The Expulsion of Civilians from Areas which came under Israeli Control in 1967: Some Legal Issues

II. The Controversy over the Applicability of the Fourth Geneva Convention

It thus follows that Article 49 of the 1949 Convention is the main provision to be studied. But a first and preliminary question arises as to whether this Convention does apply at all to the Territories under Israeli control.¹² The Government of Israel has maintained that it is doubtful whether these Territories are subject to the provisions of the Convention due to a precondition to its applicability to cases of occupation laid down by the second paragraph of Article 2 of the Convention:

In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance...¹³ [Emphasis added.]

According to the above opinion, since the West Bank and Gaza had been illegally occupied by Jordan and by Egypt respectively in 1948, and the West Bank was illegally annexed by Jordan in 1950, these areas cannot be considered to be part of `the territory of a High Contracting Party' within the meaning of the second paragraph of the above quoted article.¹⁴ Moreover, it seems that Israel fears that her consent to the applicability of the Fourth Convention would be considered as a recognition of Jordanian or Egyptian sovereignty over the areas.¹⁵

However, Israel decided to act de facto in accordance with the humanitarian provisions of the Convention and has made several declarations in international fora to that effect.¹⁶ Moreover, in certain matters Israel even goes beyond the provisions of the Convention, e.g. the non-application of the death penalty in spite of crimes of great cruelty and the granting to the inhabitants of the Territories of the possibility to submit petitions to Israel's Supreme Court against the Government and its officials.¹⁷

Israel's official attitude concerning the non-applicability of the Fourth Geneva Convention has been criticized inter alia by the UN Security Council and General Assembly,¹⁸ by the International Committee of the Red Cross,¹⁹ by the United States²⁰ and by various writers.²¹ According to Professor A. Roberts, the Convention does apply due to the first paragraph of Article 2 (quoted above) which, in his opinion, `applies when a belligerent occupation begins during war,'<sup>22</sup> and which does not include a reference to the territory of the High Contracting Party. In addition, he considers Israel's attitude to be inconsistent since `similar objections could be, but seldom have been, made about the applicability of the Hague Regulations, which contain a similar assumption; namely, that occupied territory is "territory of the hostile state,"'²³ or, in the French original: `territoire de l'état ennemi.' However, according to a detailed analysis undertaken by Professor N. Bar-Yaacov, despite the lack of an express statement on the matter, `the Government's position regarding the Hague Regulations is identical to its attitude on the applicability of the Geneva Convention.'²⁴

Lastly, Professor Roberts is of the opinion that there are precedents showing that states have considered the laws on occupation to be applicable `even in cases that differ in some respect from the conditions of application spelled out in the Hague Regulations and the Geneva Convention.'²⁵ However, it seems that the rejection of the applicability of the Fourth Geneva Convention has rather been the rule and not the exception in the practice of states:

There are, in fact, so many situations in which the applicability of the Geneva Conventions ... has been denied that the not uncommon practice has been rejection of the law, rather than its formal recognition and implementation.²⁶

As to Israel's declaration that it will de facto apply the humanitarian provisions of the Fourth Convention, it has not been considered to be a satisfactory solution. First, because Israel has never clarified which provisions she would consider to be of a humanitarian nature.²⁷ Second, the rejection of the formal applicability has allegedly been one of the factors why Israeli courts have been reluctant to apply the provisions of the Convention.²⁸ However, as will be shown later, the question of the formal applicability of the Convention has neither been raised nor contested in the courts, and, to the contrary, the Supreme Court has in fact in many cases been acting as if it were applicable.²⁹ The impediment to its full implementation by the courts stems not from its non-applicability due to the status of the Territories, but from lack of transformation, as will be shown later. Third, the ex gratia application `could be construed as carrying an implication that it [Israel] might unilaterally interpret, or eventually abrogate, its terms.'³⁰ However, disagreement over the interpretation can, and in fact does, arise, irrespective of whether the provisions are applicable per se or by a renvoi via the unilateral declaration.³¹

The question may arise whether the provision against expulsion and deportation is of humanitarian nature. Although prima facie it has that quality, it may be argued that under certain circumstances the expulsion of a person who constitutes a severe threat and danger to the inhabitants or to the security forces, does not violate any humanitarian principles.³²

12 This question has been examined very thoroughly by Professor N. Bar-Yaakov in his leading article: `The Applicability of the Laws of War to Judea and Samaria (The West Bank) and the Gaza Strip', 24 Israel Law Review (1990) (forthcoming). A similar question could be raised with regard to the 1907 Hague Regulations (see ibid., and Roberts, `Prolonged Military Occupation: The Israeli-Occupied Territories since 1967', 84 AJIL (1990) 44, at 63, but for the purpose of the subject dealt with in this Note, only the Geneva Convention is relevant.

13 Supra note 4, at 501.

14 See Shamgar, `The Observance of International Law in the Administered Territories', 1 Israel Yearbook on Human Rights (1971) 262, at 263; idem, `Legal Concepts and Problems of the Israel Military Government - The Initial Stage', in M. Shamgar (ed.), Military Government in the Territories Administered by Israel, 1967-1980: The Legal Aspects (1982) 13, at 33. On the status of Jordan on the West Bank, see also Blum, `The Missing Reversioner: Reflections on the Status of Judea and Samaria', 3 Israel Law Review (1968) 279. For a very interesting theory on this subject, see Rostow, `Letter to the Editor in Chief', 84 AJIL (1990) 717, at 718-720.

15 M. Shamgar, supra note 13, at 37.

16 For the various statements of the Government of Israel to this effect see Bar-Yaakov, supra note 11.

17 See, e.g., statement by Professor Y.Z. Blum, Israel's Representative to the United Nations, in Security Council Official Records, 34th Year, 2131st mtg; 19 March 1979.

18 See, e.g., United Nations General Assembly Resolution 43/58 of 6 September 1988, Section B; Security Council Resolution No. 607, of 5 January 1988.

19 See, e.g., International Committee of the Red Cross, Annual Report (1989) 88.

20 See, e.g., H.J. Hansel, the legal adviser to the State Department, in 72 AJIL (1978) 911, and US Department of State, Country Reports on Human Rights Practices for 1987, 100th Congress, 2nd Session 1189 (1988).

21 The criticism was voiced by some experts in unambiguous terms, and by others more subtly. See, e.g., Roberts, supra note 11, at 66; Dinstein, `The International Law of Belligerent Occupation and Human Rights', 8 Israel Yearbook on Human Rights (1978) 105, at 107; Meron, `West Bank and Gaza: Human Rights and Humanitarian Law in the Period of Transition', 9 Israel Yearbook on Human Rights (1979) 106, at 108-119; idem, `Applicability of Multilateral Conventions to Occupied Territories', 72 AJIL (1978) 542, in note 31, at 548-549; Bothe, `Belligerent Occupation', in R. Bernhardt (ed.), 4 Encyclopedia of Public International Law, (1982) 64, at 65; E. Cohen, Human Rights in the Israeli-Occupied Territories 1967-1982 (1985) 51-56; idem, `Justice for Occupied Territory? The Israeli High Court of Justice Paradigm', 24 Columbia Journal of Transnational Law (1986) 471, at 497; Boyd, `The Applicability of International Law to the Occupied Territories', 1 Israel Yearbook on Human Rights (1971) 258-261.

22 Roberts, supra note 11, at 64. See also idem, `What is a Military Occupation?', 55 British Year Book of International Law (1984) 249, at 253. See also The Geneva Conventions of 12 August 1949, Commentary published under the general editorship of J.S. Pictet, IV Geneva Convention (1958) at 21.

23 Roberts, supra note 11, at 65.

24 Bar-Yaakov, supra note 11.

25 Roberts, supra note 11, at 65, and his article `What is a Military Occupation?' supra note 21, at 253.

26 T. Meron, Human Rights in Internal Strife: Their International Protection (1987) 43.

27 Roberts, supra note 11, at 66. See also Bar-Yaakov, supra note 11.

28 Roberts, supra note 11, at 66, and idem, `What is a Military Occupation?' supra note 21, at 283.

29 See E. Nathan, `The Powers of Supervision of the High Court of Justice over Military Government', in Shamgar (ed.) supra note 13, 109-170, at 114; M. Negbi, Justice Under Occupation: The Israeli Supreme Court versus the Military Administration in the Occupied Territories (1981) (in Hebrew).

30 Roberts, supra note 11, at 66.

31 On the effect of certain unilateral declarations in international law, see Eastern Greenland case, Permanent Court of International Justice, Series A/B, No. 53, 1933, at 53; Nuclear Test cases, 1974 International Court of Justice, Reports, 267, at 472; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), ibid., (1986) 3, at 130-132; Case Concerning the Frontier Dispute (Burkina Faso/Mali), ibid. (1986) 554, at 573-74.

32 See infra, Section III, Statements by Justice G. Bach, text accompanying notes 52 and 53.

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