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

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