With top political and security officials, including most recently former Shin Bet (Israel Security Agency) director Avi Dichter, calling for deporting West Bank Hamas leaders to Gaza, The Jerusalem Post has learned that there are heavy concerns at the highest levels regarding the idea, including the possibility of International Criminal Court prosecution.
In an op-ed in the Post on July 6, Dichter comprehensively articulated all of the potential security benefits of deportation, which many have been vocalizing.
Those defending the legality of deportation cite prior Israeli deportations of terrorists or if trying harder to satisfy international law, may try to distinguish between more disputed expulsion to the territory of another state, such as Lebanon, and expulsion to the Gaza Strip, which is not part of another country and has a connection to the West Bank.
But many say the law is a major obstacle here.
The root issue stems from Articles 49 and 78 of the Geneva Conventions, which prohibit forcible transfer of persons from occupied areas, but permit “assignment of a residence” within an occupied area.
With the state’s recent re-initiation of house demolitions, though most readings of international law prohibit them, there are some interpretations that can be marshaled to justify them and domestic law clearly allows them.
In contrast, the High Court of Justice, in a 9-0 vote on a landmark 2002 case, explicitly limited deportations of Palestinians living in disputed areas to be within such disputed areas.
In 2002, this distinction sidestepped the general prohibition of forcible transfer out of a disputed area and allowed Israel to deport West Bank Hamas affiliates to Gaza since Gaza was still part of the same Palestinian disputed area.
But that case occurred before Israel’s 2005 Gaza withdrawal and Israel’s post-2005 repeated arguments to defend itself from war-crimes allegations and other violations on the specific grounds that it no longer occupies Gaza.
In other words, the same High Court ruling that allowed such deportation in 2002, explicitly prohibits deportation to “unoccupied” Gaza post-2005.
That some officials favor house demolitions over deportation also seemingly came out from State Attorney Shai Nitzan’s recent speech defending the state’s recent “targeted” and “partial” demolition of the house of the alleged killer of Baruch Mizrahi, with not a word about deportations.
The Post has learned that many officials are concerned that any attempt to justify deportation to Gaza will destroy Israel’s argument that its withdrawal from Gaza was complete and freed it from the humanitarian responsibilities of a legal (as opposed to political) “occupier.”
One commentator, former IDF international law division head and head of the INSS Program on Law and National Security Col. (res.) Pnina Sharvit Baruch recently wrote a detailed analysis of the issue, stating that if deportation to Gaza became official policy it could “be used against Israeli officials, who could be prosecuted under criminal law” before the ICC or other foreign courts.
Sharvit Baruch does not present this possibility as a foregone conclusion, as she does reference various substantial obstacles to Israelis being brought before the ICC, but she does cite it as a serious concern.
Many commentators have noted that the IDF and Israeli officials have likely dodged any liability for potential war crimes allegations for the 2008-2009 and 2012 Gaza operations since the Palestinians did not declare their state until November 29, 2012.
Part of what seems to concern various officials and Sharvit Baruch is that the deportation decisions will be implemented in the (at least partially) post-Palestinian statehood reality, which could finally bring the grim ICC threat to Israel’s doorstep.