Rebel to Revolutionary in Robes
Nov 7, 2019 | Amotz Asa-El
After being arrested in British Mandate Palestine by British police for his membership in the Irgun underground, 19-year-old Meir Sterenberg soon found himself in an internment camp in Gilgil, Kenya – 2,000 metres higher in altitude, and 2,000 kilometres south of his home in Tel Aviv.
It took four more years until he returned – straight into the fray of Israel’s War of Independence, a climax that enhanced the impression that his years imprisoned in Africa were a waste of time.
That impression proved unfounded.
Happy to see their inmates being kept busy, the British allowed the activist to undertake legal studies at the University of London by correspondence. It was an unconventional course of study – checkered by fighting in Jerusalem and a failed escape attempt in Africa – but Sterenberg’s scholastic effort produced not only the lawyer it was meant to produce, but also a pioneering High Court president he could not then have imagined he would become.
The man Israelis would come to knew as Meir Shamgar – the family name he took from a biblical judge and warrior – passed away this October aged 94. He was universally eulogised as a towering jurist, a major shaper of his era, and arguably, also an embodiment of its passing.
As happened with other Israelis of his generation, Meir Shamgar benefitted from the timing of his professional emergence.
Born in interwar Gdansk, then a free city under the League of Nations’ auspices, Shamgar arrived with his parents in British Palestine in 1939, missing by only several months Gdansk’s invasion by the Nazis. He had been 14 when he left Gdansk, old enough to recall the pogroms that took place in the largely German-populated city, both during and before Kristallnacht in November 1938.
These formative experiences fed the sacrificial patriotism that first made Shamgar join the military underground, and later led him to devote his efforts to helping build the IDF, rather than seek a job in the private sector.
In 1950, the newly accredited lawyer therefore joined the young IDF’s Miltary Advocate-General’s (MAG) office. Tall, understated, deep-voiced and mostly stern-faced, the multilingual Shamgar rose quickly through its ranks, becoming in 1955 the deputy MAG, and in 1961, at age 36, the IDF’s advocate general.
It was the first of three positions in which he would leave an indelible imprint on the Israeli judiciary. The others were as civilian attorney-general of the country as a whole, and later, justice of Israel’s High Court for 19 years – including nearly 12 years as court President, more than any other court president before or after.
Shamgar was the MAG when the Six-Day War broke out in 1967. A cataclysmic event in every respect – militarily, diplomatically, socially, and economically – the war posed major legal challenges as well.
Israel’s unplanned conquest of large territories populated by hundreds of thousands of Palestinians created a unique jurisprudence problem that demanded practical solutions. Shamgar supplied them.
The MAG ruled that the Geneva Convention’s framework cannot apply to the West Bank and Gaza, since the international community did not recognise Jordan’s pre-war rule of the former, nor Egypt’s of the latter. This meant that legally speaking, Israel was not an occupier, because occupation could only follow the eviction of an internationally-recognised sovereign.
Semantically, Shamgar referred to the territories neither as “liberated,” as the political Right did, nor as “occupied”, as the political Left did. He used instead the ideologically neutral, but politically instructive, “administered territories”.
On the political plain, Shamgar created the maneuvering space that statesmen would need to hopefully shape a new political reality. More than half-a-century later, that political breakthrough has yet to arrive, a failure lamented by Left and Right alike, but one which would have been altogether catastrophic had it also entailed a legal vacuum in the meantime.
But there was no legal vacuum, because Shamgar created a network of military courts that provided the Palestinian population with judicial infrastructure and also juridical continuity. He made sure the courts retained and respected the previous legal codices – the Jordanian in the West Bank, and the Egyptian in the Gaza Strip – to ensure this continuity.
At the same time, Shamgar ruled that Palestinians under the IDF’s military rule could appeal to Israel’s High Court of Justice in much the same way Israeli citizens can. Moreover, he insisted that, despite his contention that the Geneva Convention’s prerequisites did not apply to the Israeli-Palestinian situation, the military government would nonetheless voluntarily heed the convention’s moral provisions.
Critics say this eclectic structure provided legal license for occupation – but they too concede that Shamgar inserted into Israeli military rule of the West Bank and Gaza as much of his liberal convictions as the complex circumstances he faced allowed, and more than any other government “occupation” has ever offered before or since.
Shamgar’s assertiveness, pragmatism and vision during his years in the IDF led the government to appoint him as the civilian attorney-general in 1968, which in Israel means both heading the Office of Public Prosecutions and serving as the government’s primary legal adviser.
It did not come naturally for the Labor-led establishment then in government to place a veteran of the Irgun – who were bitter opponents of Labor in the pre-state era – like Shamgar into such a sensitive position. However, when reminded of this background while considering the appointment, Prime Minister Levi Eshkol is reputed to have said: “But he knows law.”
Shamgar’s seven years as attorney-general were underpinned by the same liberalism and transformative pragmatism that guided him while in the IDF. Most notably, he refused to defend in court the government’s refusal to register a new immigrant from the US who had undergone Reform conversion as a Jew.
Still, Shamgar’s deepest imprints were left during his two decades as a justice of the High Court, and particularly as its president from 1983-1995.
In 1993, in the case of Ivan Demjanjuk, a Ukrainian-American suspected of having taken part in murdering thousands of Jews in Nazi death camps, Shamgar’s High Court overturned a district court death sentence and set the defendant free, ruling that evidence about his identity was questionable.
Also in 1993, in a groundbreaking ruling in a rape case involving four teenagers and their 14-year-old victim, Shamgar ruled that a victim’s verbal refusal sufficed for a conviction of rape, even if the woman did not physically resist.
Another ruling that became a milestone in Israeli damages cases was made shortly after Shamgar joined the High Court. In 1976, Shamgar ruled in favour of a citizen who demanded a clothing factory be removed from his neighbourhood due to noise pollution. It was a classic clash between liberal values and corporate interests. Ever the liberal, Shamgar preferred the small citizen over big industry.
In the same spirit, only far more powerfully, Shamgar’s parting shot on the eve of his retirement sparked a judicial revolution that was accelerated by his successors, before producing an epic clash between Israel’s judicial and executive branches.
Specifically, the key case Shamgar faced in 1995 concerned a recently-passed law regarding the receivership of bankrupt farms which the Knesset wanted to help back to solvency, partly at the expense of the banks who were their creditors. The context was a broad agro-finance crisis that was a lingering after-effect of Israel’s hyperinflation crisis in the 1980s.
A bank sued on the grounds that the new law violated its property rights and was therefore unconstitutional. Shamgar and his court ruled against the bank and in favour of the legality of the Knesset law, but in the same breath set out strongly the principle that the High Court had the right to overturn unconstitutional legislation.
It was a far-reaching statement that both announced and inspired an era of judicial assertiveness – especially under Aharon Barak, Shamgar’s successor as High Court president – during which the High Court came to be criticised by the political Right in Israel as a weapon used by an unelected elite to defeat the people’s electoral will.
These long-standing complaints were the backdrop to Israeli PM Binyamin Netanyahu’s attacks on the judiciary over the last few years, as the criminal investigations into his own conduct have progressed.
Ironically, the man who triggered the judicial revolution which the right came to loathe was an Irgun veteran raised by followers of Vladimir Jabotinsky, the prophet of Revisionist Zionism who blended nationalism and liberalism as naturally as Labor Zionism blended nationalism and socialism.
By sheer coincidence, Shamgar was laid to rest just as a legally-embattled and politically defiant Netanyahu announced his failure to form his fifth government.
Opponents found the funeral’s timing symbolic, claiming Shamgar’s path of liberal nationalism had been abandoned in a new era of anti-judicial populists, from Netanyahu to Hungary’s Viktor Orban to Donald Trump.
That is of course debatable. What is not debatable is Shamgar’s pioneering path and legal achievements. Clearly mapped, firmly paved, and anchored in bedrock, these can be counted on to endure the passage of time as a legacy for Israel’s judges, lawyers and statesmen, and an inspiration for all the citizens of the Jewish state.