Select Committee on International Development Written Evidence

Joint memorandum submitted by International Service (IS), Jerusalem Centre for Human Rights (JCHR) and Palestinian Centre for Human Rights (PCHR)

  Jerusalem Centre for Human Rights (JCHR) is a non-governmental human rights organisation based in East Jerusalem founded in 2001. It is mandated to defend and ensure respect for Human Rights laws, values and principles as laid out in international human rights law, spread awareness of the universal principles of human rights and democracy, and to document, produce studies and reports to achieve the beforementioned goals in the enhancement of civil society. JCHR partners with Habitat International Coalition (HIC). JCHR is a member of PENGON's Stop the Wall Campaign.

Inquiry issue:  The impact of the wall of separation for Palestinian Farmers and for Employment, Movement of People and Delivery of Humanitarian Assistance


  As an annex to this memorandum, there is an attached report. The report is entitled "Stop the Wall in Palestine. Facts, testimonies, Analysis and Call to Action", published by The Palestinian Environmental NGOs Network (PENGON) in August 2003[66].


  IS, JCHR and PCHR have become increasingly concerned regarding the continued Israeli territorial expansion which is a gradual but ongoing process throughout the Occupied Palestinian Territories (OPT). The separation wall in the West Bank is the most recent manifestation of a consistent government policy of territorial expansion. This report discuss the aspect of international law relevant to the West Bank separation wall, but also point out that the wall in the West Bank is a larger-scale version of a model already employed in the Gaza Strip.


  The Wall, as well as the Occupation itself as its wider context, is a manifest violation of human rights and international law. Violations include the principle of collective punishment, the seizing of private property by an occupying power, demolition of houses to build the Wall, the violation of such basic human rights as the right of work and freedom of movement, and separating people from their families, another violation of basic human rights.

  The most serious effect of the Wall is the prima facie annexation of the Palestinian land lying to the west of the Wall to Israel. Despite the stated aim of protecting Israeli citizens, the Wall does not follow the route of the Green Line which demarcates the Israeli border with the West Bank of the Jordan river, but rather winds its way through the Palestinian Occupied Territories (OPT), serving to isolate many thousand Palestinians from the remainder of the West Bank. In addition, many of the illegal Israeli settlements in the West Bank have been brought within the folds of the Wall. Israel's unilateral decision to construct the Wall in the OPT represents the creation of "facts on the ground" that the realization of the right of self-determination of the Palestinian people by preventing the territorial coniguity necessary for the establishment of an independent Palestinian state.

  The major violation of international law, however, is the unilateral demarcation of a new border with the West Bank and thereby the annexation of occupied land, which is illegal under humanitarian law.

  The various violations of international law are a logical and predictable consequence of the violation of international agreements—the 1947 United Nations Partition Plan for Palestine—that led to the foundation of Israel in 1948 and the annexation of Jerusalem. Indeed, the actual effect of the Wall is to ensure that future tracts of Palestinian territories are de facto annexed to Israel, and to diminish even further, the possibility of there being an independent and sovereign Palestinian state in the West Bank and Gaza Strip through creating facts on the ground that prevent any possibility of Palestinian territorial contiguity. The huge scale and the permanent nature of the Wall constitute a grievous attack on the right of the Palestinian people to self-determination.

  The construction of the Wall has entailed the destruction of vast amounts of property, notably private agricultural land and olive trees. It has already been established that while the private land upon which the Wall is being built may have been officially "requisitioned", the intent and effect is that of permanent confiscation, and therefore must be treated as such.

  In addition, Israel as an occupying power, must observe the right and obligations binding on it under international humanitarian law. Under the title of "Hostilities", Article 23(g) of the Hague Regulations of 1907 (The Regulations) provides that the destruction or seizure of an enemy's property is "especially forbidden", unless "imperatively demanded by the necessities of war". In the section addressing military occupation, Article 46 of the regulations states explicitly that, "Private property cannot be confiscated". Article 52 of the Hague Regulations allows for the requisition of property in occupied territories if it is "for the needs of the occupying army". The requisition orders pertaining to land upon which the Wall is being built, fail to justify this need, which proves that the Wall is not being built for "the needs of the occupying army" but rather to serve the broader "security" policy of the State of Israel.

  Article 53 of the Fourth Geneva Convention (The Convention) prohibits the destruction of real or personal property "except where such destruction is rendered absolutely necessary by military operations". The official commentary to the Convention interprets the stated exception in Article 53 to mean that "The occupying forces may therefore undertake the total or partial destruction of certain private or public property in the occupied territory when imperative military requirements so demand". The core of Article 53 of the Convention which originates in Article 23(g) and Article 46 as well as the prohibition of collective punishment in Article 50 of the Hague Reulations, are rules of customary international law.

  The same applies to state land, Article 55 of the Regulations requires that public property located in occupied territory must be administered "in accordance with the rules of usufruct". In the case of the Israeli settlement Elon Moreh in the West Bank where the military order is similar to the military order of the Wall, the Israeli High Court declared that a military order for the requisitioning of Palestinian land to be invalid, holding that under Israeli administrative law political grounds are an improper purpose for a decision by the military. In this decision the court held that the dominant consideration for the military order had been political, and therefore even if the military subsequently supported the decision for military reasons, the order was invalid.

  The Grave Breaches provision of the Convention defines "extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly". Military necessity means the absolute requirement for measures which are essential to attain the goals of war, and which are lawful in accordance with the laws and customs of war. A rule of the law of armed conflict cannot be derogated from by invoking military necessity "unless this possibility is explicitly provided for by the rule in question".

  The Rome Statute of the International Criminal Court (ICC) has consolidated the protection of property under international law. Article 8 of the Rome Statute declares Grave Breaches of the 1949 Conventions to be War Crimes. Article 8 (2) (a) (iv) states that the Grave Breach of extensive destruction and appropriation of property is a War Crime. Article 8 (2) (b)(xiii), declares, "Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessity of war", to be a serious violation "of the laws and customs applicable in international armed conflict", and thus a war crime.

  Amidst human rights violations and war crimes taking place in the OPT and for the building of the Wall, international and humanitarian law have yet to propose practical ways in which to both highlight and bring such violations to an end. Though the term "Apartheid" surfaces the discriminatory policies of Israel and the occupation, as well as the discriminatory application of international law, the term itself is insufficient in highlighting all of the abovementioned breaches. A term needs to be found that makes clear the nature of Occupation itself. Though the Wall may also be referred to as an imprisonment wall, the perpetual dangers of being killed by the Occupation are a reminder that the Wall within its context is more than an open-air prison. The differences between South African Apartheid and Israeli Occupation should be noted, above all since the Palestinian Occupied Territories are not a part of Israel, but are occupied, a starting point wherein the Occupation itself is illegal under international law, and the continued subject of numerous UN resolutions calling for its end.

  Taking into consideration the continued violations to Palestinian human rights and human dignity by Israel, since prior to 1948, as well as the ineffectiveness of international law in relation to Palestine, Israeli policies should be clearly understood as aimed at eliminating the possibility for a viable independent Palestinian state. Among other considerations, the Palestinian people should re-examine their strategy of a two-state solution.


  Territorial expansion by Israel has been a gradual but ongoing process throughout the Occupied Palestinian Territory (OPT). As Miloon Kothari, the UN Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, states Israel has a ". . . long record of depopulation and demographic manipulation by way of expulsion, destruction of homes and villages, and implantation of settlers prior to and since its establishment as a State"[67].

  The separation wall in the West Bank is the most recent, and the most blatant manifestation of the consistent government policy of territorial expansion. However, the wall in the West Bank is a larger-scale version of a model already employed in the Gaza Strip. The Israeli military initially constructed a system of fences and walls along the border between the Gaza Strip prior to the Intifada. This fencing, ostensibly constructed on security grounds to restrict movement from the Gaza Strip into Israel, was largely constructed on the 1967 border with Israel. However, since its establishment and particularly since the beginning of the current Intifada, the Israeli military has continued to raze large areas of land all along the Gaza side of this fence to establish a "buffer zone" to increase "security" along the fence. Access to this land, mostly agricultural land, has since been denied to Palestinians through sniper-fire or arrest and detention, and thus is de facto expropriated by the Israeli military.

  These no-go areas extend from between 200 to 500 metres from the 1967 border into the Gaza Strip for the length of the border from Beit Hanoun in the north to Rafah in the south of the Gaza Strip. Thus the border line with Israel has effectively been pushed back into the Gaza Strip by up to 500 metres. In addition, since the beginning of the current Intifada a concrete wall has been constructed along the southern border with Egypt which is controlled by the Israeli military. Again, the construction of this wall has been accompanied by large-scale clearing of Palestinian homes on the Gaza side of the wall. The construction of this new wall and its "buffer zone" has pushed the de facto border back into Gazan territory by up to 500 metres.

  Traditionally, however, Israeli territorial expansion has been primarily implemented through, and in the name of, the settlement programme. The settlements and settlement infrastructure throughout the OPT continues to expand; more territory continues to be expropriated from Palestinians, to establish new settlements, to expand existing settlements, and to expand settlement infrastructure. Land continues to be expropriated illegally from Palestinians through various processes, including large scale land razing, and house and property demolitions[68].

  In the Gaza Strip, Palestinian agricultural land located adjacent to settlements or settlement roads is often razed by the Israeli military, using bulldozers and heavy military vehicles to flatten crops, uproot trees and demolish agricultural buildings. The Israeli military often cite various reasons for these operations, including claims that foliage in the area provides cover for Palestinian gunmen seeking to attack the settlements. These areas of land are then gradually incorporated into the settlements, either by the establishment of fences around the property or, more often, by the de facto incorporation of the land into the settlement's existing territory by denying the Palestinian owners or workers access to the land. This prohibition on access is largely enforced by the threat of sniper-fire, arrest or detention of those Palestinians who approach the land, including the land owners.

  In the West Bank, new settlements and settlement outposts are established regularly through transplant of caravans or other temporary structures, water towers and other basic infrastructure to new locations, which are then gradually built upon to include permanent structures. In the Gaza Strip, the processes are slightly different; the settlement programme in the Gaza Strip includes primarily expansion of existing settlements, including agricultural lands and construction of new properties inside existing settlements, with far fewer new settlements being established. More commonly Israeli territorial expansion in the Gaza Strip involves de facto incorporation of land within the boundaries of existing settlements (either fenced in or closed off by use of sniper fire) for the purpose of so-called "buffer zones". The incorporation of these lands then increases the distance between the settlers' buildings, and Palestinians. Few new properties have been built on this land; instead it is used as a "buffer zone", between the two communities, but controlled by settlers and the Israeli military. Thus, the areas controlled by the Israeli military, including through snipers positioned in towers inside the settlements, can extend to up to 2 kilometres from the settlement properties. This procedure is also followed to distance Palestinians from settler roads. Attempts to access these areas, or even proximity to edge of these areas, is generally responded to by sniper fire. A number of Palestinians have been shot and killed in these areas in the Gaza Strip.

  Settlement expansion in the Gaza Strip has also been characterized by expansion of settlement infrastructure, primarily roads and access routes. Substantial investment in permanent settlement infrastructure indicates a long-term planning process of permanent territorial expansion in the Gaza Strip. Again, these infrastructure projects are invariably claimed necessary for the security of Israel and the settlements whilst ensuring minimizing the impact on Palestinians. This argument has been used over past months in Israeli arguments about the wall in the West Bank. However, the following example demonstrates the sincerity of such arguments. Over the last three years, the Israeli military has pursued a large-scale land-clearing operation in the central Gaza Strip to the east of the Gush Katif settlement block. This operation has cleared more than 300 dunums of prime Palestinian agricultural land, and several homes, to facilitate the construction of a motor-way bridge over Salahadin Street, enabling settlers residing in Gush Katif to travel to Israel without having to cross this main Palestinian road. According to the Israeli government[69], the bridge was allegedly intended to provide secure access for the settlers whilst easing the situation for Palestinians whose passage along Salahadin Street was severely restricted by an Israeli military checkpoint placed to secure settlers passage across the road. The State asserted that once the bridge was completed, the checkpoint would become unnecessary and could be dismantled. Despite the completion of the bridge in Autumn 2002, the checkpoint, which has been expanded to include armoured military positions and traffic lights, continues to be used to impose daily restrictions on passage of Palestinians between the north and south of the Gaza Strip.

August 2003

66   Not printed. See or Back

67   UN doc E/CN.4/2003/5/Add.1, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari. 12 June 2002, para.9. Back

68   To date, approximately 18,000 dunums of Palestinian agricultural land has been razed and more than 1,200 Palestinian homes and other property has have been demolished in the Gaza Strip. Back

69   Case Number: 3081/01 (Abu Houli v State of Israel). PCHR represented two relatives of the Abu Houli family whose land had been confiscated in the Abu Houli area in central Gaza, south of Deir el Balah. PCHR's lawyers submitted a petition to the Israeli High Court. The above comments were taken from the State response to the petition. Back

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