19-DEC-1990

EXPULSIONS AND THE FOURTH GENEVA CONVENTION

ALAN BAKER

1. Whether as a result of concerted policy of PLO planners or of Hamas fundamentalist religious leaders, a situation of acute disorder and violence exists in the territories and in Israel. Palestinians are blatantly and even proudly and openly carrying out acts of violence, including stabbings and the use of explosives and ammunication, against both Jews and fellow Arabs. Virulent incitement on varying levels serves to bolster what is an already inflamed atmosphere.

2. Resolutions by the United Nations and statements by foreign governments and leaders, both in the United States and Europe, criticizing or condemning Israel for its reaction to such incitement and violence, are interpreted as justification and license for further, compounded acts of violence. Such violence appears to enjoy absolute immunity in the international community, which selectively chooses only to condemn Israel’s reaction thereto, while completely ignoring the Arab actions which bring about the Israeli reaction.

3. Israel is faced with a factual situation of acute ongoing disorder and violence. Pending the achievement of a political solution to the problem as a whole, Israel is responsible internationally for the administration of the territories. Israel is obliged to determine for itself the manner in which order is to be restored and maintained, in order to allow normal day-to-day life.

4. What viable, practical alternatives exist for dealing with persons whose sole activity and orientation in life is to incite violence and threaten innocent people, "obliging" others to commit acts of disorder, to sow seeds of hatred and distrust, and to plan, recruit, finance and organize acts of terror? What can be done with these people?

5. Although capital punishment is sanctioned by the Fourth Geneva Convention for serious acts of sabotage against military installations and for intentional offenses which cause the death of one or more persons, it is not practiced by Israel despite the most heinous acts of murder and terror carried out by Palestinians.

6. Rather, Israel has chosen to invoke a measure permitted by the laws in force in the areas: to remove the inciters and the terrorists from these areas. While admittedly this will not prevent such persons from continuing to act against Israel, it will place them at sufficient distance to neutralize the power of persuasion and threat which they exercise vis-a-vis the local population.

7. As with any such administrative measure, it is not a solution to the basic problem, which clearly must be dealt with politically. Expulsion of such dangerous elements is, however, one means of reducing the level and intensity of the violence and incitement prevailing in the territories, and helps to restore order and normal day-to-day life.

8. In order to ensure the proper exercise of such a punitive measure, a two-tier appeals mechanism exists to review the process. Israel’s Supreme Court thus acts as a judicial watchdog to ensure that it is used only when absolutely necessary, and that every individual is guaranteed the right of appeal prior to expulsion.

9. It has been argued that expulsion is prohibited by the Fourth Geneva Convention. However, the prohibition therein against "individual or mas deportation" cannot be viewed as anything but a reference to those arbitrary mass and individual deportations of nationals, such as were carried out during World War II, for the purpose of extermination subjugation, slavery, forced labor and the like. This was the context in which Article 49 of the Convention was drafted. It was, and still is, intended to prevent deportation for such motives and to protect innocent civilian populations from such a cruel fate.

Article 49 was not, even by inference, intended to serve as a means of providing absolute immunity to criminals, terrorists, murderers, stabbers and agitators, obstructing the application of the laws in force in a territory. It was not intended to be used as a shelter for persons illegally present in a territory, preventing their legal removal from that territory.

The Supreme Court of Israel has held that taking Article 49 out of context and reading into it a blanket prohibition against individual expulsions would make it impossible, for example, to extradict a person or to deport an infiltrator or illegal entrant. The territories would provide a safe haven for suspected criminals from any country. The Court held that this was not the intention of the Fourth Geneva Convention.

To cite the literal interpretation of the language of the Convention out of context is to create a selective and simplistic interpretation that confounds reason, frustrates the law, and corrupts the true meaning of the Convention.