CONTENTS

Executive summary

Part I: Introduction
1. Object and purpose of the opinion
2. Basic features of the Separation Barrier
2.1. Structure and course of the Separation Barrier
2.2. The legal regime of the Separation Barrier

Part II: Sources and scope of applicable international law
1. International humanitarian law
1.1. Obligations as State Party to the Geneva Conventions
1.2. Humanitarian law reflecting international customary law
1.3. Application to the West Bank and East Jerusalem
2. International human rights law
2.1. Extraterritorial applicability
2.2. Concurrent applicability with humanitarian law
2.3. The fight against terrorist acts and the applicable law

Part III: Violations of human rights and humanitarian law
1. Freedom of movement
1.1. Movement restrictions under international human rights law
1.2. Freedom of movement under international humanitarian law
1.3. Prohibitions under international humanitarian law affected by movement restrictions
2. Property confiscation, requisition and destruction
2.1. Confiscation of private and public land and property
2.2. Destruction and appropriation of property
2.3. Possible future appropriation of land
3. Freedom from arbitrary interference into home and family life
4. Economic, social and cultural rights
4.1. State responsibility under the ICESCR
4.2. Scope of Israel's state responsibility in respect to the Occupied Territories
4.3. Violations of economic, social and cultural rights by the Separation Barrier
5. Respect for the rule of law and due process
5.1. Administrative procedures
5.2. Effective remedies and the right to an independent tribunal
5.3. Effective remedy
6. Prohibition of discrimination
7. The Separation Barrier in light of the right of peoples to self-determination

Part IV: Conclusions

Executive summary

This document summarizes an analysis undertaken by the International Commission of Jurists of Israel's Separation Barrier (hereafter: Barrier) in light of international law, in particular international human rights and humanitarian law.

Background of Israel's Separation Barrier

The construction of the Barrier started in June 2002 following a decision by the Government of Israel to approve its first phase. Further plans for the construction of the Barrier in the West Bank were approved on 1 October 2003. While some parts of the Barrier have already been completed, its construction is a continuous process. The exact route may be subject to changes, but it is planned to stretch to approximately 660 kilometres in length. The Barrier is built largely within the Occupied Territories and a majority of Israeli settlements will be included on the Israeli side of the Barrier.

The Barrier creates Palestinian enclaves within the Occupied Territories and prevents the access by Palestinians to considerable parts of the Occupied Territories. The Barrier separates not only Israelis from Palestinians but also Palestinians from Palestinians. It severely reduces access to land, workplaces and markets, as well as access to education and health institutions within the Occupied Territories, creating harsh repercussions on the wellbeing of the Palestinian population. Israelis, even those not residing in Israel, continue to enjoy their freedom of movement, while Palestinians' access to their land or workplace is limited by a system of gates regulated by a restrictive regime of special permits.

Objective of International Commission of Jurists' legal memorandum

In light of the current public discussion on the Barrier and the arguments raised in the debates in the United Nations General Assembly, Security Council and before the International Court of Justice, the International Commission of Jurists considers it necessary to reiterate some basic principles regarding the scope and applicability of humanitarian law and in particular human rights law. This legal memorandum seeks to place the debate on the legitimacy of the Barrier on a more objective basis, namely that of the rule of law and of international human rights and humanitarian law. It is also motivated by the fact that the Barrier is likely to affect the human rights situation within the Occupied Territories for a significant period of time. The International Commission of Jurists also hopes that its analysis of key legal principles with regard to the Barrier may provide some guidance to the legal community in Israel and the Occupied Territories, where a number of important legal challenges to the construction of the Barrier are pending.

International human rights and humanitarian law both apply in the Occupied Territories. The Barrier in its present route and projection and with the set of rules and regulations that govern its construction and operation constitutes a severe violation of international human rights and humanitarian law. In particular, it interferes disproportionately with a range of fundamental rights and freedoms. In its present form, the Barrier cannot be justified under international law. Israel is therefore under an obligation to cease the construction of the Barrier in the Occupied Territories and to restitute property requisitioned for its construction.

Main conclusions and findings

1. The applicable legal framework includes international human rights law. The respect for human rights and the rule of law is imperative for the legitimacy of the Barrier.

Contrary to the position taken by the Israeli Government, the international legal framework governing the Barrier includes not only international humanitarian law but also international human rights law. Israel is bound by human rights and humanitarian law obligations found in international treaties and in customary international law.

Obligations under international humanitarian law include the obligations set forth in the Fourth Geneva Convention as well as the 1907 Hague Regulations. Both Conventions apply to the West Bank as well as to East Jerusalem. Israel's obligations under international human rights law are found most relevantly in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

It is well established on universal as well as regional level that human rights treaties apply concurrently with international humanitarian law. While international humanitarian law occasionally provides a more specialized rule that may influence the interpretation of a human rights provision, both sets of law apply in their own right: they are complementary and not mutually exclusive. Furthermore, human rights treaties apply in all places where a state exercises "effective control" - even outside a state's formal territory - as is the case in the territories affected by the Barrier.

The Barrier is a contentious issue that has generated intense political debate. However, it does not exist in a legal vacuum. The Barrier's political legitimacy should flow from its compliance with the rule of law and the international legal obligations that bind Israel. The International Commission of Jurists recognizes Israel's legitimate security concerns. Israel has the right and obligation to protect those under its jurisdiction. However, the Barrier - even though motivated by the need to fight terrorist acts and to protect its citizens - must comply with Israel's fundamental obligations under international human rights and humanitarian law. Counter-terrorism measures should be seen as a response by a state that continues to abide by the rule of law and does not abrogate it. Both sets of law were crafted by states themselves, who were very conscious of the need to balance security risks with respect for individual freedoms. The obligations already take into account security threats, such as terrorist acts.

2. The present Separation Barrier exceeds the limits of a justifiable security response both under human rights as well as under international humanitarian law.

With its current route through the Occupied Territories, the Barrier causes severe hardship to the protected population and cannot be justified under international law as a legitimate response to the existing security threats that Israel faces. When one takes into account the cumulative impact of the following factors, the Barrier constitutes a disproportionate interference into the human rights of the Palestinian population.

1) The Barrier is not only a structure that separates Israelis from Palestinians; it also separates Palestinian communities from each other. It creates enclaves within the Occupied Territories and destroys the social and economic fabric of society. It is the specific course of the Barrier, which tears apart homogenous communities and infrastructures, that leads to many of the grave repercussions on the Palestinian population.

2) The Israeli Government has decided to route the Barrier largely within the Occupied Territories and to encompass most Israeli settlements. The inclusion of the settlements has largely led to severe restrictions on the movement of Palestinians and to the separation of Palestinian communities from each other. Israel is entitled to take measures to protect all those under its jurisdiction, both Israelis and Palestinians. This could include some short-term measures to protect its settlements. However, as these settlements are illegal under international law, Israel cannot support the interests of the settlements to the sole detriment of the original population. Yet, this is precisely the result of the Barrier system. It restricts the right and freedoms of Palestinians within their own territory, while ensuring that the settlers do enjoy these same rights and freedoms by integrating them on the western side of the Barrier. Whether or not the Barrier is a permanent structure, the timeframe is clearly open-ended and not merely short-term or truly temporary.

3) The Barrier is not simply a "neutral" physical structure. It is characterized by a restrictive legal regime that regulates its operation. This legal regime severely affects property rights, the use of and access to land, and establishes a system of personal and permanent permits for Palestinians for a limited number of specific purposes and subject to various restrictions. The separation from land, workplace and home leads to severe repercussions, in particular on the enjoyment of economic, social and cultural rights in the Occupied Territories.

4) This legal regime is inherently discriminatory. The movement and residence restrictions and permit requirements apply only to Palestinians because of their national origin and not to Israelis, Israeli settlers or those who fall under Israel's law of return.

International humanitarian law may exceptionally allow for reasonable and proportionate distinctions based on nationality. While the specific context of occupation may enable a state to distinguish between an occupying force and the local population, it does not justify blanket differences in movement restrictions between Israeli and Palestinian residents of the Occupied Territory or between Israelis eligible under the law of return and the local Palestinian population.

5) The Barrier regime's interference into the rights of the occupied population comes with an element of arbitrariness in the way the project is implemented and with a lack of effective remedy against the orders of the Military Commander. The inability to effectively challenge disproportionate measures exacerbates the arbitrary impact of the Barrier.

6) Finally, it is the severity and the sweeping nature of the restrictions that makes the measure disproportionate. The Barrier severely affects many civil and political as well as economic, social and cultural rights. Aggravated by its long-term and open-ended perspective it has adverse repercussions on all walks of Palestinian life and is likely to severely affect all aspects of Palestinian society. The cumulative impact of the Barrier regime on the rights of the occupied population must lead to the conclusion that the Barrier in its present route is a non-proportionate security response.

The Barrier is equally unjustifiable under the concept of military necessity found in international humanitarian law. The particular course of the Barrier within the Occupied Territories and the deliberate choice to include the majority of settlements results in unnecessary infringements into the rights of the protected population. The severity of the measure and its impact on the social fabric of the protected population render the Barrier excessive.

In conclusion, it is the route of the Barrier as well as the legal regime that regulates its operation that renders the Barrier disproportionate and discriminatory. A different Barrier with a different route and with a different set of legal rules and regulations accompanying its operation may be justifiable under international law. In its present form, however, it constitutes a violation of international human rights and humanitarian law.

3. Individual rights and obligations violated by the Separation Barrier

The Barrier affects many human rights and humanitarian law provisions. The scope of the rights affected illustrates the magnitude of the interference. The main human rights concerns are the following:

Freedom of movement

The Barrier and its restrictive movement regime violate the right to liberty of movement and the right to residence, guaranteed under article 12, para. 1 ICCPR.

The Barrier also violates freedom of movement guarantees under international humanitarian law, as its severe impact is not justified under article 27 Fourth Geneva Convention.

Movement related prohibitions

The Barrier and its movement regulations will also constitute a violation of freedom of movement related prohibitions under international humanitarian law if they change the demographic composition of the Occupied Territories. This would violate the prohibition of forced transfer of the protected population in article 49 of the Fourth Geneva Convention. This would especially be the case if Palestinians were forced to leave their place of residence as a result of the Barrier and arbitrary denials of permanent permits.

The Barrier also helps to maintain and perpetuate the existence of illegal settlements and may facilitate further population transfer into those parts of the Occupied Territories that are located on the western side of the Barrier. This contradicts article 49, para. 6 Fourth Geneva Convention, which prohibits the transfer of foreign populations into occupied territory.

Property confiscation and requisition

The so-called "requisition" of private property constitutes for the most part an unlawful de facto confiscation of private property in violation of Israel's obligations as Occupying Power under article 46 Hague Regulations. Even in the absence of a formal act of expropriation, the taking of property for the construction of the Barrier dispossesses the property owner of any meaningful perspective to use the "substance" of the right to property in any foreseeable future.

Contrary to the Israeli position private property requisition cannot be justified by reference to article 23 (g) Hague Regulations. This provision would allow for the confiscation of property only in the context of armed fighting to the extent justified on the basis of military necessity. It is not applicable to the present situation of occupation, nor are the private property requisitions for this Barrier "absolutely necessary as a result of war".

The requisition of public land also violates article 55 Hague Regulations, which requires the Occupying Power to administer Palestinian land in the interest of the protected population as so-called usufruct. The destruction of property, such as buildings, dwellings, olive trees and alike may violate article 53 Fourth Geneva Convention.

Right to privacy, family life

The Barrier also violates a range of other human rights provisions, including the right to family life and freedom from arbitrary interference into one's home and family life (articles 17, 23 ICCPR, article 10 ICESCR). Again, it is the course of the Barrier that separates communities from each other and subjects any contact to a restrictive movement regime.

Economic, social and cultural rights

The Barrier, its severe restrictions on the freedom of movement and the confiscation of land and property prevent the enjoyment of economic, social and cultural rights, including the right to work (article 6 ICESCR), the right to an adequate standard of living, including the right to food, water and housing (article 11 ICESCR), the right to the highest attainable standard of physical and mental health (article 12 ICESCR), the right to education (article 13 ICESCR) and the right to family life (article 10 ICESCR). As a State Party to the ICESCR, Israel is responsible for its implementation in the Occupied Territories. At the very least, Israel is obliged not to interfere in the enjoyment of the rights guaranteed in the Covenant. The Barrier has led to a severe deterioration in the enjoyment of economic, social and cultural rights of the Palestinian people, which would constitute a retrogressive measure in violation of the Covenant.

Due process and the rule of law

Of particular concern is the lack of respect for proper legal and administrative processes and elementary standards of fairness in the application of the legal regime surrounding the Barrier. The Barrier, the process of confiscation of land and the issuance and arbitrary denial of permits raise basic rule of law concerns, in particular with regard to the right to an effective remedy (article 2, para. 3 ICCPR) and the right of access to an independent tribunal in the determination of any dispute affecting a civil right, such as the property title over land (article 14, para. 1 ICCPR). Article 14 ICCPR requires in particular an effective access to an independent court that fully considers both questions of facts and law in the determination of property confiscations. The inability to effectively challenge disproportionate measures exacerbates the arbitrary impact of the Barrier.

Non-discrimination

The Barrier constitutes a discriminatory measure in the application of the rights set forth in both Covenants (article 2, para. 1 common to the ICCPR and the ICESCR), and the general discrimination clause of article 26 ICCPR. The movement and residence restrictions are de jure applicable only to Palestinians and not to Israelis, Israeli settlers or other people who fall under Israel's law of return. International law may allow exceptionally for reasonable and proportionate distinctions based on nationality provided that they are based on reasonable grounds and are proportionate. While the specific context of occupation may enable a state to distinguish between an occupying force and the local population, it does not justify blanket distinctions between Israeli and Palestinian residents of the Occupied Territory or between Israelis eligible under the law of return and the local Palestinian population. The application of restrictions exclusively and indiscriminately to all Palestinians as a group and the creation of severe interferences into their rights and lives cannot be regarded as reasonable within the meaning of the above-mentioned non-discrimination clauses.

Right to self-determination

The long-term consequences of the Barrier, the fact that its route lies within the Occupied Territories and departs from the Green Line and that it is constructed with an open-ended perspective, puts the exercise of the right to self-determination as enshrined in article 1, para. 1 common to the ICCPR and the ICESCR of the Palestinian people under threat. The construction of the Barrier will isolate Palestinian people from East Jerusalem, the West Bank and the Gaza strip. In combination with the restrictive movement regime, it will over time change the demographic structure of parts of the Occupied Territories. Under these circumstances, it may endanger the viability of any future Palestinian state.

4. The obligation to cease violations of international law

The Barrier as constructed constitutes a serious violation of international human rights law and international humanitarian law. It constitutes an internationally wrongful act that requires Israel to cease the construction of the Barrier on the Occupied Territories and to dismantle what has been built so far. Moreover, Israel is under an obligation to restitute property and land to the owners in such a state that allows the use of land according to its previous purpose.

Third states are under an obligation not to aid and assist in the commission of this international unlawful act. States Parties to the Fourth Geneva Convention are also under the obligation not only to respect, but also to ensure respect for the provisions of the Convention.

5. Respect of all parties for the international rule of law

Finally, the International Commission of Jurists strongly believes that any peaceful solution to the conflict in the Occupied Territories must be firmly based on respect for human rights and the rule of law by all sides. The International Commission of Jurists calls on the International Court of Justice as the principle judicial organ of the United Nations to uphold fully these fundamental principles of international human rights law and international humanitarian law. It also calls on the parties to the conflict to respect the forthcoming Advisory Opinion of the International Court of Justice on the "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory."

The construction of the Barrier as constructed at present violates human rights law. It undermines efforts to obtain peace in the region through a just and durable solution. Suicide attacks also violate international law and undermine the search for peace and security. The International Commission of Jurists calls on all parties, including third parties facilitating political dialogue, to fully respect human rights and humanitarian law and to base their policies on these standards. Human rights and humanitarian law cannot be selectively invoked by either party and apply even in the fight against terrorist acts.



 

Part I: Introduction

1. Object and purpose of the opinion

This legal memorandum is prepared by the International Commission of Jurists and analyzes the most pertinent legal issues under human rights and international humanitarian law with respect to the construction of Israel's Separation Barrier. [1] Unless otherwise indicated, it is based on publicly available information about the already completed and projected construction of the Barrier and the legal regulation surrounding its operation.

The present memorandum does not address the political issues underlying the conflict in the Occupied Territories, but analyzes the Barrier exclusively from the perspective of international law. The Barrier is clearly an issue of intense political debate. However, as the then Secretary General of the International Commission of Jurists, Niall MacDermot, stressed in 1979 speaking about the Occupied Territories:

"As a non-governmental organization devoted to the promotion of the rule of law, we are a non-political organisation, though we are well aware that most of what we do or say is likely to have political repercussions. However, we seek to address problems as jurists, from a standpoint of legal norms." [2]

Any political legitimacy of the Barrier should flow from the respect for the rule of law and in particular from its compliance with human rights law. Israel has justified the construction of the Barrier by the necessity to ensure the security of its citizens and to prevent suicide attacks and other acts of terrorism. [3] The International Commission of Jurists unequivocally condemns attacks against Israeli civilians. Such acts are prohibited under international law. Indeed, Israel has the right and the duty to protect the security of all those under its jurisdiction.

At the same time, the construction of the Barrier, even if undertaken as an anti-terrorism measure, does not exist in a legal vacuum or no man's land. In addition to being a political issue, it is also a legal issue and more specifically a human rights issue of major proportion.

The subject of this analysis is the Barrier as constructed and planned at the moment. It does not seek to analyze under what circumstances Israel may be eligible to build another kind of Barrier with a different route. This memorandum considers the legality of the specific measures taken as response to the security threat. It concentrates on the question of the proportionality and necessity of the Barrier under human rights and humanitarian law. This memorandum neither speculates about the specific alternative steps, especially short-term security measures, Israel could take to protect its citizens in the Occupied Territories.

2. Basic features of the Separation Barrier

2.1. Structure and course of the Separation Barrier

In July 2001, the Israeli Cabinet first approved the Security Fence Programme as well as the establishment of a "Seam Zone Administration". [4] The construction of the Barrier started in June 2002 following a decision of the Government of Israel [5] to approve its first phase. Further plans for the construction of the Barrier in the West Bank were approved on 1 October 2003. [6] While considerable parts of the Barrier have already been completed, the erection of the Barrier is ongoing. [7]

In rural areas it consists of layers of razor wire, military patrol roads and sand paths to trace footprints, ditches, surveillance cameras and a three-meter high fence with sensors to warn of any incursion. The Barrier is approximately 50-100 meters wide. Palestinians are prohibited from entering this zone, which contains trenches, cameras and sensors and is patrolled by the Israeli military. Additional plans foresee the construction of so-called "depth barriers" of 150 meters in length, to be erected a few kilometers east of the Barrier itself. These barriers have been described as "barriers without a fence designed to direct movement to a number of security control points". [8] In urban areas, such as Qalqiliya and East Jerusalem, the Barrier is partly constructed of eight-meter high concrete walls with watchtowers.

The exact trajectory may be subject to changes, but it is planned to stretch to approximately 660 kilometers in length. [9] According to the United Nations, the course of the Barrier runs for 90 % within the Occupied Territories, east of the Green Line. [10] This would affect 943,000 dunams [11] of land according to recent data published by B'TSELEM. [12] Its route and planned route indents into the Occupied Territories and would, if fully implemented, encompass 54 Israeli settlements on the West Bank. For example, plans show that it will reach into the Occupied Territories for up to 22 km to include the settlement of Ariel. [13] Reports estimate that up to 320,000 Israelis, including in East Jerusalem, would be living on the western side of the Barrier. [14]

Some stages of the Barrier have already been built, whereas others have only been approved and may still be modified. On rare occasions, Israel has officially announced and dismantled part of an already erected piece of the Barrier. [15] Press reports in Israel indicate that the route might be further modified, including as a result of court challenges, though this has not been officially announced. [16] A number of earlier changes were also reported, but no information is available as to whether these were official decisions and whether, when and how they will be implemented. [17]

The Barrier physically separates parts of the Occupied Territories and isolates its inhabitants from the rest of the West Bank. It creates Palestinian enclaves within the territory between the Barrier and the Green Line. The route also turns cities and villages into enclaves that are almost entirely encircled by the Barrier. While figures on the affected land and population vary, partly because the construction is continuing and the route may change, estimates indicate that approximately 13.5% of West Bank land (not including East Jerusalem) will be separated from other parts of the West Bank [18], including some important fertile land with water resources. Estimates further indicate that around 13,500 Palestinians are located between the Barrier and the Green Line in the areas where the Barrier has been built so far, while 50,000 inhabitants find themselves encircled by the Barrier. [19] By virtue of the Barrier, they are separated to varying degrees from essential services, such as health care, education, water resources and in particular their farmland and workplace. A World Bank monitoring report suggests that the completed sections alone already directly or indirectly affect 170,000 people in 38 cities, towns and villages because they are either living in enclaves, are encircled by the Barrier, or have their land on the other side of the Barrier. [20] The construction of depth barriers would create additional encirclements. The United Nations Secretary General Report of November 2003 estimated that another 160,000 Palestinians would be affected if the Barrier was to be implemented according to plans, because they would then live in enclaves or in almost encircled cities or tracts of land. [21]

The construction of the Barrier in the Occupied Territories has led to the seizure of considerable amounts of land, including fertile agricultural land. It has been accompanied by the destruction of olive and fruit trees, irrigated agricultural lands, water networks and agricultural roads. [22] Palestinians in the enclaves, the encircled cities and villages and those living close to the Barrier are frequently separated from their land, jobs, and health and educational services. Movement through the Barrier is - subject to permissions and opening hours - only possible through a selected number of gates, including agricultural gates that are meant to facilitate the access of farmers and landowners to their land.

2.2. The legal regime of the Separation Barrier

As a physical structure the Barrier divides communities from each other. However, it must also be understood as a legal regime accompanied by a range of restrictions on the fundamental freedoms of the population in the Occupied Territories. The construction and operation of the Barrier is determined by a set of regulations and orders that affect property rights, use of and access to land, remedies, residency status and the freedom of movement of people and goods across the Barrier for various purposes.

The territory between the Barrier and the Green Line - also called the "Seam Area/Zone" - has been declared a "closed military zone" by a Military Order dated 2 October 2003. [23] The order stipulates, that "no person will enter the seam area and no one will remain there". [24] The order, however, exempts Israelis including Israeli settlers from its application ratione personae. [25] The regulation will not apply to Israelis, whereby an Israeli is defined as a citizen of the State of Israel, a resident of the State of Israel registered in the population registry in accordance with the Population Registry Law and anyone who is eligible to emigrate to Israel in accordance with the Law of Return. [26]

Palestinians residing in the closed zone, on the other hand, are allowed to enter and remain in the closed zone if they possess a written permit, which can authorize permanent residence. [27] Palestinians who are not resident in the "Seam Zone" can apply for personal permits if they have a specific reason to enter the closed area, such as to access their farmlands. Palestinians wishing to cross the Barrier have to apply for permits in advance. There are 12 different categories of personal permits defined by the purpose of the stay, including for farmers, employees, business owners and employees of the Palestinian Authority. The regulations do not, however, specify the criteria for accepting or refusing personal permits. Permit holders have to apply for special permission if they wish to travel by automobile, bring in merchandise or wish to stay overnight in the "Seam Area". Even for permit holders (permanent and personal), movement through the Barrier is limited to the single gate specified in the permit. Personal permits granted, for example for farmers to access their land, are often only valid for a limited period. Access to the closed military zone for permit holders is further limited by the specific operating regimes of the gate in question. These procedures may differ from gate to gate, in particular in their opening hours, and are not always entirely predictable. [28]

In order to construct the Barrier, property is seized by Military Orders (requisition orders for military needs) in the West Bank, and by the Ministry of Defence in East Jerusalem. Requisition orders are temporary (usually for a period of three years), but can be renewed without limit. Requisition orders become valid the day they are signed, and remain valid even if they are not personally delivered to the affected owner. [29] While the Palestinian District Coordination Office is requested to deliver copies to the owners, there have been frequent reports that orders are not delivered personally, but simply left on the land concerned. [30] Persons affected by such orders have two weeks to file an objection to the Legal Advisor of the Military Commander of the West Bank, who submits the petition to an Israeli Defense Forces (IDF) Appeals Committee. If the petition is made within the first week, there is a stay of execution. Later petitions may still be considered, but do not result in a stay of execution. The decisions of the Appeal Committee are, however, not binding on the Commander of the West Bank. [31]

Appeals can also be lodged with the Israeli Supreme Court sitting as High Court in the Occupied Territories. [32] A number of current appeals are challenging the specific route of parts of the Barrier and in one major petition leading Israeli human rights organizations are challenging the overall legality of the route east of the Green Line. [33] Some requisition orders also indicate the possibility to apply for usage fees or compensation for the land on which the Barrier is constructed. It does not, however, extend to land from which Palestinian landowners are separated by the Barrier, even if access to this land is prevented by the denial of the relevant personal permits.



 

Part II: Sources and scope of applicable international law

The Barrier and the regime that it establishes are subject to the norms and standards of international law applicable to the Occupied Territories. This includes in particular international humanitarian law and human rights law.

1. International humanitarian law

Israel is bound as a High Contracting Party by the Geneva Conventions of 1949, most notably the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. [34] Israel is also bound by the international humanitarian law that has become customary international law. The 1907 Hague Regulations, the Geneva Conventions, and to a large extent the Additional Protocols to the Geneva Conventions all reflect norms that are now recognized as customary international law.

1.1. Obligations as State Party to the Geneva Conventions

Israel contests the de jure applicability of the Geneva Conventions to the Occupied Territories. It refers in particular to the lack of a recognized sovereign over the Occupied Territories prior to its annexation by Jordan and Egypt, and considers it, therefore, not to be a territory of a High Contracting Party as required by the four Geneva Conventions. [35] The International Commission of Jurists has consistently rejected this position. [36] Common article 2 of the four Geneva Conventions sets out the scope of application in the following way:

"In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

(…)"

The drafting history and the authoritative Commentary of the International Committee of the Red Cross (ICRC) reflects that the Geneva Conventions apply to armed conflicts between High Contracting Parties, including occupation of territory following armed conflict (article 2 para. 1), as well as to occupation not preceded by an international armed conflict (article 2, para. 2). [37] The occupation of the West Bank and East Jerusalem were clearly preceded by an armed conflict with Jordan and Egypt, both High Contracting Parties to the Geneva Conventions. Moreover, an interpretation that excludes the applicability of the Conventions because there was no sovereign title over the territory, would also contradict the object and purpose of the Fourth Geneva Convention, which is to protect the civilian population subjected to a foreign power. Whether the Geneva Conventions apply is determined by the factual test of whether there has been an armed conflict or occupation, rather than on the legitimacy of the conflict, the goals pursued or on legal titles. The Geneva Conventions reaffirm that their object and purpose is to protect civilians from any foreign power, expressed, among others, in common article 1, according to which, States Parties "undertake to respect and to ensure respect for the present Convention in all circumstances" (emphasis added). By the same token, article 4 Fourth Geneva Convention, applies to persons "who, at any moment, and in any manner whatsoever, find themselves in case of a conflict or occupation, in the hands of a party to the conflict or Occupying Power of which they are not nationals".

Articles 1, 2 and 4 Fourth Geneva Convention read together reaffirm the de jure applicability of the Fourth Geneva Convention to the Occupied Territories. Palestinian civilians in the Occupied Territories, who are not taking part in the hostilities, are thus "protected persons" under article 4.

The de jure applicability of the Fourth Geneva Convention to the Occupied Territories, including East Jerusalem, has specifically been the subject of a Conference of all High Contracting Parties to the Geneva Conventions in 2001. The Conference was convened on the basis of the obligation of High Contracting Parties, expressed in common article 1, not only "to respect" but also "to ensure respect" for the Geneva Conventions. [38] The Conference adopted a declaration that reconfirmed the de jure applicability of the four Geneva Conventions to the Occupied Territories. [39] This declaration by the High Contracting Parties represents an authentic interpretation of the meaning of articles 1, 2 and 4 of the Geneva Conventions. [40]

The same position has also been consistently expressed by the international community as a whole through numerous resolutions of the United Nations Security Council and the General Assembly, [41] the Commission on Human Rights, [42] as well as by the ICRC - which is entrusted with a special role in the supervision of the proper application of international humanitarian law, especially of the Geneva Conventions. [43]

There can be no reasonable doubt that the four Geneva Conventions, and in particular the Fourth Geneva Convention, is de jure applicable to the Occupied Territories. The construction of the Barrier and the legal regime established to govern its operation must comply with the provisions of the Geneva Conventions.

1.2. Humanitarian law reflecting international customary law

Israel is also bound by customary international law. It is generally accepted that the provisions of the Hague Regulations annexed to Hague Convention IV on the Customs of War on Land, as well as the Geneva Conventions, in particular the Fourth Geneva Convention, have become an expression of customary international law. The International Court of Justice stated in its advisory opinion on The Legality of the Threat or Use of Nuclear Weapons (1996) [44] that the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulation annexed to it, as well as the Geneva Conventions, have enjoyed broad accession and that these fundamental rules must be observed by all States, whether or not they had ratified the conventions that contain them, because they "constituted intransgressible principles of international customary law". [45]

The customary nature of international humanitarian law, and in particular the Geneva Conventions, has recently been recognized in a decision of the Israeli Supreme Court sitting as High Court in the Occupied territories. It stated in its case HCJ 7015/02 Ajuri v IDF Commander of September 2002:

"The Court has held that the prohibition on forcible transfer is a rule of international treaty-based law, and thus is not applicable in domestic law unless it is enacted into the domestic law. However, this conception has changed, both in international public law and in the judgments of this court. Now, it is almost undisputed that the Fourth Geneva Convention reflects customary law and binds all states - even those that have not signed it - because it enshrines basic principles accepted by all states." [46]

Moreover, customary international law is to a considerable extent reflected in the two Additional Protocols to the four Geneva Conventions. [47]

1.3. Application to the West Bank and East Jerusalem

The Barrier is built predominantly on occupied territory as defined under international law. It should be emphasized that under article 42 Hague Regulations, a territory "is considered occupied when it is actually placed under the authority of the hostile army" and that "the occupation extends only to the territory where such authority has been established and can be exercised".

The Israeli occupation did not end with the Oslo process. While it has been argued that the transfer of authority in certain areas to the Palestinian Authority might have limited the scope of obligations of Israel as Occupying Power, consensus existed even prior to the recent Intifada, that such transfer of authority may at best have reduced, but not extinguished Israel's obligations as Occupying Power. [48] The law on occupation does not require the exercise of complete control over all parts of a territory at all times. Recent developments suggest that Israel has taken effective control over areas under Palestinian authority or demonstrated its capacity to exercise such effective control at any moment. [49] At the very least, it exercises control over the territory in which it constructs the Barrier irrespective of the existence of the Palestinian Authority and its formal mandate. The law governing occupation applies therefore to the construction of the Barrier, irrespective of the division of certain responsibilities between the Palestinian Authority and Israel, originally set forth in the Oslo Accords, and irrespective of the question of the present status of the Oslo Accords.

It should be emphasized that the application of the law on occupation also extends to East Jerusalem, since international humanitarian law prohibits the change of status of territory by force and annexation. Regarding the legal status of the Israeli presence in East Jerusalem, numerous UN Security Council resolutions have reiterated that Israel's attempts to change the legal status and demographic composition of East Jerusalem "have no legal validity" and are null and void. [50] The General Assembly has consistently confirmed this approach, illustrated again by its recent Resolution requesting an Advisory Opinion of the International Court of Justice. [51] These resolutions have confirmed that the international community regards East Jerusalem as occupied territory to which the Fourth Geneva Convention applies.

2. International human rights law

Israel is also bound by international human rights law in the Occupied Territories. It is party to core UN human rights treaties, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), [52] the International Covenant on Civil and Political Rights (ICCPR), [53] the Convention on the Elimination of all Forms of Racial Discrimination (CERD), [54] the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), [55] the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), [56] and the Convention on the Rights of the Child (CRC). [57]

Israel continues to reject, however, that human rights treaties are applicable in the Occupied Territories. The government argues that the protection granted in a conflict situation should be found in humanitarian law, whereas human rights treaties are intended to protect citizens from their own government in times of peace. [58] This position is not supported by international law and practice.

2.1. Extraterritorial applicability

There is today ample authority at universal and regional level that human rights treaties apply wherever a state "exercises jurisdiction" and that this determination is based on the test as to whether a state "exercises effective (not necessarily sovereign) control over a territory". Human rights treaties can therefore apply also extraterritorially.

This has been recognized with regard to all major human rights treaties, including the ICCPR. [59] It would not be compatible with the object and purpose of the Covenant to exclude the applicability of the rights set forth in human rights treaties to situations where the State Party does exercise effective control over a territory or act.

The Human Rights Committee, which authoritatively interprets the ICCPR, has consistently applied the Covenant to acts committed outside the national territory in individual communications such as López Burgos v. Uruguay [60], as well as in a range of Concluding Observations on State Party's reports. [61] More specifically, it considers the Covenant applicable to cases of belligerent occupation, as illustrated by the Committee's observations on Iraq, which stated:

"The failure of the report to address events in Kuwait after 2 August 1990, given Iraq's clear responsibility under international law for the observance of human rights during its occupation of that country, was a matter of particular concern to the Committee". [62]

The UN Commission on Human Rights' Special Rapporteur on the Situation of Human Rights in Kuwait under Iraqi Occupation, Walter Kälin, similarly held both the ICCPR and ICESCR applicable to the belligerent occupation of Kuwait [63]

The Human Rights Committee could hardly have been clearer when it explained in its most recent General Comment on article 2:

"(…) a State Party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party",
and,
"(…) this principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation." [64]

This clear and unambiguous view by the Committee is reflected in its consistent position on Israel. Indeed, both the UN Human Rights Committee [65] and the UN Committee on Economic, Social and Cultural Rights [66] hold Israel responsible under the Covenants in the Occupied Territories.

The extraterritorial applicability of human rights law is further underlined by jurisprudence of regional human rights systems. The Inter-American Commission on Human Rights has considered that the American Declaration on Human Rights is applicable to acts of foreign forces, for example during the occupation of Grenada [67] or more recently in the context of the detentions in Guantanamo Bay. [68]

Similarly, the European Court of Human Rights has held in a number of judgments that a state is responsible under the European Convention on Human Rights for acts committed outside its territory and, in particular, in cases of occupation, such as in northern Cyprus. [69] The jurisprudence reflects that a state has "jurisdiction" not only within its national territory, but also as a consequence of military action - whether lawful or unlawful. The state has jurisdiction if it exercises effective control in an area outside its national territory, whether directly, through its armed forces, or through a subordinate local administration. [70] This responsibility extends to securing the entire range of substantive rights set out in the Conventions and Additional Protocols ratified by the State Party. [71] Even in its more recent Bankovic judgment, dealing with the NATO bombing of Serbia Montenegro, where the Court did not assume responsibility under the European Convention, it nevertheless reaffirmed the principle that extraterritorial jurisdiction applies:

"(…) when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally exercised by the Government." [72]

In light of the uniform practice of judicial and quasi-judicial bodies, at the universal as well as regional level, it cannot be doubted that the ICCPR and the ICESCR apply extraterritorially, including in the Occupied Territories.

2.2. Concurrent applicability with humanitarian law

The jurisprudence of human rights bodies mentioned above clearly recognizes, contrary to Israeli Government arguments, that human rights law does not cease to apply in times of armed conflict or occupation. On the contrary, the cases show the applicability and importance of human rights law, especially in a situation of prolonged occupation.

The International Court of Justice has authoritatively affirmed in its Nuclear Weapons case that human rights treaties, such as the ICCPR, do apply in times of war. Under certain circumstances the content of a specific right (here the right to life) may, however, have to be interpreted in light of the applicable lex specialis, in this case the law of armed conflict which is designed to regulate the conduct of hostilities. [73]

Most recently, the UN Human Rights Committee clarified in its General Comment on article 2, that:

"(…) the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive." [74]

This is in line with various statements and judgments at the regional level. The European Court of Human Rights has confirmed the applicability of the European Convention on Human Rights and Fundamental Freedoms to situations such as the occupation of northern Cyprus. [75] The Inter-American Commission recently equally characterized the interrelationship of human rights and international humanitarian law as a relationship of complementary and reinforcement, while international humanitarian law may occasionally provide for a more specific rule influencing the interpretation of human rights law. [76]

Both, the UN Human Rights Committee [77] and the UN Committee on Economic, Socialand CulturalRights [78] have reaffirmed thisposition in recent concluding observations specifically relating to the Occupied Territories. Both Committees have affirmed not only the extraterritorial applicability of the Covenants but have explicitly rejected Israel's argument that the law of armed conflict supersedes their applicability.

Thus, international practice and jurisprudence clearly indicate that both set of laws apply concurrently in their own right. The relationship is generally one of complementarity and mutual re-enforcement, rather than exclusivity, although international humanitarian law sometimes contains a more special rule that will affect the interpretation of human rights norms.

Finally, this is not only a matter of legal position, but a matter of common sense. Would it make sense to say that human rights law is not applicable and that one must rely completely on international humanitarian law, in a situation of a prolonged occupation of more than 37 years?

It should be borne in mind that the two universal Covenants should in fact be regarded as an expression of a universal ordre public. Rather than creating reciprocal relationships between states, they grant rights to people under a State Party's jurisdiction. Refusing the benefit of these rights in an occupation lasting for 37 years would clearly be unsatisfactory. As the UN Human Rights Inquiry Commission noted:

"(...) A prolonged occupation, lasting for more than 30 years, was not envisaged by the drafters of the Fourth Geneva Convention (see art. 6). Commentators have therefore suggested that in the case of the prolonged occupation, the occupying Power is subject to the restraints imposed by international human rights law, as well as the rules of international humanitarian law." [79]

The Barrier is not just a short-time measure taken during an armed conflict or occupation following a conflict. It has long-term ramifications. It will affect lives and rights of the people in the Occupied Territories for a considerable time to come. International humanitarian law is particularly appropriate to deal with the immediate and acute consequences of conflict and occupation. By itself it is insufficient to regulate the broader and long-term relationship between a people and the authorities that effectively control the territory. The complementary application of human rights treaties in such a case is not only legally required, but also clearly appropriate.

2.3. The fight against terrorist acts and the applicable law

Increasingly, Israel justifies the construction of the Barrier by the necessity to ensure the security of Israeli citizens from terrorism. It argues that the Barrier is fully justified under article 51 of the UN Charter which preserves states' inherent right of self-defence and by Security Council Resolution 1373 which sets out obligations in the fight against terrorist acts. [80]

The International Commission of Jurists unequivocally condemns attacks against Israeli civilians. Such acts are prohibited under international law. Human rights law gives governments both the right and duty to protect the security of the people under their jurisdiction. This derives among others directly from articles 6 and 9 ICCPR. [81]

However, the fight against terrorist acts - even on the basis of Security Council Resolution 1373 - does not suddenly cancel out other aspects of international law. Irrespective of whether the law of self-defence applies and whether Resolution 1373 serves as a legal basis for the construction of the Barrier, Israel remains bound by international human rights and humanitarian law.

UN human rights treaty bodies, such as the UN Human Rights Committee, scrutinizing domestic measures undertaken under Resolution 1373 on its compliance with the Covenant, have reaffirmed the applicability of human rights norms. [82] This is also mirrored in recent work of various thematic experts appointed by the UN Commission on Human Rights. [83] Notably, on 20 January 2003, the Security Council meeting at the level of Ministers of Foreign Affairs recalled that:

"States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law". [84]

The UN General Assembly [85], the UN Commission on Human Rights [86] as well as the UN Sub-Commission on the Promotion and Protection of Human Rights [87] have all affirmed the continuing application of international law, including human rights and humanitarian law when fighting terrorist acts.

The Human Rights Committee specifically stressed that Israel has "(…) to ensure that measures designed to counter acts of terrorism, whether adopted in connection with Security Council Resolution 1373 (2001) or in the context of the ongoing armed conflict, are in full conformity with the Covenant." [88]

The Barrier and the legal regime surrounding it are not put beyond the realm of binding human rights and humanitarian law by asserting that it is a counter-terrorism measure.

International human rights law envisages that states may sometimes have to take exceptional measures and suspend some rights when facing an emergency that threatens the life of the nation. Moreover, limitation clauses allow the taking into account of legitimate security concerns of a State Party such as those posed by terrorist acts. The derogation and limitation provisions in the ICCPR were crafted by states themselves, who obviously had a keen sense of their national security interests and the need to balance these with their human rights obligations. They are a reflection of the fact that a response of a state to a security threat, including terrorist acts, must be an extension of the rule of law, not an abrogation of the rule of law.

Article 4 ICCPR requires that a situation amount to a public emergency, which threatens the life of the nation, and that the State Party has officially proclaimed the state of emergency. [89] It also puts a heavy burden on states to justify why every exceptional measure taken is temporary, necessary and proportionate to meet the specific security threat. [90] Even specific measures taken pursuant to a derogation must be shown to be required by the exigencies of the situation. Moreover, a derogation must not be used solely as a discriminatory measure and in violation of the State Party's other obligations under international law, such as humanitarian law. [91] A state is also under an obligation to comply with the procedural obligation under article 4, para. 3 ICCPR to notify the Secretary General of the measures of derogation imposed. [92] These rules are to be applied strictly.

As recently as 2003 the Human Rights Committee reiterated that all provisions of the Covenant apply to the Occupied Territories, including its non-derogable rights. [93] On 3 October 1991 Israel made a Declaration under article 4, para. 3 ICCPR to notify the derogation from some obligations under article 9 (right to be free from arbitrary detention). [94] The Human Rights Committee considered that as such no derogation beyond that of article 9 is allowed given the state of emergency declared by Israel. [95] No other derogation was subsequently made.

Israel has also not contended that the construction of the Barrier would be based on the derogation of human rights treaties. [96] The failure not to notify the Secretary General of the extension of the emergency powers would also constitute a violation of the procedural obligation under article 4, para. 3 ICCPR. [97] Moreover, the Barrier regime would also fail to fulfil the substantive test under article 4, para. 1 ICCPR, as the Barrier regime is not limited in time, but has all the appearance of a long-term and open-ended response to the security threat. This is illustrated not the least in the relevant regulations, such as Order 378 establishing the "Seam Zone" containing no time limit. Moreover, the interference of the Barrier is - as we shall see in the course of this study - of such magnitude that it is not a measure strictly necessary and proportionate to the specific threat. Furthermore, contrary to article 4 ICCPR it is in violation of other international obligations of Israel, including under international humanitarian law. It may also raise concerns for its discriminatory effect.

Follow this link to part III and IV of the report.