International Law Position on the Israeli Separation Wall 2

By: Hiba B’irat

In the previous article, we analyzed human rights violations resulting from the construction of the Israeli separation wall, the current article deals with International Humanitarian Law violations, especially with the presence of the Palestinian Israeli armed conflict and the situation of occupation, which leaves huge space for International humanitarian principles and rules to apply.

  • International Humanitarian Law position
  • International Humanitarian Law Applicability:

International Humanitarian Law applies whenever a war, an armed conflict, or an occupation takes place.  According to the United Nations various bodies and organs, the Israeli Supreme Court, and the international various organizations the West Bank and Gaza Strip territories that Israel took over in 1967 are occupied territories and Israel is the occupying power. Accordingly, International Humanitarian Law applies to the Palestinian occupied territories.  The main international humanitarian instruments that apply to the case of occupation are: the Fourth Hague Convention regarding the rules that govern the war on land 1907, the Fourth Geneva Convention regarding the protection of civilians in armed conflicts, and the First Protocol additional to the Geneva Conventions regarding international armed conflicts 1977.Israel is a contracting party to the Fourth Geneva Convention; yet, it is not a party neither to the Fourth Hague nor to the First Protocol. However, international law expertise classify most of the Hague and First Protocol Principles and provisions as a customary law that applies to all states, even non-contracting states.  

Israel, however, has challenged the de jury applicability of the International Humanitarian Law. It argued that Article 2 (2) of the Fourth Geneva Convention limits the applicability of the conventions’ to the occupied territories that was under a sovereign power before the occupation. Because neither Jordan nor Egypt was a sovereign power, Palestinian West Bank and Gaza Strip territories are not occupied and Fourth Geneva ceases to apply.  This position, that refuses the de jury applicability of the Fourth Geneva and adopts the de facto applicability of the mere humanitarian provisions of the convention, without even defining these humanitarian provisions, has been the official position of the Israeli government. Israeli foreign minister, Moshe Dayan, announced to the United Nations in 1977 that because of the illegal Jordanian annexation of the West Bank, the Fourth Geneva 1949 cease to apply. The Position of the Israeli High Court of Justice is similar to the official position of the government regarding the applicability of the Fourth Geneva. However, unlike the Israeli Government, the Israeli High Court of Justice has accepted the applicability of the Fourth Hague convention since, according to the court, Hague the Fourth constitutes a binding international customary law. This Israeli position has been universally refused. The United Nations Security Council, the United Nations General Assembly, and the international Committee of the Red Cross consider the Israeli position of the de facto applicability of the Fourth Geneva Convention a political position, and call upon Israel to apply the convention de jury.

The ICJ refused the Israeli argument regarding the applicability of the Fourth Geneva. The court responded that Article 2 (1) of the convention determines the applicability of the convention on the cases of armed conflicts. While Article 2 (2) of the convention, that Israel depended on, did not aim to restrict the applicability of the convention, on the contrary, this paragraph aimed to expand the applicability of the convention to the cases of occupation without an armed resistance. Moreover, the court drew attention to the first provision of the convention that requires state parties to comply with the provisions of the convention in all the circumstances.  For the applicability of the Fourth Hague on the Palestinian occupied territory, the ICJ declared its applicability regardless of the fact that Israel is not a contracting party to this convention.The court noted that Hague Convention is a codifying instrument of the international customary law regarding the principles and rules govern land wars. Thus, Hague’s applicability is binding in all states whether contracting or non- contracting states.  The court, in conclusion, referred to its advisory opinion on the legality of the use and threat of nuclear weapons to emphasize the nature of the International Humanitarian law that applies in armed conflicts as an erga omns rule that should be respected by all nations regardless of the formal ratification.  

After we examined the applicability of the International Humanitarian Law on the Palestinian occupied territory, next section analyzes the specific violations under the International Humanitarian Law resulting from the construction of the wall.

  • Violations under international Humanitarian Law Resulting from the Construction of the Wall:

As we stated previously, Israel is the occupying power of the Palestinian occupied territory. Israel, therefore, according to Article 43 of the Fourth Hague Convention, has the obligation to maintain “public order and safety” in the occupied territories. In addition to this general obligation, Israel has number of obligations towards the Palestinian occupied territories; most of them are negative obligations, which Israel has violated by the construction of the wall in the occupied Palestinian territory. Examples are: the obligation not to seize or destruct property, the obligation not to annex the occupied territories, the obligation not to change the status of the occupied territory, and the obligation not to collectively punish the people of the occupied territories.

  • Property destruction and land annexation:

Generally speaking, according to Article 53 of the Fourth Geneva Convention and Articles 23 (g) and 46 of the Fourth Hague Convention an occupier is not allowed to destroy property related to the occupied people. This general rule has a very limited exception under a very strict condition that is; an occupier is allowed to destroy occupied people’s property only under an absolute necessity required by a military operation. The state of necessity has a specific definition that we will discuss later in this paper, in all cases; the Israeli action does not meet this definition. Furthermore, unlawfully and wantonly destruction of property without the existence of a military necessity to justify the military act is, according to the ICRC commentary to the Fourth Geneva Convention, constitutes a grave breach of the convention. Thus, this reckless destruction of property constitutes a war crime under Article 147 of the Fourth Geneva Convention. .

For land annexation or acquisition, according to Article 2 (4) of the United Nations Charter, land acquisition using the force is prohibited and is considered an illegal act that may not result in any benefits for the attacker or the occupier.  The ICJ referred, regarding this issue, to the United Nations General Assembly resolution 2625 in 1970 that stated “no territorial acquisition resulting from the threat or use of force shall be recognized as legal.” Moreover, the court referred to its precedent regarding Military and Paramilitary Activities in and against Nicaragua to emphasize that this international principle regarding the prohibition of land acquisition amounts to a customary law that is binding in all the international community members. Furthermore, annexation of land is prohibited under Article 47 of the Fourth Geneva Convention.     

According to the special rapporteur of the commission on the Human Rights on the situation of the human rights in the Palestinian territories occupied by Israel since 1967, although the wall lacks the status of de jury annexation, it obviously creates facts on the ground, which amounts to a de facto annexation.  However, a military necessity was not available to justify the Israeli wide destruction of property and random requisition of lands related to the occupied Palestinian people, the lack of military necessity makes Israel’s construction of the wall amounts to a war crime. In relation to the right of Self-Determination, discussed previously, because the wall is de facto annexing the Palestinians lands and properties, the wall is preventing the Palestinians from exercising their right of Self- Determination.  

The following is a graph that clarifies the Israeli illegal annexation of Palestinian lands during the construction of the wall:

According to this chart, large spaces of Palestinian various lands have been De Facto annexed by the Israeli construction of the wall.  

  • Changing the status of the occupied territory:

The wall has changed the geographic status of the occupied Palestinian territory, in other words it has illegally annexed parts of the occupied Palestinian territory in a violation of international law. Not only annexation is prohibited under international law, but also status changing, whether in a geographic manner that amounts to illegal annexation, or in a natural, material and legal manner that may affect the “demographic composition” of the occupied territory. The United Nations Security Council demanded Israel, in its resolution 446, to refrain from any act that may result in changing the demographic composition of the occupied territory, including the transfer of the occupier own civilians to the occupied territory, or the departure of the occupied civilians from their own lands.   

How does the wall change the demographic composition of the occupied Palestinian Territory? One of the main purposes of the wall construction is to protect the Israeli settlers in the West Bank; the clearest proof for this orientation is the wall route in Qalqilya city that encircled the Israeli settlement, Ariel. The wall aims to protect illegal settlements in the West Bank in violation of the international law. According to Article 49 (6) of the Fourth Geneva the transfer of the occupier civilians to the occupied territories (settlements) is prohibited under international law, and constitutes a grave breach of the convention; thus amounts to a war crime under Article 85 of the First Protocol Additional to Geneva Conventions 1977, which is considered as a customary principle. Not only is the transfer of the occupier civilians prohibited under international law, but also the forced departure of the occupied civilians out of their territories is prohibited under Article 49 (1) of the Fourth Geneva Convention, and considered as a grave breach of the convention which constitutes a war crime according to Article 147 of the Fourth Geneva Convention.  The wall, however, will force Palestinians to leave their lands and property because the direct annexation of their territory and because of the direct and indirect limitations and obstacles imposed on their daily lives as a result of the wall. On the other hand, the wall will shield the illegal Israeli settlements, which will affect the demographic composition of the occupied territory.    

In Mara’aba v. the Prime Minster of Israel, the president of the Israeli High Court then, judge Barak, held that the (Security fence) construction is legal and legitimate according to Article 43 of the Fourth Hague Convention regarding the protection of Israeli civilians in settlements regardless of the international status of the Israeli settlements. In contrast, in Wall case the ICJ held that the purpose of the wall construction to protect illegal Israeli settlements is in violation of the international law. Moreover, Article 43 of the Fourth Hague Convention, according to the ICJ, is designed to protect the civilians of the occupied territory rather than the illegal presence of the occupier own civilians.         

  • Collective punishment:

According to an Israeli official statement “the wall is the price that supporters of terrorism must pay.” This statement indicates a collective punishment of the Palestinians in violation of international law, as collective punishment is prohibited under Article 75 of the First Protocol 1977 and Article 33 of the Fourth Geneva Convention 1949. Furthermore, collective punishment is considered a grave breach of the Fourth Geneva Convention, in other words, a war crime, according to Article 147 of the Fourth Geneva Convention.

In conclusion, Israel, by constructing the wall on the occupied Palestinian territory, has violated International Humanitarian Law in more than one way. Israel has violated its obligations not to destruct property or annex lands related to the occupied Palestinians, additionally, Israel has violated its obligation not to change the status of the occupied territory, and finally Israel has violated its obligation not to punish the Palestinian society collectively for the acts of minority of it.  Now after we analyzed the violations of international human rights law, international humanitarian law, and the international principles of the United Nations, next article will discuss the international responsibilities of Israel, other states, and the UN, as a result of the illegal construction of the wall on the Palestinian occupied territory.  

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