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Israel's Wall: An Analysis of Its Legal Validity Under U.S. and International Law

ZAHA HASSAN & STEVEN GOLDBERG—NATIONAL LAWYERS GUILD BACKGROUND In June 2003, the Israeli Government began a massive construction project, not within the borders of Israel, but within the Palestinian territories its military occupies. The Israeli Government claims that it is constructing a "security fence" necessary for the protection of its people from attacks and suicide bombings emanating from the West Bank. Palestinians call the barrier an "apartheid wall" ("the Wall") aimed at caging Palestinians into densely populated, Bantustan-like areas (2) while Israel annexes more Palestinian territory for Israeli settlements. Palestinians argue that the Wall denies them the right to travel outside of their towns and villages, that it has resulted in the expropriation of their water resources and their agricultural land, and that it prevents them from accessing medical facilities and their cultural and spiritual centers.(3) Members of Congress have an obligation to ascertain the truth behind the construction of the Wall in the West Bank not only because of our Government's national security interest in facilitating a just and lasting peace in the Middle East, but also because the US appropriates between $3-5 billion in economic and military aid to Israel every year. It is critical for the US Government to maintain `a balanced and reasoned stand on the conflict in Israel-Palestine. In recognition of that reality, when Congress passed the Emergency Wartime Supplemental Appropriations Act of 2003 (Public Law 108-11, HR 1559), it placed an unequivocal condition on the allocation of $9 billion in US loan guarantees to Israel. The Act requires that the loan guarantees may only be used by Israel "to support activities in the geographic areas which were subject to the administration of the Government of Israel prior to June 5, 1967." The Act also directs that the amount of the guarantees "shall be reduced" by the amount of loan guarantees which the President determines have been used inconsistently "with the objectives and understandings reached between the United States and the Government of Israel regarding the implementation of the loan guarantee program." On September 16, 2003, State Department Deputy Spokesperson Adam Ereli told members of the press that the State Department had decided that a reduction would be made in the loan guarantees authorized to Israel. However, "the precise amount is still being determined, but will be an estimate based on a range of Israeli Government expenses associated with the settlement activity." Spokesperson Ereli also stated that the US may also reduce loan guarantees to Israel by the amount which Israel spends on the construction of the Wall.(4) Although the Act required the President to report to Congress by September 30, 2003 regarding whether loan guarantees to Israel should be reduced, the President has postponed his determination pending further review. It is unclear when he plans to submit his report to Congress. With this position paper, the National Lawyers Guild seeks to provide members of Congress with counsel on their obligations under US law and under international law with respect to Israel's continued construction of illegal Israeli settlements and of the Wall in the occupied Palestinian territories. THE WALL AND ITS CONNECTION TO ISRAELI SETTLEMENT ACTIVITY "Israel's undertaking to curb the growth of settlements has not been implemented. On the contrary, settlements have continued to grow at an unacceptable pace. This phenomenon, together with the construction of the Wall, suggests that territorial expansion remains an essential feature of Israel's policies and practices in the [occupied Palestinian territories]." - Report of the Special Rapporteur for Palestine, Commission on Human Rights, John Dugard.(5) The first phase of Israel's construction of the Wall took place in the northwest corner of the occupied West Bank, in the Qalqilya, Tulkaram and Jenin districts, and in the heart of the West Bank, in the Jerusalem and Bethlehem environs. When completed, the Wall will be approximately 280-400 miles long and will have cost Israel approximately $ 1.4 billion. By September 2003, the construction has affected over 65 Palestinian communities with a population of over 210,000. At certain points the Wall is approximately 26 feet tall, is constructed with concrete and/or with razor wire, and is fitted with electronic motion detectors. Where the topography permits, trenches have been dug on the Palestinian side of the Wall. On the "Israeli side"(6), fine sand or earth runs parallel to the fence to pick up footprints. Parts of this trace zone will be mined. Along side of the trace zone is a tarmac road for Israeli army patrol vehicles. The Wall's path does not follow the "Green Line" which marks the de facto boundary between Israel and the Palestinian territories based upon the situation before the 1967 war. In fact, in some areas it cuts four miles into the West Bank and incorporates approximately half of the illegal Israeli settlement-colonies located in the West Bank. The result is that Palestinians are effectively cut off from their farmlands and workplaces, schools, health clinics and other social services. Palestinians living between the Wall and the Green Line are especially isolated as they will be cut off from the West Bank entirely and will continue to be denied entry into Israel. Currently, over 11,000 Palestinians comprising 16 villages are located between the Wall and Israel. However, when construction of the Wall is complete, 70,000 Palestinians will find themselves in this "no man's land."(7) Recently, the Israeli military has ordered the thousands of Palestinians living between the Wall and the Green Line to obtain permits to live in their own homes and to work their own farm land.(8) At least 10% of the West Bank will be expropriated by Israel in construction of the Wall. As John Dugard, the Special Rapporteur for Palestine for the UN Commission on Human Rights, states: "The Wall has all the features of a permanent structure. The fact that it will incorporate half of the settler population in the West Bank and East Jerusalem suggests that it is designed to further entrench the position of the settlers. The evidence strongly suggests that Israel is determined to create facts on the ground amounting to de facto annexation."(9) THE HUMANTARIAN CRISIS SURROUNDING CONSTRUCTION OF THE WALL Jean Ziegler, the United Nations Special Rapporteur on the Right to Food has stated that "[t]he Occupied Palestinian Territories is on the verge of humanitarian catastrophe, as the result of extremely harsh military measures imposed by the occupying Israeli military forces since the outbreak of the second Intifada in September 2000." Mr. Ziegler blames the "[t]he extensive imposition of curfews, road closures, permit systems, security checkpoints, and back-to-back truck off-loading systems imposed by the occupying military forces" for the humanitarian crisis.(10) Restrictions on movement mean that the economy has almost collapsed and many Palestinians cannot feed themselves. Mr. Ziegler also found that water shortages are as serious as food shortages. Water tankers cannot always reach villages, or are arbitrarily not permitted to cross checkpoints, leaving communities without water for days at a time. For the 280 rural villages that depend on the water tankers for their water supply, this means that water insecurity is extremely high in the occupied Palestinian territories. The construction of the wall has exacerbated this already dire situation according to Ziegler: "The fence/wall is seen by many as a concrete expression of the bantustanisation of the Palestinian areas in that it operates as a political strategy to divide the land, separating the Palestinian people into 5 barely contiguous cantons or 'bantustans', deprived of international borders...this would amount to a structural negation of the right to food, as it will effectively forestall forever the possibility of a viable Palestinian state and therefore hinder the capacity of the Palestinians to have a viable economy or be food self-sufficient as a coherent State with international frontiers."(11) U.S. OBLIGATIONS UNDER U.S. LAW AND INTERNATIONAL LAW The legal context for examining Israel's justification for building the Wall within the Palestinian territories is framed by both international and US law. These laws provide an objective standard for evaluating Israel's actions. Public Law 108-11 To the extent that funds from the loan guarantees are used for the construction of the Wall, which veers into the West Bank and Gaza to include settlements west of the barrier, Congress' clear intent as expressed in Public Law 108-11 in allocating the guarantees is being flagrantly violated. Nonetheless, the Administration has ignored Congress' directive by not submitting the required report by September 30. If the President continues to ignore his clear statutory duty, the Congress should immediately hold hearings to determine if any portion of the US loan guarantees is being used to support the construction or maintenance of settlements in the occupied Palestinian territories (OPT). Second, Congress should determine if any portion of the guarantees is being used to support the construction of the Wall in the OPT. If Congress decides that the guarantees are in fact being so used, then future loan guarantees should immediately be halted until the precise amount of the guarantees being used in violation of the Congressional mandate is determined. Foreign Assistance Act & The Arms Export Control Act The Foreign Assistance Act of 1961, 22 USC § 2304, provides that "no security assistance may be provided to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights." Section 2151n of the statute also provides that no development assistance will be provided to such countries. The Arms Export Control Act, 22 USC § 2751 et seq., states that the provision of military assistance to countries must further "the security objectives" of the US, "the purposes and principles of the United Nations Charter" and must be consistent with "the purposes of the foreign assistance program" of the US as provided in the section 2304 of the Foreign Assistance Act. As discussed above, Israel's construction of the Wall has produced a humanitarian crisis in the occupied Palestinian territories. Israel's legitimate interest in providing security to its citizens is no justification for the starvation of the Palestinian population. UN agencies and virtually every non-governmental organization that has investigated the justification for Israel's construction of the Wall has determined that the Wall does not serve the interest of security but instead constitutes a gross violation of internationally recognized human rights. Again, Congressional hearings should investigate whether Israel's action in constructing the Wall violate international human rights standards. If that is the case - as is argued further below - then Congress is obligated under federal statutes to suspend aid to Israel until it halts construction of the Wall. CONSTRUCTION OF THE WALL IN OCCUPIED PALESTINIAN TERRITORIES VIOLATES INTERNATIONAL HUMANITARIAN AND HUMAN RIGHTS LAW There is a specific body of international humanitarian law that governs Israel's administration of the Palestinian territories it has occupied since the 1967 Arab-Israeli War. The law is codified in the Hague Regulations of 1907 (Regulations Appended to the Fourth Hague Convention Respecting the Laws and Customs of War on Land, Annexed Regulations, 1907) and the Fourth Geneva Convention of 1949 (Fourth Geneva Convention Relative to the Protection of Civilian Persons in time of War, 1949). The international community, including the United States as discussed in the State Department's annual survey of human rights violations, considers Israel's authority in the occupied Palestinian territories to be subject to these Conventions as a matter of customary international law. Customary law provides that even if a country is not a party to a particular treaty, it may still be bound by the terms of the treaty if it is intended for adherence by states generally and is in fact widely accepted in the international community. Article 2 of the Fourth Geneva Convention specifically states that it applies "to all cases of partial or total occupation." Despite this international consensus regarding the applicability of these Conventions to Israel's occupation, and despite the explicit statement in Article 2 of the Geneva Convention that it applies "to all cases of partial or total occupation," Israel contends that the Fourth Geneva Convention is not fully applicable in the occupied territories. However, in recent decisions of the Israeli Supreme Court sitting as the High Court of Justice, the Court has assumed the applicability of the Fourth Geneva Convention and has based its decisions in part on the provisions of that Convention.(12) Israel has generally conceded the application of the Hague Regulations to its occupation of the West Bank and Gaza. The Hague and Geneva Conventions prescribe the conduct of the belligerent occupier during what is assumed will only be a temporary period of occupation, and prohibit the military occupier from taking any action that turns its temporary presence into entrenched sovereign permanence. These treaties specifically counter the idea that territory can legitimately be acquired by war and conquest. Further, they demand that the occupied population be treated humanely, specifically spelling out the rights of the inhabitants. Specifically, construction of the separation Wall violates and/or undermines the following well-established fundamental humanitarian and human rights norms applicable to the Palestinian people living in the occupied territories: * The Right to Food As an occupying power, Israel has the obligation to provide resources such as food and water if the resources in the occupied territory are inadequate. Under Article 55 of the Fourth Geneva Convention, the occupying power should ensure the food and water supplies of the population and bring in the necessary foodstuffs. If the whole or part of the population is inadequately supplied, the occupying power shall agree to relief schemes on behalf of the population and facilitate (not hinder) such schemes (Article 59). Yet as discussed in the Ziegler report, Israel is creating a food shortage through its construction of the Wall and destruction of Palestinian-owned lands, clearly violating its duties under international humanitarian law. Israel has ratified all of the principal instruments for the protection of human rights which protect the right to food - the International Covenant on Economic, Social and Cultural Rights (Article 11), the Convention on the Rights of the Child (Articles 24, 27), the Convention for the Elimination of Discrimination Against Women (Article 12) and the Universal Declaration of Human Rights (Article 25). * The Right to Own Property As discussed above, to construct the Wall Israel has and will continue to confiscate thousands of acres of land owned by Palestinians. Private agricultural land as well as olive trees, wells and citrus groves have been destroyed. Further, agricultural land adjacent to the Wall has been declared off limits to Palestinians, rendering it useless. In the section addressing military occupation, Article 46 of the Hague Regulations explicitly affirms that "[p]rivate property cannot be confiscated." Article 53 of the Fourth Geneva Convention prohibits the destruction of real or personal property "except where such destruction is rendered absolutely necessary by military operations." Article 17 of the Universal Declaration of Human Rights states that everyone has the right to own property, and that no one shall be arbitrarily deprived of his or her property. Israel claims that its confiscation and destruction of Palestinian land are justified by military necessity. In addition, Israel contends that given the ongoing violence in the OPT, a situation of hostility rather than occupation exists which permits Israel to engage in defensive measures such as construction of the Wall. Israel argues that Article 52 of the Hague Regulations allow Israel to requisition property if it is "for the needs of the occupying army" in situations of hostility. Israel's justification for the construction of the Wall is clearly pretext. Palestinian land and property is not being appropriated to build for the "needs of the occupying army," but rather, as the UN Special Rapporteur for Palestine, John Dugard, stated in his report, it is a cover-up for annexation of land and the establishment of new borders for the Israeli state which will incorporate illegal settlements and Palestinian land necessary to protect those settlements. * The Right to Freedom of Movement Although Palestinians now suffer severe limitations on their ability to move within and between the occupied Palestinian territories due to checkpoints, roadblocks and curfews, the Wall will only worsen this situation. Walled-in enclaves confining tens of thousands of people will be created, sharply curtailing movement for all except a handful of permit-holders. Access to basic services, medical care and employment will be limited. Both, Article 13(1) of the Universal Declaration of Human Rights and the Article 12(3) of the International Covenant on Civil and Political Rights - fundamental international human rights laws - guarantee the right to freedom of movement within the borders of each State. CONCLUSION So many efforts have been made to resolve the Israeli-Palestinian crises, all of which have failed to this point. It is clear that further peace proposals will fail and further United Nations resolutions will be of no consequence unless significant pressure is put on Israel by its strongest ally, the United States. The U.S. Congress has reiterated its unwillingness to tolerate human rights abuses by countries receiving U.S. economic and military aid in the Foreign Assistance Act and Arms Export Controls Act. It has specifically addressed concerns with Israeli actions by restricting the April 2003 loan guarantees to not being used in the Palestinian occupied territories. Through its continued construction of settlements and now the Wall, Israel has flaunted Congress' clear intent. Israel's actions, as the actions of any country violating international humanitarian and human rights laws, must not be tolerated. If the President refuses to act, then Congress must act by calling hearings immediately to investigate Israel's actions. 1 Zaha Hassan and Steven Goldberg are attorneys in Portland, Oregon, and members of the National Lawyers Guild. Goldberg is co-chair of the Guild's International Law Committee. Both Hassan and Goldberg participated in the Guild's delegation to the Occupied Palestinian Territories and Israel in January 2001. 2 The term "bantustan" historically refers to the separate territory designated as homelands for black people under the South African apartheid state. 3 Detailed documented analyses of the effects of the Wall is beyond the scope of this paper, but is available in reports by Amnesty International, www.amnesty.org, Human Rights Watch, www.hrw.org, B'Tselem (an Israeli human rights organization), www.btselem.org, and the Palestinian Environmental NGOs Network (PENGON), www.pengon.org. 4 Haaretz, 9/17/03, "US Considers Deducting Fence Money from Loan Guarantees"; see also International Herald Tribune, 8/5/03, "US Weights a Cut in Aid to Israel Over Its Fence." 5 E/CN 4/2004/6, September 8, 2003 at p3. 6 The "Israeli side" refers to the eastern side of the Wall that has de facto been incorporated into Israel. The path of the Wall is, for the most part, wholly within the Palestinian territories. 7 Sydney Morning Herald (Australia), October 31, 2003, "Israeli Fence Will Leave 70,000 in No-Man's Land." 8 Guardian, 10/27/03, "Permits Ordered for Palestinians." 9 Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, E/CN 4/2004/6, September 8, 2003 at p2. 10 Draft Report on the Right to Food in the Occupied Palestinian Territories, Section I-A, August 2003. 11 Id. , Section IV. 12 See, e.g., Ajuri v. IDF Commander, HCJ 7015/02.