APPLYING CONSTITUTIONAL LAW TO THE 1967 LIBERATION OF JUDEA, SAMARIA AND GAZA (BIBLICAL ISRAEL) by Howard Grief

APPLYING CONSTITUTIONAL LAW TO THE 1967 LIBERATION OF JUDEA, SAMARIA AND GAZA (BIBLICAL 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 June 7, 1967, when the IDF overran Judea, Samaria and Gaza in the Six-Day War, we have wrongly applied international law to these repossessed areas of the Land of Israel. This resulted from a deliberate National Unity Government decision that clashed with existing Israeli constitutional law and with the practice followed in 1948 when other areas of the Land of Israel were repossessed by the Israeli armed forces. The law wrongly applied at the close of the Six-Day War was international law as embodied in the Hague Rules of 1907 and the Fourth Geneva Convention of 1949, both codices being classified as laws of war, when Israeli constitutional law at the time required the application of the law of the State of Israel to Judea, Samaria and Gaza. 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 Israel. Howard Grief  Jerusalem  May 2007

 

PRESENTING THE TERMS OF THE ARGUMENT

Jerusalem  11 Heshvan 5766 -- November 13, 2005 The Honourable Mr. Justice Meir Shamgar  Rehov Shahar 12  Jerusalem 96263 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

Jerusalem 
30 Tishri, 5766 -- November 2, 2005

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 liberated Judea and Samaria on June 7, 1967, and Gaza on 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 in Arab hands?
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's security fence. Barak constantly repeats the theme in his judgments that Judea, Samaria and Gaza are governed by the rules of belligerent occupation under international law, but refrains in a cagey, deliberate manner from actually calling them "occupied territory", to avoid criticism or bring undue attention to what he has farcically and incompetently done.

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 and one dealing with the application of Israeli law and sovereignty to those areas. The norm of Military Government was indeed applied, both in 1948 and in 1967, but the other norm, that of Israeli law applying to the IDF-held areas was disregarded in 1967, in violation of the existing constitutional law, and replaced by the application of international law. It is no credit to Landau that at a critical time in the settlement of the liberated territories of the Land of Israel he continued and endorsed the outrageous violation of law initiated over a decade and a half earlier by then-Advocate-General Shamgar, that has since placed Israel in an untenable position making it a target for worldwide censure.

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 and the Area of Jurisdiction and Powers Ordinance, except that it was supposed to have been issued by the Minister of Defense (Moshe Dayan), not by the Military Commander.
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. In defining this area as the 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 did the defining by drawing red lines on an illustrative map of the Land of Israel, signed and dated by the Minister of Defense, that accompanied the original proclamation, showing the area held by the IDF. Without making use of any map, Herzog's proclamation simply described sparingly the area that was now under IDF control -- the "Region of the 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 liberated by the Israel Defense Forces that cannot be labeled "occupied territories" under international law. The Area of Jurisdiction and Powers Ordinance was enacted for the sole purpose of recovering for the Jewish State those lands that had been recognized as integral parts of the Jewish National Home under international law in 1920 and that had always been considered the patrimony of the Jewish People under Jewish law. If the IDF achieved this purpose in regard to various regions of the Land of Israel and no proclamation had been issued under the aforesaid Ordinance, then its very purpose would have been defeated and the law left with neither meaning nor effect. Moreover, if the Minister of Defense did not issue a proclamation defining the IDF-held areas, this would have meant that the Jewish People, represented by the State of Israel, had no sovereign right to the recovered areas and would have been required in due course to restore these areas to the Arab states that had illegally occupied them in 1948, a requirement that negated the underlying assumption of the Ordinance that they belonged to the Jewish People. To avoid these consequences, it was therefore incumbent upon the Minister of Defense to issue a proclamation under the Ordinance to define the area of the Land of Israel taken over by the IDF as soon as this occurred. To underscore this point, this was the way the Ordinance was actually interpreted and implemented throughout the War of Independence. It seems logical to conclude that it was the obligatory nature of the Ordinance that prompted the Eshkol Government in 1967, shortly after the end of the Six-Day War, to devise an alternative law (Section 11B of the Law and Administration Ordinance), to give the Government a choice in deciding whether or not to incorporate into the State the areas of the Land of Israel liberated in that war.
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 then in force in the West Bank, in accordance with Article 43 of the Hague Regulations, but absolutely contrary to Israeli law, as already noted. Thus, the wrong source of law was used (Article 43 of the Hague Regulations, rather than the provisions of the Area of Jurisdiction and Powers Ordinance) and the wrong law applied to the region held by the IDF (Jordanian law rather than the corpus of Israeli law). The Government chose this short-sighted course to keep the option of "peace" open and to avoid increasing the Arab population of the State, which were considerations outside the realm of law and could have been resolved by other means. The non-observance of the existing constitutional law was the folly and root of all the trouble we face today in the battle to preserve Jewish rights to the Land of Israel under the Rule of Law. Had the Eshkol Government done what it was legally obligated to do, no one, apart from the Arab states and their close supporters, would have falsely dared call Judea and Samaria "occupied territories" subject, after the end of active hostilities, to the laws of war embodied principally in the Hague Regulations and the Fourth Geneva Convention. The folly of what was done in June 1967 has been accepted by the Supreme Court and its underlying raison d'etre has never -- until recently, when Justice Edmond Levi dissented in the case dealing with the constitutionality of the Disengagement Implementation Law -- been challenged by anyone in Israel's legal Establishment, based on the merits of the case.

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 lying outside the de facto boundaries of the State that were re-conquered by the IDF. We await a new Government that will overturn the erroneous judicial decisions rendered by our esteemed jurists that clearly contradicted Israel's rights to Judea, Samaria and Gaza and other regions of the Land of Israel.

Sincerely, 
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.Justice Edmond Levi 
6.Military Judge (Ret.) Baruch Koroth 
7.Professor Yuval Ne'eman 
 

November 2, 2006.  LETTER OCCASIONED BY THE PROPOSED BUILDING OF A JEWISH CEMETERY ON THE MOUNT OF OLIVES

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

Mr. Justice Meir Shamgar, 
Shahar 12 
96263 Jerusalem

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 ever since and started the great divide between those supporting the concept of the Land of Israel and those opposing it.

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 and the other for the rest of the Land of Israel that required the immediate incorporation into the borders of the State of any area of the Land of Israel conquered and effectively held by the Israel Defense Forces. These two proclamations were officially called:

1. shilton tsva-hagana le-yisrael biyrushalayim, minshar mispar 1, nittan ha-yom, kaf-vav be-tammuz 5708 -- Israel Defense Forces Government in Jerusalem, Proclamation No. 1.
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, Proclamation No.1 (The Land of Israel Proclamation).

This is how places such as Nahariya, Nazareth, Lod, Ramle, 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. This Proclamation was still in force in 1967 and applied directly to the repossessed region of Judea and Samaria, as well as that of Gaza, the Golan and even Sinai. You chose to ignore this proclamation and, instead of advising the Government to apply the law of Israel to the redeemed territories in accordance with Ben-Gurion's Land of Israel Proclamation, you did the very opposite of what was legally required in the circumstances and advised the application of foreign law in accordance with Articles 42 and 43 of the Hague Rules, but contrary to Israeli constitutional law. This advice was wrong, inappropriate and illegal. You have much to answer for in ignoring Ben-Gurion's Land of Israel Proclamation that applied to the new situation created by the Six-Day War, just as it had applied previously to the situation created by the War of Liberation. The damage you have caused to Israel's legal position in regard to the redeemed regions of the Land of Israel is incalculable and reverberates to this very day in the minds of Israeli and foreign leaders, as well as the world's press which maliciously depict Israel as an Occupying Power of so-called "Arab land".

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 and Gaza in conformity with Ben-Gurion's Land of Israel Proclamation. I, as a former legal adviser on matters affecting Eretz-Israel to the late Professor Yuval Ne'eman whom you knew, and as a friend of the great jurist Ya'akov Meron whom you know (he is presently very ill), and as a friend of retired Military Court Justice, Eliezer Dembitz whom you also know, ask you to consider doing this. However, I make this appeal to you on my own initiative, without prompting or encouragement from any person.

A restatement by you, as I recommend, would do much to change public perceptions, particularly in Israel, of the true legal status of Judea and Samaria.

Yours truly, 
Howard Grief, Attorney 
 

November 22, 2006.   WHY DID SHAMGAR GIVE SPECIAL COURSES CONTRADICTING ISRAELI LAW?

Jerusalem 
1 Kislev, 5767 -- November 22, 2006

Mr. Meir Shamgar, 
President (Retired) of the Supreme Court, 
Rehov Shahar 12 
96263 Jerusalem

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.

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 and issued a proclamation for the establishment of the Military Government in the West Bank, the name of which was subsequently changed to Judea and Samaria. The planning for this eventuality took final shape in the special courses you gave for the Military Advocate's Corps that taught the laws of war to those who attended your courses. All the material necessary for the performance of duties by officers of the platoon (regular and reserve) was contained in a comprehensive vade mecum, known as the Manual for the Military Advocate in Military Government, written and published in the early sixties by yourself, when serving as the Military Advocate General. This Manual, containing military instructions and guidelines to be applied to any territory conquered by the IDF, was re-edited and enlarged by you as a result of the courses you gave to the officers of the Military Advocate's Corps. All of the foregoing information was gleaned from your article. That explains why the Israeli Military Government in Judea and Samaria invoked the norms and principles of international law to this single region, rather than Israeli law, as was done by Prime Minister and Defense Minister, David Ben-Gurion, in 1948 when other areas of the Land of Israel were conquered by the Defense Forces 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 were re-possessed by the IDF? As I asked you in my letter of 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 had to be governed under the rules of belligerent occupation, no further explanation is needed!

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 
 

January 9, 2007.   WHY HAGUE RULES DID NOT APPLY TO THE TERRITORY REPOSSESSED IN 1967

Jerusalem 
19 Tevet, 5767 -- January 9, 2007

Mr. Justice Meir Shamgar, 
President (Retired) of the Supreme Court, 
Rehov Shahar 12 
96263 Jerusalem

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 were drawn from the rules of international law. This was the wrong thing to do, because it was the existing constitutional law that required the application of Israeli law to those areas, and not a political decision, as you claim in your letter. Pre-existing law always supercedes policy, and is required to be implemented under the "Rule of Law" principle. The norms of international law were not applicable to the situation because those norms were based on the laws of belligerent occupation that were irrelevant in regard to liberated Jewish territories that were integral parts of the Land of Israel and the Jewish National Home.

Applying the Hague Rules to Judea and Samaria in June 1967 meant applying the foreign law of Jordan. The National Unity Government of Levi Eshkol acted illegally in following this course, in light of Ben-Gurion's law and proclamation, but it probably would not have done so, had the Government been given the proper legal advice by the highest legal officials in the Ministry of Justice and the Ministry of Defense. Your personal role in all of this appears critical and extensive. As Military Advocate-General from 1961 to 1968, that comes under the aegis of the Ministry of Defense, you gave special courses to the legal officers of the Military Advocate's Corps which consisted, after the Six-Day War, of various units attached to all regional headquarters of the military government that were set up in Judea and Samaria, Northern Sinai and Gaza, Central and Southern Sinai and, finally, the Golan Heights. As stated in your article, the Military Advocate's Unit for Judea and Samaria was organized in three platoons under your direct command. The express function of the Military Advocate's Unit for Judea and Samaria was to ensure that the military government of this region conformed to the norms of international law. According to your own words (p. 44), you

"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, after the re-capture of the region, you should have admonished them to apply Israeli law in the redeemed Jewish lands once the hostilities ceased and the region was in the effective possession of the IDF.

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, issued on 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 for Policy Research and I am forwarding you a copy with this letter for your perusal. At the hearing, Judge Mishael Cheshin informed my colleague, Att. David Heimowitz, that the Petition was too long to be adjudicated and should be re-submitted in a more concise version, a request that I accepted. A shorter version was then filed with the Court, but to no avail, as it was dismissed by a panel of three judges on the ground that it expressed a "political position". This was the excuse the Court, including yourself, formulated to avoid judging violations of specific laws but which also involved the "peace policies" undertaken by the Government of Israel. The 1995 Interim Agreement with the PLO was replete with illegalities, which I detailed in the Petition and in a subsequent shorter version, but the Court refused to consider them and decide the merits of the case, though it now rushes in to adjudicate military and security matters it should rightfully abstain from judging. Everything is justiciable, it seems, except the untouchable "peace process".

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. It was only, as you point out, on 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, a fact which leads me to believe that you were unaware of this proclamation at the time you gave your special courses to the Military Advocate's Corps, beginning in the early 1960s. Unless you explicitly tell me otherwise, I believe that you only much later gained knowledge of Ben-Gurion's proclamation. Furthermore, had you known of this proclamation in the 1960s, you would not, I believe, have advised the application of the norms of international law in the event that areas of the Land of Israel were re-possessed by the IDF in any future war, then as yet unforeseen.

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 proclamation is to be read in conjunction with Ben-Gurion's law. When the IDF took possession of areas in the Land of Israel in 1948 outside the UN Partition lines, the held areas were joined to the State by applying the law of the State to them. Hence the name given to Ben-Gurion's law: "Area of Jurisdiction and Powers Ordinance" which extended the area of jurisdiction and powers of the State to the newly possessed areas. There is no reason whatever to differentiate the "held areas" added to the State under both the Land of Israel Proclamation and Ben-Gurion' s law from the areas of the Land of Israel re-conquered in the Six-Day War, both being part of the Land of Israel and the Jewish National Home and both lying beyond the UN 1947 Partition lines. Your distinction between two different kinds of territories, one relating to Ben-Gurion's law and proclamation and the other to section 11B, never existed at all.

While there is no difference between the 1948 held-territories of Ben-Gurion's law and the re-conquered Land of Israel territories of 1967 to which section 11B was meant to apply, each of these laws can be characterized as laws of annexation in regard to the Land of Israel. Yet there is a definite difference between the procedures or methods used in applying the laws themselves. In the case of Ben-Gurion's law, the decision to join the "held areas" to the State is made by the Minister of Defense on behalf of the Government, while in the case of section 11B, the decision is made not by one minister alone, but by the Government as a collective body. Moreover, the principal difference is that once the IDF effectively holds an area of the Land of Israel under Ben-Gurion's law, it must indicate that fact in one of two ways: either (a) by marking the held area in red on a map, accompanied by the signature of the Minister of Defense and the date thereof; (b) by simply applying the law of the State to the "held area", without the necessity of marking that area on a map. In the case of section 11B, in contrast to Ben-Gurion's law, the Government has a choice whether or not to issue an order to extend the law, jurisdiction and administration of the State to any area of the Land of Israel repossessed by the IDF.

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 held or recovered by the IDF in 1948-1949, that was located beyond the UN Partition lines or not included in the State when it was proclaimed on 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. In his great wisdom, the then-Minister of Justice, Pinhas Rosen, created a subtle distinction between the two terms that was unknown or almost unknown in international law, but that important distinction was subsequently spoiled by the mis-translation of shetah muhzak into English, not as "held territory" or "repossessed Land of Israel territory", but as "occupied territory", thus making it synonymous with shetah kavush and eliminating the distinction altogether. Had the Eshkol Government kept this very fine and vital distinction (between shetah muhzak and shetah kavush) in mind in June 1967 and had most people in Israel not called both of them "occupied territory" and had the government received proper legal advice, it would not have decided to apply the norms of international law to the liberated Jewish territories of the Land of Israel, but rather the law of the State of Israel, as Ben-Gurion under Pinhas Rosen's advice so wisely did in 1948.

Regarding your point that the map attached to the Land of Israel Proclamation indicated only Lod and Ramlah and did not show other areas in the Land of Israel that were in possession of the IDF, this, in my opinion, does not prove that Lod and Ramlah were the only areas to which Ben-Gurion's proclamation applied. The Proclamation and map were only issued and attached to each other on 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 of 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? Your action in this regard seems to place a heavy cloud over what you say in your letter.

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 for the benefit of the Jewish People. Where was your empathy for the Jews who wished to re-establish vibrant Jewish life in the areas of the Jewish National Home, the cradle of the Jewish nation? Instead of showing such empathy, you applied international law which, for all intents and purposes, viewed the land on which the Jews settled to be "occupied Arab land" because the law of the previous ruler was still in force -- in conformity with Article 43 of the Hague Rules and Article 64 of the Fourth Geneva Convention -- the international law that you seem to have proudly advised the Government to adopt when the IDF entered Judea and Samaria and issued Military Proclamation No. 2.

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's domestic affairs. Your judicial legacy, as well as that of your colleagues, Justices Landau and Barak, is the protection you accorded the Arabs of this region rather than upholding the rights of the Jewish People in the whole of the Land of Israel. By urging the application of international law to Judea and Samaria, and then endorsing it as a judge, you prevented the unification of the Land of Israel under de facto Jewish sovereignty insofar as Cisjordan is concerned.

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 and their country -- that embraces not merely the State of Israel, but the wider 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 when you state that he expressed his "clear opinion" in a television interview in the wake of the Six-Day War. That "clear opinion" was that we should give up all the held territories in return for peace, except for Jerusalem. This was not only Ben-Gurion's position at the time, but that of most members of the Eshkol Government, weary of war and expressing a great yearning for peace with the surrounding Arab countries which were still intent on wiping Israel off the map, as you well noted in your article. The Ben-Gurion quotation you cite was nothing more than a pro forma mantra or sacred incantation equivalent to a daydream, that was prevalent among members and supporters of the Labour Alignment after the end of the Six-Day War and before the Arab Summit Conference held in Khartoum on September 1, 1967, which dispelled the idea that the Arab states truly wanted peace with Israel.

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 in commemoration of the first Zionist Congress which had taken place there in 1897, where he said in part:

No Jew is entitled to give up the right of establishing (settling) the Jewish nation in the Land of Israel. No Jewish body has such power. Not even all the Jews alive have the power to cede any piece of land or part of the homeland. This is a right vouchsafed or reserved for the Jewish Nation throughout all generations... Our right to the whole of this country is valid, in force and endures forever.

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 by having the Provisional State Council enact the Area of Jurisdiction and Powers Ordinance and by issuing the Land of Israel Proclamation. Ben-Gurion's strong stance on Eretz-Israel in 1937 was thus followed by equally strong legislative action when the Jewish State came into being.

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 had not attacked the land of Egypt. He did not consider Sinai to be a part of Egypt and he intended to annex Sinai and Gaza to Israel, as well as the adjoining islands of Yotvata (Tiran) and Sanafir in the Red Sea where, according to the 6th century Byzantine historian, Procopius, a Hebrew state had existed for many centuries, until it was destroyed by the Eastern Roman Emperor Justinian. If Ben-Gurion thought that Sinai and Gaza should be part of the State of Israel -- and this, according to Professor Ne'eman, is what he thought before U.S. and Russian threats forced him to retreat from his stated view on November 7, 1956, a fortiori he would have never given up Judea and Samaria had he been Prime Minister and in vigorous health in 1967. More likely, he would have applied Israeli law and not international law to the newly recovered Jewish territories, just as he did in 1948.

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 but which he subsequently abandoned in retirement and the position Ben-Gurion held for many years in regard to the Land of Israel, but subsequently abandoned in retirement. While in office, Kollek vowed that Jerusalem would always remain united under Israel's sovereignty, but seven years after losing the mayoralty race to then Likud M.K., Ehud Olmert, Kollek astonishingly supported Prime Minister Ehud Barak's plan to re-divide Jerusalem during the Camp David Summit in 2000. This switch of opinion by Kollek corresponds in nature to what Ben-Gurion admittedly did when he advocated giving up all of the liberated territories of the Land of Israel in 1967 to achieve peace with Israel's Arab enemies, completely contrary to what he had always advocated.

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, from all sources, in addition to having Israel expelled from the United Nations. Russia threatened to attack Israel with nuclear weapons. Under these ominous circumstances, involving the opposition of two super-powers, Ben-Gurion thought it was more prudent to retract his stated views and thus agreed to return Sinai and Gaza to Egypt. However, Ben-Gurion did not do what Prime Ministers Menachem Begin and Ariel Sharon did later. Begin, acting on the belief that Sinai was not part of the Land of Israel, voluntarily parted with this territory that historically is connected more with the Land of Israel than with the Land of Egypt. In the case of Sharon, he unilaterally abandoned an integral part of the Land of Israel to the Arab side, and evilly uprooted about 9,000 Jews from their homes and farmsteads -- an act that I believe fits the definition of treason under Article 97(a) and 97(b) of the Penal Code.

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 as "occupied territories" under international law. While this judgment does mention the Area of Jurisdiction and Powers Ordinance, 1948, it betrays complete ignorance of the Land of Israel Proclamation that is governed by this Ordinance, issued for the purpose of extending the boundaries of the State to those parts of the Land of Israel theretofore not included in the State. Justice Landau's lack of knowledge of this proclamation led him to reach untenable conclusions about the legal status of Judea and Samaria which persist to this day. Justice Landau based his conclusions on the fact that Israeli law has never been applied to Judea and Samaria, not realizing that such a step was legally required under the precedent of the Land of Israel Proclamation and Ben-Gurion' s law. He relied on the two Military Proclamations actually issued on June 7, 1967 by Brigadier-General Haim Herzog which, he thought, exclusively determined the legal status of Judea and Samaria. Those proclamations were based upon and inspired by the precedents and forms you drafted and published in the Military Manual or vade mecum given to all the legal officers in the Military Advocate's Corps. In his judgment, Justice Landau admits that in deciding the Elon Moreh case, he relied on the sources of customary international law (the Hague Regulations) and two aforementioned Military Proclamations to determine the legality of the military order requisitioning private Arab land on which the new settlement was to be built. That would have been the proper procedure if it could be correctly assumed that Judea and Samaria were indeed "occupied territories", within the ambit of Articles 42 and 43 of the Hague Regulations, but that was never the case since these territories are and have always been integral parts of the Jewish National Home, in regard to which Jordan was an illegal occupier and enjoyed no recognized sovereignty under international law. I found it extraordinary to read Justice Landau's comments (pp. 421-422 in Appendix A of your book) that the right of the Jewish People to establish settlements in Judea and Samaria rests, not on any law he strongly intimates, either internal law or international law, but rather on "Zionist doctrine" or ideology. Did Justice Landau never hear of the Law of Return enacted on 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 and the unbroken historical link of the Jewish People with the Land of Israel throughout the ages. How then was it possible for Justice Landau and the other judges who concurred with his opinion in the Elon Moreh Case to overlook the Jewish right of return to the Land of Israel as embodied in the Law of Return and say that this right of Jewish settlement rested solely on "Zionist doctrine" or ideology? What utter nonsense that shamefully ignores or renders inoperative the Jewish right to settle the Land of Israel! This half-truth of Justice Landau amounts to judicial misfeasance.

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, even at this extremely late date. If you wish to make amends, at least in part, for the incalculable damage you have caused in advising and urging the application of international and foreign law to Judea and Samaria instead of Israeli law, what you can now do is to renounce the position you adopted previously as to which law ought to have been applied to Judea and Samaria in 1967. Had the proper decision been taken back then by the Eshkol Government, it is reasonable to assume that Israel would not have been subjected in later years to all of the international pressure to "return" so-called "Arab land" to its "owners". For the sake of future generations, I ask you to recant your earlier position and correct the aberration of 1967 that led to the application of the Hague Rules and Geneva Convention to 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 
 

February 27, 2007.   APPLYING ISRAELI LAW TO AN AREA OF ERETZ-ISRAEL MAKES SUCH AN AREA AN INTEGRAL PART OF THE STATE OF ISRAEL

Howard Grief 
Attorney and Notary 
13/2 David Goitein St., 
Pisgat Ze'ev Mizrah, Jerusalem 97782 Israel 
Tel. (Fax) : 972-2-656-0085

Jerusalem 
9 Adar, 5767 -- February 27, 2007

Mr. Justice Meir Shamgar, 
President (Retired) of the Supreme Court, 
Rehov Shahar 12 
96263 Jerusalem

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 or Jerusalem. Were it not for this law, the question could arise, whether there is a direct appeal from the District Court in Jerusalem to the Supreme Court of the State, which commenced a few days ago.

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] Council this Ordinance..."

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 of 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 deniability that it was not violating this Resolution, but was merely applying Israeli law to create administrative unity between the area of the State of Israel, the borders of which were those proposed in the Partition Resolution, and the areas re-possessed by the IDF. But in applying Israeli law to these areas what was the practical and legal result? The re-possessed areas to which the AJPO applied were henceforth included in the borders of Israel even though this was not explicitly stated in this law. That is how western Jerusalem and Nazareth came to be included in the State and, as will be documented more fully below, this is the case with all other parts of the Land of Israel that came into the possession of the IDF as well. Justice Minister Rosen was at pains to deny that the new legislation contained political ramifications which could be interpreted as violating the Partition Resolution.

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 have become part of the State. Nor Nazareth. Nor Lod nor Ramla. Nor Beersheba. Nor Ashkelon and Ashdod. You would then be faced with the unsolvable question of what the legal status of these areas was after Israeli law and administration was applied to them. Certainly, such areas were then regarded as within the purview of the State and no one will contest that fact. As I said in my last letter to you, these areas of the Land of Israel and the Jewish National Home became part of the State by either of two methods:

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's "Area of Jurisdiction and Powers". If Rosen and his associates had not been deceptive, and refrained from using convoluted language, he would have called this law by a far more suitable name: a law of annexation, or a law to extend the borders of the State to encompass all areas of the Land of Israel re-possessed by the I.D.F.

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 applied its law to the held areas. That naturally had the effect of incorporating these areas into the State as soon as they became subject to Israeli law.

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 to the occupied territories even in the absence of any intention to annex them to the area of the state."

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 that was previously outside the borders of the State.

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 are of the opinion that the application of Israeli law to eastern Jerusalem resulted in its annexation. This view is represented by Professors Yehuda Zvi Blum, Amnon Rubinstein, Claude Klein, Menachem Hofnung and Asher Maoz. Dissenting from this view are Professors Yoram Dinstein, Leon Sheleff and the late Nathan Feinberg.

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 already applies. The "area" is, by definition, an "area of the State", otherwise this law would not make any sense at all. The very fact that the law provides for such a double majority in order for it to be passed means that the law is dealing with a subject of great importance, namely that of reducing the borders of the State by withdrawing an area from it, but not particularly limited to the Golan Heights. This law settles conclusively the question regarding the effect and result of applying or not applying Israeli law to an area within the State: on the one hand, the "application of law" to an area automatically makes that area a part of the State as seen in the context of the State of Israel's experience and history, and, on the other hand, by doing the very opposite, i.e., "withdrawing the application of law", to a particular area excludes that area from the State. That is as clear as I can enunciate this point which you have raised twice in your letters to me, concerning which your position is diametrically opposed to what I have just stated.

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" -- - shetah medinat yisrael - shetah ha-nimtza bit-hum shelitatah ha-ribbonit shel medinat yisrael

In my opinion, this would equate the "application of law" to an area of the State of Israel with the sovereign rule of Israel over that area. When this definition is read in combination with the 1999 law cited above, the area of sovereignty of the State is identical to the area where the law, jurisdiction and administration of the State of Israel is in force.

I have written elsewhere that Israeli sovereignty also extends to Judea, Samaria and Gaza, where in fact the corpus of Israeli law is not in force because the Government of Israel, acting through the Minister of Defense, failed to invoke the AJPO and Land of Israel Proclamation to these areas when they were repossessed in June 1967. Judea, Samaria and Gaza are integral parts of the Jewish National Home assigned to the Jewish People at the San Remo Peace Conference on 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 is an attack on the State itself, as is also the case if an Israeli embassy in a foreign country suffers an attack on its premises or property.

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 shall be joined to the State, and that this cannot be done by the Minister of Defense alone. It is true that this is what was said by the Minister of Justice, Ya'akov Shimshon Shapiro, when he introduced the bill to amend section 11 of the Law and Administration Ordinance of 1948. However, this was an innovation in the law, since prior to June 27, 1967, the date section 11B was enacted by the Knesset, all areas outside the U.N. Partition line that were joined to the State, such as western Jerusalem and Nazareth, were annexed by a proclamation issued in the name of the Minister of Defense, who acted in the name of the Government pursuant to the authority vested in the Minister by the AJPO. This is clear from the definition of the term "proclamation" in the Interpretation Ordinance (New Version) of 1967. This ordinance defines the term as "a proclamation -- minshar -- or declaration -- akhraza -- by or with the authority of the Government". Under the Interpretation Ordinance, a proclamation is also included in the definition of a "law" -- din -- as well as that of an "enactment" -- hikkuk -- and "regulation" -- takkana. Each of these acts of subordinate or secondary legislation is presumed to be an act of the Government, even though this is a rebuttable presumption, and if the act is not made or issued under proper authority it can be annulled by the courts. There can be little doubt that when Defense Minister Ben-Gurion issued the two proclamations in 1948, he was neither acting unilaterally nor illegally, but by or with the authority of his Government and in prior consultation with it.

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 and also in section 1 of Proclamation No.1 of the IDF Government in Jerusalem. In the legislative debate preceding the enactment of the AJPO, both Pinchas Rosen and Zerah Warhaftig spoke about the "held areas" in contradistinction to "occupied areas" to which the law and administration of Israel would be applied. The AJPO used a slightly different phrase in the text of the law, "any part of Palestine... held by the Defense Army of Israel", but it was equivalent to the term "held areas". Your use of the same term in 1967 was therefore only a continuation of the same phraseology begun in 1948.

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's "occupation" of so-called Arab territory under international law. The words "occupation", "occupied territories", "occupier", etc. have become the single greatest accusation hurled against Israel since 1967, not only by Arab states and their allies but also by the United Nations, the European Union and the United States, as well as by the unthinking Left inside the country. It was therefore an act of self-abasement and a self-inflicted wound to translate shetahim muhzakim into "occupied areas" or "occupied territories", instead of "held areas" of the Land of Israel that should have been annexed immediately to the State of Israel under the AJPO and Land of Israel Proclamation. If that had been done in June, 1967, no one would have called these territories "occupied", as they were recognized parts of the Jewish National Home that had been illegally detached in various partitions in the proceeding decades and were under illegal Arab (Jordanian and Egyptian) occupation.

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:

(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 wisely did not do so, thanks to Ben-Gurion and his two Proclamations of 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's rights to all of the Land of Israel. By applying the law of the State to western Jerusalem and other held areas of the Land of Israel, the Government warded off other possible claimants to these lands, namely, the UN vis-? -vis Jerusalem, Lebanon vis-? -vis Upper Galilee and Egypt vis-? -vis the Negev. It therefore mattered a great deal that international law was not applied in 1948 to the held areas by the Minister of Defense on behalf of the Government, but rather the law of the State.

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's administration to the "whole of the area". It constitutes further evidence that the held areas became part of the State, otherwise what right would Israeli officials or office-holders sitting in Tel-Aviv have either prior to September 22, 1948 when the AJPO became law or afterwards, to exercise their duties and powers in the held areas (including Jerusalem, Yaffo, Nazareth, Lod, Ramla, etc.) if these areas were not part of the State? If that was really so, as you maintain, then section 2 would constitute extra-territorial legislation, meaning that Israel would be exercising its sovereignty outside its own territory, contrary to international law. However, this is nonsense, since the held areas did truly become part of the State. Section 2 also applied to court proceedings and appeals taken from the Magistrate's Court in the held areas to the District Court or to the Supreme Court in the State of Israel, as stated by Minister of Justice Pinchas Rosen, in the legislative debate on this section.

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 re-possessed in the Six-Day War, on the centrality and significance of the precedent-setting Land of Israel Proclamation. In your letter dated 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, it will be conclusively demonstrated that your interpretation of the limited scope of the Proclamation is unfounded and my view of the open-ended nature of the Proclamation is justified.

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 and second that the Land of Israel Proclamation imposed the law of the State on the rest of the held areas. The held areas that Rosen specifically names in the legislative debate were Jerusalem and Nazareth, the former governed by the Proclamation of 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, which was re-possessed on 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...". Rosen rejected the proposed amendment on the ground that what Warhaftig wanted to include in the AJPO was exactly what the Jerusalem Proclamation and Land of Israel Proclamation had contemplated and therefore there was no need to repeat the same wording in the AJPO. The rejection of the proposed amendment is further substantiation that the Land of Israel Proclamation applied to all areas of the Land of Israel re-possessed by the IDF outside the borders of the Jewish State fixed by the U.N. in the Partition Resolution.

In addition to the foregoing evidence of the wide scope of the Land of Israel Proclamation, an analysis of the text of the Proclamation also confirms its extended applicability to all areas of the Land of Israel excluding Jerusalem. The opening words in the preamble of the proclamation state that "various areas in the Land of Israel are in the possession of the Israel Defense Forces". The phrase "various areas" is broad enough to cover all the held areas, not just Ramla and Lod. This phrase would not have been used if the intention had been to limit the meaning to only these two areas.

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 and 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 to the State of Israel should have been followed in 1967 when in fact Judea and Samaria and other areas of the Land of Israel came into the possession of the IDF as a result of the Six-Day War. But this was not done! The application of international law, instead of Israeli law, was a monumental violation of the existing constitutional law pioneered by Ben-Gurion and Rosen, a violation that had tragic consequences and severely weakened Israel's rights to the Land of Israel. What appears to be your legal advice to the Eshkol Government in bringing about this violation is a terrible stain on your good name that seems to call for an act of atonement on your part.

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, to which the law, jurisdiction and administration will apply by order of the Government becomes part of the State. I agree that this order does make such an area part of the State, but that is also what the AJPO does when a proclamation has been duly issued. Thus I do not understand why you attribute this result only to section 11B but deny it for the AJPO. That appears to me to be illogical.

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 laboured several decades as a distinguished Military Advocate General, Attorney General, Judge and President of the Supreme Court in propounding the view that bears your trademark, the view that the areas of Judea, Samaria, Gaza, the Golan Heights and Sinai re-possessed in 1967 were destined to be governed by international law and not by the law of the State. Though you think otherwise, I perceive that your legal perspective was not in accord with the constitutional structure created in 1948 in regard to expanding the borders of the State to encompass all of the Land of Israel as originally envisaged in various acts of international law in 1920 and 1922 and by David Ben-Gurion in the legislation he was responsible for enacting as Prime Minister and Defense Minister.

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 are governed by international law. This opinion of yours was, as already noted, apparently passed along to the Eshkol National Unity Government, and the State of israel has been burdened with its dire consequences ever since. The Government's acceptance of this advice created the occupation myth that is exploited daily by all Arab and Moslem states and by the Arabs of Israel, as well as a plethora of Jewish leftists who have been educated in accordance with your unfortunate view on the subject, to denounce Israel's control of Judea and Samaria or what is left of it today. If the occupation myth is ever to be ended, it will take a very courageous step by you personally that is also long overdue: to admit that the application of international law, specifically the application of the Hague Rules to Judea and Samaria in 1967, instead of Israeli law, was a colossal mistake that altered and badly damaged our constitutional structure for the unification of the Land of Israel under Jewish rule.

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 
 

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., Pisgat Ze'ev Mizrah, Jerusalem 97782 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 -- Judea and Samaria. 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 and made aliyah in 1989. He served as international law advisor to Professor Yuval Ne'eman, the then Minister of Energy and Infrastructure on matters pertaining to the Land of Israel and Jewish rights thereto. He is a Jerusalem-based attorney and notary, as well as a specialist in Israeli constitutional law. In October 1993, he wrote the first of several articles denouncing the illegal agreements Israel made with the PLO; these appeared in the pages of Nativ and elsewhere. He is the founder and director of the Office for Israeli Constitutional Law.

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 under International Law, which deal with his thesis in an orderly and comprehensive fashion

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 by Yoel Lerner, editor of The Grief Letters on September 2, 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 and Palestine under International Law" can be read here.]