lunes, julio 13, 2020

Affo and Another v. Commander Israel Defence Force in the West Bank (HC 785/87); Rafia and Another v. Commander Israel Defence Force in the Gaza Strip and Another (HC 845/87); Hindi v. Commander Israel Defence Force in the Judea and Samaria Region (HC 27/88)




The Supreme Court sitting as the High Court of Justice [April 10, 1988]

Before Shamgar P., Ben-Porat D.P., S. Levin J., Bach J. and Goldberg, J.

Editor’s synopsis –

The military commanders of the various occupied territories, acting pursuant to the Defence (Emergency) Regulations, 1945, ordered the deportation of the Petitioners from the territories, on the ground that they are involved in hostile activities against the State of Israel, such as to endanger the security of the state and the public peace. The Petitioners contend that the deportation orders violate Article 49 of the Fourth Hague Convention of 1949. Sitting in a panel of five Justices, the court denied the petitions, holding:

1. Article 49 of the Fourth Geneva Convention must be interpreted against the background of the outrages perpetrated by the Nazis against civilian populations during World War II, the recurrence of which it was intended to prevent. Article 49 protects civilian populations from arbitrary conduct of the occupying power and from inhuman treatment. It does not apply to the deportation of individuals, under law, for legitimate reasons, such as protection of the public peace. A literal interpretation of the Convention so as to forbid deportation of protected individuals absolutely and in all circumstances, would yield unreasonable results. For example, an illegal infiltrator could not be expelled after he has completed service of his sentence for the infiltration. Nor could the authorities extradite a wanted person to another country in order to stand trial for crimes charged.

  1. Israeli law distinguishes between international customary law and international conventional law. International treaties that create new rights create such rights and obligations between states, but do not confer them upon individuals. Such treaties do not become part of the country’s municipal law in the absence of legislation to such effect by the Knesset. On the other hand, the customary international law is part of the country’s municipal law. Article 49 of the Fourth Geneva Convention is part of the international conventional law, not the customary law, and, therefore, is not part of Israeli municipal law.
  2. The evidence supports the Respondents’ findings that the Petitioners are engaged in hostile activities against the security of the state and the public peace.

Justice Bach joined in the court’s decision, dissenting, however, from that portion of the opinion which interpreted Article 49 of the Fourth Geneva Convention so as to limit its application to the arbitrary deportation of protected persons for inhuman ends. Agreeing that the Convention was prepared against the background of the Nazi horrors perpetrated against civilian populations, he thought, nonetheless, that the broad language of Article 49 creates an absolute prohibition against expelling a protected person from occupied territory. He agreed, however, that Article 49 of the Geneva Convention is not reflective of international customary law but is rather part of international conventional law and, therefore, it is not part of Israeli municipal law.

Israel cases referred to:

[1]  H.C. 606,610/78, Ayub et al. v. Minister of Defence 33P.D.(2)113.

[2]  H.C. 97/79, Abu Awad v. Military Commander of the Judea and Samaria Region


[3]  H.C. 698/80, Kawasma v. Minister of Defence 35P.D.(1)617.

[4]  H.C. 629/89, Mustafa v. Military Commander of the Judea and Samaria Region


[5]  H.C. 513,514/85, M.A.256/85, Nazal v. Military Commander of the Judea and Samaria Region 39P.D.(3)645.

[6]   C. A. 31/63, Feldberg v. Director for the Purposes of the Land Appreciation Tax Law,


[7]  H.C. 442/71, Lansky v. Minister of interior 26P.D.(2)337.

[8]   Cr. A. 94/65, Turjeman v. Attorney General 19P.D.(3)57.

[9]   C. A. 165/82, Kibbutz Hatzor v. Rehovot Assessment Officer 39P.D. (2)70.

[10]C.A. 282/73, Haifa Assessment Officer v. Arison 25P.D.(1)789.

[11]H.C. 47/83, Tour Aviv (Israel) Ltd. v. Chairman of the Restrictive Trade Practices Control Board 39P.D. (1)169.

[12]Cr. A. 174/54, Stampfer v. Attorney-General 10P.D.5.

[13]Cr. A. 336/51, Eichmann v. Attorney-General 16P.D.2033.

[14]C.A. 25,145,148/55, Custodian of Absentee Property v. Samara 10P.D.1825.

[15]Cr. A. 131/67, Kamiar v. State of Israel 22(P.D.)(2)85.

[16]H.C. 69,493/81, Abu Aita et al. v. Military Commander of the Judea and Samaria

Region et al. 37P.D.(2)197; S.J. vol. VII, p. 1.

[17]H.C. 393/82, J’mait Askan … Cooperative Society Registered with the Judea and Samaria Region Command Headquarters v. Military Commander of the Judea and Samaria Region 37P.D. (4)785.

[18]H.C. 390/79, Diukat v. State of lsrael 34P.D.1.

[19]Motion 41/49, “Shimson”Ltd. v. Attorney General 4P.D.143.

[20]C.A. 65/67, Kurz v. Kirschen 21P.D.(2)20.

[21]H.C. 103/67, “American-European Bet-El Mission” v. Minister of Welfare 21P.D.(2)325.

[22]H.C. 102,150,593,690/82, 271/83, Tzemel v. Minister of Defence 37P.D.(3)365.

[23]H.C. 574/82, ElNawar v. Minister of Defence 39P.D.(3)449.

[24]C.A. 303/75, State of Israel v. Raphael 29P.D.(2)601.

[25]H.C. 609/82, Fantomb Overseas (1981) Ltd. v. Investments Center 38P.D.(1)757.

[26]C.A. 586,626/82, Insurance Corporation of ireland Ltd. v. State of Israel – Ministry of Communications; El-AI lsrael Airlines Ltd. v. Insurance Corporation of Ireland 41P.D. (2)309.

American case referred to:

[27]Ex parte Quirin 317 U.S.1(1942).

English cases referred to:

[28]    Reg. v. Governor of Brixton Prison. Ex parte Soblen [1963]2Q.B.243(C.A.).

[29]    Porter v. Freudenberg [1915]1K.B.857(C.A.).

[30]     West Rand Central Gold Mining Company v. Rex. [1905]2K.B.391.

[31]    The Cristina [1938]1 All E.R.719(H.L.).

[32]    Chung Chi Cheung v. The King [1939]A.C.160(P.C.).

International cases referred to:

[33]    Re Rizo and Others [1952]Int’l. L.R.478.

[34]    I.M.T. Judgment [1946] Cmd.6964.

L. Tzemel for Petitioner no. 1, H.C. 785/87; D. Kretzmer for Petitioner no. 2, H.C. 785,845/87; D. Nasser for Petitioner no. 1, H.C. 845/87; G. Bulus for Petitioner in H.C. 27/88;

D. Beinish, Deputy State Attorney, and N. Arad, Director of High Court Department, State Attorney’s Office, for Respondents.


SHAMGAR P.: 1. These three petitions, which we have heard together, concern deportation orders under Regulation 112 of the Defence (Emergency) Regulations, 1945, which were issued with respect to each of the Petitioners by the Commander of I.D.F. Forces in his region (with respect to the Petitioners in H.C. 785/87 and H.C. 27/88, the Commander of I.D.F. Forces in the Judea and Samaria Region; with respect to the Petitioner in H.C. 845/87, the Commander of I.D.F. Forces in the Gaza Strip).

The Association for Civil Rights in Israel joined the petitions in H.C. 785/87 and 845/87.

This court has issued an interim order staying the execution of the deportation orders.

The parties have agreed to argue these petitions as if an order nisi had been given in respect of each of them.

On 13 March 1988 we decided to dismiss the petitions and to set aside the orders issued in consequence thereof. The following are the reasons for the judgment.

  1. In these petitions general legal arguments were raised concerning the legality of a deportation order under public international law and under the law applying in the above- mentioned territories. Also, objections were raised regarding the substantive justification for issuing a deportation order in each of the cases upon which these petitions are based.

As for the order in which these submissions will be discussed, we shall first examine the general contentions which essentially negate the existence of a legal basis for the issue of a deportation order against a resident of the above-mentioned territories. For if the conclusion is that under the relevant law the issue of a deportation order is forbidden, then obviously there will be no need to examine whether a substantive justification exists for the issue of the specific order, through the application of this question to the factual data pertaining to each of the Petitioners. Therefore, we will now turn to the general contentions which are common to the three petitions.

  1. (a) The Petitioners raised, as a central reason for their petitions, the argument that Article 49 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (hereinafter: the Fourth Geneva Convention) forbids the deportation of any of the Petitioners from Judea, Samaria or the Gaza Strip, as the case may be. According to the argument, an absolute prohibition exists, with regard to a resident of one of the territories occupied by the I.D.F., against the application of Article 112 of the Defence (Emergency) Regulations, 1945 or of any other legal provision (if such exists) whose subject is deportation. This is due to the provisions of the above-mentioned international convention which, according to the contention, should be seen as a rule of public international law, binding upon the State of Israel and the Military Government bodies acting on its behalf and granting those injured the right of access to this court.

The legal premise underlying this argument has been raised time and again before this court and has been discussed either directly or partially and indirectly in a number of cases – see principally: H.C. 606,610/78 [1], 121; H.C. 97/79 [2], 309; H.C. 698/80 [3] H.C. 629/82 [4], at 161; H.C.513,514/85 and M.A. 256/85 [5]. In order to complete the legal picture, see also Professor Y. Dinstein’s article “The Rafiah Salient Judgment” 3 (1973)

Iyunei Mishpat, 934.

This court’s statement in H.C. 513,514/85 and M.A. 256/85 [5] mentioned above is apposite to the present matter, allowing for slight changes deriving from the material itself. It is said at pp. 649-650:

As a sort of general introduction to an analysis of the Petitioners’ arguments, it should be noted that the first argument mentioned above has been raised already – with slight variation – in a hearing before this court in H.C. 698/80 at p. 623 and was rejected. The repeated raising of this and other arguments regarding the legal validity of Regulation 112 and the force and nature of Article 49 of the Fourth Geneva Convention stems from the premise – founded in error – that this court has not already decided the issue whether it is possible to implement Regulation 112 in the Judea and Samaria Region, and that this court has not yet expressed itself on both the reasons based on the internal legislation of the Region and the those resting on rules of public international law. As was said, the proposition of the Petitioners ‘learned counsel, that these issues have not been resolved, is founded in error. This court has dealt with the above legal questions at length both in H.C. 97/79, and in H.C. 698/80 mentioned above, which completed the examination of a series of contentions that had not been raised or discussed in H.C. 97/79. The decision in H.C. 698/80 was in fact rendered by the majority opinions of Landau P. and Kahan J. as against the dissenting opinion of Cohn D.P. But this of course does not detract from its validity, nor does it nullify the status of the judgment as a substantive decision on the arguments. We shall follow in its path as long as no weighty material reasons are presented to us justifying a change in the law. That is the difficulty. The decisive majority of the submissions heard by us were nothing more than a quasi-repetition of what has already been argued before this court on the previous occasions mentioned above and which has already been dealt with explicitly and in detail. If we have listened patiently to a repetition of these long arguments, it is mainly because more than five years have passed since the authority to deport was last exercised, and we thought it proper to examine carefully whether in the meantime there has not been any legal development bearing on our case or any renewed argument affecting the matter before us, which would have, no doubt, far-reaching personal consequences for the Petitioners. To summarize, in the judgments of this court in H. C. 97/79 and H.C. 698/80 a clear position was taken on the validity of Regulation 112 in Judea and Samaria after the end of the Mandate, based on the later Jordanian legislation. All aspects of the issue were discussed and decided there.

(b) As was stated, the Petitioners’ submission rests first and foremost on the provisions of Article 49 of the Fourth Geneva Convention. The court’s attitude thereto was fully detailed in H.C. 97/79 [2] and in H.C. 698/80 [3], and has been already mentioned in H.C. 513,514/85 [5], the opinions expressed therein are acceptable to me on the issue before us and I see no reason to add to what has already been said by this court. As may be recalled, the statements of Landau P. in H.C. 698/80 [3] complement those of Sussman J. in H.C. 97/79 [2], so far as they concern certain legal aspects of the provisions of the 1952 Jordanian constitution, whereas the decision in H.C. 513,514/85 and M.A. 256/85 [5] touches on additional alternate objections, which were raised regarding the above- mentioned legal question.

Since there have been no developments of any possible bearing on the assessment of the legal situation, as expressed in various ways in the above-mentioned judgments, I would see no need to go back and deal with the varied reasons for the interpretation of Article 49 above, which have already been presented in the previously cited decisions, to which I subscribe. Nonetheless, I have read the remarks of my esteemed colleague, Bach J., and as he does not tend to follow the legal paths that were paved in H.C. 97/79 and H.C. 698/80, and as I disagree with his approach to this issue, I will present the gist of my view on this subject.

Afterwards I will also deal with the new argument raised by the Petitioners’ learned counsel regarding the assimilation into our law of some of the rules of conventional international law.

(c) My comments will relate to the following areas:

(1)                         The accepted approach to interpretation under internal Israeli law;

(2)                         Principles of interpretation applicable to international conventions;

(3)                         Interpretation of the above-mentioned Article 49.

(d) The accepted interpretation in our law. We accept that the interpretive rules applied in a given legal system are peculiar to that system and are not necessarily identical with those applied in another legal system. In the words of Justice Barak in Judicial Discretion (Papyrus, 1987), at pp. 339-340:

Every legal system has its doctrine of interpretation. The interpretive approach of English law (based in great measure on the language of the law, and where importance is attached to the purpose of the legislation, it can be discovered mainly from the language of the law), differs from that in American law (based on the purpose of the law, which may be learned also from sources outside the law itself)….Rules of interpretation are legal rules which are based on logic, but not solely on logic. Thus for instance, the answer to the question whether the purpose of the law is to be sought only through the language of the law, is not

an answer which can be given based solely on logic………………….. Deciding from

amongst the different possibilities is not a matter of logic, but of legal policy. At times this decision is made by the legislator himself, who determines the rules of interpretation that are to be followed. Generally legislators do not operate in this manner and entrust the formation of rules of interpretation to the judiciary.

The author also refers in this regard to W. Friedman, “Legal Philosophy and Judicial Lawmaking”, 61 Colum. L. Rev. (1961) 821.

The method of interpretation which our courts have applied for quite some time is that which attributes to the wording of the law the meaning which realizes its purpose; this is the interpretative method based on the legislative purpose which has recently received a thorough and penetrating examination in Justice Barak’s book cited above.

The formation of rules of interpretation is not effected in a vacuum; rather it is adapted, as stated, to the system of law in which and from which these rules stem. The application of the said rules, in any concrete case in which the court is asked to give content to an enactment warranting interpretation, is carried out, as is accepted here, by applying judicial discretion. Applying judicial discretion is necessary, mainly, where clarification of the wording of an enactment open to interpretation is required in the context of a decision regarding the weight to be given the words of the text, in determining the definition and scope of the legislative purpose. Justice Barak writes about this in his book (supra at pp. 341-342) :

Any doctrine of interpretation must assume as its starting point the doctrine of linguistics … however, and as we have seen, language is generally not unambiguous. It has multiple meanings, is unclear and consists of “open tissue”. At times, words are given an accepted and regular meaning, an almost primary meaning. But for the most part words also have a special and exceptional meaning, a secondary meaning as it were. The doctrine of interpretation must set standards by which one meaning is chosen over another. From the standpoint of language, one meaning does not have preference over another. Any meaning which is possible in a semantic sense is also permissible semantically. It would be a mistake to base a doctrine of legal interpretation on dictates, as it were, of linguistics.

These conclusions are drawn from this court’s consistent approach, which has been expressed in a series of judgments, of which those cited below are but a few.

Thus Cohn J. said in C.A. 31/63 [6], at 1235:

…the correct interpretation of a given provision in the law stems not only – though primarily – from the language of the provision, but also from the purpose of the law, from the flaw which it comes to correct, and from the circumstances surrounding it. (Emphasis added – M.S.) See also the comments of Agranat P: on the same subject in H.C. 442/71[7], at p. 349:

Each Law has its purpose, in the light of which the given phrase should be interpreted.


In other words, the same word can have different meanings in different laws.

Sussman J. (as his title then was) stated in Cr.A. 94/65 [8], at p. 80:

We have learned that the meanings of words are many, and they change from law to law and from issue to issue. We do not begin with the axiom that every word or text has but one fixed definition; rather when we deal with interpretation we address the question: What is the meaning of a given term in a law in the context in which it appears? Since we have thus phrased the question, it naturally follows that the judge interprets the words with the purpose of the legislation as his guiding light and only in this way can he faithfully serve the legislator. In a similar vein Judge Learned Hand said in Borella v. Borden Co. (1944):

* See also the remarks of Justice Holmes in Towne v. Eisner, 245 U.S. 418 (1918).

We can best reach the meaning here, as always, by recourse to the underlying purpose, and with that as a guide, by trying to project upon the specific occasion how we think persons, actuated by such a purpose, would have dealt with it, if it had been presented to them at the time. (Emphasis added M.S.)

In other words, language does not govern the purpose, rather it serves it. The law is an instrument for realizing legal policy, and therefore interpretation needs to aim toward emancipating the wording from its semantic bonds, were these to distance it from the legislative purpose which the words are intended to realize. Thus, for example, the legislative purpose may be reflected in the description of the legal situation which existed on the eve of the legislation being introduced (C.A. 165/82 [9], at 74).

The following remarks of Asher J. in C.A. 282/73 [10] at p. 793 express the same approach; he says:

The same word, which in every-day language, is defined in the this nuance is even apt to change from law to law, and from matter to matter within the same law. Therefore it is not sufficient as counsel for the appellant claims, to rely upon a clarification of the “regular” meaning of an expression; rather, the definition must be determined from a variety of factors, including the context in which the legislator used the expression, and the purpose behind the enactment being defined. (Emphasis added – M.S.)

The approach which attaches central importance, both to the legal substance of the issue as tested by the lancet of the interpreter, and to the purpose which the legal provision aims to serve, is not satisfied with the apparently clear and simple meaning of the language of the law. Barak J. commented on this in words appropriate to our subject in H.C. 47/83 [11]. He states at p. 176:

Every law, including that whose language is “clear”, requires interpretation. The law is “clear” only after the interpretation has clarified it. It is not clear without interpretation. Words by themselves are not “clear”. In fact there is no less clear a statement than that words are “clear”.

In a nutshell, what has been said until now may be summarized thus: We have referred to the guidelines used in establishing the relation between the literal meaning of the written word and the correct legal interpretation, as far as this applies to our legal system. Interpretation in this sector seeks, as was said, to pave the way to a revelation of the legislative purpose. Setting the purpose in this form is directed to the sources which one may turn to in order to ascertain the purpose. It is customary in this matter to examine more than the text and, inter alia , also the legislative history; the legal and substantive context, and the meanings stemming from the structure of the legislation (see ibid., at 175).

(e) Interpretation in Public International Law. Now the second question arises, i.e. what are the rules of interpretation relevant to our matter that are used in public international law?

Israel has not yet ratified the Vienna Convention of 23 May 1969 on the Law of Treaties, which came into force in 1980 for those who joined it (hereinafter: the Vienna Convention). As an aside, what is said in Article 4 of the above Convention regarding non- retroactivity, in any case fundamentally limits the provisions relative to the question before us. Nonetheless, there is value, even if only for the sake of comparison, in an examination of the provisions of the Convention regarding interpretation.

On the issue of interpretation, Articles 31 and 32 of the said Convention state : 31. General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes :

(a)                                                              any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b)                                                             any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

32. Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31:

(a)                                                            leaves the meaning ambiguous or obscure; or

(b)                                                                leads to a result which is manifestly absurd or unreasonable.

It seems that from the first part of Article 31(1) one could conclude that the Convention sought to support that school of interpretation which emphasizes the text, as opposed to the alternative school of interpretation, no less accepted, which focuses on the intentions of the draftsmen of the Convention (see I. Brownlie, Principles of Public International Law (Oxford, 3rd ed., 1979) 624). Yet, the second part of Article 31(1) and Article 32 form the bridge to the other theories of interpretation, also familiar to us from the earlier examination of our municipal law. That is, the provisions of the Convention leave ample space to enable examination of the purpose which led to its making. It is even possible to reflect upon the preparatory work describing the background to the making of the Convention, as material which can complement the plain understanding of the text, its purpose and scope of application.

The accepted view is, as was stated, that one of the contributions of the Vienna Convention in this context was expressed in the creation of a closeness and link between the two alternative theories of interpretation. In any event, an examination of the legislative purpose – which is one of the applicable methods of interpretation, unrelated to treaties – is among the recognized principles of interpretation. In the words of J. G. Starke (An Introduction to International Law (London, 8th ed., 1977) at p. 510):

The related rules concerning the intention of the parties proceed from the capital principle that it is to the intention of the parties at the time the instrument was concluded, and in particular the meaning attached by them to words and phrases at the time, that primary regard must be paid. Hence, it is legitimate to consider what was the ‘purpose’ or ‘plan’ of the parties in negotiating the treaty.

(Emphasis added – M.S.)

See also: Re Rizzo and Others (1952) [33] at p. 481.

Starke stresses the issue of the intention of the parties to the treaty at the time of its conclusion and refers in particular to the meaning of words and phrases, as intended at the time of the treaty’s conclusion.

The Vienna Convention did not purport to list comprehensively and describe all rules of interpretation, which, at times, suggest, in the words of Brownlie (supra, at 624), different and varying solutions which are, as he describes them, “general, question-begging and contradictory”.

Starke explains that in order to set out a method of interpretation (supra, at 511):

treaties should, it is held, be given an interpretation in which the reasonable meaning of words and phrases is preferred, and in which a consistent meaning is given to different portions of the instrument. In accordance with the principle of consistency, treaties should be interpreted in the light of existing international law. Also applying both reasonableness and consistency, since it is to be assumed that states entering into a treaty are as a rule unwilling to limit their sovereignty save in the most express terms, ambiguous provisions should be given a meaning which is the least restrictive upon a party’s sovereignty, or which casts the least onerous obligations… (Emphasis added – M. S.)

The aim, according to Starke, is to interpret restrictively any provision in a treaty which limits the authority of the states.

Furthermore, it is perfectly clear that any treatment of the subjects of international law, which earn such multifaceted and even contradictory interpretations, cannot be accomplished with the same exacting standards for which we strive in municipal law.

The caveat, by which one is to distinguish between the interpretive approach used in municipal law and that practised in public international law, was presented in an especially detailed and instructive way in the research of Professor Mustafa Kamil Yasseen on interpretation of treaties found in volume 151 of the writings of the Academie De Droit International (M. K. Yasseen, “L’Interpretation des Traites d’apres La Convention de Vienne Sur Le Droit des Traites”, 151 RecueilDes Cours, (1976) 1, 10). He writes:

7. La methode d’interpretation peu ne pas etre la meme, elle peut varier selon une serie de considerations; elle est commandee surtout par la conception qu’on a de l’interpretation, la nature de l’instrument a interpreter et les caracteristique de l’ordre juridique dont il s’agit.

8. Aussi, en ce concerne les traites la methode d’interpretation doit viser a exercer une fonction declarative et non creatrice, elle doit

prendre en consideration que le traite est une acte de volonte qu’il n’est pas un acte unilateral, que les parties au traites sont des Etats souverains qu’il ne s’agit ni d’une contrat entre individus, ni d’une, loi de droit interne. Enfin cette methode doit tenir compte des caracteristiques de l’ordre juridique international, ou, le formalisme n’est pas de rigueur, ou les Etats jouissent d’une grande liberte, ou ils sont aussi bien les auteurs, que les destinaires des traites, ou le choix des moyens pacifiques des reglements des differends depend en principe de la volonte des Etats. Il ne serait donc pas etonnant que la methode d’interpretation du traite differe de celle de la loi et de celle du contrat.

And freely translated: The method of interpretation cannot be uniform and identical and it may change in accordance with a series of factors. It is fundamentally dictated by the approach of the interpreter to interpretive methodology, by the substance of the instrument being interpreted, and by the characteristics of the particular field of law (i. e. public international law- M. S.) with which one is dealing. This and more, as far as treaties are concerned, a method of interpretation must see itself as a declarative act and not as a formative one (i.e. not judicial legislation – M.S.). The method must take into account that the treaty is an act stemming from the free will of the treaty-makers, and that it is not a one-sided act; that the parties to the treaty are sovereign states, and that it is not a contract between individuals, nor the internal law of the state. Lastly this method must keep in mind the characteristics of the international legal order, a field in which formalism does not have the upper hand, a field in which states enjoy a great deal of freedom of action, a field in which states are not only parties to a treaty, but also the ones to whom the treaty is directed (i.e. the states must be its executors – M.S.), and a field in which the preference for peaceful means to settle disputes depends upon the free will of states. Therefore, it is not surprising that the method of interpreting a treaty is different from that applicable to a law or a contract.

Professor Yasseen’s approach is not unique; in the essays of scholars in the field of international law, one can find more than one instance of a tendency to stress the cognitive image of the rules of public international law, and mixing the desirable with the

actual is not uncommon. Yet it is also possible to find a sober and realistic viewpoint, such as that of Professor Yasseen, running through the legal literature. In this context O’Connell states in International Law (London, vol.1, 1965) XII:

The legal practitioner who is unaware of the theoretical structure of the subject is likely to be misled into supposing that the rules of international law are more concrete and more absolute than they really are.

As a footnote to these remarks, one can cite an obvious example of the diverse and non-uniform application of those rules of international law that should theoretically apply in an identical manner in identical situations: The victorious Allies in World War II, at the time justifiably viewed the Annex to the 1907 Hague Convention Respecting the Laws and Customs of War on Land (hereinafter: the Hague Regulations) as binding customary international law (see IMT Judgement (Nuremberg, 1946) Cmd. 6964 at 65). At the same time they saw themselves free of the obligation to act in accordance with those same Regulations following the occupation of Germany. They based themselves on the Debellatio (subjugation) claim (see G. Schwarzenberger, International Law (London, vol. 2,1968) 167, 467; L. Oppenheim, International Law (London, 7th ed. by H. Lauterpacht, vol. 2, 1952) 603). I see of course no reason to take a stand here regarding these approaches to the application of the Hague Regulations. I mentioned the interpretation which adapts itself to changing circumstances only as a supplement to the above- mentioned theories of Starke. To broaden the picture on the diverse application of these norms, I will add that the German jurists tended not to accept the above legal interpretation of the Allies on the effect of the subjugation in 1945 on the application of the Hague Regulations. Yet it has become evident that during the Allies’ military rule of the Rhineland (1920-30), it was the German jurists of that generation who in their essays held that the Hague Regulations were not applicable to the Allied military rule of the said territory (see Fraenkel, Military Occupation and the Rule of Law (London, 1944) 188,189).

(f) The treatment of the questions of interpretation in our internal law and in public international law may be summarized by mentioning the conclusion, that not for naught has the subject before us been examined in H.C. 97/79 [2] in the light also of its legislative purpose. This approach was necessitated by the method of interpretation customary in our legal system and by the doctrines of interpretation customary in public international law. As was already mentioned, the two systems do not maintain the exclusiveness of the literal method of interpretation, nor even a preference for it. Moreover, when for the purpose of the issue before us we adopt the interpretive approach as expressed in the specific area of law here discussed, namely public international law, we should recall Professor Yasseen’s interpretive guidelines and the remarks of Starke mentioned above, from which emerges, inter alia, a stand rejecting the constriction of state authority and rejecting formalism, or an approach which ignores the special qualities of the field of law that we are discussing.

We shall now proceed to the application of the rules of interpretation to the issue before us.

(g) Article 49 of the Fourth Geneva Convention. What is the dispute regarding the interpretation of the above-mentioned Article 49.

The relevant portions of the Article state:

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.

Nevertheless, 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………………

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

In H.C. 97/79 [2] cited above, Sussman P. comments (at pp. 316-317) regarding the argument that the application of Regulation 112 of the Defence (Emergency) Regulations is contrary to Article 49 of the Fourth Geneva Convention:

Neither have I found any substance in the argument that the exercise of the above-mentioned Regulation 112 contradicts Article 49 of the Fourth Geneva Convention of August 1949 Relative to the Protection of Civilian Persons in Time of War. It is intended, as Dr. Pictet in his commentary on the Convention (p.10) writes, to protect civilians from arbitrary action by the occupying army, and its purpose is to prevent acts such as the atrocities perpetrated by the Germans in World War II, during which millions of civilians were deported from their homes for various reasons, generally to Germany to serve the enemy in forced labour, along with Jews and others who were deported to concentration camps for torture and extermination.

It is clear that the above-mentioned Convention does not detract from the obligation of the Occupying Power to preserve public order in the occupied territory, an obligation imposed by Article 43 of the 1907 Hague Convention, nor does it detract from its right to employ the necessary means to ensure its own security; see Pictet, Humanitarian Law and the Protection of War Victims, at p. 115…

It has nothing whatsoever in common with the deportations for forced labour, torture and extermination that were carried out in World War II. Moreover, the intention of the Respondent is to place the Petitioner outside the country and not to transfer him to the country, to remove him because of the danger that he poses to public welfare and not to draw him nearer for the purpose of exploiting his manpower and deriving benefit from him for the State of Israel.

Landau P. again referred to this subject in H.C. 698/80 [3] mentioned above (at pp. 626-628). The following are the relevant passages: In H.C. 97/79 at p. 316, Sussman P. explained the background to the enactment of Article 49: to prohibit the acts of arbitrary deportation, based on the experience of the atrocities in the mass deportation of Jews to labour camps and death camps during the Holocaust of European

Jewry. It goes without saying that there is no similarity between these atrocities and the deportation of people who endanger security in an occupied territory. Article 49 does not detract from the obligation of an Occupying Power to preserve public order in the occupied territory, as required by Article 43 of the 1907 Hague Convention, nor does it detract from its right to take necessary measures to preserve its own security (ibid., at 316).

With the dismissal of the submission founded on Article 49 of the Fourth Geneva Convention in H.C. 97/79 , the Petitioners herein were not granted an order nisi on those grounds during the first stage in their matter in H.C. 320/80. This time Ms. Langer has more forcefully repeated that same argument. In her opinion, the court in H.C. 97/79 ignored the difference between the first and second paragraphs of said Article 49: Whereas the prohibition against evacuating civilian populations generally carried out by displacement within the occupied territory is permitted for purposes of the population’s security or for imperative military reasons, as is stated in the second paragraph of the Article, the prohibition against deportation beyond the border is absolute, “regardless of their motive” as is stated in the latter part of the Article. The book The Geneva Convention of 12 August 1949, Commentary (Geneva, ed. by J.S. Pictet, vol. IV, 1958) 279 is cited. Regarding the prohibition against deportations, it states:

The prohibition is absolute and allows of no exceptions, apart from

those stipulated in paragraph 2.

Further, in the commentaries on Article 78 which deal with assigned residence and internment of persons endangering public security, it states (ibid., at 368):

As we are dealing with occupied territory, the protected persons

concerned will benefit by the provisions of Article 49 and cannot

be deported; they can therefore only be interned, or placed in assigned residence, within the frontiers of the occupied country itself.

It has been argued before us that one must distinguish between the reason for the prohibitions in Article 49 of the Convention, which was, as was said, founded in the memory of those atrocities, and between that which stems from the unambiguous wording of the prohibition in the first paragraph of the Article, which applies, according to its language, not only to mass deportation, but also to deportation of individuals. As opposed to this, one can say that the deportation of individuals was also carried out occasionally under the Hitler regime for the realization of the same policy which led to mass deportation, and therefore none of the provisions of Article 49 are in any way applicable to the deportation of persons who endanger public welfare – as this court has ruled in H.C. 97/79. In the words of J. Stone in his lecture entitled “No Peace No Law in the Middle East” (Sydney, 1969), at p. 17:

…It seems reasonable to limit the sweeping literal words of Article 49 to situations at least remotely similar to those contemplated by the draftsman, namely the Nazi World War II practices of large- scale transfers of populations, whether by mass transfer or transfer of many individuals, to more hostile or dangerous environments, for torture, extermination or slave labour.

But whatever the correct interpretation of the first paragraph of Article 49 of the Convention may be, the Convention, as Article 49 in its entirety, does not in any case form a part of customary international law. Therefore, the deportation orders which were issued do not violate internal Israeli law, nor the law of the Judea and Samaria Region, under which this court adjudicates… Ms. Langer recalled to us a passage from G. Schwarzenberger’s book, International Law as Applied by


International Courts and Tribunals (London, vol. II, 1968) 165-166, which was cited in the above-mentioned H.C. 606,610/78, at p. 121. The learned writer expresses the belief that the prohibition against the deportation of residents of an occupied territory is but “an attempt to clarify existing rules of international customary law”. I assume that here too, the reference is to arbitrary deportations of population, akin to the Hitler regime. If the author was also referring to deportation of individuals in order to preserve the security of the occupied territory, then that is the opinion of an individual author, stated in vague terms with no substantiation whatsoever.

After a detailed analysis of the Petitioners’ arguments, Landau P. decided, as quoted above, to accept the more far reaching argument of the State regarding the applicability to our legal system of Article 49, which falls within the realm of conventional law, and therefore saw no need for additional comments on the content of the Article.

At the time no basis was given for the argument that Article 49 expresses a customary rule of international law; and given the material presented to us, the armed conflicts that have occurred since 1949 (India-Pakistan, Cyprus and others) have not brought about legal decisions that would shed a different light on the issue. In any case if there are any, they were not brought to our attention by the parties. We will return to the commentary of Dr. J. Pictet on the reason for the inclusion of Article 49 in the Convention; but regarding his interpretation of the scope of the applicability of the Article, I will already note that it has not been explained why we are to prefer the remarks of Dr. Pictet over, for example, those of Prof. J. Stone.

The background which the draftsmen of the Convention had in mind is clearly reflected in the deliberations of the Geneva Conference. The relevance of the background is twofold: It describes the flaw which the Convention seeks to rectify (H. Lauterpacht, “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties” 26 Brit. Y.B. Int’l L. (1949) 48, 53 and compare with C.A. 31/63 [6] above); and the purpose that the draftsmen had in mind (O’Connell, supra, at 271; Cr. A. 94/65 [8] cited above and the remarks of Learned Hand J. as there quoted, at 80). It even sheds light on the legal situation for which they strove (C.A. 165/82 [9]). This is also the reason that compelled Landau P. in H.C. 513,514/85 and M.A. 256/85 [5] cited above, to turn to the question of whether the prohibition against deportation is within the realm of law rooted in custom or a conventional innovation.

(h) What were the considerations guiding the draftsmen of the Convention? An

examination of Actes de la Conference Diplomatique de Geneve de 1949 (Berne, tome 2) 648, 649, 743, 744, 810, 811, shows unequivocally that in using the term “deportations”, the participants in the deliberations referred to deportations such as those carried out during World War II. Thus it is stated for example at p. 810:

Bien qu’on se soit prononce a l’unanimite pour condamner les deportations comme celles qui eurent lieu pendant la derniere guerre, la phrase qui se trouve au debut de l’article 45 [In the draft the current Article 49 bore the number 45 – M.S.] a suscite quelques difficultes, car il etait peu aise de concilier les idees exprimees dans des termes divers, en francais, en anglais et en russe. Finalement, le Comite a decide d’adopter un texte qui interdit les transferts individuels ou collectifs obligatoires ainsi que les deportations de personnes protegees, d’un territoire occupe dans un autre pays, mais qui autorise les transferts volontaires. (Emphasis added – M.S.)

The Convention draftsmen referred to deportations such as those that took place during the last war and in the framework of the deliberations sought a text that would reflect the ideas that were expressed in different ways and in different languages.

So did Pictet in his article “Convention de Geneve – Protection de Civil” 76 Recuiel des Cours (1950) 1, 96. He pointed to the accomplishments of the Convention in contrast with the situation that prevailed before it, cited the futile attempts of the International Committee of the Red Cross in 1921 to prohibit the execution of hostages and deportations, and described the suffering of the civilian population during World War II:

Des centaines de milliers d’entre eux ser virent exposes aux deportations aux prises d’otages, a l’internment dans les camp de concentration, au pires services et a la mort.

In translation: Hundreds of thousands of them were exposed to deportations, to the taking of hostages, to internment in concentration camps, to the most severe brutality and to death.

Article 49, which prohibited deportations was connected therefore with such provisions. As Pictet describes at pp. 109-110:

Quand an songe aux millions de personnes transferees de force au cours de dernier conflit et a leurs souffrances physique et morales on ne peut que saluer avec reconnaissance un texte mettant fin a ces pratique inhumaines.

In his words: When one thinks about the millions of people who were forcibly transferred from place to place during the last conflict [i.e. World War II – M.S.], and about their suffering, both physical and moral, one cannot but thankfully bless the text [of the Convention – M.S.] which put an end to these inhuman practices.

Here then deportations, concentration camps and the taking of hostages were linked together and the word “deportations” was used in the context described above.

Incidentally, parallel to this, Article 34 of the Convention prohibits the taking of hostages, something which Pictet calls “an innovation in international law” (“constitue une innovation dans le droit internationale”).

One is not speaking in this regard, not even by inference, about the removal from the territory of a terrorist, infiltrator or enemy agent, but rather about the protection of the entire civilian population as such from deportation, since the civilian population has more and more frequently become a direct victim of war, despite its civilian character and despite its lack of involvement in active fighting.

M. H. Coursier (“Droit Humanitaire: Protection des Personnes Civiles en Temps”, 99 Recueil Des Cours (1960) 397, 399) cited the mass attacks against civilians in the context of the situation preceding the development of humanitarian law, when unless expressly prohibited, everything was permitted. He mentions in this context the words of Grotius, according to which:

Le massacre des femmes et des enfants est compris dans le droit de la guerre.

(Translation as found in Pradier-Fodere, III ch. 419.) Namely: The massacre of women and children was permissible under the laws of war at the time.

He saw the Convention as a necessity stemming from the numerical increase in civilian victims. In World War I half a million civilians were killed as opposed to nine million soldiers. In World War II a kind of numerical parity was created as 24 million civilians and 26 million soldiers were killed. Coursier mentions the deportations in the context of forced labour, but makes no reference to the broad interpretation which would also apply the deportation prohibition to terrorists or enemy agents, whose deportation is necessary to protect the civilian population, for which the military authority is responsible.

That is also the case in B.M. Jankovici’s book “Public International Law” (New York, 1984) 375, 376. In discussing the prohibition against deportation, he refers to the millions of people who were tortured and killed in the concentration camps.

Also F. F. Spangenberg in “Die Zwangsarbeit der Bevolkerung Kriegsbesetzter Gebiete und das Volkerrecht” (Kiel, 1961) (Forced Labour of the Population in an Occupied Territory and The Law of Nations) describes the forced transfers and deportations in the war in connection with Article 49 and points out that –

Die “Deportation” als solche ist somit erstmalig absolut verboten.

The reference is to the manner and form of deportation in World War II, about which he writes in his book.

This is also the meaning of the text found in Schlochauer, Worterbuch des Volkerrechts, De Gruyter (vol. 3, 1962) 560; see the entry entitled “Vertreibung” (Deportation).

R.I. Miller, The Law of War (Lexington) 88, creates the like link between the various tribulations that mankind underwent in World War II, which he details, and the prohibition in Article 49:

In World War II at least 5 million persons were deported from occupied territories to Germany as part of the Nazi program of slave labor, persecution and death. Although HR-1907 does not prohibit deportation per se, its articles with respect to the safety and order of the inhabitants and requisitioning of supplies and services lead to the conclusion that forcible deportation is beyond the legitimate activities of an occupying power. The International Military Tribunal and Nuremberg and the Military Tribunals under Control Council Order no. 10, pursuant to their charters that defined “deportation to slave labour or for any other

purpose” to be war crimes, held the Nazi deportations to be unlawful…………………

Nevertheless, forcible deportation alone was held in the Krupp Trial to be a violation of customary law, as well as deportation for an illegal purpose (for example, forced labour in the territory of the occupying power) and deportation that disregards recognized standards of decency and humanity.

Accordingly, GC-949 provides that “individual or mass forcible transfers” and deportations of protected persons from occupied territory to the territory of the occupying power, or any other country, are prohibited regardless of motive. The total or partial evacuation of a given area is permitted if the security of the population or imperative military reasons demand.

(The emphasis pointing to the causal link is added – M.S.)

On the developing trend in the laws of war to protect the civilian population as such and to try to distinguish effectively between it and the fighters, see also Prof. F. Kalshoven, The Law of Warfare (Leiden, 1973), 28.

W. O’Brien, The Conduct of Just and Limited War (New York, 1981) presents the subject in a similar context, that is, in connection with the harm caused to a civilian population by transferring it from its location and in connection with the exception regarding evacuation of civilians on security grounds or for imperative military reasons:

The last specific prohibition of the positive international law jus in bello to be considered, is that against forced displacement of civilians. With respect to international conflict, Article 49 of the 1949 Geneva Civilians Convention flatly prohibits massed forcible transfers or deportations of protected persons to the territory of the occupying power or to any other country, “regardless of their motive”. Article 49 then 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”. Conditions for such a transfer are to be limited to what is unavoidable.

It was also pointed out that the 1949 Geneva Convention was in this respect an improvement on and an extension of the agreement on the protection of civilians signed in Berne on 25 April 1918 between Germany and France, which also included provisions on deportation and forced labour (See Coursier, supra, at 397).

I would add that joining the subject of “evacuation”, as it appears in the second paragraph of Article 49, to the subject of “deportations”, where the matter of “evacuation” is given as an exception to the “deportation” prohibition and both are linked by the conjunction “nevertheless”, also affects the interpretation of the first paragraph of Article 49. In other words, tying the evacuation of a civilian population or portions thereof, which is permissible under certain circumstances, with deportation of the population, which is prohibited, teaches us also about the substance of the subject in the first paragraph. That is, inter alia, an example of an interpretation “based on the context”, to which the Vienna Convention refers.

The placing of the subjects of the mass evacuation of a civilian population as such and the prohibition against deportation, side by side, is also discussed in the works of P. la Pradelle, La Conference Diplomatique Et Les Nouvelles Conventions de Geneve Du 12 Aout 1949 (Paris, 1951) 66-67, 185 and E. Castren, The Present Law of War and Neutrality (Helsinki, 1984). See also J.A.C. Gutteridge, “The Geneva Conventions of 1949”, 26 Brit. Y. B. Int’lL. (1949) 294, 323 n. 3.

The conclusion from everything said above, is that the purpose which the draftsmen of the Convention had in mind was the protection of the civilian population, which had become a principal victim of modern-day wars, and the adoption of rules which would ensure that civilians would not serve as a target for arbitrary acts and inhuman exploitation. What concerned the draftsmen of the Convention were the mass deportations for purposes of extermination, mass population transfers for political or ethnic reasons or for forced labour. This concern is the “legislative purpose” and this is the material context.

It is reasonable to conclude that the reference to mass and individual deportations in the text of the Article was inserted in reaction also to the Nazi methods of operation used in World War II, in which mass transfers were conducted, sometimes on the basis of common ethnic identity, or by rounding up people in Ghettos, in streets or houses, at times on the basis of individual summonses through lists of names. Summons by name was done for the purpose of sending a person to death, to internment in a concentration camp, or for recruitment for slave labour in the factories of the occupier or in agriculture. Moreover, it seems that the summons to slave labour was always on an individual basis.

(i) The gist of the Petitioners’ argument is that the first paragraph prohibits any transfer of a person from the territory against his will.

The implications of this thesis are that Article 49 does not refer only to deportations, evacuations and transfers of civilian populations, as they were commonly defined in the period of the last war, but also to the removal of any person from the territory under any circumstances, whether after a legitimate judicial proceeding (e.g. an extradition request), or after proving that the residence was unlawful and without permission (see, for instance, Reg. v. Governor of Brixton Prison Ex parte Soblen (1963) [28], which uses the term deportation, and also Starke, supra, at 386), or for any other legal reason, based upon the internal law of the occupied territory.

According to the said argument, from the commencement of military rule over the territory there is a total freeze on the removal of persons, and whosoever is found in a territory under military rule cannot be removed for any reason whatsoever, as long as the military rule continues. In this matter there would be no difference between one dwelling lawfully or unlawfully in the territory, since Article 49 extends its protection to anyone termed a “protected person”, and this expression embraces, according to Article 4 of the Convention, all persons found in the territory, whether or not they are citizens or permanent residents thereof and even if they are there illegally as infiltrators (including armed infiltrators), as also follows from Pictet’s remarks (The Geneva Convention of 12 August 1949, Commentary, (Geneva, ed. by J.S. Pictet, vol. 4, 1958) 47).

The Petitioners’ submission rests essentially on one portion of the first paragraph of the Article, i.e. on the words “…transfers … deportations … regardless of their motive”. That is, according to this thesis, the reason or legal basis for the deportation is no longer relevant. Although the Petitioners would agree that the background to the wording of Article 49 is that described above, the Article must now be interpreted according to them in its literal and simple meaning, thus including any forced removal from the territory.

(j) I do not accept the thesis described for a number of reasons:

It is appropriate to present the implications of this argument in all its aspects. In this respect we should again detail what is liable to happen, according to the said argument, and what is the proper application of Article 49 in the personal sense and in the material sense.

Ratione personae is appropriate in reference to the term “protected person”, while ratione materiae relates to the following two foundations: “deportation” and “regardless of their motive”.

From the personal aspect, Article 49 refers-as was already mentioned, and as is universally accepted – to all those falling under the category of protected persons. This term is defined in Article 4 of the Convention, which in the relevant passage states:

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power

of which they are not nationals.

(Emphasis added – M.S.)

The definition employs a negative test, i.e. for our purposes, anyone who is not an Israeli national and is found in a territory occupied by our forces, is “ipso facto a protected person. This includes an infiltrator, spy and anyone who entered the territory in any illegal manner. This interpretation is presented by Pictet in Commentary, supra, at 47, who in reference to this matter states:

The Article refers both to people who were in the territory before the outbreak of war (or the beginning of the occupation) and to those who go or are taken there as a result of circumstances: travellers, tourists, people who have been shipwrecked and even, it may be, spies or saboteurs.

(Emphasis added – M.S.)

The acceptance of the argument that the prohibition in Article 49 applies, whatever the motive for its personal application, means that if someone arrives in the territory for a visit of a limited period, or as a result of being shipwrecked on the Gaza coast, or even as an infiltrator for the purpose of spying or sabotage (and even if he is not a resident or national of the territory, for that is not a requirement of Article 4), it is prohibited to deport him so long as the territory is under military rule. In other words, the literal, simple and all- inclusive definition of Article 49, when read together with Article 4, leads to the conclusion that the legality of a person’s presence in the territory is not relevant, for his physical presence in the territory is sufficient to provide him with absolute immunity from deportation. According to this view, it is prohibited to deport an armed infiltrator who has served his sentence.

In order to demonstrate the implications of the Petitioners’ thesis, let us presume a set of theoretical circumstances: In Ex parte Quirin [27], the U.S. Supreme Court heard the appeals of six Germans, former residents of the United States, who landed on the American coast during World War II in order to carry out acts of sabotage and spying. They were all sentenced to death in 1942.

The event took place in the territory of the United States; but had a similar incident occurred in an occupied territory (e.g. one of the islands held by the United States following World War II as occupied territory) after 1949, and it was decided not to execute the terrorists but to deport them back, whether in the framework of an exchange or in some other way, this would constitute, as it were, a serious violation of the Fourth Convention (Article 147). It is superfluous to add that the return of a deportee to his country of origin is not always done in accordance with his wishes, and the post-World War II examples of this abound. There is no need to go as far as the United States in order to bring examples of infiltration for sabotage purposes, and that example was intended only to illustrate the point. In any event from the thesis offered by the Petitioners, it would follow that an infiltrator for sabotage purposes could not be deported before or after serving his sentence. The same would be true, according to this approach, of a person who came for a visit over the open bridges, yet stayed beyond the expiration of his permit. The literal and simple interpretation leads to an illogical conclusion.

(k) From here we shall proceed to the essence of the concept “deportation”, used in the Article. It is my opinion that, in accordance with the applicable rules of interpretation, one should not view the content of Article 49 as anything but a reference to such arbitrary deportations of groups of nationals as were carried out during World War II for purposes of subjugation, extermination and for similarly cruel reasons.

If, on the other hand, one accepts the proposed interpretation of the Petitioners, according to which deportation means any physical removal from the territory, then the above would apply, for instance, to deportation for the purposes of extradition of the protected person, for this too requires removing a person from the territory. Laws, judicial decisions and legal literature use, in the context of extradition, the term deportation to refer to the stage of carrying out the extradition or the rendition. A murderer who escaped to the occupied territory would have a safe haven, which would preclude his transfer to the authorized jurisdiction. As we have already shown, in light of what is said in Article 4 of the Convention, no relevance is attached to the nationality or domicile of a protected person, and the mere presence in an occupied territory of one who is not a national of the occupying state is enough to qualify him as a protected person. (The subject of the applicability of conventions in a territory under military rule is discussed, inter alia, in T. Meron’s illustrative article, “Applicability of Multilateral Conventions to Occupied Territories” in Military Government in the Territories Administered by Israel 1967-1980 (Jerusalem, vol. 1 ed. M. Shamgar, 1982) at 217, 218 no. 8. The idea that a broad definition of Article 49 could prevent extradition is discussed in New Rules for Victims of Armed Conflicts by M. Bothe, K. J. Partsch, W. A. Solf (Hague, 1982) 693, in an examination of the Geneva Protocols of 1977.)

(l) Regarding the issue before us, the Petitioners have directed our attention to the remarks of Pictet in Commentary, supra, at 368, who adopts the literal interpretation, according to which all deportations are prohibited no matter what the reason. One should see this interpretive view, which would apply Article 49 to as broad a group of circumstances as possible, in its context and within its limits. The desire for a literal and simple meaning, which may find expression in scholarly opinions in professional literature, does not bind the courts. Not only are there other and contradictory viewpoints (see in this matter the remarks of Stone, which were quoted in Landau P.’s judgment in H.C. 698/80 [3]), but, more essentially, the court deals with the law as it exists and clarifies the meaning of a law or of a treaty, as the case may be, by adopting accepted rules of interpretation (see in this respect Lauterpacht, supra, at 80).

Were we to adopt the rules of interpretation used in our law[1], we could not accept the thesis proposed by the Petitioners. The Court would consider the flaw which the Convention was intended to correct (C.A. 31/63 [6] cited above); would examine the material context and the structure of Article 49, which in its other provisions refers clearly and openly to evacuations and transfers of population (Cr.A. 94/65 [8], C.A. 282/73 [10], and H.C. 47/83 [11]), would attempt to lift the veil from over the legislative purpose in order to adopt it as a standard of interpretation (C.A. 165/82 [9] cited above); and would be wary of and refrain from the adoption of a literal interpretation which is, so to speak, simple but in law and in fact so simplistic that it leads the language of the law or the Convention, as appropriate, to a range of applicability that confounds reason (Barak, in his above book, at p. 349), e.g. the absolute prohibition against the deportation of an infiltrator or spy, since deportations are prohibited, as it were, “regardless of their motive”.

Essentially, even reference to the rules of interpretation of international conventions does not help the Petitioners’ argument: For even the Vienna Convention does not submit to the literal interpretation, but rather sees the words of the convention “in their context and in the light of its object and purpose” (Article 31(1) of the Vienna Convention). The Convention permits us to examine the preparatory work and shies away from an interpretation whose outcome is “manifestly absurd or unreasonable”, and this description would apply at once to a prohibition against the deportation of an infiltrator (Lauterpacht, Brit. Y. B. Int’l L., supra, at 89).

Here it is appropriate to add that one may not adopt a broad interpretation conditionally, that is, an interpretation which invokes the broad application selectively on the basis of the results, and chooses between an outcome which is acceptable to the claimant and one which is not. Whoever accepts the literal and simple interpretation, according to which the term deportation includes any removal from the territory, and who sees the words “regardless of their motive” as a catch-all, forgoes thereby the possibility of selection, as this would lead to a contradiction; one who adopts an interpretation that

precludes discretion based on differentiating the motives, cannot then at his convenience accept only part of the prohibition and reject the rest.

Thus, one cannot remove the sting by saying that the language of Article 49 prohibits deportation, under Regulation 112 of the Defence (Emergency) Regulations, and which also based on the implementation of a valid municipal law, but allows, on the other hand, the deportation of infiltrators, spies and various enemy agents, or the extradition of criminals.

(m) Arising out of this answer to the Petitioners’ contention, is the opposite question, namely, what then is the alternate interpretation of the words “regardless of their motive”?

If we interpret the term “deportation” as referring to the mass and arbitrary deportations whore descriptions are familiar to us, then the words referring to the motive do not change the essence; the reference to some possible motive simply serves to preclude the raising of arguments and excuses linking the mass deportations to, as it were, legitimate motives. In other words, whatever the motive, the basic essence of the prohibited act (deportation), to which the words of Article 49 are directed, does not change. The opposite is true: there is ground for the claim that the reference to “some motive” is also among the lessons of World War II.

The words “regardless of their motive” were intended to encompass all deportations of populations and mass evacuations for the purposes of labour, medical experiments or extermination, which were founded during the war on a variety of arguments and motives, including some which were but trickery and deceit (such as relocation, necessary work, evacuation for security purposes etc…). Furthermore, the draftsmen of the Convention took into account the existing right of the military government to utilize manpower during wartime (see Regulation 52 of the 1907 Hague Regulations which deals with compulsory services, and Article 51 of the Fourth Geneva Convention which even today permits the subjection of protected persons to forced labor), but sought to clarify that mass deportation, as it had been carried out, is prohibited even when the

motive is seemingly legitimate, except in the event of evacuation in accordance with the qualifications set out in the second paragraph of Article 49.

It would be correct to read these words in the light of the remarks of Starke supra, at 510, according to whom one must refer to the “intention of the parties” and to the “meaning attached by them to words at the time”. In the light of these principles, one can attribute to the words a reasonable interpretation that accords with the other parts of the Article. It would not be superfluous to quote Starke again (at p. 511):

Treaties should, it is held, be given an interpretation in which the reasonable meaning of words and phrases is preferred, and in which a consistent meaning is given to different portions of the instrument. In accordance with the principle of consistency, treaties should be interpreted in the light of existing international law. Also applying both reasonableness and consistency, since it is to be assumed that states entering into a treaty are as a rule unwilling to limit their sovereignty save in the most express terms, ambiguous provisions should be given a meaning which is the least restrictive upon a party’s sovereignty, or which casts the least onerous obligations…

Moreover, even the above-mentioned guiding remarks of Professor Yasseen on the subject of interpretation, are incompatible with a literal, plain and expansive interpretation of the relevant paragraph.

To summarize, this court was competent to choose the interpretation resting upon the principles explained above, over the literal interpretation urged by the Petitioners. This court has done so in H.C. 97/79 [2], and I see no grounds for altering that conclusion, as its approach is acceptable to me. I also see no reasonable cause to deviate from the conclusion that served this court in H.C. 698/80 [3], and which treated the matter as conventional law.

Further on, I will address the supplementary argument raised by the Petitioners on this last issue.

4.(a) This court has indicated in its judgments that the above-mentioned Article 49 is within the realm of conventional international law. In consequence of this determination, the Petitioners have now raised a new thesis which holds that this court’s approach, which also forms the basis for the decisions in H.C. 97/ 79 [2] and H.C. 698/80 [3] is founded in error. This approach holds that the rules of conventional international law (as opposed to customary international law) do not automatically become part of Israeli law, unless they first undergo a legal adoption process by way of primary legislation.

This argument of the Petitioners does not directly relate to the interpretation of Article 49; but it does seek to attack that part of the reasoning in our previous decisions in which this court indicated that it saw no reason to delve into the question of the substantive interpretation of the above-mentioned Article 49, since the Article only reflects conventional international law, and as such, has not been assimilated into our country’s law.

(b) The Petitioners submit that not only does customary international law automatically become part of the municipal law (barring any contrary legislation), but that there are also parts of conventional international law which are automatically incorporated, without the need for adoption by way of legislation as a substantive part of Israeli municipal law. These are those parts of conventional international law which are within the realm of “law-making treaties”. In this argument the Petitioners based themselves on the statements of Lord McNair in two of his works (A.D. McNair, The Law of Treaties (Oxford, 1961) 89; A.D. McNair and A.D. Watts, The Legal Effects of War (Cambridge, 4th ed., 1966) 371); on a judgment of the Court of Appeals in the matter of Porter v. Freudenberg [29]; on statements in B. Rubin’s article, “The Incorporation of International Treaties into the Country’s Law by the Courts”, 13 Mishpatim (1983-4) 210 and on Professor A. Rubinstein’s article, “The Changing Status of the Territories…”, 11 IyuneiMishpat (1985-86) 439, 446 [see English version in 8 TeI- Aviv University Studies in Law (1988), 59]. They have also referred to portions of two articles which they believe lend support to the above-mentioned thesis: Professor H. Lauterpacht, “Is International Law A Part of the Law of England?” 25 Transactions of the

Grotius Society (1939) 51; Professor F.A. Mann, “The Enforcement of Treaties By English Courts”, 44 Transactions of the Grotius Society (1958-59) 29.

5. (a) My conclusions, in answer to these arguments, have a threefold thrust:

(1)                               The suggested thesis does not accord with the accepted legal approach in Israel.

(2)                              One discerns no reasonable ground for changing or deviating from the existing legal situation, which in the light of the existing constitutional structure, is also the desired legal situation.

(3)                              The legal situation in England, to which the Petitioners sought to refer us (whether, in the Petitioners’ words, as a binding prototype or for purposes of comparison and persuasion), is not unequivocal, and does not necessarily coincide – certainly not in everyone’s opinion – with the view that the Petitioners suggested we adopt. There is much literature pointing to a lack of clarity on this subject. Even in the above two articles (those of Professor Lauterpacht and Professor Mann), the scholars’ dispute on the subject is presented.

Let us examine the subject in the above order.

(b) The legal situation in Israel. Israeli law on the relationship between international law and internal law – that is in order to decide whether a given provision of public international law has become part of Israeli law – distinguishes between conventional law and customary law (Prof. Y. Dinstein, International Law and The State (Schocken and Tel- Aviv University, 1971) 143). Prof. Dinstein refers in this matter mainly to Cr.A. 174/54 [12]; Cr.A. 336/61 [13]; C.A. 25,145,148/55 [14], Cr.A. 131/67 [15].

The view that reflects the accepted opinion in this court’s decisions on the subject, was also presented in H.C. 69,493/81 [16], at p. 233 ff.; in the remarks of Barak J. in H.C. 393/82 [17], 793 and in the remarks of Witkon J. in H.C.390/ 79 [18], 29. See also: M. Shamgar, “Legal Concepts and Problems of the Israeli Military Government – The Initial

Stage”, Military Government in the Territories Administered By Israel 1967-1980, supra, at 13, 47, 64, 69 and the above-mentioned article of Professor Dinstein, at 937, the last paragraph.

According to the consistent judgments of this court, customary international law is part of the law of the land, subject to any contradictory provision in Israeli legislation.

In Cr.A. 174/54 [12], mentioned above, Cheshin J. with whom Witkon J. concurred, spoke about “the customs of international law [i.e. customary international law -M.S.], as part of the law of the land” (ibid., p 17). In Cr.A. 336/61 [13] – following Motion no. 41/49 [19] at 145-6, and the English cases in the matters of West Rand Gold Mining Co. v. Rex [30], at 406-7, and The Cristina [31] – the application of rules of international law accepted by the international community was recognized, and the rules were proved to be thus accepted. As Professor Dinstein has written in his above-mentioned book (at p. 146) regarding the meaning of what was said in that judgment:

The ruling is that rules of (customary) international law are automatically assimilated into Israeli law and become a part thereof; however, in cases of a frontal collision between such rules and the statutory law, the statutory law takes precedence.

Lord Alverstone expressed the same idea in the West Rand case mentioned above when he said that in order to be considered a part of English law, a rule of international law must:

…be proved by satisfactory evidence, which must shew either that the particular proposition put forward has been recognised or acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized State would repudiate it.

That is, in