Deviations from the “Green Line”
The first point to note is that although the Israeli government is building the wall, not a single part of it is being built on Israeli land. The parts of the wall that have so far been constructed do not follow the Green line. In some places, the wall deviates from the Green line by as much as 6 kilometres into the West Bank. In response to the question why this is so, the Israeli Ministry of Defence states:
“The Security Fence is a defensive measure that is being built in order to eliminate terrorist attacks on Israeli citizens. As such military and operational considerations dictate its route and not political considerations.”9
What the Israeli Government appears to mean by this was revealed in submissions to the High Court in proceedings relating to the wall. One element of the wall is a “trace path,” designed to show footprints. The Israeli Government position was that the wall was required to be inside the Green Line in order to enable the military to track down anyone who had succeeded in crossing the wall before they were able to enter Israel. This does not explain why in some places the wall is near to the Green line but in other places it is a long distance away. Nor does it explain why Israel is apparently unconcerned by the Palestinians living in the seam area between the wall and the Green line, unless the government is intending to remove these Palestinians to other areas inside the wall. This raises questions as to whether the appropriation is justified by military necessity. Many people point out that the wall could easily have been built on Israeli soil.
There have been recent indications that the Israeli cabinet will approve the route of the wall to ensure that the Israeli settlement of Ariel will be on the Israeli side of the wall10. Ariel is a large settlement located in the very heart of the West Bank. Building the wall in this way would necessitate a long “finger” into the West Bank, dividing the land still further.
All of the construction work so far undertaken has been on Palestinian land. Due to the width of the wall, in some places up to 100 metres wide, a significant amount of Palestinian land has been requisitioned for its construction.
Along the “seam area” (the strip of land along the Green Line), there are both Israeli settlements and Palestinian towns. The route of the wall so far seems designed as far as possible to ensure that Israeli settlements in the West Bank are on the Western, Israel side of the wall and that Palestinian towns are on the Eastern side of the wall. The result is a wall much longer that the Green Line, that loops back and forth and results in a significant amount of Palestinian land being on the Israeli side of the wall. It has also led to Palestinian towns being made into “enclaves,” surrounded on all sides by the wall and with only restricted access from the West Bank.
Palestinians have had no influence on the route of the wall. Orders for requisition of land become valid the date signed, even if not delivered to the owner, and may be issued retroactively after the seizure has taken place. Appeals against the orders must be lodged within a week to the Legal Advisor to the Military Commander for review by the Israeli Military Appeals Committee. It is believed that every one of the hundreds of appeals against requisition have been rejected; though in some cases the amount of land requisitioned has been reduced. It is also possible to appeal further to the Israeli High Court, but all such appeals have so far been unsuccessful. Compensation is offered, but it is considered to be below the actual value and Palestinians are reluctant to accept it for fear of legitimising the appropriation of their land.
Other commentators have suggested that the departures from the Green line are designed to annex the very fertile agricultural land and wells in areas of the West Bank lying close to the Green Line. Israel obtains the majority of its water from occupied territory, mainly the Golan Heights and the West Bank and that the land near to the Green Line is some of the most fertile in the West Bank11.
The looping route of the wall within the West Bank to ensure that Israeli settlements are on the Israeli side of the wall has led to the creation of several enclaves on both sides of the wall. The clearest example of this is the Palestinian town of Qalqiliya, which has 41,000 residents. The wall surrounds the town, with only one entry and exit point to the West Bank. The town will be severed from farmland and wells. Access to both the town and the land the other side of the wall will be dependent on permission being granted by the Israeli Military. This month, the Palestinian Centre for Human Rights12 reported that on 5 October 2003 a number of farmers from Jayous, near Qalqiliya crossed from the West Bank side of the wall through to the Israeli side of the wall with their families in order to gather their crops. When they tried to return that day, the soldiers prevented them gaining access to their village. Eventually the women and children were allowed to cross, but around 70 male farmers were forced to stay outside the wall by their land for at least 9 days.
In order to comply with the requirements of the Fourth Geneva Convention, the appropriation of land must be justified by military necessity. It is highly unlikely that protecting settlements, which are themselves illegal contrary to the Geneva Conventions, would be justified by military necessity.
The “Seam Zone”
A large question has been raised about what will happen to the Palestinian land in the “Seam Zone”, the strip of land between the Green Line and the wall. On the 2 October this year, the Commander of the Israeli Military in the West Bank by military order declared the Seam Zone a “closed area”. According to the order, this means that “no person will enter the seam zone or stay in it” and that “a person that stays in the seam zone is obliged to exit it immediately.”
Different requirements apply to Israelis and Palestinians. All Israelis are exempt from the requirements and can enter and leave as they please. This also includes anyone entitled to immigrate to Israel under the Law of Return 7510-1950. By contrast, all Palestinians will be required to obtain permits from the military commander to enter and remain in the seam zone. This includes current permanent residents of the Seam Zone.
The requirement to obtain a permit causes grave concern to Palestinians. The Israeli government has required Palestinians to obtain similar permits in the past. The manner in which these permits have been granted and refused has previously been based on arbitrary criteria. Reasons for refusal have not been given. BTselem has reported that in the past, Israel has taken advantage of the requirement that Palestinians obtain entry permits or permits to go abroad by making them conditional on collaboration with the Israeli Intelligence Service, the General Security Service13.
Even with a valid permit or permission to travel, the system of checkpoints provides no guarantee of free movement. For long periods of time all movement within the occupied territories can be suspended for long periods, as happens during Jewish holidays and elections. In some circumstances, men between specific ages are absolutely forbidden to enter certain areas. In February this year I was forced to travel by a Palestinian “service”14 from Tulkarem to Ramallah after my Arab-Israeli taxi driver refused to leave Jerusalem to pick me up in the snow. What would have been a journey of less than an hour using Israeli roads took almost five hours using Palestinian roads. Because of these restrictions, the only men allowed to travel in the service through the numerous checkpoints were the driver, a doctor and myself.
Maltreatment of Palestinians at Israeli Military checkpoints is extensively documented. My own experience of checkpoints was not favourable. Often checkpoints would only be open during the day, with long queues of people on foot waiting for hours. Crossing with a vehicle was often almost impossible. Checkpoints are often closed at short notice. In Ramallah I had to stay overnight with a television cameraman overnight while Israeli Tanks patrolled outside after the exit checkpoint was closed.
The net effect of the different laws and military orders applied to Palestinians by the Israeli bureaucracy is likely to lead to Palestinians losing land in the Seam Zone. This is because of the Israeli Government’s use of an Ottoman Land Law of 1858. Israeli uses this law to declare unregistered land that has not been cultivated for a period of 3 years to be declared “State Land”. The Israel Lands Administration has never made public the amount of land registered as State Land, but it is believed to comprise around 40% of the West Bank. The majority of Palestinian land in the Seam Zone is unregistered and the Israeli Government ceased carrying out surveys shortly after 1967 whilst continuing to allow State Land to be registered.
Palestinians in the Seam Zone are also being discouraged from remaining there by the current Israeli policy of demolitions. Recent months have seen a large increase in demolitions of what Israel considers to be “illegal” structures. The buildings are considered illegal, as Israel has not granted them permits. However, Israel has a policy of refusing to issue Palestinians building permits outside the built up areas of towns and villages. Between 1996 and 1999, only 79 such permits were granted16 in Area C. Hundreds of demolition orders have recently been issued.
All these factors are likely to lead to the effective “expropriation” of Palestinian land.
Another Wall to the East?
There has been speculation for some time that another wall may be built somewhere along the other side of the West Bank, to the East between the Palestinians and Jordan. Depending on the route, it may have the effect of closing Palestinian areas into unconnected enclaves. Israel mostly classes the East of the West Bank as a military zone. On the road to the Dead Sea in some areas, I saw numerous red signs in Arabic, Hebrew and English warning that anyone would be liable to be shot if found near the Dead Sea between sunset and sunrise. Also visible are the nearby Israeli settlements, marked by lots of white and blue Israeli flags.
An indication that a second wall is being planned was recently given by a leak from an anonymous source in the Israeli Government.15
The United Nations
UN Security Council draft resolution S/2003/980, introduced by Syria, was subject to a vote on 14 October 2003. Relevant parts of the draft resolution read as follows:
Reiterating its call upon Israel, the occupying Power, to fully and effectively respect the Fourth Geneva Convention of 1949,
Reiterating its opposition to settlement activities in the Occupied Territories and to any activities involving the confiscation of land, disruption of the livelihood of protected persons and the de facto annexation of land,
1. Decides that the construction by Israel, the occupying Power, of a wall in the Occupied Territories departing from the armistice line of 1949 is illegal under relevant provisions of international law and must be ceased and reversed
The USA exercised its veto stating that the resolution was “one sided” and “did not further the goals of peace and security in the region.” The UK abstained on the resolution.
Subsequently, the UN General Assembly Resolution 2003 A/RES/58/3 that called on Israel to cease and reverse construction of the wall was passed by 144 votes in favour, 12 abstentions and 4 votes against. However, General Assembly resolutions have no legal effect.
It seems likely that the wall in the West Bank is contrary to the Fourth Geneva Convention as it amounts to extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. In legal terms, there is very little that can be done to require Israel to cease construction of the wall in the way that it is doing so. The USA almost invariably exercises its veto over Security Council Resolutions relating to Israel. The only theoretical legal avenue might be for States to fulfil their obligation under the Fourth Geneva Convention to search for and bring to trial individuals alleged to have committed grave breaches of the Geneva Convention. There are difficulties in undertaking this too, not least diplomatic immunity following the case of Congo v Belgium17 in the International Court of Justice and political unwillingness at the domestic level.
1. Paul Troop is a Barrister, Tooks Court Chambers, and previously International Lawyer and War Crimes Investigator. This article was first published in the Socialist Lawyer, November 2003, and is reprinted with permission.
1. In Hebrew, “Gader” - “fence” “Haf-rada” - “separation.”
2. Committee of Contracting States of the Fourth Geneva Convention - Statement of the International Committee of the Red Cross, Geneva, 5 December 2001.
3. See “Behind the Barrier: Human Rights Violations as a Result of Israel’s Separation Barrier” Position Paper, April 2003.
4. See 1995 Interim Agreement, Chapter 5, Article XXXI, paragraphs 7 and 8 and Chapter 2, Article XI, paragraph 1.
5. “…The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
7. Ha’aretz Magazine.
8. Amit Ben-Aroya, “Sharon to Seam Area Police: The Separation Fence is a Populist Idea,” Ha’aretz 12 April 2002.
9. See note 6, above.
10. See Ha’aretz, 30 September 2003, “PM: When fence reaches Ariel, we’ll deal with U.S. objections.”
11. See Further “The Impact of Israel’s Separation Barrier on Affected West Bank Communities,” Report of the Mission to the Humanitarian and Emergency Policy Group of the Local Aid Coordination Committee, 4 May 2003.
12. See Press Release 139/2003 of the 13 October 2003.
13. Bureaucratic Harassment; Abuse and Maltreatment During Operational Activities in the West Bank in the First Year of the Declaration of Principles (September 1994); Collaborators in the Occupied Territories during the Intifada - Human Rights Abuses and Violations (January 1994).
14. Palestinian Ford Transit taxi.
15. B’Tselem: Land Grab, Israel’s Settlement Policy in the West Bank, May 2002. See also UNWRA Special Report on the West Bank Security Barrier, 15 July 2003.
16. Reported in the Guardian, Friday 24 October 2003.
17. ICJ 121, 14 February 2002.