01 November 2007
On 24 September 2007 the Israeli military commander of the West Bank signed a land expropriation order targeting occupied Palestinian land to the east of Jerusalem, in the West Bank. The immediate aim of these expropriations is to begin the construction of a road, for Palestinian use, linking the southern, eastern and northern areas of the West Bank at the expense of Palestinian property rights, territorial contiguity and ultimately, self-determination.
According to the map attached to the military expropriation order, the new road will circumvent the Israeli settlement of Ma’ale Adumim and other adjacent settlements, and run near the southern and eastern edge of the planned route of the Annexation Wall surrounding these settlements. The recent confiscations cannot therefore be viewed in isolation, but must be seen as forming an integral part of both the Wall’s associated infrastructure and Israel’s territorial ambitions around occupied East Jerusalem. Once constructed, the wall around the ‘Adumim bloc’ will enclose some 61 square kilometres of the occupied West Bank, and jut across some 45 % of the width of the West Bank at its narrowest point. Under a longstanding Israeli development plan, the land between Ma’ale Adumim and occupied East Jerusalem, an area referred to by the Israeli authorities as “E-1,” will be used for the construction of some 3,500 Israeli housing units, driving a contiguous wedge of illegal settlements and their associated infrastructure through the centre of the West Bank. The primary road arteries used by Palestinians to access East Jerusalem and to travel between the north, south and east of the West Bank currently run in close proximity to the “E-1” area. The recent confiscation of land and planned road represent a clear intention to limit and prevent Palestinian access to this area, further consolidating Israel’s control over East Jerusalem’s immediate surroundings and fracturing the West Bank.
Israel, as the occupying power in the West Bank, including East Jerusalem, and the Gaza Strip, is prohibited under international humanitarian law from destroying private or public property unless such destruction is “rendered absolutely necessary by military operations.” Further, the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly,” amounts to a ‘grave breach’ of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention)Fourth Geneva Convention, entailing individual criminal responsibility for those committing, ordering or knowingly allowing such a breach to be committed.
The requirement of ‘military necessity’ grants an occupying power substantial discretion in determining a course of action. However, this discretion is not unlimited. First, the action must serve a military purpose. Second, military necessity cannot justify the violation of other rules of international humanitarian law, and third, the expected military advantage flowing from the action must not be disproportionate to the harm caused to the civilian population.
As already noted, the planned road will provide an alternative to Palestinian use of the road network in the “E-1” area. In combination with access restrictions imposed by the route of the Wall and its associated infrastructure, Palestinians travelling in the West Bank will be forced around the Ma’ale Adumim settlement ‘bloc,’ facilitating the construction of further settlement infrastructure in the E-1 area, including 3,500 new housing units. These intended developments and the settlements already present stand in clear violation of international humanitarian law. Article 49(6) of the Fourth Geneva Convention states that an occupying power “shall not deport or transfer parts of its own civilian population into the territory it occupies.”
In addition, the fragmentation of the West Bank inherent in Israel’s territorial ambitions, manifested clearly by Israel’s settlement construction and land confiscation in and around East Jerusalem, renders the meaningful exercise of the inalienable right of the Palestinian people to right to self-determination impossible. As noted by the UN Special Rapporteur on the Situation of Human Rights in the Palestinian territories occupied in 1967,
The right to self-determination is closely linked to the notion of territorial sovereignty. A people can only exercise the right of self-determination within a territory. The amputation of Palestinian territory by the Wall seriously interferes with the right of self-determination of the Palestinian people as it substantially reduces the size of the self-determination unit (already small) within which that right is to be exercised.
Israel has repeatedly stated its intention to retain control over the most populous settlements in any future negotiated solution. This would amount not only to a violation of the right to self-determination as described above, but would also constitute the annexation of territory by force, a practice absolutely prohibited under contemporary international law.
Based on the above, it is clear that Israel cannot avail itself of ‘military necessity’ as a justification for its recent land confiscation and planned destruction. The confiscation and destruction of the land does not serve a military purpose, but rather is part and parcel of Israel’s illegal settlement policy and the construction of the Annexation Wall. The inherent and resulting denial of the right of the Palestinian people to self-determination and the de facto annexation of territory by force, causes massive and disproportionate harm to the occupied civilian population. As such, the land confiscation and planned road not only constitutes a violation of international humanitarian law in its own right, but also serves to entrench other egregious violations of international law.
International Legal Obligations
Under Article 1 of the Fourth Geneva Convention, the High Contracting Parties “undertake to respect and to ensure respect for the present Convention in all circumstances.” This requires that states must not only avoid taking action that would contribute to or recognise situations arising from the violation of the Fourth Geneva Convention, but that they must also actively seek to bring violations committed by other states to an end.
Further, under the terms of General Assembly resolution 2625 (XXV),
Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter
While not the object of specific international legal obligations the Quartet must, if it is to serve any other purpose than providing tacit consent to Israel’s violations of international law, explicitly affirm fundamental international legal norms, including the right to self-determination, the prohibition on the annexation of territory by force and the illegality of Israel’s settlement policy. As an immediate first step towards this, the Quartet should demand the immediate cancellation to the most recent confiscation orders, the cessation of all settlement construction and the construction of the Annexation Wall in the OPT, and that these structures be dismantled. As already recognised by the Quartet the settlements and Annexation Wall are serious obstacles to achieving a just and durable peace.
Additionally, participation in the Quartet does not shield its members from their individual international legal obligations. Al-Haq therefore calls upon:
• The European Union to implement its own guidelines on promoting compliance with international humanitarian law (2005/C 327/04), including the imposition of sanctions and restrictive measures.
• The United Nations, and in particular Secretary General Ban Ki-moon, to explicitly demand Israel’s compliance with fundamental principles of the United Nations, in particular self-determination and the prohibition on the annexation of territory by force.
• The United States and Russian Federation to uphold their obligations under Article 1 of the Fourth Geneva Convention, and adopt immediate and unflinching diplomatic and other measures to ensure Israel’s compliance with the provisions of the Fourth Geneva Convention.