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Judicial Decisions Judgments of the Supreme Court

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Judicial Decisions Judgments of the Supreme Court JUDICIAL DECISIONS JUDGMENTS OF THE SUPREME COURT OF ISRAEL RELATING TO THE ADMINISTERED TERRITORIES By Fania Domb* I. H.C. (High Court) 785/87, 845/87, 27/88, Abd el Afu et al. v. Com- mander of the IDF Forces in the West Bank et al. (Afu case) 42 (2) Piskei Din (Reports of the Supreme Court of Israel) 4. Legality of deportationfrom the Administered Territories in view of Article 49 of the 1949 Fourth Geneva Convention; rules of interpre- tation in Israeli law and in international law; examination of the legislative history of Article 49; purpose of Article 49 to prevent Nazi- like practices such as mass deportation to concentration and extermi- nation camps during the Second World War; non-applicability of the Geneva Convention in the Israeli legal system without incorporating legislation, even if regarded as a "law-making" treaty; military occu- pation of the Gaza Strip continuing despite the conclusion of the 1979 Treaty of Peace between Israel and Egypt, because not terminated thereby; factual basis justifying deportation; deportation legal under Regulation 43 of the 1907 Hague Regulations if the prospective depor- tees pose danger to public order and security; minority opinion - Article 49 as absolutely prohibitingany deportations, and not only such as were committed by the Nazis; Government's commitment to respect the humanitarianprovisions of the Geneva Convention incompatible with deportation. This is a leading judgment delivered by a bench of five justices in response to three petitions - from the West Bank and Gaza Strip - challenging the legality of deportation orders as contravening Article 49 of the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War' (hereinafter: The Fourth Geneva Convention), which states at its beginning as follows: * LL.M., Instructor, Faculty of Law, Tel Aviv University (Israel). Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, 1 Kitvei Amana (Israel Treaty Series) (No. 30) 559. 277 Israel Yearbook on Human Rights, Volume 23, pp. 277-361. @ 1994 Kluwer Academic Publishers. Printed in the Netherlands. 278 ISRAEL YEARBOOK ON HUMAN RIGHTS 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. At the outset of his extensive judgment, Shamgar J. stated that he endorses and subscribes to the series of decisions of the High Court delivered on the issues of applicability of the Geneva Convention to the Occupied Territories (West Bank and Gaza Strip) and of the legality of deportations,2 and to the comments on those issues made by Professor Y. Dinstein.3 However, in view of the dissenting reasoning of Bach J., Shamgar J. found it necessary to present once more "the gist" of his opinion on these issues. The content of Shamgar J.'s opinion - as defined by himself - relates to three aspects of interpretation: a. rules of interpretation of legislation accepted in the Israeli legal system; b. principles of interpretation applicable to international conventions; c. interpretations of Article 49 of the Fourth Geneva Convention. After observing that each legal system has its particular rules of interpretation and analyzing those peculiar to internal Israeli law, Shamgar J. reached the conclusion that the Israeli rules of interpreta- tion "seek to pave the way to revealing the legislative purpose". Within the framework of this approach, it is customary to examine not only the text of the legislative act, but also its legislative history, its legal and substantive context, and the possible meaning of its structure. Turning to the rules of interpretation accepted in international law, Shamgar J. referred to the 1969 Vienna Convention on the Law of H.C. (High Court) 606/78, Ayub et al. v. Minister of Defence et al., 33(2) Piskei Din (Reports of the Supreme Court of Israel; hereinafter: P.D.) 113 (excerpted in 9 Israel Yearbook on Human Rights (hereinafter: I. Y.H.R.) 337 (1979); H.C. 97/79, Abu Awad v. Commander of the Judea and Samaria Region, 33(1) P.D. 309 (excerpted in 9 I.Y.H.R. 343 (1979)); H.C. 698/80, Kawasme et al. v. Minister of Defence et al., 35(1) P.D. 617 (excerpted in 11 I.Y.H.R. 349 (1981)); H.C. 629/82, Mustafa et al. v. Military Commander of the Judea and Samaria Region, 37(1) P.D. 158 (excerpted in 14 I.Y.H.R. 313 (1984)); H.C. 513, 514/85, Nazal et al. v. Commander of IDF Forces in the Judea and Samaria Region, 39(3) P.D. 645 (excerpted in 16 LY.H.R. 329 (1986)). Y. Dinstein, "The Judgment in the Matter of Pitchat Rafiah", 3 Tel Aviv Univ. L. Rev. 934 (Hebrew, 1973)..
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