How Israel Threw Away Its Legal Rights During and After Its Glorious Victory in the Six-Day War And Which Has Led Up to the Annapolis Conference
Speech Delivered by Attorney Howard Grief at the New Jewish Congress held at the Ramada Renaissance Hotel in Jerusalem, November 27, 2007
We all know what happened in the Six-Day War of June 1967 when the IDF liberated and repossessed for the Jewish People, Judea, Samaria, Gaza, the Golan and Sinai. But few know that while the war itself was being fought, some legal steps were being taken by the Government of Israel then headed by Levi Eshkol which then and there destroyed the fruits of the victory that had just been achieved. This is what I would like to touch upon today.
The most important legal step that was taken that has backfired for Israel and reverberates to this very day is the fact that the Government of Israel, acting on the legal advice of the then Military Advocate-General and future Supreme Court President, Meir Shamgar, decided to apply Articles 42 and 43 of the Hague Regulations to all the liberated territories.
The result: these liberated territories were henceforth called “occupied territories” by everyone outside Israel and by many inside Israel. I can be pretty confidant in saying that Eshkol, an economist and financial expert, did not know or understand anything about what the Hague Regulations meant. He relied on his legal experts in the Ministry of Justice and on Meir Shamgar, the head of the IDF’s legal division for that.
Occupied territories, by definition, mean that they are foreign territories that legally belong to another state that were conquered by a hostile state in war. Now, as you all know, Judea and Samaria never legally belonged to Jordan which illegally occupied this territory in 1948 and renamed it the West Bank.
The same for Egypt as regards Gaza. A large part of the Golan was initially included in the draft Mandate for Palestine and the Jewish National Home before Britain illegally ceded it to France-mandated Syria in 1922-1923. In 1967, when Israel reconquered Sinai, Egypt was only its administrator and not its sovereign. Israel had a much better historical and legal claim to Sinai than did Egypt. However, as a result of the application of the Hague Regulations to all the liberated territories, they were considered, without just reason, as occupied territories that Israel could not permanently keep but had to return to their supposed true owners, i.e. the neighbouring Arab states.
Instead of applying the Hague Regulations to these territories in June 1967, Israel should have applied two of its own constitutional enactments that David Ben-Gurion as Prime Minister and Defence Minister used in 1948 to annex all the territories captured by the Israel Defence Forces in the War of Independence beyond the lines fixed under the UN Partition Plan of November 29, 1947 – formally called Resolution 181 (II) of the General Assembly.
These constitutional enactments were the Area of Jurisdiction and Powers Ordinance and the Land of Israel Proclamation. For those interested in reading more about the far-reaching meaning of this Proclamation, I refer you to my article in the November 2007 issue of Nativ Magazine.
By not applying the Area of Jurisdiction and Powers Ordinance, as well as the Land of Israel Proclamation, the Eshkol Government violated the constitutional law of Israel as it existed in June 1967 and every government since then has done the same. In the Elon Moreh case in 1979, the then Deputy-President of the Supreme Court, Justice Moshe Landau, claimed that no Proclamation had ever been issued under the law known as the Area of Jurisdiction and Powers Ordinance, and the former President of the Supreme Court, Justice Aharon Barak, made the same false statement in deciding the case on the Disengagement Implementation Law in 2005. These two Supreme Court Justices were abysmally unaware of the fact that such a proclamation had indeed been issued by Ben-Gurion in September 1948 and that same Proclamation could have been used – indeed it was required to be invoked – in 1967 to annex the liberated territories of the Land of Israel, particularly Judea, Samaria and Gaza.
Some of you here may have seen and read my booklet published earlier this year containing my letters on Eretz-Israel and Israeli Constitutional Law that I sent to the President Emeritus of the Supreme Court, Mr. Justice Meir Shamgar. Shamgar did not give me permission to have his own letters to me published – five in all. What he did tell me in his last letter was that among the persons who agreed to the application of the Hague Rules to the liberated territories in June 1967 was none other than Menachem Begin, a Minister Without Portfolio in the Eshkol National Unity Government.
There you have it, the man who in the early nineteen fifties spoke passionately about the need not to forget that Transjordan was still part of our homeland – you can read his speeches in the Divrei haKnesset to that effect – consented to the application of international law instead of Israeli law to Judea, Samaria and Gaza, thereby converting them in the eyes of the world from liberated territories to occupied territories.
That has been the bane and tragedy of Israel ever since the end of the Six-Day War. Had the Land of Israel Proclamation been properly applied in 1967, Judea, Samaria and Gaza would today be part of the State of Israel and there would be no Palestinian Authority in our homeland nor any need for the Annapolis Conference.
Now I come to another step that was taken 5½ months after the Six-Day War which has led directly to the Annapolis Conference. I refer to UN Security Council Resolution 242. This resolution is often touted by the Government of Israel as beneficial to Israel. It is beneficial in one sense only. Any Arab state that accepted this Resolution, implicitly recognised the State of Israel and agreed to live in peace with Israel. Despite that implied recognition and the promise of peace, Resolution 242 has turned out to be a disaster for Israel because it is based on two false assumptions that denied Israel any national rights to Judea, Samaria and Gaza.
The first false assumption of Resolution 242 is that all the liberated territories are occupied territories and the second false assumption is that Israel must withdraw “from territories occupied” in the Six-Day War. It is true that the withdrawal is not from all the so-called occupied territories but only to secure and recognised boundaries. However, what is really important in analysing Resolution 242 is that there must be an Israeli withdrawal from territories which are integral parts of the Jewish National Home and Land of Israel which belong to the Jewish People under international law as decided in 1920. (I discuss the question of Jewish rights to all of Palestine and Eretz-Israel in my forthcoming book to be published in 2008, so I will not discuss it here.)
Now if we examine what has already taken place, Israel withdrew from all of Sinai and all of Gaza and, so far, from up to about 42 percent of Judea and Samaria in whole or in part with the present government wishing to relinquish over 90 percent of this territory, actually closer to 100 percent as the Arabs demand. That certainly spells disaster for Israel.
Why does Resolution 242 call for Israeli withdrawal from territories occupied in the Six-Day War? It does so because, according to the language of the Resolution, it is an express principle of the UN Charter and the Resolution declares that, it is inadmissible to acquire territory by war. Now anyone who has read Article 80 of the UN Charter should know that the rights accorded to the Jewish People in the Mandate for Palestine cannot be altered, unless a trusteeship agreement replaced the Mandate, which was never done and can no longer be done. That means that Resolution 242 violates Article 80 of the UN Charter when it calls upon Israel to withdraw from territories that were part of the Jewish National Home under the Mandate. There is therefore no express principle in the Charter that an Israeli withdrawal is required. Quite to the contrary, Article 80 of the Charter prohibits it.
Resolution 242’s dictum that territory is not to be acquired by war is not only false and hypocritical, it does not apply to Israel’s acquisition of Judea, Samaria and Gaza, re-acquired legally in a defensive war. This territory was originally acquired for the benefit of the Jewish People on December 23, 1920 when Britain and France negotiated a boundary convention to determine the boundaries between their respective mandated territories. Judea, Samaria and Gaza were then included in the Jewish State to be. If there was a blanket prohibition of not acquiring territory by war, then the United States would have to return all of California, all of Nevada, and all of Utah to Mexico which the U.S. captured in the Mexican War of 1846-1848, as well as parts of four other states: Arizona, New Mexico, Colorado and Wyoming. The same applies to many other countries in the world which acquired territory through war. Why should this dictum apply to Israel alone?
Who was responsible for Resolution 242? The resolution in its present form was introduced in the United Nations Security Council by the UK Permanent Representative to the UN, Lord Caradon (whose commoner name was Hugh Mackintosh Foot). However the impetus or initiative for the Resolution of November 22, 1967 came from the American Government under President Lyndon B. Johnson and has been pursued relentlessly by every American Government since then, including all the Secretaries of State, from Dean Rusk, William Rogers, Henry Kissinger, George Schultz and so on, with the one honourable exception of Alexander Haig.
I do not understand how reputed scholars like John Mearsheimer and Stephen Walt, who claim in their book that the Israel lobby and American Jews control U.S. Foreign Policy, can say that in light of the fact that the American Government has never ceased to demand that Israel evacuate all of the liberated territories on all fronts except for insubstantial border rectifications. It appears to me that the U.S Government, far from supporting Israel as regards its rights to keep the liberated territories, rights which were derived from the San Remo Resolution and the Mandate for Palestine, has done everything possible to deny those rights, which incidentally is contrary to the Anglo-American Treaty of December 3, 1924 on Palestine proclaimed a year later by President Calvin Coolridge. This treaty has expired but Jewish rights to all of Palestine that the American Government recognised in 1924 still remain valid and in force.
Resolution 242 has been inserted into every peace document since its adoption on November 22, 1967 – in the Camp David Framework Agreement for Peace in the Middle East, in the Egyptian-Israeli Peace Treaty of March 26, 1979, in the Israel-PLO Agreements from 1993 onwards and in the Road Map Peace Plan of 2003.
Resolution 242 thus, in effect, produced the Annapolis Conference taking place today since, as I said earlier, it calls for Israeli withdrawal from the alleged occupied territories for the sake of peace. For the Arabs, that means a withdrawal from all the so-called occupied territories. For us that means withdrawal only to “secure and recognised boundaries”. But how secure will our boundaries be if we withdraw, as Prime Minister Ehud Olmert and Vice Premier Haim Ramon have advocated, from most of Judea and Samaria and divide the holy city of Jerusalem? The Annapolis Conference could not have happened without Israel’s suicidal acceptance of Resolution 242. A future Government of Israel must renounce this resolution if we are to keep our ancestral land and patrimony – Judea, Samaria and Gaza.