David Ben-Gurion’s Forgotten 1948 Land of Israel Proclamation for the Annexation of Judea and Samaria
Howard Grief
The 1978 Camp David Framework Agreement for Peace in the Middle East, the so-called Oslo “Peace Process” (1992-2000) and the Disengagement Implementation Plan (late 2003-August 2005) have all undermined Israel’s legal rights and title of sovereignty over the Land of Israel. One of the most important remedial steps that could be taken by any future nationalist government of Israel to reaffirm and clarify those legal rights and to put an end to ongoing Arab attempts and foreign initiatives to usurp them is for Israel to exercise the sovereignty it already enjoys by applying the law, jurisdiction and administration of the State under present Israeli constitutional legislation over those parts of Judea and Samaria remaining under its military rule.
This was legally required to be done in June 1967, at the end of the Six Day War, by virtue of the constitutional law known as the Area of Jurisdiction and Powers Ordinance enacted on September 16, 1948 by the Provisional State Council and promulgated on September 22, 1948, but made retroactive to May 15, 1948, the date on which the Jewish state was reborn. This law, sometimes called Ben-Gurion’s law, was used by Prime Minister David Ben-Gurion in his capacity as Defense Minister of the State to annex areas of the Jewish National Home and Land of Israel recaptured beyond the frontiers demarcated in the UN Partition Plan of November 29, 1947.
However, the National Unity Government of Levi Eshkol did not apply Ben-Gurion’s law aiming to bring all such areas freed in the Six Day War within the framework of the State. It decided instead, almost three weeks after the end of the Six Day War, to draft an amendment to an existing law, Section 11B of the Law and Administration Ordinance, that was enacted by the Knesset on June 27, 1967 and promulgated the next day.1 This amendment to the law, non-existent on June 7, 1967, when Judea and Samaria were repossessed and liberated by the IDF, gave the Government a choice whether or not to incorporate these areas of the Land of Israel into the State, while Ben-Gurion’s law left no choice as to what had to be done once the Minister of Defense defined in a proclamation that a particular area of the Land of Israel was being held by Israel’s Army. The step of defining the additional areas of the Land of Israel held by the IDF was a prerequisite before any announcement or proclamation could be made to the inhabitants of the affected areas that the IDF had assumed control there. The Minister of Defense had no discretion in the matter. He was obligated to define the areas held by the IDF, otherwise no local resident, let alone Israelis and the rest of the world, would have known that the Israeli army had imposed a military government over those areas, thus replacing the previous ruler. The obligatory nature of the law is apparent from the fact that without a proclamation of this kind, the directives that were to be issued by the Military Commander to maintain proper administration, security and public order, in the IDF-held areas including, for instance, the imposition of a curfew, could not be expected to be heeded by the local population unless the Minister of Defense had acted in strict accordance with the Ordinance formulated by the Ben-Gurion Government. An appropriate proclamation was thus needed to avoid the chaos of a legal vacuum.
It is true that international law does not absolutely require the issuance of a proclamation, as soon as the territory of a foreign state is occupied by a hostile army, though it is customary for this to be done.2 However, the situation is entirely different under Israeli constitutional law for areas of the Land of Israel liberated by the Israel Defense Forces that cannot be labeled “occupied territories” under international law. The Area of Jurisdiction and Powers Ordinance was enacted for the sole purpose of recovering for the Jewish state those lands that had been recognized as integral parts of the Jewish National Home under international law in 1920 and that had always been considered the patrimony of the Jewish people under Jewish law. If the IDF liberated various areas of the Land of Israel and no proclamation had been issued under the aforesaid Ordinance, then the purpose of the law would have been defeated and the law left with neither meaning nor effect. Moreover, if the Minister of Defense did not issue a proclamation defining the IDF-held areas, this would have meant that the Jewish people, represented by the State of Israel, had no sovereign right to the liberated areas and would have been required in due course to restore these areas to the Arab states that had illegally occupied them in 1948, a requirement that negated the underlying assumption of the Ordinance that they belonged to the Jewish people. To avoid these consequences, it was therefore incumbent upon the Minister of Defense to issue a proclamation under the Ordinance to define the area of the Land of Israel taken over by the IDF as soon as this occurred. This was the way the Ordinance was actually interpreted and implemented throughout the War of Independence in 1948. It seems logical to conclude that it was the obligatory nature of the Ordinance that prompted the Eshkol Government in 1967, shortly after the end of the Six Day War, to devise an alternative law (Section 11B of the Law and Administration Ordinance), to give the Government a choice in deciding whether or not to incorporate into the State the areas of the Land of Israel liberated in that war.
The area so defined in the proclamation meant that any law applying to the whole of the State of Israel would thereafter also apply to that defined area and thus such area would automatically be incorporated into the State. This procedure was adopted by Defense Minister Ben-Gurion on September 2, 1948 when he issued Proclamation No. 1 of the Israel Defense Forces Government in the Land of Israel, hereafter “the Land of Israel Proclamation”, that had attached to it an illustrative map of the Land of Israel indicating by red lines the precise extent of the areas held by the IDF, which he signed and dated. On the same date and bearing the same title as Proclamation No. 1, Ben-Gurion issued Proclamation No. 2, in which he appointed a military governor for the held areas referred to in Proclamation No. 1 and its accompanying map.3
The Land of Israel Proclamation established the precedent or basic norm upon which the structure of Israeli rule was to be erected in any part of the Land of Israel repossessed or liberated by the IDF. It applied the law of the State to the repossessed area in accordance with the stipulation in Section 2 of the Proclamation, rather than international law relating to belligerent occupation. It was only because of this stipulation that Beersheba, Nazareth, Ramle, Lod, Ashdod (Isdud), Ashkelon (Majdal), Eilat and other places that were not yet part of the State on May 15, 1948, were automatically incorporated into its boundaries as soon as the IDF effectively held them, as confirmed and denoted on a map of Eretz-Israel or simply by the application of Israeli law to the IDF-held area, in the event that no map was used for this purpose.
These IDF-held areas of the Land of Israel were not considered “occupied territories”, even though they extended beyond the UN Partition lines, because they were part and parcel of the Jewish National Home and the Land of Israel, as recognized under international law as early as 1920. Moreover, there was no recognized Arab sovereign over any of the IDF-held areas in 1948 that had previously been part of an Arab state, which ruled out the possible applicability of the Hague Regulations or any other international convention. It is certain that if any part of Judea and Samaria had been repossessed by the IDF in the War of Independence, the Land of Israel Proclamation used for Beersheba, Nazareth, etc. would have mandated the application of Israeli law to that part, as is clear even from a cursory reading of it. This Proclamation was definitely part of the existing constitutional law when the IDF liberated Judea and Samaria on June 7, 1967 and should have been applied at that time. It can still be invoked today since substantial parts of the Land of Israel remain under Arab rule and await liberation by the IDF! This conclusion is apparent from the language used in the open-ended Land of Israel Proclamation where it states in both Sections 1 and 5 the following:
1. Interpretation: The term “held areas”4 (quotation marks in the original text) – shtahim muhzakim – means all the areas in the Land of Israel included within the boundaries of the areas delineated in red, on the map of Land of Israel signed by me,5 bearing the date of today, the 28th of Av, 5708 (September 2, 1948), or on any other map replacing it (italics added) which will be signed by me and delineated as mentioned above.
5. Validity of Proclamation: This proclamation shall be deemed to be in force in all respects as from midnight on the night of the Sabbath, the 6th of Iyar, 5708 (May 15, 1948); however, in respect of those parts of the held areas the possession of which passed to the Israel Defense Forces afterwards (italics added), this proclamation shall be in force only from that date.
In regard to Section 5 of the Land of Israel Proclamation, it is important to note that it refers to only one proclamation which was intended to cover all past or future territorial acquisitions in Eretz-Israel or Palestine on whatever date, apart from the area of Jerusalem and its environs. It did not matter if these acquisitions were made prior to September 2, 1948 (the actual date of the Land of Israel Proclamation) or afterwards.
In regard to Jerusalem, which has always required special treatment, there was a separate proclamation that was issued a month before, on August 2, 1948, formally called Proclamation No. 1 of the Israel Defense Forces Government in Jerusalem, hereafter “the Jerusalem Proclamation”. This proclamation also had an illustrative map attached to it. As in the case of the Land of Israel Proclamation, the Jerusalem Proclamation applied the law of the State to the area of Jerusalem and its environs, held by the IDF in 1948 and was followed up by Proclamation No. 2, which appointed a military governor over this area.6
The Land of Israel Proclamation could, as noted above, also have been used on June 7, 1967, when the IDF repossessed Judea and Samaria. All that had to be done in this respect was to define the area recaptured by the IDF, by simply drawing red lines on a map of the Land of Israel and having this map signed and dated by the Minister of Defense, replacing Ben-Gurion’s original map, as provided for in the Proclamation itself, and, at the same time, invoking Section 2 thereof to apply the law of the State to the area so defined on the map. This procedure did not preclude the issuing of an entirely new proclamation under the Area of Jurisdiction and Powers Ordinance accompanied by an appropriate map, had the Government chosen to do so. But in the absence of any new proclamation, the original one of September 2, 1948 should have been implemented whenever the IDF liberated additional areas of the Land of Israel not yet included in the borders of the State. Indeed, it cannot be gainsaid that if a new proclamation had not been issued on June 7, 1967, illegally applying international law to Judea and Samaria when the IDF entered the region and assumed control, then the existing Israeli constitutional law would automatically have applied, i.e., the Land of Israel Proclamation, and this entire region would have thus immediately become part of the State, without further ado. Furthermore, what applied to the territory covered by the provisions of the Land of Israel Proclamation applied no less to Jordanian-occupied eastern Jerusalem that came within the scope of the Jerusalem Proclamation.
A careful analysis of the Area of Jurisdiction and Powers Ordinance of September 16, 1948 reveals that this law incorporates within its provisions the Land of Israel Proclamation issued two weeks earlier on September 2, 1948, because this Ordinance was made retroactive to May 15, 1948, as was also the case with the Land of Israel Proclamation. This Ordinance also incorporated within its provisions the Jerusalem Proclamation issued even earlier, on August 2, 1948, having the same retroactive application as the Land of Israel Proclamation. Therefore, the word “proclamation” as used in sections 1 and 2 of the Ordinance can only be interpreted as referring to both these Proclamations. The use of similar language in all three documents (the Ordinance and the two Proclamations) regarding the application of Israeli law to IDF-held areas of Eretz-Israel indicates the existence of a definite link between them. The two proclamations and the law under which they were retroactively deemed to have been issued marked an official end to the Jewish Agency's acceptance of the UN General Assembly Partition Resolution of November 29, 1947.
The extreme irony of the situation was that the Military Commander of Judea and Samaria – Brigadier-General Chaim Herzog, the future President of the State – did in fact issue two military proclamations on June 7, 1967 defining the precise area of the Land of Israel being held by the IDF where military government was imposed, though this was done by descriptive words, rather than by an illustrative map, the method employed by Ben-Gurion. The first one concerned the assumption of power by the IDF in what was simply called “the region”. However, it was the second Proclamation that actually defined the area involved as “the region of the West Bank” and stated that “the law that is in force in the region today (June 7, 1967) remains in force”. This was a clear reference to the law of the Hashemite Kingdom of Jordan as if it was sovereign Jordanian land that had been occupied by the IDF, a mis-application of international law by the Eshkol Government, which should have been apparent at the time. What was highly unusual and illegal was that the 1967 Proclamations issued by Herzog acting on superior orders from the Government did not follow the aforesaid guiding and binding precedent of 1948, even though the land in question at both times was indisputably the Land of Israel, that matched in a general sense the definition of a “held area” contained in the Land of Israel Proclamation, without however marking the held area on a map. Instead of Herzog’s proclamations being based on the Area of Jurisdiction and Powers Ordinance, as required by it, they were unlawfully based on the Hague Regulations of 1907, specifically articles 42 and 43 thereof. This procedure followed by the Military Commander was tantamount to having official proclamations issued by the wrong party under the wrong source of law to apply the wrong law, a triple error committed simultaneously in total disregard for the correct legal procedure. To comply with the constitutional law in force on June 7, 1967 and still in force (Ben-Gurion’s law and the two aforementioned proclamations of 1948 have never been repealed and coexist with Section 11B), the June 7, 1967 Proclamations affecting Judea and Samaria should have been issued not by the IDF Military Commander but by the Minister of Defense, not under the Hague Regulations of 1907 governing occupied territories, but under the Area of Jurisdiction and Powers Ordinance concerning liberated areas of the Land of Israel, and last but not least, not for the purpose of continuing in force the law of the Kingdom of Jordan, but to apply the law of the State of Israel. This egregious and monumental violation of Israeli law and the triple error it entailed has never been corrected, nor even discussed or acknowledged by Israel’s legal elite. The Government of Israel chose this short-sighted course to keep the option of “peace” open and to avoid increasing the Arab population of the State, which were considerations outside the realm of law and could have been resolved by other means.7 The non-observance of the existing constitutional law in June 1967 was the folly and root of all the trouble Israel faces today in the battle to preserve Jewish rights to the Land of Israel under the Rule of Law. Had the Eshkol Government done what it was legally obligated to do, no one, apart from the Arab states and their close supporters, would have dared call the ancestral Jewish lands liberated in the Six Day War by the IDF “occupied territories” subject, after the end of active hostilities, to the laws of war embodied principally in the Hague Regulations and the Fourth Geneva Convention.
It is tragic to record that the Land of Israel Proclamation, so diligently and comprehensively applied by Ben-Gurion in 1948 as a means for annexing non-State parts of the Land of Israel restored to the Jewish people by the IDF, was simply forgotten or ignored in 1967, and has been forgotten or ignored ever since. As a direct result, the course of Israeli history, politics and law from 1967 to the present day has been radically different from what it should normally have been. The uncritical acceptance or lack of protest by any respected Israeli jurist in 1967 and in the ensuing decades against the issuance of the aforementioned military proclamations by Brigadier-General Herzog for Judea and Samaria that applied international law (i.e., the Hague Regulations and also the Fourth Geneva Convention) instead of Israeli law, as well as those proclamations issued for Gaza, the Golan and Sinai, is not only deeply shameful and scandalous, but also exposes an amazing ignorance of Israel’s legal rights and title of sovereignty to the whole of the Land of Israel and Palestine under both international law and Israeli constitutional law. The Arabs of the country and the neighboring Arab states could not have asked for a better gift from Israel’s legal authorities while, conversely, it was a betrayal of the Jewish-Zionist cause by those who ought to have known better.
The Herzog Proclamations led to the birth of the erroneous concept that the combined region of Judea and Samaria (as well as Gaza, the Golan Heights and Sinai) was truly “occupied territory”, governed by the rules of war, dictated by international law. By acting on this fallacious premise, Israel shot itself in the foot, greatly undermining its legal case for retaining these regions of the Jewish National Home and Land of Israel, as evidenced by its complete withdrawal from Sinai and Gaza and partial withdrawal from about two-fifths of Judea and Samaria. The damage has been catastrophic and never-ending, paving the way for foreign intervention and the eventual entry of the Palestine Liberation Organization into Judea, Samaria and Gaza to set up its own administration known as the “Palestinian Authority”. It is too late to undo the damage inflicted by Israel on itself, but Israel can still abrogate the illegally-drafted military proclamations still in force in regard to those parts of Judea and Samaria remaining under its control, abolish the military regime set up there, and apply Israeli law rather than foreign law in those areas. If this is done, then the constitutional law and legal norm that prevailed in 1948 during the War of Independence will be restored to its proper place in Israel’s legal system, as originally intended by Ben-Gurion.
It is bizarre that Justice Moshe Landau, the former President of the Supreme Court, in a 1979 judgment when he was then Deputy-President, declared that8 “the basic norm upon which the structure of Israeli rule in Judea and Samaria was erected is still today, as I have said, the norm of military government and not the application of Israeli law that entails sovereignty”. In making this pronouncement, Justice Landau believed wrongly that the norm of military government automatically excluded the application of Israeli law and sovereignty. He was apparently unaware of the fact that in 1948, Ben-Gurion created and repeatedly implemented the norm (as in the cases of Beersheba, Nazareth etc.) that Israeli law and sovereignty were to be applied over all areas of the Land of Israel repossessed by the IDF, even though these areas were placed under military government. It was this norm that should legally have been invoked in deciding the question of which law to apply to the territories liberated in the Six Day War. The only person in June 1967 who recognized the necessity of applying this norm was the then-M.K. Eliezer Shostak of the Free Center Party, who impatiently called for the issuance of a new proclamation under the Area of Jurisdiction and Powers Ordinance, a call ridiculed at the time by the Government and curtly dismissed.
The alleged norm cited by Justice Landau ignored the legal structure that had been in place for the Land of Israel between 1948 and 1967 that naturally included Judea and Samaria. His failure to recognize the earlier norm dating back to the rebirth of the State was an inversion of Israel’s rights to Judea and Samaria and also changed completely the legal reality created by Ben-Gurion. The Landau norm was a severe deviation from the Ben-Gurion norm as expressed in the Land of Israel and Jerusalem Proclamations that recouped for the Jewish state lands that rightfully belonged to it but which the UN “generously” but illegally recommended for inclusion in a new Arab state, contrary to Article 5 of the Mandate for Palestine that was still in force at the time of the Partition Resolution. The adoption of the Landau norm was a legal travesty that paved the way to the grave situation Israel now finds itself in.
Author’s Note: The scope of the Land of Israel Proclamation of September 2, 1948, as well as the meaning to be attached to Ben-Gurion’s law, the Area of Jurisdiction and Powers Ordinance, is further discussed by the author in his Eretz-Israel Letters to Justice Meir Shamgar, President Emeritus of the Supreme Court of Israel, 2005-2007, edited by Yoel Lerner and published by the Office for Israeli Constitutional Law, May 2007. This further discussion took place after the present article was written, and is therefore not included in this article.
Endnotes
1 See the author’s work on this important subject, A Petition to Annul the Interim Agreement, Policy Paper 77, published by the Ariel Center for Policy Research (ACPR), Shaarei Tikva, January 1999, p. 10-28; 35-67.
2 See article by Meir Shamgar, former President of the Supreme Court of Israel, entitled “Legal Concepts and Problems of the Israeli Military Government – The Initial Stage”, in the book he edited, Military Government in the Territories Administered by Israel 1967-1980, The Legal Aspects, Hemed Press 1982, reprinted 1988, Vol. 1, p. 14.
3 The Military Governor appointed by Defense Minister David Ben-Gurion to head the IDF government in the held areas of the Land of Israel was Major-General Elimelech Avner (Zelikovich). See Itton Rishmi (Official Gazette), Special Issue, 29th of Av, 5708 (September 3, 1948), no. 19, p. 114.
4 “Held areas” – a term found in the literature – otherwise referred to by the present writer as “repossessed” areas.
5 The pronoun “me” as used in the Interpretation section of the Land of Israel Proclamation (Section 1) does not mean that it applied only during the time that David Ben-Gurion was Minister of Defense. This proclamation, which is legally classified as a regulation issued on behalf of the Government of Israel, cannot be interpreted as being personal in nature, limited only to him, unless specifically stated to be so. Therefore, the word “me” simply refers to the Minister of Defense at the time the Land of Israel Proclamation was proclaimed and promulgated, but it could have been invoked by any later Minister of Defense who succeeded Ben-Gurion. The same explanation applies to the Jerusalem Proclamation of August 2, 1948.
6 The Military Governor for the IDF Government in the held area of Jerusalem was Dr. Dov (Bernard) Joseph. See Itton Rishmi, Special Issue, 26th of Tammuz 5708 (August 2, 1948), no. 12, p.66.
7 The author discusses the resolution of this question in the concluding chapter of his forthcoming book, The Legal Foundation and Borders of Israel under International Law. This chapter is entitled: “Arab Population Transfer: The Best of Solutions.”
8 Dwaikat v. Government of Israel (Elon Moreh case), HCJ 390/79: (1980) Supreme Court Judgments, Vol. 34 part I, at p. 12. The English translation of this case appears in Appendix A: Selected Judgments of the Supreme Court of Israel, in: Military Government in the Territories Administered by Israel 1967-1980, The Legal Aspects, edited by Meir Shamgar, pp. 404 ff. The above quotation by Justice Moshe Landau is found on p. 417.
http://www.acpr.org.il/ENGLISH-NATIV/11-issue/grief-11.htm
Howard Grief
The 1978 Camp David Framework Agreement for Peace in the Middle East, the so-called Oslo “Peace Process” (1992-2000) and the Disengagement Implementation Plan (late 2003-August 2005) have all undermined Israel’s legal rights and title of sovereignty over the Land of Israel. One of the most important remedial steps that could be taken by any future nationalist government of Israel to reaffirm and clarify those legal rights and to put an end to ongoing Arab attempts and foreign initiatives to usurp them is for Israel to exercise the sovereignty it already enjoys by applying the law, jurisdiction and administration of the State under present Israeli constitutional legislation over those parts of Judea and Samaria remaining under its military rule.
This was legally required to be done in June 1967, at the end of the Six Day War, by virtue of the constitutional law known as the Area of Jurisdiction and Powers Ordinance enacted on September 16, 1948 by the Provisional State Council and promulgated on September 22, 1948, but made retroactive to May 15, 1948, the date on which the Jewish state was reborn. This law, sometimes called Ben-Gurion’s law, was used by Prime Minister David Ben-Gurion in his capacity as Defense Minister of the State to annex areas of the Jewish National Home and Land of Israel recaptured beyond the frontiers demarcated in the UN Partition Plan of November 29, 1947.
However, the National Unity Government of Levi Eshkol did not apply Ben-Gurion’s law aiming to bring all such areas freed in the Six Day War within the framework of the State. It decided instead, almost three weeks after the end of the Six Day War, to draft an amendment to an existing law, Section 11B of the Law and Administration Ordinance, that was enacted by the Knesset on June 27, 1967 and promulgated the next day.1 This amendment to the law, non-existent on June 7, 1967, when Judea and Samaria were repossessed and liberated by the IDF, gave the Government a choice whether or not to incorporate these areas of the Land of Israel into the State, while Ben-Gurion’s law left no choice as to what had to be done once the Minister of Defense defined in a proclamation that a particular area of the Land of Israel was being held by Israel’s Army. The step of defining the additional areas of the Land of Israel held by the IDF was a prerequisite before any announcement or proclamation could be made to the inhabitants of the affected areas that the IDF had assumed control there. The Minister of Defense had no discretion in the matter. He was obligated to define the areas held by the IDF, otherwise no local resident, let alone Israelis and the rest of the world, would have known that the Israeli army had imposed a military government over those areas, thus replacing the previous ruler. The obligatory nature of the law is apparent from the fact that without a proclamation of this kind, the directives that were to be issued by the Military Commander to maintain proper administration, security and public order, in the IDF-held areas including, for instance, the imposition of a curfew, could not be expected to be heeded by the local population unless the Minister of Defense had acted in strict accordance with the Ordinance formulated by the Ben-Gurion Government. An appropriate proclamation was thus needed to avoid the chaos of a legal vacuum.
It is true that international law does not absolutely require the issuance of a proclamation, as soon as the territory of a foreign state is occupied by a hostile army, though it is customary for this to be done.2 However, the situation is entirely different under Israeli constitutional law for areas of the Land of Israel liberated by the Israel Defense Forces that cannot be labeled “occupied territories” under international law. The Area of Jurisdiction and Powers Ordinance was enacted for the sole purpose of recovering for the Jewish state those lands that had been recognized as integral parts of the Jewish National Home under international law in 1920 and that had always been considered the patrimony of the Jewish people under Jewish law. If the IDF liberated various areas of the Land of Israel and no proclamation had been issued under the aforesaid Ordinance, then the purpose of the law would have been defeated and the law left with neither meaning nor effect. Moreover, if the Minister of Defense did not issue a proclamation defining the IDF-held areas, this would have meant that the Jewish people, represented by the State of Israel, had no sovereign right to the liberated areas and would have been required in due course to restore these areas to the Arab states that had illegally occupied them in 1948, a requirement that negated the underlying assumption of the Ordinance that they belonged to the Jewish people. To avoid these consequences, it was therefore incumbent upon the Minister of Defense to issue a proclamation under the Ordinance to define the area of the Land of Israel taken over by the IDF as soon as this occurred. This was the way the Ordinance was actually interpreted and implemented throughout the War of Independence in 1948. It seems logical to conclude that it was the obligatory nature of the Ordinance that prompted the Eshkol Government in 1967, shortly after the end of the Six Day War, to devise an alternative law (Section 11B of the Law and Administration Ordinance), to give the Government a choice in deciding whether or not to incorporate into the State the areas of the Land of Israel liberated in that war.
The area so defined in the proclamation meant that any law applying to the whole of the State of Israel would thereafter also apply to that defined area and thus such area would automatically be incorporated into the State. This procedure was adopted by Defense Minister Ben-Gurion on September 2, 1948 when he issued Proclamation No. 1 of the Israel Defense Forces Government in the Land of Israel, hereafter “the Land of Israel Proclamation”, that had attached to it an illustrative map of the Land of Israel indicating by red lines the precise extent of the areas held by the IDF, which he signed and dated. On the same date and bearing the same title as Proclamation No. 1, Ben-Gurion issued Proclamation No. 2, in which he appointed a military governor for the held areas referred to in Proclamation No. 1 and its accompanying map.3
The Land of Israel Proclamation established the precedent or basic norm upon which the structure of Israeli rule was to be erected in any part of the Land of Israel repossessed or liberated by the IDF. It applied the law of the State to the repossessed area in accordance with the stipulation in Section 2 of the Proclamation, rather than international law relating to belligerent occupation. It was only because of this stipulation that Beersheba, Nazareth, Ramle, Lod, Ashdod (Isdud), Ashkelon (Majdal), Eilat and other places that were not yet part of the State on May 15, 1948, were automatically incorporated into its boundaries as soon as the IDF effectively held them, as confirmed and denoted on a map of Eretz-Israel or simply by the application of Israeli law to the IDF-held area, in the event that no map was used for this purpose.
These IDF-held areas of the Land of Israel were not considered “occupied territories”, even though they extended beyond the UN Partition lines, because they were part and parcel of the Jewish National Home and the Land of Israel, as recognized under international law as early as 1920. Moreover, there was no recognized Arab sovereign over any of the IDF-held areas in 1948 that had previously been part of an Arab state, which ruled out the possible applicability of the Hague Regulations or any other international convention. It is certain that if any part of Judea and Samaria had been repossessed by the IDF in the War of Independence, the Land of Israel Proclamation used for Beersheba, Nazareth, etc. would have mandated the application of Israeli law to that part, as is clear even from a cursory reading of it. This Proclamation was definitely part of the existing constitutional law when the IDF liberated Judea and Samaria on June 7, 1967 and should have been applied at that time. It can still be invoked today since substantial parts of the Land of Israel remain under Arab rule and await liberation by the IDF! This conclusion is apparent from the language used in the open-ended Land of Israel Proclamation where it states in both Sections 1 and 5 the following:
1. Interpretation: The term “held areas”4 (quotation marks in the original text) – shtahim muhzakim – means all the areas in the Land of Israel included within the boundaries of the areas delineated in red, on the map of Land of Israel signed by me,5 bearing the date of today, the 28th of Av, 5708 (September 2, 1948), or on any other map replacing it (italics added) which will be signed by me and delineated as mentioned above.
5. Validity of Proclamation: This proclamation shall be deemed to be in force in all respects as from midnight on the night of the Sabbath, the 6th of Iyar, 5708 (May 15, 1948); however, in respect of those parts of the held areas the possession of which passed to the Israel Defense Forces afterwards (italics added), this proclamation shall be in force only from that date.
In regard to Section 5 of the Land of Israel Proclamation, it is important to note that it refers to only one proclamation which was intended to cover all past or future territorial acquisitions in Eretz-Israel or Palestine on whatever date, apart from the area of Jerusalem and its environs. It did not matter if these acquisitions were made prior to September 2, 1948 (the actual date of the Land of Israel Proclamation) or afterwards.
In regard to Jerusalem, which has always required special treatment, there was a separate proclamation that was issued a month before, on August 2, 1948, formally called Proclamation No. 1 of the Israel Defense Forces Government in Jerusalem, hereafter “the Jerusalem Proclamation”. This proclamation also had an illustrative map attached to it. As in the case of the Land of Israel Proclamation, the Jerusalem Proclamation applied the law of the State to the area of Jerusalem and its environs, held by the IDF in 1948 and was followed up by Proclamation No. 2, which appointed a military governor over this area.6
The Land of Israel Proclamation could, as noted above, also have been used on June 7, 1967, when the IDF repossessed Judea and Samaria. All that had to be done in this respect was to define the area recaptured by the IDF, by simply drawing red lines on a map of the Land of Israel and having this map signed and dated by the Minister of Defense, replacing Ben-Gurion’s original map, as provided for in the Proclamation itself, and, at the same time, invoking Section 2 thereof to apply the law of the State to the area so defined on the map. This procedure did not preclude the issuing of an entirely new proclamation under the Area of Jurisdiction and Powers Ordinance accompanied by an appropriate map, had the Government chosen to do so. But in the absence of any new proclamation, the original one of September 2, 1948 should have been implemented whenever the IDF liberated additional areas of the Land of Israel not yet included in the borders of the State. Indeed, it cannot be gainsaid that if a new proclamation had not been issued on June 7, 1967, illegally applying international law to Judea and Samaria when the IDF entered the region and assumed control, then the existing Israeli constitutional law would automatically have applied, i.e., the Land of Israel Proclamation, and this entire region would have thus immediately become part of the State, without further ado. Furthermore, what applied to the territory covered by the provisions of the Land of Israel Proclamation applied no less to Jordanian-occupied eastern Jerusalem that came within the scope of the Jerusalem Proclamation.
A careful analysis of the Area of Jurisdiction and Powers Ordinance of September 16, 1948 reveals that this law incorporates within its provisions the Land of Israel Proclamation issued two weeks earlier on September 2, 1948, because this Ordinance was made retroactive to May 15, 1948, as was also the case with the Land of Israel Proclamation. This Ordinance also incorporated within its provisions the Jerusalem Proclamation issued even earlier, on August 2, 1948, having the same retroactive application as the Land of Israel Proclamation. Therefore, the word “proclamation” as used in sections 1 and 2 of the Ordinance can only be interpreted as referring to both these Proclamations. The use of similar language in all three documents (the Ordinance and the two Proclamations) regarding the application of Israeli law to IDF-held areas of Eretz-Israel indicates the existence of a definite link between them. The two proclamations and the law under which they were retroactively deemed to have been issued marked an official end to the Jewish Agency's acceptance of the UN General Assembly Partition Resolution of November 29, 1947.
The extreme irony of the situation was that the Military Commander of Judea and Samaria – Brigadier-General Chaim Herzog, the future President of the State – did in fact issue two military proclamations on June 7, 1967 defining the precise area of the Land of Israel being held by the IDF where military government was imposed, though this was done by descriptive words, rather than by an illustrative map, the method employed by Ben-Gurion. The first one concerned the assumption of power by the IDF in what was simply called “the region”. However, it was the second Proclamation that actually defined the area involved as “the region of the West Bank” and stated that “the law that is in force in the region today (June 7, 1967) remains in force”. This was a clear reference to the law of the Hashemite Kingdom of Jordan as if it was sovereign Jordanian land that had been occupied by the IDF, a mis-application of international law by the Eshkol Government, which should have been apparent at the time. What was highly unusual and illegal was that the 1967 Proclamations issued by Herzog acting on superior orders from the Government did not follow the aforesaid guiding and binding precedent of 1948, even though the land in question at both times was indisputably the Land of Israel, that matched in a general sense the definition of a “held area” contained in the Land of Israel Proclamation, without however marking the held area on a map. Instead of Herzog’s proclamations being based on the Area of Jurisdiction and Powers Ordinance, as required by it, they were unlawfully based on the Hague Regulations of 1907, specifically articles 42 and 43 thereof. This procedure followed by the Military Commander was tantamount to having official proclamations issued by the wrong party under the wrong source of law to apply the wrong law, a triple error committed simultaneously in total disregard for the correct legal procedure. To comply with the constitutional law in force on June 7, 1967 and still in force (Ben-Gurion’s law and the two aforementioned proclamations of 1948 have never been repealed and coexist with Section 11B), the June 7, 1967 Proclamations affecting Judea and Samaria should have been issued not by the IDF Military Commander but by the Minister of Defense, not under the Hague Regulations of 1907 governing occupied territories, but under the Area of Jurisdiction and Powers Ordinance concerning liberated areas of the Land of Israel, and last but not least, not for the purpose of continuing in force the law of the Kingdom of Jordan, but to apply the law of the State of Israel. This egregious and monumental violation of Israeli law and the triple error it entailed has never been corrected, nor even discussed or acknowledged by Israel’s legal elite. The Government of Israel chose this short-sighted course to keep the option of “peace” open and to avoid increasing the Arab population of the State, which were considerations outside the realm of law and could have been resolved by other means.7 The non-observance of the existing constitutional law in June 1967 was the folly and root of all the trouble Israel faces today in the battle to preserve Jewish rights to the Land of Israel under the Rule of Law. Had the Eshkol Government done what it was legally obligated to do, no one, apart from the Arab states and their close supporters, would have dared call the ancestral Jewish lands liberated in the Six Day War by the IDF “occupied territories” subject, after the end of active hostilities, to the laws of war embodied principally in the Hague Regulations and the Fourth Geneva Convention.
It is tragic to record that the Land of Israel Proclamation, so diligently and comprehensively applied by Ben-Gurion in 1948 as a means for annexing non-State parts of the Land of Israel restored to the Jewish people by the IDF, was simply forgotten or ignored in 1967, and has been forgotten or ignored ever since. As a direct result, the course of Israeli history, politics and law from 1967 to the present day has been radically different from what it should normally have been. The uncritical acceptance or lack of protest by any respected Israeli jurist in 1967 and in the ensuing decades against the issuance of the aforementioned military proclamations by Brigadier-General Herzog for Judea and Samaria that applied international law (i.e., the Hague Regulations and also the Fourth Geneva Convention) instead of Israeli law, as well as those proclamations issued for Gaza, the Golan and Sinai, is not only deeply shameful and scandalous, but also exposes an amazing ignorance of Israel’s legal rights and title of sovereignty to the whole of the Land of Israel and Palestine under both international law and Israeli constitutional law. The Arabs of the country and the neighboring Arab states could not have asked for a better gift from Israel’s legal authorities while, conversely, it was a betrayal of the Jewish-Zionist cause by those who ought to have known better.
The Herzog Proclamations led to the birth of the erroneous concept that the combined region of Judea and Samaria (as well as Gaza, the Golan Heights and Sinai) was truly “occupied territory”, governed by the rules of war, dictated by international law. By acting on this fallacious premise, Israel shot itself in the foot, greatly undermining its legal case for retaining these regions of the Jewish National Home and Land of Israel, as evidenced by its complete withdrawal from Sinai and Gaza and partial withdrawal from about two-fifths of Judea and Samaria. The damage has been catastrophic and never-ending, paving the way for foreign intervention and the eventual entry of the Palestine Liberation Organization into Judea, Samaria and Gaza to set up its own administration known as the “Palestinian Authority”. It is too late to undo the damage inflicted by Israel on itself, but Israel can still abrogate the illegally-drafted military proclamations still in force in regard to those parts of Judea and Samaria remaining under its control, abolish the military regime set up there, and apply Israeli law rather than foreign law in those areas. If this is done, then the constitutional law and legal norm that prevailed in 1948 during the War of Independence will be restored to its proper place in Israel’s legal system, as originally intended by Ben-Gurion.
It is bizarre that Justice Moshe Landau, the former President of the Supreme Court, in a 1979 judgment when he was then Deputy-President, declared that8 “the basic norm upon which the structure of Israeli rule in Judea and Samaria was erected is still today, as I have said, the norm of military government and not the application of Israeli law that entails sovereignty”. In making this pronouncement, Justice Landau believed wrongly that the norm of military government automatically excluded the application of Israeli law and sovereignty. He was apparently unaware of the fact that in 1948, Ben-Gurion created and repeatedly implemented the norm (as in the cases of Beersheba, Nazareth etc.) that Israeli law and sovereignty were to be applied over all areas of the Land of Israel repossessed by the IDF, even though these areas were placed under military government. It was this norm that should legally have been invoked in deciding the question of which law to apply to the territories liberated in the Six Day War. The only person in June 1967 who recognized the necessity of applying this norm was the then-M.K. Eliezer Shostak of the Free Center Party, who impatiently called for the issuance of a new proclamation under the Area of Jurisdiction and Powers Ordinance, a call ridiculed at the time by the Government and curtly dismissed.
The alleged norm cited by Justice Landau ignored the legal structure that had been in place for the Land of Israel between 1948 and 1967 that naturally included Judea and Samaria. His failure to recognize the earlier norm dating back to the rebirth of the State was an inversion of Israel’s rights to Judea and Samaria and also changed completely the legal reality created by Ben-Gurion. The Landau norm was a severe deviation from the Ben-Gurion norm as expressed in the Land of Israel and Jerusalem Proclamations that recouped for the Jewish state lands that rightfully belonged to it but which the UN “generously” but illegally recommended for inclusion in a new Arab state, contrary to Article 5 of the Mandate for Palestine that was still in force at the time of the Partition Resolution. The adoption of the Landau norm was a legal travesty that paved the way to the grave situation Israel now finds itself in.
Author’s Note: The scope of the Land of Israel Proclamation of September 2, 1948, as well as the meaning to be attached to Ben-Gurion’s law, the Area of Jurisdiction and Powers Ordinance, is further discussed by the author in his Eretz-Israel Letters to Justice Meir Shamgar, President Emeritus of the Supreme Court of Israel, 2005-2007, edited by Yoel Lerner and published by the Office for Israeli Constitutional Law, May 2007. This further discussion took place after the present article was written, and is therefore not included in this article.
Endnotes
1 See the author’s work on this important subject, A Petition to Annul the Interim Agreement, Policy Paper 77, published by the Ariel Center for Policy Research (ACPR), Shaarei Tikva, January 1999, p. 10-28; 35-67.
2 See article by Meir Shamgar, former President of the Supreme Court of Israel, entitled “Legal Concepts and Problems of the Israeli Military Government – The Initial Stage”, in the book he edited, Military Government in the Territories Administered by Israel 1967-1980, The Legal Aspects, Hemed Press 1982, reprinted 1988, Vol. 1, p. 14.
3 The Military Governor appointed by Defense Minister David Ben-Gurion to head the IDF government in the held areas of the Land of Israel was Major-General Elimelech Avner (Zelikovich). See Itton Rishmi (Official Gazette), Special Issue, 29th of Av, 5708 (September 3, 1948), no. 19, p. 114.
4 “Held areas” – a term found in the literature – otherwise referred to by the present writer as “repossessed” areas.
5 The pronoun “me” as used in the Interpretation section of the Land of Israel Proclamation (Section 1) does not mean that it applied only during the time that David Ben-Gurion was Minister of Defense. This proclamation, which is legally classified as a regulation issued on behalf of the Government of Israel, cannot be interpreted as being personal in nature, limited only to him, unless specifically stated to be so. Therefore, the word “me” simply refers to the Minister of Defense at the time the Land of Israel Proclamation was proclaimed and promulgated, but it could have been invoked by any later Minister of Defense who succeeded Ben-Gurion. The same explanation applies to the Jerusalem Proclamation of August 2, 1948.
6 The Military Governor for the IDF Government in the held area of Jerusalem was Dr. Dov (Bernard) Joseph. See Itton Rishmi, Special Issue, 26th of Tammuz 5708 (August 2, 1948), no. 12, p.66.
7 The author discusses the resolution of this question in the concluding chapter of his forthcoming book, The Legal Foundation and Borders of Israel under International Law. This chapter is entitled: “Arab Population Transfer: The Best of Solutions.”
8 Dwaikat v. Government of Israel (Elon Moreh case), HCJ 390/79: (1980) Supreme Court Judgments, Vol. 34 part I, at p. 12. The English translation of this case appears in Appendix A: Selected Judgments of the Supreme Court of Israel, in: Military Government in the Territories Administered by Israel 1967-1980, The Legal Aspects, edited by Meir Shamgar, pp. 404 ff. The above quotation by Justice Moshe Landau is found on p. 417.
http://www.acpr.org.il/ENGLISH-NATIV/11-issue/grief-11.htm
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