On May 20, 2024, Karim Khan, the prosecutor of the International Criminal Court (ICC), announced that he had requested warrants for Hamas and Israeli leaders in what he described as “a historic step for victims.” The warrants are for Yahya Sinwar, Mohammed Deif and Ismail Haniyeh of Hamas; and for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant of Israel. Khan is charging the Hamas leaders with murder, rape and taking captives during the Oct. 7 attack on Israel, when armed men under their command infiltrated from Gaza, killed an estimated 1,200 people and abducted approximately 240. He is charging the Israeli leaders with using starvation as a weapon of warfare and with intentionally directing attacks against the civilian population of Gaza, where the military has killed an estimated 35,000 people and injured 77,500. All parties are charged with committing war crimes and crimes against humanity.
Before making his announcement, Khan convened a panel of six experts in international law to analyze the evidence and assess whether it constituted “reasonable grounds to believe” that the suspects had committed war crimes and crimes against humanity in Israel and in Gaza. In a unanimous decision, the panel did indeed support the prosecutor’s decision. On May 20, the day Khan made his announcement, the Financial Times published an opinion piece authored by the six panel members in which they summarized their full report and described the war in Gaza as “perhaps unprecedented in the extent to which it has given rise to misunderstandings about the ICC’s role and jurisdiction, a particularly fractured discourse and, in some contexts, even antisemitism and Islamophobia.” Against this background, continued the expert advisers, they “felt [they] had a duty to accept the invitation to provide an impartial and independent legal opinion based on evidence.”
One of the expert panelists who co-authored the report and the Financial Times article is 94-year-old Theodor Meron, a renowned scholar of international and humanitarian law and a Holocaust survivor who was imprisoned for four years in a Nazi concentration camp. During the early part of his career, the polymath Meron was a practicing attorney, a diplomat and an ambassador representing the state of Israel. Since the late 1970s, when he left Israel and relocated to New York, he has been a professor of international law, a judge and a scholar of human rights law.
In the latter capacities he has taught at New York University Law School, where he holds the Charles L. Denison chair; he has also been a visiting professor at Harvard, University of California, Berkeley, and, most recently, Oxford. Meron’s legal scholarship is fundamental to contemporary international law. In 2001 he was appointed as a judge on the U.N. panel that dealt with the crimes committed during the wars that broke out after the breakup of Yugoslavia, followed by a stint of several years as president of the tribunal’s appeals court.
One of the most interesting questions about Meron is how his experience and understanding of the Holocaust shaped his career in international law and affected both his scholarship and the evolution of his worldview. There is significance in the fact that a Jewish genocide survivor and former refugee who once served as an Israeli diplomat is now advising the ICC on Israel’s prosecution of the war in Gaza, which has caused the deaths and injuries of tens of thousands of Palestinian civilians and the displacement of hundreds of thousands, most of whose families have been refugees since 1948.
Theodor Meron was born in 1930 to a middle-class Jewish family in Kalisz, one of the oldest cities in Poland. Kalisz is notable for the Statute for Jews, issued in 1264 by Boleslaw the Pious, ruler of Greater Poland, which enshrined legal status and protections from persecution for Jews in Central and Eastern Europe that were then unavailable to their co-religionists in Western Europe. In 1939, when Meron was 9, Nazi Germany invaded Poland and, during its six-year occupation of the country, carried out the systematic industrial slaughter of Jews that is now described as a genocide (the word was invented and first used to describe the Holocaust). Meron was ultimately deported to Czestochowa, a ghetto and concentration camp, where he spent four years. By the time he was liberated at age 15, most of his family had been killed. In a 2004 New York Times profile, Meron said his decision to study law resulted from his experiences at the Nazi concentration camp, which made him want to ”explore the means to avoid mistreatment, to focus on ways to protect human dignity.”
Orphaned and deprived of an education from ages 11 to 15, Meron immigrated in 1945 to Mandatory Palestine, where he was adopted by an aunt and uncle who had moved there before the war. For many years, he said, he did not want to talk about Poland or his wartime experiences because he felt embarrassed by victimhood. In a 2008 lecture, he said he had nightmares about escaping Germans in black uniforms who were chasing him, from which he woke 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.”
After completing high school in Haifa and serving in the Israeli military, Meron studied law at the Hebrew University of Jerusalem. In 1961, just 31 years old, he joined the Permanent Mission of the State of Israel to the U.N. in New York. In his memoirs, Meron describes being involved at the U.N. in discussions aimed at finding a solution for the plight of the Palestinian refugees. He formed close relationships with officials attached to the U.N. Palestine Conciliation Commission (PCC), established in 1948 to help promote a durable solution for Palestine refugees. After the PCC was reestablished in 1961, with the participation of the United States, France and Turkey, Meron felt that several ideas “should be discussed and tested and some reasonable solution should be found to end the plight of the refugees.” But Meron’s reports, he later wrote, were “an embarrassment” to Golda Meir, then the minister of foreign affairs, who objected to the revival of the PCC; she instructed him to “cease and desist.” Israel’s position, as Meir first articulated it in 1959, has remained remarkably consistent over the past 65 years. Palestinian refugees who were children in 1948 had, she said, since been indoctrinated in their schools, via their textbooks, to hate Israel and to seek its destruction. For this reason, she said, Israel would be “committing suicide” if it were to accept the return of a large number of refugees. She added that Israel had absorbed 1 million Jewish refugees from Arab lands in recent years and suggested that the land and property they had recently vacated could be repurposed to settle Palestinian refugees since, she said, they all spoke Arabic.
Meron’s scholarship and lectures convey the impression that he was trying to find a humane solution for the Palestinian refugees of 1948 within the framework of his legal duties as a representative of Israel. During that war, which Israel calls the War of Independence and Palestinians call the Nakba, or catastrophe, an estimated 850,000 Palestinians were forced out of their homes by the newly established Israeli army or fled the fighting believing they would soon return; but the State of Israel prevented the vast majority from returning after the fighting was over. They and their estimated 6 million descendants are still classified today as stateless refugees. Meron was limited in his attempts to find a solution for the Palestinian refugees by his government’s policies, which at the time precluded any discussion or negotiations related to the issue. Because Meron served his government, some have implicated him in the failure to resolve the Palestinian refugee issue. Based on his lectures and writing, in his later life he seems to have concluded that he was indeed, despite his efforts as a diplomat at the U.N., implicated. The evolution of his views is perhaps most explicit in his 2021 memoir, “Standing Up for Justice,” in which he writes of “the growing perception that the human rights of individual Palestinians, as well as their rights under the Fourth Geneva Convention, are being violated and that the colonization of territories populated by other peoples can no longer be accepted in our time.”
The claim that Meron was complicit in the suffering of the Palestinians is complicated by the fact that while he served the state, he was never in a position to influence its direction. But complicity can be difficult to assess. Michael Rothberg, who holds the chair in Holocaust studies at the University of California, Los Angeles, provides insights in his 2019 book “The Implicated Subject.” An implicated subject, according to Rothberg’s analysis, is not a victim or perpetrator but someone “aligned with power and privilege” who, while neither a “direct agent of harm” nor in a position to control the actions of the “regime of domination” they serve, contributes to or benefits from its existence. Those who blamed Meron for his complicity were attributing it to the dynamics that Rothberg describes.
There is another element of Rothberg’s analysis that relates to Meron’s life and work. Rothberg is primarily concerned with recognizing collective political responsibility and building solidarity, but his framing is also a useful tool for understanding the limitations of international law in combating power and injustice. Can one say that those limitations “implicate” international humanitarian law in the failure to resolve injustices suffered, for example, by the Palestinian people?
Meron worked at the U.N. until the Six–Day War broke out in June 1967. At the end of that war Israel occupied Gaza, the West Bank including East Jerusalem, the Golan Heights and the Sinai; the military occupation created a new wave of Palestinian refugees. The U.N. Security Council adopted Resolution 237, which called upon the government of Israel “to facilitate the return of those inhabitants who have fled the areas since the outbreak of hostilities.” Israel, however, did not comply.
At this crucial point in the history of Palestine-Israel, the Israeli government offered Meron the job of legal adviser to the Ministry of Foreign Affairs in Jerusalem. Within weeks of taking up the post, Prime Minister Levi Eshkol asked Meron to provide legal advice on the matter of establishing Israeli settlements in the newly occupied Palestinian territories. Eshkol was head of the Labor Party (Mapai), which had formed a broad governing coalition of parties representing Israel’s left and center. Today the settlement project is associated with messianists and religious nationalists, but the initiative to build settlements in the newly occupied territories also came from the secular, purportedly liberal government. Meron’s response to the settlement initiative, documented in a top-secret memo that was declassified only in the early 2000s, includes the following:
I am afraid there is in the world very great sensitivity to the whole question of Jewish settlement in the administered territories and any legal arguments that we shall try to find will not counteract the heavy international pressure that will be exerted upon us even by friendly countries which will base themselves on the Fourth Geneva Convention. These countries may claim that, while they expect Israel to resettle Arab refugees, Israel is busy settling the administered territories with its citizens.
On March 12, 1968, Meron wrote in another top-secret memo that the demolition of Palestinian houses and deportations of Palestinians suspected of subversive activities were violations of the Geneva Conventions and constituted collective punishment. Reflecting on his memos many years later in “Standing Up for Justice,” Meron wrote, “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.”
When Meron wrote his legal opinions about the newly occupied territories, Israel had already claimed that its military control of the West Bank and Gaza did not fit the definition of “occupation” and therefore should not be subject to the strictures of occupation law spelled out in the Geneva Convention. In a 2017 article in the Journal of Palestine Studies, Palestinian-American legal scholar Noura Erakat writes that Meron’s legal advice did not deter Eshkol from building settlements. In fact, it provided the prime minister with a way forward. Meron’s intention might have been to warn the government that the settlements would violate international law, but in his memo he wrote that while occupation law “categorically forbids” civilian settlement in occupied territory, it does permit temporary military encampments.
Israeli journalist Gershom Gorenberg, an expert on the history of the settlements, wrote that “a week after receiving the memo, Eshkol informed the Cabinet that Kfar Etzion would be re-established by the Nahal Brigade,” which combines military service with the establishment of civilian agricultural communities. (Many current settlements in the occupied territories and communities in Israel were originally established by Nahal units). By the end of September, settlers arrived at Kfar Etzion, located southwest of Jerusalem and Bethlehem. Kfar Etzion was historically and ideologically significant to the Israeli government; it was the site of a kibbutz in Mandatory Palestine that fell to the control of the Hashemite Kingdom of Jordan in 1948, following a two-day battle with a high number of casualties that became a well-known element of Israel’s historical narrative about its 1948 war. For this reason, Israel made Kfar Etzion the first settlement established after the 1967 war.
In 1968 Meron and Michael Comay, the political adviser to the Ministry of Foreign Affairs, co-authored another top-secret cable to Yitzhak Rabin, then Israel’s ambassador to the U.S. Comay and Meron outlined the considerations involved in refusing formal recognition of the applicability of the Fourth Geneva Convention, which prohibits an occupying power from transferring members of its civilian population into the territory it occupies. They wrote: “Express recognition on our part of the applicability of the Geneva Convention would highlight serious issues with respect to the Convention in terms of blasting homes, deportations, settlements etc.” They also listed Israel’s de facto annexation of East Jerusalem and land expropriation as contrary to international law: “There is no way to reconcile our actions in Jerusalem with the restrictions emanating from the Geneva Convention and The Hague Regulations.” (Moshe Dayan gave orders in 1967 that amounted to a de facto “reunification” of the city, which had been divided from 1948 to 1967; since the Knesset voted in 1980 to formalize the annexation, Israel’s official position, as enshrined in the country’s quasi-constitutional Basic Laws, has been that Jerusalem in its entirety is Israel’s capital).
Another consideration that led to avoiding recognition of the convention was that in order to “leave all options regarding borders open, we must not acknowledge that our status in the administered territories is simply that of an occupying power.” The second part of the cable instructed Rabin to “avoid entering a discussion or debate over these matters, but simply write down … responses and leave the inquiries to the embassy, without a communiqué, and without — repeat — without the participation of the U.N. delegation.”
Eshkol’s government was not happy with Meron’s insistence that the occupied territories were subject to the Geneva Conventions. So it decided to adopt the approach of Hebrew University law professor Yehuda Zvi Blum, who argued that Israel could not be considered an occupier in the territories as a matter of law and consecrated what the Israeli government had already established informally. In a 2017 article for the American Journal of International Law, Meron summarized the matter as follows: “It is a matter of history that these opinions were ignored by the government of Israel and in the years that followed, the divergence between the requirements of international law and the situation on the ground in the West Bank has become, if anything, more pronounced.”
Meron served the State of Israel in a variety of capacities from 1967 to 1976, including as ambassador to the U.N. in New York and in Geneva. Then he resigned from the Ministry of Foreign Affairs and left Israel permanently for the United States, where he taught at New York University Law School. In his memoir, Meron identifies the search for an intellectual home as his reason for cutting short his career in Israel’s foreign service. The law school, he wrote, “was beckoning.” He doesn’t say if he was also motivated by ideological or ethical reasons, but there is no doubt that in the second half of his career, after he left Israel, Meron’s thinking about the issue of complicity evolved. He became a leading scholar of human rights law who was involved in the establishment of the ICC.
As a member of the U.S. delegation to the Rome Conference for the establishment of the ICC in 1998, Meron helped draft the provisions on war crimes and crimes against humanity. The ICC’s mandate is to hold individuals, rather than states or collectives, responsible for committing war crimes and crimes against humanity, which is why Khan is not charging “Israel” and “Hamas” but Benjamin Netanyahu, Yoav Gallant, Yahya Sinwar, Mohammed Deif and Ismail Haniyeh.
Meron wrote about this shift from state to individual responsibility in “The Humanization of International Law” in 2006. Whereas the international law that was codified during the 20th century was focused on the state, in the 21st century it focuses on the individual. As a judge and as a scholar, Meron became increasingly concerned with “the repression of human dignity, which occurs in a continuum of situations of strife, from normality to full-blown international armed conflict,” and tried to make sure that in all these situations international law would provide protection to individual human beings. This makes the question of Meron’s responsibility for his past and present actions as a diplomat, legal expert and judge not only interesting, but acute.
In his memoir Meron wrote that he was “barely aware” of the Nuremberg trials of senior Nazis in 1946, when he was 16 years old. But his life, he wrote, had been “formed and forever altered by war.” He added: “Although my career has followed a circuitous path, the constant theme has been an attempt to grapple with the chaos and pain of war. War shattered my childhood and imbued in me both a craving for education and the desire for the law to right wrongs and bring an end to atrocities.” Meron’s reasons for supporting Khan’s application for warrants are consistent with his scholarship and involvement in the codification of international humanitarian law that holds individuals accountable for committing war crimes. We don’t know if opposition to the Israeli government’s policies vis-a-vis the Palestinians played a factor in his decision to resign from Israel’s foreign service and move to the U.S. when he was in his late 40s. But in the academic and legal career he has pursued since the 1980s, particularly his involvement in building the legal foundations for international criminal tribunals, his commitment to human rights is indisputable.
The lesson Meron took from the genocide that killed his family and stole his childhood is not that the Holocaust was a tragedy only for the Jewish people but for humanity. In a keynote address he delivered at the United Nations Holocaust Memorial Ceremony marking the 75th anniversary of the liberation of Auschwitz, Meron emphasized that the Nazi killing machine did not target only Jews but also Roma, Poles, Russians, political dissidents and other groups. He also acknowledged the non-Jews who risked their lives to save Jews. And he ended with the hope that “neither we nor our children will be victims, or even worse, perpetrators of genocide.” Meron’s universalist perspective on the Holocaust is not the norm in Israeli or Jewish discourse, which tends to take a particularist view of the Nazi genocide. But for Meron, “never again” applies not only to the Jews but to all humans.
Sayed Kashua, a Palestinian-Israeli author who now lives in the U.S., wrote in a 2021 article for The New York Review of Books that “Palestinian-Israeli history has proved that experiencing the anguish of being a refugee does not guarantee sensitivity to the suffering of other refugees — not even among those who are the primary cause of the suffering.” Kashua added the possibility that “even those who have themselves been victims cannot be expected to develop any special compassion, nor can those who have suffered persecution be expected to then pursue justice for all.”
Theodor Meron was a victim of Nazi crimes when he was a child and a refugee in Poland when he was a teenager. He immigrated to Palestine, where he received his initial legal education, and he began his legal and diplomatic career in Israel. Because he worked for the State of Israel he was implicated in some of its most controversial policies, particularly the establishment of settlements in the occupied Palestinian territories, even as he was trying to influence the government against this step. His recent reflections on his experience of both witnessing and being implicated in various historical and contemporary cases of violence and injustice serve as an important lesson in the importance and value of examining one’s views and in the possibility of changing one’s mind. Now Meron is one of the panel experts who wrote the statement published in the Financial Times on the “historic step” that the ICC is taking “to ensure justice for the victims in Israel and Palestine by issuing applications for five arrest warrants alleging war crimes and crimes against humanity by senior Hamas and Israeli leaders.” Sayed Kashua’s insight into the effect of suffering — that it does not necessarily endow its victims with sensitivity or compassion — feels and most likely is generally correct. In the evolution of his views, Theodor Meron is at least one exception.
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