Al-Haq: Israel’s land swap with Palestinians is illegal

Despite the ruling of the International Court of Justice, Israel continues the construction of the Separation Wall in occupied Palestinian territory. (Arjan El Fassed)

Al-Haq is gravely concerned by recent reports that Palestinians whose land has been seized for the construction of the Annexation Wall will be offered alternative land in the West Bank. If implemented, such actions would be in gross contravention of Israel’s obligations under international law due to both the confiscation of the land affected by the Wall and the use of previously-confiscated land as an “exchange” for these recent confiscations. Moreover, such actions provide further evidence of Israel’s intention to de facto annex the territory affected by the Wall, in breach of the Palestinian right to self-determination.

As was unanimously upheld by the International Court of Justice (ICJ) in its July 2004 Advisory Opinion, the West Bank, the territory on which the vast majority of the Wall is presently being built, is considered occupied territory under international law. This has been repeatedly recognised by the international community, as reflected in UN Security Council Resolution 242, upheld in numerous subsequent resolutions, and reconfirmed in the December 2001 Declaration of the Conference of High Contracting Parties to the Fourth Geneva Convention. Even Israeli authorities have recognised the applicability of the Hague Regulations. Much of the land impacted by the Wall’s construction remains on occupied territory and may not be confiscated.

The confiscation of private property in occupied territory is prohibited under Article 46(2) of the Hague Regulations, reflective of customary international law, which clearly states, “[p]rivate property cannot be confiscated.” Even if the land were public, it may not be confiscated: Article 55 of these Regulations provides that Israel as the Occupying Power may only act as administrator or usufructuary, and thus the land must be administered accordingly. Israeli authorities do not acquire ownership thereof.

Israeli claims that such confiscations are lawful on the basis of military necessity are without merit. Although Article 23(g) of the Hague Regulations permits the seizure of enemy property during times of hostilities as demanded by the necessities of war, in order for such seizures to be permissible, they must pass cumulative tests regarding the claim of military necessity.

The construction of the Wall and its accompanying land confiscation must, inter alia, adhere to the principle of proportionality and be the most adequate and effective action to meet a necessary military goal. The Wall as presently being built does not meet these tests. It has a gravely disproportionate impact on the Palestinians in the OPT; the UN Office for the Coordination of Humanitarian Affairs has estimated that over 100,000 Palestinians will be directly impacted by the Wall. Further, the routing of the Wall inside the OPT is neither the most adequate nor the most effective means of protecting Israeli citizens inside the Green Line. The confiscation of land affected by the Wall is therefore unlawful.

Reports have indicated that the seized land in question surrounds the Israeli settlements of Ar’ael and Emmanuel. Al-Haq wishes to emphasise the illegality of all Israeli settlements in the OPT, as unanimously upheld by the ICJ in the Advisory Opinion. It follows that the construction of an obstacle to protect the residents of such settlements, thereby impacting a broad range of the fundamental rights of the Palestinians, cannot be defended as lawful on the ground of military necessity. It would run contrary to the legal principle that an illegal act cannot produce legal rights.

The solution to protecting the lives of the Israeli settlers is not to be found in the further violation of Palestinian rights, but by undoing the original breach and dismantling all settlements in occupied territory.

Furthermore, the State’s indication that those landowners whose land is trapped behind the Wall will be offered alternative territory in the West Bank is itself a violation of international law.

The vast majority of the territory in the West Bank which Israeli authorities claim to be “State land” has been previously and unlawfully confiscated from Palestinian landowners. Under Article 46(2) of the Hague Regulations, title to land may not be transferred to the Occupying Power, and it cannot be subjected to permanent seizure.

Efforts to transfer such plots of land to those whose land is seized for the Wall’s construction will not only exacerbate the earlier violation, but increase the permanency thereof. It appears that such transfer of property is being presented as a means of providing compensation to those landowners whose land is affected by the Wall. However, one cannot compensate for one breach of law by formalising previous breaches.

The plans of the Israeli authorities reflect their intention to de facto annex the land in question. The prohibition of the annexation of territory by force is a fundamental principle of international law, upheld in the UN Charter itself. Actions that serve to annex Palestinian territory are in contravention of Israel’s legal obligations. As noted by the General Assembly in Resolution 2625 (XXV) of 1970, broadly recognised as an authoritative interpretation of the UN Charter,

Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect. It is evident that these actions violate the 1949 armistice line, i.e., the Green Line.

Finally, these actions will further restrict the ability of the Palestinian people to exercise their right to self-determination, a principle which is upheld in both customary and conventional international law and has been deemed an erga omnes obligation by the ICJ.

The confiscation of additional West Bank land continues Israel’s systematic practice of reducing the area of land on which Palestinian self-determination can be realised. The confiscation of land in association with the Wall is particularly troubling, as the Wall’s serpentine route itself restricts the ability of Palestinians to realise this right. Ultimately, the effort to move Palestinians to other areas of the OPT may change the demographic nature of the territory itself, thereby making it more vulnerable to permanent annexation.

Efforts to undo the harm caused to the Palestinian population by the Wall’s construction cannot be met by actions which themselves are in contravention of international law. Indeed, the most adequate and effective means to address the damage done in this regard is by ceasing the violation itself - the Wall’s construction in the OPT.

Al-Haq urges the end of any transfer of land which has been previously and unlawfully confiscated and to stop the construction of the Wall in the OPT. To do otherwise serves only to exacerbate Israel’s breaches of its obligations under international law.

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