Two classified Foreign Ministry documents, from 1967 and from 1968, disclose how the government tried to avoid application of the Geneva Conventions to the territories immediately after they were captured and how it tried to prevent international criticism of violations of the conventions.
They also show how Israel tried to avoid granting the International Committee of the Red Cross access to the territories as mandated by the conventions.
In the documents, senior civil servants admit to various violations of the conventions, including the use of violence against the Palestinian population. They also reveal how Israel sought to avoid defining itself as an occupier in the territories, while admitting explicitly that this claim was put forth for strategic reasons, to avoid criticism, even though there was no substantive justification for it.
One document is a cable sent in March 1968 to Israel’s then-ambassador in Washington, Yitzhak Rabin, by Michael Comay and Theodor Meron. Comay, a senior diplomat whose previous posts included ambassador to the United Nations, was political advisor to then-Foreign Minister Abba Eban when the cable was written. Meron was the Foreign Ministry’s legal advisor.
The cable, which was classified top-secret, contains instructions from Comay and Meron on what Rabin should do to prevent the United States from forcing Israel to apply the Geneva Conventions to the territories.
“Our consistent policy has been and still is to avoid discussing the situation in the administered territories with foreign parties on the basis of the Geneva Conventions. ... Explicit recognition on our part of the applicability of the Geneva Conventions would highlight serious problems under the convention with house demolitions, expulsions, settlement and more — and furthermore, when we’re obligated to leave all options open with regard to the issue of borders, we must not recognize that our status in the administered territories is solely that of an occupying power,” the cable said.
“In short, our policy toward the administered territories is to try to prevent clear violations of the Geneva Conventions without getting into the question of the conventions’ applicability,” the cable continued.
Comay and Meron acknowledged that the status of Jerusalem was particularly problematic, because the government had already taken steps that would likely be viewed as violations of the conventions.
“The most serious problem is of course East Jerusalem, because here, if the government were to follow the Geneva Conventions and the Hague Regulations, it wouldn’t be able to make far-reaching administrative and legal changes, such as expropriating land,” they wrote. “The Americans recently said that our status in Jerusalem is solely that of an occupation. On this basis, we can’t even talk to them about the issue of Jerusalem, because although here, too, we’re trying to avoid actions that would have international repercussions, there’s no possibility of making all our actions in Jerusalem fit the restrictions that derive from the Geneva Conventions and the Hague Regulations.”
The diplomats therefore instructed Rabin “to tell the Americans that there are unique aspects to the status of the territories and to our status in the territories. Before the Six-Day War, the Gaza Strip wasn’t Egyptian territory, and the West Bank, too, was territory that had been occupied and annexed by Jordan without international recognition. Given this ambiguous, indeterminate territorial situation, the question of the convention’s applicability is complex and unclear prior to a peace agreement that includes setting secure and recognized borders.”
The cable added that there is “no point in debating publicly” with the Americans. “We recommend that you don’t get into any discussion or argument over the aforementioned issues, but merely record their response and leave the clarification to the embassy, without a circular and without the participation of UN members,” it said.
Another document, classified as secret, was sent by Comay to the Foreign Ministry’s deputy director general several months previously, on June 22, 1967, less than two weeks after the Six-Day War ended. In it, he advised that the ministry not use the word “occupation,” so as to avoid committing to allow the Red Cross free access to the West Bank’s civilian population.
“In light of the fact that the international Red Cross is trying to assert rights with regard to the civilian population, in accordance with the Geneva Conventions ... it’s necessary to be careful about the use of certain phrases noted in the convention; I’m referring primarily to the phrases ‘occupied territories’ and ‘occupying power,’” Comay wrote. “Our UN delegation and our legations must know that here, we’re avoiding discussions with representatives of the international Red Cross about the status of the territories.”
Comay recommended replacing the phrase “occupied territories” with “territories under Israeli control” or “territories under military government.”
These documents are not merely an interesting historical record of how Israel initially related to the Geneva Conventions, nor are they merely an admission of its violation. They are also relevant to the ongoing debate today over the occupation’s legality.
“In recent years, political actors have tried to insert a claim that wasn’t serious even back in the 1970s into the discussion — that the territories aren’t actually occupied and that their residents aren’t entitled to the rights guaranteed by the Geneva Conventions,” said Lior Yavne, executive director of Akevot Institute for Israeli-Palestinian Conflict Research, a left-wing research institute that works to uncover and publicize archival material on the conflict. “The uniqueness of the cable is the rare frankness with which the authors explain the reasons for the government’s refusal to admit the convention’s applicability to the territories, which were that some of its policies in the territories simply contradict the convention’s rules, and also as a tactical step in preparation for a future diplomatic agreement,” Yavne said.