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Incarceration of Palestinians from the West Bank inside Israel – the Powers of the Military Commander: HCJ 2690/09 Yesh Din v. IDF Commander in the West Bank (Judgment of March 28, 2010)
Court Watch | 2690/09 | 1.3.2012 | Adv. Alon Margalit
Criticism
Palestinians from the West Bank are routinely transferred for arrest and incarceration in holding facilities inside Israel. Additionally, legal proceedings in the cases of Palestinians from the West Bank are held in military courts inside Israel. The petitioners, human rights organizations, argued in a High Court of Justice (HCJ) petition that the policy of holding Palestinian detainees and prisoners in Israel contravenes the Geneva Convention’s absolute ban on the forcible transfer and deportation of protected civilians from the occupied territory to the territory of the occupying power, whatever the motive.[1]

The HCJ rejected the petition based on the Emergency Regulations which allow for arrest orders and prison sentences issued to West Bank Palestinians to be carried out inside Israel.[2] Evidently, the court implicitly accepted the petitioners’ argument that the Geneva Convention, constituting binding customary law, applies to the Occupied Palestinian Territories, but it went on to rule that a conflicting law of the Knesset – in this instance the Emergency Regulations – overrides the provisions of the Convention. The HCJ concluded that holding detainees and prisoners in incarceration facilities inside Israel does not constitute a violation the provisions of international law.

In my view, international law leads to a different conclusion considering the law relevant to the issue and the limits of the powers of the military commander in the West Bank.

First we turn to the law applicable in the West Bank – one of the basic tenets of the laws of occupation, which are part of international law, is that the occupying power does not obtain sovereign rights over the occupied territory, but rather holds it on a temporary basis only.[3] Thus, the law applicable to the occupied territory originates in domestic law – the law in force before the occupation and new legislation by the military commander – and the norms of international law, particularly the laws of occupation.

The HCJ sought to allow the infringement on the rights of West Bank Palestinians by using Israeli law, yet, as demonstrated, this legislation does not apply to the occupied territory at all. Even if we follow the HCJ and accept that domestic law trumps the provisions of the Geneva Convention, indeed Israeli domestic law, which originates in Knesset legislation, has no relevance to the array of rights and duties of the protected population of the occupied territory. The military commander is the legislature in the West Bank, whereas the Knesset is the legislature in Israeli territory. The approach that Knesset legislation enjoys preferential status over international law is based on a desire to preserve the Knesset’s supremacy. Those who subscribe to this approach are concerned that the Knesset’s power would be diminished by the “imposition” of norms originating in conventions adopted by the government or in international customary law. Yet, this logic does not apply to a situation of an occupied territory.[4] The Knesset is not empowered to legislate in the West Bank, which is not part of the State of Israel and was not annexed to it, in the first place.

Yet the HCJ did not stop at the laws of the Knesset and added a casual reference to orders issued by the military commander in the West Bank which also allow transferring Palestinians from the occupied territory to incarceration facilities inside Israel. We now reach the conflict between military legislation and international law and the question whether these orders trump the Geneva Convention ban on the forcible transfer of protected persons to the territory of the occupying power. In this context, it is necessary to address the main provision governing the powers of the military commander in an occupied territory, which is Article 43 of the Hague Regulations.[5] The Article stipulates that once powers have been transferred to the occupier, the latter must take every measure in his power to restore and ensure public order and safety as much as possible, while respecting the laws in force in the country.

May the military commander instruct Palestinians be held inside Israel in the name of ensuring public order and safety in the West Bank? The answer is no, in view of the explicit ban in the Geneva Convention. The military commander is bound by international humanitarian law in every action he takes, including the orders he issues. This law prohibits, inter alia, the forcible transfer and deportation of population outside the occupied territory. One cannot use the Hague Regulations to allow what the Geneva Conventions prohibit, as this distorts the purpose of international humanitarian law, namely protecting civilian populations which are at the mercy of occupying powers and are vulnerable to arbitrary and disproportionate harm to their rights. Additionally, it is commonly held that with respect to the relationship between the Hague Regulations and the Geneva Convention, the Convention constitutes lex specialis and it sets the limits for the general authority of the military commander.[6]

And what is the law when the domestic laws of an occupied territory, the fruit of Jordanian and Mandate rules, allow such security measures? Seemingly, one might claim that the military commander is merely implementing the laws passed during a previous regime and following the provision of Article 43 of the Hague Regulations to respect the laws in force in the occupied territory, unless he is absolutely prevented from doing so. Like the statements above, the answer is that one cannot uphold international law in a selective manner, namely follow the Hague Regulations by violating the Geneva Conventions. A situation of conflict between the domestic law which was in force on the eve of the occupation and the Geneva Convention is exactly the situation in which the military commander is unable to uphold the former as is. The duty is not just to refrain from applying said law, but there is a positive duty to change or revoke it in a manner corresponding to the duties and prohibitions imposed by the Convention.[7]

The judgment does not delve into this issue and focuses mainly on practical and logistical considerations which justify, according to the Supreme Court, holding detainees in Israel. In this context, the court stresses the high quality of the holding conditions provided in the facilities inside Israel. These reasons are of no assistance: First, the petitioners argued that holding detainees in Israel makes family visits difficult, encumbers the procurement of legal assistance and infringes on the Palestinian detainees’ right to due process. Second, these reasons do not constitute a legal basis for holding detainees in Israel. The fact that Israel is respecting provisions from one section of the Geneva Convention does not make the violation of provisions of another section acceptable. As stated, humanitarian law cannot be selectively upheld. Third, it is unclear why appropriate holding conditions, such as those determined to be the minimum required under occupation, cannot be provided in the West Bank. Fourth, the Geneva Convention ban on the forcible transfer of protected persons to the territory of the occupying power is absolute, whatever the motive, and naturally includes practical reasons for holding detainees in Israel. The conclusion is that the military commander’s order which allows transferring Palestinians for arrest and incarceration inside Israel violates international law. Their holding in incarceration facilities in Israel is unlawful.

In order to complete the picture, it should be noted that, as an exception to the rule prohibiting forcible transfers to the territory of the occupying power, the Geneva Convention does allow to evacuate population from the occupied territory in circumstances where the safety of the population is under immediate threat, or for imperative military considerations. In this context, this relates to a situation where the incarceration facility must be urgently transferred to a different location due to an imminent danger of war, or, for example, massive bombings of the area. Even then, as a rule, the evacuation must be to a different location within the occupied territory and it remains temporary, until the danger subsides or the military operation ends.[8]

This exception does not apply to the situation addressed in the judgment. No argument was made that detainees and prisoners had been originally held in incarceration facilities in the West Bank and danger necessitated their temporary evacuation. It was only stated that Palestinians have always been held in Israel, ever since the military administration in the West Bank was instated. The state noted that military court hearings have been held in Israel since the first intifada, for over 20 years. Thus, the judgment seeks to provide a legal basis for Israel’s policy, but in fact, condones an ongoing violation of international law.


Adv. Alon Margalit
The author is a lawyer, formerly on staff at HaMoked: Center for the Defence of the Individual. He is currently a PhD candidate at the Institute of Advanced Legal Studies, University of London.


[1] 
The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949), Art. 49, first clause; see also Art. 66, whereby military courts must sit in the occupied territory and preferably also appeal courts; and Art. 76, whereby protected persons who are accused of offences must be detained in the occupied country and, if convicted, serve their sentence there. The ban on forcible transfer or deportation of protected civilians from the occupied territory is highly significant because under Protocol I of the Geneva Conventions and the Rome Statute of the International Criminal Court (to neither of which is Israel party), and probably also under customary humanitarian law, breaching this ban constitutes a war crime, for which the perpetrator may be held personally criminally responsible and may even be prosecuted in various countries under the powers of universal jurisdiction.
[2] 
Regulation 6 of the Emergency Regulations (Judea, Samaria and the Gaza Region – Adjudication of Offences and Legal Aid), 5727-1967; Amendment and Extension of the Emergency Regulations (Judea, Samaria and the Gaza Region – Adjudication of Offences and Legal Aid) Law, 5767-2007. The Regulations were enacted in 1967 and have since been periodically extended by Knesset legislation; they have the status of Israeli primary legislation.
[3] 
HCJ 393/82 Jam'iat Iscan Al-Ma’almoun v. IDF Commander in the Judea and Samaria Area (1983), judgment of December 28, 1983, para. 12 (and see commentary on this judgment); HCJ 1661/05 Gaza Coast Regional Council v. Knesset of Israel (2005), judgment of June 9, 2005 (in Hebrew), paras. 7-8 of the majority opinion.
[4] 
David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002), p. 40. It should also be noted that even with respect to the territory of an occupying country, the existence of a conflicting domestic law does not absolve the state of fulfilling its international commitments; see Art. 27 of the Vienna Convention on the Law of Treaties (1969).
[5] 
[6] 
See above note 4, p. 60; Marco Sassòli, “Legislation and Maintenance of Public Order and Civil Life by Occupying Powers”, EJIL (2005), Vol. 16, No. 4, p. 664.
[7] 
See above note 1, Art. 64; see also Y. Dinstein, The International Law of Belligerent Occupation (2009), pp. 113-115. The assumption is that the Hague Regulations and the Fourth Geneva Convention apply to the West Bank as customary law. This is the accepted position among the international community and international law experts; it has been endorsed, inter alia, by the UN Security Council, e.g., in its 1979 Resolution 446, and by the ICJ in its 2004 advisory opinion. The HCJ has consistently avoided ruling on this matter, accepting the state’s declaration that the military commander complies with the Convention’s “humanitarian instructions”, “as a matter of policy”; see, e.g., HCJ 7015/02 Ajuri v. IDF Commander in the West bank (2002), judgment of Sept. 3, 2002, para. 13.
[8] 
See above note 1, Art. 83; see also Oscar Uhler & Henri Coursier (eds.), Commentary on the Geneva Conventions of 12 August 1949. Volume IV. (ICRC, 1958), pp. 280-281.
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