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.