8 January 1993 (A/47858, S/25075)

Letter from Dr. Nasser Al-Kidwa, Permanent Observer of Palestine to the U.N., to the Secretary-General of the United Nations and the President of the Security Council: (Deportation Memo)

I have the honor to enclose herewith a memorandum on the deportations by Israel, the occupying Power, of Palestinian civilians from the Occupied Palestinian Territory, including Jerusalem. The memorandum covers the more recent Israeli government's mass deportation of more than 400 Palestinian civilians, on 17 December 1992, as well as background information on the subject as a whole. It also includes our own conclusions with regard to the subject.

Deportations by Israel, the Occupying Power, of Palestinian Civilians from the Occupied Palestinian Territory, Including Jerusalem:

1. The Israeli government's mass deportation of more than 400 Palestinian civilians on 17 December 1992

2. Background Information on Deportations

3. Conclusions

1. The Israeli government's mass deportation of more than 400 Palestinian civilians on 17 December 1992 *

n On 16 December 1992, the Israeli government took the unprecedented step of ordering the summary deportation of 418 Palestinian civilians from the occupied Palestinian territory. The Israeli authorities placed those Palestinians, blindfolded and bound, in buses and drove them to Israel's northern border.

n Upon the leakage of information on the deportation, human rights activists, including lawyers, petitioned the Israeli Supreme Court for a restraining order. The Court granted the stay order and convened to discuss the appeal. After 15 hours, it allowed the deportation orders to proceed.

n Meanwhile, the Israeli authorities returned a number of Palestinian civilians from the buses and several others were brought by helicopter to join the deportees. After an overnight stay in the buses, approximately 415 were driven, on 17 December 1992, into South Lebanon across the so-called security zone, and were dumped in the freezing winter weather in a mountainous area between the Israeli/So-Called South Lebanon Army checkpoint and the Lebanese army checkpoint.

n Israel refused to release the names of the deportees, and did not notify their families of the measures taken. In addition, no individual charges for any criminal act had been made against those deported, and none of them received a copy of their deportation orders. (After approximately two weeks, the Israeli authorities announced that they had made a mistake with regard to at least 10 of the deportees)

n On 18 December 1992, the Security Council unanimously adopted resolution 799 (1992), in which the Council strongly condemned "the action taken by Israel, the occupying Power, to deport hundreds of Palestinian civilians", and expressed "its firm opposition to any such deportation by Israel", and demanded "that Israel, the occupying Power, ensure the safe and immediate return to the occupied territories of all those deported". The Council also requested the Secretary-General "to consider dispatching a representative to the area to follow up with the Israeli government with regard to this serious situation and to report to the Security Council".

n The deportees tried to go back, on foot, along the same route that they were brought, but they were prevented from doing so due to shooting and shelling directed at them by the Israeli army. Such shelling was repeated several times at later dates.

* Updated & Revised: 5 February 1993, 2 March 1993, 6 April 1994.

n In the meantime, the Lebanese government, on the grounds that the deportations carried out by Israel violated the sovereignty and territorial integrity of Lebanon, and that those deportees had been illegally brought onto Lebanese territory; refused to accept the deportees and refused to allow assistance to them, as they are solely the responsibility of the Israeli government. It is worth mentioning that Security Council resolution 799 (1992) reaffirmed "the independence, sovereignty and territorial integrity of Lebanon".

n The Secretary-General, in response to the request made by the Council, dispatched Mr. James Jonah, Under-Secretary-General for Political Affairs, to the region from 27 to 30 December 1992. He met with Israeli officials, and he also met with Lebanese officials when he went to Lebanon.

n The actual situation of the deportees has been deteriorating due to the harshness of weather and a lack of all essentials, including water, medicine and foodstuffs. A number of them have become sick and several have been injured. Meanwhile, the Israeli government rejected a formal request by the International Committee of the Red Cross to provide the deportees with the essential materials through Israel's borders.

n In a letter, dated 3 January 1993, the Secretary-General of the United Nations informed the President of the Security Council that "the mission of the Mr. Jonah was unsuccessful". The Secretary-General stated, "From all that I have heard, I believe this is attributable primarily to Israel's unwillingness to comply with resolution 799". The Secretary-General also informed the Council that he decided to dispatch to the region a second mission, to be led by, his special political advisor and representative to the multi-lateral peace talks on the Middle East, Mr. Chinmaya Gharekhan. The Secretary-General expressed his earnest hope that "the Israeli authorities will recognize the need to comply with resolution 799", however, he stated, "should this not be the case, I may have to recommend in my report that the Council consider taking further steps to ensure that its decision is respected".

n At the United Nations, several committees and groups, such as the Committee on Palestine of the O.I.C., the Committee on Palestine of NAM, the Arab Group, and the Chairman of the Committee on the Exercise of the Inalienable Rights of the Palestinian People; issued strongly worded statements on the matter. All of those statements called for decisive actions by the Security Council to guarantee full implementation of resolution 799 (1992). Some called for a new resolution under Chapter 7 of the United Nations Charter.

n The Israeli army continued to refuse to allow relief agencies and aid convoys to reach the camp of the deportees and also shelled the area sporadically, apparently in attempts to prevent nearby villagers from providing the deportees with food and other supplies.

n On 9 January 1993, an ICRC mission, consisting of one delegate and one doctor, was permitted by the Israeli authorities to visit, by way of a UNIFIL helicopter, the camp of the deportees, and was permitted to bring back a 16 year-old boy, whom the Israeli authorities said had been mistakenly deported, and to take a man who had become seriously ill to a hospital in the Israeli-occupied zone of Southern Lebanon.

n The Council of the League of Arab States met at the level of Foreign Ministers on 11 and 12 January 1993 to consider the topic of deportation. The Council adopted a strong resolution which, inter alia, called on the Security Council to adopt necessary measures to guarantee Israel's compliance with the immediate implementation of resolution 799 (1992), including the application of Chapter VII of the Charter of the United Nations. Also on 11 January 1993, a meeting of the Bureau of the Sixth Islamic Summit was held in Dakar, Senegal, and similar positions were adopted.

n The ICRC was permitted to make another visit to the deportees on 14 January 1993, at which time it was also permitted to bring back, using two British helicopters, 15 Palestinians, who the Israeli authorities said had been mistakenly deported, and to transport two other ailing Palestinians to the hospital.

n On 25 January 1993, following three missions to the region, one led by Mr. Jonah and two led by Mr. Gharekhan; the Secretary-General presented, in accordance with resolution 799 (1992), his report to the Security Council. In his report, he stated that Israel's continuing refusal to comply with resolution 799 (1992) to ensure the safe and immediate return to the occupied territories of all those deported challenged the authority of the Security Council. Consequently, he concluded, he had to "recommend to the Security Council that it should take whatever measures are required to ensure that its unanimous decision, as set out in resolution 799 (1992), is respected".

n In addition, in the same report, the Secretary-General stressed the need to "recall that the deportations carried out by the Government of Israel on 17 December 1992 are only the most recent in a series of violations by Israel of the Fourth Geneva Convention", and thus he felt it important to emphasize the necessity of addressing the issue of the safety and protection of Palestinian civilians under Israeli occupation. As a result, he stated his intention "to initiate discussions with the Israeli authorities regarding the establishment of a United Nations monitoring mechanism in the occupied territories, as suggested in resolution 681 (1990)".

n On 26 January 1993, the Permanent Observer of Palestine to the United Nations informally presented a draft resolution, under Chapter VII of the United Nations Charter and containing specific sanctions against Israel, to members of the Security Council to follow up resolution 799 (1992). The Arab Group endorsed the draft resolution on 27 January 1993, subsequently turning it into an Arab draft.

n Israel rejected the Secretary-General's recommendations for Security Council measures to enforce resolution 799 (1992), and urged all parties to do nothing until the Israeli High Court of Justice decided whether the deportations were legal or not. Such a request was advocated by the United States as well.

n The Israeli High Court of Justice, on 28 January 1993, rejected the appeals and petitions of human rights lawyers, who challenged the legality of the government's action, and unanimously upheld the individual deportation orders of over 400 Palestinian civilians from the occupied territories.

n On 1 February 1993, the Prime Minister of Israel announced Israel's decision to allow 100 of the deported men to return and to reduce the exile period for the remaining 300 in half, to one year. In return, he stated, Israel had assurances from the United States that it would block U.N. sanctions, which had been proposed in response to Israel's continuing defiance of the demands of resolution 799 (1992). On that same day, U.S. Secretary of State Warren Christopher, while at the United Nations, stated that as a result of the agreement that had been reached, he believed that no further action by the Security Council would be necessary.

n The deportees rejected the Israeli offer and said that no one would return unless all of them were allowed to do so. In addition, Palestinian leaders reaffirmed that the only way out is the full implementation of resolution 799 (1992) and that they would not attend the peace negotiations until a solution to the deportation crisis is found in accordance with the said resolution.

n On 4 February 1993, it was reported that, in a statement made before the Israeli Parliament, Prime Minister Rabin, referring to the agreement reached between Israel and the United States with regard to the issue of deportation, stated that this agreement to bring back one fourth of the 400 Palestinians deported had preserved his right to deport hundreds of more people in the future if he chose to do so.

n On 9 February 1993, the Permanent Representative of Israel to the United Nations sent a letter to the President of the Security Council informing him of the decision taken by the Government of Israel on 1 February 1993, regarding "the temporarily excluded members of Hamas and Islamic Jihad". The letter stated that "the decision of the Government of Israel was an act of good faith on Israel's part and, consistent with the principle of Security Council resolution 799 (1992), it provides that all excluded persons will be allowed to return by the end of 1993".

n On 12 February 1993, the Security Council held informal consultations on the issue of the deportation of Palestinian civilians by Israel on 17 December 1993. Following the informal consultations, the President of the Council, Mr. Ahmed Snoussi, met with the Permanent Representative of Israel and conveyed to him certain talking points. After the meeting, the President made several remarks to the media concerning the issue. He stated, inter alia, that the members of the Security Council reaffirmed resolution 799 (1992) and the need for its implementation, and that they acknowledged the decision by Israel to allow the return of 101 Palestinian deportees and considered it to be a step in the right direction. The President also stated that the members of the Security Council urged Israel to follow through expeditiously with the return of all deportees as soon as possible, and that the members of the Council remained convinced of the need for the Middle East peace process to continue and urged all concerned to redouble their efforts to reinvigorate the process in order to achieve a just, lasting and comprehensive peace.

n The Permanent Observer of Palestine to the United Nations, however, stated to the media that the P.L.O. did not accept or support the move of the President and that the official position of the Palestinians, with regard to the deportees, as well as the peace process, remained the same.

n On 16 February 1993 , the Permanent Observer of Palestine sent a letter to the President of the Security Council concerning the proceedings of 12 February 1993. The letter stated that there was much confusion among the media with regard to those proceedings, and that for the Palestinians, as the party concerned with the issue, there was no Security Council document or anything on the records of the Security Council that would indicate that any formal action had been taken by the Council on Friday, 12 February 1993, or on any other date since the adoption of resolution 799 (1992). In conclusion, the Permanent Observer of Palestine once more urged the Council to consider the report presented by the Secretary-General to the Security Council in accordance with resolution 799 (1992), with the aim of adopting specific measures to guarantee respect of the decisions of the Council.

n The Arab Group met on 16 February 1993 to consider the most recent developments. The Group reiterated its adhesion to the decision made at the Arab Ministerial meeting, and it mandated its Chairman to send a letter to the President of the Security Council expressing the necessity for the Council to consider the report of the Secretary-General, with the aim of taking action to guarantee full implementation of resolution 799 (1992). Following the meeting, several statements were made by the Chairman of the Group, the Observer of the Arab League, and the Observer of Palestine in explanation of the position of the Group. The letter, however, was not sent.

n The Secretary of State of the United States of America, Mr. Warren M. Christopher, made a visit to the region from 18 to 24 February 1993, during which he visited 8 countries, and during which he also met twice in Jerusalem with members of the Palestinian delegation. The issue of deportation was raised and discussed widely in the meetings Mr. Christopher had during his trip. There were some conflicting reports in the media with regard to the outcome of the visit, howvever, as of yet no conclusive outcome has been declared.

n Following the trip of the Secretary of State, as part of its deal with the Americans to compromise on the issue of the deportees, the Israeli government stated in February that 101 of the deportees could return to the occupied territories, while the rest would be returned by the end of the year, making the exile period one year rather than two. In a stand of the solidarity, the deportees rejected this plan, and the demand for the immediate return of all of them was maintained.

n On 15 August 1993, after eight months in exile, and faced with illness, a decline in media attention to their plight, and the failure of Security Council Resolution 799 (1992) to secure their return, the deportees accepted an Israeli plan that would allow for the return of nearly half of them to the occupied Palestinian territory, with the remainder returning in December, which would be in line with the Israeli plan to permit all of them to return after a year of exile. Approximately 181 of the expelled men were returned in early September. Most returned to their homes, but several of them were taken to Israeli prisons or detention centers.

n On 14 December 1993, following the signing of the Declaration of Principles by Israel and the Palestine Liberation Organization on 13 September 1993, the remaining deportees, a total of approximately 200 men, were returned to the occupied Palestinian territory, where, as in the case of those deportees returned before them, many were taken to prisons and others detained.

2. Background Information on Deportations

n Israel, the occupying Power, has deported approximately 2,500 Palestinian civilians since 1967. Its latest action in this regard, the deportation of more than 400 Palestinians, on 17 December 1992, constituted mass deportation.

Security Council Resolutions on Deportation:

n The United Nations Security Council adopted 11 resolutions specifically on the issue of deportation. These resolutions are 468 (1980), 469 (1980), 484 (1980), 607 (1988), 608 (1988), 636 (1989), 641 (1989), 694 (1991), 726 (1992) and 799 (1992), in addition to resolution 681 (1990) which contained a paragraph on deportation. [In addition, there are a vast number of General Assembly resolutions, as well as resolutions of other organs of the United Nations, on the subject.]

n All of those resolutions condemned or deplored Israeli deportation policies and actions, and requested, in a variety of forms, that Israel, the occupying Power, guarantee the safe and immediate return of the deportees and desist from taking such actions.

n All of those resolutions, in addition to numerous other Security Council resolutions, affirmed the applicability of the Fourth Geneva Convention of 1949 to the occupied Palestinian territories, including Jerusalem, which considers deportation to be illegal. Resolution 681 urged the government of Israel "to accept the de jure applicability of the Fourth Geneva Convention of 1949 to all the territories occupied by Israel since 1967, and to abide scrupulously by the provisions of the said Convention". To date, however, none of these resolutions have been heeded by the Israeli government.

Deportation and International Law:

n International law subjects the Israeli occupation of Gaza, the West Bank and East Jerusalem to the provisions of the Fourth Geneva Convention of 1949 Relative to the Protection of Civilian Persons in Time of War.

n Article 49 of this Convention declares "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".

n According to the authoritative commentary, done by the International Committee of the Red Cross, on the Convention; this prohibition is "absolute and allows no exceptions". Several other statements of the Red Cross put forth the same position.

n Article 147 of the Convention considers "unlawful deportations" as a grave breach of the convention. Article 146 of the convention places specific duties upon the High Contracting Parties to repress grave breaches by seeking out and prosecuting the perpetrators.

n Article 1 of the Convention, makes it the obligation of the High Contracting Parties "to respect and to ensure respect for the present Convention in all circumstances".

n In brief, according to the Fourth Geneva Convention, deportation is not only illegal but also constitutes a grave breach of the Convention. Grave breaches of the Geneva Convention amount to war crimes. (The 1945 Charter of the International Military Tribunal at Nuremberg defined deportation as a war crime and a crime against humanity)

Deportation and Domestic Law:

n Israel invokes Article 108 of the British Defense (Emergency) Regulations of 1945 as the basis for its deportation orders. However, these regulations were in fact revoked by the British government on the eve of the termination of the British Mandate in May 1948 and therefore, the Israeli government, in terms of domestic law, is acting without legal basis in deporting Palestinian protected persons.

n Israel started to provide, during the 1970s, very inadequate legal review of deportation orders, which became possible only after more than a thousand Palestinians had already been deported without any form of due process. According to these procedures, a person can appeal a deportation order to a military advisory committee. If the order is confirmed by the committee, the person may petition the Israeli Supreme Court sitting as a High Court of Justice. The procedures are based solely on classified information, which is neither released to the deportee nor to his lawyer. The Israeli court has never revoked a deportation order.

n On 16 December 1992, even the above-mentioned procedures were abolished by a decision of the government, the text of which was not published. In addition, the nature of the recent mass deportation ended another Israeli argument, which attempted, in the past, to differentiate between "accepted" individual and selected deportation as opposed to "prohibited" mass deportation.

n Ultimately, deportations are administrative orders taken by military commanders and not by any judicial authority, and not pursuant to a procedure which can be measured against due process criteria. They are extra-judicial punishments in the extreme.

3. Conclusions:

n Deportation is illegal under international law and constitutes a grave breach of the Fourth Geneva Convention of 1949. It is being carried out without legal basis in terms of domestic law. Deportation also violates numerous Security Council resolutions and represents fundamental disregard of the Universal Declaration of Human Rights and all other human rights instruments and standards. The concept of deportation is parallel to the concept of "transfer" and other racist ideas and theories, such as ethnic cleansing.

n The deportation which took place on 17 December 1992, constitutes, in addition to the above, a form of collective punishment. It has had a detrimental effect on the peace process currently underway, under the co-sponsorship of the United States of America and the Russian Federation. It is inconceivable for the peace process to continue and succeed as long as this situation is not brought to an end.

n The international community, and specifically the Security Council, is duty-bound to compel Israel, a member of the United Nations, to abide by its obligations under Article 25 of the United Nations Charter and to guarantee respect of international law, especially the Fourth Geneva Convention. It is our firm belief that the Security Council has to proceed to adopt a new resolution under Chapter 7 of the United Nations Charter to ensure that Israel will accept and carry out previous relative resolutions, especially resolution 799 (1992), which demanded the safe and immediate return of all those deported, and we call upon the Council to do so.