Secret memo shows Israel knew Six Day War was illegal

The Six-Day War: Forty years on
The Six-Day War: Forty years on
Published: 26 May 2007
Independent UK

Forty years ago, Israel launched what is known as the Six-Day war. The fighting was short, sharp and bloody. But its poisonous legacy has lasted far longer. For this special report, Donald Macintyre visits the heart of the conflict

Israeli soldiers gather at the Wailing Wall in Jerusalem Less than a kilometre past the hillside olive groves of the sprawling Palestinian village of Sinjil, Dror Etkes turns left off route 60 as it dips and winds north through the terraced West Bank hills halfway between Ramallah and Nablus. He drives his white Mazda pick-up at alarming speed up a bumpy dirt road to the panoramic summit of what has been known for centuries in Arabic as Jebel Betin Halaweh but which is designated by the Israeli military the clinical name of Hill 804. A slight figure in his blue shirt, dark grey jeans, sunglasses and sandals, he parks the vehicle by the Army antenna, breathes in and announces with all the emphasis of the tour guide he once was: "We are now really in the heart of the ideological, religious, settlement movement."

It's easy to see what he means. We are in occupied Palestinian territory 21 kilometres east of the green line, which until the Six-Day War exactly 40 years ago denoted Israel's eastern border and in international law still does. On the windswept hilltops along a wide three-quarter circle to the west, north and east, the ridges are dominated by four Jewish settlements, the houses easily distinguishable from those in Palestinian villages by their red roofs, and eight of the satellite outposts, mainly consisting of up to 20 grey and functional container/caravans. Due west is Ma'ale Levona; to the north is Eli; to the east, just across Route 60, Shilo; and beyond it Shevut Rahel, founded in 1991 and named after a woman shot by Palestinian militants. And just south in the Shilo Valley is the open "industrial zone" with not a single factory on it, which along with the large municipal "jurisdictions" under their control mean that settlement-controlled land (including land previously cultivated by Palestinians) now accounts for 40 per cent of the West Bank.

A few minutes later, Etkes will pull off route 60 again and take a narrow paved road up to the 20-caravan settlement outpost of Nofei Nehemia, one of many identified as wholly illegal in the devastating Ariel Sharon- commissioned - but still to be implemented - 2005 report by the eminent lawyer Talia Sasson, showing how varying arms of the Israeli state - in this case the Housing and Construction Ministry - had secretly connived to establish such communities. Etkes keeps up a non-stop running commentary as we approach an outpost that has doubled in size in the past two years even though no one, including the Israeli government, pretends it has any legal right to be here. "Oh, someone's got a sense of humour," he says, translating a painted sign in Hebrew declaring: "Nofei Nehemia Security Road". "Look, here's an automatic barrier. Been here about half a year, I'd say. You can see the soldier manning it. This settlement is illegal in every way - supposed to be dismantled under the Road Map, Sasson report, everything." Legal or not, the settlers enjoy full military protection as Israeli citizens in a hostile environment. "It's in the DNA, it's in the system," says Etkes. "This is the military, supposed to be part of the law-enforcement agencies but in fact participating in massive law violation." As we drive back down the approach road, Etkes is so exasperated by the road sign that he jumps from the car and starts to wrench it from the ground. Changing his mind he says with a grin: "I'll come back when there aren't any journalists around."

If the Jewish settlers living in the West Bank have a one-man nemesis, the fast-talking Etkes, who has joined us for the Jerusalem-Nablus leg of our journey along route 60, is the likeliest candidate. It is doubtful that any Israeli knows more about the evolving political geography of the West Bank than he does. Much of his time since 2001, when he became director of Peace Now's settlement-watch programme, is spent photographing and documenting in minute detail the growth of the Israeli civilian presence in the West Bank. At the peak of the intifada, when it was blatantly unsafe for cars with Israeli plates to drive through the West Bank without armed escort, Etkes would put on his flak jacket - ironically to avoid being shot by Palestinian snipers on the repeated journeys he took, alone, to monitor and expose the settlers' relentless encroachment on Palestinian land.

Increasingly Etkes concentrates on legal actions designed to secure eviction from outposts which are both known to be illegal under Israeli law and erected on privately owned Palestinian land. When nine houses were finally demolished in the Amona outpost last year amid serious violence between settlers and police, it was the result of an incontrovertible case devised by Etkes. When the "unauthorised" Migron outpost of 60 caravans, east of Ramallah - on which the Sasson report established the Housing Ministry had spent nearly $900,000 on infrastructure and two fixed buildings - is finally demolished, it will be because of a case brought by Etkes and the Palestinian landowners. "That will be the biggest settlement outpost [to be evacuated] ever outside Gaza and the settlers are terrified of this because we are now grabbing them in the balls in certain places," says Etkes cheerfully. "We can go from place to place wherever there is private Palestinian land which was seized without any permission or any licences without any papers and we can screw them big-time."

Important as Etkes believes, no doubt rightly, these actions to be in putting settlers on the defensive, they cannot of course remove the elephant in the room: the parent settlements themselves, all 121 of them, comprising 260,000 settlers in the West Bank in all. (If the settlements in Arab East Jerusalem, whose annexation by Israel has never been accepted by the international community, are included there are roughly 450,000 settlers in occupied territory.) The adults are eligible to vote in Israeli elections; almost all have a vested interest in remaining under Israeli jurisdiction. And these numbers have grown from exactly zero since the triumphant victory in the war whose 40th anniversary Israel will commemorate, with some hesitation and self-reflection, next month. The anniversary of the war is also a reminder that the occupation of the West Bank - of which the settlements and the huge security, road and infrastructure apparatus that surrounds them are the most visible symbols - has lasted exactly 40 years.

It all started here in Kibbutz Kfar Etzion, which in the late spring is a lush oasis of trees and flowers, with all the hillside space it needs to grow the orchids and cherries that help make it one of the most prosperous settlements in the West Bank. Kfar Etzion has a special place in Israeli hearts because of the heroic last stand in the 1948 war, in the Etzion Bloc of four kibbutzim, in which 155 Jewish defenders, men and women, were killed by the Arab Legion irregulars and local villagers. The worst carnage was at Kfar Etzion, an orthodox kibbutz, where almost all those who surrendered were massacred. The women and children had mostly been evacuated, including the mother of Gerry Katz, now 60, the man responsible for the outstanding gardens of the kibbutz today. His father was killed in the last battle.

Katz, tanned in his blue workshirt, chinos, sandals and kippa (skullcap), says that each year the children of Kfar Etzion would gaze longingly down from Jerusalem on what was now Jordanian territory - today the old Jordanian command post is the kibbutz's communications centre - and dream of coming back. Which about half the 58 children from the kibbutz - Katz was the last to be born there - eventually succeeded in doing, with the Labour government's hesitant blessing. "It was like the Jews coming back to the land of Abraham all over again," says Katz today, who came straight here from his wartime Army service. "It was the metaphysical becoming reality." Of course, the special role in Israeli history of the kibbutz made it a prime site for all those agitating after 1967 for settlement in the West Bank. But while Kfar Etzion was special to Katz above all, he himself is in no doubt that it was at one with the dream of Jews living elsewhere in what had been a few months earlier the Jordanian- controlled West Bank. "Our land is in Judaea and Samaria," he says using the name for the territory favoured by many Israelis. "This is Jewish land." No he did not think, even now, that it should be formally annexed. "The eternal nation moves slowly," he adds enigmatically.

It is hard to overestimate the foreboding inside Israel that preceded the war. The causes were complex and, like most issues in the Middle East, still disputed. But the most immediate triggers were the clashes between Israeli and Syrian forces on Israel's border with the Golan Heights and (the Egyptian president) Nasser's decision, amid a build-up of Egyptian forces in the Sinai, to close the Tiran Straits outside the Gulf of Aqaba. Whatever the rights and wrongs of the preceding months, almost every historian has commented that this felt to most Israelis like a war for what suddenly seemed like the fragile existence of a 19-year-old state that no Arab country then recognised, invoking for many memories of the Holocaust itself. There was, of course, a corresponding sense of relief and euphoria at the subsequent decisive victory after just six days, from the morning of 5 June to the evening of 10 June - much of it shared in the West. In London, the Daily Telegraph trumpeted the outcome as "The triumph of the civilised", while in Paris Le Monde went deeper into the reasons for Western relief at Israel's victory. While acknowledging that it had happened "alas on the back of the Arabs", the paper declared: "In the past few days Europe has in a sense rid itself of the guilt incurred in the drama of the Second World War and before that the persecutions which accompanied the birth of Zionism."

The war cost the lives of more than 16,000 Arab men, the large majority Egyptian, and 800 Israeli soldiers. It left Israel in control of a million Arabs and large new swathes of territory, including the West Bank and Gaza, seized from Jordan and Egypt respectively, and the Golan Heights, overrun and captured from Syria. The political debate in Israel over what to do about the new conquests was almost immediate. The Labour politician and former general Yigal Allon, for example, produced a plan which provided for annexation of - and creation of civilian settlements along - the border with Jordan. Moshe Dayan, the triumphant Defence Minister, announced that he wanted an "invisible occupation", adding: "I want a policy whereby an Arab can be born, live and die in the West Bank without ever seeing an Israeli official."

At the same time, other forces were also at work, attracted by the possibilities of creating a "Greater Israel" from the River Jordan to the Mediterranean. These included - but were by no means confined to - the political right, which would 10 years later propel Menachem Begin to power, and religious Zionists like the Rabbi Moshe Levinger, who would go on to found Gush Emumim, the movement behind so many of today's settlements. Levinger quickly offered his support to attempts to re-settle Kfar Etzion in the face of initial ambivalence by the Prime Minister Levi Eshkol. And even for some of those who did not share the "Greater Israel" dream, there was another imperative, one which still survives, and which the Israeli writer Gershom Gorenberg (whose authoritative book on the first 10 years of settlement policy will shortly be published in Britain) describes as: "to create facts that would determine the final status of the land, to sculpt the political reality before negotiations ever got under way."

By September, Eshkol was seriously considering settlements in the Golan and Kfar Etzion. He was no doubt influenced by the Khartoum Arab summit which had responded to the Israeli Cabinet's secret offer, agreed within a fortnight of the war, of a negotiated withdrawal from most of the territories, with a resounding "no" to talks. In hindsight, it is possible to see the Khartoum declaration as a heavily coded concession to some form of indirect negotiation on recognition, in return for withdrawal from the territories occupied in the war. But Israel, whose position was anyway hardening, wanted direct negotiations and explicit recognition if it was going to pull back.

In all the debate - within the public and, it appears, in Cabinet - one highly significant aspect of settlement policy was barely, if at all, discussed: whether it was legal. Since then Israel has never accepted the argument, ratified by successive UN resolutions, that civilian settlements violated international law. Which makes it all the more interesting that Theodor Meron, the then-36-year-old legal adviser at the Foreign Ministry, was asked to deliver an opinion on just that issue. Meron, a Holocaust survivor, had been a member of Israel's delegation to the UN during the June war. "It was a very traumatic period because in New York things looked terribly ominous," he recalls today.

But the secret memorandum he wrote three months later - initially only for the eyes of his boss, the Foreign Minister Abba Eban, but then sent to Eshkol's office - was clearsighted and unequivocal. The document, written after the Khartoum summit when he knew settlement in the Golan and the West Bank was very much in the air, was unknown until it was unearthed from the Israel State Archives and brought to light by Gorenberg last year. In it, Meron wrote that "my conclusion is that civilian settlement of the administered territories contravenes the explicit provisions of the Fourth Geneva Convention." The Convention prohibits deportation or transfer by the occupying power of its own civilian population into the territories it occupies. The official Red Cross commentary explains that this prohibition was "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 colonise those territories." Meron's crisp recommendation was that the prohibition was "categorical and aimed at preventing colonisation of conquered territory by citizens of the conquering state." That was not all. Even when establishing military posts, Israel, he was clear, had also to respect the 1907 Hague Convention on Laws and Customs of war on land, which stated that "Private Property cannot be confiscated". This has been little discussed in the Israeli-Palestinian context but its lasting pertinence was underlined last November when Peace Now, on the basis of leaked data from the military's Civil Administration in the West Bank, revealed that 15,000 acres, or 40 per cent of the West Bank settlements, were on privately owned Palestinian land, often by military order.

This could be dismissed as no more than an interesting historical footnote, except for one thing. Theodor Meron, now an American citizen, went on to become one of the world's most eminent international jurists, if not the most eminent. Until 2005 he was president of the International Criminal Tribunal for the Former Yugoslavia. Moreover, as a law professor at New York University, he published much of the theoretical work which led to the establishment of the tribunal, on which he now sits as an appeals judge, and of the International Criminal Court. The Government was not choosing to ignore the opinion of some obscure legal maverick.

Meron, who has never talked publicly about his opinion before, knew, of course, that what he had been asked to write, after Khartoum, and at a time when he knew well that settlement in the West Bank and the Golan was being considered, was of fundamental importance. Weighing his words with all of a judge's care, in the forbidding grey tribunal building in the wooded outskirts of The Hague, he asked me: "Did I realise that this was a momentous decision? Yes. But I took it very much in my stride. I mean I don't want to say to you that I felt that I was doing something particularly brave or heroic. I was, of course, doing my job. It was a much more important opinion than any other that I wrote during those few months we are talking about. But I felt that legal advisors have professional and ethical obligations and I believe that governments should listen more to professional legal opinions. And when they disregard those opinions, sooner or later, things boomerang."

Meron was born in Poland, spent four years of childhood and early teens in the Nazi labour camp at Czestochawa and lost his mother, brother and all four of his grandparents in the Holocaust. For him, the Geneva Convention is not some dry abstraction from a law book. "It is a convention which deals with tangible human concerns and with the rights of inhabitants and populations. It is a people-friendly convention It is a convention that puts constraints on what occupying armies, even the most benevolent occupying armies, may do and what they may not do. I very much felt that the Geneva Conventions - and this is, of course, my view today - are a very special kind of a law. We are not talking about commercial law or contract. We are talking about norms that were established soon after the Second World War in order to learn from the experience of that war and try to prevent, for the future, some of the events which I experienced as a child I wish I had not had those experiences because they were very painful. But I never dwell on the past. I believe that basically it is not terribly productive. We should just create the best environment in terms of human rights that we can for now and for the future."

At the time, however, his arguments were anything but emotional. In particular he dealt, with great foresight, with several of the arguments still used by the Israeli government today to justify its contention that the settlements are not unlawful - including that Jordan had unilaterally annexed the West Bank and therefore this was not "normal" occupied territory. First, he correctly predicted the international community would not see it that way. "I drew attention to the fact that the United Kingdom, for example, in [Ambassador Lord Caradon's] statement to the UN, made it quite clear that it views Israeli presence in the West Bank as one of classic occupation." And secondly, he pointed out that Israeli actions - like the military decree on the third day of the war providing that military courts must apply the Geneva Conventions - were "inconsistent" with the claim that the West Bank is not occupied territory. Finally, as he explained in The Hague this month, even these arguments could not be applied to the Golan Heights, which had been undisputed as "classically Syrian territory" before the war.

Meron acknowledges that "the fact that there was no proclaimed desire by the Arab states for negotiations created the environment in which this policy of establishing settlements could prosper." But he points out that, as he advised at the time, there was a perfectly plausible and legal alternative. "In terms of international law, it would have been entirely appropriate for Israeli military bases and a strong military presence in the territories to be maintained until there [was] a political resolution. So there was an alternative to the civilian settlements approach."

Forty years later, does Meron still stand by his memorandum? While he might have used "less bureaucratic jargon" here and there, he said: "I reread that opinion recently and I believe that I would have given the same opinion today ... It was quite legitimate on your part to ask me whether this is still my view. It is. I don't believe I made a gross legal error."

Nor it appears did his own boss - which is itself a disclosure of historical importance. "I do remember that the Foreign Minister Abba Eban was quite sympathetic. I cannot recollect after so many years when exactly I discussed it with him. [But] I did. And the fact that the opinion

went to the Prime Minister suggests there was no objection by the Foreign Minister. I was constantly in touch with [Eban] and my clear recollection is that he was sympathetic."

This was not enough, of course, to halt the Cabinet's eventual endorsement of settlement in the West Bank. Meron is careful to a fault about avoiding political statements, let alone comment on current Israeli political issues. But he says: "It's obvious to me that the fact that settlements were established - and the pace of the establishment of the settlements - made peacemaking much more difficult. This is something the Arabs greatly resented. Would peace have been achieved? I can't answer that. I am not a prophet. Would the chances have been much better? I think so - and most people agree that the prospects of peace would have been much better."

To see why, it's necessary to return to Route 60, the almost surreal highway that cuts through the middle of the West Bank. For much of its length it is used only by Israelis - and for much of the route that means settlers - because Palestinians are either prohibited from driving on it by military order, or prevented from reaching it by the earthworks or gates that block the feeder roads from their villages. To start the journey it's worth first travelling south to the paradoxical and - to Jews and Muslims - holy city of Hebron, where Rabbi Leibovich arrived in 1968 to found Kyriat Arba, the adjacent settlement that paved the way for the growth that is visible today throughout the West Bank. Outside its historic heart, Hebron is the most normal of Palestinian cities. Partly this is because it is more open to the surrounding countryside and to Jerusalem than Nablus and Jenin. Partly it is because its strong and traditional clan nexus militates against the lawlessness that has started to spread to those cities, as well as in Gaza, since Hamas won the January 2006 elections and the international community mounted its boycott in response.

But the old city is notoriously a ghost town, thanks almost entirely to the four small and notably hard-line Jewish settlements that have been allowed to establish themselves - uniquely in any part of the West Bank - in the heart of the city. For the protection of no more than 400 Israeli settlers, the area surrounding the settlements is under direct control of the Israeli military; the only cars allowed are those of the settlers and the Army; most of the shops have long been boarded up; and stretches of the main artery Shuhada Street are closed even to Palestinian pedestrians. Earlier this month, the two most respected Israeli civil-rights organisations, Btselem and the Association of Civil Rights, produced stark new figures to underline what it called the "quiet transfer" of Palestinian population from the once-teeming city centre: 41 per cent of the housing and 65 per cent of business premises lie vacant, many of them by direct military order. Among the reasons for the flight cited in the report is the "failure of law-enforcement authorities to enforce the law on settlers who assault Palestinians and damage their property."

Now, however, an ominous new problem has emerged: the takeover by settlers of a large empty Palestinian building - a mini apartment block really- in a strategic position on the road linking Kyriat Arba, outside the city, and the Tomb of the Patriarchs, deep inside it. It's an outpost that could just turn into a fifth inner-city settlement. As the Palestinian families in the street warily watched their new Jewish neighbours installing water tanks, hauling up generators and hammering in window frames at their new four-storey home, next door to a mosque, they claimed the settlers had sought to provoke them by tactics ranging from repeated stone-throwing to leering provocatively at the girls and women - knowing it to be deeply offensive in traditional Muslim societies.

The single word "Revenge" had been scrawled in Hebrew by someone on the door of Fathi al Razem's yard. Like many others, the al Razem family lost nine acres of vines a generation earlier to the new settlement of Kyriat Arba. "All the people are silent," said Mr al Razem, who is 60, "because they are hoping the [Israeli government] will evacuate them. But we won't accept harassment if they don't." Whether they will have any choice depends on a current appeals process by the settlers against an order to move. As Talia Sasson among others has pointed out, the best way to have stopped the hardline Hebron Jewish residents forming what could yet become a fifth settlement within the city, was for the Army to have forcibly prevented them entering in the first place.

Hebron and the conflict with the settlers throws up a telling vignette of everyday life under the modern occupation. In 2002, Nidal Jamjoum, then 23, watched in horror as his 14-year-old sister Nasseem was shot and fatally wounded on the roof of their old city home by settlers who were on the rampage after the shooting by a Palestinian militant in the south Hebron hills of a settler who was also a soldier. Maybe it's because he has, despite everything, kept the sense of humour he definitely needs that the story of Nidal's struggle to rise above the tragedy has a tragic-comic flavour worthy of Paradise Now, the Golden Globe award-winning film set in the West Bank.

According to the Israeli legal NGO Yesh Din, no one is indicted in 90 per cent of cases of settler violence. And so it was when Nidal's sister was shot by a settler who has never been brought to court. At the time, Nidal was studying at the Al Quds Open University - and as recompense for the tragedy, he was promised by Mohammed Hourani, an expansive Fatah Hebron member of the Palestinian parliament, a "Yasser Arafat scholarship" to study abroad. So he abandoned his course at Al Quds. "He promised me I would go to Algeria, Russia or Romania," Nidal recalls, "but it was a false promise." Smiling ruefully at what he evidently now sees as his naivety, he adds: "I didn't know he was a liar. I thought he was a responsible officer in the Palestinian authority and cannot tell a lie. Then I discovered."

Nevertheless, Nidal retained a keen desire to study abroad. "Everywhere here in Hebron I am reminded of what happened," he explained. Finally, using the internet, he says, he managed to secure a promise of admission to a university in Alberta, Canada. Which left him needing a visa, which in turn meant meeting two requirements. One was raising (or at least being able convincingly to pretend that he had raised) enough money to persuade the Canadians that he could initially support himself. And the second was a trip to the Canadian embassy in Tel Aviv, some 50 miles away, to apply for his visa. The first requirement proved rather more trouble-free than the second.

Without much difficulty he was able to secure a note from a businessman acquaintance guaranteeing a donation of $12,000. By Nidal's account, the man probably did not intend to pay up, but Nidal thought - perhaps also naively - that it would be enough to get him the visa. Next he went to try and get a permit from the Israeli military to travel to Israel to do so. "But they told me I couldn't have the permit because my sister had been killed and that made me a security risk because I might try and commit some terrorist act in revenge."

So on 6 January 2003 - Nidal can remember the date more than four years later - he found a taxi driver from East Jerusalem prepared to take him, along with two Palestinians working illegally in Israel. They left Hebron through the back roads, avoiding the checkpoints, and on to Tel Aviv. He did his business at the embassy - he was later to hear he did not get the visa - and rang the taxi driver on his mobile. But the driver was still some way away. "I was walking up and down in front of the embassy. The driver was late. The people in the restaurant next door were staring at me. They could tell I was a Palestinian and I was scared."

Then the police arrived. "They asked me where I was from and I told them I was from Hebron. They put me in handcuffs and searched my body for explosives. Then they checked my story with the Canadian embassy. They kept me in the police station for four or five hours. I had to sign something saying I would not come back again. I told them I didn't come to Tel Aviv for fun; if the Canadian embassy had been in Hebron I would have stayed there. And I had to sign something saying they hadn't beaten me up." (They hadn't.)

He was then dropped somewhere at 4.30pm. He is not sure of the place - except that it was two hours' tramp to the Arab village of Kafr Qasem. There he found some Hebronites to stay with, and indeed to return home with - part walking across the hills, part hitchhiking on the Palestinian backways. He left at 6am and finally got home at 4pm. The walking was the worst part because of a fierce and icy hailstorm which drenched all of Nidal's precious papers, the Palestinian passport, the high school certificates, the Al Quds University credits, the (probably worthless) $12,000 "guarantee".

Though he still dreams of getting away from Hebron, Nidal is today searching for a job - so far in vain because of an economic blight roundly blamed this month by the World Bank on Israeli restrictions on Palestinian movement. He is back at Al Quds Open University, supported by his two brothers, who are in the business of producing wire mesh - a commodity much in demand in a city which, thanks to the presence of the settlers, is the undisputed capital of the throwing of stones and trash between Jews and Arabs.

And going back to the reason for the Army's refusal to grant him a permit, has he been tempted to join the militants? On this, Nidal is emphatic. "If I join either: 1) they arrest me and put me in gaol, or 2) I will be killed and my family may get arrested." Indeed, he says, the first is just what happened to a distant cousin of his who joined Islamic Jihad. So what did he think of the second intifada, in retrospect? "It was a big failure. What are the gains? Tell me what it achieved? A few good songs and that's it."

Turning north back to Jerusalem, you pass through two long tunnels carved into the mountain - one of them directly under the Palestinian town of Beit Jala. They were built at a cost of tens of millions of dollars so that the settlers would no longer have to risk driving through Bethlehem. Next you pass through the new and dauntingly permanent-looking Beit Jala "terminal"- and indeed it is more like a border crossing than a checkpoint, except that in international law, if not in the view of Israel, both sides of it are actually in occupied territory.

Jerusalem, of course, is a story all of its own. The city is far from immune from just the kind of encroachments on the Arab eastern sector that threaten the prospects of a final, two-state deal between Israel and the Palestinians. When the senior European diplomats and their American counterpart in the city refused to join in this year's Jerusalem Day celebrations of the 40th anniversary of the "reunification", they reflected the official Western view that the annexation that followed the Six-Day War had no basis in international law.

It's a view endorsed in a report produced by the International Red Cross committee, which acts as the official guardian of the Geneva Conventions that Theodor Meron presciently predicted would be the core of Israel's international problem. In other words, East Jerusalem is still occupied and the ring of huge Jewish "neighbourhoods" which Israel has built there since the war are settlements. Israel refuses to accept this, standing by the annexation and pointing out that after it Palestinians were offered Israeli citizenship and in the main refused. This is hardly surprising since Palestinians have always insisted on Jerusalem (these days in practice East Jerusalem) as the capital of a Palestinian State - and no international statesmen seriously believes a final peace is negotiable with anything less.

Although it was never officially published as intended by their foreign ministers - for fear of angering Israel - the European consulates produced a devastating report in November 2005 report. Leaked to The Independent, it charged that use of the separation barrier - cutting some Arab quarters off from East Jerusalem and dividing others - along with what the report called without embellishment "illegal" settlements in and outside East Jerusalem and the highly restrictive system of building and other permits for Palestinians were all "reducing the possibility of reaching a final-status agreement on Jerusalem, and demonstrate a clear Israeli intention to turn the annexation of East Jerusalem into a concrete fact". That report was largely written in the British Consulate - which by a serendipitous irony, now finds it could itself have a Jewish settlement as its neighbour in the Sheikh Jarrah neighbourhood of East Jerusalem. But if the plan to demolish the old Shepherd's Hotel and build a clutch of multi-storey apartments for Jewish families on a site acquired by the right- wing businessman Irwin Moskowitz is upsetting the diplomats, it is upsetting the poorer residents of Sheikh Jarrah even more.

A few doors down, 70-year-old Bahia Siam remembers 1967 with barely expressible sadness. Her sadness is not for the war itself - when she walked on the last day all the way to Ramallah to find her husband who had been cut off from home while working at the old Jerusalem airport in Atarot - but for the following month when her three young sons were killed as they played in the yard behind the house, possibly by an accidental explosion detonated by Israeli troops operating in the area. "All our relations with our neighbours are good," says her daughter Ibahe, age 35. "What will it be like if our neighbours are extreme Jews?"

Danny Seidemann, an Israeli lawyer specialising in fighting the settlement projects in East Jerusalem, warns that the "Hebronisation" of Jerusalem is the stark alternative to Israelis and Palestinians dividing and sharing the city in partnership. The Sheikh Jarrah plan may only be a small example but it would be one more step towards the settlers' objective of interrupting the "contiguity" of Arab East Jerusalem by helping to cut off the Old City from the northern neighbourhoods of Shuafat and Beit Hanina. As Ibahe Siam says, "If they manage to build a settlement here, the whole of Sheikh Jarrah will go."

It's on Route 60 leaving Jerusalem that Etkes joins us. Here, on the heavily restricted sections on which Palestinians are allowed to drive, Israeli cars simply pass the long queues at the checkpoints and are waved through by the soldiers painstakingly inspecting the queues of cars with Palestinian registrations plates. Starting in the 1990s, the highway has been re-routed to bypass the main Palestinian cities so that settlers don't have to drive through them. Arab villages along the way are virtually never mentioned on the signposts and the road has imposed an alternative reality on the West Bank. Here, on the outskirts of Jerusalem, one of the many long stretches where no Palestinian cars are allowed at all, we pause for a few moments just past another new "terminal", above the Palestinian village of Hizma, which also has occupied territory on both sides. Most West Bank Palestinians will be denied entry through it to Jerusalem, of course. Etkes points out that much of the huge settlement - or Jerusalem "neighbourhood" - on the other side of the barrier was built on Hizma land. He adds that Israel has unilaterally defined its border "and then basically denies the right of Palestinians who live here, half a kilometre from what used to be their land, to get inside. It's really crazy when you think about it. Most of us don't even think about it. Most of us don't even know it. But it is a hard story."

Further north, we come to the Jewish West Bank settlement of Beit El, where Etkes has identified a section - including a water tower among other buildings - which is outside the zone commandeered by official military order. He will now search the registries of Palestinian landowners in the hope of bringing a case. "The state basically assisted this to happen," he says. "Look at the antennae. Look at the pavements. Look at the electricity. Everything here belongs to the state. It's part of the state system. This is what happens in 40 years, if you just close your eyes and act according to the assumption that there are no red lines [limits] to what Israel can do in order to achieve its political goals."

Next stop is Ariel, the large settlement block (population 18,000) which cuts deeply eastwards across the West Bank and is already partly surrounded by the separation barrier which may or may not one day be completed around it. Ariel has a 7,000-student college and advertises itself as being in "The Middle of Israel", even though it is entirely east of the 1967 green line. When Ariel Sharon secured (in 2004) a promise from President Bush that existing "population centres" would remain in Israel under any final deal with the Palestinians, Israel assumed that Ariel would be among them. But the unofficial Geneva Accord between Israeli and Palestinian politicians Yossi Beilin and Yasser Abed Rabbo, reached in the dark days of the intifada's peak, assumed that it would be Palestinian. Etkes points to the metal fencing clad in barbed wire, the two trenches and the electric wire which make up the 20m-wide barrier here. Then he gestures towards some unkempt olive trees inside the barrier - and explains how once they were carefully tended by Palestinians: "This is an attempt unilaterally to annex Ariel to Israel. That's what it is." New houses here cost some 30 per cent less than in Israel proper, and there is a string of other financial incentives to make it more attractive to the often non-ideological settlers who choose to live here.

As we drive north - bypassing the Palestinian city of Nablus, of course - Etkes muses on the part played by the settlements in the conflict. He is emphatic in saying that he doesn't "legitimise terrorism". Of the second intifada, with its trail of suicide bombings, he says that the Palestinians had "a wide spectrum of choices [to act against the occupation] and they failed to select the good one or the right one." But he says that the rapid acceleration of settlement growth under four prime ministers, starting with Yitzhak Rabin, after the Oslo Accords, was a crucial factor in precipitating it. "I think that the second intifada was a direct result of settlement policy. If in 1994 Israel had seriously taken responsibility and said, 'Hey, this is a real opportunity to think about what we have done in the last 26, 27 years,' I don't think the intifada would have erupted."

Etkes spent six years of that period abroad, after doing his military service in a combat unit during the first intifada. He first became truly interested in the settlements when he got back to Israel and started taking taxis to places where he had served as a soldier. He was dumbfounded by how much had changed. He says now, by way of explanation of his earlier - undoubtedly controversial - remark: "There is a very important difference between how Israelis consider reality and how Palestinians consider reality. Israel concentrates on what Israel says, while Palestinians are very much aware of what Israel does. If you look at what Israel does rather than what it says the conclusion is that Israel is not willing to accept a Palestinian state.

"The conclusion of the Palestinians is that there is no point in discussing with Israelis a political [deal] because they're building settlements all the time - and Israel is not willing eventually to give up the majority of the West Bank. That is very much the collective experience of Palestinians in the West Bank. When I was there and I looked at what Israel was doing I reached the same conclusions. I refuse to live and dream in their world of fantasies. I refuse to be enchanted by the beautiful declarations of Israeli politicians. Because I go into the field and check what they actually do."

As Hebron is the southernmost city in the West Bank, so Jenin - where the Israeli military has recently been carrying out operations against militants, and into which, of course, Etkes, as an Israeli civilian, cannot accompany us - is the northernmost. Al Haq, the Palestinian civil-rights organisation, has been investigating what it believes is the "widespread practice" of harassment of local ambulance drivers, which it says contravenes international legal provisions prohibiting states from "denying or actively limiting access to health". Sitting on the floor, over a simple lunch of omelette, sausage and salad, driver Feda Subh describes how, with six members of a mobile clinical team, he was on his way to the village of Seer. Along the way, he passed, as ambulances routinely do, to the front of a queue of around 25 cars halted at a typical flying checkpoint consisting of three Hummers and seven Israeli soldiers. "It all depends on the mood of the soldiers," he said. "Sometimes they let you go and sometimes they make you go to the back of the queue." But this time, he says, "three of them dragged me out of the car and threw me on the ground. It was raining and they started kicking me and threatening to kill me." After the whole incident, which lasted about five minutes in all, Subh says he was told to go - and that he drove through the checkpoint without the ambulance even being searched. "My face was bleeding," he said. "When we started the clinic, I was the first patient." The military said this month that it was opening an investigation into Mr Subh's case.

Meanwhile, on the cypress-lined main road from Jenin south to Qabatiya, there has been a recent death in the forenoon. Taxi driver Ashraf Haneishe, age 25, was ordered out of his Toyota by Israeli special forces and shot dead after being ordered to lie spreadeagled on the road with his two passengers. According to local witnesses, two of the Israelis who emerged from the van were dressed in plain clothes like Arabs, and had been spotted earlier getting into the yellow and white VW van with Palestinian registration plates from which they and the rest of the soldiers, dressed in normal uniforms, emerged. Mohammed Nazzal, 42, a cousin of the dead man, who runs a car wash 25 metres from where it happened and who drove him to hospital, heard the shots and came out in time to see the body being dragged "by the legs" by two of the soldiers from the middle of the road.

According to the Israeli military, Haneishe had been active in helping the "Islamic Jihad infrastructure" in Jenin by handling funds for it - though it was the Al Aqsa Martyrs Brigade that claimed him as a member in the "martyr poster" they swiftly produced, as the factions regularly do whether the casualty was a militant or not. Mr Nazzal says he doesn't believe it. Only the previous day, he said he had asked Haneishe to take him and his young son to hospital. "Do you think if I had known he was wanted I would have let my son go into his car?" Certainly, it would have been a dangerous thing to do in Jenin.

But in any case that still leaves the question of why he was killed rather than arrested. The Army's answer is that he pulled a handgun on the troops even though the sworn affidavits mention no gun, and one, from a farmer who saw the incident and is also a member of the Nazzal family, says specifically that Haneishe got out of the car slowly with his hands up and was shot as soon as he had laid down. Haneishe's 35-year-old brother Maher says: "It was an execution; they should have considered him a prisoner of war." Citing the testimony of one of the passengers, he claims that as the soldiers drove off "they laughed".

Whether the anniversary reflections in Israel will prompt any hope of finally settling this seemingly endless conflict remains to be seen. Etkes thinks it possible that one factor - the ferocious political power of the settlers - may have reached its "high-water mark". Last year's Israeli elections were the first in which a majority of voters opted for withdrawals from the West Bank. "I have no doubt that the massive terror attack on Israeli society during 2001 to 2003 was one of the main contributions to the killing of the peace camp in Israel." During that period, he says, settlers enjoyed "wide manoeuvrability because there was no energy left to deal with them". Now that might be changing.

On the other hand he still believes that this is more likely to revive the idea of "unilateralism", on which Ehud Olmert fought the election and is now too hobbled by the Lebanon war and other factors to deliver. In other words partial withdrawals on Israel's terms and not on negotiated ones. This is most favoured by those who want withdrawals for what Etkes calls the "wrong reasons" - "demography" or the fear that if Israel controls a state populated by more Arabs than Jews then it will have to choose between being Jewish or democratic. It is an argument that appeals not a jot to most settlers, of course. David Wilder, the Hebron settlers' spokesman, told me last year that democracy had been elevated to a "deity" and added: "If I have to choose between the survival of the state of Israel over democracy then I choose the survival of the state of Israel." By that Wilder means a state which includes the West Bank.

The 1967 war was of course the moment at which Israel had showed its strength - something warmly welcomed at the time in most of the West. For the international community, reinforced by Meron's remarks and the International Red Cross's now-public concerns over Jerusalem, the 40th anniversary may be time for the West to reflect on how long it will tolerate what it sees as 40 years of the breach of international law. Meron says: "I don't see a conflict between strength and compassion. Of course, it would have been and it is entirely appropriate for Israel to defend itself. It was then, it is now. At the same time, Israel or any country must be, and its people must be, compassionate and respectful of others. If you do not respect the rights of others you simply exacerbate the problems that will one day haunt you."

Moreover, logic - if that ever counted for anything in the Middle East - would suggest that now is just the time for a negotiating effort. The Arab League Mecca summit has, however belatedly and with however little international impact so far, turned the history of the last 40 years full circle by promising pan-Arab recognition in return for an end to the occupation. Writing earlier this month in Haaretz, the eminent Hebrew University scholar Eli Podeh declared: "It is already possible to say today - and not 40 years from now - that there has been a turnaround, and that the voices coming from the Arab and Islamic world calling for a dialogue are sufficiently serious and important. We should not ignore them."

If so, that moment may need to be soon, before the new generation, the children of the second intifada grow up.

Jenin - impoverished, increasingly lawless and isolated from Nablus, let alone Jerusalem - seems a world away from Kfar Etzion. As Mohammed Nazzal and his neighbours drink coffee, they discuss the "situation" in the late afternoon sun. Abu Ezzat, age 63, reflects back to the mid-point between the Six-Day War and now: the first intifada, which unlike the second had a concrete result - the Oslo process. "In 1987 we felt it had been a long time and we wanted to liberate ourselves. At one moment we thought we could have peace and co-existence, open relations between Israel and Palestinians. Now it doesn't seem possible. And if you take the kids to a toy shop to buy them something at the end of Ramadan, all they want is a gun."