5.2.2. The Separation Barrier
Approximately, the length of the total Separation Barrier by the end of 2011 is 708 km.
“When completed, some 85%, of the route will run inside the West Bank, rather than along the Green Line, isolating some 9.4% of the West Bank, including East Jerusalem”
(UNOCHA 2012:1). Around 15, 000 Palestinians are estimated to enter Israel daily illegally without a working permit (UNOCHA 2012a:1). The construction of the Separation Barrier got approved by the Israeli Government of 2002. The aim of the construction of the Barrier was to prevent a number of suicide bombings by Palestinians in Israel. In 2011 around 62 percent of the Separation Barrier was completed and around 80 percent of it is located inside the West Bank and not on the Green Line (UNOCHA 2011a:1). Checkpoint and agricultural gates are included in the Separation Barrier to allow Palestinian People to cross into Israel or to be able to access their land in the Seam Zone. By the expansion of the settlements in the West Bank, more Palestinian towns got isolated as enclaves. The number of checkpoints, "flying checkpoints", roadblocks, earth mounts, road gates, etc., limits the movement of the Palestinian population. In March 2010, UNOCHA counted a total of 505 obstacles within the West Bank. Compared to the last years the number has plummeted though.
The freedom of movement within the cities has improved in the recent years. Access to Jerusalem, however, remains very limited (UNOCHA 2010a:4f).
To appraise the legal situation of the Separation Barrier within the IHL it is necessary to distinguish between the route of the Barrier built on the Green Line and the route built within the West Bank. First of all it is important to mention that it is absolutely allowed to build a Separation Barrier on internationally recognized borders under international law. The construction of the Separation Barrier is related to laws which apply to the Government of Israel as the occupier. For example, Article 46 of the Hague Laws regulates the confiscation of private property or Article 23 of The Hague Regulations and Article 53 of the Fourth Geneva Conventions is related to the destruction and seizure of property. This will be discussed closer at the end of this chapter. Particularly important to mention in this context are Articles 55 and 56 of the Fourth Geneva
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Convention though, since they are related to the access to food and medical care for the people living in the oPt (HPCR 2004:4ff).
The Program on Humanitarian Policy and Conflict Research exemplified five tests which address the concept of military necessity concerning the Separation Barrier and IHL in the oPt. Article 52 of the Hague Regulations implies the legal concept of military necessity. “The concept of military necessity acknowledges that even under the laws of war, winning the war or battle is a legitimate consideration, though it must be put alongside other considerations of IHL” (Diakonia 2011). Therefore this concept constitutes an exception considering the IHL, but the armed forces still do not have complete freedom. The first test asks if the measures violate an absolute prohibition contained in IHL. Torture is always forbidden and can`t be justified by military necessity. The second test is about the question whether the occupying power will face an actual state of necessity. Furthermore, they raise the question if the measures taken are a sufficient and effective response to the existing threat. The fourth test raises the question if a military advantage gained by the measure outweighs the damage done to the population. The last tests deals with the right measures, after reviewing all interests by the proper authority. The failure of one of the cumulative tests disables the use of military necessity by the government of Israel as a legal justification. The Government of Israel argues that the construction of the Separation Barrier is in accordance with the customary IHL, because the construction is dictated my military necessity and the situation in the oPt since the Intifada is an armed conflict. The government assumes that suicide attacks created a state of necessity. This assumption goes back to the opinion of the Israeli High Court that the military necessity also includes the security of the state itself. For this reason the construction of the Separation Barrier is a legitimate answer to the threat of suicide attacks. Moreover, the construction is defined as a multi stage project and the government of Israel has given the Palestinian people opportunities to address the harm and the right to appeal to the High Court of Israel. They also define the Separation Barrier as a temporary security measure and for this reason can´t be seen as a permanent change in the status of the oPt and the harm, which is caused is proportionate and lawful under the IHL. The definition of an armed conflict led to the denial of the applicability of the ICCPR and the ICESCR in the oPt by the Government
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of Israel. This assumption includes the opinion that international human rights are not relevant in the case of an armed conflict, because they only protect in time of peace their own citizen (only IHL applies) (HPCR 2004:6ff).
Just a few days before the ICJ published its advisory opinion on the construction of the Separation Barrier the Israel High Court of Justice announced its view in Beit Sourik Village Council v. Israel. The Court stated that the IDF had to reroute the wall due to negative consequences for the Palestinians and invalidated orders for the construction of parts of the Separation Barrier. The Court also worked on the question, whether the route of the Separation Barrier was accepted under the aspect of military necessity, proportionality between the Separation Barrier (means) and the security of Israel (ends).
The Court decided the proportion between the means and ends was reasonable, but certain sections of the Separation Barrier would violate the third part of the test (balance between security and harm to the Palestinian population (Watson 2005:19ff).
On the other hand there are a number of arguments against the construction of the Separation Barrier, which according to the ICRC and the ICR is illegal. In its advisory opinion on the construction of the Separation Barrier in the oPt in 2004, which is nonbinding, the ICR states the following:
“The Court has reached the conclusion that the construction of the wall by Israel in the Occupied Palestinian Territory is contrary to international law […]. Illegal actions and unilateral decisions have been taken on al1 sides, whereas, in the Court's view, this tragic situation can be brought to an end only through implementation in good faith of al1 relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973)” (ICJ 2004:200f).
Moreover, a number of international organizations do not see the Intifada more than a civil disturbance than as an armed conflict under IHL. The construction of the Separation Barrier is not valid by the concept of military necessity, because it fails a number of tests, which were mentioned above, as “[…] imposing a disproportionate hardship on the Palestinian population” (HPCR 2004:11). Moreover the Separation Barrier is not seen as a non-permanent structure. The discussion, whether the situation is an armed conflict or not is not important, because the West Bank seen as an occupied territory remains under the law of occupation. Therefore the concept of military
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necessity is only applicable within the law of occupation. Furthermore the negative effects on the daily life of Palestinians are criticized, as well as the protection of the Israeli settlements in the West Bank through the construction of the Separation Barrier.
There is one single argument, which both sides agree on, that the Government of Israel has a right to defend itself against suicide bombers by erecting a separation structure on the internationally recognized borders of Israel (HPRC 2004:11ff).
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5.3. Housing, Land and Property in Area C
The different powers, the Ottomans, the British, the Jordanians, and the Israelis, ruling the region in the 19th and 20th centuries, influenced the legal and administrative system in the West Bank. During the Ottomans just a small part of the land was formally registered. The British began with the process of registering the land to special owners and the Jordanians continued with this process, within the framework called “land settlement” (NRC 2010:23) “Since 1967, Israel has made use of Ottoman legislation dating back to the middle of the 19 th century in order to declare land to be ‘State Land’. According to that law, all lands are considered ‘State Land’ unless proven otherwise“(Peace Now 2006:8).
If for instance a Palestinian wants to formally register a private property, he has to cultivate the land at least for ten years. When the not registered land is cultivated and paid taxes for, this person will be considered as the owner of the land. It can become
‘State Land’, or in another sense, property of the Ottoman State, if the land is not cultivated for three successive years. The state of Israel stopped the registration process, which the other powers before implied, due to the injunction No. 291/1968, announced by the military governor in the oPt. The official purpose was to assure the owners of the land. Unfortunately a huge area of agricultural land was left unregistered and was declared as `State Land` later on. Due to the occupation in 1967, a lot of Palestinians changed their principal source of income from farming in the West Bank to work in Israel (Peace Now 2006:8f). “This situation paved the way for the ‘Custodian of Government Property in the Area of Judea and Samaria`, to declare large parts of the uncultivated land as ‘state land’, utilizing the Ottoman law” (Peace Now 2006:8).
“Jewish land” and “survey land” are other categories of land in the West Bank established by the Israeli Government. Survey land is an expression for Palestinian land, whose ownership is controversial and the title of the land is demanded by the state of Israel. Even the development of this land is not allowed by both sides, has the construction of the settlements continued (Peace Now 2006:12). In conclusion the Civil Administration of the Israeli Government divides the land of the West Bank into four