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Rationalizing Israel’s Occupation

Meir Shamgar, former chief justice of Israel’s Supreme Court, died last month. A founding father of Israel’s legal system, he used judicial subterfuge to give legal cover to the illegal occupation of Palestinian lands.

Israeli prime minister Benjamin Netanyahu speaks at a memorial ceremony for Meir Shamgar, former president of the Supreme Court on October 22, 2019 in Jerusalem, Israel. Amir Levy / Getty Images

The Right in Israel has always railed against the country’s Supreme Court, accusing it of constraining the army and favoring Palestinian rights over settler ambitions. For those most vociferous supporters of the occupation in Palestine, Israel’s highest court is guilty of “judicial activism.” When Jewish Home politician Moti Yogev urged that the Supreme Court should be razed by a D9 tractor, he summed up the position of many on the Israeli right.

At the same time, the Supreme Court is often celebrated as a bastion of Israel’s liberalism, a shining example of the nation’s democracy in an undemocratic region. Meir Shamgar, the court’s chief justice between 1983 and 1995, is particularly revered for his key role in it. In the aftermath of his death last month, President Ruvi Rivlin described Shamgar as one of “the founding fathers of the Israeli judicial system” — and indeed he was. Before serving in Israel’s top court for twenty years, Shamgar had held key positions as military advocate general for the IDF (Israel Defense Forces) and later as attorney general. His career is also notable for heading the inquiry into the assassination of prime minister Yitzhak Rabin.

Building the Legal Apparatus

Shamgar, né Meir Sternberg, was born into a Revisionist-Zionist family in the Free City of Danzig in 1925. The semiautonomous city-state, born of the Treaty of Versailles and operating with shared Polish and German legislative power, collapsed in 1939 under the heft of Nazi Germany — prompting the teenage Shamgar’s immigration to Mandatory Palestine.

There, he joined the Irgun, the Jewish paramilitary group led by Menachem Begin that carried out attacks against both British officials and Palestinian civilians. In 1946, he was arrested for anti-British activities and spent two years interned in Eritrea, but he returned in time to participate in the Arab–Israeli War of 1948. Studies in Jerusalem were followed by a law degree in London, qualifying him to become a military prosecutor on his return to Israel. From there, he climbed the ranks of the IDF to become military advocate general in 1961. On the insistence of David Ben-Gurion, he hebraized his name to Shamgar.

As military advocate general, Shamgar was quick to lay down a legal framework for any future scenario in which Israel would find itself occupying foreign land. The working assumption has always been that though the occupation can’t be justified ethically, it can be rationalized legally. To that end, rather than go against legal conventions, Shamgar embraced them — and used them for his own goals. Well before the 1967 occupation of Palestinian territories, Israeli legal advisers were mining documents from international law — from the Hague, the Geneva Convention, and British common law — for possible legal precedents that might become useful. He wanted to have all legal angles covered — and the ability to reshape them when the situation changed.

A Patchwork Framework

Shamgar’s preparations were not in vain: in 1967, a million Palestinians in Gaza and the West Bank came under Israeli military rule. Overnight, the IDF took charge of the region and became the arbiter of all legal matters. Palestinians found themselves living under the authority of an Israeli regional commander and, once detained, their legal cases were heard in a military court. The IDF disseminated leaflets explaining new orders as they came down from high command.

It was Shamgar’s idea to define the Palestine territories as “held” rather than “occupied,” suggesting a temporariness that gave Israel the legal margin to operate ad hoc in the territories, all the while maintaining that it wasn’t there to stay.

After 1967, Israel faced several legal obstacles in regard to the territories. First, it had to learn how to address Palestinian resistance to the occupation. If Palestinians had a right to resist, violently or not, they would be considered enemy combatants, and their prisoners would be prisoners of war — an outcome Shamgar wanted to avoid. The solution was again found in the precedents of international law. Prosecutors would argue that Palestinian fighters were not resisting, but attacking “indiscriminately”: they could, therefore, be classed as terrorists. Even resistance without taking up arms could be considered hostile. This has led to the current modus operandi in the occupied territories: every action, even going to work, is considered potentially hostile — because the population is viewed as essentially hostile. Moreover, after the 1967 war, Shamgar, as attorney general, made a radical decision to allow Palestinians to appeal to the Israeli Supreme Court. The result was to intertwine Israel’s civil justice system and judicial branch with the machinery of military rule.

For Palestinians, due process can be lengthy, labyrinthine, and narrow in execution. If one accepts the working assumption that the goal of the entire Palestinian population is to overthrow the ruling power, then one might also accept that the army needs leeway to work in hostile territory. This point of view validated the practice of administrative arrest, which has meant that Palestinians could be held on tenuous charges without an arraignment. Initially, this practice came with some restrictions, but as the First Intifada escalated and the military courts were backed up with thousands of young Palestinian detainees, Israel adapted the law to lift all limitations, meaning that Palestinians could be held indefinitely without seeing a judge. Changing the law was simple enough: unlike Israeli law, which has to be ratified three times by the Knesset and upheld by the courts, military courts need only send a memo to high command to be signed off by the minister of defense.

The Right may accuse the Israeli Supreme Court of capitulating to Palestinians. But it almost exclusively sides with the army and the state. This is the legal tautology: when a population is deemed hostile to the state, the state can take measures to suppress any hostility — but it is the state that decides what is considered hostile. In this way, the Supreme Court ceases to be a third branch of government and is used instead as a legal rubber stamp to quash any public or international scrutiny. This is all legal, of course. Or, as the Israeli saying goes, “It’s kosher, but it stinks.”

Legalizing Settlements

In addition to Palestinians subject to occupation, the Israeli courts also needed to consider how to treat the Jewish population that had begun to settle in the territories after 1967. According to the Geneva Convention, “population transfer” is illegal. But since Israeli settlers were not forced to move but did so voluntarily, the Supreme Court deemed it legal.

Then there was a question of the land itself. According to international law, land could only be seized for security purposes — so the Supreme Court ruled that Jewish settlements had to be torn down. But this didn’t deter the Israeli right from finding a legal loophole. As shown in the 2011 documentary The Law in These Parts, military advocates dug into Ottoman law for a solution and found that an “empire” was entitled to seize “uncultivated land.” Of course, the Palestinian territories were far from uncultivated. But under the auspices of Shamgar and the Supreme Court, that classification was applied in 1975, and the settlements received authorization.

As such, settlers fall under the jurisdiction of the Israeli legal system, while Palestinians do not. It is the military’s job to protect settlers, and if a Palestinian attacks a settler or a soldier, he or she will be dealt with as a terrorist: violently and swiftly. But if a settler attacks a Palestinian, the case is dealt with in an Israeli civilian court. In the event of settlers attacking a soldier, if the case is brought to trial, the settlers are tried as delinquents, not terrorists.

Despite their privileges, many settlers see the Israeli legal and security apparatus as hostile to them. They perceive Israel’s formal democratic-legal structure as foreign and interventionist. Minister of transportation and Jewish Home politician Bezalel Smotrich echoed this sentiment when he said Israel should follow Torah law.

The military advocate general, together with the Israeli Supreme Court, gave cover to the army for the practice of targeted killingIsraeli Supreme Court, also gave cover to the army for the practice of targeted killing and turned a blind eye when it came to the torture of Palestinian suspects.

The New Normal

Shamgar retired from the Supreme Court in 1995. That year, he headed the official inquiry into the assassination of Yitzhak Rabin. It is ironic that Yigal Amir, the right-wing law student who assassinated Rabin, did so because he too was concerned about the status of the occupied territories; he took it upon himself to apply Jewish law, becoming judge and executioner. The Shamgar Commission maintained that the murder was made possible by a lack of cooperation between the various security agencies that were responsible for the overall security measures at public events. But they failed to address the structural ideological shift that had happened since 1967: the “held” territories were fastened to the ground by political forces that approved the building of new settlements; messianic politics; an army that, instead of defending one population, controls another; and a legal system that’s actually three: one for Israelis, one for Palestinians, and one for settlers.

What the legal system has failed to address is the fact that the temporary has become permanent. In 2012, the Levy Report, issued by a specially formed, cabinet-appointed commission on settlement outputs, concluded that the settlements were legitimate and that any unauthorized outpost should be legalized. This consolidated an enormous paradox: the committee neither recognized the West Bank as an occupied territory nor required the state to annex it. Neither a territory of the state nor an occupied territory, it is unclear what legal basis exists for regulating Israel’s activities in the occupied territories. This ambiguity is very productive for Israel, allowing the IDF to exercise power in Palestinian territories while keeping its Palestinian inhabitants in a legal gray zone.

Israel’s legal and public officials have always invented new means to justify occupation, to make the facts align with the ideology instead of the other way around. The legal system in Israel and the military order in Palestine are indeed activist, but not in the sense intended by the Right. The Supreme Court uses its visibly progressive credentials on Israeli civil liberties and its maintenance of electoral integrity as a way to justify the shadowy apparatus operating in Israel’s eastern backyard.

With Shamgar at the helm, Israeli’s judicial system was key in transforming Israeli law to accommodate the political and territorial project of occupation. This is Meir Shamgar’s legacy.