I Roots
The Road to Judgeship
Whyshould a book about judging war crimes start with a chapter about one’s life, one’s childhood, miseries, the ups and downs of a long professional life? One of my close friends, a former law clerk, was among those who suggested a book about judging, arguing that if a Judge’s life turns on integrity, independence, ethics, surely, these are not qualities to be acquired at the age of 71 when I first became a Judge. By that age, she said, you either have those qualities or not and your readers will want to know something about your past life to judge your credibility. Others have made similar points.When I gave my last briefing, my swan song to the U.N. Security Council on 11 December 2018 as President of the International Residual Mechanism for Criminal Tribunals, the permanent representative of our host country, the Netherlands, in his generous remarks about my contribution to international criminal law concluded on a personal note. He hoped I would write an autobiography. I have never expected so many members of the Council to give me such a generous personal sendoff.
I decided only to follow these suggestions in part, both because of my reluctance to discuss personal and family matters and because I did not wish to revive controversies in which my presidency of the Tribunals was sometimes involved. Personal or autobiographical aspects will therefore be limited largely to my pre-Judgeship life and to this chapter.
I peaked late in life. I became a full-time academic at the age of 48 and a Judge at the age of 71. And I am completing this book soon after my 90th birthday.
I find it difficult writing this chapter; these personal, rather autobiographical notes. Doing so compels an inquiry into the private domain, the piercing of the veil on essentially private experiences: motivation, achievement,
failure. Striking the right balance between the personal dimension and saying something that may be of interest to readers is challenging. But there is no question that what we write and when we write can only be explained by our own life experiences. I am reminded of a saying attributed to Talmudic sages: “We don’t see things as they are, we see things as we are.”
The Holocaust
I was born in 1930 in a small town in Poland to a Jewish family, traditionally in the lumber trade, and had a happy but, alas, short childhood. My family leased forests for logging—no one had heard about ecology then—and I spent my summers in villages in the heart of thick, mysterious forests. My fascination for and love of forests has never faded.
By the age of nine, Nazi Germany had invaded Poland, and I was out of school for the duration of World War II. Ghettos and work camps followed, with most of my family falling victim to the Holocaust. When the war ended, I emerged, lucky to be alive, with a hunger for school, for learning, for normality. In 1945, I left Poland for Palestine where I had a wonderful aunt and uncle, who spared no effort in providing me with education and love.
I have to say something about my complex relationship with Poland, the country of my birth. My years in prewar Kalisz, and summers in forests and villages, are largely shrouded in the fog of time. But I still remember kayaking and biking in the summers, skating in the winters and playing hide and seek in my grandfather’s lumberyard. Strangely, what survived are the melodies, children’s songs and Chopin, often played in school ceremonies.
Next came the war years, largely in Cze ˛stochowa, so different and painful. The ghettos, the labor camp, German and Ukrainian SS, most of my family falling victim to the Holocaust. Even during those apocalyptic times, where Poles appeared threatening, hostile and brutally anti-Semitic, there were moments of light, of which I learned only after the war, with many Polish Catholics risking their lives to save Jews, some in my own family. In the threatening sea of anti-Semitism, there were some islands of humanity.
My departure from Poland after the war was followed by a deliberate disconnect, rejection, denial. I did not want to hear of Poland or talk of my wartime experience. I felt embarrassed by my victimhood. I often had
nightmares in which I was escaping Germans in black uniforms who were chasing me, not catching me, but chasing and chasing, until I would wake up, sweating. In vain I tried to forget. I could not even think of coming back face to face with places that left such a painful, traumatic imprint on my life. I did not expect to see Poland again. I probably would never have had the courage to go back were it not for an invitation from the International Committee of the Red Cross (ICRC), in 1986, to lecture in their Warsaw Summer Course on International Humanitarian Law. Nor would I have gone without the company and the encouragement of my wife, M. So I decided to confront the past. We travelled to Kalisz, Cze ˛stochowa, Treblinka and Auschwitz so closely resonating with the war, and also to Kraków, Kazimierz and Gdynia. It was an incredibly painful trip. I have never believed that a direct confrontation with a traumatic past can liberate a person from the demons of the past. Fortunately, I was proved wrong. The catharsis of returning to my childhood venues exorcised from me the ghosts and nightmares of my childhood. And these have not come back to haunt me ever again. Since then, I have returned to Poland many times, including in 2011 to receive an honorary doctorate from the University of Warsaw. In 2017, Poland made me an Officer of the Order of Merit. I have previously been decorated by France and recently by the United Kingdom but a decoration from Poland was certainly more surprising. I reconciled with the new Poland. I wish it well and hope that its democracy will thrive. I appreciated the fact that Poland invited me to brief the Security Council when it had the Council presidency in 2019.
I was invited to give the Holocaust keynote speech at the United Nations Holocaust Memorial Ceremony marking the 75th anniversary of the liberation of Auschwitz on 27 January 2020. I had never before spoken about the Holocaust in such detail. In my speech I tried to make clear that the German killing machine did not only target Jews, but also the Roma, Poles, Russians and others and I acknowledged those who risked their lives to save Jews:
It is often forgotten that millions of Poles and Russians also fell victim to the Nazi killing machine. I grieve them all. The events of the Holocaust may seem far away to many of you, separated as they are from us by decades of progress. But for those who lived through them, as I did as a boy in occupied Poland, they are all too real. By the age of nine when the Nazi Germany invaded, I was overnight a refugee, out of school, out of childhood and constantly in clear and present danger.
What followed was the ghettos, work camps, most of my family falling victim to the Holocaust.
The saving of its entire Jewish population by the people of Denmark will remain forever as a rare epitome of true humanism.
I find it striking that a country which was as anti-Semitic as Poland produced the highest number of righteous gentiles, non-Jews who saved Jews, recognized as such by Yad Vashem in Israel.
And yes, there are stories of bravery and righteousness, of individuals standing up to be counted when the time to do so has come. I think of the young German soldier who found my maternal grandparents in their hiding place and, risking his life, decided not to turn them in. They thus survived for a few more months until caught in the Nazi net.
I think of the Warsaw Catholic baker who sheltered a little girl for all those years, risking her life and that of her own daughter.
I think of Aristides de Sousa Mendes, the Portuguese consul in Bordeaux who in defiance of orders saved thousands of Jews by giving them visas and was, as a result, destroyed by Salazar, or the Pole Jan Karski who infiltrated the Warsaw Ghetto and an extermination camp and then travelled to the West to report to the Allies on the unbelievable destruction that was being inflicted on the Jews. Alas, bombing rail lines to the death camps was not on the Allies’ priority list.
It is from acts of humanity that seeds of reconciliation and a shared sense of humanity emerge. Remembrance and acknowledgement of historic crimes, coming clean with the past, is essential to the process of reconciliation.
I pay homage to President Chirac who, breaking with a long taboo, accepted the responsibility of France for Vichy’s collaboration with the enforcement of the Holocaust, for committing, in the words of Chirac, “the irreparable.”
When the war ended I emerged with a hunger for school, for learning, for normality. That I, a child of the Holocaust, was given by fate the honour of presiding over UN War Crimes Tribunals, and of judging the Krstić appeal, the first post-war genocide committed on European soil, the mass killings at Srebrenica, and doing it justly and fairly, is, to myself, one of the wonders of my life.1
I ended the speech with the prayer that “neither we nor our children will be victims, or even worse, perpetrators of genocide,” and, to paraphrase
1. To view the speech, https://news.un.org/en/story/2020/01/1056122.
Sir Michael Howard’s Holocaust speech to the Oxford Chabad Society, that we will not be “those who simply let this happen: thinking the kind of things, tolerating the kind of behavior that ultimately makes genocides possible.”
And Life Goes On
In Palestine I faced the daunting task, never quite achieved, of catching up with six lost years. I was catapulted from the age of nine into a difficult young adulthood. Learning Hebrew and English, and mathematics, to pass the high school final exams was hard. I had no time for anything but studying. I attended a high school in Haifa, followed by military service, then studies at the law schools of the University of Jerusalem, Harvard University and the University of Cambridge. In Jerusalem I started focusing on international law. At the two Cambridges I worked on hardly anything else. Jerusalem gave me a solid legal foundation, but I found the old-fashioned educational system, largely based on lectures and memory, to be uninspiring, even boring. It was at Harvard, with its analytical method, that I became comfortable with the law, and knew it was to be my vocation.The imprint of the war made me particularly interested in working in areas that could contribute to making atrocities impossible and eliminate the horrible chaos, the helplessness and the loss of autonomy and normality that I remembered so well.
At Harvard, I was fortunate to become a student of and research assistant to two masters of international law—one specializing in humanitarian law and the law of war, the other in human rights—who became my mentors and models, and with whom I worked on a project of codification/ restatement of the law of State responsibility. They were Richard Baxter, later a Judge of the International Court of Justice, and Louis Sohn. As it happened, much of my later scholarship and practice was in these areas. At the University of Cambridge as a Humanitarian Law Scholar, a scholarship which was offered to me by Sir Hersch Lauterpacht on Baxter’s recommendation, I was approached by another person to whom I owe a debt of gratitude for contributing so much to my legal education and career: Shabtai Rosenne, the Legal Adviser of the Israeli Foreign Ministry. He offered me a job, which I accepted. I would have preferred an academic job and was exploring British universities, but none was in sight. I stayed in the Israeli foreign service for about 20 years, resigning for personal reasons in 1977 and
moving permanently to the United States, where I joined NYU School of Law as a professor of international law.
My diplomatic experience started with the Office of the Legal Adviser of the Ministry for Foreign Affairs in Jerusalem, continued with the Permanent Mission to the U.N. in New York and moved on to Ambassador to Canada and finally to the Permanent Mission to the U.N. in Geneva, which I headed for less than a year before resigning. I became acquainted with NYU Law School when I was in New York for a Rockefeller Foundation Fellowship in 1975–1976 and taught as a visiting professor, upon invitation arranged by my life-long Harvard friend and distinguished internationalist Professor Thomas Franck. I greatly liked its open, friendly, reflective environment, and appreciated its offer to return to teach full time, when after resignation from the Ministry for Foreign Affairs, my future prospects looked quite bleak.
I have, of course, been very, very lucky. After the abyss of the World War II years, life compensated me with so many openings and unusual experiences. My writings grew out of these windows of opportunity. Yet, looking back, I can see something imperfectly resembling an integral whole emerging from the discrete segments.That does not mean that the goal of complete coherence was achievable or even desirable. A combination of chance and seized opportunity sometimes leading in different directions has been critically important. The situation, the circumstances, the needs and the institutional constraints were often the controlling factors. But despite engagement in different activities, when the opportunities arose, I chose those that fitted with my chosen purposes, especially the humanization of the law.
The Israeli Foreign Ministry provided me with an invaluable experience of writing legal opinions, participating in international conferences and litigating cases. It helped me to gain a practical perspective. Soon after my arrival in Jerusalem from the University of Cambridge, I joined the team suing Bulgaria before the International Court of Justice in the case of the Aerial Incident of 27 July 1955 during the height of the Cold War. It was a tragic case in which an El Al passenger plane strayed into Bulgarian air space during a storm and was shot down, causing the death of all the passengers and crew. Bulgaria contested jurisdiction and prevailed, resulting in the dismissal of the claim.
One of the more interesting legal issues was whether in such a case, where the contact with the territorial State was not deliberate and voluntary, there was an obligation for the claimant to exhaust local remedies before suing before the international court. In an article published in the British Yearbook of International Law in 1959, I argued that there was no such obligation and
suggested parameters for the applicability of the doctrine of local remedies. I had already published law review articles based on my studies at Harvard and my Harvard doctoral dissertation, but the local remedies article was the first in which my practice resulted in a discrete contribution to the theory of international law. I still remember how pleased I was when Professor Roberto Ago, a giant of international law, cited it in his work on State responsibility in the International Law Commission.
In 1961, I joined the Permanent Mission of Israel to the U.N. in New York. As a representative on the Fifth Committee (Administrative and Budgetary), most of my official work was on administrative problems of the U.N. and its Secretariat. I became concerned about the politicization of the Secretariat, its tendency to slide from an international to a multinational institution, the rampant discrimination against women and the inadequacy of due process provisions for the staff of the Secretariat. As Counsellor I also had some political functions and entertained close relations with the officials of the Palestine Conciliation Commission. I fully reported to the Ministry on my meetings and discussions. These discussions involved what appears now to be totally utopian solutions for the Arab refugees from the 1948 war. Naively, I felt such ideas should be discussed and tested and some reasonable solution should be found to end the plight of the refugees. My reports quickly proved to be an embarrassment for Golda Meir, the Minister for Foreign Affairs, who called me to order, instructing me to cease and desist. The question of Arab refugees was placed out of bounds.
The Palestine Opinions
My U.N. period ended with the Six-Day War in June 1967; a traumatic period in which, from the perspective of an Israeli diplomat in New York, the future and the survival of Israel were very much at stake. In June, shortly after the fighting was concluded with a victory for Israel, I was offered the job of the Legal Adviser of the Foreign Ministry in Jerusalem—a significant promotion for a 37 year old—to succeed the great scholar Shabtai Rosenne, who was being moved to New York.
It was in many ways a baptism of fire. Within weeks of my arrival in Jerusalem, I was requested to advise the Prime Minister whether the establishment of Jewish civilian settlements in the occupied West Bank, the Golan Heights and Gaza was allowed by international law. I refer here to a secret
legal opinion brought to light many years later by the Israeli journalist Tom Segev,2 and the historian Gershom Gorenberg in his book The Accidental Empire (2006), and reported in The New York Times, 3 and by Donald Macintyre in The Independent, 4 and subsequently Christiane Amanpour on CNN, and many others. In this Opinion, I wrote that the establishment of civilian settlements in occupied territory violated the Fourth Geneva Convention as well as the private property rights of the Arab inhabitants. The Israeli Government chose to go another way and a wave of settlements followed, making the prospects for a political solution so much more difficult. Although I knew that this was not the opinion that the Prime Minister would have wished me to deliver, I had no doubt that legal advisers of governments must be faithful to the law and call the law as they see it. To the credit of the Israeli government, I must note that there were no repercussions, of which I was aware, from my unpopular opinion. The opinion reflected a commitment to human rights and humanitarian law and it dealt not only with the rights and obligations of States, but with the rights of inhabitants. The following year, on 12 March 1968, I gave another controversial opinion, one in which I stated that the demolition of houses and deportations of Arabs suspected of subversive activities were violations of the Geneva Conventions and constituted collective punishment. The full opinion was later translated into English by the NGO HaMoked.5
Oddly, these two opinions have become the best known of all my writings. The first opinion written in Hebrew bureaucratic language uses expressions I would not use as a scholar or a Judge. But it is clear and concise and does not try to mask the conflict between the establishment of the settlements and international law. Here it is, in part, in translation from the original Hebrew: Ministry of Foreign Affairs
Jerusalem,13 Elul 5727 18 September 1967
TOP SECRET
To: Mr Adi Yafeh, Political Secretary to the Prime Minister From: Legal Adviser, Ministry of Foreign Affairs
2. Tom Segev, Israel in 1967: and the Land Changed its Visage 611 (2005).
3. Gershom Gorenberg, Israel’s Tragedy Foretold, New York Times, 10 Mar. 2006, Editorials/ Op-Ed. Web.
4. Donald Macintyre, Israelis Were Warned on Illegality of Settlements in 1967 Memo, The Independent, 11 Mar. 2006, Web.
5. See http://www.hamoked.org.
Subject: Settlement in the Administered Territories
At your and Mr Raviv’s request, I am enclosing herewith a copy of my memorandum of 14.9.67 on the above subject, which I submitted to the Minister of Foreign Affairs. My conclusion is that civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention.
Regards, [signed]
T. Meron
Copy: Mr A. Shimoni, Director of the Minister’s Office
14.9.67
To: Minister of Foreign Affairs
From: Legal Adviser
Most Urgent TOP SECRET
Subject: Settlement in the Administered Territories
… From the point of view of international law, the key provision is the one that appears in the last paragraph of Article 49 of the Fourth Geneva Convention. Israel, of course, is a party to this Convention. The paragraph stipulates as follows:
“The occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies”.
The Commentary on the Fourth Geneva Convention prepared by the International Committee of the Red Cross in 1958 states:
This clause was adopted after some hesitation, by the XVIIth International Red Cross Conference. It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.
The paragraph provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words “transfer” and “deport” is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power.
The prohibition therefore is categorical and not conditional upon the motives for the transfer or its objectives. Its purpose is to prevent settlement in occupied territory of citizens of the occupying State. If it is decided to go ahead with Jewish settlement in the administered territories, it seems to me vital, therefore, that settlement is carried out by military and not civilian entities. It is also important, in my view, that such settlement is in the framework of camps and is, on the face of it, of a temporary rather than permanent nature.
… we must, from the point of view of international law, have regard to the question of ownership of the land that we are settling.
Article 46 of the Hague Regulations concerning the Laws and Customs of War on Land (Annexes to the Hague Convention (IV) of 1907), regulations that are regarded as a true expression of customary international law that is binding on all countries, states in relation to occupied territory that:
“private property … must be respected. Private property cannot be confiscated”.
As regards State lands, Article 55 of the Hague Regulations stipulates that an occupying State is permitted to administer the property and enjoy the fruits of the property of the occupied State. Even here there are certain limitations on the occupying State’s freedom of action, which derive from the occupying State not being the owner of the property but having merely enjoyment of it.
In relation to the property of charitable, religious or educational institutions or municipalities, they are treated under Article 56 of the Hague Regulations as private property.
Regarding the possibility of engaging in any kind of agricultural activity and settlement on the Golan Heights, it has to be pointed out that the Golan Heights, which lie outside the area of the mandated Land of Israel, are unequivocally “occupied territory” and are subject to the prohibition on settlement. If it is decided to establish any settlements, it is essential that this be done by the army in the form of camps and that it does not point to the establishment of permanent settlements.
In terms of settlement on the [West] Bank, we are trying not to admit that here too it is a matter of “occupied territory”. We argue that this area of the Mandate on the Land of Israel was divided in 1949 only according to Armistice Lines, which, under the Armistice agreements themselves, had merely military, not political, significance and were not determinative until the final settlement. We go on to say that the agreements themselves were achieved as a temporary measure according to Security Council action based on Article 40 of the U.N. Charter.
We also argue that Jordan itself unilaterally annexed the West Bank to the Kingdom of Jordan in 1950 and that the Armistice Lines no longer exist because the agreements expired due to the war and Arab aggression.
We must nevertheless be aware that the international community has not accepted our argument that the [West] Bank is not “normal” occupied territory and that certain countries (such as Britain in its speeches at the U.N.) have expressly stated that our status in the [West] Bank is that of an occupying State. In truth, even certain actions by Israel are inconsistent with the claim that the [West] Bank is not occupied territory. For example, Proclamation No. 3 of the IDF Forces Commander in the West Bank of 7.6.67, which brings into force the Order concerning security regulations (in Section 35), states that:
“A military court and the administration of a military court will observe the provisions of the Geneva Convention for the Protection of Civilians in Time of War in everything relating to legal proceedings and where there is conflict between this Order and the aforementioned Convention, the provisions of the Convention will prevail”. With regard to Gush Etzion settlement this could to a certain extent be helped by claiming that this is a return to the settlers’ homes. I assume that there are no difficulties here with the question of property although the matter requires close examination. With regard to Gush Etzion too, we have to expect, in my view, negative international reaction on the basis of Article 49 of the Geneva Convention. Furthermore, in our settlement in Gush Etzion, evidence of intent to annex the [West] Bank to Israel can be seen.
On the possibility of settlement in the Jordan Valley, the legal situation is even more complicated because we cannot claim to be dealing with people returning to their homes and we have to consider that problems of property will arise in the context of the Hague Regulations
Regards, [signed]
T. Meron
Copy: Director-General
I am often asked whether I stand by those opinions today. I certainly do. My interviews with Donald Macintyre in The Independent6 and others on many occasions since then make this quite clear.
I returned to the question of the settlements in 2017 in an article in the American Journal of International Law entitled “The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six- Day War.” In the article I tried to answer the arguments of Professor Yehuda Blum and Justice Meir Shamgar who first developed the thesis of the sui generis character of the West Bank and against the
6. The Six-Day War, 26 May 2007.
