The Origin of the Occupation Myth

T. Belman. No one knew the law as it pertains to the territories better than Howard Grief, now deceased. Essentially, Shamgar gave them away just as Moshe Dayan gave away the Temple Mount. Imbeciles.

(Attorney) Howard Grief

Israel is always unjustly condemned by the United Nations as an occupier of “Arab land” in regard to Judea, Samaria and Gaza.  This condemnation that has no basis in either fact or law. This pernicious myth has provided the UN with the necessary pretext to intervene constantly in the internal affairs of these Jewish lands.

Astonishing as it may seem, this myth was created by Israel’s own legal establishment: (1) the Supreme Court; (2) the Attorney-General’s Office; (3) the Ministry of Justice; (4) the International Law section of the Israel Defense Forces (IDF), and (5) the Law faculties of Israel’s universities.

The individual who bore the greatest responsibility for this myth was Meir Shamgar.  Shamgar was Military Advocate-General from 1961 to 1968, and later the Attorney-General of Israel and the President of the Supreme Court. He was behind the decision made by Levi Eshkol’s National Unity Government during the Six Day War to apply not Israeli law but the laws of war to all the liberated Jewish territories, namely, the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949.  This application was completely inappropriate given the historical connection of these territories to the Jewish People and their legal inseparability from the Jewish National Home.

What moved Meir Shamgar to invoke the laws of war? He described what he did without providing the rationale for doing so in an article he wrote called, “Legal Concepts and Problems of the Israeli Military Government – the Initial Stage”. Shamgar claimed that military government based on international law relating to occupied territories was the proper course to follow in regard to Judea, Samaria, Gaza, Golan and Sinai. He referred to these territories as “enemy territory” or “occupied enemy territory”.

He never called them “liberated territories of the Jewish National Home”, which was their true legal status under international law after their liberation from the illegal Jordanian and Egyptian occupation.  He formulated his plan in the early 1960s, hence before the Six Day War.. He did this to avoid the situation of a supposed legal vacuum that had prevailed in Sinai after Israel’s lightning victory in the 1956 war, when no plan existed for the legal administration of the Sinai during Israel’s three month stay there.

As a result of Shamgar’s ill-conceived plan, a regime of military government based on Articles 42 and 43 of the Hague Regulations of 1907 was immediately established after Israel’s victory on three fronts in the Six Day War.  Military Government was defined by Shamgar as “the form of government established by a country which has occupied enemy territory, whether the [occupied land] was formally under the sovereignty of such enemy …”

The setting up of a military government for all the liberated territories of the Land of Israel formerly under illegal Jordanian or Egyptian occupation was incredible. Its effect was to delegitimize or deny the rights of the State of Israel to permanently govern these precious Jewish territories recognized by the Principal Allied Powers in 1920 as belonging to the Jewish People.

Prime Minister Menahem Begin erred grievously in 1978 when, during the peace negotiations with Egypt at Camp David, he did not challenge President Anwar Sadat’s false assertion that Sinai was “sacred Egyptian soil” though it was nothing of the kind. Begin let Israel’s right to Sinai be lost by default. His costly blunder resulted in Israel’s complete and unnecessary withdrawal from Sinai that has had a long and important historical connection with the Jewish People.

Shamgar was apparently not adequately familiar with some of the cardinal legal documents in the post World War I period, which affirmed Jewish legal rights and title of sovereignty to all of Palestine, as the Jewish National Home, namely the Smuts Resolution of January 30, 1919 which became Article 22 of the Covenant of the League of Nations; the San Remo Resolution of April 25, 1920; the Franco-British Boundary Convention of December 23, 1920; the Mandate for Palestine confirmed on July 24, 1922; and finally the Anglo-American Convention of December 3, 1924.

What is even more puzzling and legally very grave, was the manner in which Shamgar overlooked or neglected two fundamental Israeli constitutional laws that exclusively governed the post-Six Day War situation.  One was the Area of Jurisdiction and Powers Ordinance used in 1948.   This applied the law of the State of Israel to territories of the Land of Israel repossessed by the IDF in the War of Independence and in the Six Day War.  The other law was the Law of Return, which entitled Jews to settle in all parts of the Land of Israel under Israel’s expanded jurisdiction.

The fact that Israel never incorporated Judea, Samaria and Gaza into the State and is now viewed by foreign opinion and most jurists in Israel as “occupied territory”, is directly traceable to the Government’s implementation of Shamgar’s plan.

The tragic mistake and violation of law committed by Shamgar has been made worse by two recent Supreme Court judgments, rendered by the President of the Supreme Court Aharon Barak.  Barak ruled, contrary to Israeli and international law, that Judea, Samaria and Gaza are indeed territories held by Israelunder “belligerent occupation”.  Barak did not—and of course could not—specify the states or people whose land Israel has been occupying or when such states or people were recognized under international law as having the sovereign right to Judea, Samaria and Gaza.

Barak’s rulings bind the Government of Israel, unless overturned by legislation.  His rulings give great comfort to Israel’s domestic and foreign enemies and detractors.  They are even more damaging than the non-binding, non-enforceable advisory opinion of the International Court of Justice (ICJ) in the case involving the legality of Israel’s security fence being constructed in Judea and Samaria.

The ICJ is the principal judicial organ of the UN.  In a biased and false reading of international law, the Court declared on July 9, 2004 that the security fence is illegal. It disregarded the fact that the whole of Palestine was set aside by international law in 1920 and 1922 as the Jewish National Home. The relevant documents of international law were ignored.

At the same time, the ICJ recognized the fictitious national and political rights of a fictitious nation that calls itself “the Palestinians”, a term that identified the Jews of Palestine prior to 1948, and was scornfully rejected by the Arabs of the country. The ICJ further stated that Judea and Samaria are “OccupiedPalestinian Territory” and that Israel has the status of an “Occupying Power”.

This opinion gives the Arabs a public-relations bonanza, but has absolutely no legal validity. It reflects only the baseless views of the Arab League and the “Palestinian Authority” as well as the dozens of Islamic nations represented at the UN.

Yet this unconscionable advisory opinion has been praised by the most revered figure in Israel’s judiciary, Aharon Barak.  Barak even said he could see the possibility in the not-too-distant future when the State will base many of its arguments [apparently concerning the route of the fence] on the IJC opinion.  Never has Shamgar’s 1967 folly reached such heights of absurdity!

If Israel’s leading jurists treat Judea, Samaria and Gaza as “occupied territories” and discount Jewish legal rights and title of sovereignty over them, or believe such rights do not exist at all, little can be expected from leaders and media figures in foreign countries who have expressed themselves in a similar manner or have maliciously accused Israel of “stealing” the land of another people.

The tremendous legal and political harm which these jurists have caused to the Jewish legal case cannot be rectified or reversed in a single stroke. However, a beginning can certainly be made to overcome this damage by having the Knesset pass a special law declaring that Judea, Samaria and Gaza are definitely not occupied territories, but rather the patrimony of the Jewish People.