In 1968, Israel’s Own Lawyer Told It That Razing Suspects’ Homes Is Illegal

Gershom Gorenberg

My new column is up at Haaretz:

It was March 1968. Yaakov Herzog, director-general of the Prime Minister’s Office, received a memo marked “Top Secret” from the Foreign Ministry’s legal adviser, Theodor Meron. As the government’s authority on international law, Meron was responding to questions put to him about the legality of demolishing the homes of terror suspects in East Jerusalem and the West Bank and of deporting residents on security grounds.

His answer: Both measures violated the 1949 Fourth Geneva Convention on the protection of civilians in war. The government’s justifications of the measures – that they were permitted under British emergency regulations still in force, or that the West Bank wasn’t occupied territory – might have value for hasbara, public diplomacy, but were legally unconvincing.

The legal adviser’s stance in 1968 is important today precisely because it is unexceptional. It’s the view of nearly all scholars of international law, including prominent Israeli experts. The memo shows that from the very start of the occupation, central figures in the Israeli government knew that deportations and demolitions violated Israel’s international commitments, and not just in the eyes of outside critics.

Yet both measures have been used ever since. If any later Israeli leaders saw Meron’s opinion, they ignored it, and so misled the public and Israel’s supporters abroad about the legality of their policies. If later leaders did not see the document, they nonetheless engaged in deliberate naivete, convincing themselves of the hasbara line in the face of the evidence.

Meron’s memo was discovered in Yaakov Herzog’s office files in the State Archives by Akevot, a new organization that has taken on the important task of searching archives for material shedding light on human rights issues in the Israeli-Palestinian conflict. (Herzog, by the way, was the uncle of the current Zionist Union leader, Isaac Herzog.) Last week, it made the document public. (You can see the original Hebrew document here; English translation here.)

The memo is not the first evidence of Meron’s warnings, though. In 2006, I published another of his legal opinions, which I found in the late Prime Minister Levi Eshkol’s declassified office files. Written in mid-September of 1967, about three months after the Six-Day War, it responds to a query from Eshkol’s bureau about the legality of establishing settlements in the West Bank and Golan Heights.

He answered, “My conclusion is that civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention.”

Read the rest on the Haaretz site.

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