REFLECTIONS ON THE EXPULSION OF REFUGEES AND INTERNATIONAL CRIMINAL LAW

By Moshe Aloni.

After World War II in general and the Nuremberg Trials against Nazi war criminals in particular, International Criminal Law gained a great momentum (to prevent the return of the horrors of war). It developed and consolidated till it turned into a “kicking”, operating and active Law. A criminal court was established in The Hague, which deals with offenses against international criminal offenses.  Quite a few trials have taken place within its walls, active prosecution operates there and many defendants were found guilty and sentenced to severe prison sentences. European countries, mainly, cooperated with this court, assisted it in its work and even financed it. Israel, at the time, voted against its establishment.

The Court for Rwanda is another international criminal court, which was set up when it was made clear that genocide had been carried out in Africa, and it was necessary to establish a special court to deal with the issue. This Court had jurisdiction to deal with war crimes committed in Rwanda or carried out by Rwanda in neighboring countries. This court was superior to the local courts in Rwanda.

It should be pointed out, as an aside note, that the Prime Minister of Rwanda, Joan Kambande, did plead guilty of the genocide accusation and his admission was proof that genocide was indeed committed in Rwanda.  He was sentenced to life imprisonment and his appeal was denied.

Thus, after the Second World War, and following the horrors of the Holocaust, a New Crime was created and defined: Genocide. In addition there also appeared the concept of Illegal Order, even when given by a factor having legal authority to give orders. It was permitted to refuse to carry out an illegal order. Moreover, a person who carried out an illegal order might be brought to trial and even bear punishment.

In the Nuremberg Trials the defense of the Nazi defendants, who had high ranks in the evil Nazi regime, claimed that they had received orders and that therefore their monstrous actions were legal.

In Israel too, in the Eichmann trial, the defendant (Eichmann) defended his actions by claiming that as a military man he carried out orders given to him by his superior officers, including the commander in chief, Hitler. As these were orders that he carried out (and willingly, one might say!) he claimed he was neither judicable nor punishable by law.

Still, as in the Nuremberg courts, the courts in Israel, both instances, rejected outright the claim of being given an order. Eichmann was convicted, he was hanged and his ashes were scattered in the sea so that his grave would not attract new fascists.

Rwanda

As stated above, this is the general background of the formation of modern international criminal law, which operates to this day, especially in the criminal court in The Hague. The establishment of this court having a universal jurisdiction is one of the most important developments of international criminal law. A judicial tribunal has been established to deal with crimes against humanity, i.e., international crimes.  Moreover, a new legislation code was enacted, new in international criminal law. Two international criminal courts were also created  for individual cases:

The  ICT- international Criminal Tribunal for the Former Yugoslavia

And the ICTR - International Criminal Tribunal for Rwanda

In other words, the international criminal court of former Yugoslavia and the international criminal Court for Rwanda mentioned above.

Incidentally, - does Rwanda remind one anything connected with refugees in the State of Israel?

Imprisonment-without-end.

This, as above, is the general background of the creation of modern international criminal law and of the International Criminal Law at The Hague.

For our purpose, why is the affair of the intended deportation of refugees from the State of Israel liable to converge with the jurisdiction of the International Criminal Court in The Hague within the frame of international criminal law?

Here are some facts:

The deportation is linked to a punishment of unlimited imprisonment (until the tortured immigrant prisoner says “I want to be deported from the State of Israel.”) Such imprisonment constitutes, or is liable to constitute, a crime against humanity!

According to international law, torture is a criminal offense. If we consider that the "Israeli” incarceration of the immigrants is accompanied by certain phenomena with respect of its severity (according to the requirements of international criminal law) such as the length of the imprisonment which, would be here, as above, an imprisonment without end.

This is a deprivation for life of the physical (and mental) freedom of the prisoner until he (or she) says (if he does?) “I want to be deported!”

This is a life sentence for those who refuse to be deported (and there may be very many of them). It is an arbitrary (or a tyrannical) imprisonment that cannot be shortened (for instance, because of a serious illness). This imprisonment should be arbitrary or tyrannical to become justiciable as a crime against humanity. Isn`t this punishment- without- end embedded in a section of the law of the International Court at The Hague? That law discusses imprisonment “in violation of basic rules of international law”.

Is this not the case here with us? What do you think?

We must not forget that Israel is signatory to the Convention for the Protection of Refugees, whose instructions are being openly trampled upon.

According to scholars and even according to judgments, the elements of “severity of conduct” are intended in the above-mentioned law.

We have to emphasize that imprisonment, even its beginning is "lawful" but shaky , as described above, can be war crime? If the prisoner remained  imprisoned for endless time!

Cannot this imprisonment equal the torture of prisoners under international law?

Thus, for example, “rape” was defined as torture, such that causes severe pain and physical and psychological suffering.

For example in a well-known trial, the defendant was convicted by the International Criminal Court in The Hague. The defendant was convicted of torture for the use of general threats, sexual threats, intimidation and humiliation in order to obtain confessions from the interrogee.

The question is thus simple: can unlimited imprisonment too constitute psychological and physical “torture”?

The answer is left to the intelligent reader!

A non-existent agreement

Expulsion or transfer will constitute an international crime if it is done by force. In our case, brutal soldiers will drag the deportees to the plane or on the other hand they will be imprisoned for the rest of their lives! We note that at present pilots are refusing to fly immigrants who will be brought by force to the plane.

We would add that all of the above is accompanied by an "agreement" with a third country, probably Rwanda, but Rwanda refuses to ratify the existence of such an agreement. Refugees who arrived in Rwanda were "treated" in a punishing, hostile, humiliating manner. This behavior is inconsistent with international criminal law!

Also, nobody knows the contents of this deportation agreement and if it exists at all!

We quote the following sections of the Declaration on Human Rights:

Article 1: All human beings are born free and equal in dignity and rights. They have intelligence and conscience, and they should act toward one another in a spirit of brotherhood.

Article 4: No one shall be held in slavery or servitude; slavery and slave trade shall be prohibited in all their forms.

Article 5: No one shall be subject to torture or to cruel, inhuman or degrading punishment.

Article 9: No one shall be subject to arbitrary arrest, detention or exile.

End

This article does not purport, in any manner, to be a scientific article and perhaps some of its facts can be interpreted differently from the ones the undersigned used taken from literature on this subject. This article is food for thought with respect of the deportation program as well as for any person with a conscience. It was written for this purpose! It is simply food for thought!

 The main sources of this article are:

CRIMES AGAINST THE HUMANITY BY GEOFFREY ROBERTSON

"СПАСЕНИЕ" И ПАДЕНИЕ от  ПРОФ. РУМЕН АВРАМОВ

("RESCUE" AND FALL BY PROF. RUMEN ABRAMOB)

AN INTRODUCTION TO INTERNATIONALONAL CRIMINAL LAW AND PROCEDURE .МЕЖДУНАРОДНО НАКАЗАТЕЛНО ПРАВО от ДИМИТЪР МИХАЙЛОВ

(INTERNATIONAL CRIMINAL LAW BY DIMITAR MIHAILOV)

HUMAN RIGHTS TODAY by IOVANOVIC and KRSTIC 

THE DUE PROCESS OF LAW by LORD DENNING

RELGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE BY JOHAN D. VAN DER VYVER AND JOHN WITTE, JR.