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
THE WALL, TERRITORIAL EXPANSION AND INTERNATIONAL
LAW
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].
EXECUTIVE SUMMARY
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
AND INTERNATIONAL
LAW
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 agreementsthe 1947 United Nations Partition
Plan for Palestinethat 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
IN THE
GAZA STRIP
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 www.pengon.org or www.stopthewall.org 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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