Gershom Gorenberg, in today’s NY Times has just revealed a secret memo written by the Foreign Ministry’s chief legal counsel, Theodore Meron, shortly after Israel’s victory in the ‘67 War. In it, he argued that Israeli settlement in the Occupied Territory would be a violation of the Fourth Geneva Convention:
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.
Meron’s memo gave Eshkol an “out” which he used to circumvent (or so he thought) one of Meron’s stated objections to settlement:
The memo did note, however, that settlement was permissible if done “by military bodies rather than civilian ones” in bases that were clearly temporary. A week after receiving the memo, Eshkol informed the cabinet that Kfar Etzion would be re-established — through a branch of the army called Nahal, which created paramilitary outposts. By the end of September, settlers arrived at Kfar Etzion. Publicly they were described as “Nahal soldiers.” In fact, they were civilians. The ruse acknowledged Mr. Meron’s opinion. It also showed a sadly mistaken confidence that the legal, ethical and diplomatic difficulties of settlement could somehow be avoided.
Gorenberg notes that Israel soon dropped even this fig leaf of military control of the settlements:
it did not take long before explicitly civilian settlements were established in land occupied in 1967.
This is a perfect example of the slippery slope that Israel traveled beginning in 1967 when it initially contemplated and then created the first settlements. You start with what you view as good intentions: resettling Jewish pioneers on territory like Kfar Etzion, once inhabited by earlier pioneers who were massacred by the Jordanians during the 1948 War. Then you drop the fig leaf that they are a military outpost. Then when an Ariel Sharon comes on the scene you establish a systematic settlement enterprise with goals of settling 100,000 in the Territories. By 2005, when the entire Greater Israel project begins to leave a bitter taste in the mouth of most Israelis, you have two and a half times that number living there. Then, undoing the damage wrought over forty years becomes excruciatingly difficult, causing national trauma. Gorenberg notes:
As an Israeli who has pored over the documentary record of the settlement project, I know there is one more painful, familiar element to this story: the warnings were there from the start and were ignored, kept secret or explained away. Leaders deceived not only the country’s citizens, but themselves. So begin national tragedies.
If only Israel had been more mindful from the beginning and thought through what might be the future implications of its actions.
Gorenberg argues persuasively that the era of settlements has ended and Israel must not only dismantle them, but it must disentangle itself from the Occupation to preserve itself:
Today it is clear that Israel’s future as a Jewish state depends on ending its rule of the West Bank. Settlements have shackled Israel rather than served it. Thirty-eight years after the missed warning, we must find a way to untie the entanglement.