The Origin of the “Occupation” Myth

The Origin of the “Occupation” Myth

Howard Grief

The pernicious myth that the State of Israel has been an Occupier of “Arab lands” since the Six-Day War, comprising Judea, Samaria and Gaza, the Golan and Sinai, originated, astonishingly enough, with the legal establishment of the State, which could not fathom the fact that all these territories were either integral regions of the Jewish National Home or historically connected with the Land of Israel. The jurist whose thinking on the subject principally led to the spread of this evil myth was Meir Shamgar, the Military Advocate-General from 1961 to 1968, subsequently the Attorney-General and President of the Supreme Court. In the early 1960s he conceived of a plan of action to be implemented in the event that Israel conquered what he called “enemy territory” from the surrounding Arab states. Under that plan, it was decided that the rules of international law concerning warfare would be applied to any such territory instead of Israeli law. To this end, he conducted special training courses for platoon officers of the Military Advocate’s Corps to familiarize these officers with the laws of war, particularly the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949, which they carried with them in “movable emergency kits”. In addition, Shamgar prepared a manual for the military advocate giving precise instructions and guidelines for the IDF to follow.

Shamgar’s plan came to fruition in the Six-Day War when it was adopted by the Levi Eshkol National Unity Government. A four-pronged military government was set up to administer all the Jewish territories liberated from Arab rule in 1967. The decision to set up a regime of military government for these territories rather than to apply Israeli law is the reason why the territories were logically considered “occupied territories” by neutral or even friendly foreign opinion, as well as by a large segment of Israeli society. The irony of the situation created by the Six-Day War was that Israel was never obliged to apply the laws of war to what were constituent parts of the Jewish National Home and Land of Israel, since several international law documents dating back to 1920 and 1922 had already recognized exclusive Jewish legal rights over them. Moreover, two important Israeli constitutional laws required the immediate application of Israeli law to all liberated Jewish lands, namely, the Area of Jurisdiction and Powers Ordinance of 1948, as well as the Law of Return of 1950. In ignoring these constitutional laws and the leading precedent established in the War of Independence when Israeli law was automatically applied to areas beyond the U.N. Partition lines repossessed by the IDF, Shamgar committed a staggering violation of the Rule of Law.

Two recent Supreme Court judgments have taken Shamgar’s folly to new heights of absurdity. The President of the Court, Aharon Barak, has ruled that Judea, Samaria and Gaza are indeed governed by the rules of belligerent occupation without naming the state or people whose land has been occupied or noting when that state or people were recognized as the sovereign of the land. As a result of his rulings, Barak has completely undermined the Jewish legal case for the retention of Judea, Samaria and Gaza. The only way to undo the tremendous legal and political harm committed by Israel’s most eminent jurists is for the Knesset to pass special legislation declaring that Judea, Samaria and Gaza are not occupied territories, but rather the national patrimony of the Jewish People in whose name the State of Israel acts.