The Principle of Legality and the Israeli Military Government in the Territories

• Author: Brigadier General Uri Shoham
• Pages: 04

1. Introduction

Since 1967, barely nineteen years from the date of its foundation, Israel has been in control of two areas of land commonly referred to today as the Test Bank and the Gam Strip {Vhile this control has been given various legal names, depending on one's per.

mnd pomt of view-"rnilitar). admimatration," '"obelligerenr occupation," or "liberation"-the facts of the matter remain the same Israel, with B current population of around fire and a half million. has far o ~ e r two decades been in control of an Arab population CUT-rently estimated at around tw and a half milimn people.' a large percentage of *,horn tend to vie\\ Israel's pretence with something less than enthusiasm.

Far the sake of allegorical comparison. imagine the United States being in control of an aiea of land a quarter its o ~ n size.

E~t~rnafepublmhed ~n El Qadi muspaper. 4 Seprember 1996

located just scant miles away from major United Stater cities. and populated by no less than 120 million Iraqis JVith a fer minor adjustments, these m e the circumstances Israel has had to face since 1967.

The Israeli control of uhat 1s collectwely referred to as the Territories'' has been the subject of deep.rooted contimers within Israeli society itself. The extreme parties of Israeli pal advocated either annexation Ion the extreme right) or 1

establishment of an independent Palestiman state ton the extreme left). In between. the majority of the Israeli population probably view the Israeli control of the Territories as a necessary, albeit uncomfortable, situation imposed on Israel by the militar~-political condition of the Middle-East

Regardless of their political viewpoints, all Israeli gavernmenta from 1967 to the present have laid down B strict requirement that all activities of the Israeli military in the control of the Territories must adhere to the principle af "the rule of law'' for as the philaso. pher John Lacke said in 1690, 'Yherever lair ends. t?ranny begins 112

It 1s the purpose of this article to give a relatively brief overweu of the problems Israel has had to face in the implementa. tian of the principle of "the rule of law.' and the solutions Israel has found, or sometimes menred, for these problems

The difficult challenges faced by Israel in this context are brought into sharp focus when contrasted with the approaches adopted by all other "occupants" in the post JVorld War I1 era Whether based on a purported request for mterwntmn by the local government (e g . Afghanistan. Grenada). claims of sovere>gnty by the occupier (e g , Kuwait, Western Sahara, East Timor,. or ~mple. mentation of the principle of self-determination (e.g I Bangladerh, Cjprus). it has been the policy of all modern "occupants" to denj the relevance of the Hague RegulatioConvention to the circumstances in quspectire. Israel s acknowledgment thatare subject to or guided by previously untested international legal standards, at leait in the modern context. 1s worthy of note 8s B

landmark in the formal applicability of such rules. as well as interms of the practical and inevitable difficulties of traveling hitherto uncharted ground

lD86l ISRAELI MILITARY GOVERNMEA'T 247

11. 1967-1993

A The Historical Background

To fully understand the situation in which Israel has found itself for over twenty-five years. one must first have some basic understanding of the historical events which brought about the cur. rent state of affairs May and June 1967 were destined to be two of the most important months in the hietory of the [then) mneteen-year old State of Israel. At that time, Israel was completely SUP

rounded by hostile Arab nations, intent on eliminating the upstart Jewish State and thereby rectifying what in their eyes was nothing more than a temporary historical footnote.

For the sake of brevity, the events leading up to the 1967 "six day war" can be summarized chronologically as follows:

a. >fay 15 Egypt mobilizes its armed fareea;

b. May 16: Egypt move8 forces into and BCIOSE the Sinai Peninsula, towards the Israeli border, demanding the withdrawal of all United Nations forces from the r e ~ o n ,

c May 19 The United Nations peacekeeping force stationed in the Sinai, comprised of over 3000 soldiers From six nationalities. accedes to the Egyptian demand and flees the reoon. therebr, ex~os-mg Israel's southern border to Egyptian attack,

d May 22. Egvpt publicly declares the Straits of Tiran. Israel's only southern sea access to the Indian Ocean and a vital trade route, closed to all Iaraeli shipping;

e May 25. Encouraged by Egypt-Syria, Iraq, Jordan and Saudihrabia commence moving troops to the Israeli borders:

F June 4: Arab soldiers, tanks, aircraft and artillery amassed on Israel's frontiers outnumber Israeli forces by B ratio of three to one."

Arab intentmnS were clear. On May 27, Preeident Kasser of

Our basic objectke will be the destruction of Ierael The Arab people want to fight . The mining OF Sham el Sheikh is a confrontation with Israel. Adopting this mea-

EBpt made a public statement proclaiming.

.

sure obligate: us to be ready to embark on a general war nith Israel

Preeidenr irrf of Iraq. predecessor to the mirent Iraqi pres,.

The existence of Israel E an error I\ hich must be rectified Thii E our opportumtg to wipe OUT the ipnommy which has been with us since 1948 Our goal 1% clear-to wipe Israel offthe map

And finally. the Chairman of the Palestine Liberation Organization. Ahmed Ghukamy. predecessor of the current Chair. man, Yasrer .Amfat. stated on June 1 as follona.

This 1s a Rghr for the homeland-it 1s either us or the

There 13 no middle road The Jews of Palestine 'e to leave Wk ud1 fachtare rhem departure to mer homes Any of the old Palestine Jewish population uho wrvive mal stag but 11 1% my ~mpressmn that none ofthem \+111 sunibe

Recognizing >ti plight Israel decided to launch a preemptive air strike agamsr the Eg?.ptian air force. destroying most of Its planes on the ground. As the ensuing conflict prayed, the quickest way of ending a aar IS to lose iti The war lasted only SIP dais, at the end of ahich Israel had succeeded in protecting all of its bound. anes and had taken posieaaion of the follawmg areas:

a From Eaptian contml. the Sinai Pemnaula ithe launch base for the Eg?.ptian offenme agamst Israel; and the Gaia Strip lfrom which rerrorist attacks were launched against Israel throughout the 1950s and 1960s

b. From Jordanian control. the West Bank lfrom which Jordanian farce? and artillery had threatened to cut Israel's narrow eight mile aaiat m half, and East Jerusalem and

c From S>rian control, the Galan Heights ithe launching area of the Sjrian offensne and of numerous attacks prior TO the 1967

Thus, at the end of the Six Day War, Israel found irself controlling terntori three times larger than its previous borders. and uith the responsibility for an additional one million Arab residents of the

dent. Saddam Hussein. proclaimed a similar intention.

war

Id sf 6;

West Bank and the Gaza Strip Israei's offer, immediately after the war, for the return of ail the newly acquired terntonee (except for the united Jerusalem1 m return for a full peace with its neighbors was totally rejected by all the Arab countries, who chose to proclaim instead the "triple negation doctrine," no peace with Israel; no reeognition of Israel, and no negotiation with Israel.3 As a result, the State of affairs an the ground m the N'e'est Bank and the Gam Strip would remain relatively unchanged for twentyseven years, until the Israel Defense Farces (IDFI withdrawal from the Gam Strip in 1994

ab part of the implementation of the Israel-PLO agreements which shall be addressed later.

E. Israel's Legal Status ~n the Terntortes

One of the first questions Israel had to face and answer Imme. diately following the end of the Six Day War was, '?%at 1s Israel's legal position in relation to 1ts presence in the Territories?" It should be stressed that this question was anything but theoretical, for the legal position adopted by Israel ~n this regard would have far-reach-ing practical eansequencee for the inhabitants of the Territories. Three different legal approaches were advanced:

a. Israel is the occupant of the Territories and therefore should hold and govern them in accordance with the principles of public international law applicable to belligerent occupation,

b Israel is the "missmg owner'' [sometimes referred to as "the missing reversioner") of the Territories. This proposition was based on three separate facts: (1) the 1947 United Nations Partition Resolution which proposed dividing Palestine into two separate states, (2) the illegality of the Jordanian annexation af the West Bank in 1960 (reeomned onlv bv two countries-Great Britain and

" .

Pakistan); and (3) the Territories had been acquired as B iesult of a legitimate use of self defense.10

e. Israel is the "trustee' of the Territories for the local papula. tion until they will be able to form their own self government. According to the proponents of this view, following the end of the Bntieh mandate over western Paiestme, the true sovereignty over the West Bank, although latent, had been transferred to the Palestiman reeidents.

After ~ermu6 political and legal deliberations. Israel chose to adopt a mixed practical approach Israel would not acknonledge de jure that the Terntones are occupied territor2. thereby effectively setting aside the political aapect of the question, bur it would govern the Territories de facto under the provisions of customary mterna. tmnal law applicable to belligerent occupation l1

In light of this decision. the Israeli milltar?. government of the Territories was spec~fical!~

Instructed to abide by the relevant prmi. mns of cuatomary international law espec~ally those principles embodied in section I11 ai the 1907 Hague Regulations relaring to ar) Authority over the Territory of the Hostile State" #here-r referred to as the 'Hague Regulations"1.

Regarding the other V ~ ~ I O U...