Affo v Commander Israel Defence Force

JurisdictionIsrael
CourtSupreme Court (Israel)
Israel, Supreme Court sitting as the High Court of Justice

(Shamgar, President; Ben-Porat, Deputy President; Levin, Bach and Goldberg, Justices)

Affo and Another
and
Commander Israel Defence Force in the West Bank (HC 785/87)
Rafia and Another
and
Commander Israel Defence Force in the Gaza Strip and Another (HC 845/87)
Hindi
and
Commander Israel Defence Force in the Judea and Samaria Region (HC 27/88)

War and armed conflict Occupied territories Powers and duties of occupant Deportation from occupied territory Fourth Geneva Convention, 1949 Article 49 Whether imposing total prohibition on deportations Whether prohibiting occupying Power from deporting individuals accused of engaging in terrorist activities or incitement to violence Historical background to Article 49 Mass deportations during Second World War Whether Article 49 confined to deportations of this kind Relationship between Article 49 of the Fourth Convention and Article 43 of the Hague Regulations on Land Warfare, 1907 Courts in occupied territories Role of Supreme Court of Israel in reviewing acts of occupation authorities Applicability of Fourth Geneva Convention to occupied territories in the Middle East Policy of Government of Israel that it would honour humanitarian provisions of Convention Duration of occupation Gaza Strip Whether authority of Military Government terminated by Treaty of Peace between the Arab Republic of Egypt and Israel, 1979 Whether regime still one of belligerent occupation

War and armed conflict Peace treaties Treaty of Peace between the Arab Republic of Egypt and Israel, 1979 Legal effects Gaza Strip Whether regime of belligerent occupation terminated

Relationship between international law and municipal law Treaties Effect in municipal law Israel Rule that treaties do not form part of the law of Israel unless incorporated by legislation Parallel rule in English law Exception in respect of treaties stating rules of existing customary international law Fourth Geneva Convention, 1949, Article 49 Prohibition of deportations Whether a codification of customary international law

Sources of international law Treaties Codification and progressive development Conditions under which innovative provision in treaty can come to reflect customary international law Acceptance of provision in State practiceFourth Geneva Convention, 1949

Treaties Application by municipal courts Treaty not incorporated into municipal law by legislation Whether provisions of treaty may be enforced by municipal courts

Treaties Interpretation Principles of interpretation Object and purpose of treaty provision Historical background Reference to travaux prparatoires Vienna Convention on the Law of Treaties, 1969, Articles 31 and 32 Principle that treaty provision imposing limitations on the authority of a sovereign State should be narrowly construed The law of Israel

Summary: The facts:The three petitions concerned deportation orders issued against residents of the West Bank (Judea and Samaria) and the Gaza Strip, territories occupied by Israel since 1967, by the commanders of the Israel Defence Force (IDF) in those territories. In each case,1 the order was issued, under Regulation 112 of the Defence (Emergency) Regulations, 1945, on the ground that the petitioner was alleged to have taken part in activities hostile to the Israeli authorities in the territories. The petitioners challenged the legality of the deportation orders under international law and under the law in force in the territories. They also raised objections regarding the adequacy of the justifications given for the issuing of the order in each case. The Association for Civil Rights in Israel joined the petitions in the first two cases.

The petitioners argued that Article 49 of the Fourth Geneva Convention, 1949,2 prohibited the deportation of residents of the West Bank and the Gaza Strip. Article 49(1) provided that:

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.

The petitioners maintained that this provision formed part of the rules of international law binding upon Israel in respect of its occupation of the West Bank and the Gaza Strip and could be enforced by the Supreme Court of Israel.

Held (Bach J dissenting in part):The petitions were dismissed.

(1) (By four votes to one) The deportation orders did not constitute a violation of Article 49 of the Fourth Geneva Convention.

(a) In seeking to determine the meaning of Article 49 of the Fourth Convention, the Court had to adopt a purposive approach, examining the mischief at which the Article was aimed. Not only was this approach to interpretation well established in Israeli law, it was sanctioned by international law, including Articles 312 of the Vienna Convention on the Law of Treaties, 1969. In addition, any treaty provision which limited the authority of sovereign States should be interpreted in a restrictive fashion (pp.12636).

(b) The purpose behind Article 49 of the Fourth Geneva Convention was to protect whole civilian populations in occupied territories against a repetition of the mass deportations and removal of hostages which had occurred in the Second World War, not to prohibit the removal from occupied territory of a terrorist, infiltrator or enemy agent. Article 49 had to be interpreted in the light of its object and purpose, rather than being given the literal interpretation advanced by the petitioners. To interpret Article 49 as forbidding any removal from occupied territory of any protected person would have the absurd consequence that an occupying State would be forbidden to remove infiltrators who had entered the territory for purposes of sabotage or spying or the extradition of fugitive offenders who had taken refuge in the territory. The Supreme Court of Israel had consistently adopted the purposive interpretation of Article 49 and there was no reason for the Court now to deviate from that approach (pp. 13649).3

Per Ben-Porat DP (concurring): The prohibition in Article 49 of the Fourth Geneva Convention had to be read in the light of the duty, imposed upon the occupying Power by Article 43 of the Hague Regulations on Land Warfare, 1907,4 to restore and ensure as far as possible public order and safety, while respecting the law already in force in the occupied territory. Deportation of an individual inhabitant of occupied territory was therefore lawful provided that there was no other way of adequately maintaining law and order and protecting the population of the territory. Article 43 of the Regulations had to be given greater weight than Article 49 of the Convention because it reflected customary international law while the Fourth Geneva Convention had only conventional force (pp.1845).

Per Bach J (dissenting): The language of Article 49 of the Fourth Convention was unequivocal and explicit, prohibiting all deportations, whether

of groups or of individuals, regardless of motive. While it was right to take into account the historical background of the Article, that did not suggest a contrary interpretation. The draftsmen of Article 49 had been motivated by the mass deportations of the Second World War but they had deliberately framed the provision in broad terms which went beyond a prohibition of the kind of deportations which were common in the Second World War. To accept the petitioners' interpretation of Article 49 did not mean that security considerations were to be ignored, since adequate provision for the security of the occupying Power was made elsewhere in the Convention

Nevertheless, the prohibition of deportations of the kind involved in this case was not the dominant purpose of those who had drafted the Convention. The Court should take account of the declaration by the Government of Israel that it was the intention of the Government to honour as policy the humanitarian provisions of the Convention and there were cases in which, within the framework of administrative law, the Court would instruct the Government to honour that undertaking. The present cases, however, did not fall into that category. In so far as Article 49 prohibited the deportation of individuals who had incited others to acts of violence, it was not primarily a humanitarian provision (pp.18594).

(2) (unanimously) Even if the deportations had been contrary to Article 49 of the Fourth Geneva Convention, the rule contained in that Article was a treaty provision which could not be enforced by an Israeli court.

(a) Unlike customary international law, a treaty to which Israel was a party did not form part of the law of Israel unless its provisions were adopted by legislation or the provisions of the treaty were a repetition or declaration of existing customary law. The fact that a treaty was described as law making did not alter this rule which was based upon the division of powers between the Executive and the Legislature in Israel (pp. 15064).

(b) The Supreme Court of Israel had repeatedly characterized Article 49 of the Fourth Geneva Convention as a treaty rule which did not express a principle of customary international law (pp. 1545).

Per Bach J (concurring): Article 49 of the Fourth Geneva Convention was not to be regarded as expressing a rule of customary international law and could not, therefore, be enforced by the Court (pp. 1945).

(3) (unanimously) Regulation 112 of the Defence (Emergency) Regulations, 1945, was part of the law in force in the West Bank (pp. 1645).

(4) (unanimously) The Treaty of Peace between Israel and the Arab Republic of Egypt, 1979, and the Camp David Agreement had not terminated the authority of the Military Government in the Gaza Strip. Although the Camp David Agreement envisaged further developments in the government of the Gaza Strip, until those developments had occurred, the Military Government would continue...

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