Occupation

Volume 94 Number 885 Spring 2012The jurisprudence of belligerent occupationJudging the contribution of the HCJ to development of the law of occupation is notan easy task. In many of its decisions the Court has preferred to rely on rules ofIsraeli administrative law, rather than on the international law of belligerentoccupation. In others, the Court has concentrated on the specific facts, rather thanon the legal principles involved. Finally, in many cases the Court has done its best toavoid ruling on the compatibility of actions or policies with internationalhumanitarian law, either by relying on the distinction between customary andconventional law mentioned above, or by glossing over the issue. In this articleI shall concentrate on those issues in which Court has taken a position on the lawapplicable in occupied territories.Interpreting the law: general approachIn the Afu case, 39 which dealt with deportation of protected persons on securitygrounds, the petitioners argued that Article 49, paragraph 1 of the Fourth GenevaConvention prohibits all deportations of protected persons from occupied territoryand that this prohibition knows no exceptions. In replying to this argument, ChiefJustice Shamgar opined that the provision in Article 49, paragraph 1 could beinterpreted in two different ways. In such a case, he held, the Court should adoptthe interpretation that is least restrictive of the state’s sovereignty. In the case inquestion this meant adopting an interpretation that allows the state to deportprotected persons on security grounds. 40 The principle of interpretation cited andimplemented by Chief Justice Shamgar is not mentioned in the Vienna Conventionon the Law of Treaties. It is totally out of tune with fundamental principles ininterpretation of international conventions that deal with human rights orhumanitarian law, whose very object is to grant protection to individuals againstabuse of state power. It is also totally inconsistent with the general jurisprudence ofthe Supreme Court, which holds that legislation should be interpreted so as toprotect the fundamental rights of the individual. 41 While the HCJ has never cited orrepeated Chief Justice Shamgar’s statement, in practice that statement largely reflectsthe way in which the Court has interpreted protective provisions in the FourthGeneva Convention and Hague Regulations. In cases relating to Article 49,paragraph 1 of the Fourth Geneva Convention, 42 the majority on the Court haveadopted an interpretation that flies in the face of its clear meaning, on the basis ofthe questionable assumption that the absolute prohibition on deportation of39 HCJ 785/87, Afu et al., v. Commander of IDF Forces in the Judea and Samaria et al., 42(2) PD, p. 4, 1988,p. 17.40 For criticism of the interpretation adopted by the Court, see D. Kretzmer, above note 2, pp. 48–52; YoramDinstein, ‘Deportations from Occupied Territories’, inTel Aviv University Law Review, Vol. 13, 1988,pp. 403–416.41 The leading case is HCJ 73, 87/53, Kol Ha’am v. Minister of Interior, 7 PD, p. 871, 1953.42 Article 49, para. 1 of GC IV states: ‘Individual or mass forcible transfers, as well as deportations ofprotected persons from occupied territory to the territory of the Occupying Power or to that of any othercountry, occupied or not, are prohibited, regardless of their motive’.215