Israeli Expulsion of Arafat would Violate Fourth Geneva Convention
Someone asked me my stance on the Israeli War Cabinet’s decision to expel Palestinian leader Yasser Arafat from Palestine. My own stance is not important; the question is international law.
Israel has been the occupying power in the West Bank and Gaza since 1967, and as such its actions are judged in international law by the provisions of the Fourth Geneva Convention and the Rome Statute of the International Criminal Court. All Palestinians under Israeli occupation are considered “protected persons” by the Geneva Convention. (Article 4: “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.”) If you have not read the Fourth Geneva Convention, you should, since it also applies to US actions in Iraq. See
Israel’s stance is that the Fourth Geneva Convention does not apply to its occupation of Gaza and the West Bank, because these territories were acquired in a “defensive war” and involved taking them from other countries (Egypt and Jordan) that had “illegally” occupied them. However, the convention itself makes it clear that it applies to all situations in which a subject population comes under the authority of a foreign occupier. It does not matter who started the war. That is a red herring. The US military considers itself always bound by the Convention, in Bosnia and elsewhere. It is not required that the occupying country be an aggressor. Read the text. The United Nations Security Council considers Israel bound by the Convention in the Occupied Territories. The UN did not award the West Bank and Gaza to Israel in 1948, and has never recognized any claims to annex them. The UN Charter, to which Israel is signatory, forbids the acquisition of territory through warfare, and so Israel cannot claim to own the West Bank and Gaza, though its occupation of them is not necessarily itself illegal. It is tragic that Israel, a country born in reaction against the ineffable atrocities of the Nazi regime, should reject the applicability of the Geneva Conventions, which were intended to ensure that the gross violations of human rights perpetrated by the Fascists were not repeated. This rejection is not consistent with the character of Judaism as an ethical religion, nor with Israel’s best side as a contributor to human progress.
Moreover, the legislative history of the Fourth Geneva Convention makes it absolutely clear that the drafters intended it to apply to situations where there were national liberation movements, not just to conventional warfare. Since the Sharon government has now begun simply firing missiles from US-made fighter jets into occupied apartment buildings in its bid to murder leaders of the Palestinian militant groups, knowingly killing civilians along with the guilty, a mere detail like defying the Geneva Conventions, of course, is a small matter for it. (Note that although I just said guilty, no judicial proceeding had ever found them so; that is why it is legitimate to speak of them having been murdered; that is the word we use for extra-judicial killing).
If such protected persons in an occupied territory commit a criminal act, they may be tried and punished, but they must be tried and jailed in the occupied territory, not moved elsewhere. Amnesty International noted of previous Israeli expulsions of Palestinians:
“The Fourth Geneva Convention, which: – defines “unlawful deportation or transfer or unlawful confinement of a protected person” as a grave breach of the Convention and therefore a war crime. (Article 147). – prohibits “[c]ollective penalties and likewise all measures of intimidation” as well as “[r]eprisals against protected persons and their property.” (Article 33) – stipulates that: Individuals or mass forcible transfers, as well as deportations of protected persons form occupied territories to the territory of the Occupying Power or to that of any other county, occupied or not, are prohibited, regardless of their motives. (Article 49) – states that: Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentence therein. (Article 76)
The Rome Statute of the International Criminal Court, which reflects customary international law and: – defines deportation or forcible transfer of population as “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law”. – defines as a war crime in Article 8(2)(b)(viii) “the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory” by the occupying power. – stipulates that the deportation or forcible transfer of population would also constitute a crime against humanity, when carried out in a widespread or systematic way, as part of a governmental policy. (Article 7 (d)).“
So, if Israel would like to charge Arafat and try him, they must do so in the West Bank, and they must jail him there, too, if he is found guilty. But they may not simply unceremoniously dump him over the border without grievously violating international law.