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Theodor Meron’s ’67 memo provided legal rationale for settlements

Israel/Palestine
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Editor’s note: In recent days we have done a couple of posts (here and here) about a scandal at the Hague, in which a Danish judge has accused Theodor Meron, the Israeli-American presiding judge of the tribunal on the former Yugoslavia, of acting to acquit Serb and Croat leaders convicted of war crimes lest the same standard of complicity is applied to American and Israeli leaders.

In the commentary, some noted Meron’s good reputation: he authored a legal opinion in Israel back in 1967 warning Israeli leaders that settling in the occupied territories was illegal. Gershom Gorenberg wrote a long piece in the New York Times in 2006 praising that opinion, under the title, “Israel’s Tragedy Foretold.” Gorenberg quoted Meron: “My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention.”

An American who calls himself “Hostage” is a regular commenter on our site. He questioned the favorable interpretation of the Meron opinion, and at our request offered the following analysis. We protect his identity due to matters of employment.

The 1967 Meron opinion

In 2006 a declassified “Top Secret” advisory opinion written nearly forty years earlier by Theodor Meron was made public. Various accounts explained that it had flatly stated that civilian settlement in occupied territory contravenes the explicit provisions of the Fourth Geneva Convention.

At the time, Meron served as a Legal Advisor to the Foreign Affairs Ministry of Israel. The reports uncharacteristically portrayed Meron as a person who spoke truth to power and opposed Israeli government policies regarding the establishment of settlements in the captured Arab territories.

That portrayal was at odds with Meron’s record as a Zionist bureaucrat, when he subsequently served as the Israeli Ambassador to the UN in Geneva. His time in office there had been a contentious one, marked by the usual theatrical performances provided by Israeli representatives to the UN Human Rights Commission. For example, when he was confronted by a reliable fact-finding report that said Israel was guilty of serious violations of the Geneva Conventions, including the establishment of illegal settlements and mass demolition of Arab houses, Meron questioned the legality of the investigating team’s mandate and alleged that worse human rights violations existed elsewhere. He claimed that the investigators were enemies of Israel who didn’t recognize its right to exist – and he dismissed the report’s findings as half-truths and lies.[1] Decades latter, the International Court of Justice confirmed the substance of those Human Rights Commission findings.[2]          

Three years after the original news reports concerning the Meron Memo [3] the SOAS:Hotung Project made a version available to researchers in English, prepared by a professional legal translation company.[4] The new document cast Theodor Meron’s opinion in a much different light than the summaries provided by authors Gershon Gorenburg and Donald Macintyre in their articles for the New York Times and The Independent.

Meron did advise that “civilian settlement” of the occupied territories would contravene the 4th Geneva Convention. But he also advised that, if the government decided to establish settlements in the Golan Heights anyway, it was essential that it be done by the army in the form of (the now-familiar) Nahal camps that would not point to the establishment of permanent settlements. He left no doubt that he was proposing government transfer of settlers into the occupied lands in question, saying: “Even if we settle an army and not civilians, we must, from the point of view of international law, have regard to the question of ownership of the land that we are settling.”

With regard to Gush Etzion in the West Bank, he suggested that settlement there could, to a certain extent, be helped by claiming that this is a return to the settlers’ homes. Gorenberg quoted what now appears to be an out-of-context snippet from this paragraph to support his belief that Meron had rejected the plans to settle or annex the West Bank. But the memo is full of qualified language and advice on how to skirt the law and settle portions of that territory anyway. Meron merely warned the higher-ups that the international community would probably object to settlement of Gush Etzion on the grounds of the Geneva Convention. Gorenberg was convinced that Meron rejected plans for settlement throughout the West Bank, and only took note of Israel’s diplomatic arguments that the West Bank was not “normal” occupied territory.

But in the SOAS:Hotung version, Meron implicitly included himself among those persons who were trying to argue and promote those positions, although he admitted that they had been rejected by the international community and that, in truth, some of Israeli’s actions had been inconsistent with those claims. Here’s some of his argument:

In terms of settlement on the [West] Bank, we are trying not to admit that here too it is a matter of “occupied territory”. We argue that this area of the Mandate on the Land of Israel was divided in 1949 only according to Armistice Lines, which, under the Armistice agreements themselves, had merely military, not political, significance and were not determinative until the final settlement. We go on to say that the agreements themselves were achieved as a temporary measure according to Security Council action based on Article 40 of the United Nations Charter. We also argue that Jordan itself unilaterally annexed the West Bank to the Kingdom of Jordan in 1950 and that the Armistice Lines no longer exist because the agreements expired due to the war and Arab aggression. We must nevertheless be aware that the international community has not accepted our argument that the [West] Bank is not “normal” occupied territory and that certain countries (such as Britain in its speeches at the UN) have expressly stated that our status in the [West] Bank is that of an occupying state. In truth, even certain actions by Israel are inconsistent with the claim that the [West] Bank is not occupied territory.

His comments on the possibility of settlement in the Jordan Valley establish that he hadn’t rejected the idea at all. He explicitly left the door open to further discussion once he had been fully briefed on the details of the plan:

“On the possibility of settlement in the Jordan Valley, the legal situation is even more complicated because we cannot claim to be dealing with people returning to their homes and we have to consider that problems of property will arise in the context of the Hague Regulations. I cannot go further into this question without having a lot more detail.”

In the end, the legal subterfuges that Meron suggested didn’t fool anyone. The Jewish Agency and the Government of Israel had established frontier fortresses along confrontation lines in the past and employed them to expand the boundaries of the Jewish State.

Just a few months later in 1968, US Secretary of State Dean Rusk advised Israel that “Existing settlements in the Golan Heights, Sinai, and at Etzion were justified by the GOI [Government of Israel] as para-military encampments serving security purposes. Recent reports (Tel Aviv A-716) indicate that these settlements are taking on aspects of permanent, civilian, kibbutz-like operations and some are, in fact, civilian kibbutzim with Nahal covers. .  .  .  By setting up civilian or quasi-civilian outposts in the occupied areas the GOI adds serious complications to the eventual task of drawing up a peace settlement. Further, the transfer of civilians to occupied areas, whether or not in settlements which are under military control, is contrary to Article 49 of the Geneva Convention”.[5]

Although many people are understandably still under the impression, based on main stream media reports, that Meron was a hero who opposed them, the available evidence indicates that he was a co-perpetrator of the scheme to knowingly and intentionally establish the illegal settlements in the territories captured during the 1967 war.

So history has burnished Judge Theodor Meron’s image on the basis of the cover letter to his advisory opinion, while ignoring the rest of its contents.

The advisory opinion that “he still stands by today” already contained all of the right-wing core elements of Yehuda Blum’s “The Missing Reversioner: Reflections on the Status of Judea and Samaria”; Meir Shamgar’s, “The observance of international law in the administered territories”; and Danny Ayalon’s YouTube hasbara videos about the Jewish people’s right to the disputed territories. 

When Meron is asked today about prosecuting Israeli officials in the ICC over the settlements, he doesn’t offer any opinion, He simply says “there are complicated jurisdictional issues involved”, and that he shouldn’t comment because of his personal involvement or because he’s a judge.

Notes:
[1] See UN Group’s Charges That Israel is Responsible for Deaths of Arab Prisoners Scored As Wild Accusation: http://www.jta.org/1977/02/14/archive/un-groups-charges-that-israel-is-responsible-for-deaths-of-arab-prisoners-scored-as-wild-accusation and UN Human Rights Commission Votes 23-3 to Indict Israel http://www.jta.org/1977/02/16/archive/un-human-rights-commission-votes-23-3-to-indict-israel

[2] (a) The annexation of parts of the occupied territories; (b) The establishment of Israeli settlers’ colonies therein and the transfer of alien population thereto; (c) Mass destruction and demolition of Arab houses; (d) The evacuation, deportation, expulsion, displacement and transfer of Arab inhabitants of the occupied territories, and the denial of their right to return; (e) Mass arrests, administrative detention and ill-treatment of the Arab population; (f) The torture and ill-treatment of persons under detention and the violation of the relevant provisions of the Geneva Conventions; (g) The confiscation, expropriation and all transactions for the acquisition of Arab property and land by Israeli authorities and individuals; (h) The exploitation of human, natural and all other resources of the occupied territories and the promulgation of discriminatory economic legislation; (i) The pillaging of archaeological and cultural property; (j) The denial to the population of the occupied Arab territories of their right to national education and cultural life; (k) The interference with religious freedoms and practices; 

Compare E/CN.4/RES/1(XXXIII) 15 February 1977 http://unispal.un.org/UNISPAL.NSF/0/5D829C7A4B9A850705256816005B3E75 and A/31/218 1 October 1976 http://unispal.un.org/UNISPAL.NSF/0/8BF5BE1EBC256B43852569EB006C4022 with Legal Consequences of the Construction of a Wall in the Palestinian Occupied Territories http://www.icj-cij.org/docket/files/131/1671.pdf   

[3] Israel’s Tragedy Foretold http://www.nytimes.com/2006/03/10/opinion/10gorenberg.html?pagewanted=all&_r=0
Secret memo shows Israel knew Six Day War was illegal: http://web.archive.org/web/20071014221904/http://news.independent.co.uk/world/middle_east/article2584164.ece

[4] 1967 Meron opinion: http://www.soas.ac.uk/lawpeacemideast/resources/

[5] 137. Airgram From the Department of State to the Embassy in Israel http://history.state.gov/historicaldocuments/frus1964-68v20/d137

Hostage
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46 Responses

  1. Abu Malia
    Abu Malia
    June 23, 2013, 2:13 pm

    Thank you Hostage for the great insight! As one of the most important ( wrt all matters legal) Hasbara-Busters on the comment section of this enlightened blog(well next Seafoid), your input is always appreciated. This was a robust and factual rebuttal to those who believe there is such a thing a “good Zionist”.
    Meron shouldn’t presiding over anything except maybe a disagreement between his two cellmates.

    Allow me to digress and solicit some advise on a not so different topic: Myself and a group of close friends decided we will not be silent any longer. We decided to come up with a provocative but non offensive slogan against Zionism and make it into a bumper-sticker and yes, slap it on the back of our vehicles.
    NOTE: As one of the most low profile-keeping, lime-light hating creatures I know, the thought of attracting attention on the streets is no piece of cake for me.

    Right now, we have settled on the following slogan; “it ain’t anti-Semitic if it is true” We are still discussing if we should add “free Palestine” or maybe “free your Palestinian Helots”. Seafoid, please give me something provocative and witty.
    Thought about “Yesha was a mistake” – maybe compel folks to Google “Yesha”.

    Thank you all in advance.

    • MRW
      MRW
      June 23, 2013, 8:30 pm

      I vote for “Its not anti-semitic if its true. Check the facts.” Or ‘verify facts’. Or
      perhaps even better, start with the order to verify or check the facts, then the conclusion that its not anti-semitic if its true.

      The use of “ain’t” diminishes or cutsy-fies the message, IMO, and becomes a distraction.

    • tokyobk
      tokyobk
      June 23, 2013, 10:59 pm

      Thats very charming of yourself and an your close friends but answer me this: What kind of myselfs and close friends have bumper stickers that say “It aint racist cuz black people does it,” “It aint sexist if she sez it,” “It aint Islamophobic if its written in the Kooran”?

      What is wrong with “Free Palestine” or “Yesha was a mistake” etc..?

      • Hostage
        Hostage
        June 24, 2013, 7:25 am

        What kind of myselfs and close friends have bumper stickers that say “It aint racist cuz black people does it,” “It aint sexist if she sez it,” “It aint Islamophobic if its written in the Kooran”?

        None of those is really the functional equivalent of “It isn’t anti-Semitic if it is true.”

      • annie
        annie
        June 24, 2013, 12:41 pm

        hostage, thanks so much for this article. i’ve been so swamped it’s taken me til now to get around commenting. i think this is a smoking gun and i’m tweeting it to the ICC! big thanks.

        But he also advised that, if the government decided to establish settlements in the Golan Heights anyway, it was essential that it be done by the army in the form of (the now-familiar) Nahal camps that would not point to the establishment of permanent settlements.

        so much legal wranglings to disguise what’s always been right in front of our faces.

      • Hostage
        Hostage
        June 24, 2013, 1:55 pm

        i think this is a smoking gun and i’m tweeting it to the ICC! big thanks.

        The ICC can’t exercise jurisdiction over any crime committed prior to July 2002, when the Rome Statute entered into force. Although you could tweet it to the ICTY, since it’s the real Meron scandal.

        I’d love to see the memo he promised to write on the subject of the refugees and compare it to ICTY policies on ethnic cleansing and repatriation:

        On the issue of the settlement of Arab refugees, which is, in my opinion, a less complex issue from both a political and a legal point of view, I will write separately.

        http://www.soas.ac.uk/lawpeacemideast/resources/file48485.pdf

        From his performance in the UN HRC, I’m guessing that he would rather that one remain classified.

    • Hostage
      Hostage
      June 24, 2013, 12:06 am

      Thanks. I’d go ahead and add free Palestine (or the Palestinians) so that there’s less room for speculation about what’s “true”.

    • seafoid
      seafoid
      June 24, 2013, 5:17 am

      Abu Malia

      I think the bumperstickers are a great idea

      Here are some thoughts

      Zionism proves Jews are just as dumb as regular people
      Zionism is just nihilism wrapped up in tikkun olam
      I can’t believe that 2000 years of Jewish prayers produced Netanyahu
      Zionism- turning the Holy Land into an abomination

      • MRW
        MRW
        June 24, 2013, 8:51 pm

        Thanks for the laff, seafoid.

        “I can’t believe that 2000 years of Jewish prayers produced Netanyahu.”

    • Mayhem
      Mayhem
      June 25, 2013, 4:02 am

      As for your slogan Abu Malia,

      “Anti-Semitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.” – Working Definition of Anti-Semitism by the European Monitoring Center on Racism and Xenophobia

      It may be true that the existence of Israel has indirectly made the lot of some Palestinians more difficult or some Israelis have what could be construed as racial bias against Arabs BUT that does not subtract from the fact that attitudes that spin off from these mini-facts can be blown way out of proportion. The result can be a vicious distorted disposition toward Jews and Israelis in particular, ergo fully fledged, unadulterated anti-Semitism.

      In summary just because something may be true to some small extent cannot be used as an excuse, as it often is, for an obsessive fixation and bitterness about Jews who happen to believe in Israel.

      • Shmuel
        Shmuel
        June 25, 2013, 4:46 am

        The discrepancy between the words and expressions that Mayhem associates with Palestinian suffering and racism against Palestinians, and those he associates with anti-Semitism, is striking:

        The destruction of Palestinian society, ethnic cleansing, occupation, dispossession, theft, torture, imprisonment, collective punishment and every form of oppression and discrimination:
        – may be true
        – the lot [fate?]
        – some Palestinians
        – more difficult
        – mini-fact
        – blown way out of proportion

        Israeli racism:
        – may be true
        – some Israelis
        – what could be construed as
        – racial bias
        – mini-fact
        – blown way out of proportion

        Anti-Semitism:
        – vicious
        – distorted
        – fully fledged
        – unadulterated
        – obsessive fixation
        – bitterness
        – Jews who happen [fate again?] to believe [religious freedom?] in Israel

        Regarding the slogan itself, I think it does comes across as a justification of anti-Semitism (the real kind – nothing to do with “believing in Israel”), although I’m sure that was not Abu Malia’s intention.

      • Woody Tanaka
        Woody Tanaka
        June 25, 2013, 7:07 am

        “The discrepancy between the words and expressions that Mayhem associates with Palestinian suffering and racism against Palestinians, and those he associates with anti-Semitism, is striking:”

        Because he, himself, is bigoted against Palestinians in the same way he alleges that Abu Malia is expressing antisemitism. The difference is that Mayhem, like a true bigot, does not believe his bigotry even is a big deal, if he’s not in outright denial about it. He would, no doubt, describe antisemitism as being a horrible stain on one’s character without even realizing that the same is true of his own bigotry and the bigotry he decries and the bigotry he practices are equal and are equally worthy of condemnation.

      • Cliff
        Cliff
        June 25, 2013, 5:10 am

        Mayhem said:

        […]BUT that does not subtract from the fact that attitudes that spin off from these mini-facts can be blown way out of proportion. The result can be a vicious distorted disposition toward Jews and Israelis in particular, ergo fully fledged, unadulterated anti-Semitism.

        Sure, I think that’s a legitimate concern too. Even though you gloss over the enormity of the abuse against Palestinians committed by Israel.

        When we get to actual examples of this ‘spin-off’ anger (conflation), your argument falls apart.

        Sure it exists, but not to the extent you imply and not in the political movement you’re opposed to (anti-Zionism/BDS ‘movement’).

      • Hostage
        Hostage
        June 25, 2013, 5:57 am

        In summary just because something may be true to some small extent cannot be used as an excuse, as it often is, for an obsessive fixation and bitterness about Jews who happen to believe in Israel.

        Blah, blah, blah. Free the Palestinians and give them all of the same rights and privileges you have, then get back to us about all of this Israeli suffering.

    • ahmed
      ahmed
      June 26, 2013, 12:30 am

      How about “Anti-apartheid is not anti-semitic”
      Or anti-occupation/Israel?

  2. just
    just
    June 23, 2013, 4:21 pm

    What a brilliant expose. Many thanks, Hostage.

  3. seafoid
    seafoid
    June 23, 2013, 5:17 pm

    YESHA made it to the heart of Israeli policymaking. Settlers get 5 times more per head than Yossi Israeli and his lovely wife who sponsor the whole thing do.

    Anyone who stood up to YESHA failed. It co-opted all of the politicians. It’s a monster.

    The Israeli legal system failed utterly. Israel runs 2 systems of law in the territories. That’s apartheid. This was not inevitable in 1967 but people made decisions and now it’s the system

    I met Mary Roboinson once in the West Bank and she spoke about the occupation but mentioned what a great legal system Israel has and she mentioned the great work of Aharon Barak. But he’s as bad as the rest of them. Anyone who helped build the architecture of apartheid is a failure.

    Israel is not going to make it. The Israeli elite are to blame.

  4. HarryLaw
    HarryLaw
    June 23, 2013, 5:26 pm

    Meron “We argue that this area of the Mandate on the Land of Israel was divided in 1949 only according to Armistice Lines, which, under the Armistice agreements themselves, had merely military, not political, significance and were not determinative until the final settlement”.
    How wrong is this opinion, given that on 15th of May 1948 Israel’s sovereignty was clearly defined in the official plea of recognition to the President of the USA, those frontiers approved by the UNGA in its resolution of November 29th 1947.
    The USA immediately recognized Israel and considered non declared territories under Israel control as occupied.

    On the 31st Aug 1949 Israel made it’s first official claim to territories beyond the extent of its sovereign frontiers. After accepting UNGA resolution without registering any reservations. After declaring Israel Independent of any other entity including Palestine, per the borders of UNGA Res 181 and; enshrining UNGA Resolution in the Declaration. After being recognized as asked & declared. After confirming what was “outside the territory of the State of Israel” to the UNSC and by proclamation declaring Jerusalem “Israeli-Occupied”. After being accepted into the UN, as recognized and based on the Israeli Government statements to the UNSC prior to the UNSC recommendation. Israel’s claim was rebuffed, citing the Armistice Agreements link to: http://talknic.wordpress.com/2010/12/16/israel-has-no-fixed-borders-on-may-22-1948-israel-confirmed-its-borders-in-a-letter-to-the-unsc-the-hasbara-does-not-explain-it-justifies-the-usurping-of-the-palestinians/ The Israeli governments belated assertion that the occupied territories are disputed and that any agreement can only achieved by negotiation [between both claimants]. The US position, while officially condemning settlements is the same as the Israelis, both reject an agreement within International law, it is to be hoped that Abbas does not acquiesce in this illegal charade.

  5. American
    American
    June 23, 2013, 5:35 pm

    THANK YOU HOSTAGE!!!

    Ha, ha,…a zionist is a zionist is a zionist…they might try to hide their spots from time to time but they dont change.

    • Hostage
      Hostage
      June 24, 2013, 3:38 am

      You’re welcome. Yes, some Zionists do resemble lizard-brained creatures with chameleon-like abilities to (figuratively) use their stripes and spots to either blend-in or draw attention to themselves, depending upon their surroundings and their emotional state.

  6. American
    American
    June 23, 2013, 5:49 pm

    ”Meron questioned the legality of the investigating team’s mandate and alleged that worse human rights violations existed elsewhere. He claimed that the investigators were enemies of Israel who didn’t recognize its right to exist – and he dismissed the report’s findings as half-truths and lies”

    So typical….when confronted with their own crimes and misdeeds, start screeching about ‘enemies’ and anti semites and everyone who is worse than they are.
    Oh yea….” but, but …we’ve only killed 4,000 children, Hitler killed way more then us so what you complaining about?.. and besides we’re entitled because of the holocaust dont ya know, you aren’t suppose to criticize us”.

  7. Citizen
    Citizen
    June 23, 2013, 6:58 pm

    Whether it’s this guy, or Goldstone. They just can’t get past being tribal to being fully Human. Being fully human means you are nothing special except in what you do, if at all.

  8. Citizen
    Citizen
    June 23, 2013, 6:59 pm

    Thanks, Hostage.

  9. Shingo
    Shingo
    June 23, 2013, 7:23 pm

    At last a column by Hostage!! About bloody time!!

    • Hostage
      Hostage
      June 24, 2013, 4:43 am

      At last a column by Hostage!! About bloody time!!

      Don’t get used to it;-) I’ve actually avoided several invitations from Phil. There’s an old movie cliché that sums up the situation exactly: “A good man always knows his limitations.”

      • inbound39
        inbound39
        August 10, 2015, 2:26 am

        Well you educated me on Meron and I have to say my information came from the Gorenberg article on Haaretz so thankyou for the correction and enlightenment. Growth and learning is always good.

  10. irishmoses
    irishmoses
    June 23, 2013, 8:11 pm

    Well Hostage, you’ve convinced me. Judge Meron is no longer a hero in my mind. He honestly told his superiors the state of the law regarding settlements then proceeded to tell them the best ways of circumventing that law. So, Meron is not the lone brave hero willing to speak truth to power that I thought he was.

    Still, from all I read regarding the current issue of whether he is acting under the influence of US, Israel, or and/or the Lobby, I remain unconvinced. It will be interesting to see how this plays out and whether Meron is reelected as presiding judge this fall.

    Gil Maguire

    • Hostage
      Hostage
      June 24, 2013, 4:18 am

      Still, from all I read regarding the current issue of whether he is acting under the influence of US, Israel, or and/or the Lobby, I remain unconvinced. It will be interesting to see how this plays out and whether Meron is reelected as presiding judge this fall.

      The US and Israel have done quite a bit of arm twisting and blackmailing in public. So, I couldn’t put it past either government to do the same in private – and there’s some evidence of that sort thing in the dislosure by Wikileaks of cables on the subject of ICC liability between the two governments.

      In the Perišić case, the parallels between the roles played by NATO commanders in Afghanistan and the defendant’s role were brought-up during the trial. In the Appeals Chamber hearings, the parallels between the defendant’s actions and those of NATO leaders who provided arms and support to the Libyian rebels were highlighted. The subject inevitably comes up in connection with governments that supply arms and support the Syrian rebels without any UN mandate, i.e. See A Shared Responsibility Trap: Supplying Weapons to the Syrian Opposition http://www.ejiltalk.org/a-shared-responsibility-trap-supplying-weapons-to-the-syrian-opposition/

      What is obvious, is that prior to the Perišić case, “special direction” was not black letter law in the ICTY. Further still, it wasn’t part of customary state practice or any conventional international law on the subject. At most, it represents a preference.

      There are experts, like Prof. Jordan Proust, who is on the ABA panels for the ICC, the ASIL President’s panel on international criminal law, and who has co-authored a standard textbook on the subject, “International Criminal Law”, with Bassiouni, Scharf, Sadat, Gurule, and Zagaris commenting that the ICTY “just made it up”. He also noted that “the newly articulated preference in the ICTY limits the reach of responsiiblity withn the ICTY under well-documented customary international legal responsibility.” http://www.ejiltalk.org/danish-judge-blasts-icty-president/comment-page-1/#comment-118330

      He reminds us that “pushing other judges to adopt new legal doctrines should be the primary focus here — especially when those new legal doctrines are not supported in prior customary international law concerning the reach of individual responsiiblity. The ICTY is supposed to apply law, not to “make it up” on their own. http://opiniojuris.org/2013/06/17/the-real-judge-meron-scandal-at-the-icty/

      • Hostage
        Hostage
        June 24, 2013, 6:52 am

        P.S. It’s also very obvious if you follow the official reports that the U.S. Justice Department and the Judges of the Military Tribunals in Guantanamo haven’t gotten word yet that “special direction” is supposedly black letter law when it comes to individual liability or responsibility for alleged Muslim war crimes involving a joint criminal enterprise.

        In fact, a plurality of the US Supreme Court Justices held in Hamdan v. Rumsfeld that conspiracy to commit war crimes wasn’t a triable offense within the jurisdiction of the military commissions, because it was not supported by the law of war.

        But somehow the Justice and Defense departments have soldiered-on with their prosecutions of Muslims for conspiracy regardless, i.e. U.S. won’t drop conspiracy charge against 9/11 plot suspects

        (Reuters) – The Pentagon appointee overseeing the Guantanamo war crimes court refused on Friday to drop conspiracy charges against five accused plotters of the September 11 attacks despite the chief prosecutor’s concerns that the charge might not withstand appeals. . . . Defense lawyers have argued for years that conspiracy was not recognized as a war crime in 2001, when al Qaeda operatives slammed hijacked passenger jets into the World Trade Center in New York, the Pentagon and a field in Pennsylvania.

        The defendants are being tried under a law passed by the U.S. Congress in 2006 and revised in 2009, which designated conspiracy and providing material support for terrorism as war crimes.

        CONVICTION STRUCK DOWN

        In October, a U.S. appeals court in Washington struck down the material support conviction of deceased al Qaeda leader Osama bin Laden’s driver, former Guantanamo prisoner Salim Hamdan, on grounds that the charge could not be applied retroactively to events that occurred in 2001 and earlier.

        http://www.reuters.com/article/2013/01/18/us-usa-guantanamo-idUSBRE90H19G20130118

  11. MRW
    MRW
    June 23, 2013, 8:31 pm

    Excellent. Thank you. It confirms the unctuousness Meron displayed in his BBC Hardtalk interview where he made the same excuses you accuse him of in your tag paragraph. Glad you’re posting as a headliner.

  12. JennieS
    JennieS
    June 23, 2013, 10:00 pm

    Thank you Hostage for this interesting information. I do appreciate this site and its informed authors and commentators – I wouldn’t even try to locate the information provided by links in articles and comments on my own.

    Also thank you to HarryLaw for the link to Talknic’s site – I have long been impressed by his/her comments in this and other fora.

    OT I know but have you seen this article in Ha’aretz http://www.haaretz.com/news/diplomacy-defense/israel-blocks-east-jerusalem-children-s-festival-citing-link-to-palestinian-authority-1.531576 ?
    Another example of petty oppression of Palestinians by Israel, apparently just because they can.

  13. DICKERSON3870
    DICKERSON3870
    June 24, 2013, 12:31 am

    RE: “Meron did advise that ‘civilian settlement’ of the occupied territories would contravene the 4th Geneva Convention. But he also advised that, if the government decided to establish settlements in the Golan Heights anyway, it was essential that it be done by the army in the form of (the now-familiar) Nahal camps that would not point to the establishment of permanent settlements.” ~ Hostage

    FOR SHIMON PERES’ ROLE IN ESTABLISHING THE WEST BANK SETTLEMENTS, SEE:
    “When the Gods Laugh”, by Uri Avnery, CounterPunch.org, 6/21/13

    [EXCERPTS] . . . The next opportunity [for Shimon Peres to become Prime Minister] arose after the 1973 Yom Kippur war. Golda Meir and Dayan were pushed out by an incensed public. Peres was the obvious candidate for Prime Minister. But lo and behold, at the last minute Yitzhak Rabin appeared from nowhere and snatched the crown. Peres was left with the Defense Ministry.
    The next three years [during mid-1970s] were a continuous story of subversion, with Peres trying by all available means to undermine Rabin. As a part of this effort, he allowed right-wing extremists to establish the first settlement in the heart of the West Bank – Kedumim. He has rightly been called the father of the settlement movement, as he was earlier called the father of the atom bomb.
    Rabin coined a phrase that stuck to him: “Tireless Backstabber”.
    This chapter ended with the “dollar account”. Upon leaving his former job as ambassador in Washington, Rabin had left an open account in an American bank. At the time, that was a criminal offense, generally settled with a fine, but Rabin resigned in order to protect his wife.
    It was never proved that Peres had a hand in the disclosure, though many suspected it. . .
    . . . But this time the Gods seem to have decided that enough was enough. Katzav was accused of raping his secretaries, the way was clear for Peres. He was elected [President].
    Since then he has been celebrating. The remorseful Gods shower him with favors. The public, which detested him for decades, enveloped him with their love. International celebrities anointed him as one of the world’s great.
    He could not get enough of it. Hungry for love all his life, he swallowed flattery like a barrel without a bottom. He talked endlessly about “Peace” and the “New Middle East” while doing absolutely nothing to further it. Even TV announcers smiled when they repeated his edifying phrases. In reality he served as a fig leaf for Netanyahu’s endless exercises in expansion and sabotaging peace.
    The culmination came this Tuesday. Sitting alongside Netanyahu, Peres celebrated his 90th birthday
    (two months before the real date), surrounded by a plethora of national and international celebrities, basking in their glamor like a teenager. It cost a lot – Bill Clinton alone got half a million dollars for attending.
    After all the cruelties they had inflicted on him all his life, the Gods laughed benignly.

    ENTIRE COMMENTARY – http://www.counterpunch.org/2013/06/21/when-the-gods-laugh/

    P.S. ‘Course I’m respectable. I’m old. Politicians, ugly buildings, and whores all get respectable if they last long enough.” ~ Noah Cross (played by John Huston) in the 1973 film Chinatown.

    P.P.S. Bill Clinton’s Racist ‘Hope, Arkansas’ Postcard – http://serr8d.blogspot.com/2007/10/bill-clinton-racist-postcard-buy-it-now.html

  14. seafoid
    seafoid
    June 24, 2013, 1:10 am

    I think there are 2 separate settlement waves that need to be looked at. The first is straight after 1967 in East Jerusalem where they just threw up as many buildings as they could as fast as possible.

    The second came post 1977 with the God-inspired victory of the Mizrahi driven Likud when they decided to just go for it and take over the rest of the West Bank by deciding that any land they fancied could be turned into Israeli “State land” by invoking Ottoman law.

    http://www.nybooks.com/blogs/nyrblog/2012/jan/25/how-occupation-became-legal/

    “just hours after the ruling was handed down, Ariel Sharon, a keen supporter of the settlement project who was then Israel’s Minister of Agriculture, organized a meeting to discuss how to circumvent it. Alexander Ramati, then a legal advisor to the West Bank military command, raised his hand to tell Sharon about an Ottoman concept known as “Mawat land.” The Ottomans, who had controlled Palestine until World War I, had used the term to designate land far enough from any neighboring village that a crowing rooster perched on its edge could not be heard. Under Ottoman law, if such land was not cultivated for three years it was “mawat”—dead —and reverted to the empire. “With or without your rooster, be at my office at 8:00 in the morning,” Sharon told Ramati, who was soon crisscrossing the West Bank in the cockpit of a helicopter, identifying tens of thousands of uninhabited acres that could be labeled “state land” and made available to settlers, notwithstanding the Geneva Convention’s prohibition on moving civilians into occupied territory. In the years that followed, a string of new settlements was built on this territory, eventually prompting another challenge before the Israeli High Court. This time, the Court denied the challenge, ruling that settlement construction was permissible while Israel served as the temporary custodian of the territory. This provided a legal basis for land expropriation that has since enabled hundreds of thousands of Israelis to relocate to the West Bank.

    Surprisingly little is known about the legal apparatus that has enabled and structured the occupation. Filmed in nine days but based on years of archival research, The Law in These Parts aims to expose it. Even before the 1967 Six-Day War, the film reveals, officers in the army’s legal corps drew up guidelines for a separate system of laws that could be applied to territory under IDF control, rules they were convinced could strike a balance between order and justice. But by the time the first Palestinian Intifada erupted in 1987, detention without trial and convictions based on secret evidence had become standard operating procedure in the military courts entrusted with this task. One reason Israel did not simply extend its own laws to the West Bank and Gaza Strip was that doing so would “imply certain things you may not want,” an official in the film explains – in particular, that Palestinians living in the occupied territories were citizens with the same rights as Israelis. (In contrast, Jewish settlers in places like Hebron were spared the military justice system and granted access to civilian courts in Israel.) Director Ra’anan Alexandrowicz, an Israeli known for his meticulously researched documentaries, initially planned to make these Palestinians the film’s protagonists. Instead, the documentary focuses on the handful of Israeli legal officials who, working largely in the shadows, set the ground rules for an occupation now in its forty-fifth year.
    The architects of this parallel justice system believed that what they were designing was enlightened and progressive

    …………
    But Alexandrowicz points out that international law “clearly forbids transferring population from the occupying state to the occupied area.” He asks Shamgar, “Why didn’t the court see this as something it needed to stand up against?” Shamgar glances to the side, a trace of exasperation ruffling his face. “That is a question after the fact,” he says.

    “Theodor Meron provided the legal rationale for settlements”. Ariel Castro provided the moral rationale for the sequestration and rape of 3 women in Ohio. What’s the difference?

    BTW none of this could have happened without the diplomatic cover of the US.

  15. Tuyzentfloot
    Tuyzentfloot
    June 24, 2013, 3:44 am

    Gorenberg’s interpretation just doesn’t make sense to me, while Hostage’s interpretation fits. Meron played the role of the legal adviser who lays out your options, the legal problems your actions can run into, and how to possibly circumvent the laws. I recall that the word choice “administered territories” was also a result of legal discussions. Something about being able to say you didn’t really annex them. Annexation is such an ugly word and people can use it against you. Later they started to use ‘Liberated’.

  16. ritzl
    ritzl
    June 24, 2013, 4:36 am

    Sounds like Meron was the John Yoo of his day and country.

    Thanks Hostage. Great article.

    • Hostage
      Hostage
      June 24, 2013, 5:07 am

      Sounds like Meron was the John Yoo of his day and country.

      Exactly. I wish I’d have thought of that.

      • seafoid
        seafoid
        June 24, 2013, 6:39 am

        I still don’t understand why the Zionists started the settlements.
        They have a foothold on the edge of Asia and are surrounded by Arabs.
        They say Israel is forever. Why would they want to take on all those people who are not Jewish? Expecting them to leave seems to have been very optimistic.

        Occupying Gaza was simply insane. Even if you could do it, why?

        “Treat them like dogs, those who want to can leave” was a fine epigram but very poor in terms of policy outcome.

        I would love to see Israeli population projections from 1967. This project is a total mess.

      • Hostage
        Hostage
        June 25, 2013, 5:47 am

        I would love to see Israeli population projections from 1967. This project is a total mess.

        Here is Meron’s boss, Foreign Minister Abba Eban, in 1967 speaking on the subject of the Arab population and some projections:

        Gaza territory was also security problem for Israel. Israel would like have the territory without the population but did not see how that could come about.

        West Bank presented particularly difficult problems. Incorporation of West Bank into Israel, with its large Arab population, would completely transform Israel’s national existence and reason for being. An Israeli demographic expert had estimated that at present rate of population growth this would produce an Arab majority in Israel within 15 years.

        In any case it would cause a total reshaping of Israeli politics, as Arab votes were sought, and thus produce alterations in structure of Israel that they did not desire. Neither could Arabs be incorporated into Israel without granting them Israeli citizenship. This would not be permitted by international community nor would it be acceptable to Israeli people themselves.

        Eban said they had also given thought to establishment of separate, autonomous Palestinian state on West Bank. This also has serious drawbacks. Days of autonomous dependent regions had really passed. Creation of Palestinian state might simply increase irredentist desires. There would be yet another Arab state on Arab scene. In a year or two it would ask for UN membership, and it would be admitted. Such prospects did not look attractive.

        http://history.state.gov/historicaldocuments/frus1964-68v19/d442

      • hophmi
        hophmi
        June 24, 2013, 5:11 pm

        Hostage’s argument boils down to this: Meron was the legal advisor for the Israeli Foreign Ministry, and therefore, he’s a bad guy. Lawyers offer their opinions to their clients. That’s all Meron is doing here as well. Since Hostage opposes this practice, perhaps he’d be willing to reveal the memoranda he has written for clients during his legal career, and to provide a mea culpa each time he advocated a position a court didn’t except or turned out to be wrong decades later. Perhaps he’d be willing to tell us about all of the times he held a position similar to Meron’s where he “spoke truth to power.” Because he hardly does so here, in a room where people accept everything he says, no matter how attenuated the source or how disingenuous the argument.

        How about it, Hostage? What’s your record of speaking truth to power?

        So he makes flippant comments comparing Meron, a guy who advised his government that a questionable practice was illegal, to John Yoo, a guy who did the EXACT OPPOSITE, advising his government that a questionable practice was quite legal.

        This opinion, quite clearly, sets out the law as most international lawyers would regard it; the writer is the LEGAL ADVISOR to the foreign ministry, not an ICJ judge or a leftist activist. Permanent settlements violate Geneva 4, even in places with unusual sovereignty histories like the West Bank; temporary military encampments generally do not.

        Apparently, now, in the zeal of Mondoweissers to never ever have anything good to say about an Israeli ever, the opinion of a liberal Zionist, written in 1967, at the height of Israeli triumphalism, that settlements were illegal under the Geneva Fourth Convention, is somehow bad because it included the view that temporary military encampments are legal.

      • Hostage
        Hostage
        June 25, 2013, 4:37 am

        Hostage’s argument boils down to this: Meron was the legal advisor for the Israeli Foreign Ministry, and therefore, he’s a bad guy.

        The rest of the commenters here grasped the fact that Meron was consciously advising his government on the best ways to go about violating both the intent and content of the Geneva Conventions.

        All you’ve done is prove that you’re completely dishonest too, while tossing around the usual ad hominem arguments. Stay classy Hophmi.

        Apparently, now, in the zeal of Mondoweissers to never ever have anything good to say about an Israeli ever, the opinion of a liberal Zionist, written in 1967, at the height of Israeli triumphalism, that settlements were illegal under the Geneva Fourth Convention, is somehow bad because it included the view that temporary military encampments are legal.

        Except, of course for the fact that Meron says that he was talking about “the land we are settling” and doesn’t actually say the military camps were only intended to be temporary. In the case of the Etzion bloc he certainly wasn’t recommending that the government say that some of the settlers were former owners who were “temporarily”returning to their homes .

      • Hostage
        Hostage
        June 25, 2013, 5:18 am

        This opinion, quite clearly, sets out the law as most international lawyers would regard it; the writer is the LEGAL ADVISOR to the foreign ministry, not an ICJ judge or a leftist activist. Permanent settlements violate Geneva 4, even in places with unusual sovereignty histories like the West Bank; temporary military encampments generally do not.

        Help us out Hophmi. What is this “land that we are settling” that Meron was talking about from the very outset? “Even if we settle an army and not civilians, we must, from the point of view of international law, have regard to the question of ownership of the land that we are settling.

        There is no exception for military settlements or colonies in the Geneva Conventions. So, the notion that these Israeli “settlements” don’t violate the Geneva Conventions, because they were initially established as quasi or pseudo-military camps has always been rejected as utter nonsense. Try reading the article, including Secretary Rusk’s 1968 memo.

        BTW, in 1968, the Convention the on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity was opened for signatures. It entered into force in 1970, before Meron labeled the UN HRC reports about illegal settlements and Arab home demolitions “lies and half truths”.

        That Convention removed the statutory limits under international law from the process of using temporary military camps in “eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid,”. http://www1.umn.edu/humanrts/instree/x4cnaslw.htm

      • talknic
        talknic
        June 25, 2013, 6:19 am

        hophmi “Hostage’s argument boils down to this: Meron was the legal advisor for the Israeli Foreign Ministry, and therefore, he’s a bad guy”

        Your dishonestly is impeccable. Hostage very clearly points to the objectionable behaviour: advising the Israeli Government how it might circumvent the law.

        “Since Hostage opposes this practice..”

        Hostage does not oppose advising a client. He rightly opposes attempting to circumvent the law.

        Another instance is the oft Zioquoted Schwebel/Lauterpacht ‘What Weight to Conquest’ opinion on the inadmissibility of acquiring territory by war. http://wp.me/PDB7k-Y#Schwebel

        When one looks closely it becomes quite clear that ‘acquiring’ territory is not the same as ‘restoring’ sovereignty. E.g., Syria has the right to ‘restore’ its sovereignty over the Golan. Israel had no right to ‘acquire’ any territory by war.

      • HarryLaw
        HarryLaw
        June 25, 2013, 11:07 am

        Meron “Even if we settle an army and not civilians, we must, from the point of view of international law, have regard to the question of ownership of the land that we are settling.”
        Israel’s IDF General Staff Order No 50.0303 of 1977 states inter alia,
        4/ No land or movable property in occupied territory may be seized or possessed or used without the consent of the owner unless it is necessary for the purposes of war and if allowed by the provisions of this order. and..
        State-owned land.
        15/ Once the territory has been occupied, possession of land owned by the enemy whose territory has been occupied is transferred to the IDF, and the IDF is responsible for the administration and maintenance of the lands. The right to ownership of the land remains, however, in the hands of the enemy state.

  17. NickJOCW
    NickJOCW
    June 24, 2013, 7:19 am

    You tell a lawyer what you want to do and it’s his job to make it legal.

  18. talknic
    talknic
    June 24, 2013, 9:05 pm

    As always…CHUNKY!!

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