988, by the Hebrew University of Jerusalem --
Faculty of Law and the Harry Sacher Institute for Legislative Research and
Comparative Law.
In
your article, you confirm the fact that everything was planned in advance as to
what must be done when the IDF entered Judea and Samaria West Bank , the name of which was subsequently
changed to Judea and Samaria Judea
and Samaria Land of Israel
The
question to be answered is: why did you give special courses teaching the laws
of war when Ben-Gurion had promulgated a law and a proclamation in 1948 to
apply the law of the State whenever areas of the Land of Israel November 2, 2006 , were you not aware of this law and
proclamation, which were still in force when you were giving your courses? You
never answered this question and it still requires an answer.
Do you
think that in applying the norms and principles of international law, the
Israeli Military Government set up upon your advice did the right thing?
Ben-Gurion, too, set up a military government in 1948 for areas of the Land of
Israel conquered beyond the UN Partition lines of November 29, 1947, but he
never applied the norms and principles of international law that were applied
in 1967.
I have
studied the facts as they have been revealed by you in your article. I do not
know what other facts you are referring to when you say I lack total knowledge
of the situation in trying to understand what happened in 1967. If you would
kindly enlighten me about those facts, I would be very grateful. Of course, if
you truly believed in 1967 that the region of Judea and Samaria
If you
held the opinion in 1967 that the supposed expectation of Arab demography
overwhelming the Jewish population of Israel and the idea of possible peace
negotiations with the neighboring enemy Arab states prevented absolutely the
annexation of Judea, Samaria and Gaza to the State, then I can fully comprehend
what motivated you in advising the application of the laws of war to these two
regions, instead of Israeli law, as Ben-Gurion did not hesitate to do in 1948.
Of course, I assume that you advised the Eshkol National Unity Government to
adopt this course of action, because it corresponded perfectly with the plan
that you formulated in the early sixties. However, your plan violated existing
Israeli constitutional law (the Area of Jurisdiction and Powers Ordinance;
Ben-Gurion's Proclamation of September 2, 1948 ) and therefore should have been
discarded. If I am mistaken about this central point and your personal role in
this matter, I stand to be corrected and would very much appreciate your
response.
Yours
truly,
Howard Grief
Howard Grief
19 Tevet, 5767 --
Mr.
Justice Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263Jerusalem
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263
Dear
Mr. Justice Shamgar,
I
acknowledge, with many thanks, your letter dated December 1, 2006 explaining in
more detail your legal perspective on what had to be done in June 1967
following Israel's victory in the Six-Day War when the IDF took possession of
various areas of the Land of Israel that were not part of the State of Israel.
For
purposes of this letter, I have re-read your article entitled "Legal
Concepts and Problems of the Israeli Military Government -- The Initial
Stage", which only had the effect of confirming what I originally thought:
your great responsibility in introducing to Judea and Samaria and the rest of
the held or re-possessed territories the norms of international law pertaining
to the laws of war embodied in the Hague Rules and the Fourth Geneva
Convention, when this was completely unnecessary and contrary to existing
Israeli constitutional law.
Inasmuch
as you have divided your answer to me into several paragraphs to express
various points of substance, I will follow the same format in presenting my
reply:
1) In
paragraph aleph, you state
that "political decisions in a democratic state are not taken by a
military body but by the Government". In the context of your letter, this
appears to be a misleading statement because the application of international
law to Judea and Samaria on June 7, 1967 was not only a "political
decision", i.e., a matter of policy, but first and foremost a legal
decision, since there existed at the time two constitutional laws (apart from
the very important Law of Return) that directly governed the situation and that
had to be complied with: the statutory law called the Area of Jurisdiction and
Powers Ordinance (hereafter: Ben-Gurion's
law) and the non-statutory proclamation issued under its umbrella by means
of retroactivity, known as the Israel Defense Forces Government in the Land of
Israel Proclamation (hereafter:the Land of Israel Proclamation or, alternatively, Ben-Gurion's Proclamation) of
September 2, 1948. You state in your article (p. 46 of the First Reprint
edition, 1988), that "pending a political solution", the norms that were
applied to the areas not incorporated into Israel
Applying
the
Hague Judea and Samaria Jordan Judea and Samaria Judea and Samaria
"repeatedly
admonished the Israeli legal authorities serving in the territories not to be content
with the minimum standards laid down by the rules of warfare on land, but to be
alert in ensuring that in any situation not foreseen or not provided for in the
customary rules [of international law, i.e., the Hague Regulations] the
solutions applied should accord with the consistent safeguarding of the rule of
law."
Instead
of admonishing the platoon officers to apply international law as it pertains
to the laws of warfare in Judea
and Samaria
Further
evidence of your personal role in advising the application of the norms of
international law to the redeemed territories was the fact that under your
direction, the legal officers of the platoons were provided with "movable
emergency kits" that contained precedents and forms, guidelines and
instructions for implementing these norms of international law. The kit
contained the manual or vade mecum, which they carried about detailing what
legally had to be done in administering the military government of a particular
region. This manual or ready-reference aid was written and re-edited by you
long before the outbreak of the Six-Day War that required the officers of the
Military Advocate's Corps to advise the Military Commander of the Region to
implement the Hague Regulations and the humanitarian norms or provisions of the
Fourth Geneva Convention. I quote directly from your article on this point (p.
31):
"The Manual
included the full text of the vital initial enactments [of military
government], in Hebrew and Arabic (e.g., Proclamations concerning the
Commencement of Occupation, concerning Law and Order and concerning the Entry
into Force of the Security Code; furthermore, different Orders relating to
security provisions, essential services, jurisdiction in relation to ordinary
criminal offences, etc.) [brackets in the original].
The
above-mentioned "Proclamations concerning the Commencement of
Occupation" -- your actual words -- were, according to your article,
prepared by the Military Advocate's Unit on the entry of the IDF into the
region originally denoted as the "West Bank " (p. 24). This Unit was under the
direct command of the Military Advocate-General, i.e., yourself (p. 25). This
confirms your personal role in overseeing and introducing Proclamation No. 1 on
the Assumption of Power by the Israel Defense Forces in Judea and Samaria June 7, 1967 in the name of the Commander of Forces of
the Israel Defense Army, General Haim Herzog, as well as Proclamation No. 2 on
Law and Administration. You were therefore instrumental in advising and
convincing the Government of Israel in June 1967 to apply the norms of
international law to all of the territories the IDF entered and took possession
of. Thanks largely to your plan and program, these territories became known to
almost everyone in the world as "occupied territories" instead of
what they actually represented, the restored territories and patrimony of the
Jewish People as originally envisaged by international law and embodied in
various documents subscribed to by the Principal Allied Powers in 1920 and
1922. Your plan and program were implemented by the Government not as a matter
of law, but as a matter of policy, and has haunted the State of Israel ever
since, causing it incalculable damage. This result was brought about by what
appears to be your fixation on applying the norms of international law to redeemed
Jewish territories, that contradicted Ben-Gurion's law and proclamation. The
Government took a political decision, it is true, but it was not taken in a
vacuum. As the evidence shows, i.e., the special courses you gave, the movable
emergency kit with all the material it contained relating to international law,
and your own articles on the subject, the government decision was based largely
on faulty legal advice that was not only terribly wrong but violated the
existing Israeli constitutional law, as noted above.
2) As
regards your allegation in paragraph beth that I overlooked section 11B of the
Law and Administration Ordinance (hereafter: section 11B), as well as section
8A(a) of the Municipalities Ordinance, it brought a smile to my lips for I discussed
these two laws in detail in a 1996 Petition to Annul the Interim Agreement,
submitted on behalf of eight Petitioners to the Supreme Court of Israel (HCJ
3414/96). This Petition was subsequently published in English in booklet form
by the Ariel Center
In my
letters to you, I did not discuss section 11B and the amended provision of the
Municipalities Ordinance that you refer to, for the simple reason that they did not exist on June 7, 1967 when international law was illegally
applied to Judea and Samaria June
27, 1967 , three
weeks after the entry of the IDF into the region, that they were enacted by the
Knesset. These laws thus have no relevance in replying to the question why Ben-Gurion's
law and proclamation, which were in force on June 7, 1967 , were never invoked. Had that law and
proclamation been duly adhered to by the Government, there would have been no
need to enact section 11B. The enactment of the new law was completely unnecessary
and superfluous. I also wonder who the people were who advised the Government
to enact section 11B, rather than to enforce the existing laws that were
Ben-Gurion's legacy.
3) I
am very puzzled by what seems to be the unfounded distinction you make in
paragraph gimmel between the purpose of the Land of
Israel Proclamation (which I have also called "Ben-Gurion's
Proclamation" in this letter) -- incidentally, the date of its publication
in the Official Gazette is September 3, 1948, and not September 13 as your
typist wrote -- and the purpose of section 11B, as well as the distinction you
make in regard to Ben-Gurion's law (i.e., the Area of Jurisdiction and Powers
Ordinance) between the territory included in the State of Israel and the
territories held by the IDF. In all your articles, I do not find any mention of
the Land of Israel Proclamation
I do
not understand how you can say that the territory referred to in Ben-Gurion's
proclamation differs from the territory referred to in section 11B. The Land of Israel Land of Israel
While
there is no difference between the 1948 held-territories of Ben-Gurion's law
and the re-conquered Land of Israel Land of Israel Land of Israel
In
regard to the meaning of shetah
muhzak (or any variation
thereof) as used in both the Land of Israel Proclamation and Ben-Gurion's law
and the term shetah kavush,
I refer you to the legislative debate that took place on September 16, 1948
between the Minister of Justice Pinhas Rosen (then called Felix Rosenblueth)
and Zerah Wahrhaftig, of the Ha-Po'el Ha-Mizrahi party (later the National
Religious Party) -- see pp. 49-54 of the enclosed Petition to Annul the Interim
Agreement (see also "Proceedings of the Provisional State Council, Sitting
18, Sept. 16, 1948, pp. 7-8). Shetah
muhzak, before being corrupted by mis-translation, referred to an area of
the Land of Israel May 14, 1948 . Shetah
kavush, on the other hand, refers to "occupied territory" or
foreign territory under the sovereignty of another state and not part of the Land of Israel
Regarding
your point that the map attached to the Land of Israel Proclamation Land of Israel September 2, 1948 . All areas captured by Jewish forces,
excluding Jerusalem, before this date, that were part of the Land of Israel but
outside the U.N. Partition lines, such as Jaffa (captured May 13, 1948), Acco
(captured May 17, 1948 after a Hagana onslaught that began 4 days earlier, that
gave Israel tentative control of Acco and caused most of its Arab inhabitants
to flee) and Nahariya in western Galilee (captured in May 1948 after the fall of
Acco), would not have been included on a map delineated in red, signed and
dated by the Defense Minister, when those areas had already become integral
parts of the State of Israel by the immediate application of Israeli law. It
would have been redundant to do so. Most of western and southern Galilee,
destined for the proposed Arab state under the UN Partition Plan, was taken by
Jewish forces between May and July 1948, including such places as Hanita and
nearby villages, as well as Yehi'am, Zippori (Sepphoris) and Nazareth. These
areas, located in the proposed Arab state, as also in the cases of Jaffa, Acco
and Nahariya, were all included in the State of Israel, not by marking their
location on a map as provided for in Ben-Gurion's proclamation, but, as already
noted, by applying the law of the State to them, as provided for in
Ben-Gurion's law. In this matter, due attention must be paid to the fact that
once Ben-Gurion's Proclamation was issued on September 2, 1948, it was
open-ended in nature and therefore applied to all areas -- apart from Jerusalem
and its environs -- of the Land of Israel then not part of the State of Israel,
without specifically naming these areas in compliance with Ben-Gurion's law
which required a proclamation to be issued to define the area of the Land of
Israel being held by the IDF.
Ben-Gurion's
proclamation also provided for supplementary maps for areas of the Land of
Israel held by the IDF after September 2, 1948 (see Article 1 of the
Proclamation as regards its Interpretation, and Article 5 dealing with the
validity of the Proclamation), a situation which would have applied to
Beersheba (captured Oct. 21, 1948), Ashkelon (Majdal -- captured in October
1948 from the Egyptian army), Ashdod (Isdud -- captured in October 1948 after the
Egyptian forces were cut off and the local Arabs left) and Eilat (Umm Rashrash,
taken by Israel on March 13, 1949, and originally included within the UN
Partition lines). Ben-Gurion's law and proclamation were definitely in force on
June 7, 1967, which meant that Judea and Samaria, Gaza, the Golan Heights and
the Sinai Peninsula (assuming it is part of the Land of Israel, as Ben-Gurion
believed in 1956), should have been automatically incorporated into the State.
That was the law, and that was not done. The Government of Israel has violated
the sacred "Rule of Law" ever since.
Incidentally,
I have twice written to the Ministry of Defense in Tel-Aviv to obtain the map
or maps referred to in Ben-Gurion's Proclamation of September 2,
1948 . They sent
me a copy of the map attached to the Jerusalem Proclamation of August
2, 1948 but could
not locate the map or maps attached to the Land of Israel Proclamation September 2, 1948 . If you have the citation for obtaining
the latter map, I would greatly appreciate getting it from you, to enable me
obtain this map.
4)
There is no disagreement as far as paragraph daleth is concerned, relating to the
Jerusalem Proclamation of August 2, 1948, that was also promulgated by Prime
Minister and Defense Minister David Ben-Gurion.
5) In
paragraph heh you mention your position about the
inapplicability of the Fourth Geneva Convention. Though you hold this position
in theory, you as a judge -- and the Government as a matter of policy --
actually implemented the humanitarian provisions of the Fourth Geneva
Convention in practice, especially its penal provisions. There seems therefore
to be a great contradiction between what you profess to be the situation in law
and what you actually did in conforming to the Convention during your terms of
office as Military Advocate General, Attorney-General and Supreme Court
Justice. In fact, it would have served no purpose for you to give courses on
the Fourth Geneva Convention in anticipation of a possible war and also have
the Convention included in the movable emergency kit of each platoon officer in
the Military Advocate's Corps -- if you, as the superior in charge, did not
think that the Convention applied. Why prepare these legal officers regarding
the ins and outs of the Convention if it was inapplicable to the regions of the
Land of Israel
You
were meticulous in assuring the rights of Arabs in the held or repossessed
territories and in urging the Government to grant them a right of appeal to the
Supreme Court, even though such rights have never been granted to enemy aliens
in the courts of other countries. You were so concerned with the observance of
the Geneva Convention de facto and applying the norms of international law, but
at the same time you did not express any special concern about preserving the Land of Israel
To my
thinking, it should have been inconceivable or repugnant for you as a former
member of the underground movement in pre-State Israel, the Irgun Zvai Leumi,
who supposedly was not hindered by a ghetto mentality, to be so ready to honour
the Arabs of Judea and Samaria, who wanted nothing more than to destroy the
Jewish State, by gratuitously applying to them the norms of international law
so that they were thus able afterwards to protest vociferously the settling of
Jews in this region as being "illegal" and to denounce Israel's
so-called "occupation" of "their" land. By applying the
Convention to the local Arabs, they were also empowered to claim the status of
"protected persons" under the Convention, and this in turn allowed
the International Committee of the Red Cross and the hostile United Nations to
monitor their treatment and intervene in Israel Land of Israel Judea
and Samaria Land of Israel
These
are simple truths that you and your fellow justices on the Supreme Court should
be truly remorseful for. You undoubtedly and understandably do not like to hear
or read what I have to say on this subject, but this is the terrible end result
of what you and your colleagues on the bench caused the people of Israel Land of Israel
6) In
paragraph vav of your letter, you seem to take
liberties with Ben-Gurion's view of retaining Judea and Samaria Jerusalem
Ben-Gurion
uttered this opinion when he was no longer active in public life and had
already begun to fall ill, according to what the late Professor Yuval Ne'eman,
who knew him well, told me. On other occasions, he expressed a diametrically
opposite opinion, once in 1937 and once again in 1956. In 1937, at the 20th
Zionist Congress (August 3-16, 1937, Zurich), he gave a speech at Basel
No Jew is
entitled to give up the right of establishing (settling) the Jewish nation in
the Land of Israel
In
1948, when Ben-Gurion became Prime Minister of the State of Israel, he provided
for the eventual expansion of the boundaries of the State to encompass all of
the Land of Israel Land of Israel Proclamation
On November
7, 1956 ,
Ben-Gurion delivered an address to the Knesset which is sometimes called his
"Third Kingdom of Israel" speech, although he did not use those
actual words. In that speech, coming after the capture of the Sinai Peninsula in a seven-day campaign code-named
Operation Kadesh, Ben-Gurion stated clearly and repeatedly that Israel land of Egypt
As I
write this letter, the former long-serving Mayor of Jerusalem, Theodor (Teddy)
Kollek, has passed away. In reading his obituary, I noticed a striking parallel
between the position he held for many years in regard to Jerusalem Land of Israel Jerusalem Israel Jerusalem Land of Israel Israel
Despite
Ben-Gurion's change of heart in 1967, I prefer to think of him as a pragmatic
exponent and loyalist of the Land of Israel who was loath to surrender any part
of the Land of Israel unless compelled to do so under duress, as occurred in
1956 immediately after the capture of Sinai and Gaza. John Foster Dulles, the
then-U.S. Secretary of State, threatened to cut off all financial aid to Israel Israel Russia Israel Gaza Egypt Land of Israel Land of Israel Land of Egypt
I wish
to conclude my letter by referring to the 1979 landmark case of Dvikat (or
Dwaikat) v. Government of Israel et
al., famously known as the Elon Moreh case, that you favourably cite in
your article. This judgment, rendered by Deputy-President Moshe Landau, is a
judicial travesty directly traceable to your doorstep, that serves today as a
pillar for labeling Judea and Samaria Land of Israel Proclamation Land of Israel Judea
and Samaria Judea and Samaria Land of Israel Proclamation June 7, 1967 by Brigadier-General Haim Herzog which,
he thought, exclusively determined the legal status of Judea and Samaria July 5, 1950 , which overrides the Hague Regulations
that permit requisition of land only for military needs. The Law of Return and
Article 6 of the Mandate for Palestine sanction Jewish settlement not merely on
land located in the State of Israel, whether publicly or privately owned or
simply ownerless, but also in the rest of the Land of Israel, outside the
State's boundaries, in IDF or Jewish possession, as indicated by use of the
Hebrew word artza in section 1 of the Law of Return and
also by what Ben-Gurion said in personally introducing this law in the Knesset
on July 3 and July 5, 1950. When Ben-Gurion explained that every Jew has the
right to come and settle in Israel, he certainly did not mean to limit this
right to the existing boundaries of the State of Israel, otherwise the Law of
Return, read in conjunction with the Area of Jurisdiction and Powers Ordinance
and the Land of Israel Proclamation, would have made no sense nor served any
purpose. When Ben-Gurion further said that this right was recognized in the law
of nations and existed even before the State did, and was, in fact, that which
built the State, he undoubtedly had in mind Article 6 of the Mandate for Palestine Land of Israel Land of Israel Land of Israel
The
recently retired President of the Supreme Court, Justice Aharon Barak, has
proceeded along the same path as Justice Landau and gone even further, basing
several of his recent judgments on the false premise that Judea and Samaria are
governed by the rules of belligerent occupation, including the Fourth Geneva
Convention and even the Geneva Protocols of 1977, which eradicates the rights
of the Jewish People and its assignee, the State of Israel, to Judea, Samaria
and -- formerly -- Gaza. This I stress and repeat is the dire consequence of
your original plan and program to apply the norms of international law to the
areas of the Jewish homeland lying outside the technically temporary borders of
the State. I have written to Justices Landau and Barak in the same vein that I
wrote to you, even sending Justice Landau a copy of Ben-Gurion's Proclamation,
but neither he nor Justice Barak have bothered to respond or even acknowledge
my letters.
With
all due respect to you as a learned and eminent judge and jurist, I ask you
once again in all earnestness to reconsider and restate your position on the legal
status of Judea and Samaria Israel the Hague Judea and Samaria
In
closing, I may not know, as you state, all the facts of inner government
workings and decisions that took place in 1967 as I was not privy to them, as
you were. Your reproach that I also lack knowledge of the relevant law to
support my position is refuted, as can be judged by this letter and my
published Petition. Anyone, like myself, who has observed and studied the
results of what was done by the decision-makers of that time can only gasp in
disbelief at the errors and violations of law that were made at the highest
levels. Instead of following Ben-Gurion's wise and patriotic path as expressed
in the laws he was responsible for enacting in 1948 and 1950, that embraced the
Land of Israel as the eternal treasure and patrimony of the Jewish People, the
Eshkol Government and you included appear to have embraced a non-Zionist,
bizarre and illegal policy to treat the Land of Israel as part of foreign
territory, the rights to which were viewed, in the eyes of most people in the
world, as being vested not in the Jewish People but in Arab pretenders. This
shame must be expunged, and you, who inspired the application of international
law to liberated Jewish territories, are the one person who can make that
happen!
Yours
truly,
Howard Grief
Howard Grief
Howard
Grief
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
Attorney and Notary
13/2 David Goitein St.,
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel
Tel. (Fax) : 972-2-656-0085
9 Adar, 5767 --
Mr.
Justice Meir Shamgar,
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263Jerusalem
President (Retired) of the Supreme Court,
Rehov Shahar 12
96263
Dear
Mr. Justice Shamgar,
I
thank you for your letter of January 21, 2007, and for the time you have
evidently taken to present further explanations and elaborations of your
position in regard to the exact meaning of the Area of Jurisdiction and Powers
Ordinance of September 22, 1948 (hereafter: the AJPO) and the proclamation
validated by the AJPO, namely, Proclamation No. 1 of the Israel Defense Forces
Government in the Land of Israel, of September 2, 1948 (hereafter: the Land of
Israel Proclamation). I sharply disagree with your interpretation of these two
constitutional enactments by the Provisional State Council and hereby provide
you again with my own exposition as to their true meaning and import.
My
first disagreement with you centers on your argument that the "area of
application of law" is not the same as "an area within the State of
Israel". This distinction of yours harks back to an old legal controversy
that has been dealt with in the case-law of the Supreme Court and the legal
literature. Please see the excellent article pertaining to this controversy in
regard to the Golan Heights Law of December 14, 1981 and the Law and
Administration Order (No. 1), 5727-1967, in regard to eastern Jerusalem,
applying Israeli law to both these territories -- written by Professor Asher Maoz
of Tel-Aviv University, Faculty of Law (Asher Maoz, "Application of
Israeli Law to the Golan Heights is Annexation", Brooklyn Journal of International
Law, 1994, Number 2, pp. 355 to 396). The opposite view is taken by
Professor Leon Sheleff in an adjoining article ("Application of Israeli
Law to the Golan
Heights is not
Annexation", op. cit., pp. 333 to 353).
The
distinction that you cite between the "area of application of law",
which is the heading of section 1 of the AJPO and the "area of the State of
Israel" was explained by the Minister of Justice, Pinchas Rosen (then
Felix Rosenbleuth), in the legislative debate on the AJPO that took place on
September 16, 1948 (the 12th of Elul, 5708), at the 18th Session of the
Provisional State Council. Here is what Rosen said about this law (in English
translation):
"By virtue
of this law, we are setting up a kind of administrative unity by creating a
concept which is in the nature of a legal fiction, which is 'the whole of the
area' -- ha-shetah ha-kolel,
-- also to be translated as "the over-all area" or "the
comprehensive area" [defined as] an area including both the area of the
State of Israel and the re-possessed area or the held area [please note: I
translate the Hebrew term ha-shetah
ha-muhzak as either the
"re-possessed area" or "held area"; the "re-" as
used in "re-possessed" means that that area of the Land of Israel was
part of the Jewish National Home that was restored to the Jewish People and the
State of Israel; for the same reason I use the word "re-conquered"
and never "conquered" to refer to the territories restored in 1967].
And this law states that a person appointed to any position [or office],
meaning principally a central or high position -- le-tafkid merkazi -- who is located in the area of the
State, will be competent to act also in the re-possessed (held) area. Were it
not for this law, doubts might arise, whether, for example, the
Attorney-General is able to institute lawsuits and criminal complaints in Nazareth Jerusalem Jerusalem
For
the purpose of clarifying the situation and for removing all doubts, we have found
it proper, and the Legislation Committee has approved this position, to propose
to the [Provisional State
Further
on in the legislative debate, Pinchas Rosen replied to a proposed amendment
made by Zerah Warhaftig of the Ha-Po'el Ha-Mizrahi party, who asked that the
words in sections 1 and 2 of the AJPO, i.e., "the area including both the
area of the State of Israel and also any part of Palestine [Eretz-Israel],
etc." be deleted and replaced by the words "any law applying to the
whole of the State of Israel shall be deemed to apply to any part of Palestine
[Eretz-Israel] which the Minister of Defense has defined by Proclamation as
being held, etc.". Warhaftig's proposed amendment was rejected by Rosen
and the Provisional State Council, on the ground that the Land of Israel
Proclamation of September 2, 1948, issued two weeks before the discussion on
the AJPO took place, said exactly what Warhaftig was proposing and therefore
there was no need to repeat the same thing in the law. Rosen added the
following comment concerning the need to enact the AJPO:
...For purposes
of administration and law, there is a need for an innovation regarding what was
said in the Proclamations [these Proclamations to which Rosen referred were the
Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation September 2, 1948 , both of which were validated by the
AJPO]. There is a need to create the concept of an area, which includes the
held area -- ha-shetah
ha-muhzak -- and the area of
the State -- hetah ha-medina.
From
the foregoing two quotations of Pinchas Rosen, we learn the real reason why an
apparent distinction was made between the "area of application of
law" and the "area of the State". It was for the purpose of
creating a uniformity of law as well as an administrative unity between these
two areas. The totality of the two areas -- described in the AJPO by the term
"the whole of the area" -- was, according to Rosen, a "legal
fiction", an "innovation" or a new legal "concept". This
concept of the "whole of the area" covered not only the area of the
State of Israel allocated in the U.N. General Assembly Partition Plan of
November 29, 1947, but also part of the area that was intended for inclusion in
the proposed Arab State but was re-possessed by the IDF in the War of
Independence, to which was also added the city of western Jerusalem and its
approaches. This new concept was, in my opinion, a "sleight of hand",
or clever deception to mislead the U.N. by feigning compliance with the
Partition Resolution that the Jewish Agency had accepted before the State was
proclaimed. By phrasing the AJPO in this way, it gave Israel Israel Jerusalem Nazareth Land of Israel
If we
are to accept your interpretation of the AJPO and the two proclamations of
August 2, 1948 and September2, 1948 that the application of Israeli law to any
area of the Land of Israel outside the U.N. Partition line was not equivalent
to making that area a part of the State of Israel, then western Jerusalem and
its approaches would not have been part of the State as soon as it came under
Israel's full control. Nor would Jaffa Nazareth Beersheba Ashkelon and Ashdod Land of Israel
1. by marking a map of the Land of Israel in
red with the names of the re-possessed areas, as was done in the specific cases
of Jerusalem, Lod and Ramla, in conformity with the method set out in the
Jerusalem Proclamation and the Land of Israel Proclamation;
2. by application of the law of the State to
the repossessed area, without delineating this area on a map of the Land of
Israel, as also provided for in the aforementioned Proclamations, as well as in
the AJPO. Concerning this method, I venture to say that the words "defined
by proclamation" -- asher
sar ha-bitahon higdir otan be-minshar ke-muhzak 'al-yedei tzva-hagana
le-yisrael -- as appears in
sections 1 and 2 of the AJPO are a direct reference to any past (the two
proclamations already issued) or future proclamations applying the law of the
State to the held areas wherever situated in the Land of Israel beyond the U.N.
Partition line.
The
phrase "area of application of law" was a euphemism or semantic
invention to conceal the fact that the repossessed areas were being annexed to
the State of Israel. The name of the law -- the AJPO -- did not reflect its
true purpose. It was really intended to be a law of annexation, as proved by
the result that followed its implementation, but was adroitly drafted by Rosen
and his team in the Ministry of Justice as a law to extend Israel Land of Israel
Applying
the law of the State to an area not previously included within it is certainly
an act to assert sovereignty over that area, or, as Justice Haim Cohn called
it, "an act of state" (quoted in the article by Professor Maoz, p.
361, footnote 31; see also p. 369, footnote 71). The consequence of this act of
sovereignty is to join that area to the State of Israel. According to Justice
Cohn (as quoted by Professor Maoz):
Both the
proclamation of the Minister of Defense according to the Order issued in 1948
and the order of the government according to the law passed in 1967, are both
acts of state par excellence,
and as such require prior consideration as well as a political decision, for
both of the actions were intended to convert the areas to which they related
into part of the area of the State of Israel.
The
citation for Justice Cohn's statement is given by Professor Maoz as: The Status of Jerusalem in the Legal
System of the State of Israel, 1967-1987, at 246, 249 (Joshua Prawer &
Ora Ahimeir, eds., 1988), reprinted in 1 HAIM H. COHN SELECTED ESSAYS 361
(1991).
An act of state
is defined as an assertion of sovereign power by the Government on the
international level, and this is exactly what occurred when Israel
Justice
Cohn had apparently changed his mind on this subject, for in an earlier
statement he made in the case of Ravidi v. Military Court, Hebron Zone, [24] 2
P.D. 419 (1969), he stated:
the thesis that
the application of Israeli law to a particular area, is equivalent to the
annexation of the area to the State of Israel still requires proof. In the
Justice's opinion "there is ...nothing to prevent the application of the
law of Israel
What
Justice Cohn said in the Ravidi case in 1969 would agree with your own
distinction, but what he later said in his above-quoted article in 1988 agrees
with my opinion that annexation is the legal result of applying Israeli law to
an area of the Land of Israel
In
this regard, Professor Maoz also cites the statement of Justice Yitzhak Kahan
in the above-noted Ravidi case as to the consequence of the government order
under the Law and Administration Order (No. 1), 5727-1967 applying Israeli law
to eastern Jerusalem that had been illegally ruled by Jordan from May 15, 1948
to June 7,1967.Justice Kahan maintained that eastern Jerusalem was annexed to
the State of Israel as a result of the application of Israeli law to eastern
Jerusalem, a statement which "echoed opinions voiced by other justices of
the Supreme Court" (pp. 361-362 of Prof. Maoz's article). The "other
justices" mentioned by Prof. Maoz included Justice Halevi, Justice
Berenzon and President Justice Agranat. Moreover, a majority of constitutional
or academic jurists in Israel Jerusalem
After
the judgment rendered by Justice Barak in the case of Awad v. Prime Minister
and Minister of the Interior, [42] 2 P.D. 424 (1988), it is now settled
case-law that the application of Israeli law, jurisdiction and administration
to any area of the Land of Israel, outside its present borders, effectively
annexes that area to the State, making it a part thereof, whether the area in
question is eastern Jerusalem, the Golan Heights or any other area of the Land
of Israel.
That
also appears to be the strong underlying assumption of the new law passed in
1999 entitled the Law and Administration Law (Cancellation of the Application
of the Law, Jurisdiction and Administration), 5759-1999: hok sidrei ha-shilton u-mishpat -
bittul hehalat ha-mishpat, ha-shipput ve-ha-minhal, 5759. Under this law, a
decision taken by the Government as set down in an international treaty or agreement,
the purpose of which is to cancel or withdraw the application of the law,
jurisdiction or administration of the State of Israel to an "area",
as it is termed simply in the law, presumably an area located anywhere in the
State, needs both the approval of the majority of the Knesset members, as well
as the approval of the majority of votes cast by the participants in a public
referendum or plebiscite. The entire basis of this law is to remove or
"de-annex" a pre-existing "area" from the State to which the
law, jurisdiction and administration of Israel
One
final observation concerning the definition of "an area of the State of
Israel" should be brought to your attention. This phrase was actually
defined in the 2001 law called the "Denial of the Right of Return
Entrenchment Law" -- hok
shiryun shelilat zechut ha-shiva, 5761 --
as follows:
Area of the State
of Israel: "an area located within the borders of the sovereign rule of Israel
In my
opinion, this would equate the "application of law" to an area of the
State of Israel with the sovereign rule of Israel
I have
written elsewhere that Israeli sovereignty also extends to Judea , Samaria Gaza Land of Israel Proclamation Judea , Samaria Gaza April
25, 1920 , but the
regrettable fact is that the State of Israel has never formally acknowledged or
asserted its own inherited sovereignty over these areas. I treat this subject
in my forthcoming book on The
Legal Foundation and Borders of Israel under International Law, and
therefore refrain from further discussing this question here.
The
fact that the AJPO was amended in 1956 to include section 2 A, which uses the
expression "shall be deemed to be part of the area of the State of
Israel" in regard to any vessel (ship) or aircraft, wherever situated,
does not prove what you strongly impute to it, that the legislator deliberately
avoided the use of the same expression in AJPO as is found in section 2A,
because "the area of application of law" was not tantamount to
"the area of the State of Israel". However, in the case of a ship or
aircraft, an express identification was needed to prove that the ownership of
the vessel or aircraft was that of the State of Israel and not of another,
foreign state, for the purpose of determining the jurisdiction of the courts of
Israel in the event that a crime is committed on board the vessel or aircraft
or if a lawsuit for damages was brought by an injured passenger or his heirs,
etc. This case obviously differs from sections 1 and 2 of the AJPO where the
law is talking about dry land and not about movable property (wood and iron)
located outside the boundaries of the State. The legislator acted wisely in
identifying these carriers or public conveyances as being a part of the State
of Israel, to remove any doubts about their legal status. Consequently, an
attack on an Israeli vessel or aircraft that takes place outside Israel
You
tell me in your letter that only the Government of Israel has the authority to
decide if an area or region of the Land of Israel
It is
not my intention or wish to embarrass you about who originated the term the
"held areas" -- shetahim
muhzakim -- but it was first
used in 1948 in the two afore-mentloned Proclamations and could not therefore
have originated with you. You can verify for yourself that this term was
specifically defined in section 1 of Proclamation No. 1 of the IDF Government
in the Land of Israel Jerusalem Israel Palestine
English
translations of the Hebrew legal terms shetah
muhzak and shetah kavush are, it is agreed, irrelevant from the
point-of-view of Israeli law, but on the contrary they are of utmost importance
from the point-of-view of international law and also popular understanding of
what Israel did in 1967. Had the term shetah
muhzak been correctly
translated as a "held area" and not as an "occupied area",
there would probably not have arisen such a fierce world outcry against Israel Israel United States Land of Israel Land of Israel Proclamation
I also
take issue with your statement that the law in force in Israel on September 22,
1948, the date when the AJPO came into operation, was completely identical to
the law that applied in the other areas of the Land of Israel which were part
of the Mandate, the implication being that it did not matter whether Israeli
law or international law was applied since they were both the same. This is an
intriguing argument, but it, too, falls apart upon closer examination. First,
the corpus of law in the new State of Israel was not identical to the
pre-existing law, because important changes were introduced right at the
inception of the State of Israel, as set out in section 13 of the Law and
Administration Ordinance and also in the Proclamation issued by the Provisional
Council of State on May 14, 1948 that accompanied the Declaration of the
Establishment of the State. These changes were necessitated by the continued
existence of several provisions of laws dating from the White Paper of May 17,
1939, that would have remained in force had not the new legislative authority,
the Provisional State Council, declared them null and void. These provisions of
law were: sections 13 to 15 of the Immigration Ordinance, 1941; Regulations 102
to 107C of the Defence (Emergency) Regulations, 1945; and the Land Regulations,
1940. In addition, the Law and Administration (Further Provisions) Ordinance of
July 1, 1948 stated as follows:
Construction of
laws
Section 2: For the removal of doubts it is hereby declared:
Section 2: For the removal of doubts it is hereby declared:
(a)
where any law enacted by or on behalf of the Provisional Council of State is
repugnant to any law which was in force in Palestine on the 5th of Iyar, 5708
(14th May, 1948), the earlier law shall be deemed to be repealed or amended
even if the new law contains no express repeal or amendment of the earlier law.
By
passing this kind of legislation the Provisional State Council made it clear
that the body of law that was in force prior to the establishment of the State
was not identical to the law that existed afterwards.
Moreover,
if international law had been applied to the "held areas" in 1948,
instead of the law of the State, this would have created the same type of legal
damage and controversy as occurred in 1967 when this is what was actually done,
apparently on your advice and based on your preparatory work. The laws and
customs of war as embodied in the Hague Rules of 1907 would then have applied
to all territories beyond the UN Partition line for the Jewish State held by
the IDF, based on the premise that they were "occupied territories"
or were acquired through war, especially if the Arab state proposed in the
Partition Plan had come into existence in the areas not held by the IDF, or
also if Trans-Jordan, as Jordan was then called, had purported to act on behalf
of this aborted Arab state. In seizing the land allotted for the proposed Arab
state under the UN Partition Plan, the Arab state of Trans-Jordan effectively
replaced the aborted Arab state with the consent of the Arab notables living in
Judea and Samaria, thus giving it a supposed right to argue that "Arab
land" held by Israel that had been earmarked for the Arab state was being
occupied by the Jewish State under the Hague Rules of international law. We are
talking here only of theoretical possibilities, but since you raised this
subject, a future mess could have been created if the Government of Israel had
acted in 1948 as it did in 1967 by applying international law to areas of the
Land of Israel not included in the State's boundaries under the UN Resolution
of November 29, 1947.
Of
course, Israel August 2, 1948 and September 2, 1948 , but it cannot be denied that this kind
of Arab complaint supported by the U.N. could have theoretically popped up and
weakened Israel Land of Israel
In
summary, this application of Israeli law to the held areas avoided the
application of British Mandatory enactments that were discriminatory against
Jews and contrary to the provisions of the Mandate, and also avoided the possible
invocation of the Hague Rules to the held areas, or as the Arabs may have
called them, the "occupied areas" of the proposed Arab state, seized
by Transjordan in the name of that state.
As to
section 2 of the AJPO, this provision extends Israel
In our
correspondence, I have staked my whole argument as to why the law of the State
had to be applied in regard to all areas of the Land of Israel Land of Israel Proclamation January
21, 2007 you
adopt a very restrictive view of the meaning of this pivotal Proclamation when
you affirm that it related only to Ramla and Lod and that my assumptions
regarding the scope of its applicability have no factual foundation. You base
your interpretation on the map attached to this Proclamation which depicted
only Ramla and Lod. However, if we take a good look at the legislative debate
on the AJPO and also examine the language of the text of the Land of Israel Proclamation
In the
legislative debate on the bill containing the AJPO before it became law, the
following are the exact words of Justice Minister Pinchas Rosen explaining its
meaning and scope:
pekuda zo,
she-'avra et va'adat ha-hakika ve-ushra 'al-yadah peh ehad, ba'a kedei
le-faresh uke-hashlim et ha-minsharim, she-lefihem hutal hok ha-medina 'al
ha-shetahim ha-muhzakim/ attem be-vaddai zokhrim ahe-pursemu shnei minsharim
ka-elleh, minshar ehad she-hetil et hok ha-medina 'al shetah yerushalayim,
u-minshar sheni she-hetil et hok medinat yisrael 'al yeter ha-shetahim
ha-muhzakim.
In the
above-quoted paragraph, Rosen states explicitly, first that the Jerusalem
Proclamation imposed the law of the State on the area of Jerusalem Land of Israel Proclamation Jerusalem Nazareth August 2, 1948 , and the latter -- by the Proclamation of September
2, 1948 . He does
not specifically mention Ramla and Lod, but they are naturally included when he
refers to "the rest of the held areas". Zerah Warhaftig, who
participated actively in the debate, mentions the area of Jaffa May
13, 1948 , two
days prior to the establishment of the State, after its Arab inhabitants
abandoned the city.
Warhaftig
also spoke directly about the question whether or not the held areas outside
the U.N. lines were part of the State. Here is what he said on the subject:
shama'nu kama hatzharot bishivot mo'etzet-ha-medina
u-mi-hutza lah mi-pi sar ha-hutz ve-gam mi-pi rosh ha-memshala 'atzmo,
she-anahnu lo kibbalnu et ha-gevulot shel kaf-tet be-November ke-muhlatim,
ve-she-be'ekev ha-devarim she-halu me-az ve-'ad ha-yom nidrosh shinui
ba-gevulot im ha-davar yuva bifnei ha-um. be-khol ofen, ha-shetahim
ha-nimtza'im mi-hutz la-gevulot halalu einam mi-hutz li-gevulot medinat
yisrael. yeshnam sham halakim she-yihyu kelulim bim'dinat yisrael.
There
was no doubt in Warhaftig's mind that Jerusalem, Jaffa, Nazareth and the rest
of the held areas were part of the State of Israel and that the provisional
borders of the State as delineated in the UN Partition Plan no longer coincided
with those borders, but had been expanded to include the held areas.
It
will be recalled, as previously discussed in this letter, that Warhaftig wanted
to amend the bill for the AJPO to include the words "any law applying to
the whole of the State shall be deemed to apply to all parts of the Land of Israel Land of Israel Proclamation Land of Israel Proclamation Land of Israel
In
addition to the foregoing evidence of the wide scope of the Land of Israel Proclamation Land of Israel Jerusalem Land of Israel
Moreover,
Article 1 of the Land of Israel Proclamation refers to the held areas that may
be delineated on any other map replacing the map attached to the proclamation
of September 2, 1948, and the concluding part of Article 5 refers to the held
areas the possession of which passed to the IDF afterwards, i.e., after
September 2,1948. The wording of the proclamation in Articles 1 and 5 makes it
evident that it applies to all areas held by the IDF that were either recovered
in battle or abandoned or surrendered by their Arab inhabitants, whether such
areas were re-captured prior to September 2, 1948 or after that date, and not
just to the held areas of Ramla and Lod.
It
seems to me that the delineation of areas re-conquered by the IDF as shown on a
map of the Land of Israel and then incorporated into the State was a makeshift
or temporary method, that was replaced by a better method for accomplishing the
same purpose, which was simply to apply the law of the State to the held areas,
as provided for in Article 2 of the Land of Israel Proclamation and Article 1
of the AJPO. This is exactly what happened when Beersheba Ashdod Ashkelon were repossessed by the IDF more than a
month after the Proclamation was originally issued. There is no disputing the
fact that this proclamation, the scope of which I have shown is open-ended,
applied to these newly re-conquered areas and would also have applied to other
areas of the Land of Israel such as Ramallah or Hebron or, for that matter, to
all of Judea and Samaria had they too been re-conquered in the War of
Independence. The same method of annexing areas of the Land of Israel Judea
and Samaria Land of Israel Israel Land of Israel
Moving
on to your next point, you refer to "the end of section 3 of the
Ordinance" as being derived from customary public international law. This
provision of law validated retroactively all acts done "which but for the
provisions of this Ordinance would be without effect". This section
validated the two proclamations issued by the Minister of Defense, which
extended the law of the State to all the held areas. However, I am mystified by
your statement that section 3 represents customary public international law. In
any event, I agree with you that customary international law is part of the law
of the State which is taken from English common law. This is independent of the
fact that the Hague Rules, having the status of customary international law,
were inapplicable to any area of the Land of Israel re-conquered by the IDF,
both in 1948 and in 1967, since such areas were not occupied lands governed by
international law.
As to
your final point, you reiterate that section 11B of the Law and Administration
Ordinance, 1948 deals with the inclusion of territory in the State of Israel,
in supposed contrast to the AJPO which, in your opinion, does not. I believe
that in its essence Section 11B is hardly different from the AJPO, except that
the former is implemented by the Government as a whole and is optional in
nature, while the latter is implemented by the Minister of Defense on behalf of
the Government and is mandatory. Section 11B never explicitly states that an
area of the Land of Israel
On
this point, you justify your position by referring to the statement made by the
Minister of Justice, Ya'akov Shimshon Shapiro, in the Knesset debate when
section 11B was presented as an amendment to the Law and Administration
Ordinance. I have read Shapiro's speech. He said in effect that to join an area
of the Land of Israel to the State, in particular to an existing municipality
under section 8A(a) of the Municipalities Ordinance, an act of sovereignty was
required, and that could be accomplished by applying the law of the State to
any part of the Land of Israel actually under the de facto control of the State. What Shapiro was
saying in 1967 -- about applying Israeli law, jurisdiction and administration
to liberated areas beyond the borders of the State was really no different from
what Rosen said in 1948 about applying Israeli law and administration to the
held areas. Shapiro was even more emphatic than Rosen in this matter because he
said that not only had the IDF taken control of considerable, but not
contiguous areas of the Land of Israel in the Six-Day War, but had "liberated"
them "from the yoke of foreigners" ...
...hu she-tzva
hagana le-yisrael shihrer me-'ol zarim halakim nikkarim me-eretz yisrael, lav
davka retzufim' ve-ha-nimtza'im zeh le-ma'ala mi-shevu'ayim bishelitat tzahal
To
conclude this letter, I feel I understand fully your reluctance to admit any
error in your legal position affecting the Land of Israel
You
have also greatly influenced other members of the judiciary, particularly
Justices Moshe Landau and Aharon Barak in their judgments that served to
reinforce your original view that the liberated Jewish territories of Judea and Samaria
I
continue to hope that you will realize the truth of what I have written and
will decide to act accordingly.
Yours
truly,
Howard Grief
Howard Grief
Editor's Comment: For technical reasons words originally
written in Hebrew have been transliterated. The original Hebrew may be obtained
by writing Attorney Grief at 13/2 David Goitein
St. Jerusalem Israel
|
From Yoel Lerner,
Editor of the "Howard Grief Eretz-Israel Letters"
The Howard Grief Letters to Meir Shamgar,
being one side of the correspondence conducted by the author, a Jerusalem
attorney specializing in Israeli constitutional law and international law
regarding Eretz-Israel, and Meir Shamgar, President (Emeritus) of the Israeli
Supreme Court, focus on the part played by the latter in the crucial years
between 1961 and 1968 when Shamgar served as Military Advocate General and
Israel came into de facto possession of much of the land
outside the borders of the State but already allocated to the Jewish People
at the conclusion of the First World War in the global settlement that
brought into existence many states in South East Europe as well as in the
predominantly Arab Middle East. These Letters, written in the English
language in which Howard Grief expresses himself most eloquently, provide the
basis for a desperately-needed thorough revision of the Israeli legal
treatment of Yehuda v'Shomron --
The Howard Grief Letters to Meir Shamgar
were written in two stages, the first being an abortive stage (November 2005)
where Attorney Grief sent President (Emeritus) Shamgar a copy of a letter he
had written to a mutual acquaintance, Mr. Eliezer Dembitz, a former Military
Court Judge appointed to his post by Shamgar himself, "in which [Grief]
amplif[ies] the point why [Shamgar] was... in breach of the existing
constitutional law when [he, Shamgar] conceived the plan in the early 1960s
to apply international law, instead of Israeli law, to re-conquered areas of
the Land of Israel and the Jewish National Home," actually repossessed
in 1967. No comment on the contents of the letter, with which the
Correspondence begins, was forthcoming from President Shamgar at that time.
The second and far more fruitful stage of
this unique Correspondence began a year later when Howard Grief wrote
directly to President [Emeritus] Shamgar. Shamgar's reply initiated a
fascinating exchange of letters and of thoughts that took place over a period
of several months. It was President [Emeritus] Shamgar's categorical
objection to the publication of the letters he himself had contributed to the
Correspondence that led to the decision to publish Howard Grief's letters in
the present format. The discerning reader will be able to reconstruct many of
the arguments made by President [Emeritus] Shamgar, to which Howard Grief has
responded.
Yoel
Lerner, Editor
April, 2007 |
Howard Grief was
born in Montreal, Canada, educated in law at McGill University Land of Israel Israel
He formulated the
original thesis that sovereignty over the entire Land of Israel and Palestine
was devolved upon the Jewish People at the San Remo Peace Conference in April
1920 as part of the global settlement that dismembered the
Ottoman Turkish Empire and created the Middle Eastern states of today; as a
consequence, the British White Papers published during the Mandate period, as
well as the UN General Assembly Partition Plan of 1947, were illegal. He is the
author of two forthcoming books on The
Legal Foundation and Borders of Israel
The "Howard
Grief Eretz-Israel Letters to Meir Shamgar, 2005-2007 -- on Eretz-Israel and
Israeli Constitutional Law" edited by Yoel Lerner was published by the
Office For Israeli Constitutional Law (Registered Amuta), Iyar 5767 -- May
2007. It was submitted to Think-Israel
[Editor's
note: You can read Howard Grief, "The Origin of the Occupation Myth,"
by clicking here. And his article on "Legal Rights
and Title of Sovereignty of the Jewish People to the Land of Israel Palestine
IS ISRAEL
by Howard Grief
PART 1. A LEGAL DISCOURSE ON
OCCUPATION
It was
a nerve-racking experience to attend an international conference of
distinguished jurists on "Forty Years after 1967: Reappraising the Role
and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian
Context", held on June 5-7, 2007 in Jerusalem Israel West Bank " and Gaza Israel Bar-Ilan University
The
only conclusion that can be drawn from this Conference is that the Law
Faculties of Israeli Universities are filled with professors and legal scholars
who advocate the Arab case concerning the "occupation", and who have
indoctrinated their impressionable students with the same injurious views. By
railing against the "occupation", the legal scholars who populate the
law faculties libel and berate their own country and encourage foreign scholars
to join in the castigation of Israel Israel
It is
becoming more and more difficult to refute the falsehood of
"occupation", because this unfounded accusation has been given
credence by no less an august institution than the Supreme Court of Israel.
Beginning principally with the 1979 Eilon Moreh case and extending to recent
cases involving the erection of the security fence and the Disengagement Implementation
Law, the Court has affirmed that Israel is indeed an Occupying Power in Judea,
Samaria and Gaza and governs these territories by virtue of the rules of
belligerent occupation, exactly as Arab leaders have maintained. To overturn
this libelous falsehood, it would require a special law to be passed by the
Knesset, a law affirming Jewish legal rights to all parts of the Land of Israel Israel Land of Israel
THE
IDEA THAT Judea, Samaria and Gaza are under Israel's "occupation" was
born on June 6-7, 1967, when the Israel Defense Forces overran and repossessed
these territories in the Six-Day War and the National Unity Government headed
by Levi Eshkol instantly applied Article 43 of the Hague Regulations to keep
the existing laws in force. The invoking of this article of international law
by the Government was based on the legal advice of then Military Advocate
General and future Supreme Court President Meir Shamgar, as well as several
others who concurred in that decision. However, this step was in direct
contradiction to the existing Israeli constitutional law embodied in the law
known as the Area of Jurisdiction
and Powers Ordinance enacted
by the Provisional State Council on September 16, 1948, and two proclamations
that were issued by Prime Minister and Defense Minister David Ben-Gurion just
prior to the enactment of this law. These two proclamations -- the Jerusalem
Proclamation of August 2, 1948 and the Land of Israel Proclamation September 2, 1948 -- required the application of the law of
the State to areas of the Land of Israel November 29, 1947 . Both the law and the two Proclamations
were made retroactive to May 15, 1948 , thus creating one legal aggregate upon
which to base future annexations of re-conquered territory that was part of the
Land of Israel
In
contrast to the practice followed by Ben-Gurion's Government in 1948, the
Eshkol government in 1967 applied not only the Hague Regulations relating to
"occupied territories", but also the provisions of the Fourth Geneva
Convention Relative to the Protection of Civilian Persons in Time of War. This
gave birth to the assumption in the eyes of the world and in Israel Land of Israel Israel Jerusalem Golan Heights ) out of demographic concerns and to keep
alive the hope of signing peace treaties with the neighboring Arab states. But
this provided no justification for the violation of the existing constitutional
law or for failing to apply the law of the State to the liberated territories
as Ben-Gurion did in 1948.
The
term "occupation" is defined in article 42 of the Hague Regulations, where it states that "territory is
considered occupied when it is actually placed under the authority of the
hostile army and the occupation extends only to the territory where such
authority has been established and can be exercised". The premise of Article
42 is that the territory in question belongs to the Occupied Hostile State Occupying State Jordan Judea and Samaria the Hague Egypt Palestine Palestine
The
Jewish National Home is not merely a meaningless phrase or
slogan. It was and still is a concept of international law that was accepted by
the 52 member states of the League of Nations which confirmed the Mandate for Palestine July 24, 1922 . In addition, the United States Judea ,
Samaria Gaza Great Britain December
3, 1924 ; this
treaty was then proclaimed by President Calvin Coolidge on December
5, 1925 as part
of the law of the United States December
23, 1920 and
embraced all the so-called "occupied territories" of today.
The
first and most important speaker at the Conference was Prof. Yoram Dinstein of Tel-Aviv University Jordan July
31, 1988
dissolving Jordan West Bank . Dinstein's opinion is untenable since,
as already noted, Jordan West Bank ". It acquired this territory in May
1948 through an unprovoked act of aggression against the nascent Jewish State;
it had no right to this territory and then illegally annexed it two years
later. Only two countries recognized this illegal annexation, Pakistan Great Britain Jerusalem
There
remains only one way to end the myth of Israeli "occupation" of lands
that belong by law to the Jewish People. A future Government of Israel must
abolish the military regime adopted in June 1967 for Judea , Samaria Gaza
PART 2. THE OCCUPATION OF
YESHA: A LEGAL ASSESSMENT
Many
Israeli and foreign jurists assume that Israel has violated the Hague
Regulations of 1907 and the Fourth Geneva Convention of 1949, when it allowed
Jewish communities to be built in Yehuda (Judea), Shomron (Samaria) and Gaza --
collectively, YESHA. Even Israel Israel
Since
1967, when the Israel Defense Forces conquered YESHA (as well as the Golan
Heights and Sinai), successive Israeli governments applied Article 43 of the
Hague Regulations, thereby retaining the existing laws of its former rulers.
Invoking this article of international law was based on the legal advice of
Meir Shamgar, Military Advocate-General in 1967 and later Supreme Court
President, and others. This
decision, however, directly contradicted existing Israeli constitutional law,
the Area of Jurisdiction and Powers Ordinance enacted by the Provisional State September
16, 1948 ,
and two earlier proclamations issued by Prime Minister and Defense Minister,
David Ben-Gurion.
The
Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation September 2, 1948 required the application of Israeli law
to all areas of the Land of Israel November 29, 1947 . Both the law and the Proclamations were made retroactive to May
15, 1948 , thus
creating one legal aggregate upon which to base future annexations of
re-conquered territory that was part of the Land of Israel
In
contrast to the practice followed by Ben-Gurion's Government in 1948, the
Eshkol National Unity Government in 1967 applied not only the Hague Regulations
relating to "occupied territories", but also the provisions of the
Fourth Geneva Convention. This gave birth to the assumption that the liberated
territories of the Land of Israel
THE
TERM "OCCUPATION", DEFINED IN ARTICLE 42 of the Hague Regulations,
refers to territory that is "actually placed under the authority of the
hostile army and the occupation extends only to the territory where such
authority has been established and can be exercised."
The
premise of Article 42 is that territory which belonged to an Occupied State Occupying State Jordan Judea and Samaria the Hague Egypt
Furthermore,
the term "occupied Palestinian territory" is a non sequitur, since
with the termination of the British Mandate for Palestine Palestine
Areas
of Palestine which were under the British Mandate that are said to be under
"Israeli occupation" are actually integral parts of the Jewish
National Home and belong to the Jewish People under both Israeli constitutional
law and several international agreements concluded immediately after World War
One, which constitute the real international law that is today conveniently
forgotten by those alleging Israeli occupation of YESHA.
The
belief that Palestinian Arabs inherited national and political rights from Jordan July 31, 1988 when he dissolved Jordan West Bank has no legal basis. Since it acquired
this territory through an unprovoked act of aggression, Jordan
To
repeat the conclusion from Part 1: to
end the myth of Israeli "occupation", the Israeli government must
abolish the military regime adopted in June 1967 for Judea, Samaria and Gaza,
and replace the existing military laws and regulations with the law of the
State of Israel.
[*] The proper names for the West Bank are Samaria Judea -- Samaria Jerusalem Judea is the land south of Jerusalem Jordan West Bank ".
Howard Grief was
born in Montreal , Canada Land of Israel Israel
Part one was
submitted June 10, 2007 ; part 2 June 20, 2007.
[Editor's
note: You can read Howard Grief, "The Origin of the Occupation Myth,"
by clicking here. And his article on "Legal Rights
and Title of Sovereignty of the Jewish People to the Land of Israel Palestine
THE ORIGIN OF THE OCCUPATION MYTH
by 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 the Hague
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 Israel
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
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 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 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 Jerusalem June 28, 1967 , that ceased to exist only after
"East" and "West" Jerusalem
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 Israel
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 Gaza Palestine December 23, 1920 and hence were being legally repossessed
by Israel Golan Heights were also to be considered an integral
part of the Jewish National Home, though illegally removed from the Home by Britain France 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 December
23, 1920 . It was
excluded because Britain Egypt Suez Canal which it controlled from possible Turkish
attack. Egypt Ottoman Empire since 1517, but in 1882 it was occupied
by Britain Egypt Suez 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 Gulf of Akaba Turkey
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 Egypt Egypt
Prime
Minister Menahem Begin erred grievously in 1978 when, during the peace
negotiations with Egypt 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 Israel
The
foregoing pertinent facts concerning Judea , Samaria Gaza
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
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
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 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 drafted[8] 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 Gaza Israel
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 Judea , Samaria 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 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
The
relevant documents of international law noted above were either completely
ignored or, in the case of the Mandate for Palestine Judea and Samaria Occupied Palestinian Territory Israel
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 Israel
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 Gaza
Endnotes
1.
See the volume entitled Military Government in the Territories Administered by Israel Jerusalem
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
7.
See "Myths and Facts 1978, A Concise Record of the Arab-Israeli
Conflict", published by Near
East Report, Washington , DC
8.
The information regarding the drafting of the first two military proclamations
for Judea and Samaria
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 May 10, 2005 .
214 pages
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