In 1967, Meir Shamgar was the Israeli Military Advocate General, and the role he played before, during, and after the war continues to cast a long shadow. Israel had been planning for the occupation for years. These plans were informed by Israel’s brief, aborted occupation of Gaza during the 1956 Sinai War, as well as contingencies formulated when political instability roiled Jordan in 1963. By Shamgar’s own account, in the years prior to the 1967 War, officers in his unit were carrying out “skeleton exercises in military government problems.”[i]
Midway through the Six Day War, the Israeli military administration for the West Bank and Gaza was already being put into place. The military court system was established on the third day of the war, one of Israel’s first official acts in the occupied Palestinian territories.[ii] This timing is significant because it reflects Shamgar’s planning and the high degree of Israeli preparedness for war and occupation.
For the first few years of occupation, the idea of retaining permanent control of the West Bank and Gaza—especially the large Palestinian population centers—was not seriously entertained within Israeli decision-making circles. However, Shamgar constructed a legal doctrine to legitimize permanent Israeli retention of at least parts of the conquered areas. Prior to 1967, Shamgar had conceived that the extension of Israeli rule over any additional areas across the 1949 Armistice Line (the Green Line) deemed to constitute Eretz Israel would not be a “foreign occupation” because Jews had historic rights in those areas, and because no other state had sovereign claim to them. Therefore, according to Shamgar’s reasoning, the West Bank and Gaza were not “occupied” but rather “administered” by Israel, and their status was sui generis. Further, Shamgar asserted that the Fourth Geneva Convention, the body of international humanitarian law (IHL) pertaining to militarily occupied territories and their civilian inhabitants, did not apply to Israeli rule, and to concede that it did apply would undermine Israel’s claims to these areas.
These legal rationales, which were never accepted by the international community, became the cornerstone of Israeli doctrine regarding the state’s rights and duties in the territories. From this flowed the claimed “right” to install Jewish Israeli settlers in the territories, among other IHL-defying practices that have defined the occupation over the last fifty years.
Arguably, Shamgar’s most important and deleterious contribution was the ways in which he made Palestinian statelessness legally significant. By interpreting IHL as applicable exclusively to signatory states (“High Contracting Parties”) and their citizens, he laid the foundations for Palestinian statelessness as a form of rightlessness. This was more than just a denial of Palestinians’ right to a state of their own; it was a contention that they have no such right under international law, and that Israel’s control over the people could be separated legally from control over and claims to militarily captured land. On the basis of this legal reasoning, Israel rejected its obligations under human rights laws to which it is a signatory when it comes to the state’s rule over and treatment of Palestinians in “administered territories.” By casting Palestinians as “outside” the rights and protections of international law, the only legal regime to which they were subject, according to Israel, was that of the military administration.
Shamgar’s other long-lasting contribution, instituted in 1968 when he became attorney general, was to authorize Palestinians’ access to Israel’s High Court of Justice (HCJ). Palestinians could petition the HCJ to challenge the administrative policies and practices of any state institution, including the military. While this might seem, at first glance, to be a positive contribution, in reality it served to reinforce an illusion that the Israeli occupation was “enlightened” and “benign.” Over the decades, occupied Palestinians and their Israeli and Palestinian advocates have submitted thousands of petitions challenging many aspects of the occupation, from collective punishments to land confiscations, from torture to targeted killing. Rarely, however, did the HCJ rule in a manner that would be beneficial to Palestinians. Rather, the HCJ provided a sheen of legitimacy over the practices of the military and the dubious legal rationales on which they were based. According to Nimr Sultany, the HCJ’s judicial record is “oppression-blind jurisprudence, concealment of the general context, fragmentation of reality, the practice of non-intervention and submission to dubious ‘security’ considerations disguised rhetorically by ‘balancing’ and ‘proportionality’ tests, and declining to provide meaningful and timely legal remedies.”[iii]
Many states violate and deny people’s rights, but few have gone to such lengths to frame their policies and practices as legal, just, and necessary. By devising such a doctrine, Israeli officials—starting with Meir Shamgar—sought to justify the exclusion of international law in this context, arguing that the state has the right to interpret its obligations independently and in accordance with the conditions on the ground, and asserting this interpretation to be legally viable, even if different from (i.e., rejected by) international opinion.
The shadow that Shamgar cast over law and conflict has come to extend far beyond the West Bank and Gaza. The notions that statelessness equals rightlessness and that the state has the prerogative to disregard and deem inapplicable international laws that would constrain its military and security policies was adapted by the United States at the start of the global “war on terror,” which is now in its sixteenth year.
