Kfar Etzion, the Meron Opinion and the Illegality of Settlement

Gershom Gorenberg

Today, according to the Hebrew calendar, is the anniversary of the founding of the first Israeli settlement in the West Bank following the Six-Day War. (Settlement had already begun in the Golan Heights.) In honor of the anniversary, I’ve decided to begin a project that’s been on my mind: An online archive of important historical documents dealing with the history of settlement.

The archive is located here. The first document is Theodor Meron’s legal opinion on civilian settlement in the occupied territories.

Meron was legal counsel of the Israeli Foreign Ministry in September 1967. He was asked by the Prime Minister’s Office for his opinion on the legality of civilian settlement in the West Bank and Gaza Strip. In a cover note to his opinion, he summarized his conclusion: “…civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention.”

Less than a week after Meron sent his memorandum to the Prime Minister’s Office, Prime Minister Eshkol told the cabinet that he had approved settlement at Kfar Etzion.

The file here includes Meron’s cover note, dated September 18, 1967; another cover note, showing that the opinion was passed onward to the justice minister; and the opinion itself.

For further context, see The Accidental Empire, Chapter 4, and my article in The New York Times, “Israel’s Tragedy Foretold,” March 10, 2006.

19 thoughts on “Kfar Etzion, the Meron Opinion and the Illegality of Settlement”

  1. Who says Meron’s opinion is the last word? Judea/Samaria are “disputed territories”, not simply territories occupied by military force. according to international law. I realize there are different opinions but Eugene Rostow pointed out this difference. In any event, one can argue that Israel has no sovereign right to control the neighborhood Haim and Gershom live in South Jerusalem since, according to the 1947 UN Partition Resolution, Jerusalem was supposed to be a “Corpus Separatum” controlled by the UN, and so anthing the Israeli gov’t does there is “illegal”. How can it be “illegal” for Jews to live in places, like Kfar Etzion, where they lived before 1948, or Hevron, where Jews have lived pretty much continuously for 4000 years?

  2. And how can it be “illegal” for Palestinians to live in places like al-Birwa, Saffuriya, Mujaydil, and hundreds of other towns destroyed in or after 1948, where they had lived for many centuries? Even those who are Israeli citizens are prohibited to return to their ruined villages, even those that have not been covered over by the Forests of Forgetfulness, or new Jews-only towns.

    It’s not illegal for Jews to live in Hebron – Arafat agreed to the town’s partition after all, rather unfortunately in hindsight. If those Jews who live there behaved like I’m sure you expect from your own neighbours, there would be no problem. Try and picture, if you can, a gang of, say, Reform Jews, moving into your neighbourhood and engaging in antics like those of the Hebron settlers.

  3. Centuries? This has been a land of in-migration for generations. There are Jews and Arabs both whose families have been here for “centuries” but neither is the majority.

    How is it illegal? Because we’re in a state of war, absent a peace agreement, and the refugee camps of Gaza, Lebanon and Syria are hotbeds of the let’s-destroy-Israel school of thought.

    Germans aren’t allowed to live in Alsace-Lorraine and Prussia, either, even though their families lived there “for centuries.” Loss of territory is generally one of the results of losing a war.

    Likewise, it is illegal for Jews to now enter and/or live in Gaza. Bounderies have to mean something or they lead to future conflicts.

  4. Sorry YBD, but in spite of how much as you would like to believe it, essentially no one in the world considers the occupied territories to be “disputed”. Not even the government of Israel. Also, where are these 4,000 year old Jews you speak of? And how have they so far gone unnoticed by the medical community?

    Also it’s not the Jewishness of the West Bank colonists that makes their presence ipso facto illegitimate. It’s the fact that they are citizens of another country. And it would be the same whether they were Jews sent by Israel or Buddhists sent by China. And I think you’re purposely trying to confuse the issue by making that connection. Shame on you.

    Now I personally have no problem with Israelis of any religion immigrating to the occupied territories, but that’s not for me to decide. It’s for the citizens of Palestine to decide their own immigration policies, just as Israel decides whom it will admit into its borders.

  5. Joe , you are wrong. The Israeli Supreme Court has ruled the settlements are legal, so has the International Law Section of the US State Department. This is an arid argument that goes around and around and around, something like the question of whether the Palestinians are a “people” or not. Joe, you can throw all the documents you want at me claiming that they are “illegal”, and I couldn’t care less. There are something like half a million Jews living in territory capture in the Six-Day War, and there are going to be more in the future, because this is the only way for peace to achieved, by Israel having more Jews living in Judea/Samaria. We are not going to pack up an leave because you and some international lawyer say so. The question is political.

  6. The only thing you’ll accomplish by colonizing more and more of the West Bank will be the eventual absorption of the native population into Israel. But I suppose you don’t care about that because you imagine your actions will eventually conjure the Messiah to float down on a magic carpet to save Israel. But that’s not going to happen.

    Also, the status of the settlements is not analogous to whether Palestinians are “a people” because the latter is simply an irrelevant question. The legitimacy of the settlements on the other hand goes directly to the heart of the conflict. And if you could really “could care less” about this question, then why would you even bother arguing about it in the first place? It’s like you’re intent on disrupting every discussion with your downpour of criticism, and then scurry away from the topic whenever someone calls you on your BS.

  7. aliyah06, you may want to check your calendar some time. Germany isn’t at war anymore with France or Poland. Germans can live in Alsace, Lorraine, and Silesia, just like French and Polish people can and do live here. We have this thing called the European Union, you know.
    While it’s true that losing a war usually came with territory loss, since 1945 that has been explicitly outlawed in the UN charter. It doesn’t matter if the war is aggressive, defensive, or just plain reckless in nature.

    Up until the late 19th/early 20th century Jews were a tiny minority in Palestine. But apart from that, are you seriously saying that immigration by Jews automatically generated a claim to the land, while immigration by Arabs was legally, morally, politically entirely inconsequential in this regard?

    Re returning to their ruined villages I was referring specifically to Palestinians with Israeli citizenship, not those who live abroad. Are you “at war” with these, too, and is that why you want to continue denying them their history, identity, and narrative?

    It’s illegal for *Israelis*, not *Jews*, to enter Gaza, and that’s entirely because Israel chose to make it so. It absolutely doesn’t follow necessarily from there being a boundariy. Ask Jeff Halper if Gazans have any objections to Jews/Israelis coming for a visit in good spirit. Or ask Gershom and Haim the same re WB Palestinians.

  8. Well, we don’t have a “Middle Eastern Union” and aren’t likely to any time soon — but while patting yourself on the back for the EU, keep in mind that it took Europeans centuries of warfare to exhaust each other into peace. Your EU is a rather fragile new creation, and until the borders dropped in the ’90s, no, Germans could NOT live in Alsace-Lorraine, so you needn’t be so smug.

    No, I never said that immigration creates a Jewish claim to the land. History and law do — historically this was our land under occupation for over 1000 years. I know that’s an inconvenient fact for those like you who wish to portray Israel as some lately invented European colony, but Jewish claims to this land go back to Abraham. Our texts, our holidays, our language, our customs all revolve around the cycle of the year in Israel, not in Poland or South Africa or Brazil. We, like every other people on earth, are entitled to self-determination in our own country. It’s what you expect for the Palestinians–so why deny it to the Jews?

    You’re wrong about the UN Charter–international law still makes a clear distinction between defensive wars and wars of aggression:

    “International jurists generally draw a distinction between situations of “aggressive conquest” and territorial disputes that arise after a war of self-defense. Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, wrote in 1970 regarding Israel’s case: “Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.”

    Here the historical sequence of events on June 5, 1967, is critical, for Israel only entered the West Bank after repeated Jordanian artillery fire and ground movements across the previous armistice lines. Jordanian attacks began at 10:00 a.m.; an Israeli warning to Jordan was passed through the UN at 11:00 a.m.; Jordanian attacks nonetheless persisted, so that Israeli military action only began at 12:45 p.m. Additionally, Iraqi forces had crossed Jordanian territory and were poised to enter the West Bank. Under such circumstances, the temporary armistice boundaries of 1949 lost all validity the moment Jordanian forces revoked the armistice and attacked. Israel thus took control of the West Bank as a result of a defensive war.”

    Are you seriously suggesting that any of the Israelis evacuated from the Gaza Strip would be allowed by Hamas to come back and live there? Halper was merely a visiting show-boater with Jewish and academic credentials (the latter apparently greatly exaggerated) who was good for PR—those symbolic “passports” aren’t going to get him a plot of land and the right to build a home now, are they? The first thing Jordan did when it stopped being under British rule was pass a law saying “no Jews allowed” and that was long before Israel existed.

    And remember, all those “Palestinian villages” have their mirror image in Jewish villages that were uprooted and destroyed–Kfar Darom, Kfar Etzion, et al existed as villages before the Partition and the Arabs had no hesitation at all about destroying them—nor are any Arab voices raised in protest of concern over Jewish citizens who lost their homes.

    And yes, we were at war with them — many of those destroyed villages were housing local fedayeen, or insurgent Lebanese, Iraqi, Egyptian and Jordanian military units. They backed the wrong side. Their people killed or tried to kill ours. They lost. Now Israel is a fact and their villages are history. Am I supposed to feel sorry for them?

    Do you feel sorry for today’s Germans whose grandparents’ homes were bombed? Let’s not get ridiculous here.

  9. Ali, I think we should all be able to agree that irredentism and religion are piss poor justifications for the existence of Israel or any other country. Lunatic groups like Al-Qaeda use the same sort of reasoning to buttress their dream of an Islamic caliphate ruling all the Middle East.

    Israel has all the right in the world to exist: It’s a member state of the United Nations. It doesn’t need to resort to the kind of arguments you put forward. If we’re going to use those as the basis for Israel’s existence, we might as well just save ourselves a lot of time and just say that it’s manifest destiny.

  10. How many Israelis in the West Bank will suffice for peace to be reached? Or is that too much of a paradox?

    Y. Ben-David excoriates those documents which he does not care about and then thrusts up two documents which he provided no link or source to as barren for his (supercilious) opinion as dogma. Way to go; I wish I could be that duplicitous. If you don’t care about their illegality, then why do you invoke those two statutories to support your opinion of their legality?

    Fine. Don’t pack up and leave because the law states so. Maybe more pain will be inflicted by both sides. Maybe that’s the price you’re willing to pay for this dream. Genocide? Ethnic cleansing? Denial of existence? What lengths will be appropriate for your goal of “peace”? Is it peace within yourself or peace with those who oppose you? Do you even care about those who oppose you? I don’t think you do.

    And you think that you will reach peace that way?

  11. But of course Germans could live in other EU (then EC) countries, including France, before 1990. GDR citizens did have trouble leaving their country westwards, but since the FRG didn’t recognize a separate GDR nationality, East Germans were automatically recognized “unitary” German, and hence EC citizens here – once they got here – and with that they had all the rights of other EC citizens.
    Former arch-foes Germany and France were actually among the driving forces behind European reconciliation after WW II, and the founding of the EEC in 1957, and not out of “exhaustion” either.

    As for Jewish claims going back to Abraham, Erich Fromm answered that already: “If all nations would suddenly claim territory in which their forefathers had lived two thousand years ago, this world would be a madhouse.”
    Self-determination in your own country may be what you want, but it’s also a red herring. The world, for better or worse, isn’t divided along ethnic/national lines. There are plenty of ethnic/national minorities almost everywhere, and ideally they have the self-determination with full civil rights they’re entitled to within their host countries. The notion is not one of domination but of cooperation. The world at large isn’t nearly there yet, but that doesn’t relieve us from trying. “The others are bad, too” ceases to be an excuse upon outgrowing kindergarten.
    All that isn’t exactly new, it was proposed long ago by Zionists like Ahad Ha’am, Martin Buber, and Judah Magnes (and also Mahatma Gandhi). We could idly speculate till the cows come home where we’d be today if they had won the argument over the Jabotinskys and Ben Gurions. We do know however that the “traditional” approach – if force doesn’t work, try more force – has failed. Those pesky Palestinians aren’t going away. Isn’t it high time to try something else?

    I don’t know if Hamas would allow Jeff Halper to live in Gaza, should he wish to do so, and neither do you. So far the only entity to have made that illegal is the Israeli government. There are a number of non-Palestinian “internationals” at least temporarily living there, with no apparent objections by Hamas. The former settlements were a different matter, not because their inhabitants were Jewish, but because they were by design hermetic enclaves forced into a foreign population. The same is true for the WB settlements – even if not every settler is a gun-toting Kahanist lunatic, this is the very purpose of the whole settlements enterprise pursued by Israel – to create “facts on the ground”, that holy cow of Israeli politics.

    I happen to be a German whose grandparents’ houses were bombed (they survived). While I do not feel terribly sorry for myself over that, I still regard the carpet bombing of civilians a first-rate war crime, no matter whether it’s the Germans bombing London and Coventry or the Brits and Americans bombing Hamburg and Dresden.
    Many a village in Eastern Europe was destroyed by the Wehrmacht, its inhabitants shot or expelled, because they had allegedly housed partisans. Frequently that might have even been true. So they had it coming, too, to the last child, hadn’t they?

  12. Fiddler-here you sit philosophizing about how people should be nice to each other and how “carpet bombing civilians” isn’t very nice. Jews should be nice to Palestinians and Palestinians should be nice to Jews. We should all be nice, because Fiddler says so. Of course, as the Germans were marching over Europe threatening the end of civilization, in addition to the Jewish people, Churchill and the commanders would say “We can’t bomb the Germans, it isn’t nice!” and thus agee to let the Germans march into London, because it is much “nicer” that way, than to fight back.

    Same with us…the Arabs threatened to annihilate us in 1948 and nice people like Fiddler and Gandhi said “it isn’t nice to fight back…just let yourselves go under so I can demonstrate how nice my philosophical system is”.
    I will give your proposals all the consideration they are worth.

  13. YBD, you’re attacking straw men. I never said “it isn’t nice to fight back”, just that civilians aren’t ever a legitimate target.

    Apart from the fact of Gandhi’s success, he can speak for himself:
    cont’d: http://tinyurl.com/4s32aq
    (Jews and Palestine, by Mahatma Gandhi; The Harijan, 21Jul 1946)

    To be honest, benefitting from hindsight I have my doubts whether Gandhi’s method would’ve worked in Nazi Germany. I also doubt that Gandhi knew the full viciousness of the persecution going on – in 1938 the worst was still to come, after all.
    That doesn’t invalidate his criticism of the violent conquest of Palestine however.

  14. “…just that civilians aren’t ever a legitimate target.”

    You need to take this up with those “freedom fighters” in the Arab “resistance” who don’t wear uniforms and who deliberately place their bases, arms factories and rocket launchers on top of schools, inside mosques and in the middle of densely populated neighborhoods.

    “…the violent conquest of Palestine ” is a misnomer: there was no Palestine; the UN Partition creating a state of Palestine was rejected by the Arab states and seemingly by the Palestinian Arab population; the alleged ‘violent conquest’ was the Israeli response to the Arab attempted violent extermination.

  15. That’s just plain irresponsible and is on the periphery of the Gevena Conventions as a war crime. Oh wait, IT IS A WAR CRIME. But that doesn’t matter. It seems law never mattered. Why the Arabs are so contemptible that their disregard for UN Resolutions is their own fault while Israel’s utter impugnity of the UN Partition is also the Arabs’ fault.

    PS There was a region known as Palestine, not a state. It was violent and it was a conquest. The same as when we speak of Mesopotamia and the Levant. They’re not states but its not a misnomer to call a conquest of them as such.

    Another PS: it may seem silly to you but the Palestinians have no army since they have no state, thanks to a certain few who prevent it so. Also, this type of guerrilla tactics has proven effective in every type of warfare against a more powerful enemy. The extinguished only gives further fuel to more who want to fight the occupier. That’s how we dance this death.

    It’s cynical, yes. But just as cynical as Israel putting their army bases and missile launchers around a heavily populated area for “protection”.

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