Israeli researcher Gershom Gorenberg has an important new book coming out about the first decade of Israel’s pursuit of its settlement policy in the occupied territories, 1967-77. This recent piece in HaAretz tells us some of the important things in the book, which is titled “The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977.”
The HaAretz piece quotes Gorenberg as saying, “The title means that the Labor movement leaders had no organized plan to keep the territories, but even without a plan, they each made major decisions that when taken in aggregate, accidentally created the Israeli empire in the territories.”
The HaAretz piece indicates the degree to which the US administrations of those years underestimated the seriousness and intent of the Israeli settlement project.
In an article of his ownin Friday’s New York Times, Gorenberg focuses on one particular aspect of the early years of the settlement venture: the degree to which the Israeli governments of those years understood that the settlements were a violation of international law, but proceeded with building them anyway.
He writes:
- In early September 1967, Prime Minister Levi Eshkol was considering granting the first approval for settlements in the West Bank and Golan Heights, conquered three months earlier in the Six-Day War. An Arab summit meeting in Khartoum had rejected peacemaking. The prime minister believed that the Golan and the strip of land along the Jordan River would make Israel more defensible. He also wanted to re-establish the kibbutz of Kfar Etzion near Bethlehem, which had been lost in Israel’s 1948 war of independence.
The legal counsel of the Foreign Ministry, Theodor Meron, was asked whether international law allowed settlement in the newly conquered land. In a memo marked “Top Secret,” Mr. Meron wrote unequivocally, “My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention.”
In the detailed opinion that accompanied that note, Mr. Meron explained that the Convention — to which Israel was a signatory — forbade an occupying power from moving part of its population to occupied territory. The Golan, taken from Syria, was “undoubtedly ‘occupied territory,’ ” he wrote.
Mr. Meron took note of Israel’s diplomatic argument that the West Bank was not “normal” occupied territory, because the land’s status was uncertain. The prewar border with Jordan had been a mere armistice line, and Jordan had annexed the West Bank unilaterally.
But he rejected that argument for two reasons. The first was diplomatic: the international community would not accept it and would regard settlement as showing “intent to annex the West Bank to Israel.” The second was legal, he wrote: “In truth, certain Israeli actions are inconsistent with the claim that the West Bank is not occupied territory.” For instance, he noted, a military decree issued on the third day of the war in June said that military courts must apply the Geneva Conventions in the West Bank.
There is a subtext here. In treating the West Bank as occupied, Israel may simply have been recognizing legal reality. But doing so had practical import: if the land was occupied, the Arabs who lived there did not have to be integrated into the Israeli polity — in contrast to Arabs within Israel, who were citizens.
This is very interesting. I guess I never knew that Theodor Meron– a Holocaust survivor who went on to become a professor at New York University law school, then the president of the International Criminal Tibunal for Yugoslavia– had been the legal counsel to the Israeli Foreign Ministry in that critical period.
Gorenberg writes:
- Today a quarter-million Israelis live in the West Bank. Legal arguments cannot undo 38 years of settlement-building.
Well, yes and no. But neither can 38 years of Israel’s completely unilateral pursuit of its settlement-building project undo the whole body of international humanitarian law.
I think it’s excellent that Gorenberg has given new life to that judgment that Meron reached 39 years ago. It would of course have been great if Meron, today a very respected international jurist, had spoken out some more about this question throughout the intervening years, to reinforce the crux of what he wrote in that memo. I don’t recall hearing of him ever speaking out about it. I’ve read a number of his books on international humanitarian law, and don’t recall him ever dealing with the question of the status of the occupied territories as occupied territories or the illegality of building civilian settlements therein.
Maybe I should go and ask him about these things the next time I’m in The Hague…
the settlements were meant to protect israel from terrorism. Maybe they did for a time, but now they simply invite more of it and bascially keep al jezeera in business. If they were meant as a defensive block and not as part of israel anyway it’s time to pull the plug on them before someone does it for them. You don’t hav to be a genius to see that coming. The Israelis have proven they aren’t leaving. Though, admittedly it was an unusally rough hazing.
Actually, Israel could keep the settlements and remain a Jewish, democratic state simply by having very wiggly borders. In the US this is called jerrymandering. It is exactly what Israel is doing now. There is an argument that wiggly borders are not defensible. But Israel is defending them now.
If there is a permanent peace agreement then it doesn’t matter how wiggly the borders are. But the current borders are not compatible with a permanent peace agreement. Indeed, no border whatever will permit a permanent peace — it appears to be unachievable. So defensible borders are required.
In order to create borders compatible with the Geneva conventions, however, you would need to have peace treaties with Israel, Egypt, Jordan and Syria, as well as the Palestinians, should they become eligible to sign the Geneva Conventions.
The actual truth is that the situation in the West Bank and Gaza is a unique situation, not really covered in pre-existing treaties.
I found the articles very interesting. Apparently the Israeli government is, or has been, quite disorganized.
Israel’s obligations under the Geneva conventions have nothing to do with whether anyone else has signed them. Also, once you have peace treaties, you have permanent borders and peace and the Geneva Conventions (which are a jus in bello issue) no longer apply. Being jus in bello means precisely that it is before there is a peace that all parties are obligated to respect the conventions.
Letser, I’m not sure what you mean by “an unusually rough hazing”, or even about “keeping al-jazeera in business.” Have you ever watched Al-Jazeera?
For the past week, there have been many reviews and discussions of Gorenberg’s book at http://bookclub.tpmcafe.com/ with the author’s sometime participation. It’s worth a look. (Just noticed somebody mentioned Helena’s JWN post there at tpmcafe.)
Whether the Palestinians have signed the GCs or not is irrelevant to their applicability. What counts is that Jordan (and Syria) were signatories in 1967. Borders are not compatible or not with the GCs – that statement makes little sense. As Meron and Gorenberg make clear, that the GCs apply is and always was clear – especially once Israel said they did in Military Order 3, arguing otherwise was silly. Look up estoppel. Warren, of course there are borders compatible with peace and Israeli security(and acceptable to the Palestinians): The Green Line, or variants like those in the Geneva Accord, or those presented by the Palestinians at Taba 2001. These would be defensible, and the most defensible – and least wiggly – would be the Green Line. But Israel has consistently acted as if it preferred land to peace and security. Slowly Israel has been facing common sense. But fast enough?
Jonathan had an excellent entry on the issue of settlers (worldwide) back in 2004.
http://headheeb.blogmosis.com/archives/026994.html
What’s interesting is that the Israeli settlement project that, despite its length of time, appears to be one of the few ones that can be undone, at least partially.
I know Helena went to a conference in Beijing a few years back on the “Question of Palestine”. I wonder if the host nation felt the least bit embarassed hosting such a conference given its coercive settlement program in Tibet.
If Jordan, Egypt, Syria and Israel have all signed the Geneva Conventions then I suppose they apply. I am obviously not a lawyer.
I have a very skeptical view towards International Law. Basically, it doesn’t exist. There is no democratically elected legislature that passes laws with the consent of the governed. What exists are treaties among governments. For all the noise people make about “International Law” it hasn’t ever, to my knowledge, protected one Jew from anything.
The idea that Israel should treat the Palestinians as people who are occupied, and therefore have rights, only makes sense if the population is peaceful. No nation, in wartime, sensibly gives “Rights” to the enemy population. I obviously have not read the Conventions but I would love to know what they say about peacetime and wartime situations.
No nation, in wartime, sensibly gives “Rights” to the enemy population.
The whole point of human rights is that all humans have them, and times of war – when the state and its agents are least restrained – are precisely when laws to protect human rights are most important. It isn’t even necessary to look to international humanitarian law for this principle. All civilized nations have laws to regulate the conduct of armies during war and occupation, and the sources of the Geneva Conventions include synthesis of national laws on this subject.
If Jordan, Egypt, Syria and Israel have all signed the Geneva Conventions then I suppose they apply. I am obviously not a lawyer.
Seems to me it’s a bit more complicated then that. Article 2 of GC4 states it applies only in conflicts between signatories. As per Article 4, nationals of non-signatory states are not protected (except for Part II of GC4).
In this case, the West Bank was annexed by Jordan. However, if that annexation was legal, then Israel would have precedent on its side in annexing part or all of the Territories; if it isn’t, the residents there were not Jordainian nationals and therefore GC4 does not apply.
The Gaza Strip was never annexed by Egypt, so GC4 doesn’t apply there either.
As I recall, while Israel has used (as per the military order you cited) the GC in the Territories, its position is that it did so “Above the requirements of the law”; IOW, it used the GC as a template for its own rules, but that’s not the same as acknowledging it as legally binding.
Israel’s obligations under the Geneva conventions have nothing to do with whether anyone else has signed them.
Legally and practically, if the other party has not signed the conventions, then they don’t apply and won’t be observed.
Jonathan
We observe that enemy populations in wartime are routinely bombed, relocated, dispossessed, et cetera. However, I was trying to refer to the rights of occupied people. You don’t have the special rights of occupied people if you are actively at war with the occupation — you only have the rights of an an enemy population, which you described.
In the case of Palestinian terrorists and guerillas, who themselves flout every law, convention and rule — they can be treated accordingly. The rights of the Palestinians during the Second Intifada cannot be the same as during previous periods of peace. Even if you disagree, you will observe that they are not the same in practice.
“You don’t have the special rights of occupied people if you are actively at war with the occupation”
Wrong– under international law occupied people may fight back against the occupiers. For that matter international law places constraints on the conduct of two armies when they fight.
“In the case of Palestinian terrorists and guerillas, who themselves flout every law, convention and rule”
Actually Palestinian resistance began as a non-violent movement. The Israelis responded to this in the usual colonial way with extreme brutality; protesters were shot, collective punishment was imposed, brutal torture and arbitrary detention were employed and so on.
Throughout their history Israelis have sought to provoke the Palestinians and their Arab neighbors into a military confrontation. The Israelis know that they will prevail in such a contest because of their more advanced military. Israel is an expansionist state and this is their strategy for expansion.
Under the laws of war, both the Israelis and Palestinians can beat each other to a bloddy pulp if they so choose. But that’s not really the point. The point is what steps can be taken to decrease the violence.
Obviously the best way to resolve this is a negotiated peace agreement between the two sides. In the absence of that, Israel has effectively taken unilateral steps in the past few years that have reduced the bloodshed on both sides. Remember that in 2001, you had suicide bombings as a regular occurrence.
A series of steps, including Operation Defensive Shield, the assassination of major terror figures, and the “apartheid wall” have ultimately led to a reduction in the total amount dead. The jury is still out on the Gaza withdrawal and whether it is helping or hindering overall security (I support it in any case, since Gaza will clearly be part of a Palestinian state eventually, so Israel had to pull settlers out sooner or later).
This is clearly not the optimal way to resolve this, but it looks like there may be more of the same over the next few years. Not pleasant, but better than what we saw in 2001.
The UN Security Council has been very clear in its interpretation of international law and the application of the Geneva Conventions in the Occupied Territories. Here are just a few examples of the many that can be cited:
UNSC resolution 452 (1979) “Calls upon the Government and people of Israel to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem”
UNSC resolution 465 (1980) begins by “Affirming once more that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem”
and
“Determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel’s policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East”
UNSC resolution 605 (1987) “Calls once more upon Israel, the occupying Power, to abide immediately and scrupulously by the Geneva Convention relative to the Protection of Civilian Persons in Times of War, and to desist forthwith from its policies and practices that are in violations of the provisions of the Convention.”
helena- by “hazing” I meant that maybe now after 50 some years, the arabs may understand that the jews really mean it when they say thwey are coming back for good. That perhaps the earlier wars were attempts at “aborting” the creation of a european looking jewish state.
as far as “keeping al jezeera in business” I meant the violence that results from the israel expansion into the disputed areas creates potent visual images easily used against israel. I realize al jezeera is a serious news organization perhaps al manar would have been a better example.
edq
Since you claim Palestinian resistance began as a non-violent movement, would you care explaining when it shifted to violent tactics? That date (if it exists) is certainly not after the start of the second intifada. It isn’t after the first. It isn’t after 1967 (or 1948, for that matter) either.
And even if Palestinians have the right to resist, that doesn’t absolve them of the effects of that choice. Remember that the laws of war deal with how a war is fought, not why.
Eyal- from an american perspective, I can tell you it doesn’t really matter what tactics anyone uses. if Israel doesn’t go back to the 67 borders we get another 9/11. if israel had any decency they would refuse the aid our hapless leaders throw at them year after year, their personal oil well.
Eyal, issues of sovereignty and annexation are essentially irrelevant to the Geneva Convention and to the nationality of the Palestinians. The drafters were very careful to phrase the convention so such issues are irrelevant, and so that stateless people are covered. Basically nobody is or was a non-signatory, so that is a pointless issue.
You may be groping toward the “no sovereign reversioner” argument against the applicability of the conventions, the main and strongest argument against it, which however is still quite frivolous, as it relies on a purposeful misreading of article 2. See the convention’s commentary at the ICRC site and the ICJ decision for definitive references to the negotiation history that succinctly show that this misreading was not intended by the drafters.
As I recall, while Israel has used (as per the military order you cited) the GC in the Territories, its position is that it did so “Above the requirements of the law”;
IOW, it used the GC as a template for its own rules, but that’s not the same as acknowledging it as legally binding.
No, this is not at all true, that is why government apologists never mention these revoked orders – they make a very weak case just plain ridiculous. The military orders in force for a short time were quite clear, and stated that the GCs superseded any contradictory military order. You may be confusing them with later court decisions and positions of the Israeli government which are used to avoid the application of the convention – that Israel will apply the (unspecified) “humanitarian” parts of the convention (humanitiarian in its entirety), in this “above the requirements”(which are held only to be the Hague Regulations) way. Really, the arguments that the GCs apply are so strong that there is not the slightest possibility that Israel’s lawyers who argue they don’t actually believe what they are saying – it would be insulting to their competence to imply it. For instance, when people talk about rights of resistance to occupation stemming from the more controversial protocols to the GCs, there is something to talk about, but everyone knows the arguments against applicability of the 1949 convention are just jokes.
Dunno what edq means exactly, but the first intifada was basically nonviolent. Historically speaking, what is striking is how little violence there was emanating from the territories for such a long time – at least that was the opinion of their first governor, Moshe Dayan.
Mike Furir Mike 306
Mike Furir Mike 396