Deportation and Forcible Transfers under International Law

Deportation and Forcible Transfers under International Law

Basheer AlZoughbi

Deportation, refugees, internally displaced persons and forcible transfers are all key, legal, international terms that the majority of the Palestinian people have been subjected to over time that is to say before, during, and after the establishment of Israel. Although Palestinian refugees have been caused to flee either directly and indirectly, or, been expelled from their homes, deportation policy especially targeted and still targets specific individuals and groups of Palestinians. It is true that deportation, refugees, internally displaced persons and forcible transfers are different in term of their respective legal definitions but the consequence, which leads to becoming a refugee or a deported person or a forcible transferred person or internally displaced persons, is similar in that all the victims becomes unwillingly present in their original hometowns. Israel has systematically followed policies that have resulted, and continue to result, in increasing the numbers of refugees, deported people, forcible transfers and internally displaced persons in stark violation of customary international humanitarian law and human rights law.

(i)     The Laws and Customs of War

The difference between deportation and forcible transfers is that the former aims at deporting protected persons to third countries while the latter aims to transfer protected persons from one area to another within an occupied territory e.g., forcible transfer of protected persons from the West Bank to the Gaza Strip or vice versa. Under customary international humanitarian law, forcible transfers and deportation of protected persons are grave breaches of the laws and customs of war and invokes individual criminal responsibility. Article 49 of the Fourth Geneva Convention provided that ‘Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.’[1] The Fourth Geneva Convention mentions unlawful deportation and transfer of protected persons as grave breaches under Article 147 of the said Convention. In addition, Additional Protocol I asserts that ‘deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention;’ is a grave breach of the Protocol.[2] The Commentary on the Fourth Geneva Convention provides that ‘It will suffice to mention that millions of human beings were torn from their homes, separated from their families and deported from their country, usually under inhumane conditions.’[3]  By its systematic usage of deportation and forcible transfers against Palestinians, Israel continued the policies that have been practiced during the Second World War.

The identities of the Palestinian deportees come from a plethora of backgrounds, including but not limited to, active leaders of such as presidents of professional associations, newspapers editors, mayors and council members of municipalities, students representatives, clergymen and lawyers.[4] Thus, the deportees largely consist of Palestinian people categorised predominately as intellectuals and professionals in their own respective fields. That being so, Israel is, and has been, afraid of individuals wielding influence. This is perceived as threats by Israel, as these individuals may be seriously intending to achieve peace, which Israel has shied away from and only pretended to engage with whilst advancing its relentless, colonisation of the Occupied Palestinian Territory. Israel is indeed frightened of influential individuals, intellectuals, academics. It is frightened of their substantive ideas as they oppose Israeli practices and stir both local and world public opinion in support of the Palestinian rights. Shlomo Gazit provided on deportation that ‘We employed deportation against those who were involved, or tried to be involved, in political activity. We did not want to deal with political activities in Court. That would embarrass us.’[5] Deportation became Israel’s best practice as it was considered to be convenient and less costly.

The exceptions for the prohibition of deportation and forcible transfers of protected persons are the evacuation of protected persons on grounds of security of the population or imperative military reasons. The second paragraph of Article 49 provides that ‘… the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand.’[6] Israel’s deportation and forcible transfer’s policies cannot be considered as an act of lawful evacuation because they could not be justified by imperative military reasons or the security of the civilian population whatsoever. The first paragraph of rule number 129 of the International Committee of the Red Cross (ICRC) study on customary international humanitarian law of 2005 provides that ‘Parties to an international armed conflict may not deport or forcibly transfer the civilian population of an occupied territory, in whole or in part, unless the security of the civilians involved or imperative military reasons so demand.’[7]

The Security Council and General Assembly condemned Israel’s policies of deportation and forcible transfers. For example, in its commentary on the deportation of the Mayor of Nablus City outside the Occupied Palestinian Territory , General Assembly issued resolution 34/29 which was adopted in 1977 unequivocally ‘Calls upon the Israeli authorities to rescind the deportation order …’[8] Security Council resolution 469 of 1980 ‘Calls again upon the Government of Israel, as occupying Power, to rescind the illegal measures taken by the Israeli military occupation authorities in expelling the mayors of Hebron…Halhoul…the Sharia Judge of Hebron, and to facilitate the immediate return of the expelled Palestinian leaders, so that they can resume their functions for which they were elected and appointed…’[9] Earlier the Security Council issued resolution number 468 calling for a facilitation of the return of the expelled elected mayors.[10] Some Palestinian Mayors have been subjected to violence inflicted by the Israeli settlers and it is obvious by now that there is another type of illegal policy of deportation directed against them.[11] Deporting Mayors means that Israel does neither respect nor favour any kind of Palestinian leadership in general but more specifically those who influentially oppose its policies. Security Council resolution 484 of 1980 called again for the need to allow the return of the deported mayors to their respective municipalities of Hebron and Halhoul. Security Council resolution 608 of 1988

Calls upon Israel to rescind the order to deport Palestinian civilians and to ensure the safe and immediate return to the occupied Palestinian territories of those already deported; Requests that Israel desist forthwith from deporting any other Palestinian civilians from the occupied territories;[12]

Not only did the aforementioned resolution call upon Israel to desist its deporting orders but also called for an immediate end of such policies. One can notice that Israel’s deportations were undertaken both on an individual and mass scale. The 17th of December 1992 witnessed a mass deportation of Palestinians from the occupied territories to Lebanon. On the following day, Security Council issued resolution 799 which condemned the mass deportations of those civilians. The deportees found themselves with little if any effective remedy and protection whether local or international in kind for enforcing their rights. United Nations Security Council Resolution 681 of December 20th 1990 ‘Deplores the decision by the Government of Israel, the occupying Power, to resume deportations of Palestinian civilians in the occupied territories;’ Furthermore, United Nations General Assembly Resolution 41/63 strongly condemned Israel’s practice and policy ‘Eviction, deportation, expulsion, displacement and transfer of Arab inhabitants of the occupied territories and denial of their right to return;’[13] Israel has issued deportation orders in 2010 against three Palestinian parliamentarians from the Palestinian Legislative Council (PLC) as well as a former Minister for Jerusalem.

The Palestinian deportees are in the main civilians who are not taking any part in the conduct of hostilities. Palestinians who are directly taking part in the conduct of hostilities against Israel are subject to trials in Israeli courts or extra-judicial killing or administrative detention while those deportees have usually no charges that can be brought against them, so cannot be submitted to court proceedings. If the Palestinian deported individuals are involved in any military acts rather than be deported they are detained in Israeli prisons.[14] However, most of the Gazan deportees between 1967 and 1971 were ‘guerillas who had just been arrested or were serving prison terms.’[15] Due to Israel’s failure to capture besieged Palestinian nationals whom took sanctuary in the Church of Nativity in 2002, a package deal has been concluded to transfer twenty-six Palestinians from the West Bank city of Bethlehem to Gaza Strip as well a further thirteen deported to European countries.

(ii)   Individual Criminal Responsibility vis a vis State Responsibility Law

The Charter of the International Military Tribunal (Nuremberg) identifies ‘deportation to slave labor or for any other purpose of civilian population of or in occupied territory’ as a war crime.[16] It further mentions that ‘deportation, and other inhumane acts committed against any civilian population, before or during the war;’ is a crime against humanity. Hence, deportation is not only a war crime but also a crime against humanity under international criminal law as it can happen in peace or war times. The Draft Code of Crimes against the Peace and Security of Mankind has already codified ‘arbitrary deportation or forcible transfer of population’ as a crime against humanity.  [17] The Rome Statute of the International Criminal Court (ICC) codifies the crimes of deportations and forcible transfers in its list of the most serious crimes as both a war crime and a crime against humanity. It specifically lists ‘Deportation or forcible transfer of population;’ as a crime against humanity and further lists ‘Unlawful deportation or transfer…’ as a war crime.[18]

The crimes of deportation and forcible transfers do not only invoke individual criminal responsibility but also state responsibility.  Article 29 of the Fourth Geneva Convention provides that ‘The Party to the conflict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred.’[19] The Commentary on the Fourth Geneva Convention prepared by the International Committee of the Red Cross in 1958 elucidates on Article 29 by stating that ‘…if the author of the act contrary to international law is an agent of the State, it is no longer his responsibility alone which is involved, but also that of the State, which must make good the damage and punish the offender.’[20] Hence, the agents of the Israeli state organs that ordered or executed the conducts of deportation and forcible transfers against Palestinian protected persons can be criminally responsible. The Commentary on the Fourth Geneva Convention further provided that ‘The term “agent” must be understood as embracing everyone who is in the service of a Contracting Party, no matter in what way or in what capacity. It included civil servants, judges, members of the armed forces, members of para-military police organizations…’[21]

(iii) International Human Rights Law

One can deduce that deportation and forcible transfers are to a greater extent politically and ideologically motivated. Deportations of Palestinian nationals prevent them from exercising the right of freedom of expression which prior to being deported people were exercising to actualise their refusal to accept the Israeli colonial occupation, and to articulate their earnest emphasis of the right to self-determination. Israel’s practice of deportation also breaches the exercise of the right to privacy, the right to leave and re-enter their place of residence on a voluntarily basis. Article 12 of the Universal Declaration of Human Rights (UDHR) stated that ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.’[22] Article 17 of the International Covenant on Civil and Political Rights (ICCPR) has also emphasized on the right to be freed from arbitrary or unlawful interference with one’s privacy, family and home. Forbidding the deportees or the forcibly transferred persons from coming back to their hometowns is also considered an infraction of customary international human rights law.  Article 13 of the UDHR provides that ‘Everyone has the right to leave any country, including his own, and to return to country.’[23] Article 12 of the ICCPR provides that ‘No one shall be arbitrarily deprived of the right to enter his own country.’[24] The deportees or forcibly transferred protected persons were forced to leave and are furthermore forcibly prevented from returning. This interlinked prevention attest to the violation of their human rights.

By its ongoing deportation and forcible transfers polices, the occupying power is in fact reminding us of the Second World War deportations and forcible transfers. Israel’s deportation and forcible transfers policies demonstrates grave breaches of the laws and customs of war, breaches of international human rights law, invokes individual criminal responsibility and state responsibility. The purpose and objective of deporting Palestinian individuals is to physically detach them from their occupied territory while forcible transfers of Palestinian people aims at depopulating them from selected areas in the occupied territory for several purposes e.g., establishing Israeli civilian colonies. Israel, the occupying power has been busy in forcibly transferring and deporting Palestinian protected persons and further transferring its civilian population into the Occupied Palestinian Territory.