Meir Shamgar, former president of the Israeli Supreme Court who passed away on October 19, was described by Israeli Prime Minister Netanyahu as one who “has played an important role in shaping Israel’s legal foundations, including the legal policy in Judea and Samaria.” Netanyahu is right. Judge Shamgar was the chief architect of the Israeli legal regime of occupation, settlement construction, and apartheid. More specifically, he is responsible for the removal of judicial impediments to war crimes.
Judge Shamgar’s main influence was in denying Palestinians the protections that international law affords to human beings under occupation, leading to Israel’s deepening of the occupation in the West Bank and Gaza Strip.
As far as Judge Shamgar was concerned, the Gaza Strip and the West Bank are ‘possessed territories’, which means that Palestinians residing in these territories are not entitled to human beings’ rights under occupation, nor are they entitled to Israeli citizenship. Thus, Judge Shamgar fashioned a law of denied occupation, one which amounts to apartheid.
Judge Shamgar attempted to hold the rope at both ends in determining the status of the occupied territories. He obscured the question of the applicability of the Geneva Convention in these territories. According to the official Israeli official, the Geneva Convention does not apply in the occupied Palestinian territories, but Israel willingly accepts the application of its humanitarian principles. Israel does not accept the prohibition to establish settlements in occupied territory as one of the humanitarian principles of the Geneva Convention, and the Supreme Court should not discuss the question of the applicability of the statue since the state voluntary accepts it.
The person responsible for this misconception is Judge Shamgar. He followed those colonial-era thinkers, such as German historian and statesman Heinrich Gotthard von Treitschke, who argued that international law did not apply to ‘barbarian peoples’. Judge Shamgar did not talk explicitly about barbaric peoples, but his claim – which was completely rejected by the International Court of Justice – was that the Geneva Convention is only applicable in territories previously under a legitimate sovereign. The International Court of Justice ruled that the treaty’s aim was not to protect the states, but the inhabitants of the occupied territory, and therefore it should not matter whether said territories were seized from a state.
Judge Shamgar was one of the main architects of the legal foundations of the Israeli occupation. A key element of this, even before the settlements were established, is that Israeli citizens residing in the occupied territories are subject to laws different from those which govern the Palestinians. Judge Shamgar created an apartheid system in doing so, and this was a recurring motive in his work. After Dr. Baruch Goldstein, an Israeli settler, killed 29 Palestinians during his 1994 massacre in Hebron, the occupation soldiers killed even more Palestinians. Then, under the pretext of protecting the Palestinians, the commission of inquiry, which Judge Shamgar chaired and which investigated the incident, deepened apartheid by concluding that it was necessary to subject the settlers to Israeli civil police, rather than to the army. In other words, the commission punished the Palestinians for the massacre they had experienced.
In addition, Judge Shamgar and other Israeli judges did not recognize the basic principle of “no taxation without representation.” International law prohibits the occupying power from imposing new taxes on the occupied population. In the mid-1970s, Israel changed its taxation composition in Israel so that citizens were subject to VAT. Israel decided to impose VAT on Palestinians in the occupied territories too. Judge Shamgar approved such imposition of taxes. He even allowed the government to take into account Israel’s economic interests when deciding on the taxation of the Palestinians. American citizen and Palestinian activist Dr. Mubarak Awad organized a Gandhi-inspired tax revolt against the Israeli occupation during the first intifada in the 1980s. Awad argued that the Palestinians should not finance the occupation through their taxes. The Israeli Supreme Court, under future President Aharon Barak, approved Awad’s deportation from the country. The Israeli Supreme Court forced the Palestinians to let the Israeli occupation sustain itself by their taxes.
Meir Shamgar created a vicious cycle: The lack of recognition of the rights of the occupied population led to the continuation of the occupation, which caused a greater violation of the occupied population’s rights. He took pride in allowing the Palestinians to petition the Israeli Supreme Court. However, instead of ruling by justice or by law, the Israeli legal system has been an arbitrator who does not recognize the applicability of the very law which protects the Palestinians, and has systematically distorted said law.
Moreover, over the years, Judge Shamgar has granted a stamp of approval to a variety of blatantly illegal Israeli actions, such as the deportation of 400 Palestinians to Lebanon in 1992, even before a hearing. He also approved the pardon granted to Israeli General Security Service personnel who killed captive terrorists in 1984, thus violating the rule rule of law.
Judge Shamgar did not apologize for his crimes until his death. In the documentary “The Law in these Parts“, he claimed that there was no connection between the judicial decisions that legitimized settlements and the phenomenon of settlements themselves. Supporters of human rights, and hopefully Israeli society, should rebel against Judge Shamgar’s legacy.