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The Missing Argument: The Article that Changed the Course of History?

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Abstract

In July 1967, one month after Israel's occupation of the West Bank, Gaza Strip, Sinai Peninsula, and Golan Heights, Israel's Military Advocate General (MAG), Colonel Meir Shamgar, appeared before a Knesset committee to discuss the Israel Defense Forces (IDF)’s duties in the areas under its control. Col. Shamgar had led the MAG Corps in the preparations in the event that a future war would find the army occupying beyond Israel's borders. Col. Shamgar began his presentation by stating: In terms of the legal background, our point of departure is that we have to respect both the fundamental pursuits of the State of Israel as its military forces begin to control an area that has been liberated by the IDF, and the rules of public international law that apply to the actions of any military in control of an area that was, until its entry, subject to the sovereignty of a foreign political entity. The guiding rules in this realm are the rules of public international law, which are reflected in The Hague Regulations of 1907 … and in the … Fourth Geneva Convention on the Protection of Civilians in Times of War.
SYMPOSIUM ON REVISITING ISRAELS SETTLEMENTS
THE MISSING ARGUMENT: THE ARTICLE THAT CHANGED THE COURSE OF
HISTORY?
Eyal Benvenisti*
In July 1967, one month after Israels occupation of the West Bank, Gaza Strip, Sinai Peninsula, and Golan
Heights, Israels Military Advocate General (MAG), Colonel Meir Shamgar, appeared before a Knesset committee
to discuss the Israel Defense Forces (IDF)s duties in the areas under its control. Col. Shamgar had led the MAG
Corps in the preparations in the event that a future war would nd the army occupying beyond Israels borders.
1
Col. Shamgar began his presentation
2
by stating:
In terms of the legal background, our point of departure is that we have to respect both the fundamental
pursuits of the State of Israel as its military forces begin to control an area that has been liberated by the
IDF, and the rules of public international law that apply to the actions of any military in control of an area
that was, until its entry, subject to the sovereignty of a foreign political entity.
The guiding rules in this realm are the rules of public international law, which are reected in The Hague
Regulations of 1907 and in the Fourth Geneva Convention on the Protection of Civilians in Times of
War.
In line with this approach, on August 11, 1967, Israels West Bank Military Commander issued the Order
Concerning Security Provisions. The Order stipulated (in Article 35) that,
The Military Courts and the Military Courts Administration shall observe the provisions of the Geneva
Convention of August 12 1949 Relative to the Protection of Civilian Persons in Time of War in any matter
connected with judicial proceedings. In any contradiction between this Order and the said Convention, the
provisions of the Convention shall prevail.
However, as Beni Rubin notes,
3
[l]ess than ve months later, on 29 December 1967, Art. 35 was repealed. This
change of heart was based on an article published by Yehuda Blum.
* Whewell Professor of International Law at the University of Cambridge. Thanks to Beni Rubin and Eliav Lieblich for their comments and to Yuval Spitzer
for research assistance.
1
Meir Shamgar, Legal Concepts and Problems of the Israeli Military Government The Initial Stage, in MILITARY GOVERNMENT IN THE TERRITORIES
ADMINISTERED BY ISRAEL, 19671980: THE LEGAL ASPECTS 1, 13 (Meir Shamgar ed., 1982); DAVI D KRETZMER,THE OCCUPATION OF JUSTICE
32 (2002).
2
Transcript No. 126 of the Constitution, Law and Justice Committee session (July 5, 1967).
3
Benjamin Rubin, Israel, Occupied Territories,in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (Rüdiger Wolfrum ed., 2009).
Kretzmer also attributes the change of heart to Blums article (Kretzmer, supra note 1, at 33).
doi:10.1017/aju.2017.18
The American Society of International Law and Eyal Benvenisti © 2017. This is an Open Access article, distributed under the terms
of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use,
distribution, and reproduction in any medium, provided the original work is properly cited.
31
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The article, The Missing Reversioner: Reections on the Status of Judea and Samaria,was written by a young
Lecturer at the Hebrew University of Jerusalem and published in the Faculty of Laws English version law journal.
4
In 1971, now the Israeli Attorney General, Meir Shamgar elaborated on what would become Israelsofcial
position. Shamgar began his essay by warning himself and his audience against the great difculty in approaching
problems connected with the actual implementation of the rules of warfare without inuence by innate prejudices
or deep-seated subjective outlook.
5
But the view he offered might not have been devoid of the same concerns.
Arguing that the West Bank (or in his words, Judea and Samaria) and Gaza were not occupied territories,
Shamgar invoked the said article by Blum, and concluded that [t]he territorial position [of the West Bank and
Gaza] is thus sui generis and the Israeli government tried therefore to distinguish between theoretical juridical
and judicial problems and the observance of the humanitarian provisions of the Fourth Geneva Convention.
6
The same conclusion applied, in Shamgars view, to the applicability of the Hague Regulations.
7
Shamgar incorporated Blums slender but tantalizing thesis almost in its entirety into his essay. In fact, nested
within a twenty-three-page article, Blums argument was merely one paragraph long.
8
Blum presented his provoc-
ative thesis as if it were self-evident, and perhaps therefore not worthy of extended and rigorous examination.
The article, ostensibly devoted to an examination of the lawfulness of a military order under the law of occu-
pation, actually explored a preliminary questionwhether Jordan had valid title to the West Bank (referred to as
Judea and Samaria). Concluding that Jordan had no title, Blum continued effortlessly to nd, clear[ly] from the
preceding discussion,that the law of occupation did not apply. Blum stipulated that there were two conditions
(which he called assumptions) for the applicability of the laws of occupationthe existence of reversionary
rightsof the ousted legitimate government to the territory in question, and the occupiers lack of territorial claims
over the area under its control. Having refuted the rst condition in his preliminary assessment of Jordans title, he
concluded that those rules of belligerent occupation directed to safeguarding that sovereigns reversionary rights
ha[d] no application
9
to Israels control of the West Bank and, for similar reasons, also to Gaza.
In a long footnote, Blum alludes to the far-reaching implicationsof his conclusion, namely that [s]ince in the
present view no State can make out a legal claim that is equal to that of Israel, this relative superiority of Israel may
be sufcient, under international law, to make Israel possession of Judea and Samaria virtually indistinguishable
from an absolute title, to be valid erga omnes.
10
This argument implies that the occupier can evade its responsibil-
ities by unilaterally asserting its relative superior title to that of the ousted government. This view undercuts the
purpose of the law of occupation, namely to preserve the legal status quo until an agreement is reached.
While Blum acknowledged that the part of the law of occupation which is intended to safeguard the human-
itarian rights of the populationdid apply,
11
he failed to identify the scope of those humanitarian rights.In a
footnote, Blum refers to Article 47 of the Fourth Geneva Convention to prove the severability of the rules of a
humanitarian nature from those protecting the ousted sovereigns reversion,
12
but Article 47 is not about the
severability of rights and duties; just the opposite. Indeed, the whole point of Article 47 is to insist on the
4
Yehuda Z. Blum, The Missing Reversioner: Reections on the Status of Judea and Samaria,3ISR.L.REV. 279 (1968).
5
Meir Shamgar, The Observance of International Law in the Administered Territories,1ISR.Y.B.HUM.RIGHTS 262 (1971).
6
Id. at 266.
7
Id. at 266.
8
Blum, supra note 4, at 293.
9
Id.
10
Id. at note 60.
11
Id. at 294.
12
Id. at 294, note 59.
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nonseverability of protection, ensuring that [p]rotected persons who are in occupied territory shall not be
deprived, in any case or in any manner whatsoever, of the benets of the [Fourth] Convention.
13
There are
no qualications: all the benets, in all circumstances: even if the occupier introduces changes into the institutions
or government of the said territoryor even annexes it.
14
This reading is fully consonant with the raison dêtre of the
Fourth Geneva Convention which, as its title suggests, is about the protection of civilian persons in time of war
(and not the protection of their ousted government). The Fourth Geneva Convention is all about, and only about,
humanitarian rights,and the lack of a lawful reversioneris beside the point.
The ramications of the ostensible distinction between the humanitarian rights of the population and the rights
of the lawful sovereign would become clear only a decade later. Then, under a Likud government, Israel contended
that Article 49 of the Fourth Convention, which prohibited the transfer of the occupiers own civilians to occupied
territories, was intended to protect the rights of the legitimate sovereign,hence [did] not apply in respect of
Jordan,and therefore did not prohibit Jewish settlements.
15
Blum, now the Israeli Ambassador to the United
Nations, asserted during a Security Council debate on March 13, 1979 that [w]e do not regard ourselves as for-
eigners in those areas. The Israeli villages in Judaea, Samaria and the Gaza District are there as of right and are there
to stay.
16
Blum sought to assure the audience that no Arab inhabitants have been displaced by the establishment
of the villages in question.
17
To support Blums thesis, his article refers only to one authority, Gerhard von Glahns treatise, The Occupation of
Enemy Territory.
18
But the reference hardly supports Blums conclusion. Blum draws on von Glahns use of the term
to the sovereign, the legitimate government of the occupied territoryand seeks to draw from it that the ousted
government must have a valid title over the area to be legitimate.But this was not von Glahns view at all.
Throughout his book, von Glahn refers to the legitimate governmentor the legitimate sovereignto distin-
guish it from the occupier (von Glahn was obviously relying on the text of Article 43 of the Hague Regulation
19
that refers to [t]he authority of the legitimate powerto emphasize that the passing of that authority in factto the
occupier does not assign to the latter any legal title). Von Glahn never recognizes an occupation of a territory, to
which title is disputed, as a distinct type of occupation.
20
The quote from von Glahns book that Blum relies upon is taken out of a special chapter devoted to The Legal
Status of Defeated Germany.In this chapter, von Glahn singles out the unique situation of Germany after its
unconditional surrender in 1945. Von Glahn does not discuss relative claims to title but an entirely different mat-
ter: the situation of debellatio, when the ousted government ceases to exist. In other words, von Glahns quote was
taken out of its context.
What for von Glahn is a unique and most perplexing legal controversythat merits a separate chapter becomes
for Blum the one example to support his thesis. What for von Glahn were [f]our major schools of thought
13
Geneva Convention relative to the Protection of Civilian Persons in Time of War art. 47, Aug. 12, 1949, 75 UNTS 287.
14
Id.
15
Israeli Ambassador to the UN Chaim Herzog before the General Assembly of the United Nations on October 26, 1979, cited in
Nissim Bar-Yaacov, The Applicability of the Laws of War to Judea and Samaria (The West Bank) and to the Gaza Strip Israel Law,24ISR.L.REV.
485, 488 (1990).
16
UN SCOR (Provisional), 34th Sess., 2125th mtg. at 36, UN Doc. S/PV.2125 (Mar. 13, 1979).
17
UN SCOR, 34th Sess., 2131st mtg. at 11, UN Doc. S/PV.2131 (Mar. 19, 1979).
18
GERHARD VON GLAHN,THE OCCUPATION OF ENEMY TERRITORY (1957).
19
Article 43: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the
measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the
laws in force in the country.
20
VON GLAHN,supra note 18, at 27, where he discusses various types of occupations.
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[which] have developed among the numerous writers who have speculated on the legal status of post-surrender
Germany
21
becomes for Blumwho relies again only on von Glahn on this point—“a considerable number of
authors [who] have taken the view that when the last Government of the Third Reich was dissolved the
Hague Regulations as such ceased to apply to that situation, since German sovereignty ceased to exist.
22
It turns out, however, that the argument that Germany had ceased to exist at the end of the war, while supported
by an impressive line of authorities, was not beyond serious dispute. While the Alliestitle to Germany was not
challenged, its seemingly logical consequence, namely the inapplicability of the law of occupation to the adminis-
tration of the territory, was convincingly contested, especially by German scholars.
23
They emphasized the pre-
dicament of the population under what actually was alien domination. Formal legal principles aside, they argued,
international law must not abandon its concern for the local population only because the national institutions had
disappeared. Max Huber, a towering gure in international law and the then president of the International
Committee of the Red Cross, voiced his discomfort with the Allied legal claim in a letter to U.S. Secretary of
State James F. Byrnes:
Unconditional surrender of the German and Japanese forces which resulted in their laying down arms with-
out the special reservations usually inserted in armistice conventions, does not ipso facto imply that the
capitulating power abandons all claim to the benets of the Hague and Geneva Conventions in favor of
its nationals.
24
The drafters of the Fourth Geneva Convention sought in 1949 to clarify the scope of protection of inhabitants
in occupied territories. They did so in Article 2 of the convention. As von Glahn points out, this article represents
adenite and, in the opinion of this writer, successful attempt to void some of the shortcomings of the Hague
conventions and Regulations.
25
Blum does not refer to von Glahn on this point, nor does he even mention Article
2. But this Article is pertinent as it stipulates that
the present Convention shall apply to all cases of declared war or of any other armed conict which may
arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one
of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High
Contracting Party, even if the said occupation meets with no armed resistance.
The famous debate about Israels narrow interpretation of Article 2 in regard to the West bank and Gaza
(namely whether the reference to the territory of a High Contracting Partysignies a condition that the ousted
government must have valid title over the territory) did not begin with Blums article. This claim was elaborated for
the rst time more than a decade later by Shamgar, by now the Deputy President of the Israeli Supreme Court,
soon to become its President.
26
Blums argument reects the understanding in the early days of the crystallization of the concept of occupation,
when the occupation regime was designed as a pact between state elites, promising reciprocal guarantees of polit-
ical continuity.
27
In those days, the complete subjugation of territory might assign title to the conqueror (based on
21
Id. at 276.
22
Blum, supra note 4, at 293.
23
EYAL BENVENISTI,THE INTERNATIONAL LAW OF OCCUPATION 162 (2d ed., 2012).
24
Id. at 163.
25
VON GLAHN,supra note 18, at 20.
26
Shamgar, supra note 1, at 34.
27
BENVENISTI,supra note 23, at 71.
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the doctrine of debbelatio). But even such early understanding of the regime would eschew the view that a claim for a
relative better title could undermine the temporary measure that the concept of occupation was designed to provide.
But Blums article was written in 1967, long after the claim of debbelatio was rejected in the context of World War
II occupations (the recognition of governments in exile, the status of Germany and Japan) and long after it was laid
to rest by Article 2 of the Fourth Geneva Convention.
28
By 1967, the right of peoples to self-determination had
gained the status of a legal right, and human rights of individuals have been inscribed in solemn declarations and
covenants. During that period, the ousting of a government could no longer divest the inhabitants of an occupied
area of their entitlement.
Was Blums article an exercise in what some today would call lawfareor a serious effort to approach the prob-
lem without inuence by innate prejudices or deep-seated subjective outlook? All one can conclude from revis-
iting Blums text is that it offered less than a serious effort to elucidate the legal questions. His brief argumentation
leaves out too much to enable an informed assessment of the underlying claim. Did the article inuence Israeli
decisionmakers or has it served as an apology for their preferred agenda? It would be distressing to think that
indeed it was this article that was responsible for the legal about-face in 1967.
28
BENVENISTI,supra note 23, at 161164.
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Book
Full-text available
It has been over 50 years since the beginning of the Israeli occupation of the Palestinian Territories. It is estimated that there are over 600,000 Israeli settlers living in the West Bank and East Jerusalem, and they are supported, protected, and maintained by the Israeli state. This book discusses whether international criminal law could apply to those responsible for allowing and promoting this growth, and examines what this application would reveal about the operation of international criminal law. It provides a comprehensive analysis of how the Rome Statute of the International Criminal Court could apply to the settlements in the West Bank through a close examination of the potential operation of two relevant Statute crimes: first, the war crime of transfer of population; and second, the war crime of unlawful appropriation of property. It also addresses the threshold question of whether the law of occupation applies to the West Bank, and how the principles of individual criminal responsibility might operate in this context. It explores the relevance and coherence of the legal arguments relied on by Israel in defence of the legality of the settlements and considers how these arguments might apply in the context of the Rome Statute. The work also has wider aims, raising questions about the Rome Statute’s capacity to meet its aim of establishing a coherent and legally effective system of international criminal justice.
Article
The July 2017 issue of the Israel Law Review celebrated the fiftieth anniversary of its publication, and for that occasion selected five articles (one for each decade) which, in the Editors’ view, ‘had a lasting impact on scholarly debate and beyond’. For the first decade the Editors chose my article ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria’, which appeared in the July 1968 issue, and asked Professor Eyal Benvenisti to comment on my piece, which he did under the title ‘An Article that Changed the Course of History?’ Not unexpectedly, Benvenisti has made a frontal attack on the central thesis of my article, which he reproduced in virtually identical language in the April 2017 issue of the American Journal of International Law .
Article
In her instructive article, Professor Lapidoth discussed, inter alia , the applicability of the laws of war to the territories administered by the Israel Defence Forces since the Six Day War of 1967. Being in full agreement with Professor Lapidoth that from the legal standpoint the situation is in need of improvement, I wish to deal more extensively with two questions: (1) What is the position of the Government of Israel regarding the applicability to Judea and Samaria and to the Gaza Strip of the Hague Regulations of 1907 respecting the Laws and Customs of War on Land, and of the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War? (2) What is the position of the Supreme Court with regard to the applicability of the Regulations and the Convention to these territories.
The Applicability of the Laws of War to Judea and Samaria (The West Bank) and to the Gaza Strip Israel Law, 24 ISR
  • Gerhard Id
  • Von
  • The Glahn
  • Occupation
  • Of
  • Territory
Id. 15 Israeli Ambassador to the UN Chaim Herzog before the General Assembly of the United Nations on October 26, 1979, cited in Nissim Bar-Yaacov, The Applicability of the Laws of War to Judea and Samaria (The West Bank) and to the Gaza Strip Israel Law, 24 ISR. L. REV. 485, 488 (1990). 16 UN SCOR (Provisional), 34th Sess., 2125th mtg. at 36, UN Doc. S/PV.2125 (Mar. 13, 1979). 17 UN SCOR, 34th Sess., 2131st mtg. at 11, UN Doc. S/PV.2131 (Mar. 19, 1979). 18 GERHARD VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY (1957).
The Applicability of the Laws of War to Judea and Samaria (The West Bank) and to the Gaza Strip Israel Law, 24 ISR. L. REV 16 UN SCOR (Provisional), 34th Sess., 2125th mtg
  • Nissim Bar-Yaacov
Nissim Bar-Yaacov, The Applicability of the Laws of War to Judea and Samaria (The West Bank) and to the Gaza Strip Israel Law, 24 ISR. L. REV. 485, 488 (1990). 16 UN SCOR (Provisional), 34th Sess., 2125th mtg. at 36, UN Doc. S/PV.2125 (Mar. 13, 1979). 17 UN SCOR, 34th Sess., 2131st mtg. at 11, UN Doc. S/PV.2131 (Mar. 19, 1979). 18 GERHARD VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY (1957).
  • Gerhard Von Glahn
GERHARD VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY (1957).