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The Expulsion of Civilians from Areas which came under Israeli Control in 1967: Some Legal Issues
Ruth Lapidoth 1
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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
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1 Professor of International Law at the Hebrew University of
Jerusalem, and currently a Fellow at the United States Institute of Peace in
Washington, D.C. Special thanks are due to Mr John Dettling, Research Assistant
at the Institute, for his help. The author also wishes to express her gratitude
to Professor Eugene V. Rostow and Professor Alfred Rubin for their most
valuable comments and suggestions.
2 This note will deal with the West Bank, i.e. Judea and Samaria, and
with the Gaza strip. The name `West Bank' may imply a connection with Jordan,
and the expression `Judea and Samaria' has been interpreted as referring to
historic claims. Therefore, the neutral expression `Territories' or
`Administered Territories' will be used.
Originally both areas were part of
Palestine under the British Mandate, and they were occupied in 1948 by Jordan
and Egypt respectively. In 1967 they came under Israeli control as a result of
the Six-Day War. The Gaza strip continues to be administered by Israel as an
occupied territory, despite the conclusion of the Treaty of Peace between Egypt
and Israel in 1979. 18 International Legal Materials (1979) 362. The
Peace Treaty has not dealt with the status of the Gaza strip (`... without
prejudice to the issue of the status of the Gaza strip' Article II) which
according to the 1978 Camp David Framework for Peace in the Middle East, 17
International Legal Materials (1978) 1466, was to be included in the
regime of autonomy which should have been established for the Palestinian
inhabitants of the West Bank and Gaza. The continuation of the application of
the laws of war and occupation has been sanctioned by Israel's Supreme Court:
`... [A]s long as the military authority exercises control in the area, the
powers granted to it and the restrictions imposed upon it by virtue of the laws
of war, remain in effect, subject, of course, to any arrangement agreed upon by
the authorized political bodies.' H. Ct. 102/82, 150/82, 593/82, 690/82,
271/83, Tsemel et al. v. Minister of Defense et al. (1988) 42(2)
Piskei-Din 4, at 49. An English translation of the last-mentioned judgment has
been published in 29 International Legal Materials (1990) 139.
As to
the West Bank - Judea and Samaria - in 1988 King Hussein declared the
disengagement of Jordan from the areas. 27 International Legal Materials
(1988) 1637. No change has been introduced in the Israeli administration in the
wake of this declaration.
This note will not deal with the Eastern
neighbourhoods of Jerusalem, which also came under Israeli control in 1967,
since they are not administered by the military government: these areas have
come under regular Israeli law, jurisdiction and administration in 1967 by
virtue of Israel's Law and Administration Ordinance. (Amendment No. 11) Law of
5727-1967 (21 Laws of the State of Israel, authorized translation into English
5727-1966/67, p. 75). On the status of Jerusalem, see, e.g., E. Lauterpacht,
Jerusalem and the Holy Places (1968).
3 Schindler and Toman (eds), The Laws of Armed Conflicts: A
Collection of Conventions, Resolutions and Other Documents (3rd ed., 1988)
63, at 88.
4 G. Schwarzenberger, International Law as Applied by
International Courts and Tribunals, vol. II: The Law of Armed Conflict
(1968) 228, 227
5 Schindler and Toman, supra note 2, 495, at 516. The text
speaks of forcible transfers and deportation, but in the present Note the
expression `expulsion' will also be used. Interestingly, the various
conventions on human rights use the expression expulsion (e.g., Articles 12-13
of the International Covenant on Civil and Political Rights, 1966, Article 3(1)
of Protocol IV of 1964 to the European Convention on Human Rights, 1950,
Article 22(5) of the American Convention on Human Rights, 1969) whereas in
writings about humanitarian law the term `deportation' is more
common.
6 Israel, Jordan, Egypt and Syria are parties to the Convention since
1951, 1951, 1952 and 1953 respectively. See Schindler and Toman, supra
note 2, at 557-562.
7 On the need for transformation into the Israeli legal system, see
infra, section III, text accompanying note 38.
8 See infra, section III, text accompanying note
41.
10 Schindler and Toman, supra note 2, at 621.
11 Egypt has merely signed Protocol I, Jordan has signed and ratified
it in 1979, and Syria has acceded in 1983, declaring, however, that this
`accession does not in any way constitute recognition of Israel or the
establishment of any relations with her in respect of the implementation of the
provisions of the said Protocol'. Schindler and Toman, supra note 2, at
701-703, 716.
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