Kaleidoscope
Abstract
One of the means resorted to by the Israeli Military Commanders in order to ensure security in the Administered Territories2 is the expulsion (deportation) of civilians who endanger public order and safety. This measure has aroused much criticism on legal as well as political grounds. It is the purpose of this note to analyze the main legal issues involved from the point of view of both international law and the Israeli legal system. After a short description of the relevant rules of international law, the controversy over their applicability to the territories will be discussed. An examination of the place of the relevant international rules within the Israeli legal system will be followed by an analysis of the controversy surrounding their interpretation.
I. The Relevant Rules of International Law
Under Regulation 43 of the Regulations annexed to the 1907 Hague Convention respecting the Laws and Customs of War on Land (No IV), the occupying power is responsible for law and order in the area:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.3
The occupant's powers are, however, restricted inter alia by those rules of international law which are intended to protect civilians against certain kinds of harsh treatment. The question is whether these rules prohibit the expulsion of persons whose presence in the area endangers public order and safety. The answer has to be looked for in conventional and customary rules concerning the laws of war and humanitarian law.
The above-mentioned 1907 Hague Regulations do not deal with the subject. Some authors have, however, maintained that, despite this silence, a prohibition of deportations was a `self-understood rule.'4 It is, however, doubtful to what extent one may assume the existence of a rule to this effect despite the silence of the relevant Convention and of the travaux préparatoires, and in the absence of evidence on corresponding state practice.
The main provision dealing with the subject is to be found in Article 49 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention No IV). The relevant parts read as follows:
Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand...5
According to Article 147, unlawful deportation or transfer are among those acts which are considered to be grave breaches of the Convention.
The relevant states, i.e. Israel and her neighbours, are parties to this Convention and hence bound by it.6 However, thus far Israel has not transformed its provisions into internal law.7 Therefore it is important to inquire whether, and to what extent, the rule laid down by the above provision is part of customary international law and, as such, part of the Israeli legal system.8 As will be shown below, Article 49 has been the subject of differing interpretations.9
The 1977 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) does not introduce any material change in this area and only repeats that deportation or transfer are grave breaches if committed willfully.10 Israel has neither signed nor acceded to Protocol I.11