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Fifty years ago, an Israeli occupation foreseen

Michael Lynk is an associate professor of law at Western University and the United Nations special rapporteur on human rights in the occupied territories.

In September, 1967, Theodor Meron, the newly appointed legal adviser to the Israeli Ministry of Foreign Affairs, was asked by the Israeli government for his written advice on the international legal implications arising from the recent June War. Fifty years later, his forewarning still resonates.

Three months earlier, Israel had decisively defeated three Arab armies and captured the Egyptian Sinai, the Syrian Golan Heights, Gaza, East Jerusalem and the West Bank. Living in these territories were more than one million Arabs, most of them Palestinian. By September, the international community was expressing opposition to the embryonic Israeli settlements springing up on the West Bank and to Israel's "municipal fusion" of East Jerusalem.

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In his legal opinion to the Israeli government, Mr. Meron explained the strict prohibitions that international humanitarian law placed on Israel's rule over these territories. The Fourth Geneva Convention of 1949 applied, he wrote, and, through this lens, he noted that the international community viewed these conquered lands as subject to the law of occupation. (In legal terms, this would mean that the Palestinians are a protected people, annexation of any occupied lands is illegal and the occupying power must eventually return all these lands to the rightful sovereign.)

As for the burgeoning Israeli settlements, Mr. Meron warned that they were expressly forbidden under the Geneva Convention. This prohibition, he said, was categorical, and intended to prevent the colonialization of captured territory by the occupying state. Settling civilians of the occupying power in these territories would be seen by the international community as the unlawful prelude to annexation.

His memo was read by the highest political circles in Israel and ignored. Instead, the debate among the Israeli leadership in 1967 was whether to claim some, or all, of these conquered lands, a debate that continues today. His inconvenient advice about international law would lie buried in the Israeli archives for the next 40 years.

Mr. Meron, a Holocaust survivor, would go on to become a law professor in New York, a leading scholar of international law and eventually the president of the United Nations International Criminal Tribunal for the former Yugoslavia.

In April of this year, on the eve of the 50th anniversary of the occupation, he has published a remarkable article in the American Journal of International Law about his prescient memo and on the widening gap between international law and Israel's actual practices in the West Bank. In this article, Mr. Meron points out that Israel's continued growth of Jewish settlements in the West Bank is foreclosing the chances of a contiguous and viable Palestinian state. Referring to Israel, he said:

"Disrespect for international law is, alas, not unusual in the affairs of states. It is rare, however, that disrespect for an international convention would have such a direct impact on the elimination of any realistic prospects for reconciliation, not to mention peace."

In late December, 2016, the UN Security Council adopted Resolution 2334, the latest of its 50 resolutions since 1967 imploring Israel to obey its international obligations regarding humanitarian and human-rights law. Echoing Mr. Meron's memos, the Security Council in Resolution 2334 reaffirmed the application of the Fourth Geneva Convention to the Palestinian territory, condemned the Israeli settlements as a flagrant violation of international law and stated that East Jerusalem is occupied territory.

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Israeli Prime Minister Benjamin Netanyahu immediately stated that Israel would not abide by the resolution. In the face of wall-to-wall international opinion, Israel has never accepted the application to the Palestinian territory of the Fourth Geneva Convention – "the gold standard of humanitarian law", according to Mr. Meron – nor has it accepted the many directions from the Security Council that the settlements are illegal and must end.

International law is the promise that states make to one another to respect their commitments to human rights and humanitarian norms and to uphold the modern world order. If used wisely, it is one of the best tools we have in the global arena to protect the weak against the deprecations of the strong. Alas, one significant reason for the repeated failures of the Middle East peace process over 25 years has been the unwillingness of the international community to enforce the legal norms that it repeatedly proclaims.

At the age of 87, Mr. Meron has seen the worst of European history as well as the tragedies of the modern Middle East. Perhaps because of this, his faith in the efficacy of international law remains unshaken.

In his recent article, he decries Israel's self-serving interpretations of humanitarian law that seek to justify what is plainly unlawful. In his closing words, he warns that Israel must understand that the violation of Palestinian human rights and "the colonialization of territory populated by other peoples can no longer be accepted in our time."

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