Affo And Another v. Commander Israel Defence Force in the West Bank (Hc 785/87)

Abstract

War and armed conflict — Occupied territories — Powers and duties of occupant — Deportation from occupied territory — Fourth Geneva Convention, 1949 — Article 49 — Whether imposing total prohibition on deportations — Whether prohibiting occupying Power from deporting individuals accused of engaging in terrorist activities or incitement to violence — Historical background to Article 49 — Mass deportations during Second World War — Whether Article 49 confined to deportations of this kind — Relationship between Article 49 of the Fourth Convention and Article 43 of the Hague Regulations on Land Warfare, 1907 — Courts in occupied territories — Role of Supreme Court of Israel in reviewing acts of occupation authorities — Applicability of Fourth Geneva Convention to occupied territories in the Middle East — Policy of Government of Israel that it would honour humanitarian provisions of Convention — Duration of occupation — Gaza Strip — Whether authority of Military Government terminated by Treaty of Peace between the Arab Republic of Egypt and Israel, 1979 — Whether regime still one of belligerent occupation

War and armed conflict — Peace treaties — Treaty of Peace between the Arab Republic of Egypt and Israel, 1979 — Legal effects — Gaza Strip — Whether regime of belligerent occupation terminated

Relationship between international law and municipal law — Treaties — Effect in municipal law — Israel — Rule that treaties do not form part of the law of Israel unless incorporated by legislation — Parallel rule in English law — Exception in respect of treaties stating rules of existing customary international law — Fourth Geneva Convention, 1949, Article 49 — Prohibition of deportations — Whether a codification of customary international law

Sources of international law — Treaties — Codification and progressive development — Conditions under which innovative provision in treaty can come to reflect customary international law — Acceptance of provision in State practice — Fourth Geneva Convention, 1949

Treaties — Application by municipal courts — Treaty not incorporated into municipal law by legislation — Whether provisions of treaty may be enforced by municipal courts

Treaties — Interpretation — Principles of interpretation — Object and purpose of treaty provision — Historical background — Reference to travaux préparatoires — Vienna Convention on the Law of Treaties, 1969, Articles 31 and 32 — Principle that treaty provision imposing limitations on the authority of a sovereign State should be narrowly construed — The law of Israel