Standing guard in Judea and Samaria
Standing guard in Judea and SamariaNati Shohat/Flash 90

A cosmetic policy changed the climate for Israel. Not the weather climate but what’s more lethal, the political climate later knocked off kilter by a (mis) judgment of the High Court, Aharon Barak presiding. It doubled down on the first bungle. The consequences were predictable and perpetual.

Israel had done the unforgiveable: it won a defensive war. To an egregious world it did something still more depraved by taking territories from aggressors intent on a second Holocaust – one they would not have denied but proclaimed. The penalty for victory and the spoils from it would be purgatory. Anticipating that the floodgates over Israel would open, what did its leaders do? They triggered climatic consequences by some well-intentioned naivety.

Alan Baker, formerly legal advisor to Israel’s Foreign Ministry, takes up the torrid tale.

“Upon Israel’s taking control of the area in 1967, the Fourth Geneva Convention (1949) was not considered applicable to the 'West Bank' (Judea and Samaria) territory; the Kingdom of Jordan prior to 1967 was never the prior legal sovereign, and in any event had since renounced any claim to sovereign rights.

"Israel as the administering power pending a negotiated final determination as to the fate of the territory, nevertheless chose to implement the humanitarian provisions of the Geneva Convention and other norms of international humanitarian law. It did this in order to ensure the basic day-to-day rights of the local population as well as Israel’s own rights to protect its forces and to utilize those parts of land that were not under local private ownership.

"Article 49 of the Fourth Geneva Convention, prohibiting the mass transfer of population into occupied territory as practiced by Germany during the war, was never intended to apply to Israelis preferring to live in Judea and Samaria.”

Ambassador Alan Baker's blog

This amounted to enticing burglars with a shop window display of gold ornaments. “Never intended to apply...” The shopkeeper also never intended to be burgled. By the looks of it that’s what the leaders of Israel did; they chose to tempt the world, giving it besides a big stick and a loud drum to beat Israel for its "occupation". And so it did, and Alan Baker protested.

“Accordingly, claims by the UN, European capitals, organizations and individuals that Israeli settlement activity is in violation of international law therefore have no legal basis whatsoever.”

"It only goes to prove that honourable intentions, where Israel is concerned, are marked down as a demerit. .....Never intended to apply to Israelis preferring to live in Judea and Samaria.”

What – a declaration like that would impress the UN?

General Assembly Resolution 2851, December 20, 1971: Strongly calls upon Israel to rescind forthwith, (a) The annexation of any part of the occupied Arab territories and (b) The establishment of Israeli settlements on those territories and the transfer of parts of its civilian population into the occupied territory.

In the meantime the “Palestinian people” with “inalienable rights” began to crop up at the UN:

UN General Assembly Resolution 3414, December 5, 1975: Gravely concerned at Israel's persistent denial of the inalienable national rights of the Palestinian people.

UN General Assembly Resolution 3525, December 15, 1975. Condemns the following Israeli practices: (a) The annexation of parts of the occupied territories; (b) the establishment of Israeli settlements and the transfer of an alien population (Jews being the aliens).

If only the fruitless move taught Israel a hard-earned lesson or two, but no. Along came a trio of High Court judges to cast the move in stone. On 30 June 2004 they handed down a ruling that one, perpetuated the belief in illegal occupation and two, gave the world a bigger stick and a louder drum to batter and beat Israel into paralyzed immobility.

By this time Occupation was the Coca Cola of catchphrases. The bunglers of 1967 had the excuse that crystal ball gazing is not an exact art. The judges by contrast knew the lie of the land. In full knowledge of what the UN had resolved, again and again, they made a ruling which,

“Assumed that the 'West Bank' is occupied territory, subject to international humanitarian law and the humanitarian provisions of the Fourth Geneva Convention” according to the 1967 climatic mistake.

Moreover, as if to leave no room for doubt that the occupation was illegal, the High Court effectively wrapped up Israel’s guilt ‘to go’:

“The military commander of territory held in belligerent occupation must balance between the needs of the army on one hand, and the needs of the local inhabitants on the other.”

Justices Aharon Barak, Eliahu Matza and Mishel Heshin effectively announced to a rapacious world that Israel had invaded the territories; that the occupation came about by a belligerent act of war. It would thereby weaponise every kangaroo court thereafter.

Frankly their use of “belligerent” flew in the face of established law, precedent and practice. Professor Judge Stephen M Schwebel had long ago dismissed, in the twinkling of a juridical eye, all tom-foolery about illegal occupation.

“A state [Israel] acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defence. Where the prior holder of territory had seized that territory unlawfully [Jordan], the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, a better title. As between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory... including the whole of Jerusalem, than do Jordan and Egypt.” (‘What Weight to Conquest? Justice in International Law,’ Cambridge University Press, 1994. (Dealt with at length in Ch 9 of, “Hadrian’s Echo: The whys and wherefores of Israel’s critics.”)

So the High Court’s “belligerent” occupation can and must be treated as unadulterated politicking. And Israel was defamed in the process. Aharon Barak and co took it that the Geneva Conventions directed at Nazi Germany applied to the Jewish State – founded on the back of the Holocaust.

Well, of course Israel-loathing law sharks swallowed the bait hook, line and sinker.

John Dugard, professor of law and policeman-prosecutor for the UN Human Rights Commission, had the most mouth-watering task anti-Semites could wish for. In the role of Special Rapporteur Dugard was mandated to investigate, rebuke and report on Israel’s criminal conduct in the “Occupied Palestinian Territories.” And that’s what he did, using Israel’s High Court defamation. “The Wall being built by Israel in the name of security penetrates deep into Palestinian territory.”

In Ch 9 of Hadrian’s Echo I had Dugard testifying. Please kindly quote international law to the effect that Israel occupies Palestinian territory. The witness’s response came by email:

“I think it would be helpful if you were to read the Advisory Opinion of the International Court of Justice (ICJ) of 9 July 2004 and the judgment of the High Court of Israel in the Beit Sourik case of 30 June 2004. They will provide you with answers to most of your questions and give you a better understanding of the legal norms that govern the situation.”

That was the sum total of his evidence. With due respect to a lawyer of repute, an “advisory opinion” and a case over Israel’s security fence seem nothing compared to the enormity of deciding the boundaries of a country.

Not to mention a problem of timing. Dugard started work for the Human Rights Commission back in 2001. Before 2004 he therefore lacked the Beit Sourik case for precedent. It meant that his job title was fake. It meant that, like a doting father Dugard took land from Israel and gave it to people under his parental wing. The verdict: for three years Dugard acted as a law unto himself.

One more thing: he wrote of “legal norms.” We consult the Oxford Dictionary to find that “norm” or “normative” has one of two meanings: “Value judgments as contrasted with stating facts;” Or, “A standard of behaviour that is required, desired or designated as normal.” Value judgments, opinions and standards of behaviour…Lawman Dugard had no right, inalienable or other, to make out that “Occupied Palestinian Territory” was a real piece of real estate.

All of which would be a mild storm in a teacup were such a territory no more than a misnomer. In fact OPT makes a life or death difference. On its back terror groups get leeway and money to sow murder and mayhem. Out of the contagious and lucrative lie sprang the “cycle of violence” between the ‘dispossessed’ Palestinian Arabs and the ‘usurper’ Israelis. The cycle means that Palestinian Arabs have a legitimate reason to kill Israelis who have a right (reluctantly given in bad faith) to self defence. And even that disgusting “latitude” has been degraded. Today the mandate to criminalise Israel has passed to the hands of one, Francesca Albanese.

“Israel has a right to defend itself, but can’t claim it when it comes to the people it oppresses [or] whose land it colonizes.

In her Tweet Albanese offered Jews the right to life with one hand and confiscated the right with the other. UN members, one supposes, would call that even-handed justice.

Steve Apfel is an authority on anti-Zionism and a prolific author in general. His blog, ‘Balaam’s curse,’ is followed in 15 countries on 5 continents. Details of his latest book in progress, “Hitlers at Heart: Anti-Zionism and its believers” can be found at