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The Expulsion of Civilians from Areas which came under Israeli Control in 1967: Some Legal Issues
V. Conclusion
This analysis has shown that the controversy over the expulsion of civilians from the territories under Israeli military administration raises difficult legal questions: are those territories subject to the international laws on occupation? Is the prohibition against expulsion included in the Fourth Geneva Convention an absolute one or is it limited to certain kinds of expulsion? Is this prohibition - whatever its scope - merely a rule of international treaty law, or is it also a general rule of customary law? Hopefully the above analysis may help to clarify the issues.
The refusal of Israel's Supreme Court to implement Article 49 of the Fourth Geneva Convention does not stem from a rejection of the applicability of the Convention, but from the lack of transformation of its terms into municipal law. Moreover, the very fact that the Court went to great length to analyze and interpret Article 49 shows that, even in the absence of a formal incorporation, the Court has in practice been considerably influenced and guided by the Convention and has tried to interpret Israeli law in accordance with its provisions. This trend can also be discerned in other cases that deal with different matters, where the Court has in fact measured the acts of the Military Government by the yardstick of the Fourth Convention.69
Although the Court has formally refused to implement Article 49 and has limited its meaning to mass deportations, the power of the Military Commander to expel or deport is certainly not unlimited, and its exercise is subject to review by the Court, which will scrutinize each case carefully: it will verify the reasonableness of the order and its legitimacy under Israeli administrative law (which includes the principles of natural justice) and international customary rules. Moreover, the mere existence of the Court's review power constitutes a powerful incentive for the military authorities to reduce the cases of expulsion as far as possible.
As to the more general problem concerning the implementation of the Fourth Geneva Convention by Israeli courts, it is submitted that it can be dealt with in one of three ways: first, the Supreme Court can abandon the principle which requires formal transformation of all constitutive treaties;70 second, parliament can adopt a specific law on the incorporation of the Fourth Geneva Convention,71 and third, the Supreme Court can increase its reliance on the Convention on the basis of the presumption that Israel's law conforms to her international commitments.
69 E.g., H. Ct. 500/72, Al Tin v. Minister of defense et al., (1973) 27(1) Piskei-Din 481; H. Ct. 673/88, Al Saudi et al. v. Head of the Civil Administration in the Gaza strip, (1987) 41(3) Piskei-Din 138, and H. Ct. 13/86, Shahin et al. v. Commander of IDF Forces in the Area of Judea and Samaria et al., (1987) 41(1) Piskei-Din 197 - on family reunification; H. Ct. 87/85, Arjuv et al. v. Commander of IDF Forces in the Area of Judea and Samaria et al., (1988) 42(1) Piskei-Din 353 (when considering whether an appellate instance above the military tribunals in the Territories should be established). There have, however, also been cases where the Court has disregarded the Convention, e.g., Jabber v. Military Commander of the Central Region and Minister of Defense, (1988) 42(2) Piskei-Din 522 (concerning the demolition of a room).
70 Lapidoth, supra note 36. This could of course also be achieved by a law of the Legislature.
71 Bar-Yaacov, supra note 11. The author also mentions the possibility to include the Fourth Geneva Convention in the legal system of the territories by means of orders issued by the Military Commanders of the region.
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