The Israeli occupation of the West Bank and Gaza, initiated through aggressive military campaigns in 1948 and 1967, has been consolidated and standardised through a continuous and ongoing assault on the very environment of Palestine. The Israeli grip on the Palestinian Territories has been ensured through a paradoxical "violence of construction." Thus, in the Occupied Palestinian Territories today "we find two countries superimposed one on the other: on top, 'Judea and Samaria', the land of settlements and military outposts, bypass roads and tunnels; and underneath, 'Palestine', the land of villages and towns, dirt roads and paths."(1) Ownership and control of territory is the prize being contested in this conflict. This was aptly demonstrated by the inevitable failure of the Oslo Accords, the peace process between the Israeli Government and the Palestinian Authority which was negotiated throughout the nineties, wherein the Palestinian Authority accepted responsibility for the actions of the Palestinian people, yet Israel retained control over roads and movement, entry and exit, water resources and crucially, most of the land.
The mechanisms employed by Israel to ensure its permanent grip on Palestinian land have been neglected to a large extent in the press and in the general discourse on the conflict where attention has focused on the day to day horrors of house demolitions, assassinations, torture, arbitrary detention, curfews and so forth.
These human rights violations provide the press and activists with a milieu of heart wrenching stories of human suffering, at their basest level simply providing 'good copy,' yet alternatively allowing activists to present their case for an end to the occupation in an honest, simple and effective manner. Commentary on the settlements, while varied and significant in quantitative terms, has similarly focused on the immediate impacts of the occupation, notably on settler violence, yet incidents of land confiscation and the exploitation of Palestinian water and agricultural resources have too often been presented as though they were random and ad hoc acts, rather than being placed in the context of Israel's overall aim; the complete conquest and annexation of the entire West Bank and Gaza.
Israel's latest project, the construction of a "Separation Barrier" within the West Bank, is of such a nature however, that one cannot but begin to realise the role which physical realities, those "facts on the ground" imposed on the Palestinian environment by the Israeli state and army, have played and will continue to play in the conflict. While in no way demeaning or dismissing the acute and terrible suffering that Palestinians on a micro-scale, i.e. families and village communities, shall experience, indeed are experiencing, as a result of this barrier known as "The Wall," its desired effect, considered through a macro scale lens, is to effectively coalesce with the physical facts presented by settlements and by-pass roads, and act to prevent the realisation of Palestinian self-determination in the form of an independent and sovereign Palestinian State in the West Bank and Gaza.
Description of the Wall
The Wall is a separation barrier comprised in part of massive concrete walls, complete with watch towers that strike the observer as being medieval in nature yet Orwellian in effect. Such is the appearance of the Wall where it surrounds the Palestinian city of Qalqilya. Here a population of 40,000 is imprisoned by eight meter high walls, with the single remaining access road controlled by an Israeli military base and checkpoint. At other points, the Wall consists of layers of razor wire, military patrol roads, sand paths to trace footprints, ditches, surveillance cameras and in the middle a three meters high electric fence. A "buffer zone" exists 30-100 meters on each side of the Wall. Palestinians are prohibited from entering this zone which consists of electric fences, trenches, cameras, sensors, and is patrolled by the Israeli military.
Whereas gates have been included in the construction of the Wall, they are grossly insufficient and to date Palestinians have had immense difficulties crossing from one side to the other in order to access their farmland or to go to school. According to Israeli army plans submitted to the Israeli High Court, Phase One of the Wall was to incorporate 26 "agricultural crossings" along its route, with an additional five crossings in the "depth barriers" located further to the east. In a report on the Wall however, the World Bank stated that their team found preparations for only one such crossing.(2)
Route of the Wall
Rational thinking would suggest that the route of the Wall would correspond to the ostensible purposes for which it is being built. It is indicative of the intentions of the Israeli authorities therefore that the route of the Wall in no way corresponds to the purported reason for its construction.
The Wall, according to Israeli PM Ariel Sharon, is being built for security purposes, and in particular to protect Israeli civilians within the Green Line from attack by Palestinian militants. One would be forgiven therefore for thinking that the Wall is being built along the Green Line.(3) This is not the case however. The Wall is being built entirely within the West Bank and is even projected to plough through Palestinian land in the Jordan Valley near the border with Jordan. In this manner, the Wall will eventually come full circle and completely enclose two distinct and vast swathes of Palestinian territory, one to the north of Jerusalem and the other to the south. Furthermore in that area of Occupied Palestinian Territory including and adjacent to East Jerusalem, labeled the "Jerusalem Envelope" by Israel, the Wall will create a third distinctive region, that will effectively be annexed to Israel.
One result of this action will be to isolate many thousands of Palestinians between the Green Line and the Wall itself, thereby cutting them off from neighbouring communities and effectively annexing that land to Israel. In the words of Moayad Hussin, Mayor of the Palestinian town of Baqa al-Sharqia, "If the fence is for security, if the fence is to keep us out, then why aren't we on the other side? With every kilometre of fence Sharon builds we are sure there is only one answer. This is not about security, it's about land and resources."(4)
The Israeli Authorities have declared the first phase of the Wall to be completed. This is a 145 kilometre stretch which begins near the Salem Checkpoint north of Jenin in the West Bank and passes by the Palestinian town of Tulkarm before continuing to encircle Qalqilya. Construction is also under way to the north of Jerusalem where the Wall already runs as far as the Qalandiah checkpoint, which prevents the free movement of Palestinians from Ramallah to Jerusalem. Further construction is under way in Bethlehem and Hebron as well as adjacent to Al-Quds University in East Jerusalem.
To date 16 Palestinian villages have been isolated between the Green Line and the Wall in the area between Jenin and Qalqilya, while some 50 villages have been isolated from their lands. A chilling aspect of the route of the Wall has been the manner in which it skirts around, close to Palestinian villages and towns. The effect of this is to ensure that the land on the Israeli side of the Wall, that land which will be de facto annexed to Israel, shall include as few Palestinians as possible thus leaving it open to exploitation by new Jewish settlers. In a similar manner, and providing a striking example of the hardship that the Wall's construction entails for Palestinians, the route of the Wall between Ramallah and Jerusalem is planned to run directly down the middle of the main road, ensuring that only the industrial area of Atarot shall be included within the so-called "Jerusalem Envelope," while the opposite side of the road, the Palestinian residential neighbourhood of al-Ram, shall be cut off from Jerusalem.
Violence of Construction
Homes and agricultural resources including olive groves and greenhouses located in the Wall's "buffer zone" have been destroyed by the Israeli Army and many more are scheduled to meet the same fate. The Stop the Wall Campaign have reported that in the village of Nazlat 'Isa which lies between the Green Line and the Wall, 218 buildings, including five homes, have already been demolished while at least an additional 75 stores, 20 factories, 20 homes, and 1 primary school have demolition orders which are expected to take place in the very near future.(5)
The final route of the Wall is predicted to stretch at least 650 kilometers.(6) Military orders confiscating land for the Wall generally lay claim to a width of land between 47-64 meters. This is land upon which the Wall is to be built and does not include property destroyed or declared off-limits in the "buffer zone," nor does it include property destroyed during construction work. The Stop the Wall Campaign report that the first phase of the Wall has already seen 14,680 dunums(7) of land destroyed.(8)
The Wall and International Law
First this paper will set forth the international law applicable to Israel's occupation of the West Bank and Gaza. It will then examine Israel's construction of the Wall in the light of these laws.
International Humanitarian law (IHL) is the law of war and applies from the commencement of any conflict, in this case the initiation of the 1967 war marks the beginning of the applicability of IHL in the West Bank and Gaza.(9) These laws continue to apply until a general conclusion of peace is reached. In the case of a military occupation, the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949(10) lays out the rights and duties of the Occupying Power. The Geneva Conventions are considered to be customary international law and are thus binding on all states, including Israel. Further aspects of IHL, namely article 51 (Protection of civilians) and article 52 (protection of civilian objects) of Additional Protocol 1 to the Geneva Conventions of 1977(11) are also considered to be customary international law and are also binding on Israel's actions in the occupied territories.
The International Covenant on Civil and Political Rights(12) (ICCPR), whose purpose is to ensure that every individual can enjoy their basic human rights, is also binding on Israel's actions in the occupied territories. Despite the continued refusal of Israel to apply the ICCPR in the West Bank and Gaza, the Human Rights Committee, which is the monitoring body of the ICCPR, has stressed that "the Covenant must be held applicable to the occupied [Palestinian] territories and those areas of southern Lebanon and West Bekaa where Israel exercises effective control."(13) Israel is also a state party to the International Covenant on Social, Economic and Cultural Rights (ICSECR). The monitoring Committee of the ICSECR criticised Israel's discrimination between Jews and Palestinians in the Occupied Palestinian Territories, noting its concern that "the Government's written and oral reports included statistics indicating the enjoyment of the rights enshrined in the Covenant by Israeli settlers in the occupied territories but that the Palestinian population within the same jurisdictional areas were excluded from both the report and the protection of the Covenant. The Committee is of the view that the State's obligations under the Covenant apply to all territories and populations under its effective control. The Committee therefore regrets that the State party was not prepared to provide adequate information in relation to the occupied territories."(14)
This paper will examine the legality of the Wall under three headings. First, the confiscation and destruction of property; second, freedom of movement and finally the prohibition of acquisition of territory through the use of force.
Confiscation and Destruction
Israel has seized control of the land upon which the Wall is being built through the issuing of orders of "confiscation for military needs". While these orders are formally applicable until either 2003(15) or 2005,(16) given the undeniably permanent nature of the Wall, it is probable that they shall be extended indefinitely. By confiscating and destroying Palestinian homes to build the Wall, Israel is in violation of Article 17(1) of the ICCPR which provides that:
"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honour and reputation."
As regards International Humanitarian Law, Article 52 of the Hague Regulations allows for the requisitioning of property in occupied territories if it is "for the needs of the occupying army."
The confiscation orders pertaining to land upon which the Wall is being built fail to satisfy this test: the Wall is not being built for the "needs of the occupying army" but to serve the broader "security" policy of the Israeli State. Kalshoven, a noted legal scholar, states that "the construction of fortifications...etc" cannot be construed as being necessary for the needs of the army of occupation as such structures serve rather "for (future) military operations of the Occupying Power".(17) Furthermore, Article 52 requires that requisitions "shall be in proportion to the resources of the country." It is explicit at this juncture that the amount of land that is being taken to build the Wall can in no way be regarded as being proportionate to the resources of the Occupied Territories which have already been decimated by over thirty-five years of military occupation.
Article 53 of the Fourth Geneva Convention prohibits the destruction of real or personal property by an occupying power, unless "such destruction is rendered absolutely necessary by military operations." Article 147 of the Fourth Geneva Convention includes among the Grave Braches liable to penal sanction under Article 146, the "excessive destruction...of property, not justified by military necessity and carried out unlawfully and wantonly." Under Article 8 of the International Criminal Court(18) "War Crimes" means inter alia, Grave Breaches of the Geneva Conventions of 12 August 1949 including the crime of "Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly." Israel's destruction of property resulting from construction of the Wall is in patent violation of each of the above Articles. The destruction is being carried out in furtherance of a long planned policy and cannot be justified as an act of military necessity, as that requires a genuine military emergency.(19)
Freedom of Movement
The Wall further restricts the movement of Palestinians, who are already restricted in their movements by the Israeli Army's employment of methods of collective punishment such as the closure of towns and villages and the imposition of curfew. Although some gates have been incorporated into its structure, the Wall illustrates graphically the prison-like reality that is the daily struggle for the Palestinian people. The declared purpose of the Wall is to "isolate" Palestinians from Israelis, but it also serves to isolate Palestinians from each other. The gates that do exist are not opportunities for movement but rather tools to further violate the dignity and rights of Palestinians. Some 11,550 people, from 16 villages are trapped between the Wall and the 1967 Green Line, in the de facto annexed area between Jenin and Qalqilya, which Israel now considers a "closed military zone."(20) The comments of the International Committee of the Red Cross (ICRC) on the restrictions on freedom of movement as regards closures and curfews can be applied equally to the Wall:
The ICRC views the policy of isolating whole villages for an extended period of time as contrary to International Humanitarian Law (IHL) particularly with respect to those aspects of IHL which protect civilians in times of occupation. Indeed, stringent closures frequently lead to breaches of Article 55 (free passage of medical assistance and foodstuffs), Article 33 (prohibition on collective punishments), Article 50 (children and education), Article 56 (movement of medical transportation and public health facilities and Article 72 (access to lawyers for persons charged) of the Fourth Geneva Convention.
While accepting that the State of Israel has legitimate security concerns, the ICRC stresses that measures taken to address these concerns must be in accordance with International Humanitarian Law. Furthermore, these security measures must allow for a quick return to normal civilian life. This, in essence, is the meaning of the fourth Geneva Convention which is applicable to the Occupied Territories.(21)
Article 12(1) of the ICCPR asserts that everyone has the right to freedom of movement within their own state. As Israel is obliged to ensure that the Palestinians under its jurisdiction enjoy the rights set forth in the ICCPR, the prohibition of movement represented by the construction of the Wall and by the imposition of closures in areas adjacent to it is manifestly illegal and must be reversed.
Whereas the occupation of territory during an armed conflict is not illegal per se, international law is clear that occupation is a temporary matter and that the final status of any territory so occupied can only be determined during negotiations between the relevant parties, in this instance therefore between the Israeli and Palestinian people. The territory on which the Wall is being built, and the territory that will be isolated either between the Wall and the Green Line or between the Wall and the international border with Jordan is territory occupied by the Israeli military since 1967.
United Nations Security Council Resolution 242 which was passed after the 1967 War, emphasized the "inadmissibility of the acquisition of territory by war," and called for the "withdrawal of Israeli armed forces from territories occupied in the recent conflict."(22) The acquisition of territory through the use of force is prohibited under international law. Although conquest was a recognized and important basis for title until the early years of the twentieth century,(23) it is now well established that "the territory of a state shall not be the object of acquisition by another state resulting from the threat or use of force." Such action is contrary to Article (2)4 of the United Nations Charter and the 1970 Declaration on Principles of International Law.(24) The abolition of the legality of acquisition of territory by conquest includes a prohibition on the acquisition of territory through any war including a war of self-defence.(25)
The prohibition on annexation is reflected in many provisions of international humanitarian law treaties. Though not explicitly prohibited by the Hague Regulations of 1907, annexation of territory through the use of force is clearly incompatible with its spirit and aims. For example, Article 55 rejects the possibility of annexation, declaring that public and state properties in the annexed area be administered "in accordance with the rules of usufruct", thus confirming that occupation of territory is a temporary situation that can never be reconciled with annexation.
Article 47 of the Fourth Geneva Convention concerns the inviolability of the rights of protected persons in occupied territory. It states that such persons shall not be deprived "in any case or in any manner whatsoever, of the benefits of the [Fourth Geneva Convention] by any change introduced...by any annexation by the [occupying power] of the whole or part of the occupied territory". This provision highlights a fundamental principle of international humanitarian law, namely, that the annexation of occupied territory in no way affects the rights and duties of an occupying power in relation to the protected persons in that territory. The official commentary to the convention reiterates that while occupation of territory as a result of war - in the immediate instance the 1967 "Six-Day War" - represents actual possession to all appearances, it "cannot imply any right whatsoever to dispose of territory."(26) Noting that the reference to annexation in Article 47 cannot be considered as implying recognition of this manner of acquiring sovereignty, the Commentary states that a decision on annexation cannot be made while hostilities continue but can "only be reached in the peace treaty."(27) Thus the unilateral actions of the Israeli government and military in building the Wall on occupied Palestinian territory that will result in the de facto annexation of vast amounts of the West Bank violates the rule of customary international law that territory cannot be annexed by force.
The United Nations General Assembly and Security Council have condemned Israel's de facto annexation of occupied territory in Resolution after Resolution.(28) These resolutions consistently reaffirm that the acquisition of territory by military conquest is inadmissible and confirm the applicability of the Fourth Geneva Convention to the territories under Israeli occupation since 1967. The resolutions constantly condemn Israel's policy of creating "facts on the ground" in an attempt to change the legal status of the occupied areas that it has declared annexed. Israel has, however, rejected the content of these UN resolutions, and continues to defy the international community and disregard its rights and responsibilities under international law. Palestinians fear that by building the Wall within the West Bank Sharon's government is in fact encouraging many more settlers to establish new colonies, or to join the existing ones that will be west of the Wall. John Dugard, the Special Rapporteur of the United Nations Commission on Human Rights has stated that the Wall is a tool to facilitate Israeli territorial expansion which represents "de facto annexation" and is therefore illegal under international law. He dismisses Israeli claims that the Wall is a necessary and temporary security measure stating that "the reality is that this is a creeping form of annexation."(29)
Construction of the Wall will serve to isolate thousands of Palestinians both from East Jerusalem and what remains of the West Bank, not to mention Gaza. Coupled with the omnipresent settlements and Israeli-only by-pass roads, it will prevent the emergence of a viable independent Palestinian State and is the coup de grace in the Zionist strategy of creating a "Greater Israel." The Violence of Construction which it perpetuates can be seen in the demolished homes, isolated villages, separated families and spiral of killings which it leaves in its wake.
The Special Rapporteur of the UN Commission of Human Rights warns that, "when territorial expansion occurs openly, as in the case of the purported annexation of East Jerusalem and the Golan Heights, the response of the international community, speaking through the United Nations, has been clear and firm. The response to Israel's present annexation by stealth has not, however, received the same strong condemnation."(30)
Israel cannot continue to steal Palestinian land and claim it is working for peace. It is incumbent on the international community, though individuals, NGOs, human rights activists and States to condemn the construction of the Wall and to act to stop and reverse the construction already underway. The International Day of Action Against the Wall on November 9th provides an opportunity to protest Israel's violations of Palestinians' human rights and should be supported wholeheartedly.
(1) "Wall and Tower (Homa Umigdal): The Mold of Israeli Architecture" Sharon Rotbard in A Civilian Occupation: The Politics of Israeli Architecture, Rafi Segal & Eyal Weizman (Eds.), (Babel, Tel Aviv & Verso, London/ New York, 2003).
(2) Arnon Regular, "World Bank: Security fence will damage Palestinian interests" Ha'aretz, Thursday May 15, 2003.
(3) The Green Line was the ceasefire line between Israel and the Kingdom of Jordan from 1949 to 1967.
(4) Chris McGreal, Caged, The Guardian, September 3, 2003.
(5) "The Wall's First Phase", Anti-Apartheid Wall Campaign Fact Sheet available at www.stopthewall.org.
(6) "The Apartheid Wall" Anti-Apartheid Wall Campaign Fact Sheet available at www.stopthewall.org.
(7) 1 dunum = 1/4 acre = 1000 square metres
(8) "The Wall's First Phase", Anti-Apartheid Wall Campaign Fact Sheet available at www.stopthewall.org.
(9) "What is International Humanitarian Law?" International Committee of the Red Cross.
(10) Aug. 12 1949, 75 U.N.T.S. 287
(11) Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims in International Armed Conflicts, 8 June 1977, 1125 U.N.T.S. 609
(12) G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.
(13) Concluding Observations of the Human Rights Committee: Israel. 18/08/98. CCPR/C/79/Add.93. (Concluding Observations/ Comments) at para. 10
(14) Concluding observations of the Committee on Economic, Social and Cultural Rights: Israel. 04/12/98. E/C.12/1/Add.27.
(15) E.g. Order Concerning Confiscation of Land Number T/09/02 (Judea and Samaria region), 2002
(16) E.g. Order Concerning Confiscation of Land Number T/23/02 (Judea and Samaria region), 2002
(17) Frits Kalshoven, "Constraints on the Waging of War" (International Committee of the Red Cross, Geneva, 1987) pp.55-56
(18) Article 8 of the Rome Statute of the International Criminal Court (ICC) states that the International Criminal Court shall have jurisdiction in respect of "War Crimes", in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. Israel has signed the Statute of the ICC yet it has refused to ratify it.18 The Preparatory Commission of the ICC received numerous documents from non-governmental organizations and drafts prepared by inter-sessional meetings of experts from governments and inter- governmental organisations, all of which contributed to making it an authoritative statement of international law.
(19) Prosecutor v Radislav Krstic, IT-98-33-T para. 527 (Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia, 2 August 2001)
(20) "The Wall's First Phase", Anti-Apartheid Wall Campaign Fact Sheet available at www.stopthewall.org.
(21) ICRC, "Israel and Occupied/Autonomous Territories: The ICRC Starts its Closure Relief Programme," February 26, 2001
(22) UN Doc. S/RES/242 (1967) 22 November, 1967
(23) D.J. Harris, "Cases and Materials on International Law" (Sweet & Maxwell, London, 1991: 4th Ed.) p.201
(24) The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, General Assembly resolution 2625 (XXV) October 24, 1970 para.10
(25) John McHugo, "Resolution 242: A Legal Reappraisal of the Right-Wing Israeli Interpretation of the Withdrawal Phrase with Reference to the Conflict Between Israel and the Palestinians," International and Comparative Law Quarterly (2002), 851
(26) Jean S. Pictet "Commentary: IV Geneva Convention" (Geneva, International Committee of the Red Cross, 1958) p.275
(28) E.g. Security Council Resolution 252 (1968), Security Council Resolution 465 (1980), Assembly Resolution 56/32 (2001)
(29) "UN rights expert: Security fence is illegal annexation", Associated Press, Thursday, March 27, 2003
(30) Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine: Report of the Special Rapporteur of the Commission on Human Rights, Mr. John Dugard, on the situation of human rights in the Palestinian territories occupied by Israel since 1967, submitted in accordance with Commission resolutions 1993/2 A and 2002/8. E/CN.4/2003/30, 17 December 2002.
The Violence of Construction
Israel's Wall and International Law