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The Interpretation of the Geneva Convention by the Justices of the Supreme Court: HCJ 253/88 Sajdiya v. Minister of Defense (Judgment of November 8, 1988)
Court Watch | 253/88 | 1.4.2011 | Adv. Yossi Wolfson
Clashes in Nablus in beginning of the first intifada, February 1988. Photo: Patrick Robert, Corbis Sygma
Criticism
In the beginning of the first intifada, Israel conducted mass arrests in the Occupied Palestinian Territories (OPT). Many detainees were transferred to a special holding facility built far away in Ktzi'ot, in the Negev region, inside Israel.

In the Sajdiya judgment, the Supreme Court reviewed a number of issues relating to the prison camp. The court instructed the military to resolve the issue of severe overcrowding in the facility, cancel punitive practices of forcing inmates to stand in the corner of the enclosure, supply the inmates with newspapers in a timely fashion rather than after they had become obsolete, increase book supplies, make sure violence against inmates is prevented and other matters pertaining to holding conditions.

On most of the issues, the court cited the state’s account of existing conditions and took it at its word, stressing that it must ensure that this is indeed the state of affairs. The court criticized the delays in the hearing of appeals filed by administrative detainees against their detention orders and ruled that appeals must be heard within two to three weeks of submission. With respect to the allegation that the appeals are heard in a perfunctory manner, the court detailed the duties incumbent on military judges and the protocol by which they must conduct the hearing, as if these remarks were superfluous since “This is clear, well known and accepted by the military jurist judges and by all, and the above remarks serve only to stress and reiterate it”.[1]

One of the important rules established in the Sajdiya case relates to the very holding of Palestinians inside Israel. International law is quite clear on this subject. Article 49 of the Geneva Convention categorically prohibits the forcible transfer of protected persons – whether individuals or masses - from the occupied territory to the occupying country. Article 76 of the Geneva Convention includes a reference to individuals arrested on suspicion of breaking the security laws of the occupying power or convicted of breaking them. The Article stipulates that the arrest and detention of such individuals must take place only in the occupied territory. Article 78 of the Geneva Convention establishes the maximum security measures an occupying power may use against civilians. The occupying power may, “at the most, subject them to assigned residence or to internment” (emphasis added). The words “at the most” indicate that exiling them from the occupied territory is prohibited. The strict prohibition on transferring inmates from the occupied territory to the territory of the occupying power is also anchored in the official interpretation of the Convention, authored by the scholar Pictet and published by the International Committee of the Red Cross.[2]

Then Supreme Court President Meir Shamgar chose not to interpret international law literally. He interprets the prohibition on “individual or mass” deportations in Article 49 as a prohibition only on mass deportations to work and death camps, as the Nazis had done.[3] He dismisses the provisions of Article 76 of the Geneva Convention as irrelevant since they do not refer to administrative detainees, and the petitioners in the Sajdiya case were administrative detainees. As for Pictet’s interpretation, he simply rules that he does not accept it on this issue.[4] Then Deputy President Menachem Elon seconds this approach.

Then Justice Gabriel Bach, who also presided, accepts in a dissenting opinion the clear and simple interpretation of international law. However, he avoids taking the position that the state must comply with it, since he considers the relevant Geneva Convention provisions to be merely treaty provisions. This interpretation of international law, whereby Article 49 prohibits the deportation of protected persons outside the occupied territory was later adopted as binding precedent by the nine Supreme Court justices who presided in the ‘Ajuri case.[5] In that case, the court approved the forcible transfer of Palestinians from the West Bank to the Gaza Strip only after it determined that this was a single occupied territory. As such, the transfer constituted “assigned residence”, permissible inside the occupied territory, rather than deportation, which is prohibited. The court even cited – this time concurring – Pictet’s interpretation, which had been unacceptable to Shamgar at the time:

It is accepted by all that Article 78 of the Fourth Geneva Convention allows assigned residence, provided that the new place of residence is in the territory subject to belligerent occupation that contains the place of residence from which the person was removed. The provisions of Article 78 of the Fourth Geneva Convention do not apply, therefore, to the transfer of protected persons outside the territory held under belligerent occupation. Thus was construed by J.S. Pictet in his commentary to the provisions of Article 78 of the Fourth Geneva Convention:

“[T]he protected persons concerned… can therefore only be interned, or placed in assigned residence, within the frontiers of the occupied country itself”…[6]

In Sajdiya, the justices disagreed on the interpretation of international law, but not on the result. As far as they were concerned, whether or not international law prohibits transferring inmates from the occupied territory to the occupying country is irrelevant in view of an express provision in Israeli law which allows the transfer.

This provision is concealed in an Israeli statute which is worthy of close attention: it appears in Article 6 of the schedule to the Law Extending the Emergency Regulations (Judea and Samaria and the Gaza Region – Adjudication of Offenses and Legal Aid) 5727-1967. The seemingly technical title of the law hides its significance. Its long title and often cumbersome provisions that seem to have been written in code, make this law difficult to quote and understand. Yet, many of the provisions that effectively annex the OPT to Israel are included in this law. It is the law that applies Israeli criminal law to settlers in the OPT; it is the law that allows settlers who live outside Israel to receive national insurance pensions which are given only to Israelis; and, most important for our matter, it is the law that allows transporting detainees – both Israeli and Palestinian – between Israel and the OPT without an extradition process. It is also the law that allows holding Palestinian inmates inside Israel pursuant to incarceration orders issued under the military law of the OPT, without an internal Israeli legal basis for the incarceration.[7]

The court centers its ruling on this law and the rule whereby an express domestic statutory provision overides the rules of international law. It may be that this perspective offers a defense for Israeli incarceration authorities (from the point of view of Israeli domestic law). But this perspective is insufficient for defending the decision of the military commanders in the OPT to transfer the inmates into Israel. Surely the military commander’s entire authority originates from international law. His authority to imprison protected civilians – whether for breaking security legislation or in administrative detention – would not have existed without international law. The legal source for these measures and proceedings is none other than the Fourth Geneva Convention. And as the court did well to rule in the ‘Ajuri case, it cuts both ways. The competence to hold individuals in prisons cannot be adopted only in part, leaving out the restrictions such as the requirement to hold them inside the occupied territory itself. It is no coincidence that the court focused on Israeli legislation which allows receiving the inmates in facilities in Israel rather than on the parallel orders allowing to transfer the inmates from the OPT to Israel, which were issued by the military administration. Inasmuch as these orders exceed the powers granted to the occupying power under the Geneva Convention, indeed, they were issued without authority and are invalid.

The court’s decision in Sajdiya does not pass muster. As demonstrated, it has already been overturned by an extended bench of the Israeli Supreme Court itself in the ‘Ajuri case. This, however, has not gotten in Israel’s way of holding most Palestinian inmates in its own territory, nor has it held the court back from recently sanctioning the holding of Palestinian inmates in Israel yet again. In an apologetic judgment delivered in March 2010, the Supreme Court refrained from making a decisive ruling on the correct interpretation of the Geneva Convention provisions or on their status.[8] It again utilized the doctrine that express Israeli statue trumps international law and the same Section 6 of the Law Extending the Emergency Regulations (Judea and Samaria and the Gaza Region – Adjudication of Offenses and Legal Aid) 5727-1967. The court once again reviewed the Israeli statute allowing for inmates to be received in Israel, rather than the military legislating allowing for their removal from the OPT. The court gives weight to that fact that this practice has been in use for many years and that transferring the inmates to the OPT would require building new prisons in the OPT, expropriating land for this purpose and compromising holding conditions during the building. In order to sugar-coat the pill, the court attempts to demonstrate that in the circumstances of time and place, the inmates’ substantive rights are upheld, despite the (possible) violation of the prohibition to transfer them to Israel. The transfer across the border per se, is not considered a violation of a substantive right.

How will this ruling be remembered? Perhaps as an example of Israeli disregard for international law; perhaps as a symbol of the inconsistency of the court, which managed to erase the shame of past rulings in the ‘Ajuri case only to reaffirm them a few years later. Perhaps this judgment will be remembered as one of the stepping stones on the road to obfuscating the Green Line and effectively establishing one (undemocratic) state between the Jordan River and the Mediterranean Sea.


Adv. Yossi Wolfson
The author is an attorney and an activist for human and other animals’ rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.


[1] 
HCJ 253/88 Sajdiya v. Minister of Defense (1988), judgment of November 8, 1988, para. 12 of the opinion of President Shamgar.
[2] 
See the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949); Jean S. Pictet (ed.), Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (ICRC, 1958), on Article 78.
[3] 
See above note 1, para. 5 of the opinion of President Shamgar; Shamgar refers to HCJ 785/87 ‘Afo v. IDF Commander in the West Bank (1988), judgment of April 10, 1988.
[4] 
See above note 1, para. 5 of the opinion of President Shamgar.
[5] 
HCJ 7015/02 ‘Ajuri v. IDF Commander in the West Bank (2002), judgment of September 3, 2002.
[6] 
Ibid., para. 20 of the judgment; inner quotation from Pictet, see above note 2.
[7] 
Law Extending the Emergency Regulations (Judea and Samaria and the Gaza Region – Adjudication of Offenses and Legal Aid) 5727-1967, Regulations 2, 4, 6, 6(a) and 6(b).
[8] 
HCJ 2690/09 Yesh Din v. IDF Commander in the West Bank (2010), judgment of March 28, 2010; and see two commentaries on this judgment: “The Operation of Military Courts inside Israel” and “Incarceration of Palestinians from the West Bank inside Israel – the Powers of the Military Commander”.
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