Practice Relating to Rule 129. The Act of Displacement
Section A. Forced displacement
Under Israel’s Nazis and Nazi Collaborators (Punishment) Law (1950), deportation to forced labour or for any other purpose of the civilian population of or in occupied territories is regarded as a war crime.
In its judgment in the Eichmann case in 1961, Israel’s District Court of Jerusalem held that the following behaviour caused serious bodily or mental harm and, therefore, amounted to a violation of Israel’s Nazis and Nazi Collaborators (Punishment) Law:
the enslavement, starvation, deportation and persecution … and … [the] detention [of Jewish people] in ghettos, transit camps and concentration camps in conditions which were designed to cause their degradation, deprivation of their rights as human beings and to suppress them and cause them inhumane suffering and torture.
In its judgment in the Abu Awad case
in 1979, Israel’s High Court held that Article 49 of the 1949 Geneva Convention IV was not meant to apply to the deportation of selected individuals for reasons of public order and security. It only prohibits Nazi-style mass deportations.
In its judgment in the Kawasme case in 1980, Israel’s High Court held:
All of Article 49 [of the 1949 Geneva Convention IV] … does not form part of customary international law, and therefore the deportation orders [against the mayors of Hebron and Halhul] did not contravene the domestic law of the State of Israel … , according to which an Israeli court reaches its decision.
The Court also stated that Article 49 was not meant to apply to the deportation of selected individuals, but only to Nazi-style mass deportation. In a dissenting opinion in the same case, Justice Cohn underlined that “the beginning of Article 49 … contains a nucleus of the customary law of nations, which has applied all over the world from time immemorial”. According to his opinion, the prohibition contained in Article 49 applies to all inhabitants of an area and is an absolute one, so that the cause for deportation – whether military or security – is irrelevant.
In its judgment in the Nazal case
in 1985, Israel’s High Court held that Article 49 of the 1949 Geneva Convention IV did not form part of customary international law and that therefore deportation orders against individual citizens did not contravene the domestic law of Israel. President Shamgar ruled that Article 49 was not applicable to the deportation of Jordanian subjects to Jordan and that a deportation order under Regulation 112 of the Defence (Emergency) Regulations of 1945 can be issued only if the Military Commander is of the opinion that such an order is necessary or expedient for securing public peace, the protection of the region, the maintenance of public order, or the suppression of mutiny, rebellion or riot.
In its judgment in the Affo and Others case in 1988, a majority of four judges of Israel’s High Court stated that deportations of individuals were not incompatible with Article 49 of the 1949 Geneva Convention IV, the provision only barring Nazi-style mass deportations. However, in a dissenting opinion in the same case, Justice Bach held that deportations of individuals from occupied territories to a location outside the boundaries of those territories violate Article 49. Nevertheless, Article 49 being only conventional and not customary international law, it does not form part of Israeli law that can be directly invoked before Israeli courts. Justice Bach stated:
The language of Article 49 is unequivocal and explicit. The combination of the words “Individual or mass forcible transfers as well as deportations” in conjunction with the phrase “regardless of their motive” … admits no room to doubt that the Article applies not only to mass deportations but to the deportation of individuals as well and that the prohibition was intended to be total, sweeping and unconditional – “regardless of their motive”.
In its judgment in the Ajuri case in 2002, Israel’s High Court of Justice stated:
13. Is the military commander of a territory under belligerent occupation competent to determine that a resident of the territory shall be removed from his place of residence and assigned to another place of residence in that territory? It was argued before us that the military commander does not have that authority, if only for the reason that this is a forcible transfer and deportation that are prohibited under international law (article 49 of the Fourth Geneva Convention). Our premise is that in order to answer the question of the military commander’s authority, it is insufficient to determine merely that the Amending Order (or any other order of the commander of the territory) gives the military commander the authority to assign the place of residence of a resident of the territory. The reason for this is that the authority of the military commander to enact the Amending Order derives from the laws of belligerent occupation. They are the source of his authority, and his power will be determined accordingly. I discussed this in one case, where I said:
“From a legal viewpoint the source for the authority and the power of the military commander in a territory subject to belligerent occupation is in the rules of public international law relating to belligerent occupation (occupatio bellica), and which constitute a part of the laws of war” (HCJ 393/82 Almashulia v. IDF Commander in Judaea and Samaria, at p. 793).
In this respect, I would like to make the following two remarks: first, all the parties before us assumed that in the circumstances currently prevailing in the territory under the control of the IDF [Israel Defense Forces], the laws of international law concerning belligerent occupation apply (see, in this regard, HCJ 102/82 Zemel v. Minister of Defence, at p. 373; HCJ 574/82 El Nawar v. Minister of Defence; HCJ 615/85 Abu Satiha v. IDF Commander); second, the rules of international law that apply in the territory are the customary laws (such as the appendix to the (Fourth) Hague Convention respecting the Laws and Customs of War on Land of 1907, which is commonly regarded as customary law; hereafter – the Fourth Hague Convention). With regard to the Fourth Geneva Convention, counsel for the Respondent reargued before us the position of the State of Israel that this convention – which in his opinion does not reflect customary law – does not apply to Judaea and Samaria. Notwithstanding, Mr Nitzan told us – in accordance with the long established practice of the Government of Israel (see M. Shamgar, “The Observance of International Law in the Administered Territories”, 1 Isr. Y. H. R. 1971, 262) – that the Government of Israel decided to act in accordance with the humanitarian parts of the Fourth Geneva Convention. In view of this declaration, we do not need to examine the legal arguments concerning this matter, which are not simple, and we may leave these to be decided at a later date. It follows that for the purpose of the petitions before us we are assuming that humanitarian international law – as reflected in the Fourth Geneva Convention (including article 78) and certainly the Fourth Hague Convention – applies in our case. We should add that alongside the rules of international law that apply in our case, the fundamental principles of Israeli administrative law, such as the rules of natural justice, also apply. Indeed, every Israeli soldier carries in his pack both the rules of international law and also the basic principles of Israeli administrative law that are relevant to the issue. Therefore the question remains: is the military commander competent under the rules of belligerent occupation to determine provisions regarding the forcible assigned residence of a person from his place of residence to another place in the territory under his control?
14. The fundamental premise is that the displacement of a person from his place of residence and his forcible assignment to another place seriously harms his dignity, his liberty and his property. A person’s home is not merely a roof over his head, but it is also a means for the physical and social location of a person, his private life and his social relationships (see M. Stavropoulou, “The Right not to be Displaced”, 9 Am. U. J. Int’l L. & Pol’y, 1994, at pp. 689, 717). Several basic human rights are harmed as a result of an involuntary displacement of a person from his home and his residence being assigned to another place, even if this assigned residence does not involve him crossing an international border (see F. M. Deng, Internally Displaced Persons: Compilation and Analysis of Legal Norms, 1998, 14). These human rights derive in part from the internal law of the various countries, and are in part enshrined in the norms of international law.
15. The rights of a person to his dignity, his liberty and his property are not absolute rights. They are relative rights. They may be restricted in order to uphold the rights of others, or the goals of society. Indeed, human rights are not the rights of a person on a desert island. They are the rights of a person as a part of society. Therefore they may be restricted in order to uphold similar rights of other members of society. They may be restricted in order to further proper social goals which will in turn further human rights themselves. Indeed, human rights and the restriction thereof derive from a common source, which concerns the right of a person in a democracy.
16. The extent of the restriction on human rights as a result of the forcible assignment of a person’s residence from one place to another varies in accordance with the reasons that underlie the assigned residence. Assigned residence caused by combat activities (whether because of an international dispute or because of a civil war) cannot be compared to assigned residence caused by a disaster (whether natural or of human origin) (see R. Cohen and F. M. Deng, Masses in Flight: the Global Crisis of Internal Displacement, 1998). In the case before us, we are concerned with the assigned residence of a person from his place of residence to another place in the same territory for security reasons in an area subject to belligerent occupation. The extent of the permitted restriction on human rights is determined, therefore, by the humanitarian laws contained in the laws concerning armed conflict (see D. Fleck ed., The Handbook of Humanitarian Law in Armed Conflict, 1995). These laws are mainly enshrined in the Fourth Hague Convention and the Fourth Geneva Convention. We will now turn to these laws.
17. We were referred to various provisions in the Fourth Hague Convention (mainly article 43) and in the Fourth Geneva Convention (mainly articles 49 and 78). In our opinion, the case before us is governed entirely by the provisions of article 78 of the Fourth Geneva Convention:
If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.
Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power.
Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention.”
This provision concerns assigned residence. It constitutes a special provision of law (lex specialis) to which we must refer and on the basis of which we must determine the legal problems before us. Whatever is prohibited thereunder is forbidden even if a general provision may prima facie be interpreted as allowing it, and what is permitted thereunder is allowed even if a general provision may prima facie be interpreted as prohibiting it (see J. Stone, No Place, No Law in the Middle East 1969, at p. 17). Indeed, a study of the Amending Order itself and the individual orders made thereunder shows that the maker of the Order took account of the provisions of article 78 of the Convention, and acted accordingly when he made the Amending Order and the individual orders. The Respondent did not seek, therefore, to make a forcible transfer or to deport any of the residents of the territory. The Respondent acted within the framework of “assigned residence” (according to the provisions of article 78 of the Fourth Geneva Convention). Therefore we did not see any reason to examine the scope of application of article 49 of the Fourth Geneva Convention, which prohibits a forcible transfer or a deportation. In any event, we see no need to consider the criticism that the petitioners raised with regard to the ruling of this court, as reflected in several decisions, the main one being HCJ 785/87 Abed El-Apu v. IDF Commander in West Bank, with regard to the interpretation of article 49 of the Fourth Geneva Convention. We can leave this matter to be decided at a later date.
18. Article 78 of the Fourth Geneva Convention does not deal with a forcible transfer or deportation. It provides a comprehensive and full arrangement with regard to all aspects of assigned residence and internment of protected persons. This provision integrates with several other provisions in the Fourth Geneva Convention (arts. 41, 42 and 43) that also discuss internment and assigned residence. When the place of residence of a protected person is assigned from one place to another under the provisions of art. 78 of the Fourth Geneva Convention, it is a lawful act of the military commander, and it does not constitute a violation of human rights protected by humanitarian international law. Indeed, art. 78 of the Fourth Geneva Convention constitutes both a source for the protection of the right of a person whose residence is being assigned and also a source for the possibility of restricting this right. This can be seen, inter alia
, in the provisions of art. 78 of the Fourth Geneva Convention that determines that the measures stipulated therein are the measures that the occupying power (i.e., the military commander) may “at most” carry out.
In its judgment in the Adris case in 2003, Israel’s High Court of Justice stated:
1. Petitioner, a resident of Hebron, was held in administrative detention for one month due to the danger he poses to the security of the State. Toward the end of his detention period, on October 14 2003, a residence assignment order was issued against him, effective for two years (hereinafter: “the order”), according to which he was required to live in the Gaza Strip. An appeal filed by petitioner to the appeals committee was rejected.
2. In the petition before us, petitioner’s counsel, Yunis Tamim adv., refrained from asking us to view the intelligence information upon which the order was issued, and he is thus to be seen as agreeing with the conclusion of the appeals committee regarding the reliability of the information. However, according to the arguments of petitioner’s counsel, the issuance of a residence assignment order contradicts Article 49 of the Fourth Geneva Conference, which prohibits deportation of residents of an occupied area. In addition, he argues that the objective of the order is not prevention of harm to the security of the State, but rather punishment, as it was possible to prevent the harm to the security of the State by using the means of administrative detention.
3. Indeed, the assignment of a person’s place of residence is a severe step. However, as was clarified in HCJ 7015/02 Ajuri v. The Commander of IDF Forces in the West Bank
, 56(6) PD 352 (hereinafter: “HCJ Ajuri
”), Article 78 of the Fourth Geneva Convention allows taking that step, as, in general, it is less severe than detention. Although the military commander is permitted to employ that means only if there is clear administrative evidence, according to which if that step is not taken, “there is a reasonable possibility that [the person against whom the order is issued] will pose real danger to the security of the area
” (HCJ Ajuri
, at p. 372), the military commander has wide discretion, and he can choose, from among the preventative means at his disposal, the most effective means for preventing the danger to the security of the State. Furthermore, the military commander is also permitted, for the purpose of choosing that means, to take into account considerations of public deterrence, on the condition that the person himself poses a danger to the security of the State.
In its judgment in the Diyouk case in 2003, Israel’s High Court of Justice stated:
3. The step of assignment of place of residence naturally involves difficulties for the person against whom it is taken. However, it is a step which is permissible, pursuant to the provisions of Article 78 of the Fourth Geneva Convention, in circumstances in which there is clear administrative evidence that if that person’s place of residence is not assigned, real danger will be posed to the security of the area (see HCJ 7015/02 Ajuri v. The Commander of IDF Forces in the West Bank, 56(6) PD 352; hereinafter: Ajuri). The decision in petitioner’s case was based upon updated intelligence information, according to which release of petitioner in the Judea and Samaria area would be likely to cause real danger to the public peace. In these circumstances, the decision upon assignment of place of residence was within the bounds of the permissible, according to the ruling in Ajuri.
4. As mentioned above, petitioner argued before us that assigning residence involves a severer harm to him than the alternative of administrative detention. In light of that, petitioner is of the opinion that the military commander had a duty to choose the alternative of continued administrative detention. That argument cannot be accepted. The military commander’s decision to assign petitioner’s residence, instead of continuing his detention, was based upon recent intelligence information, according to which petitioner’s continued presence in administrative detention was likely to cause a greater risk to the security of the public than the alternative of assignment of residence. In these circumstances, considerations of public security justify the preference of assignment of residence over administrative detention.
Furthermore, the military commander’s discretion regarding the choice between the alternative means of detention and assignment of residence was discussed in the aforementioned Ajuri judgment, in which the Court ruled:
May the military commander, when making a decision about assigned residence, take into account considerations of deterring the public? As we have seen, what underlies the measure of assigned residence is the danger presented by the person himself if his place of residence is not assigned, and deterring that person himself by assigning his place of residence. The military commander is not, therefore, permitted to adopt a measure of assigned residence merely as a general deterrent. Notwithstanding, when assigning a place of residence is justified because a person is dangerous, and the question is merely whether to exercise this authority, there is no defect in the military commander taking into account considerations of deterring others. Thus, for example, this consideration may be taken into account in choosing between detention and assigned residence. This approach of ours strikes a proper balance between the essential condition that the person himself presents a danger – which assigned residence is designed to prevent – and the essential need to protect the security of the area. It is very much in line with the approach of the Fourth Geneva Convention, which regards assigned residence as a legitimate mechanism for protecting the security of the territory. It is required by the harsh reality in which the State of Israel and the area are situated, in that they are exposed to an inhuman phenomenon of “human bombs” that is engulfing the area (ibid, at p. 1032).
The conclusion is that in the choice between administrative detention and assignment of residence, the commander of the area
is permitted to take into account considerations of public deterrence, upon the condition that he has administrative evidence of a real danger to the security of the area posed by the person against whom the order is directed. This is so, sevenfold, when the military commander’s choice is based on the greater danger to the public posed by the continued administrative detention of a person, compared to the assignment of his residence.
In its judgment in the Sualameh case in 2003, Israel’s High Court of Justice stated:
3. The security provisions order authorizes the military commander to issue an order ordering that a person be subjected to special supervision, including assignment of his residence to a certain place, if that is necessary due to imperative security reasons (see sections 84a and 86(a) and (b)(1) of the security provisions order). The application of the security provisions order, according to its original wording, was limited to the Judea and Samaria area, but amendment 84 of the order of August 1 2002 expanded its application to include the Gaza Strip area as well. Section 86(e) of the security provisions order establishes a right to appeal an assignment order that has been issued, before an appeals committee, appointed by the President of the Military Appeals Court (hereinafter: “the appeals committee” or “the committee”), and section 86(13) further determines that after the appeals committee has rejected an appeal of an assignment order, it must reexamine its validity at least once every six months, whether an additional appeal of the order has been submitted or not.
In HCJ 7015/02 Ajuri v. The Commander of IDF Forces in the West Bank, 56(6) PD 352 (hereinafter: “Ajuri”), Barak, P. ruled, for the Supreme Court, that the security provisions order is in line with the rules of International Humanitarian Law, as reflected in the Fourth Geneva Convention, including Article 78 of that convention, and the Fourth Hague Convention. The Supreme Court further ruled that the rules of International Humanitarian Law apply to the Judea and Samaria area in light of both its status as territory being held in belligerent occupation and the fundamental principles of Israeli administrative law, emphasizing that according to the comprehensive arrangement in Article 78 of the Geneva Convention, a person protected by the Convention can be moved from place to place in an area subject to belligerent occupation, for security reasons and subject to the right of appeal and the reexamination of the order every six months. Due to the rule determined in Ajuri, according to which the security provisions order is in line with the rules of International Humanitarian Law, there is no basis for the argument raised in some of the petitions, according to which the assignment orders were issued ultra vires and must be annulled. An additional argument raised in some of the petitions is the argument that the Gaza Strip area and the Judea and Samaria area are two separate areas and that therefore, expanding the security provisions order to the Gaza Strip area is void, and the assignment orders are to be seen as deportation orders. This argument was already discussed and rejected in Ajuri, where Barak, P. ruled that the Judea and Samaria area and the Gaza area are to be seen as one territorial unit for the purposes of assignment orders issued pursuant to the security provisions order.
4. An additional general argument raised in the petitions is that the orders assigning residence to the Gaza Strip area were issued for foreign policy and political reasons, not due to security considerations of the military commander. Almost all of the petitioners further argued that in their eyes, continued administrative detention is preferable to assignment of residence to the Gaza Strip, and that in any case, the assignment of their residence should have been within the Judea and Samaria area, as the harm to their liberty and their rights caused by such an assignment is lesser, and leaves them in their natural area of residence, in which they can be visited by their families.
At the request of petitioners, we viewed classified material regarding each of them, and in contrast to the arguments raised, we are of the opinion that there are security considerations of the first degree regarding them which justify the orders that were issued. It should be emphasized that the cases before us, unlike the cases discussed in
, do not relate to assignment of the residences of family members of those active in terrorist organizations, who assisted them. The petitioners before us are among the hard core of the Hamas and Islamic Jihad organizations active in the Judea and Samaria area, and the security risk posed by them, should they be released, is real and palpable. In Ajuri
, the Supreme Court emphasized that the objective of the assignment of residence is not punishment, and that the assignment is intended to prevent the person whose residence has been assigned from continuing to constitute a security risk. The Court further ruled in Ajuri
that the military commander, when deciding upon assignment of residence, is not restricted to “military” considerations only, and that the kinds of considerations that he is permitted to take into account are wider, and include security reasons, as stated in Article 78 of the Fourth Geneva Convention. In the framework of such considerations, the military commander is permitted to take into account considerations of public deterrence as well, and that consideration is a relevant one which is likely to be taken into account when the military commander is choosing between administrative detention and assignment of residence (ibid,
at pp. 370–377). In the case before us, it appears that the assignment orders issued may constitute an effective and important means for ensuring security in the area
, both because it distances the terrorists from the local center of terrorist activity in which they are active and disturbs their activity, and also due to the deterrent message that the assignment itself sends. The assignment periods are not uniform for all of petitioners, and that fact also shows that the military commander employed proper discretion in their cases, and that he used the assignment order mechanism at his disposal in a proportional fashion, determining a range of periods that reflects the extent of the dangerousness of each one of petitioners. Note that the discretion whether to employ the means of administrative detention or an assignment order, as well as the authority to decide where the residence will be assigned according to the order – in Judea and Samaria or in the Gaza Strip – are granted to the military commander, and the preferences of the petitioners, whatever they may be, cannot be decisive on the issue. In the cases before us, it appears from the classified material that was presented to us that the assignment of residence in the Judea and Samaria area is not sufficient in order to attain the preventative objective for which the orders were issued, and thus, even though such assignment would be less harmful, we see no justification for intervening in the discretion employed by the military commander on the issue. Regarding the preference of administrative detention: within the range of preventative and deterrent means which the military commander is authorized to employ, it appears that administrative detention, which involves absolute revocation of the detainee’s liberty and placing him behind bars, constitutes a more severe blow to his rights than assigning residence, even in an area which is not the assignee’s permanent place of domicile; assignment of residence is indeed a severe measure, but it preserves many of the assignee’s liberties, including freedom of movement within the assigned area. Thus, it should be seen as a means that restricts the liberty of the assignee, but not as one that completely revokes it (see Ajuri
HCJ 9534/03 Adris v. The Commander of IDF Forces in the West Bank
(yet unpublished)). It should also be remembered that pursuant to Article 39 of the Fourth Geneva Convention, the assignee has the rights to living conditions in the area to which he was assigned according to the assignment order, and respondents indeed clearly obligated themselves before us, to fulfill their duties regarding petitioners in this context. That right also “softens” the blow to the person against whom the assignment order has been issued, and places the assignment order at a lower point along the range of severity, compared to administrative detention.
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated: “Forceful transfer of civilians is forbidden.”