1. Background
In July 1967 – one month after Israel's occupation of the West Bank, Gaza Strip, Sinai Peninsula and Golan Heights – the Military Advocate General (MAG), Colonel Meir Shamgar, appeared before a Knesset committee to discuss the responsibilities and obligations of the Israel Defence Forces (IDF) in the areas that came under its control.
Colonel Shamgar had prepared the MAG Corps for the event that a future war would find the army as an occupying force outside Israel's borders.Footnote 1 In doing so, he was following Israel's traditional legal opinion that saw the 1949 Armistice Agreements as reflecting Israel's international borders.Footnote 2 Shamgar was also abiding by a legal position that had been clarified in 1956, during the short-lived occupation of the Gaza Strip and the Sinai Peninsula in the Suez Crisis. Reacting to a draft proclamation that would have resulted in the annexation of those areas to Israel, Shabtai Rosenne, legal adviser to the Ministry of Foreign Affairs, prepared a memo explaining the basic principles of the laws of occupation. He emphasised that ‘[i]t is a rule of international law that a transfer of sovereignty occurs only under subsequent diplomatic agreements'.Footnote 3 Rosenne acknowledged the special status of the Gaza Strip under Israeli law, being part of former Palestine. He pointed out that according to Israeli law, the Minister of Defence had the authority to proclaim the area as subject to Israeli law, but he added:Footnote 4
[U]sing the powers granted by domestic Israeli law neither adds nor detracts from the international validity of the act, and in view of the overall circumstances, I am of the opinion that any country in the world will have the right to regard the annexation of the Gaza Strip to the State of Israel at this time as a step which contravenes international customary law.
In line with this doctrine, Colonel Shamgar began his presentation before the Knesset Committee, stating:Footnote 5
In terms of the legal background, our point of departure is that we have to respect both the fundamental pursuits of the State of Israel as its military forces begin to control an area that has been liberated by the IDF, and the rules of public international law that apply to the actions of any military in control of an area that was, until its entry, subject to the sovereignty of a foreign political entity.
The guiding rules in this realm are the rules of public international law, which are reflected in the Hague Regulations of 1907 … and in the … Fourth Geneva Convention on the Protection of Civilians in Times of War.
Reflecting the same approach, on 11 August 1967 the West Bank Military Commander issued the Order Concerning Security Provisions.Footnote 6 The Order stipulated (in Article 35):
The Military Courts and the Military Courts Administration shall observe the provisions of the Geneva Convention of August 12 1949 Relative to the Protection of Civilian Persons in Time of War in any matter connected with judicial proceedings. In any contradiction between this Order and the said Convention, the provisions of the Convention shall prevail.
2. The Article Appears
Shortly thereafter, Dr Yehuda Blum, a young lecturer at the Hebrew University of Jerusalem, penned the article ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria’.Footnote 7 As Beni Rubin relates,Footnote 8 ‘[l]ess than five months later, on 29 December 1967, Article 35 was repealed. This change of heart was based on [the] article published by Yehuda Blum’.
The same article became the centrepiece of Israel's official position as it was articulated in 1971 by Meir Shamgar, now Israel's Attorney General. Shamgar began his essay by warning himself and his audience against ‘the great difficulty in approaching problems connected with the actual implementation of the rules of warfare without influence by innate prejudices or deep-seated subjective outlook’.Footnote 9 However, the view he offered might not have been devoid of the same concerns. Arguing that the West Bank (or in his words, ‘Judea and Samaria’) and Gaza were not occupied territories, Shamgar invoked the said article by Blum, and concluded that:Footnote 10
[t]he territorial position [of the West Bank and Gaza] is thus sui generis … and the Israeli government tried therefore to distinguish between theoretical juridical and judicial problems … and the observance of the humanitarian provisions of the Fourth Geneva Convention.
The same conclusion applied, in Shamgar's view, to the Hague Regulations.Footnote 11
Shamgar incorporated Blum's slender but tantalising thesis almost in its entirety into his essay. In fact, nested within a 23-page article, Blum's argument was merely one paragraph long.Footnote 12 Blum presented his provocative thesis as if it were self-evident, and perhaps therefore not in need of extended and rigorous examination.
3. Assessing the Argument
Blum’s article, ostensibly devoted to an examination of the lawfulness of a military order under the law of occupation, actually explored a preliminary question: whether Jordan had valid title to the West Bank (referred to as ‘Judea and Samaria’). Concluding that Jordan had no title, Blum continued effortlessly to find, ‘clear[ly] from the preceding discussion’, that the law of occupation did not apply. Blum stipulated that there were two conditions (which he called ‘assumptions’) for the applicability of the laws of occupation: (i) the existence of ‘reversionary rights’ of the ousted legitimate government to the territory in question, and (ii) the occupier's lack of territorial claims over the area under its control. Having refuted the first condition in his preliminary assessment of Jordan's title, he concluded that ‘those rules of belligerent occupation directed to safeguarding that sovereign's reversionary rights ha[d] no application’ to Israel's control of the West Bank and, for similar reasons, also to Gaza.Footnote 13
In a long footnote, Blum alludes to the ‘far-reaching implications’ of his conclusion – namely, that ‘[s]ince in the present view no State can make out a legal claim that is equal to that of Israel, this relative superiority of Israel may be sufficient, under international law, to make Israel[‘s] possession of Judea and Samaria virtually indistinguishable from an absolute title, to be valid erga omnes’.Footnote 14 This argument implies that the occupier can evade its responsibilities by unilaterally asserting its relative superior title to that of the ousted government. This view undercuts the purpose of the law of occupation – namely, to preserve the legal status quo until an agreement is reached.
While Blum acknowledged that the part of the law of occupation ‘which is intended to safeguard the humanitarian rights of the population’ did apply,Footnote 15 he failed to identify the scope of those ‘humanitarian rights’. In a footnote, Blum refers to Article 47 of the Fourth Geneva ConventionFootnote 16 to prove the ‘severability of the rules of a humanitarian nature from those protecting the ousted sovereign's reversion’,Footnote 17 but the necessary conclusion, that all of the provisions of the Convention must qualify as ‘humanitarian’ and are hence applicable, is not raised. The text of Article 47 secures to the inhabitants of occupied territories in unqualified terms all ‘the benefits of the present Convention’ regardless of the political status of the territory. Pace Blum, the only conclusion must be that the said Convention applied in its entirety, despite the alleged lack of a lawful reversioner.
The ramifications of the ostensible distinction between the humanitarian rights of the population and the rights of the lawful sovereign would become clear only a decade later. Then, under a Likud government, Israel contended that Article 49 of the Fourth Convention, which prohibited the transfer of the occupier's own civilians to occupied territories, was ‘intended to protect the rights of the “legitimate sovereign”’, hence ‘[did] not apply in respect of Jordan’, and therefore did not prohibit Jewish settlements.Footnote 18 Blum, now the Israeli Ambassador to the United Nations, asserted during a Security Council debate on 13 March 1979 that ‘[w]e do not regard ourselves as foreigners in those areas. The Israeli villages in Judaea [sic], Samaria and the Gaza District are there as of right and are there to stay’.Footnote 19 Blum sought to assure the audience that ‘no Arab inhabitants have been displaced by the establishment of the villages in question’.Footnote 20
To support Blum's thesis, his article refers only to one authority, Gerhard von Glahn's treatise, The Occupation of Enemy Territory,Footnote 21 although the reference hardly supports Blum's conclusion. Blum draws on von Glahn's reference to ‘the sovereign, the legitimate government of the occupied territory’ and seeks to draw from it that the ousted government must have a valid title over the area to be ‘legitimate’. However, this was not von Glahn's view at all. Throughout his book, von Glahn refers to ‘the legitimate government’ or ‘the legitimate sovereign’ to distinguish it from the occupier (von Glahn was obviously relying on the text of Article 43 of the Hague Regulation,Footnote 22 which refers to ‘[t]he authority of the legitimate power’, to emphasise that the passing of that authority ‘in fact’ to the occupier does not assign to the latter any legal title). Von Glahn never recognises an occupation of a territory to which title is disputed as a distinct type of occupation.Footnote 23
The quote from von Glahn's book upon which Blum relies is taken out of a special chapter devoted to ‘The Legal Status of Defeated Germany’. In this chapter, von Glahn singles out the unique situation of Germany after its unconditional surrender in 1945. Von Glahn does not discuss relative claims to title but an entirely different matter: the situation of debellatio, when the ousted government ceases to exist. In other words, von Glahn's quote was taken out of context.
What for von Glahn is a unique and ‘most perplexing legal controversy’ that merits a separate chapter becomes for Blum the sole example to support his thesis. What for von Glahn were ‘[f]our major schools of thought [which] have developed among the numerous writers who have speculated on the legal status of post-surrender Germany’Footnote 24 becomes for Blum – who again relies only on von Glahn on this point:
a considerable number of authors [who] have taken the view that when the last Government of the Third Reich … was dissolved … the Hague Regulations as such ceased to apply to that situation, since German sovereignty ceased to exist.
While the Allies’ title to Germany was not challenged, its seemingly logical consequence – namely, the inapplicability of the law of occupation to the administration of the territory – was convincingly contested, especially by German scholars.Footnote 25 They emphasised the predicament of the population under what was actually alien domination. Formal legal principles aside, they argued, international law must not abandon its concern for the local population only because the national institutions had disappeared. Max Huber, a towering figure in international law and the then President of the International Committee of the Red Cross, voiced his discomfort with the Allied legal claim in a letter to US Secretary of State James F Byrnes:Footnote 26
Unconditional surrender of the German and Japanese forces which resulted in their laying down arms without the special reservations usually inserted in armistice conventions, does not ipso facto imply that the capitulating power abandons all claim to the benefits of the Hague and Geneva Conventions in favour of its nationals.
The drafters of the Fourth Geneva Convention sought in 1949 to clarify the scope of protection of inhabitants in occupied territories. They did so in Article 2 of the Convention. As von Glahn points out, this article ‘represents a definite and, in the opinion of this writer, successful attempt to void some of the shortcomings of the Hague Conventions and Regulations’.Footnote 27 Blum does not refer to von Glahn on this point; nor does he even mention Article 2. However, this article is pertinent as it emphasises that the law of occupation applies regardless of the status of the territory, and what matters is the existence of an international armed conflict (even if an effective attack meets with no armed resistance):
[T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
The famous debate about Israel's narrow interpretation of Article 2 with regard to the West Bank and Gaza (namely, whether the reference to ‘the territory of a High Contracting Party’ signifies a condition that the ousted government must have valid title over the territory) did not begin with Blum's article. This claim was elaborated for the first time more than a decade later by Shamgar, by now the Deputy President of the Israeli Supreme Court, soon to become its President.Footnote 28
Blum's argument reflects the understanding in the early days of the crystallisation of the concept of occupation, when the occupation regime was designed as a ‘pact between state elites, promising reciprocal guarantees of political continuity’.Footnote 29 In those days, the complete subjugation of territory might assign title to the conqueror (based on the doctrine of debellatio), but even such an early understanding of the regime would eschew the view that a claim for a relative better title could undermine the temporary measure that the concept of occupation was designed to provide.
Blum's article was written in 1967, long after the claim of debellatio was rejected in the context of Second World War occupations (the recognition of governments in exile, the status of Germany and Japan), long after it was laid to rest by Article 2 of the Fourth Geneva Convention.Footnote 30 By 1967, the principle of self-determination of peoples had gained the status of a legal right, and human rights of individuals had been inscribed in solemn declarations and covenants.Footnote 31 By that time, the ousting of a government could no longer divest the inhabitants of an occupied area of their entitlement.
Was Blum's article an exercise in what some today would call ‘lawfare’, or a serious effort to approach the problem ‘without influence by innate prejudices or deep-seated subjective outlook’?Footnote 32 All one can conclude from revisiting Blum's text is that it offered less than a serious effort to elucidate the legal questions. His brief argumentation leaves out too much to enable an informed assessment of the underlying claim. Did the article influence Israeli decision-makers or has it served as an apology for their preferred agenda? It would be distressing to think that indeed it was this article that was responsible for the legal about-face in 1967.
