Opinion

Forefather of the ‘Administered Territories’

Meir Shamgar giving a speech in 2011.
Daniel Bar-On

Israel’s 1967 occupation owes a very large debt to former Supreme Court President Meir Shamgar, who died on Friday. Were it not for his contribution, the occupation may not have lasted so long. Were it not for the stamp of approval that he bestowed, this crime may have been long ago eradicated.

Streets in the West Bank settlements of Ariel and Itamar should be named after Shamgar, while Palestinian towns from Jenin to Rafah should remember him in disgrace. Shamgar was the silver platter on which the occupation was delivered, to Israel and to the world: cold, respectable and wrapped in clear cellophane, with the appearance of legality, attractive and enlightened, laundered and neatly ironed.

Without the wrapping, many more Israelis would have long ago taken cover in deep shame, fed up with the occupation and fighting against it. Were it not for Shamgar and the Israeli Supreme Court, the world would also have recognized the occupation’s moral rot.

It’s no wonder that so many Israelis from across the political spectrum have accorded Shamgar such respect. He did the most important work for us following the military act of occupation. He enabled us to perpetuate it. Shamgar, as well as the Supreme Court that was shaped in accordance with his beliefs, gave the occupation the only thing that it was lacking – legitimacy. Thanks to Shamgar, it became possible to go along with the occupation and pretend it wasn’t there.

Early on, Shamgar ruled that it wasn’t really an occupation and that the Fourth Geneva Convention didn’t apply to it, just as the most extreme on the right claim now. There are almost no serious jurists around the world who have bought this nonsense.

Shamgar also foresaw the occupation. In the early 1960s, when he was the military advocate general, he laid the legal foundations for a possible occupation without ruling out its legitimacy. He also gave the territories the monumental name “the administered territories.” Not occupied, or liberated, but something in between.

That’s how we liked them – temporary, a bargaining chip until a Palestinian partner is found in a moment or two, maybe three. Until then, we would be allowed to administer them as we please. Shamgar said it was okay. Hiding behind this turn of phrase was one of the occupation’s biggest deceptions. Momentarily it would be over. Administered.

Shamgar wasn’t heaven forbid an uncouth settler or wild racist. He was “the Ben-Gurion of the judicial system,” as his successor as Supreme Court president Aharon Barak eulogized him on Friday. And just like David Ben-Gurion, he knew how to make his mark without leaving a telltale sign. His real genius was in shaping a liberal and enlightened image, for himself and the court.

After all, Shamgar paved the way for Palestinians in the territories to have access to Israel’s High Court of Justice, a step that was unprecedented around the world. Everyone was captivated by the move. A people under occupation was given standing to petition the High Court of Justice. Yes, justice.

Here too, however, there was a major hidden deception. The step helped blur the existence of the country’s 1967 borders. Everyone would be equal in the eyes of the court and everyone had standing in court, whether they lived in the Israeli town of Gedera or the Jabalya refugee camp in Gaza.

And how did the right of standing benefit the Palestinians? How many times has the High Court come down on their side and supported their rights? And how often has it sided with Jewish settlers? When has it not served as an automatic rubber stamp when dealing with the military and security agencies? The court even unanimously cleared the way for the disgraceful expulsion in 1992 of 415 Hamas members to Lebanon, in a decision personally directed by Shamgar.

It was Shamgar who once said he had decided to devote his life to a public legal career after being put in administrative detention by the British Mandatory authorities and expelled to Eritrea. Since then, with the consent of the High Court of Justice, Israel has put huge numbers of Palestinians in administrative detention, just as the British had with Shamgar, but how can the two cases compare?

Of course, Shamgar’s contribution to maintaining freedom of expression, protecting civil rights, activism and other important values will not be forgotten, but on the day of reckoning, one cannot help also remembering who gave a stamp of approval to these injustices and who was able to wrap them in the high rhetoric of law, justice and equality, values that never existed in Israel’s dark backyard and which Shamgar covered up with his spirit and image.