The reality and legality of Israel’s wall (Part 1/2)

Children playing football near the wall in Qalqilya (Photo: PENGON)


The current Israeli government is currently building a wall in the West Bank. Its construction has raised strong and conflicting emotions within Israel, within the Occupied Palestinian Territories and among the International community. This article examines what the wall is and its legality under the Fourth Geneva Convention.

Reasons for the Wall

Within Israel, the vast majority of Jewish Israelis support the building of a wall separating Israel and the Palestinians. In the July 2003 Peace Index Survey, 80% said that they were very or fairly supportive of the idea. This is not to say that Israelis are in agreement as to the way that the wall is being built. In this regard views diverge massively; parts of the Israeli left wing want the wall built along the “Green Line” that marks the boundary between Israel and land in the West Bank occupied by Israel since 1967, whereas Israeli settlers in the West Bank generally want the wall to be built as far into occupied land as possible.

No doubt the desire for a wall is as a result of 3 years of the Palestinian Intifada, the failure of the peace process and the fear generated by Palestinian militant activity against civilians by way of suicide bombings. It may also have been because of the apparent success of a similar wall built around Gaza in foiling suicide bombings in Israel.

Within the UK, at least initially, there also seemed to be support for the building of a wall. Among some sections this may have been because of a desire to delineate the boundaries of a future Palestinian state along the Green Line. This wish was shared by sections of the Israeli left wing and apparently a reason for the initial opposition to the wall by the current Israeli Prime Minister Arial Sharon. Perhaps also people in this country considered both sides to be equally blameworthy and saw the only solution as being to separate them.

The folk wisdom quoted in the 1915 Robert Frost poem “Mending Wall”: “Good fences make good neighbours” is often quoted. However, like the wall, the poem is not as straightforward as it sounds. The character in Frost’s poem in fact questions why a wall is necessary:

“Before I built a wall I’d ask to know
What I was walling in or walling out,
And to whom I was like to give offence.”

The sentiments are pertinent to the wall in the West Bank.

What Will the Wall Amount to?

Throughout this article, the word “wall” is used. The Israeli Government does not use this term and prefer to refer to the wall as the “separation fence”1. There are a variety of different names by which the wall is referred to. These include the “security fence,” “separation barrier,” “concrete fence,” and “apartheid wall” depending on the point of view of the user. Many official Israeli Government words and phrases have unofficial counterparts. Examples include: “Israeli Defence Force” / “Israeli Occupation Force;” “Judea and Samaria” / “West Bank;” “Targeted Prevention” / “Assassination.”

I have used the term “wall” as I consider it to be the most accurate description of the structure currently being built. Although not complete at present, there are clear indications of what the final form of the structure will be. It is likely to be a concrete structure with a maximum height of 8 metres. There will also be electrified fencing, trenches up to four metres deep, a trace path, a two lane road for patrol vehicles, electronic sensors, thermal imaging and video cameras, fortified guard towers and razor wire. There are likely to be “no-go” areas of various widths either side of the structure, possibly of up to several hundred metres. This does not reflect the normal use of the word “fence” and as I shall explain in this article, the effect of the wall will not be to “separate” Israelis and Palestinians.

By way of comparison, the average height of the Berlin Wall was 3.6 metres and 155 kilometres long.

Legality under International Law

It has been contended that the building of the wall in this way is contrary to International Law. Both the recent UN General Assembly Resolution A/RES/58/3 on the wall and the UN Security Council draft resolution S/2003/980 that was vetoed by the USA state that the wall is “contrary to relevant provisions of international law,” though they do not state which ones.

The Israeli government argues that the requisition of property in the Occupied Territories is legal according to Article 23(g) of the 1907 Hague Regulations which states:

“Art. 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden

(g) To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war;
…”

However, Article 46 of the same Hague Regulations states that private property must be respected and cannot be confiscated and Article 55 states that an occupier is regarded only as an administrator and user of real property and agricultural land in the occupied territory and therefore must safeguard such properties.

Most relevant is the Fourth Geneva Convention of 1949, which governs the treatment of civilians. The Israeli Government is signatory to the Convention, but denies that the Fourth Geneva Convention applies to the Occupied Palestinian Territories. Against this, the Committee of Contracting States of the Fourth Geneva Convention disagrees and states that Israel remains the occupying power and therefore must comply with the Convention and other rules relating to occupation2.

Article 53 of the Fourth Geneva Convention relates to property appropriation and reads:

“Article 53
Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co-operative organisations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

The Fourth Geneva Convention also provides that appropriation of property can amount to a “grave breach” and therefore a war crime:

“Article 147
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention:

extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

Under the preceding article of the Geneva Convention, Article 146, the parties signatory to the Convention agree to enact penal sanctions and to search and bring to trial before their own courts persons alleged to have committed grave breaches of the Convention, regardless of their nationality. In this country, the obligation is enshrined in the Geneva Conventions Act of 1957.

Other commentators have pointed out various other breaches of international instruments that Israel is breaching because of the wall. BTselem, the Israeli Information Centre for Human Rights in the Occupied Territories has submitted that the wall is an infringement of the right to freedom of movement, the right to work and to an adequate standard of living and the right to property3. Additionally, the Oslo Peace Accords signed in 1995 forbid a party from changing the status of the West Bank under the agreement4.

Is “Separation” Possible?

Looking at a map, people could be forgiven for thinking that separating Jews and Palestinians would be easy. The West Bank lies to the East of Israel. The River Jordan and the Dead Sea form the Eastern border of the West Bank with Jordan. The border of the West Bank with Israel runs for about 350 kilometres in a rough curve that runs near Haifa in the North, Tel Aviv to the West and the Negev desert to the South.

For a variety of reasons, attempting to build a dividing wall would not be easy. The wall in Robert Frost’s poem divides an apple orchard from pine trees. The populations of the West Bank and Israel are not so neatly divided.

The first obstacle is the Israeli settlements. Travelling through the West Bank, seeing settlements is as common as seeing Palestinian towns. In contrast to Palestinian towns that have grown randomly and untidily in the valleys, settlements are normally located on the tops of hills, regular white boxes of houses with red tiled roofs arranged in rows and surrounded by massive security. Though population transfer into occupied land is illegal, contrary to Article 49 of the Fourth Geneva Convention5, the Israeli Government has planned, supported and funded this settlement of Israelis in the West Bank. There are now 400,000 Israelis living among the Palestinian population. Settlements are often deliberately placed in immediate proximity to Palestinian Towns and villages and in the case of Hebron, a Palestinian Town, a settlement is located in the very heart of the city. It is therefore impossible to divide Palestinians from Israelis unless the settlements are dismantled, a step to which the current Israeli Government is vehemently opposed. Nor should it be forgotten that the Israeli has a significant percentage of Palestinian citizens. Palestinians who remained in Israel when the state was created currently amount to around 20% of the population and the proportion is steadily increasing.

The current government’s refusal to consider dismantling the settlements creates further difficulties in any attempt to “separate” the two peoples. Settlers are citizens of Israel and are entitled to unrestricted access to and from the West Bank. In addition, citizens of Israel, including both Jewish and Palestinian citizens, together with visitors to Israel holding a visa are also entitled to unrestricted access to the West Bank, though Israeli citizens are forbidden to enter Area “A,” which is nominally under Palestinian control. This necessitates a porous border with numerous security checkpoints to check identity cards and search people and vehicles.

Will a Wall Prevent Suicide Bombings?

The Fourth Geneva Convention requires property appropriation to be “necessary” in order to be legal. Doubts have been expressed as to whether the wall will be effective, bringing doubt on whether it is “necessary”.

The Wall is commonly thought to be a way of preventing suicide bombers from the West Bank from reaching Israel. The basis for this is apparent success of a similar wall that surrounds Gaza. Since the effective closure of Gaza to Palestinian movement, the vast majority of suicide bombers have come from the West Bank. The Israeli Ministry of Defence has stated:

“The security fence that exists along the Gaza Strip has proven its defensive robustness and the vast majority of infiltration attempts through it, were discovered and thwarted.”6

However, an official Israeli Government report has cast doubt on the application of this assumption to the wall in the West Bank. The Israel State Comptroller is an independent audit body that reports to the Israeli Parliament, the Knesset. In July 2002 the State Comptroller produced a report on the seam area that stated:

“[Israel Defence Force] documents indicate that most of the suicide terrorists and the car bombs crossed the seam area into Israel through the checkpoints, where they underwent faulty and even shoddy checks.”

More recently, the suicide bomber that killed 19 people in a Haifa restaurant on the 4 October 2003 apparently travelled from Jenin in the North of the West Bank and through the completed section of the wall with little difficulty.

Sources in the Government have also expressed doubts about the wall. In an interview published 30 August 2003, Israel Defence Force Chief of Staff Moshe Ya’alon said:

“I don’t think the fence will solve all the problems.” “If I were given that money, I would invest it elsewhere.”7

Even Ariel Sharon, speaking of the wall in April 2002, was quoted as saying: “The idea is populist and intended to serve political objectives.”8

There are also massive differences between Gaza and the West Bank. The apparent success of the wall in Gaza has been as a result of the almost hermetic sealing of Gaza to Palestinians. When I lived in East Jerusalem, myself and my colleagues would sometimes buy lunch from a Palestinian from Gaza who sold food cooked by his wife from the back of a battered old car. He was outside Gaza when the borders were effectively sealed and had been unable to return for years. The West Bank wall could only be as effective as the one in Gaza if the gates in it were closed to Palestinians, something that the Israeli Government is claiming that they have no intention to do. It does remain a possibility in the future however if the wall fails to prevent suicide bombers entering Israel from the West Bank.

Doubts about the efficacy of the wall, together with knowledge of the cost amounting to a sum in the region of £1,000 million have led some to speculate that there are other reasons for the Sharon Government’s decision other than security concerns or mere submission to popular pressure. Palestinian, Israeli and international commentators have suggested that the wall is an attempt by Sharon to appropriate further Palestinian land and to delineate the borders of a future Palestinian state far smaller than one that would encompass the entire West Bank. There is force in this suggestion.

Permanence

Israel considers the wall to be temporary. The significant cost and extent of the construction alone have led some to question what the Israeli Government considers to be “temporary”.

The government points to the fact that the land in question has been requisitioned by military order only until the 31 December 2005. However, nothing prevents the orders themselves from being renewed without limitation in the future. It would seem difficult for the Israeli Government to justify the enormous cost of the wall if it were to be dismantled in 2005 or shortly thereafter. The construction methods also suggest that the wall could stand for a long time.

Historical precedent does not inspire confidence in the government’s claims. A similar procedure was used by Israel to take control of Palestinian land for a “temporary” period to establish settlements. These settlements have not been returned and it is clear that the intention of Israel was to permanently appropriate the land. It is likely that despite the government’s statements, the land taken to build the wall will be effectively appropriated.

The Route of the Wall

The Wall at present is not complete. Nor is it clear where the final route of the wall will run, as previously the Israeli Government has refused to release a final plan and changes to the route are taking place on a daily basis. However, parts of the route can be determined from the land-seizure orders given to Palestinians, maps submitted to the High Court of Justice and physical observations of the current construction.

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