THE ISRAEL SUPREME COURT AND THE LAW OF BELLIGERENT OCCUPATION: DEPORTATIONS

By Yoram Dinstein*

I. INTRODUCTION

This is a sequel to an article, published in an earlier volume of the Israel Yearbook on , relating to another aspect (reunification of families) of the law of belligerent occupation, as interpreted and applied by the Israel Supreme Court sitting as a High Court of Justice. The previous publication explained the legal beckground at some length, in so far as the jurisdiction of the Supreme Court and the applicability in Israel of international legal rules (both customary and conventional) are concerned. It is not proposed to repeat those general introductory remarks here, inasmuch as they are still valid notwithstanding the passage of time.

II. THE PROBLEM IN A NUTSHELL

In numerous instances since the belligerent occupation of the West Bank and the commenced (1967), the Israeli military command in these territories has resorted to the punitive measure of deportation of specific persons on the ground that they had committed, abetted or incited acts of violence and terrorism. In some cases, the authorities ultimately reneged, and either the deportation orders were not actually carried out or the deportees were subsequently permitted to return to the territories. In still other cases, the deportations were temporary ab initio, that is to say, they were imposed for a prescribed period only (often agreed upon after negotiations with the parties or their attorneys). The deportations from the occupied territories all hinge on powers

* M. Jur.; L.L.M.; Dr. Jur. Yanowicz Professor of Human Rights and President, University (Israel). Y. Dinstein, "The Israel Supreme Court and the Law of Belligerent Occupation: Reunification of Families", 18 Israel Yearbook on Human Rights 173-88 (1988). I

Israel Yearbook on Human Rights, Volume 23, pp. 1-26. @ 1994 Kluwer Academic Publishers. Printed in the Netherlands. 2 ISRAEL YEARBOOK ON HUMAN RIGHTS originally vested in the High Commissioner of British Mandatory Palestine, in Section 112 of the Defence (Emergency) Regulations enacted in 1945.2 Regulation 112 remained in force in all parts of Palestine at the point of termination of the British Mandate (1948) and thereafter. In Israel, the Regulation was repealed only in 1979, under the Emergency Powers (Detention) Law.' As for the status of the Regulation in the occupied territories, it is necessary to distinguish between the West Bank and the Gaza Strip. The legal standing of Regulation 112 in the West Bank (which became an integral part of the Hashemite Kingdom of Jordan) is somewhat complicated. On the one hand, following prior Jordanian legislation, the Jordanian Constitution of 1952 stipulates in Article 128:

All Laws and Regulations and other existing legislation in force in the Hashemite Kingdom of Jordan at the date of the enforcement of this Constitution shall continue to be in force until they are repealed or amended by legislation.'

On the other hand, Article 9(i) of the same Constitution proclaims:

No Jordanian shall be exiled from the territory of the Kingdom.'

This apparent contradiction was dwelt on twice by the Israel Supreme Court. In H.C. 97/79, the Court held (per President Sussman, joined by Justices Asher and Shamgar) that, notwithstanding Article 9(i), Regulation 112 remained valid in the West Bank pursuant to Article 128 of the Constitution.' However, in H.C. 698/80, the majority judgment (per President Landau, joined by Justice Kahan) expressed reserva- tions about this dubious conclusion.' Instead, the Court preferred to

2 Defence (Emergency) Regulations, 1945, [1945] Palestine Gazette (No. 1442), Supp. No. 2, 1055, 1085. Emergency Powers (Detention) Law, 1979, 33 Laws of the State of Israel 89, 92 (1978-79). 4 A.P. Blaustein & G.H. Flanz, 8 Constitutions of the Countries of the World, Jordan 27, 55 (1984). Ibid., 30. 6 H.C. (High Court) 97/79, Abu Awad v. Commander of the Judea and Samaria Region, 33(1) Piskei Din (Reports of the Israel Supreme Court, hereinafter: P.D.) 309, 312-16. The judgment is excerpted in English in 9 Israel Yearbook on Human Rights 343 (1979). H.C. 698/80, Kawasme et al. v. Minister of Defence et al., [Second Phase], 35(1) P.D. 617, 623-25, 647. The judgment is excerpted in English in 11 Israel Yearbook on Human Rights 349 (1981).